Complaint for realization of repairing charges, compensation and costs.

          The averments in the complaint can be briefly summarized as follows:

          The complainant is the father in law and power of attorney holder of  one Mr. R. Raveendran Pillai who is the owner of the vehicle bearing Reg.No. KL.02/Q.8074.  The complainant  is a consumer within the meaning of Section 2[1][d] of the Consumer Protection Act.    The de-facto complainant is conducting a taxi service  which is Toyota-Qualis F3 vehicle referred to above.   This vehicle was purchased utilizing loan  from  HDFC Bank.  As on 13.6.2004 the vehicle could run  37800 Kilometres.  The vehicle was being given proper maintenance..  On 13.6.2004  the vehicle was  filled with diesel for Rs.500/-  from the bunk of the 1^st opp.party, and while the vehicle was proceeding  to Kollam  it got a break down  and the engine could not be started.   The vehicle was taken to its authorized service centre, the Nippon Toyota, Moopan Mortors Pvt. Ltd.  On 14.6.2004  the vehicle was subjected to major repairs  sum of Rs.30,728/- was spent towards workshop expenses  The vehicle got damaged due to the usage of water stained diesel  from the bunk of the first opp.party.   The complainant also sustained loss of value of diesel Rs.5,00/- and Rs.15,000/-  being damage towards income  to be earned during that period.   Though the opp.party was requested to pay the amount, they refused  to pay the amount  and hence the complaint.

          The first opp.party filed version contending interalia that the complainant is not a consumer within the meaning of section 2[1][d] of the Consumer Protection Act.   The first opp.party is  one of the dealers of petroleum products of the 2^nd opp.party having his outlet at Kavanadu, Kollam.  The entire installation for the outlet is established and maintained by the 2^nd opp.party and  this opp.party as dealer  use   the  same  for storage and sale of petroleum products On 12^th and 13^th June 2004 there was incessant  rain followed by flash floods inundating the area around the outlet.    The 1^st opp.party has made thorough checking of the petroleum products in the underground tanks to make sure that the products are not contaminated .  On that occasion no instance of water  staining was detected At about 8.30 a.m.  on that day  from the complaints of three consumers  this opp.party could detect stain of water in the diesel sold to them.  At the  same point of time the 1^st opp.party has supplied diesel to the complainant also.  Immediately  the 1^st opp.party stopped the sale of diesel  and informed the matter to the 2^nd opp.party and took steps to settle the claims of the above said consumer including the complainant .  Though the other three consumers settled the claim the complainant  straight away put forth a claim of Rs.1,00,000/- .  The presence of water particles never cause any serious  harm or damage to the vehicle or its engine as alleged by the complainant and the only repair to be done  in such  circumstances is to clean  the diesel tank ,replace the diesel filter and to refill  diesel.  No major or other repairs consuming more than one or two hours is  required in such cases.   The contention that the complainant spent Rs.30,728/- towards workshop charges is unfounded.  The loss alleges to have sustained by the complainant is also not true.   The averments in para 6 are not correct. The  1^st opp.party has taken all precautionary measures to avoid supply of contaminated fuel and he was ready and willing to settle the matter then and there on reasonable terms.  There s no unfair trade practice or deficiency in service on the part of the first opp.party.  Hence the opp.party 1 prays to dismiss the complaint.

          The 2^nd opp.party filed a separate version also contending interalia, that the complainant is not a consumer  and the complainant is not maintainable either in law or on facts and  with more or less identical contentions as that of the 1^st opp.party.

Points that would arise for consideration are:

1.     Whether or not there is deficiency in service on the part of the opp.parties?  

2.     Reliefs and costs.

For the complainant PW.1.and 2 are examined.  Ext. P1 to P8 are marked.

For the opp.party DW.1  is examined.

POINTS:  There is no dispute that on 13.6.2004 the complainant filled diesel in his Toyota Quali9s vehicle bearing Reg.No.KL-2Q 8074  from the Bunk of the 1^st opp.party and the vehicle break down on the way due to the water stained diesel filled lby opp.party.1.   The contention of the opp.parties is that the complainant is not a Consumer within the meaning of Sec.2[1][d] of the Consumer Protection Act as the vehicle is a commercial vehicle land the complainant is not the RC owner of the vehicle.   That contention does not appeal to us.   Though the vehicle is a commercial vehicle the dispute relates to the quality of the diesel purchased and therefore we are of the view that the complainant is a consumer within the meaning of Wec.2[1][d] of Consumer Protection Act.

          Now the question is whether  the repairs done to the vehicle is as a consequence of the water stained diesel supplied by the 1^st opp.party or not.   The diesel  supplied by the 1^st opp.party was water stained is not disputed by opp.party 1  also.  But their definite contention is that due to incessant rain  the area around the outlet was inundated with flash flood  and  water drained into the tank contaminating the diesel which came to the notice of the oppp.party when  persons who filled petrol from the outlet complained.  PW.1 has also admitted that there was rain.   According to the 1^st opp.party the claim of 3 persons who filled diesel from their outlet on that day prior to the complainant herein were settled refunding  the diesel charges and paying the workshop charges for cleaning diesel tank and replacing filter.   Though the same terms were offered to the complainant he refused to seetle the matter on the terms accepted by the above 3 persons with ulterior motives.

          The specific contention of the 1^st opp.party is that the presence of the water stained diesel will never  cause any serious damages to the engine and the only repair to be done in such case is to clean the diesel tank and replace the diesel filter and that such work could be completed within 1 or 2 hours.   According to the complainant the entire work covered by Ext.P3   was necessitated  due to the use of water stained diesel.  However  no independent expert evidence was adduced to establish that contention. 

          PW.2 is the service Manager of the Nippon Tyotta at Thiruvananthapuram.  He has stated in cross examination that the complaints referred to in Exts.P3, P4 and P5 would happen only if water  contained diesel is filled in the diesel tank.  He would further state that immediately on seeing the vehicle he come to know that the vehicle require major repairs and that a months time would be required for the repairs.  Ext.P5 shows that the vehicle was brought on 14.6.2001 and PW.2 promised to return the vehicle on 15.6.04.  PW.2 in cross examination has admitted that he promised to return the vehicle after repairs 15.6.2004.   To use his own words “ Ext.P5 YedlgA 14;6;2004 H appoint  svu\f vehicle 15.6.2004 H rHdlsar\rk BlR  promise svu\fk;   If PW.2 was satisfied that the vehicle requires major repairs spreading  over a month one is at a loss to understand as to how he agreed to return the vehicle after repairs on the next day.  In cross examination he has admitted that even if water contained diesel is filled always  this type of repairs would not be required from which it is clear that the repairs in such cases would be minor viz cleaning of diesel tank replacement of diesel filter etc.  It cannot be believed by any stretch of imagination that  a service Engineer like PW.2  cannot understand the defect on examination of the vehicle on 14.6.2004 and it is obvious that he has issued Ext.P5 after fully satisfied with the  nature of repairs.  His subsequent version that  he was satisfied that  major repairs spreading over a month would be required  can as argued by the opp.parties, be the result of a collusion between PW.1 and PW.2.  It is also to be noted that some parts of the vehicle are alleged to have been send  to Bangalore for major repairs.  But no material worth believable is forthcoming regarding the repairs alleged to have been carried out  at Bangalore.  As pointed out earlier PW.2 being an employee of the dealer and his inconsistent version regarding time for repairs in Ext.P3 to P5 his evidence cannot be safely relied on to come to the conclusion that the vehicle need major repairs due to the incident.

          It is worth pointing out in the context that the vehicle herein has run 37800K. meters within a span of 10 months and as argued by the opp.parties it is quite probable that such a vehicle would require the repairs as per Ext.P3 to P5.  The conduct of the complainant  in  not examining an independent expert is highly suspicious.  Only an independent expert can  say that the repairs as per Ext.P3 to P5  are necessitated due to the use of water stained diesel.   The  answer of PW.2  to a pointed question is also highly material.  To the question th\hu\Se\SelqkA water content diesel Lmjv\vlH Tb\bsr cA.ij]kSal he answered  svyju gJfjujhkxx water content Llsnb\djH dkqe\eajh\h.  On has to grop  into the darkness to know whether the water content herein was small or large.  In cross examination PW.2  admitted that in Ext.P3 to P5  there was no mention regarding presence of mud from which it can be inferred that the quantity of water content was small .  On a perusal of the entire evidence in this case we are of the opinion that the contention of opp.parties that major repairs were done to the vehicle  in collusion between PW.1 and 2  is quite probable.   The omission to adduce independent  expert evidence is also fatal to the case of the complaint.

          It is submitted by the opp.party 1 that on knowing about the incident on 13.6.2004 itself they offered the complainant the expenses for cleaning  the diesel tank and replacing the diesel filter and price of  the same quantity of  diesel but the complainant was not amenable for that.   The learned counsel for the opp.party 1 submits that opp.party 1 is ready  even now to comply with that offer.   The incident occurred due to a natural calamity beyond the control of opp.parties and no negligence or deficiency in service or unfair trade practice can be attributed to opp.parties 1 and 2.  Point found accordingly.

In the result the complaint is dismissed.  No costs 

Dated this the       30^th    day of September, 2009. 

I N D E X

List of witnesses for the complainant

PW.1. – Achuthan

PW.2. – Biju S. Pillai

List of documents for the complainant

P1. – Power of attorney

P2. – Cash bill

P3. – Cash invoice

P4. – Cash receipt

P5. – Repair order

P6. – Advocate notice

P7. – Acknowledgement

P8. – Reply of 1^st opp.party.

List of witnesses for the complainant

DW.1. Premraj