Order No. 20 Dt. 06.01.2016
This is an application u/s. 12 of C.P. Act filed by petitioner Binoy Prasad C/o. Parameswaer Prasad, Village Buraburitala, Prabal Pally (Kalimandir Lane), P.O. Rathbari, P.S. English Bazar, Malda praying for refund of price of the gas of Rs. 421, mental harassment Rs. 5000/- and cost of Rs. 1000/- .
The case of the petitioner in short is that, the petitioner is a bona fide customer of M/s. Maa Gas Agency who is a sister organization of O.P. No.2. The petitioner has a gas connection and his connection no. is 11129. He booked one cylinder as usual manner and the gas cylinder was delivered by M/s. Maa Gas Agency on 29.09.2014. About two days after when the gas cylinder connected in the woven he found that the gas cylinder is vacant. He came to the distributor’s shop to lodge complaint but the said complaint was not written in the complaint book. He called Indian Oil toll free number several times but there was no response. The O.P. No.1 misbehaved with the petitioner when he visited the shop of O.P. No.1 at Malda. So he filed this case before this Forum claiming the price of the gas cylinder of Rs.421/, mental harassment of Rs.5000/- and the other cost of Rs.10000/-.
The further case of the petitioner is that he is a government employee and the said gas used by the family members who are residing in the house within the jurisdiction of Malda.
O.P. No. 1 appeared and filed W.S. denying all the material allegation contending inter alia that the cylinder was full and properly sealed. The petitioner is not entitled to get any compensation. He falsely filed this case.
Notice was sent by Registered Post to the O.Ps and O.P. No.1 appeared and O.P. No.2 did not appear in this case and the suit is run ex parte against O.P. No. 2.
To prove the case P.W.-1 examined himself who is none but the sister of the petitioner, Binoy Prasad and filed some documents which are marked exhibits as follows:-
- Authorization Letter marked (Ext.-1) , 2) Gas Delivery Book ( Ext.-2),
3) Voucher Slip of Delivery of Distributed Gas Cylinder (Ext.-3) 4) Signature of the complainant along with the complaint (Ext.-4), whereas the O.P. No.1 did not adduce any document but examined himself as O.P.W.-1
On the basis of the same following issues are framed:-
- Whether the case is maintainable?
- Whether there is any cause of action to file this case?
- Whether there has been 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:
Issue Nos. 1,2,3 and 4
All the issues are taken up together, as they are co-related, for the sake of brevity and convenience of discussion.
P.W.-1, is none but the sister of the petitioner. The petitioner is a valid license holder issued for consumption of the gas in the address given in the said gas book and the Indian Oil approved M/s. Indane Maa Gas Agency as a distributor of their gas in the district and it is admitted fact.
This P.W.-1 corroborated the facts in his evidence. He stated that his brother is the bona fide customer of M/s. Maa Gas Agency who is a sister concern of O.P. No.2. The petitioner has a gas connection and his connection no. is 11129. He booked one cylinder and the gas cylinder was delivered by M/s. Maa Gas Agency on 29.09.2014. After two days when the gas cylinder connected in the woven he found that the gas cylinder is vacant. The petitioner came to the distributor’s shop to lodge complaint but the said complaint was not written in
the complaint book. He called Indian Oil toll free number several times but there was no response. The O.P. No.1 misbehaved with the petitioner when he visited the shop of O.P. No.1 at Malda. So he filed this case before this Forum claiming the price of the gas cylinder of Rs.421/, mental harassment of Rs.5000/- and the other cost of Rs.10000/-.
The Ext. -2 speaks and establishes that Binoy Prasad has a gas license issued from M/s. Indane Maa Gas Agency and Ext.-3 is a receipt of the disputed cylinder which was delivered on 29.09.2014. From the Ext.-3 and Ext.-2 it also reveals that the cylinder booked on 29.08.2014 and delivered on 29.09.2014 but it was mentioned in the Ext. – 3 dt. 26.09.2014 (Ext.-2) but the cylinder handed over to the consumer on 29.08.2014. We are also getting from the evidence that intimation was given to the Maa Gas Agency regarding the facts and the O.P. No.1 did not take proper step as per the norms and rules and regulations. The Complaint Book did not file before this Forum by the O.P.. It is true that there is a toll free number of Indian Oil which was mentioned in the written complaint, 18002333555 and this number is acknowledged by the O.P in his cross-examination. He categorically admits that the complaint made in our office complaint book but he did not file the said complaint book to this Forum.
It is our experience and each and every day we are seeing that the gas delivery man did not bring the weight machine with him to show the actual weight to the customer when he deliver the cylinder. It is also true that some rules written in the back side of the Ext.-3.
We are getting from the evidence that the said disputed cylinder delivered to the petitioner on 29.09.2014 and the petitioner tried to link the cylinder with the gas oven on 02.10.2014 and she realized that the gas cylinder is empty. This factual situation compelled him rushed to the Maa Gas Agency but it was closed as the greatest festival Durga Puja ( Ashtami ) going on that date.
The gas may be evaporated for the leackage of the washer. Ext-3, the Cash Memo date prepared by O.P. No.1 on 26.09.2014 as per the booking order dt. 29.08.2014 and it was delivered on 29.09.2014. Obviously, the cylinder was filled up prior to that. As the seal was opened as per the evidence on 02.10.2014. Therefore, as per the rules the consumer rushed and intimate the fact.
There is no reason to disbelieve the fact of this case. It is the duty of the O.P. to check the cylinder and find out the reasons whether there is any leakage in the said cylinder by sending their man as per the rules and system of the agency. But fact remains that none visited the house of the petitioner.
Ld.advocate for the O.P. tried to draw our contention by saying that the
petitioner himself is not examined as a witness in the witness box. The presumption would be that he did not file a correct case. In this regard he cited one ruling of Supreme Court of India Janaki Vashdeo Bhojwanit & Anr. V. Indusind Bank Ltd. & Ors. (2004) INSC 739 ( 6th December, 2004).
We have gone through the ruling and it is a settled law that plaintiff must prove his case of his own strength not in the weakness of the defense.
This Forum is Consumer Forum and the Sec. 3 of this Act specifically states, “The Provisions of this Act shall ………………………………………in force.
This is a summary trial and this P.W-1 stated the facts of this case and all the questions put to this witness, P.W.-1 by the O.P. categorically answered these questions. None of the questions of the P.W.s thrown out by saying, “I don’t know or My Brother can say who filed this case.”
It is the settled position of Law that he who knows the fact of the case and stated all the questions of the other side, the person can be examined as a witness.
In a Civil Suit the title cannot be vested to other person who is not the owner. As per the law title can be given by a registered instrument or by the order of the Court. There is no necessity for registration when the value of the property is less than Rs.100/-(Land) as per the transfer of property act or as per the Registration Act.
This above ruling cited by the O.P. ruling has no manner of application in this case.
The O.P.1 did not send any person for enquiry and he himself did not visit the house. The petitioner is a ‘Consumer’ and the gas cylinder which was supplied to the petitioner is not filled in properly and the evidence of the P.W.-1 cannot be disbelieved in this case.
So the case is established and the petitioner is entitled to get relief.
In the result, the case succeeds
Proper fee paid.
Hence, ordered
that Malda D.F.C Case No. 70/2014 is hereby allowed on contest against the O.P. No.1 and ex parte against the O.P. No.2 with cost. The O.P. Nos.1 and 2 are jointly and severally liable to pay Rs. 421/- as the cost of the gas as paid by the petitioner, mental harassment of Rs. 5000/- and cost of litigation Rs. 500/- totaling Rs. 5921/- (Rupees Five Thousand Nine Hundred Twenty One Only). The said amount of Rs. 5921/- will be paid within 45 days from the date of this order failing which the amount will carry interest @7% p.a. till its realization and the petitioner has liberty to put the decree in execution.
A copy of this order be supplied to the petitioner and O.P. No.1 respectively free of cost and by registered post to O.P. No. 2.
