BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 22nd September 2010
PRESENT:
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR.K : MEMBER
COMPLAINT NO.38/2010
(Admitted on 23.1.2010)
BETWEEN:
M.Ramakrishna.T.,
So Narayana.T,
Aged about 57 years,
Mundaje House,
P.O.Shirady,
Puttur Tq, D.K. …….. COMPLAINANT
(Advocate for Complainant: Sri.D.Sanjay)
VERSUS
Proprietor,
Sri Manju,
Indane Gas Distributor,
Sridevi Complex,
Sriram Nagar,
Belthangady, D.K. ….. OPPOSITE PARTY
(Advocate for Opposite Party: Sri.B.Jinendra Kumar)
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that, he is a customer of the Opposite Party Gas Agency as per customer No.SMG 1422 and has paid Rs.1,900/- to the Opposite Party for gas connection on 12.4.2000. The Complainant was allotted with two cylinders in the above gas connection. The Opposite Party has been supplying gas cylinders to the Complainant for last 8 years and the same has been supplied through one Mr.Divakar, Ananda Complex, Udane.
It is stated that, on 28.8.2008, the Assistant Commissioner Puttur has seized 24 gas cylinders of Indane Company from Mr.Divakar and after the proceeding, the cylinders were forfeited to the Government. In this regard, the Assistant Commissioner has passed an order dated 14.12.2009 in proceeding No.CSD CR 49/08-09. The above said Divakar has appeared before the Assistant Commissioner, Puttur, and stated that, the gas cylinders were belonged to the Opposite Party. After the seizer of the Gas cylinders, the Complainant has been continuously enquiring with the Opposite Party to supply a new cylinder in the place of seized cylinders. The Opposite Party has refused and stated that the Complainant has to pay for the new cylinder. The Complainant got issued a lawyers notice dated:9.11.2009 to the Opposite Party called upon to supply a new cylinders in the place of seized cylinders but the Opposite Party has failed. The Complainant contended that, the Opposite Party has authorized Mr.Divakar to supply the cylinder to the local people and because of negligence of the Opposite Party the gas cylinder was seized and stated that the act of the Opposite Party amounts to deficiency and filed the filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to supply a new gas cylinder free of cost to the Complainant and also pay compensation and cost of the proceedings.
- Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version admitted that, the Complainant is a customer of the Opposite Party Gas Agency as per customer No. SMG 1422 and has paid Rs.1,900/- to the Opposite Party for gas connection on 12.4.2000. It is stated that, the Opposite Party has been supplying the gas cylinder to the Complainant for last 8 years.
But it is denied that, the gas cylinders are being supplied through one Mr.Divakar, Ananda Complex, Udane. It is stated that, this Opposite Party is not within the knowledge that, on 28.8.2008 the Assistant Commissioner, Puttur has seized 24 Gas cylinders of Indane Company from Mr.Divakar and the same has been forfeited to the Government. It is stated that, there is no local shop at Udane to supply gas cylinders. The Opposite Party is not having sub-dealer or agents with regard to his business, the gas cylinders are being supplied at Opposite Party firm at Belthangady and also to the house of the customers. The Complainant has indulged himself in some illegal activities and as such the cylinders were seized by the Assistant Commissioner. When the Complainant was in the custody of the cylinders, the Opposite Party is not liable to compensate any loss and contended that there is no deficiency and Complaint is barred by limitation and prayed for dismissal of the Complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that Opposite Party committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri Ramakrishna.T (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and Ex C1 to C5 were produced for the Complainant as listed in the annexure. One Padmanabha, Proprietor of Opposite Party filed counter affidavit (RW-1) answered the interrogatories served on him. Ex.R1 produced by the Opposite Party as listed in the annexure. Both the Parties filed written notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon’ble Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
REASONS
5. POINTS NO. (i) to (iii):
The Complainant came with a complaint stating that, he is a consumer of the Opposite Party gas agency as per customer No. SMG 1422 and has paid Rs.1900/- to the Opposite Party for gas connection on 12.4.2000. The Complainant was allotted with two cylinders in the above gas connection. It is contended before this FORA that, the Opposite Party has been supplying the gas cylinders to the Complainant through one Mr.Divakar, Ananda Complex, Udane for the last 8 years. When the matter stood thus, on 28.8.2008, the Assistant Commissioner has seized 24 gas cylinders of Indane from Mr.Divakar and the cylinders seized were forfeited to the Government. The Assistant Commissioner has passed an order dated 14.12.2009 in proceeding No.CSD CR 49/08-09. It is contended that, the above said Divakar has appeared before the Assistant Commissioner and stated that, the Gas Cylinder were belonged to the Opposite Party. After seizer of the gas cylinders, the Complainant has continuously enquiring with the Opposite Party to supply a cylinders in the place of seized cylinders, but the Opposite Party has refused. Hence this complaint.
The Opposite Party on the contrary contended that, the Opposite Party was not within the knowledge that on 28.8.2008, the Assistant Commissioner, Puttur has seized 24 gas cylinders of Indane from Mr.Divakar and the same was forfeited to the Government. It is specifically contended that, they have no local shop to Udane to supply the gas cylinders. The above said Mr.Divakar is not the authorized person of the Opposite Party
The Complainant has filed his affidavit in lieu of oral evidence and produced Ex. C1 to C5. The Opposite Party also filed evidence and produced Ex.R1.
On careful scrutiny of the documents/materials available on record, we find that, there is no record/material to show that, the Opposite Party has local shop at Udane to supply the gas cylinders and also there is no evidence to show that Mr.Divakar is authorized person of the Opposite Party. The Ex.C3 is the order dated:14.12.2009 passed by the Assistant Commissioner, Puttur, wherein, the Assistant Commissioner, Puttur has seized 24 gas cylinders of Indane Company from Mr.Divakar but not from the Opposite Party. Just because the seized cylinders are belongs to the Indane Company one cannot consider that the Opposite Party has authorized the Divakar to supply the above said gas cylinders to the Complainant. If at all, the Opposite Party authorized the Divakar to supply the gas cylinders to the Complainant then the question of seizing by the Assistant Commissioner, Puttur would not have happened. There is no mentioning in the above said order that, Mr.Divakar Gowda is an authorized agent of the Opposite Party. The Complainant miserably failed to prove that, the gas cylinders seized by the Divakar is the authorized person of the Opposite Party. In the absence of the same, the Complainant cannot claim the new gas cylinder free of cost.
We observed that, since the Divakar Gowda indulged unauthorized activity, the Assistant Commissioner, Puttur has seized the cylinders because Divakar is not a distributor and does not have license to store gas cylinders. The statement of Divakar is nothing to do with the case on hand. In the absence of any credible evidence, we find that there is no force in this complaint deserves to the dismissed. No order as to cost.
6. In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to cost.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 22nd day of September 2010.)
PRESIDENT
MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri Ramakrishna.T – Complainant.
Documents produced on behalf of the Complainant:
Ex C1: 12.4.2000: Copy of the gas book.
Ex C2: 12.4.2000: Copy of the subscription voucher.
Ex C3: 14.12.2000: Certified copy f the order Assistant Commissioner, Puttur.
Ex C4:09.11.2009: O/c. of Regd. Lawyers Notice.
Ex C5:10.11.2009: Postal Acknowledgement.
Witnesses examined on behalf of the Opposite Party:
RW-1: Sri. Padmanabha, Proprietor of Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1: 26.12.2009: Office copy of the reply notice.
Dated:22-09-2010 PRESIDENT
