..PER SHRI. K.M. LAWANDE HON'BLE MEMBER
- Being aggrieved by the judgement and order of District Consumer Dispute Redressal Forum, Amaravati in consumer complaint 120/2012 dated 09/12/2013, the appellant/Opponent No.1 in consumer complaint, has filed this appeal. The Appellant is dealer of the gas agency. The respodent No .1 is the original complainant and the respondent No.2 is the original opponent No.2, who is the gas company in the consumer complaint. Parties in this appeal are hereinafter referred as per their status in the consumer complaint as opponent or complainant respectively for the sake of convenience. The District Consumer Dispute Redressal Forum is also referred to as District Forum.
2. It is the case of complainant that he purchased gas connection from opponent No.1, dealer on 29/06/2012. The opponent No. 1 received Rs.6,500/- from him towards gas connection, gas cylinder and regulator and given the receipt of Rs. 2,650/-only. The apponent No.1 used abusive language for him when receipt of total amount of Rs. 6,500/- was requested. He informed the facts to his family member, when they adviced him to obtain the receipt of shegri/stove. He accordingly visited the opponent No.1, but the opponent refused to give the receipt of balance amount of Rs. 3,850/. He required to spend Rs. 5,000/- towards transport in visiting opponent No.1. He is earning Rs.300/- per day and lost 5 -6 earning days and also incurred expenditure for issuing notice to the opponents which is Rs.20,000/-. He issued legal notice to opponent No.1, which is replied by the opponent with contention that they received Rs.3,628/- from complainant for Rs.2,500/- towards two cylinders, Rs.150/- towards regulator, Rs.100/-for gas pipe ,Rs.35/-for lighter and Rs.843/-/-for shegri/stove. However, not given receipt of Rs.6,500/-. He has also made complaints to police station, opponent No.2 gas company,supply inspector. He has also issued notice to opponent No.2 gas company. Alleging deficiency in service by the opponents, he has filed consumer complaint seeking directions from District Forum to opponents to pay Rs.40,000/- for deficiency in service, Rs. 50,000/- towards physical and mental agony, Rs.10,000/- for cost of litigation.
3. The opponent No.1 contested the consumer complaint and denied the allegations by submitting the written statement. It is contended that the opponent gave receipt of Rs. 2,650/- /- (Rs. 2500/- for two cylinders Rs.150/-for the regulator). It is also contended that in addition to this amount, the opponent received Rs.100+Rs.35+Rs.843/-towards stamp duty, consumer card and gas in the two cylinders Receipt towards this amount is also given to the complainant. The opponent has also replied to the notice of complainant. Complainant has filed the false complaint to extract money from the opponent.
4. The opponent No.2 gas company filed their written version and denied the allegations in the complaint. It is contended that gas company is not liable for any act of the opponent No. 2 dealer. There is agreement between the dealer and the gas company that the opponent No.1, dealer shall inform their customers accordingly. It is requested to dismiss the complaint against opponent No.2.
5. The District Forum allowed the complaint partly and directed the opponent No.1 to refund the amount of Rs.2,872/- (RS.6,500/- minus (-) Rs.3,628/-) within one month and to pay 6% interest p.a., if order is not complied within 1 month. The District Forum further directed both the opponents to pay Rs.2,000/- towards mental agony. The District Forum also directed to opponent No.1 to pay Rs.2,000/- towards unfair trade practice and Rs.1,000/- towards the cost of litigation.
6. Being aggrieved by the judgement and order of District Forum the Opponent Insurance Company has filed this appeal.
7. Ld. Advocate Smt. Paunikar appeared for the opponent No.1. Ld. advocate Vikrant J. Dudhe appeared for the complainant. Ld. Advocate Shri. Meghe P.D. appeared for the opponent No.2.
8. On the basis of respective submissions of the parties, following points arose for our determination. We have noted them and answered them for the reasons to follow.
Points Answers.
(i) Whether the complainant established deficiency
on the part of opponents? To some extent
(ii) Whether there requires interference in the order of
district forum? Partly
REASONING
As to Points 1, 2
9. Ld Advocate Smt. Sarika Kamble argued for the opponent No. 1 that the impugned order is based on assumptions and presumptions. The opponent could not get the opportunity of filing the affidavit of evidence. The complainant has also not filed his affidavit of evidence to establish his case. He has not filed the affidavits of the persons in whose presence, it is alleged that the amount of Rs.6,500/- is paid to the opponent No.1.He has filed the Complaints before the police, Supply Inspector without any evidence. There is no grievance in the complaint against Opponent number 2, gas company. The District Forum did not appreciate the receipts signed by the complainant. The District Forum did not consider the notice given by the complainant and reply by the opponent No.1. The District Forum has hurriedly passed the order. The judgement and order is against the settled law, procedure, natural justice, equity and good conscience and against material on record and therefore appeal deserves to be allowed.
10. The opponent No.1 remained absent for hearing. However, he has already filed his written notes of arguments. He has contentions in the line of consumer complaint filed that he paid Rs. 6,500/- to opponent No. 1 and opponent No.1 only gave him receipt of Rs.2,650/-. It is also contended that opponent No.1 has not produced the carbon receipts for the amount of receipt of Rs.100, Rs.35 and Rs.843/-, when it is contended by the opponent that receipt of the amounts is given to the complainant. The District Forum has rightly decided the complaint after appreciating the facts on record. There requires no interference in the judgment and order of the district forum.
11. The opponent No. 2 filed their written notes of argument through advocate P.D Meghe, however he remained absent for hearing. In written notes of arguments, it is contended that the opponent No.2 is a gas company and opponent No.1 is the dealer. They work in principal to principal basis and not dealer and agent. The opponent No.2 is not liable for the acts committed by the opponent No.1. There is no relationship of consumer with the opponent No.2. The District Forum has wrongly decided the complaint against opponent No 2.
12 Discussions..
One of the ground of appeal by opponent No.1 is that no evidence is adduced by both the parties and the District Forum decided the complaint. We have gone through the judgement and order of District Forum wherein it appears that one Advocate Shende argued for opponent in the matte. It appears from the judgment that he has not raised any such objection that evidence is not filed by the parties.
Secondly, it is to be considered that the consumer complaints are decided summarily on the basis of facts on record (principle Res Ipsa Loquitor, i e. looking into facts before). It appears that both the parties have produced their documents before the district forum. The opponent adduced the copies of receipt of Rs.2,650/-and Rs.843/-before the district forum. Moreover, though opponent is raising this ground, he has not submitted that any document/s which are left to be brought before the court. In the circumstances, we are of the opinion that, this ground of appeal is of no help to appellant /opponent No.1.
Though, it is alleged by the complainant that he paid Rs.6,500/- to opponent No.1 and opponent gave him receipt of Rs.2,650/- only. 0n the other side the opponent in his WS has contended that receipt of Rs.2,650/-is given for two cylinders and one regulator and also received of Rs. 978/- (as Rs.843/-+ Rs. 100/-+ Rs. 35/-)for three different items (stamp duty, Consumer card, LPG gas in two cylinders) and receipt is given. The District Forum observed that there is receipt for Rs.2,650/-only. The opponent No.1 in W.S. contended that receipt of Rs. 843/- is for two cylinders given to the complainant. We have perused the said receipt which is at page number 36 of the appeal compilation. Prima facie, it appears that the signature on the said receipt and signature on the receipt of Rs. 2,650/- are not of one person. The receipt of Rs. 843/- is appears to be signed by one Mr. Sadafale, who is not the complainant. More over the appellant in the grounds of appeal submitted that they collected the amount of Rs. 978/- from the complainant and the complainant is given the understanding that this amount received for certain items. This itself infers that the opponent no.1 not given the proper receipts to the complainant for the amount of Rs.978/-. Collecting of Rs. 978/- and not giving the receipt towards is definitely the unfair trade practice on the part of opponent No.1. Though it is alleged by the complaint that the receipt of Rs.2,650/-only given and not given the receipt of Rs. 6,500/-in total. This means that the complainant has allegation that he is not given the receipt of Rs.6,500/-minus (-) Rs.2,650/- that is Rs.3850/-. However, as discussed above, it reveals that the complainant could establish that he could not get the receipt of Rs. 978/- only. Therefore there is unfair trade practice established on the part of opponent No.1 only to this extent.
12 The District Forum allowed the complaint partly and directed the opponent No.1 to refund the amount of Rs.2,872/- (RS.6,500 minus (-) Rs.3,628)within one month and to pay 6% interest p.a., if order is not complied within 1 month. The District Forum further directed both the opponents to pay Rs.2,000/- towards mental agony. The District Forum also directed to opponent No.1 to pay Rs.2,000/- towards unfair trade practice and Rs.1,000/- towards the cost of litigation.
However, as discussed earlier, unfair trade practice on the part of opponent No.1 is only established for not giving receipt for Rs. 978/- only. 0Therefore there requires interference in the order of district forum. In our opinion, it will be just and proper to direct opponent No.1 to pay Rs.2,000/-towards unfair trade practice, Rs.2,000/- towards mental and physical agony, and Rs.1000/- towards cost of litigation. In the circumstances, appeal deserves to be partly allowed. Hence, order
order
- Appeal is hereby partly allowed
- Order dated 09/12/2013 is hereby is modified as under;
- Complaint is partly allowed.
- It is hereby declared that O.P.No.1 has indulged in deficiency in service as well as Unfair Trade Practice.
O.P. No.1 is hereby directed to pay Rs.2,000/- to the Complainant towards mental and physical harassment and Rs.1000/- towards cost of litigation.
