Consumer Complaint No.211 of 2015
Date of filing: 06.10.2015 Date of disposal: 23.12.2016
Complainant: Sk. Foriduddin, S/o. Hazi Asraf Ali, resident of Naksha, Mogra, PS: Mogra, PO: Talandu, District: Hooghly, PIN – 712 148.
-V E R S U S-
Opposite Party: 1. M/s. Hazra Fuels, represented through its Proprietor, having its office at Bamunpara More, PO. & PS: Memari, District: Burdwan, PIN – 713 146.
Proforma Opposite Party: 2. Indian Oil Corporation Ltd., represented through its Area Manager, having its office at City Centre, Durgapur, District: Burdwan, PIN – 713 216.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty & Somnath Banerjee.
Appeared for the Opposite Party: Ld. Advocate, Sumit Roy & Nirmalya Chowdhury.
Appeared for the Proforma Opposite Party: Ld. Advocate, Tanmoy Hazra.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986, alleging deficiency in service, as well as, unfair trade practice against the OP-1 as the OP-1 did not pay the repairing cost of the damaged vehicle, caused due to negligence of the OP-1.
The brief fact of the case of the Complainant is that being the owner of the vehicle applied before the Registering Authority for using the same as a goods vehicle in hire and reward before several transporters and it was the only source of his livelihood by means of self employment. The OP-1 is the dealer of Proforma OP-2 and The OP-1 is running petrol and diesel from their outlet so authorized by the OP-2. On 29.07.2015 the Complainant send his vehicle to Trivandrum at Kerala for transporting dhalai-rod (TMT Bar). Before starting of the journey the Complainant purchased 226.543 liters of HSD (High Speed Diesel) @ Rs.52.97=00 and paid Rs.12, 000=00 in total. After filling the same the Complainant send his vehicle at Trivandrum. In this complaint the Complainant has annexed several documents i.e. photocopy of the Registration Certificate of the vehicle, Insurance Policy, Route Permit, Cash Memo issued by the OP-1 and six receipts of Toll Plaza in the way from Memari, West Bengal to Cuttack, Orissa. During the said journey the said vehicle was not given proper service. After reaching near Cuttack, Orissa the vehicle became stop and idle. The Complainant was informed by the driver of the vehicle about the condition of the vehicle along with sought for financial assistance and the Complainant accordingly had complied with the request of the driver arranging a sum of Rs.2, 500=00 and the driver put the vehicle at Bosch Authorized Workshop, namely, M/s new Ranihat Diesel Service, however the defect could not be totally removed. Again the vehicle was placed at Grace Automobile private Limited, authorized service station of Tata Motors and further the vehicle was repaired at the garage at Memari, Burdwan for which the Complainant had to bear expenses to the tune of Rs.3, 640=00. Apart from that the Complainant on 31.07.2015 had to incur expenses for Rs.40, 050=00 towards the cost of the parts and remuneration of the Mechanic. But inspite of such expenses the vehicle is still not properly working and a further sum of Rs.30, 000=00 to Rs.40, 000=00 is required for mechanical work and then only the vehicle may run properly and smoothly. On enquiry from the mechanic the Complainant came to learn that due to water in diesel tank the incident took place. The Complainant informed the matter to the OP-1 orally and it had admitted that due to heavy rain on or before 29.07.2015 due to its inadvertence water was mixed with High Speed Diesel at its underground store. Thereafter the Complainant asked for proper relief. But the OP-1 flatly denied to the same. Having no other alternative and with a view to draw the attention of the Proforma OP-2 lodged a complaint in the website. Subsequently the Complainant came to learn that an inspection work has been done in the filling station of the OP-1, but the grievance of the Complainant had not been redressed till date. The Complainant on good faith purchased High Speed Diesel from the OP-1, but due to negligent act of the OP-1 the Complainant had to face pecuniary loss along with the vehicle got damage. As his grievance could not be redressed by the OP-1 before approaching this Ld. Forum, the Complainant by filing of this complaint has prayed for direction upon the OP-1 to pay a sum of Rs.80, 000=00 to him due to its deficiency in service and negligent act, to pay Rs.50, 000=00 for detention of the vehicle, Rs.75,000=00 as compensation due to harassment, mental pain and agony and Rs.25,000=00 towards litigation cost to him.
The petition of complaint has been contested by the OP-1 by filing written version contending that this OP being a reputed authorized fuel dealer of the Proforma OP-2 and is running its business at Memari with good reputation since its establishment without any such type of allegation. This OP is always used to maintain all the formalities, terms and conditions of the OP-2 and all parameters sent by the Ministry of Petroleum and Natural Gas, Government of India. It has a very good infrastructure, so question cannot arise of mixing of water with diesel, so the allegation of the Complainant is false, concocted. It is stated by the OP-1 that as per the complaint the Complainant purchased 226.543 liters of HSD from the OP-1 and ran the vehicle for a long time and the said truck was run from Memari to Cuttack with fully loaded TMT Bars, which is clearly evident from the documents submitted by the Complainant without any trouble. During the journey the Complainant paid several toll taxes to the different toll plazas and during journey the truck must consume diesel from 226.543 liters of HSD, purchased from the OP-1. But the documents submitted by the Complainant reveal that on 31.07.2015 250 liters HSD was drained at Cuttack, how this is possible; no fruitful reply is given by the Complainant. It is not mentioned in the complaint that prior to purchase of HSD from the OP-1 whether the tank was empty or carried how much liter of diesel and also whether the diesel was also HSD diesel or not. It can be presumed that during journey the Complainant purchased fuel further. Therefore as the picture is not at all clear, hence this complaint is filed by the Complainant with a view to grab some money from this OP through an illegal manner. According to the OP-1 accident took place due to over loading in the truck, which is apparent from the documents. Though it is alleged that accident occurred due to purchase of water mixed diesel, but the documents filed by the Complainant regarding repairing works show different things and self-contradictory in nature. The OP-1 never sold such type of HSD diesel as alleged by the Complainant and if there is any water in the tank as alleged it may be mixed afterwards due to negligence on the part of the Complainant. Though the Complainant has alleged the mixture of HSD diesel with water but the repairing work reveals that mechanical works was done for its necessary repairing and the parts which the Complainant had to purchase, same is not at all related with such problem as alleged by the Complainant. The Complainant claimed that on 31.07.2015 he had to purchase spare parts for Rs.40, 050=00, but no such document about the details of the parts has come before this Ld. Forum. After the alleged incident the truck delivered the said goods at Trivandrum and returned therefrom at Memari without facing any problem. So the allegation of supply of defective HSD diesel does not stand. It is stated by the OP-1 if there was water mixed diesel, then it was not possible to run the vehicle from Memari to Cuttack. As there is no deficiency in service as well as unfair trade practice on behalf of this OP-1, the Complainant is not entitled to get any relief as sought for in the petition of complaint, hence prayer is made by the OP-1 for dismissal of the complaint with exemplary cost.
The petition of complaint has been contested by the Proforma OP-2 by filing written version contending that within the four corners of the complaint no allegation has been made by the Complainant and on the whole no relief sought for from this OP-2, hence prayer is made by the OP-2 for dismissal of the complaint with cost as this OP has been made a party in this complaint unnecessarily.
The Complainant, the OP-1 and the Proforma OP-2 have adduced their respective evidence on affidavit along with several documents in support of their contentions.
We have carefully perused the record; documents filed by the contesting parties and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that it is case of the Complainant that with a view to earn his livelihood by means of self employment the Complainant purchased a car, which is used for transportation of goods from one place to another on hire and reward basis . On 29.07.2015 for sending the vehicle to Trivandrum from Memari for transporting of TMT Bars the said vehicle started its journey and for this purpose the Complainant purchased 226.543 liters of High Speed Diesel from the OP-1, being the authorized dealer of the Proforma OP-2 by making payment of Rs.12,000=00 @52.97/- per liter. After reaching at Cuttack, Orissa the truck became idle and got damage. After taking financial assistance the damaged truck was put at Bosch Authorized Workshop, namely, M/s. Ranihat Diesel Service, but according to the Complainant damage could not be totally cured or removed. Thereafter the truck was placed at Grace Automobile Private Limited, authorized service station of Tata Motors and in the garage at Memari for its necessary repairing and in this way the Complainant had to incur huge amount towards purchasing of spare parts and remuneration of the Mechanic, but till today the vehicle is not working properly and for total removal of the defects further Rs.30,000=00 to Rs.40,000=00 is required. It is also the case of the Complainant that in connection of his complaint before the Proforma OP-2 an enquiry was made the it was admitted by the OP-1 orally that water was mixed with the said HSD at its underground store due to its inadvertence as there was raining on or before 29.07.2015. After hearing the Complainant sought for relief, as the relief has not been granted by the OP-1, hence this complaint. The allegation of the Complainant is that due to mixture of water with HSD the vehicle of the Complainant got damage and had to face huge pecuniary loss towards repairing charges of the damaged vehicle and the journey for which HSD was purchased had been vitiated, hence for such adulterated product the OP-1 is liable to pay adequate amount towards compensation, detention of vehicle, value of the spare parts so purchased and remuneration of the Mechanic.
During argument the Complainant has advanced his case. The contention of the OP-1 is that in case of allegation of mixed water HSD, it was the duty of the Complainant to send the sample to an Appropriate Laboratory for testing as to whether the said HSD was mixed with water or not due to inadvertence of the OP-1. According to the OP-1 until and unless the report from the Laboratory is forthcoming, this complaint cannot be adjudicated against this OP. The Ld. Counsel for the OP-1 has attracted our notice to the several documents filed by the Complainant from where statement is made by the OP-1 that the documents do not tally with the averment and allegation of the Complainant. It is submitted by the Ld. Counsel for the OP-1 that as the Complainant has failed to prove his case by adducing cogent document, the complaint is liable to be dismissed with cost. The Ld. Counsel for the Proforma OP-2 has argued during hearing that as no allegation has been made out by the Complainant and no relief sought for, hence the complaint is liable to be dismissed with cost because it has been made party in this proceeding unnecessary.
We have noticed that the disputed revolves within a very short compass i.e. whether the questioned truck got damage due to water mixed HSD or not as alleged by the complainant. From the documents submitted by the complainant it is evident that on 29.7.2015 before starting journey from Memari to Trivandrum the complainant purchased 226.543 liter of HSD @Rs. 52.97 and paid a sum of Rs. 12000 to the op-1 in total. But the document reveals that on 31.7.2015 approximately 250 liters fuel was drainaged from the questioned truck amounting to Rs. 13000 after reaching at Cuttack Orissa. In this respect we are to say if the complainant purchased 226.543 liter of HSD from the OP-1 on 29.7.2015 in what manner on 31.7.2015 drainage of fuel was of approximately 250 liters? Not only that the vehicle started from Memari and the destination at Trivandrum. On the way at Cuttack the vehicle became damaged. So after filling the tank of the truck on 29.7.2015 with 226.543 liter of HSD the vehicle crossed the way from Memari to Cuttack and in this journey positively HSD was used as without HSD vehicle cannot run. Then one important question cropped up in our mind after crossing the way from Memari to Cuttack how drainage was made approximately 250 liters where purchased was made by the complainant 226.543 liters of HSD. We find much discrepancy by and between the document and the averment in the complaint made by the complainant. If that be so then it can be said that in the tank either prior filling was made or during journey post filling was there. Otherwise calculation cannot reach at a suitable point. Moreover, the complainant has alleged water mixed HSD i.e. adulterated HSD was supplied by the OP-1 in the tank of the questioned vehicle. But after filing of this complaint no step has been taken by the complainant under Section 13 (1) (c) of the C.P. Act, 1986 wherein it is enumerated that ‘where the complainant alleges a defect in the goods which cannot be determined without proper analysis of test or the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum’.
But the complainant has miserably failed to comply with the above-mentioned Section of the C. P. Act 1986. Therefore, at this juncture it is very difficult to ascertain as to whether in the HSD there was mixture water or not. Moreover, he document no. 7 as submitted by the complainant reveals the procedure of repairing of the damaged vehicle and the description of goods which the complainant had to purchase for its necessary repairing from the said document it is evident that the complainant purchased hydraulic head (disposal) amounting to Rs. 4,000=00. In this respect argument has advanced by the Ops that there is no connection by and between the oil tanker and the hydraulic head. It is submitted by the Ops that damaged vehicle was repaired in another mode apart from the allegation of mixture of water with HSD. In the petition of complaint the complainant has stated that he was told by the OP-1 that there was mixture of water with HSD in its underground reservoir due to heavy rain during the period 29.7.2015 and in this manner the OP-1 has admitted its fault and for this reason it is under obligation to pay the relief as sought for. But in this connection the complainant has failed to adduce any corroborative cogent evidence in support of his contention. Therefore, the complainant has failed to prove his case against the Ops that the service of the Ops is suffering from any deficiency in service or negligent in any manner and the HSD purchased by him is an adulterated product. So the complainant is not entitled to get any amount as prayed for in the petition of complaint.
Going by the foregoing discussion hence, it is
O r d e r e d
that the Consumer Complaint being No. 211 of 2015 is dismissed on contest against the Ops without any cost.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
