BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA
Consumer Complaint No | : | 285 of 2020 |
Date of Institution | : | 21.09.2020 |
Date of Decision | : | 16.08.2024 |
Ranjeet Singh, aged about 64 years, S/o Sh. Sadhu Singh, R/o Village Kona, Tehsil Kalka, District Panchkula.
….Complainant
Versus
1. M/s Ashirwad Gas Agency, Sector-16, Panchkula through its Partner/Proprietor/Authorized Signatory.
2. Bharat Gas Agency, Bharat Bhavan, 5th Floor, 4 & 6, Currimbhoy Road, Ballard Estate, Mumbai-400001, Maharashtra, India.
3. Bharat Petroleum Corporation Ltd., Lalru, Punjab, through its Managing Director. ….Opposite Parties
COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019
Before: Sh.Satpal, President.
Dr.Sushma Garg, Member.
Dr.Suman Sharma, Member
For the Parties: Sh. B.S.Negi, Advocate for the complainant.
Sh. G.S.Rangi, Advocate for OP No.1.
Sh. M.S.Rana, Advocate for OPs No.2 & 3.
ORDER
(Satpal, President)
1. The brief facts, as alleged, in the present complaint, are, that the complainant is availing the services, since 2016, from Opposite party No.1(hereinafter referred to as OP No.1) vide LPG gas connection no. 51239925; that the LPG cylinder of opposite party no.2 (hereinafter referred to as OP No.2) delivered through the OP No.1 to the complainant used to become empty within a short period, which had led the complainant to suspect that the underweight LPG Gas cylinder were being delivered by the OP No.1; on 01.07.2020, the delivery person of OP No.1 was requested to weigh the gas cylinder before the delivery of the same but he expressed his inability and in this regard, he made some lame excuses. It is averred that LPG cylinder as delivered on 01.07.2020 was found short of 3.7kg in weight and on this, the issue was raised with OP No.1 qua the underweight of the LPG Cylinder but the representative of OP No.1 requested the complainant not to pursue the said matter further and lured him to accept two free cylinder in exchange of the said underweight LPG cylinder. It is stated that the complainant refused to accept the offer made by the representative of OP No.1 and moved a complaint to the Food and Supply Department, Kalka and SDO(Civil), Kalka on 02.07.2020. It is averred that the officials of concerned department after carrying out the weighment of the gas cylinder found that the same was short of 3kg 7gm in weight and thereafter, the said LPG Cylinder was taken into possession by them. It is averred that an another complaint was moved by the complainant on 09.07.2020 before Sub Divisional Officer(SDO), Kalka and thereafter, a separate complaint to Deputy Commissioner on 21.07.2020 followed by another complaint to Senior Sale Officer, Ambala on 10.08.2020 was filed and thereafter, a complaint on CM Window on 09.08.2020 and another complaint on 31.08.2020 was lodged with DCP, Panchkula. It is stated that the OPs have indulged into unfair trade practice and rendered deficient services to the complainant by providing the underweight LPG gas cylinder, which was short of 3.7kg in weight. Due to the act and conduct of the Ops, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.
2. Upon notice, the OP No.1 appeared through his counsel and filed written statement, wherein several preliminary objections, disputing the maintainability of the present complaint, have been taken. Vide preliminary objections, it is stated that the complainant has concealed the true and material facts from the Commission; the complainant is in the habits of filing of false complaints against various agencies so as to blackmail them. It is submitted that the alleged incident about the delivery of cylinder on 01.07.2020 to him is part of said blackmailing tactics as adopted by the complainant. It is submitted that the LPG cylinder in question was received by the daughter in law of the complainant finding the same in OK condition. The complainant was not at home at the time of delivery of cylinder by Sh.Rajesh Sharma on 01.07.2020. On 02.07.2020, the complainant had lodged a complaint about the underweight of LPG Cylinder, which was delivered to daughter-in-law on 01.07.2020. It is submitted that the said cylinder was replaced by the delivery man again and in this regard, a receipt was given by the complainant. It is submitted that the complainant had unnecessarily took up the issue with various authorities i.e. Food and Supply Department, Kalka so as to harass the OPs and extract the money from them. It is submitted that the complainant has approached the office of Food and Supply Department, Kalka by producing an underweight cylinder, which was not the same as was delivered on 01.07.2020. It is submitted that the delivery man, namely, Sh. Rajesh Sharma, was challaned by the Food and Supply Department, Kalka but no fine was imposed by the said department. It is submitted that the weight of the empty cylinder was 16kg, which was delivered by Sh. Rajesh Sharma, whereas the cylinder, which was produced by the complainant before the Food and Supply Department was 15.7kg. It is submitted that said Sh. Rajesh Sharma kept his silence as he did not want to offend the consumer/complainant. It is submitted that the complainant had started pressurizing the delivery man, Sh.Rajesh Sharma to get Rs.2,00,000/- from the OPs, otherwise he would report the matter to higher authorities for cancellation of license of OPs. It is submitted that an empty cylinder, having weight of 15.7 kg, was produced by the complainant before the Food and Supply Department. The delivery man had clicked a photo, while handing over the correct weight cylinder to the complainant by his mobile phone and the print of the same was developed later on and in this regard, a receipt was given by Sh.Rajesh Sharma. It is submitted that the OP No.1 has delivered the cylinder to various consumers in the village of the complainant but no such complaint qua delivery of underweight gas cylinder was received from any of the consumer. It is submitted that the other consumers of the village of the complainant has given in writing that they have been receiving correct weight cylinder and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.
On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint of the complainant is liable to be dismissed.
3. Upon notice, the OPs No.2 & 3 appeared through their counsel and filed written statement, wherein several preliminary objections disputing the maintainability of the complaint, have been taken. Vide preliminary objections, it is stated that no cause of action has accrued in favour of the complainant and against the OPs; the present complaint is liable to be dismissed on account of non-joinder and mis-joinder of necessary parties; complicated question of law and facts are involved in the adjudication of the present complaint, wherein elaborate evidence in the shape of examination and cross examination of the witnesses would be required, which is not permissible under the Consumer Protection Act.
On merits, it is submitted that the OP No.2 supply the LPG Cylinders to OP No.1(dealer), who in turn delivered the same to the consumers after their complete satisfaction. It is submitted that prior to the present complaint, no such type of complaint was ever received by the OP No.1 from the complainant regarding the supply of underweight cylinder. It is submitted that no notice, whatsoever, was ever given by the complainant before getting the weighment of the LPG Cylinder in question. Further, the complainant has neither mentioned the cylinder number, nor it is clarified as to whether the seals of the cylinder were intact or not and in the absence of the same, it is difficult to reach at any conclusion qua any short fall in the LPG Cylinder. It is submitted that neither the complainant nor the Food & Supply Department had ever issued any notice prior to the alleged checking of gas cylinder in question qua its weight. Further, the checking report qua the underweight of the gas cylinder was not furnished to OPs no.2 & 3. It is submitted that the relationship of OPs No.2 & OP No.3 on one hand and the dealer i.e. OP No.1 on other hand, are based on principal to principal basis, as per agreement between them and thus, the complaint is liable to be dismissed.
4. To prove the case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-10 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for OP No.1 has tendered affidavit as Annexure R-1/A along with documents as Annexure R-1/1 to R-1/4 and closed the evidence. The learned counsel for the OPs No.2 & 3 has tendered affidavit as Annexure R-2/A along with documents as Annexure R-2/1 & R-1/2 and closed the evidence.
5. We have heard the learned counsels for the complainant and OP No.1 as well as OPs No.2 & 3 and gone through the record available on file, including written arguments filed by the complainant, the OP No.1 as well as OPs No.2 & 3, minutely and carefully.
6. The learned counsel for the complainant, during arguments, reiterated the averments as made in the complaint as also in the affidavit (Annexure C-A) and contended that the OP No.1 through its deliveryman, namely, Sh. Rajesh Sharma, on 01.07.2020, had delivered the LPG cylinder to the complainant’ daughter in law, which was short of 3.7kg in weight. It was argued that several complaints were lodged against the OP No.1 qua the supply of underweight LPG cylinder and in response thereto, the LPG Cylinder in question was weighed by the Inspector of Metrology Department in the presence of said delivery man, Sh. Rajesh Sharma, on 02.07.2020 and on weighment, the LPG cylinder was found under weight by 3kg 700gm. It was argued that the OP No.1 was challaned as per rules mentioned in Legal Metrology Act 2009 and Haryana Legal Metrology(Enforcement) Rules, 2011 and in this regard, the learned counsel has invited our attention towards Annexure C-2 and thus, the learned counsel has prayed for acceptance of the complaint by granting the relief as claimed for in the complaint.
7. On the other hand, the learned counsel on behalf of the OP No.1 refuted the contentions of the complainant and reiterated the averments as made in the written statement as also in the affidavit Annexure R-1/A and contended that there is no truth in the allegations leveled by the complainant qua the delivery of underweight LPG Cylinder on 01.07.2020. The learned counsel has contested the complaint mainly on the following grounds:-
- That no such complaint alleging the delivery of underweight LPG cylinder to the consumers was ever received and in this regard, the learned counsel relied upon Annexure R-4, wherein certain persons, by affixing their signature, has stated that the LPG Cylinder of proper weight had been delivered to them by the delivery person.
- That the LPG cylinder in question was replaced with another cylinder on 03.07.2020 as admitted by the complainant vide Annexure R-1.
- That the of LPG Cylinder, having weight of 15.7 KG, was weighed by the Inspector, Metrology Department instead of 16kg and in this regard, reliance was placed upon Annexure R-1/2 & R-1/2(colly) and Annexure R-1/3.
- That the complainant cannot draw any benefit out of the findings recorded in letter(Annexure C-2), which shows that the LPG Cylinder was found short of 3.7kg Gas, because no penalty was imposed by the concerned authority vide said letter (Annexure C-2).
Concluding the arguments, the learned counsel for OP No.1 has prayed for dismissal of the complaint being frivolous, baseless and meritless.
8. The learned counsel on behalf of the OPs No.2 & 3, during arguments, reiterated the averments as made in the written statement as also made in the affidavit(Annexure R-2/A) and contended that the LPG Cylinders having correct weight and duly certified seal intact, were supplied to OP No.1 and the authorized dealer(OP No.1) had received the same only after its satisfaction qua the weight and certified seal intact etc. and thus, it was argued that no liability qua supply of any underweight cylinder by the OP No.1 to its consumers i.e. complainant can be attributed on the part of Ops No.2 & 3. It was argued that no notice, whatsoever, was given to the Ops No.2 & 3 before weighing the LPG Gas cylinder in question by the Inspector, Metrology Department on 02.07.2020. It was further argued that the weight measurement report as well as the findings recorded by the District Food and Supply Controller, Panchkula, vide his letter dated 06.08.2020 (Annexure C-2) were not furnished to Ops No.2 & 3. It was further argued that the LPG Cylinder in question, which was weighed by the Inspector, Metrology Legal Department, was not having its seal intact and thus, no reliance can be placed on the measurement report of Inspector, Metrology Legal Department qua the Shortage of 3.7kg gas in LPG cylinder.
Concluding the arguments, the learned counsel has placed reliance upon Marketing Discipline Guidelines 2018 for LPG Distributorship(hereinafter referred to as LPG Guidelines 2018), which provides that the dealer is under an obligation to take out only such LPG Cylinder from its godown, which are having correct net weight and thus, no liability in the present matter can be fastened upon the Ops No.2 & 3.
9. After hearing the rival contentions of the learned counsels for the parties, the question that arises for consideration, is whether, the LPG Gas Cylinder in question was short of 3.7kg in its weight.
10. Before going into the merits of the rival contentions as raised on behalf of the OP No.1 as well as OPs No.2 & 3, it is relevant to mention here that the LPG Cylinder are delivered to the consumers throughout the country by the authorized LPG Distributor/dealer, who are appointed or selected by the public sector Oil Marketing Companies (hereinafter referred to as OMCs). Pertinently, every LPG Distributor/ dealer is allocated a particular region/area in a District qua the delivery of the LPG Cylinder to its consumers. It may be emphasized here that the consumers have no choice to choose their LPG Distributor.
11. The relevant portion of the introductory part of the LPG Guidelines 2018, for the sake of clarity and convenience, is reproduced as under:-
“There is a network of over 21,200 LPG Distributors in the country to meet the requirement of LPG consumers. LPG marketing is unique. LPG consumers are tied to LPG distributor with very little freedom to choose their distributors. Such a vast and complex marketing activity requires proper discipline among the LPG distributing from whom the entire LPG customers are serviced”.
12. Further, as per said LPG guidelines 2018, the various clauses of the distributorship agreement spell out the several responsibilities that have to be performed by the distributorships as well as by the OMCs. Besides the responsibilities spelt out in the distributorship agreement, there are operating policies, procedures and practices that are required to be followed by the distributors to serve the LPG consumers. Further there are prohibited activities that have to be avoided by the distributors/dealers.
13. A perusal of aforesaid LPG guidelines 2018 reveals that certain duties have been imposed upon the LPG Distributor/dealer qua the delivery of LPG cylinder to the consumers. The said guidelines vide its provisions contained in 1.4c, d, g, l cast a heavy duty upon the dealer to take certain precautions before the delivering of the LPG Cylinder to its consumers. For the sake of clarity and convenience, the said provisions as contained in said dealer LPG guidelines 2018 are reproduced as under:-
g. Distributor to ensure that in each and every case, the delivery man carries weighing equipments and the cylinder is delivered to the customer after demonstrating weight in his/her presence.
l. Cylinder with any defect should be brought back to the godown. Only sound cylinders should be delivered to the customers.
14. As per directions contained in 1.4 G of the guidelines as reproduced above, it was incumbent upon the OP No.1 to adopt the process of weighment of LPG Cylinder through its deliveryman in the presence of the consumers prior to the delivery of the same. Undisputedly, in the present case, the LPG Cylinder was not weighed prior to its delivery to the daughter in law of the complainant on 01.07.2020. Even, it is not the case of OP no.1 that the delivery man was carrying with him necessary weight equipments i.e. weighing machine/scale etc. with him at the time of delivery of LPG cylinder on 01.07.2020 to the daughter in law of the complainant; thus, the OP No.1 was deficient and lacking in not following the directions as contained in LPG guidelines, 2018.
15. Further, the Inspector, Legal Metrology Department, after the weighment of LPG Cylinder in question on 02.07.2020 in the presence of Sh. Rajesh Sharma, deliveryman of the OP No.1, has found shortage of 3.7kg gas in the same. The District Food and Supply Controller, Panchkula vide his letter no.distributor-2020/5501 dated 06.08.2020 (Annexure C-2) has categorically mentioned that the LPG Cylinder was found short of 3.7kg in its weight and the OP no.1 was challaned by the concerned inspector of Legal Metrology Department, on 02.07.2020 as per provisions contained in Legal Metrology Act 2009 and Haryana Legal Metrology(Enforcement) Rules, 2011. The said findings of Inspector Legal Metrology Department qua shortage of weight in the LPG Cylinder as reflected in the said letter(Annexure C-2) issued by the District Food Supply Controller(DFSC), Panchkula on 06.08.2020 have gone unchallenged and thus, the same have attained finality.
16. As per the said Inspection report as also the letter dated 06.08.2020 (Annexure C-2) issued by DFSC, Panchkula, the OP No.1 was found guilty of delivery of LPG Cylinder, having less weight i.e. 3.7kg; thus, no merit is found in the contentions of the OP No.1 that no complaint from any of his consumers was received qua less weight of LPG Cylinder. Even the Annexure R-4, on which the OP No.1 has placed reliance, does not reveal as to which village, the signatory to Annexure R-4 belongs or when it was signed.
17. The OPs No.2 & 3 has taken the plea in their defence that the LPG Cylinder in question was not having seal on it and that no notice by the complainant or the inspector, Legal Metrology Department was issued to OPs No.2 & 3, prior to the weighment of the same i.e LPG Cylinder in question.
18. The said pleas are rejected because the weighment of the LPG Cylinder was carried out in the presence of Sh. Rajesh Sharma, delivery man of authorized dealer of OP No.1 and no objection was raised by the said delivery man either prior to or during the weighment of the said LPG Cylinder. The LPG guidelines 2018 stipulates that in the eventuality of irregularities, if any, committed by the dealers, during the delivering of the LPG Cylinder to their consumers, the OP No.3 is empowered and authorized to take penal action as per law against the erring dealers but no action, much less any adequate and proper, was taken by the OPs against the OP No.1, who had adopted the practice of delivery of underweight cylinder to its consumers i.e. complainant.
19. Pertinently, as per LPG guidelines 2018, the OP No.3 is duty bound to supervise and oversee the working of their dealers qua delivery of services to their respective consumers. Further, the OP No. 3 is under legal obligation to ensure strict compliance and adherence by the dealers to the provisions as contained in the said LPG guidelines 2018. In our considered opinion, the OP No.3 cannot be permitted to ignore or overlook the irregularities as committed by its dealers. In the present case, no periodical checkup/inspection report, which is to be carried out by the OP No.3 has been placed on record to show that the duty as mandated under law was performed by it.
20. Further, we have no clue as to any quarterly and monthly inspection, if any, carried out by the officers/officials of the OP No.3 so as to check and supervise the working of OP No.1. It seems that quarterly and monthly inspection was never carried out by the concerned officials of OP No.3 to check and over see the working of OP No.1; thus, the OP No.3 had also failed to perform its duties as contemplated vide said LPG guidelines 2018.
21. In the light of the discussion made above, we have reached at the irresistible conclusion that the OP No.1 as well as OP No. 3 had been deficient, while rendering services to the complainant, for which, they are liable to compensate the complainant. The present complaint is dismissed qua OP No.2.
22. In relief, the complainant has claimed a sum of Rs. 3,00,000/- for causing mental agony and harassment. Further, he has also claimed the cost of litigation charges.
23. As a sequel to above discussion, we partly allow the present complaint with the following directions:-
- The OP No.1 & OP No.3 are directed to refrain from adopting any unfair trade practice in future. Further, the OP No.1 is directed to ensure that its delivery man supplies the LPG Cylinder, having the correct/proper weight, after carrying out the process of weighment in the presence of the consumers at his/her door step.
- The OP No.1 & OP No.3 are directed to ensure the strict adherence to the Guidelines as contained in the ‘Marketing Discipline Guidelines 2018’ while making delivery of the LPG Cylinder to the consumers.
- The OP No.1 is directed to pay a compensation of Rs.20,000/- and Rs. 5,500/- to the complainant on account of mental agony and harassment and litigation charges respectively.
- The OP No.1 is further burdened with the punitive damages amounting to Rs.2,00,000/-(Two lakhs only) on account of its indulgence into unfair trade practice, which shall be deposited by it(OP No.1) in the account of the Poor Patient Welfare Fund (PPWF) through the Director, Post Graduate Institute of Medical Education & Research, Chandigarh by way of DD/pay order and accordingly, the OP No.1 is directed to send the DD/Pay order amounting to Rs.2,00,000/-(Two Lakhs only) in favour of the Director, Post Graduate Institute of Medical Education & Research, Chandigarh for deposit of the same in the account of Poor Patient Welfare Fund(PPWF).
- Further, the OP No.3 is directed to send the DD/Pay order amounting to Rs.1,00,000/-(One Lakh only) in favour of the Director, Post Graduate Institute of Medical Education & Research, Chandigarh for depositing the same in the account of Poor Patient Welfare Fund(PPWF).
24. Before parting with this order, we deem it proper to direct the Assistant Registrar of the Commission to send the copy of this order to the following:-
- The Director, Food Civil Supplies and Consumer Affairs Department Haryana, 30 Bays Building, 2nd Floor, Sector 17 Chandigarh and District Food Supplies Controller, Panchkula, bays no. 19-20 top floor, Sector 2, Panchkula, Haryana 134109 with the directions to ask the Inspector Legal Metrology Department to take adequate and necessary steps against the defaulting LPG dealers, who indulge into such unfair trade practice like delivery of underweight LPG cylinder to the consumers, under intimation to the Commission. Further, the Director, Food Civil Supplies and Consumer Affairs Department Haryana is directed to submit the report qua the action taken by the Inspector Metrology against the erring/defaulting LPG Distributors, to the Commission.
- The Deputy Commissioner, Panchkula with the directions to take adequate and necessary steps against the defaulting LPG dealers, who indulge into such unfair trade practice like delivery of underweight LPG cylinder to the consumers.
- The District Public Relation Officer, Panchkula for making wide publicity of the directions contained in this order by getting the same published in several leading newspapers circulating in the locality so as to create awareness among the consumers and to create a sense of deterrence among the LPG dealers.
- Sh. N.C.Rana, Consumers Association, Panchkula, Booth No.68-69, Sector-10, Panchkula for creating awareness among the consumers qua the directions issued in the present order.
- The Assistant Registrar of this Commission is directed to seek the action taken report from all the above qua the compliance of the directions as issued vide present order after a period of three months and place the same before the Commission.
26. The OPs No.1 & 3 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OPs No.1 & 3 failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.
Announced on:16.08.2024
Dr. Suman Singh Dr.Sushma Garg Satpal
Member Member President
Note: Each and every page of this order has been duly signed by me.
Satpal
President
