BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Date of filing : 18/02/2009
Date of Order : 22/09/2009
Present :-
Shri. A. Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member.
C.C. No. 99/2009
Between
Shaji Abraham, | :: | Complainant |
Chackacheril House, No. 1/700 A, Kakkanad West. P.O., Kochi – 682 0202. |
| (By Adv. Sunny Varghese, Faizel Chambers, Pullepady Cross Road, Cochin – 18.) |
And
1. M/s. Hindustan Petroleum Corporation Ltd., | :: | Opposite parties |
Rep. by its Terminal Manager, Irumpanam, Kochi – 682 309. 2. The Proprietor, Srihridya Fuels, H.P. Dealers, Tripunithura, Ernakulam District. |
| (Op.pty 1 by Adv. Nithin George, Menon & Pai Advocates,I.S. Press Road, Ernakulam, Kochi – 18) Op.pty 2 by Adv. Alias M. Cherian, No. 59/999, Krishnaswamy Road, Ernakulam – 682 035) |
O R D E R
A. Rajesh, President.
1. The case of the complainant is as follows :
The complainant is the registered owner of the Ford Endeavour car bearing Registration No. KL-07 BD 400. The 1st opposite party is a Petroleum Company and the 2nd opposite party is their dealer. On 07-09-2008, the complainant filled 25.03 Litres of diesel turbo in his car from the 2nd opposite party. Immediately after filling fuel, the car went out of order. In spite of repeated attempts, he could not start the car. The complainant managed to remove the car from the premises of the 2nd opposite party and took it to the authorised service centre of Ford. After inspection, they reported that the fuel injection pump of the car became defective due to filling of diesel which had been mixed with water. He had to expend Rs. 1,70,777/- to replace the fuel injection pump. Moreover, the complainant had to incur a sum of Rs. 10,000/- towards his travelling expenses. The complainant caused to issue a lawyer notice to the opposite parties demanding to pay Rs. 1,80,777/-, the 2nd opposite party sent a reply raising untenable contentions. The complainant is entitled to get the amount from the opposite parties together with costs of the proceedings. This complaint hence.
2. Version of the 1st opposite party :
It was reported by the 2nd opposite party that there was no presence of water in the turbojet Tank on 07-09-2008 as the water dip on that day was showing NIL reading. It was also informed by the 2nd opposite party that several other vehicles also were fueled Turbojet from the outlet on the same day and none of them have reported any incident of water mixing in the fuel. Therefore, the allegations with regard to mixing of water in Turbojet and alleged consequent defect of the fuel pump are baseless. The claim raised for the replacement of the fuel injection pump and consequential works are hence not sustainable. As per the dealership agreement between the opposite parties, the relationship between the opposite party with the 2nd opposite party is that of “Principal to Principal” basis and not that of Principal and Agent. Thus, this opposite party is not liable for any act of omission and commission by the 2nd opposite party. The product supplied to the above retail outlet was after several quality checks as per laid down procedure. The 1st opposite party has been maintaining strict standards in delivery of fuels to the dealers. Hence the entire allegations raised are baseless.
3. Defense of the 2nd opposite party :
The complainant is not a consumer and he has not purchased any goods or availed any service from the 2nd opposite party as defined under Section 2 (d) of the Consumer Protection Act. On 07-09-2008, the complainant had not filled diesel-turbo from the 2nd opposite party as claimed by him. The bill dated 07-09-2008 was obtained by the complainant from the 2nd opposite party in a fraudulent manner. The same was obtained on 17-09-2008 by Mr. Jacob Mani who is the Secretary of All Kerala Tanker Lorry Association. The alleged defect happened to the car of the complainant has no connection with the 2nd opposite party. Neither has the complainant filled diesel-turbo from the 2nd opposite party on 07-09-2008 nor has diesel been mixed with water as averred. The 2nd opposite party requests to dismiss the complaint.
4. The complainant was examined as PW1. Exts. A1 to A6 were marked on his side. Neither oral nor documentary evidence was adduced by the 1st opposite party. The 2nd opposite party and his witness were examined as DW's 1 and 2. Exts. B1 to B3 were marked on the side of the 2nd opposite party. Heard the counsel for the parties.
5. The points that came up for consideration are :-
Whether the complainant is a consumer?
Whether the complainant is entitled to get a sum of Rs. 1,80,777/- towards the claim of price of fuel injection pump from the opposite parties.
Costs of the proceedings?
6. Point No. i. :- Prima-facie, Ext. A1 cash bill goes to show that on 07-09-2008 the complainant had filled 25.03 litres of turbo from the 2nd opposite party at a cost of Rs. 1,000/-. Therefore, as per Section 2 (1) (d) of the Consumer Protection Act the complainant is a consumer and this complaint is maintainable in this Forum.
7. Point No. ii. :- According to the complainant on 07-09-2008, he had filled 25.03 litres of diesel turbo from the 2nd opposite party at a price of Rs. 1,000/- and Ext. A1 cash bill corroborates the same. It is stated that the complainant had to incur a sum of Rs. 1,70,777/- as per Ext. A3 to repair the defect of the vehicle, since the diesel filled at the 2nd opposite party was mixed with water. It is further stated that the complainant is entitled to get reimbursement of Ext. A3 bill amount from the 2nd opposite party together with other incidental expenses.
8. On the contrary, the 2nd opposite party vehemently contended that the complainant had obtained Ext. A1 cash bill behind his back with the assistance of DW2 Mr. Jacob Mani. Mr. Jacob Mani denied his involvement in the issue and according to him, he has no prior acquaintance with the complainant.
9. During evidence, the 2nd opposite party has produced Exts. B1 to B3 original bill books retained in their business concern. Admittedly, Ext. A1 bill is dated 07-09-2008 and the serial number is 67090.
10. Ext. B2 is the bill book produced by the 2nd opposite party which they maintain in their office. The first bill bearing serial No. 67001starts from 16-09-2008 and the last bill bearing serial No. 67991 dated 27-09-2008 ends on the same day. In Ext. B2 all the bills are seriously numbered and issued chronologically except Ext. A1 which has issued on 07-09-2008. But the previous and subsequent bills from Ext. A1 goes to show that Ext. A1 was not issued on the date if bears.
11. The issuance of Ext. A1 bill on 17-09-2008, after the original purchase on 07-09-2008 uncontrovertedly amounts to fraudulent practice which seems to have been connived at by interested parties.
12. It is pertinent to note that nothing is on record to show that the defect of the vehicle has been caused due to the filling of diesel mixed with water from the 2nd opposite party which is only averred but has not been proved.
13. It is rule of law that law does not favour the late comer and in the instant case the problems have been detected on 07-09-2008 and the complainant having informed the same only on 02-12-2008 goes to show that he is late. There is no explanation is forthcoming.
14. In the above circumstances, there is no course of law to uphold the averments of the complainant. The complaint is only to be dismissed. Held.
Pronounced in open Forum on this the 22nd day of September 2011.
Sd/- A. Rajesh,President.
Sd/- Paul Gomez, Member.
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
A P P E N D I X
Complainant's Exhibits :-
Exhibit A1 | :: | Copy of cash bill dt. 07-09-2008 |
“ A2 | :: | Copy of customer information sheet |
“ A3 | :: | Copy of tax invoice dt. 01-11-2008 |
“ A4 | :: | Copy of the lawyer notice dt. 02-12-2008 |
“ A5 | :: | Copy of the reply notice dt. 18-12-2008 |
“ A6 | :: | Copy of the reply notice dt. 05-01-2009 |
Opposite party's Exhibits :-
Exhibit B1 | :: | Counter foil of the bill book for the period from 02-09-2008 to 16-09-2008 |
“ B2 | :: | Counter foil of the bill book for the period from 16-09-2008 to 27-09-2008 |
“ B3 | :: | Counter foil of the bill book for the period from 27-09-2008 to 07-10-2008 |
Depositions :- | | |
PW1 | :: | Shaji Abraham – Complainant |
DW1 | :: | Name of DW1 not written |
DW2 | :: | Jacob Mani – witness of 2nd op.pty |
=========
Date of Despatch of this Order ::
By Post ::
BY Hand ::
