Date of Filling : 12.07.2013
Date of Disposal : 05.01.2016
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR
PRESENT: THIRU. S.PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S.SUJATHA,B.Sc., … MEMBER-I
CC.32/2013
Tuesday, the 5th day of January 2016
M/s. K.V.Enterprises,
Rep. by its partner,Mr.S.V.Swaminathan,
D.No.3,4th Floor, B Block,
Muktha Nirman Apartments,
76/81 Mt.Poonamallee Road,
Porur, Chennai -600 116. …Complainant
/Vs/
M/S.Bhuruka Gases Limited,
Rep. by its Managing Director,
Villivayal Savadi, Ponneri Taluk,
Chennai - 600 120. …Opposite Party
….
This Complaint is coming upon before us finally on 29.12.2015 in the
Presence of Thiru.D.Jawahar Advocate on the side of the complainant and Thiru.S.T.Ravi, Advocate for the opposite party and upon hearing arguments on the side of the complainant and perused the documents and evidence, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This Complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party seeking direction that the opposite party has to refund the excess amount of Rs.3,59,643/- along with interest at 18% p.a. towards excess payment paid by the complainant to the opposite party, follow the correct conversion rate for the conversion of liquid oxygen into gaseous form in cubic meter, as one kilo gram is equivalent to 0.6998 cubic meters, to pay a sum of Rs.50,000/- towards compensation for the deficiency in service committed by the opposite party and to pay a sum of Rs.50,000/- towards compensation for the mental agony due to the deficiency in service by the opposite party with cost.
The Brief averments of the complaint as follows
1. The complainant is a registered partnership firm; the partners had been running a factory at Puzhal and were earning their livelihood through this firm only. The complainant is a refilled of industrial oxygen gases and the opposite party is the suppliers of liquid oxygen from industrial gases to the complainant, who had been purchasing industrial liquid oxygen from the opposite party from 02.05.2006 till 02.07.2011.
2. The purchase price of liquid oxygen was Rs.12.43/- per cubic meter (inclusive of all taxes and transport as per latest bill) and as per the calculation of the opposite party, one kilo gram of liquid oxygen is equivalent to 0.77 cubic meter of gas. They had been charging the complainant at this conversion rate only. However the industry standard for the conversion of liquid oxygen into gaseous form in cubic meter is one kilo gram is equivalent to 0.6998 cubic meters. It is pertinent to note that the opposite party is a member of All India Industrial Gases Manufacturers Association, whose standard is also the latter one not the one followed by the opposite party.
3. Total purchases made by the complainant from June 5, 2010 to July 02, 2011 was Rs.39,45,696 and the excess amount received by the opposite party was Rs.3,59,643/- i.e. 9.11482percent of every bills. The complainant had disputed the total outstanding payable to the opposite party due to this difference in conversion of liquid oxygen from liquid to gaseous state. However the opposite party was insisting in calculating as per their method only thus resulting in unjust loss of money to the complainant and the statement of accounts could not be finalized because of this discrepancy. This being the case, the opposite party had deposited the cheques of the complainant and sent a legal notice dated 07.12.2011 to the complainant and the same had been replied through his counsel in reply notice dated 17.12.2011. Subsequently a false case was registered under section 138 of the Negotiable Instruments Act, 1881 against the complainant and its partners at Bangalore.
4.The purchase price may change due to increase in the fuel cost but calculation of conversion on table is a constant one. The wrong method of conversion adopted by the opposite party is a definite deficiency in service and also an unfair trade practice indulged by them and as such they are liable to compensate the complainant for the same. The complainant sent a legal notice dated 28.04.2012 to the opposite party with a copy marked to the Head Office at Bangalore. A reminder notice dated 02.05.2013 was sent to both of them but they neither replied nor complied with the demands of the complainant. Hence this complaint.
The contention of the written version of the opposite party as brief as follows:
5. The opposite party agreed that the complainant is registered company and it is under the partnership firm and agreed to supply liquid oxygen to the complainant as per the agreement entered between the complainant and the opposite party on 23.02.2009. The opposite party denies the allegation, that the complainant has entered into agreement with the opposite party on 23.02.2009 and also agree price of the liquid gas as prescribed in the agreement and also there is certain terms and condition abide by the complainant as per the variation if any incur by way of hiking of rate and taxes or levies by the State or Central Government as per the clause of agreement 9 and 10 and the same had been agreed by the complainant. But on the other hand now the complainant made a complaint that the opposite party collecting exceed price as per the member of all India Industrial Gases Manufacturers Association standard price.
6. The opposite party not collecting any exceeding price as per the agreement made between the complainant and the opposite party. It is true that the complainant has outstanding amount liable in its account and hence the complainant has issued three cheques in favour of opposite party on 20.11.2011 for the tune of Rs.1,50,000/- and each of the cheque contain Rs.50,000/- and the same was presented before the opposite party banker on the day stipulated in the cheques. It is great shock and surprise to the opposite party that three cheques were dishonor on 24.11.2011 with an endorsement payment stopped by the Drawer. On the basis of dishonor of the cheques, the opposite party has caused legal notice to the complainant on 07.12.2011 for the payment under section 138 of the Negotiable Instrument Act 1881. On the receipt of the opposite party legal notice, the complainant has reply notice on 17.12.2011 without any proper reasons not stated in the reply notice.
7. The opposite party denies that the complainant has purchased the liquid oxygen from the opposite party since from 5th June 2010 to 2nd June of 2011 for the tune of Rs.39,45,096/- and the opposite party received a sum of Rs.3,59,643/-. The opposite party further denies that no excess of amount received by the opposite party from the complainant. All the invoices made against the order placement of the complainant, the invoices is clearly shows that actual price rate on the day supplied by the opposite party and also collecting the taxes as per prescribed in the agreement dated 23.02.2009. It is pertinent to submit that no wrong method of calculation made by the opposite party since from the October 2011 and it is imaginary thought of the complainant.
8. The opposite party collecting the price according to fixation of price and no excess of amount collected by the opposite party and there is no way of wrong method of calculation by the opposite party. It is pertinent to submit that the actual difference of payment arose between the complainant and the opposite party is Rs.6,742.07/- as on 31.03.2011. Subsequent to that the complainant made a request that the balance amount has been paid as soon as the banks cash credit will be ready the debit balance will be cleared off. The opposite party has not followed up as per the agreement entered between the complainant and the opposite party.
9. The opposite party denies the allegation made in the complaint in 8th paragraph that the legal notice was caused on 28.04.2012 to the Head office of the opposite party and subsequent to 02.05.2012 reminder notice has been forwarded to the opposite party. The complainant is not instituted this complaint before this Hon’ble Forum with clean hands. The entire averments made in the complaint are false and frivolous and contrary to the natural justice. The complainant has no right claim over the same under the provision of consumer protection Act. Hence this complaint is liable to be dismissed.
10. On the side of the complainant, proof affidavit submitted for his
evidence and Exhibit A1 to A11 are marked. While so, no documents filed on the side of the opposite party.
11. At this juncture, the point for the consideration before this Forum is:
- Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?
- To what other reliefs, the complainant is entitled to?
12. Written argument filed by the complainant and in addition to that oral
arguments also adduced by the complainant.
13. At the outset, though the opposite party has not come forward to file his proof affidavit as his evidence and written arguments even sufficient time was given, but, the opposite party has filed his detailed written version only. Therefore, this Forum wants to dispose this complaint fully on merits.
14. Point 1: According to the case of the complainant is that the industry
standard for the conversion of liquid oxygen into gaseous form in cubic meter is one kilo gram is equivalent to 0.6998 cubic meters. Whereas, as per the calculation of the opposite party one kilo gram of liquid oxygen is equivalent to 0.77 cubic meter of gas and charging the complainant at this conversion rate only. It is contra to the industry standard of all India Industrial Gases Manufacturers Association and thereby the opposite party had received the excess amount of Rs. 3,59,643/- that is 9.11482 percent of every bills from 05.06.2010 to 02.07.2011 by adopting the wrong method of calculation and therefore the opposite party has committed deficiency in service.
15.On the other hand, the opposite party would contend in his written version that the complainant has entered into an agreement, the opposite party and also agreed the price of the liquid gas as per the agreement and therefore the complainant is binding upon the terms and conditions of the above said agreement and thereby the plea taken by the complainant cannot be acceptable one and in fact, the actual difference of payment arose between the complainant and the opposite party is Rs.6,742.07/- as on 31.03.2011. It is further contended that the complainant made a request subsequent to this complaint that the balance amount would be paid as soon as the bank cash credit will be ready, but, per contra the complainant has come forward with this complaint which is crystal clear that the complainant has not moved this Forum with clean hands.
16. At this juncture, on careful perusal of the rival submissions put forth on either side, it is clear that the agreement dated 30.06.2009 to supply liquid oxygen to the complainant as per the terms and condition made in the said agreement. In continuation of the said agreement, the opposite party has supplied the liquid oxygen to the complainant from 05.06.2010 to 02.07.2011 for the tune of Rs.39,45,696/-. The said agreement is marked as Exhibit A1. It is learnt from Exhibit A1 agreement, the clause 7 clearly denotes the conversion factors as liquid oxygen 1Kg=0.77M3. Similarly the clause 9 and 10 reveals the fact of prices, etc., and about the price valuation respectively. At this instance, the ledger annexure enclosed with Exhibit A2 clearly reveals the fact of debit and credit amount. Exhibit A3, is the reply notice. Exhibit A4, is the acknowledgement card acknowledged by the opposite party. Exhibit A5, is the one more notice dated 28.04.2012 sent by the complainant to the opposite party and same was returned, which was marked as Exhibit A6. Therefore, the complainant sent reminder notice Exhibit A7 to the opposite party and the same was acknowledged by the opposite party, in which the acknowledgement card is marked as Exhibit A8. Exhibit A9 to A11 are Email conversion data for oxygen issued by the All India Industrial Gases Manufacturers Association respectively.
17. At this juncture, it is pertinent to note that the opposite party did not file in a proof affidavit as his evidence on his side; it goes without saying that the foremost duty of the complainant to prove his case by means of relevant and consistent evidence. Then only, this Forum to arrive the just decision of the case.
18. At this juncture, it is seen from the complaint that the complainant sought for relief to refund the excess amount of Rs.3,59,643/-as per the correct conversion rate for the conversion of liquid oxygen into gaseous form in cubic meter, as one kilo gram is equivalent to 0.6998 cubic meters, instead of 0.77 cubic meter of gas. At this point of time, it is to be seen that whether the plea taken by the complainant is subject to the terms and condition made in Exhibit A1, the agreement. At the outset it is pertinent to note that as per the Contracts Act, both the parties are binding only as per the terms and condition of the agreement entered between the parties, which is the settled proposition of law. The said fact has been rightly pointed out by the opposite party in his written version which cannot be easily rejected.
19.In such being the position, on seeing Exhibit A9 to A11 through necked
eyes these are all only Email download copies subsequent to the said agreement, that is after a very long time in which, dated 11.06.2013 and 13.06.2013. Furthermore, it must be mentioned that from which date the said rate of conversion as prescribed in Exhibit A9 to A11 has been given in existence is not at all found in the said Exhibits. So, it is very difficult to presume or conclude the above said rate of conversion is applicable to this case on hand. Since, Exhibit A1, agreement is in force until it is cancelled. Therefore, the complainant is abide the terms and condition of Exhibit A1, the agreement. Furthermore, the memo of calculation filed by the complainant which, shows the difference between the amount charged as per their volume 0.77 cubic meter per kilogram and as per ALLGMA VOLUME STANDARD 0.6996 cubic meter per kilogram and thereby the complainant arrive the excess amount charged of Rs.3,58,336/-.
20.At this juncture, this Forum wants to enlighten that as already discussion
in the previous paragraphs, the above said calculation cannot be accepted, since the opposite party has rightly calculated the prices as mentioned in Exhibit A2, which cannot be disputed by the opposite party in respect of said calculation. Moreover, the excess amount claimed in the complaint as well as the memo of calculation is entirely different. Above all, it is noticed that, the complainant has not moved this Forum with clean hands.
21. In the light of above facts and circumstances and observation made above, this Forum is of considered view that the complainant has not proved his case regarding the deficiency in service on the part of the opposite party. Thus the point no.1 is answered accordingly.
22. Point 2: As per the decision arrived in point no.1, the complainant is
not entitled for any relief as prayed in the complaint. Thus, the point no.2 is answered accordingly.
In the result, this complaint is dismissed. No cost.
Dictated by the president to the steno-typist, transcribed and computerized
by him, correctly by the President and pronounced by us in the open Forum on this 5th January 2016.
MEMBER I PRESIDENT
List of Documents filed by the complainant
Ex.A1/Dt.30.06.2009: Xerox copy of the agreement between the complainant and the
opposite party.
Ex.A2/Dt.07.12.2011: Xerox copy of the legal notice with ledger balance sent by the
opposite party’s counsel to the complainant.
Ex.A3/Dt.17.12.2011: Reply notice given by the complainant’s counsel to the opposite
party’s counsel.
Ex.A4/Dt.22.12.2011: Xerox copy of the postal acknowledgement card of the opposite
party.
Ex.A5/Dt.28.04.2012 :Xerox copy of the notice given by the complainant’s counsel to
the opposite party.
Ex.A6/Dt.05.05.2012: Xerox copy of the returned cover sent by the complainant to the
opposite party.
Ex.A7/Dt.02.05.2013: Xerox copy of the reminder legal notice sent by the complainant
to the opposite party.
Ex.A8/Dt.06.06.2013: Xerox copy of the postal acknowledgement card of the opposite
party.
Ex.A9/Dt. : Xerox copy of AIIGMA downloading through the Email.
Ex.A10/Dt. : Xerox copy of the WebPages showing conversion table.
downloading through the Email.
Ex.A11/Dt. :Xerox copy of the Conversion table of CRYO STAR.
List of documents of the opposite party: Nil.
Sd/-*** Sd/-***
MEMBER I PRESIDENT
