DATE OF FILING : 09.04.2015.
DATE OF S/R : 25.05.2015.
DATE OF FINAL ORDER : 03.06.2016.
Sri Pradip Hait,
son of late Ram Chandra Hait,
residing at village Mahakalhati,
P.O. Islampur, P.S. J.B. Pur,
District Howrah. ……………………………………………………… COMPLAINANT.
1. Monami Indane Distributor,
Shankar Hati, P.O. Munshirhat, P.S. J.B. Pur,
District Howrah,
PIN 711401.
2. Deputy General Manager LPG,
West Bengal State Office,
Indian Oil Corporation Ltd.,
Marketing Division 2, Gariahat Road ( South ),
Dhakuria, Central Wing,
Kolkata 700068. …………………………………………OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Pradip Hait, against the o.p. Monami Indane Distributor and Deputy General Manager, LPG, West Bengal, State Office IOC Marketing Division, 2, Gariahat Road, Dhakurai, praying for direction on the o.p. no. 1 dealer for replacement of the defective cylinder with a new one free of costs and to direct the o.p. no. 2 to receive the defective cylinder and give a new one in its place and direct both the o.ps. to restore uninterrupted supply of LPG to the petitioner and direct o.p. no. 2 to secure gas supply to the consumer and take steps to prevent mala fide activities of o.p. no. 1, dealer, and direct both the o.ps. to pay compensation of Rs. 50,000/- for the damage and harassment of the petitioner and Rs. 10,000/- as litigation costs.
- The case of the petitioner is that he is a consumer under the o.ps. and on 18.12.2014 he booked one gas cylinder and the o.p. no. 1, dealer / distributor, supplied him the cylinder on 11.01.2015. The petitioner used the cylinder for about one hour in his residence for cooking purpose but he was surprised to see that the cylinder got completely exhausted and he then shacked the cylinder which sounded like a pitcher full of water and there was no gas. In the money receipt the o.p. no. 1, dealer, mentioned that the gas cylinder contents 14.20 kg. gas and thus the same cannot be exhausted within one hour of cooking for three person. On 12.1.2015 the petitioner intimated the incident to the o.p. no. 1, dealer, and sought for his co-operation and asked him to give supply of another cylinder otherwise he would suffer immensely but the o.p. no. 1 told him that the cylinder is supplied by Haldia Unit of IOCL and advised him to wait for seven days and during the period of such 7 days one authorized person of o.p. no. 1 would inspect the cylinder in his residence. Within seven days none came to the house of the petitioner and then he went to the office of the o.p. no. 1 at Munshirhat but the o.p. no. 1 rejected his prayer and told him to take steps and he would not do any thing. On 15.2.2015 the petitioner met the o.p. no. 1 to know about the progress of his complaint but the o.p. no. 1 abused him in filthy language and told him to bring the cylinder to the distribution center and asked him to make a fresh booking for which he has to pay. The petitioner wanted to know about his fault but no reply received either from o.p. no. 1 and o.p. no. 2. On 20.02.2015 the petitioner informed the entire incident by a registered letter to the D.G.M., LPG, West Bengal State Office, IOCL Marketing Division, 2, Gariahat Road, Dhakuraia, Kolkata 7000 68, and Tapan Kr. Bhattacharyya, Dy. Manager, ( Fleet Marketing ), Kolkata Divisional Office, 5th floor, 34A, Nirmal Chandar Street, and to the Customer Service Cell, IOCL, 34A, NirmaL Chandra Street, along with his domestic gas book, delivery note of the gas cylinder, cash memo showing purchase of gas from dealer but till filing of this case i.e. till 09.4.2015 not response from any corner and the gas cylinder still lies with the petitioner who would produce the same at the time of trial.
- The o.p. no. 1 contested the case by filing a written version denying the allegations made against him and submitted that the case is neither maintainable in law nor in facts and also it is baseless, harassing and speculative one. The o.p. no. 1 submitted further that on 11.01.2015 the petitioner took delivery of one cylinder after being satisfied with the quantity of the cylinder and after using the cylinder for more than 40 days in order to have some wrongful gain the petitioner filed this case to lower down the prestige of o.p. no. 1 in the society. The o.p. no. 1 runs his business since 2001 and such a complaint was lodged for the first time before the o.p. no. 1 and he simply distribute the cylinders which was sent to him by IOC and so the petitioner is not entitled to any relief against him.
- The o.p. 2, Indian Oil Corporation, contested the case by filing a separate written version denying the allegations made against them and submitted that the case is not maintainable and there was no deficiency in service on the part of o.p. no. 2. It is further submitted that before delivery of cylinder to distributors the cylinders are thoroughly checked and submitted at various stages and the distributor after receiving the same cylinders stores the same at their godown. The supply of cylinders are done by o.p. no. 1 since they purchase the cylinder from the bottling plant of the IOL and thereafter keeps them at their own godown at their own risk and responsibility. In the present case if the ld. Forum finds any negligence on the part of the o.p. no. 1 then the ld. Forum cannot pass any order against the o.p. no. 2 since the distributorship agreement entered into by and between the o.p. nos. 1 & 2 provides that the agreement is only on principal to principal basis which is established by the judgment of Hon’ble Supreme Court of India reported in 1994 ( I ) Supreme Court Cases page 397 ( Indian Oil Corporation vs. Consumer Protection Council Kerala and Another ). As per Clause 17 of the Distributorship Agreement, in all contracts and engagements entered into by the distributorship agreement in all contracts and engagements entered into by the distributor with the customers for sale of LPG or repairing appliances etc. the distributor shall always be deemed to have acted as principal and not as an agent of the Indian Oil Corporation Ltd. The distributor shall be bound to inform the customers in writing in respect of any complaint. Thus the o.p. no. 2 not being connected in any way the case against the o.p. no. 2 be dismissed with costs.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.Ps. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip off reiteration. In support of his case the petitioner filed affidavit as well as documents for his domestic gas like ‘consumer card’, the delivery note of the gas cylinder, cash memo showing purchase of gas from the dealer and copy of his letter dated 20.022.2015 addressed to the D.G.M., Deputy Manager and Customer Service Cell of the IOCL in different address. The petitioner also produced the gas cylinder before this forum and one weighting machine was procured and produced before the Forum and it is noticed after measurement that the total weight of the cylinder was 28.5 kg. when the weight of one cylinder with 14.2 kg. gas comes to 29.9 kg. and the same is made that Exhibit 1 and at present kept in custody of Bench Clear of Forum. Thus in the instant cylinder there was 1.4 kg. less weight than the net weight of a cylinder with full gas which otherwise shows that even if in the cylinder there is gas deposit of about 13 kg. on the basis of the weight available but the cylinder cannot be used for cooking as no gas inside and some thing else in place of gas and the Forum took judicial notice of the same. Neither the o.p. no. 1 inspected as promised within 7 days nor the o.p. no. 2 manufacturer sent any expert to prove the fact that in the alleged cylinder there was only gas and nothing else as net weight was even 28.5 kg. On physical verification this Forum finds that there is some liquid substance as sounded on shaking and the weight of which be about 12.8 kg. which is not gas as no such symptoms found. The acts of the o.ps. are examples of their sheer negligence while dealing in such important substance like the cooking gas.
- Defect in any goods can be dangerous specially in the case of cylinder containing gas with alleged defect, when safety being the basiccriteria for such gas cylinder. If any defect is found which simply means that there is no gas and in absence of any gas there is some thing else then the same is not only danger to the petitioner but to the people at large. In the instant case there was supply of goods in the form of gas cylinder but there was no gas even if full price is taken by providing such a defective cylinder and such act on the part of o.p. no. 1 amounted to deficiency in service on the part of o.p. no. 1 who is not an agent of I.O.C.L. but as principal he supplied gas to the petitioner.
- In the instant case there is allegation that in the instant gas cylinder even though it was expected that there would be 14.2 kg. gas when the total weight of the cylinder would be 29.9 kg. but after use ofone day when the net weight came down to 28.5 kg. i.e., 1.4 kg. gas was used by the petitioner and the gas was completely exhausted even though the net weight of the cylinder found to be 28.5 kg.
- This Forum heard the ld. counsel for the petitioner as well as the counsel for the dealer / o.p. no. 1 and also the counsel for the manufacturer i.e., Indian Oil Corporation, o.p. no. 2, and considered the contents of the main petition as well as the written version and the documents filed therein. On scrutiny, it is noticed that there was apparently some gross defect in the cylinder. While the counsel for thedealer submitted that he got the cylinder from the IOCL and the distributed the same to the consumers then the counsel for the I.O.C. submitted that the agreement between I.O.C. and the distributor is only one of principal to principal basis agreement which is established by the Judgment of Hon’ble Supreme Court of India in 1994 ( I ) Supreme Court Cases page 397 and thus the distributor here acts not as an agent but as a principal and so the Indian Oil Corporation cannot be made liable for any act as per contract between the distributor and the consumers.
- Be that as it may in the instant case the petitioner suffered both financially as well as mentally and physically as in the cylinder though there was net weight of 28.5. kg. yet there was no gas which could be used for cooking. Ld. counsel for o.p. no. 1 submitted that as dealer of a manufacturer company he cannot be held liable for deficiency in service in the case of a manufacturing defect because the gas cylinder was duly filled up in the factory of the Indian Oil Corporation and then supplied to the dealer / o.p. no. 1 who simply supplied the same to the customers. It is not the case of the petitioner that the cylinder was not duly sealed and rather after opening the seal he used the gas for over 1 kg. weight and so if there is any defect in the cylinder then it was a manufacturing defect and the dealer cannot be held responsible for the same.It is true that the agreement between dealer and manufacturer is an agreement on principal to principal basis wherein the I.O.C. has no liability to compensate the loss as our Supreme Court opined in the case of Indian Oil Corporation Ltd. vs. Consumer ProtectionCouncil Kerala and another. It is also true that there is no privity of contract between the Indian Oil Corporation and the consumer. But the facts of the case clearly shows that the cylinder was duly filled in the filling station of Indian Oil Corporation and after filling the same, the I.O.C. duly sealed the cylinder and the said cylinder was delivered to the customer by the distributor who has the principal to principal basis agreement with the I.O.C. No inspection report has been produced from any corner either from the o.p. no. 1 dealer or o.p. no. 2 I.O.C.L. as to the present status of the cylinder but the same when produced before this Forum clearly showing a weight of the same being 28.5 kg. which is less 1.4 kg. from the net weight of a cylinder when filled with gas. Thus, under the above facts where the Indian Oil Corporation which is the manufacture of the gas cylinder cannot be made responsible then the dealer which distributed the cylinders has to prove that the cylinder during his custody was not polluted or misused by him or his men who handled the same and the o.p. no. 1 here has not discharged the onus which was on his shoulder simply saying that I.O.C. manufactured the same and as distributor he has no liability. Since 12.01.2015 when the matter was intimated to him till this day he took no steps as to the status contents of the same cylinder weighing about 28.5 kg. and thus he is liable for supply or defective cylinder and causing harassment to the consumer. Nothing coming before the Forum that the dealer has not committed mal practice in his godown and also no information that there is no antecedentof the o.p. no. 1. The simple case of petitioner that when he used the gas for over an hour then the cylinder got exhausted and it is not his case that the cylinder was not duly capped or duly sealed. The above facts goes to show that the petitioner discharged his duty to prove the fact the cylinder in custody of the o.p. no. 1, Indian Oil Corporationduly filled up and supplied through the dealer / o.p. no. 1 and the agreement between I.O.C. and dealer being principal to principal basis the o.p. no. 1 cannot shirk the liability in the instant case and the above facts constituted an act of negligence on the part of the o.p. no. 1 itself and neither of the I.O.C. nor of the petitioner.
In view of above discussion and findings thisForum comes to the conclusion that keeping in mind the facts of the case and principles as laid down in the case of I.O.C. Vs. Consumer Protection Council Kerala and another this Forum finds negligence on the part of the o.p. no. 1 who took no responsibility after intimation of defect of cylinder by the petitioner and the onus shifted on him to prove that there was no negligence on his part as to such defect and he made no inspection of the alleged cylinder by an expert of the oil gas industry to discharge his liability or from any other expert of any other oil industry to discharge his onus and the o.p. no. 1 not doing so is found responsible for such negligent act.
Thus apparent being the real state of thing, thisForum is of opinion that in the instant case there was defect in the cylinder for which the o.p. no. 1 is made responsible and failing to discharge his liability, the charge or allegation is proved against him.
In the result,the case succeeds.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 142 of 2015 ( HDF 142 of 2015 ) be and the same is allowed on contest against the o.p. no. 1 with costs and dismissed on contest against the o.p. no. 2 without costs.
The petitioner is entitled to the relief as prayed for and the o.p. no. 1 is directed to replace one fresh cylinder filled with gas to the petitioner free of costs and also the o.p. no. 1 is to pay compensation of Rs. 10,000/- to the petitioner for the mental agony and harassment and o.p. no. 1 is to pay costs of Rs. l0,000/- out of which the petitioner would get Rs. 2,000/- as litigation costs and rest Rs. 8,000/- would be deposited in the Consumer Welfare Fund within 30 days from the date of this order failing the entire amount would carry interest @ 9% per annum and the petitioner would be at liberty to put the order in execution after expiry of the stipulated period.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
