Delhi

North East

CC/232/2015

Mukesh Kr. Tomar - Complainant(s)

Versus

Manager Pam Filling Station - Opp.Party(s)

26 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 232/2015

In the matter of:

 

	Mukesh Kumar Tomar E-536/A, Prem Gali No. 4, East Babarpur, Shahdara, Delhi 110032	Complainant
	Versus
1         2         3	Manager Pam Filling Station, BPCL Petrol Pump, C-Block Community Centre, Yamuna Vihar, Delhi 110053   Central Pollution Control Board Parivesh Bhawan CBD-cum-Office Complex, East Arjun Nagar, Shahdara, Delhi-110032   Delhi Pollution Control Committee 4,5 & 6 Floors, ISBT Bldg., Near Kashmiri Metrol Station, Kashmere Gate, Delhi 110006	Opposite Parties

 

	DATE OF INSTITUTION:	28.07.2015
	RESERVED FOR ORDER:	23.07.2018
	DATE OF DECISION:	26.07.2018

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member:-

ORDER

1. Case of the complainant is that he had purchased an Activa 125CC white color scooty bearing registration No. DL8S            BK 9275 on 18.06.2014 from Globus Motors Pvt Ltd and the PUC certificate with respect to the above mentioned scooty was valid upto 19.04.2015. Complainant has submitted that on 17.04.2015 at 10:00 a.m., he had gone to C-Block Yamuna Vihar area where he thought of renewing his PUC certificate of the scooty since it was nearing expiry in next two days. However, when he reached to OP1 (Pollution checking centre no. P-428 at around 10:50 AM, he was asked by the attendant to insert the nozzle/rode in the silencer. When the complainant refused to do so stating that it was not his job OP1 failed the pollution control test for the complainants scooty and on being asked the reason for the same by the complainant, the attendant misbehaved with the complainant using foul language. Thereafter, the complainant went to another pollution checking centre Rajeev Automobile centre no. 630 at Durga Puri Chowk the same day around 10:55 AM, where he was given the certificate after proper pollution check at 10:55 a.m. It has been further submitted by the complainant that his scooty is just one year old and he had got the regular services done from the company from time to time. He had further submitted that he had issued a consumer notice to Manager to OP1 stating that in case he is not given a reply for rejection of PUC of his scooty within 7 days, he would file a case for compensation of Rs. 1,00,000/- before a consumer court. However, the Manager of the OP1 didn’t reply to his notice and therefore, the complainant was constrained to file the present complaint and has prayed before this Forum for issuance of directions to OP to pay   Rs. 1,00,000/- as compensation to the complainant. Complainant has attached a copy of notice dated 01.06.2015 addressed to Manager OP1 alongwith Track Report service / receipt, a copy of delivery challan dated 18.06.2014 confirming the purchase and delivery of above scooty, copy of PUC dated 21.01.2015 issued by OP1 which is in dispute/ giving rise to the present complaint, copy of PUC by Rajeev Auto Mobile dated 17.04.2015, copy of token of PUC, copy of tax invoices towards various services of scooty done by Service Centers Rajendra Honda on 26.07.2014, 17.09.2014, 01.12.2014 and 20.02.2015. Subsequently, amended memo of parties was filed by complainant impleading OP2 & OP3 in the array of parties to correct the material irregularities in the complaint.
2. Notices were issued to all the OPs on 05.08.2015 for appearance before the Forum on 09.09.2015 and the same were delivered to all the OPs. However, despite service, OP1 didn’t appear before Forum and as such the OP1 was proceeded against ex parte vide order dated 12.10.2015. However, OP2 & OP3 were filed preliminary reply on 12.10.2015 stating that issue of pollution checking pertains to the Secretary- Cum- Commission, Department of Transport of 5/9, Under Hill Road, Delhi-110054 and the answering OP in no manner concerned with Automobile Pollution and its related functions as per the provisions of the Air (Prevention and Control of Pollution Act) 1981. However, OP2 and OP3, later during the course of proceedings on the same day were represented by their assistant legal officer who prayed for time to file proper reply to the complaint. Written statement was filed by OP3 on 12.11.2015 wherein OP3 took the preliminary objection that the complainant is not a consumer of OP3 as defined u/s 2(d) of CPA as there is no privity of contract between complainant and OP3 and no agreement or contract or undertaking had been executed between the complainant and OP3 which has been filed on record. OP3 further urged that Delhi Pollution Control Committee (DPCC), OP3 herein is an extension delegatee of the Central Pollution Control Board under the provisions of the water [Prevention and Control of Pollution) Act, 1974 (refer Section 4 (4)] and the Air (Prevention and Control of Pollution) Act, 1981 (refer Section 6). Accordingly, OP3 was constituted by notification dated 15.03.1993. OP3 took the defence that complaint is also liable to be dismissed against OP3 as no services have been provided/ defined as envisaged under section 2(o) of the Consumer Protection Act and OP3 has not received any consideration or any promise to receive any consideration pr provided any services, with regard to checking the pollution of the ‘scooty’ of the complainant, to the complainant either directly or indirectly. OP3 also contended that the Transport Department, Govt of NCT of Delhi, a necessary party has not been impleaded in array of parties by the complainant and OP3 was neither approached to provide any service to complainant in any manner whatsoever nor any allegation levelled against OP3 by the complainant in the complaint or in the letter dated 20.04.2015 by the complainant against behaviour of OP1 employee which centre i.e. OP1 is not answerable to OP3 and the same is under control of Petroleum Ministry of Central Govt. and Transport Department of GNCT of Delhi.  OP3 further contended that there is no evidence on record to establish that the machine of OP1 was in perfect working condition and that the failure of the pollution level of the scooty was due to any mechanical error in the checking machine. Further, OP3 also took the plea that the complainant has not stated/alleged whether the pollution check for the second time was not done after having the scooty serviced / fixed by a mechanic by the complainant. OP3 futher took the defence that control of pollution of vehicles falls within the ambit of the Motor Vehicle Act, 1988 under chapter VII thereof governing construction, equipment and maintenance of motor vehicles wherein vide section 110 and 111, the Central Government and State Government respectively are empowered to make rules for the said purpose and submitted that on receiving the complaint from the complainant on 20.04.2015, OP3 forwarded it to Secretary Cum-Commissioner GNCTD alongwith covering letter dated 09.05.2015 and another follow-up letter dated 09.11.2015.  OP3 has attached copies of two letters dated 09.05.2015 & 09.11.2015 from Delhi Pollution Control Committee addressed to Secretary-cum-Commissioner, Transport Department, GNCTD of Delhi alongwith copy of complaint by complainant dated 20.04.2015 alongwith the written statement.
3. Rejoinder was filed by the complainant in rebuttal to the written statement filed by OP3 wherein complainant stated that the Transport Department’s Pollution Control Division, GNCTD had vide reply dated 05.10.2015 in response to RTI query by the complainant dated 18.09.2015 enquiring as to whose duty it is to insert pollution checking rod in the silencer of vehicle for PUC certification, stated that to insert the probe/ rod in the tail pipe is part of test procedure of pollution check, so it is the duty of operator who checks the pollution. The complainant further stated that after OP1 failed / rejected his vehicle for PUC, the complainant visited another pollution control centre at A-6 near Durgapuri Chowk to get his scooty pollution checked and verified on the same day i.e. 17.04.2015 at 10:55 a.m. within time difference of 15-20 minutes to covered distance from Yamuna Vihar to Durga Puri Chowk and therefore, it should be understandable to OP3 that scooty was not serviced / fixed by mechanic of OP1.
4. The Complainant has filed affidavit of evidence reiterating his grievance in which in addition to documents already filed with the complaint, the complainant exhibited the original PUC certificates dated 19.06.2014 from Singh Service Centre (Code P4 56), the disputed / challenged PUC certificate dated 17.04.2015 from OP1 (Code P4 28) with remark “Vehicle Rejection Slip” and PUC certificate dated 17.04.2015 from Rajeev Automobiles (Code P6 30) granting PUC certificate, consumer notice dated 01.06.2015 by the complainant to OP1 with postal receipts and track report, RTI query dated 18.09.2015 and reply thereto dated 05.10.2015 and RTI reply dated 06.10.2015 by OP2 wherein OP2 informed the complainant that the entire liability to conduct PUC check is on the centre which charges fixed fees for the same and which is registered under Transport Department GNCTD and authorized to give PUC certification there under.  
5. Evidence by way of affidavit was filed by OP3 reiterating the defence taken in the written statement.
6. Written arguments were filed by the complainant. OP2 and OP3 failed to appear before this Forum after 18.04.2016 on filing evidence and despite several opportunities granted to them, neither appeared nor filed written arguments for which cost was also imposed on OP2 and OP3. However due to repeated non appearance and non compliance by OP2 and OP3, they were proceeded against ex-parte vide order dated 13.02.2018.
7. We have heard oral arguments of the complainant and have thoroughly scrutinized the documentary evidence submitted by complainant and OP3 in support of their respective rival contentions. During the course of arguments, a specific question was put to the complainant by this Forum whether he had made any payment to OP1 for PUC where his vehicle was rejected to which the complainant categorically reply in the negative stating that neither was he asked for any payment by OP1 nor did he pay any consideration amount towards the pollution checking to OP1 and submitted that he had paid              Rs. 60/- to Rajeev Automobiles as PUC certificate fees where he had gone after his vehicle was rejected by OP1 for PUC certification. This voluntary statement made by the complainant clearly establishes that the PUC certificate was given to complainant by OP1 ‘free of cost’. In view of the above,  we are of the considered view that since the complainant had not paid any consideration, part of entire to OP1 towards the pollution checking, he is not a consumer within definition of section 2(d) of the Consumer Protection Act, 1986 wherein it is clearly mentioned that Consumer means any person who –

1. buy any goods for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes and user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. [hires or avails of] any services for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid any partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];

The complainant has himself contended that the PUC test was not conducted by OP1 on his vehicle due to rod / probe insertion dispute which arose between him and attendant of OP1 and therefore not only was no consideration paid by the complainant to OP1 but also no “service” as per section 2 (o) of CPA was rendered by OP1 to complainant to be categorized/considered deficient as the PUC certificate admittedly was given to the complainant by OP1 (vehicle rejection slip) without conducting any PUC test. Even otherwise the OP1 falls under the control of Transport Department GNCTD as per RTI reply by OP2 dated 06.10.2015 filed by the complainant himself and OP2 and OP3 cannot be held liable for activity of OP1. The Hon’ble National Commission in the judgment of Rabi Narayan Sahoo Vs Dr. B. Jayaram Pathra 2004 (1) CPJ 3 (NC) held that since no consideration was paid by the complainant to hospital or doctor, complaint was not maintainable since free services do not fall within the purview of CPA and dismissed the petition.

8. Accordingly, the present complaint is dismissed as frivolous and vexatious under Section 26 of CPA and complainant is directed to deposit a cost of Rs. 2,000/- with Consumer Legal Aid within a period of 30 days from the receipt of copy of this order as penalty for gross abuse of process of law and is hereby warned to abstain from indulging in such frivolous litigation in future lest the same be dealt with sternly with heavy hand of law.
9. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10. File be consigned to record room.

(Announced on 26.07.2018)     

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member