KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.201/2008 JUDGMENT DATED : 06.02.2010 PRESENT:- JUSTICE.SHRI.K.R.UDAYA BHANU : PRESIDENT SHRI.M.K.ABDULLA SONA : MEMBER P.Sukumaran, Sudheer Mandiram Elamannoorkoanm, Pallichal, : APPELLANT Naruvamoodu.P.O., Thiruvananthapuram – 695020. (By Adv.Sri.Pallichal S Aswakumar) Vs 1. The Secretary, Naruvamoodu Service Co-Operative Bank Ltd. No:160, Naruvamoodu.P.O. 2. The Manager, : RESPONDENTS Kerala State Co-Operative Consumers Federation, Thiruvananthapuram. (By Adv.Sri. M.Rajagopalan Nair & K.S.Sanal Kumar) 3. Managing Director, Kerala State Co-Operative Consumers Federation, Head Ofice, Ernakulam. JUDGMENT SRI.M.K.ABDULLA SONA : MEMBER This appeal prefers from this order passed by the CDRF, Thiruvananthapuram in the file of O.P.No.395/2002 dated 16.06.2008. The appellant is the complainant who prefers this appeal from the above impugned order. This appeal prefers from the order of the Forum below directed 2nd and 3rd opposite parties shall refund to Rs.2,500/- to the complainant of the connection charge of Rs.750/- along with the amount as the additional charge obtained by the opposite parties from the complainant and also pay Rs.1,000/- as cost of the complaint and directed the complainant to surrender the cylinders and regulators to the 1st opposite party. The said amount shall carry interest at the rate of 9% per annum if not paid within two months of this order. As per the complainant he take a Neethi gas from the 1st opposite party on 08.05.1998 and he had paid Rs.5,250/- for the same. But the continuous failure on the part of the 1st opposite party in regular supply of gas on 02.04.2002 to the complainant paid Rs.217/- for a refill cylinder but on that day the 1st opposite party did not deliver the cylinder and from 16.04.2002 the 1st opposite party charged an additional amount of Rs.43/- for getting the cylinder. The complainant alleges that it was illegal for charged the additional amount after two weeks of the booking date. And also the complainant stated that after 02.04.2002 other gas agencies were not increased the value of gas and also the complainant alleges that the market rate of Neethi gas is higher than other gases. Hence the complainant decided to cancel the Neethi gas connection and he demanded the refund of the connection charge Rs.5,750/- and refund Rs.43/- from the opposite parties and the additional charge received from the complainant on 16.04.2002. The 1st opposite party contended that they are not liable for the alleged complaint. According to 1st opposite party is only an agent act as the institution of the 2nd opposite party. As per the 1st opposite party the 2nd opposite party is fixing charge as per the rules and regulations of the Indian Oil Corporation and also they contended that there is no provision to refund the connection charge and he prefers this appeal prayed for the dismissal of the complaint. The 2nd and 34d opposite parties are Kerala State Co-Operative Consumers’ Federation Ltd. They contended that the complaint is not itself maintainable because the opposite parties are established under Co-Operative Societies Act hence the dispute stated in the complaint would not fall under the jurisdiction of this Forum under Sec.69 of the Kerala Co-operative Societies Act and also they stated that the opposite parties are unable to supply refills at the subsidiary market rate. The privilege of subsidy was denies for gas sold through Consumerfed. It resulted in a situation where Consumerfed could not sell cooking gas at the price of the public sector companies without incurring heavy loss. It may be in view of this the private sector company Shri.Shakti LPG Ltd., who is not getting the subsidy, backed out from supplying filled cylinders to the Consumerfed. The complainant was examined as PW1 and marked as ext.P1 to P5. The opposite parties were cross-examined the complainant and there is no evidence adduced by the opposite parties. The Forum below rightly answered the points arised as per the evidence. 1. Whether there is deficiency in service in supply of gas? 2. Whether the complaint is entitled to get any compensation? 3. Whether the opposite parties are jointly and severally liable? The Forum found that the products sold through the Consumerfed are at reduced rate compared to prevailing market rate. The Forum below found that there is a deficiency of service in supply of gas and the opposite parties are liable to pay compensation. In the result, The Forum below directed the 2nd and 3rd opposite party shall refund the amount and other amounts direct the result portion of the order. The complainant is not satisfied the order passed by the Forum below. The Forum below taken a view that a lenient view is necessary to fixing the quantum of amount to be refunded to Rs.2,500/- which are find reasonable. The complainant required for the refund of entire amount even though the Forum below found that there is a deficiency in service and unfair trade practice committed by the 2nd and 3rd opposite parties. On this day this appeal came before this Commission both the counsel for the appellant and the opposite parties are present. The appellant argued the appeal on the basis of the ground of the appeal memorandum filed by him. This commission heard in details both sides and perused the available records. This Commission is seen -ing that the Forum below rightly answered all the questions arranged in the court for consideration and the Forum below found that there is a deficiency of service from the part of the 2nd and 3rd opposite party but the Forum below taken a lenient view for fixing the refund of the amount. We are not seeing any satisfactory reason to apply a lenient view in fixing the quantum of the amount to be refunded. The Forum below found that this amount is liable to be refunded. The 2nd and 3rd opposite parties are the Kerala State Co-operative Consumer Federation. They collected Rs.5,750/- from the appellant/ complainant remitted this amount to the 1st opposite party Sakthi Gas done by the 1st and 2nd opposite party and supplementary 3rd opposite party are not on the factors of the banking transaction. They entered in a contract with the Sreesakthi LPG Limited and handed over Rs.5,500/- to them without any conditions. Thus, an adjustment or a memorandum of understanding between the Sree Sakthi LPG Limited and the respondent. There is no doubt that the act of the respondents is nothing but an illegal transaction. It is not a part of official functioning of the appellants. The tie up with the first opposite party is nothing but an illegal transaction. There is no necessary to apply a lenient view to the respondent/opposite party. The complainant/consumer is entitled at the full amount to be refunded it he already paid. In this circumstance the order of the compensation passed by the Forum below is illegal and not legally sustainable and not accordance with the provisions of the enactment and evidence. We hereby set aside the result portion of the order. This Commission decided to interfere in the result portion of the order of the Forum below. In the result this appeal is allowed and directed 2nd and 3rd opposite party shall refund Rs.5,750/- (full amount) and also to pay Rs.43 along with the amount as additional charge obtained by the opposite party from the complainant and also to pay Rs.1,000/- as costs of the complainant. There is no necessary to apply sympathy in this case to the opposite parties. It is a fit case to apply empathy. The complainant is also directed to surrender the cylinders and regulators to the 1st opposite party. The said amount shall carry interest at the rate of 9% per annum have not paid within two months of the order. This appeal is disposed accordingly. Both parties are directed to suffer their own respective cost. The points of the appeal answered accordingly. M.K.ABDULLA SONA : MEMBER JUSTICE. K.R.UDAYA BHANU : PRESIDENT Kb. | 
