In pith and marrow the complainant’s case is that on 19.9.2017 opposite party (HP Dealer) delivered one gas cylinder under Cash Memo No.1092315 dated 12.9.2017 to the complainant which has been received by the wife of the complainant. Immediately after such delivery for the purpose of puja marketing wife of the complainant went to her elder sister’s house at Dumdum. From there wife of the complainant returned on 23.9.2017 in the afternoon and on 25.9.2017 she proceeded to Hyderabad at the residence of her son. After staying around 15 days thereat she returned home. On 30.10.2017 at night the gas of old cylinder of the house of the complainant has become finished and when complainant tried to set the new cylinder with the gas oven he felt that the weight of cylinder was very light and/or quantity of gas in that cylinder was very little. Then and there complainant tried to contact in emergency bearing No.89813-82654 but he did not receive any reply on the following day i.e. 31.10.2017 around 10 a.m. complainant contacted opposite party’s office, but person concerned of opposite party’s office has clearly expressed that there was nothing to do on their behalf. Thereafter on 10.11.2017 complainant lodged complaint before Asst. Director, Consumer Affairs & Fair Business Practices, Hooghly Regional Office and 6.12.2017 was the date fixed for hearing, though complainant was present at the relevant time but opposite party was absent. Resulting which complainant initiated this case with a prayer granting delivery of fresh gas cylinder with full filling of gas along with other reliefs.
Opposite party has contested the case by filing written version denying all material allegations and contended inter-alia that opposite party delivered proper gas cylinder with proper seal of HPCL Company. It is alleged by the opposite party that complainant after consumption of gas alleged about the receiving of empty gas cylinder from opposite party. Opposite party also alleged that complainant used the gas cylinder properly and regularly, because complainant was present at the material time at his house. Finally, opposite party has prayed for dismissal of the application of the complainant with cost.
Upon the aforementioned pleadings of the parties, following issues have been framed.
- Whether the complainant is a consumer of the opposite party?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try this case?
- Whether the complainant received cylinder with proper seal and/or opposite party delivered gas cylinder to the complainant without proper seal?
- Whether the complainant has proved his case against the opposite party as alleged and whether the opposite party is liable to pay compensation etc. if any, to the complainant?
DECISION WITH REASONS
Point No.1
From the materials on record it is transpired that the complainant is a “Consumer” as provided by the spirit of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. As the complainant is consuming gas provided by the opposite party through gas cylinder, so the complainant is none but purely a complainant to the opposite party and it is admitted position that opposite party is the service provider.
Point No.2
Both the complainant and opposite party are the residents and/or carrying on business within the district of Hooghly. The complaint is valued within Rs.20,00,000/- i.e. within the limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try this case.
Points No.3 & 4
These two issues are interlinked with each other and as such those two points are taken up together for the sake of convenience and brevity of discussion.
First of all, it is pertinent to note that complainant in his complaint attached photocopy of relevant cash memo of gas receipt in respect of supplying gas filled in a cylinder to him by opposite party. Further complainant has also furnished complaint memo dated 06.11.2017. Again complainant has filed copy of Railway Ticket to establish about the availing of train by his wife on the relevant date for proceeding towards Hyderabad. Thereafter complainant also furnished the paper of pre-litigation mediation wherefrom it appears that complainant took up the matter to the authority for pre-litigation mediation.
Complainant also filed his affidavit in chief in support of his contention mentioned in the complaint.
On the other hand opposite party did not file any document in support of his case along with his written version. The opposite party also filed affidavit in chief in support of his case.
In course of trial of this case this Forum vide its order dated 10.07.2018 directed complainant to produce the disputed gas cylinder before Legal Metrology Office at Jora Ghat, Chinsurah, Hooghly, directing ACLM to hold inspection work of the cylinder and prepare a report regarding the quantum of gas in the cylinder and whether the cylinder is sealed or not. This Forum also directed ACLM to produce report before the Forum. Accordingly, ACLM submitted his report. From the report of the Asstt. Controller of Legal Metrology, Hooghly it appears that Tare weight (as declared on cylinder) 15.4 Kg.; Total weight (with cylinder) 15.420 Kg.; and Actual net weight (residual weight) varies showings 20 g. five times and 18 g. one time. In the said report the signature of complainant as well as the signature of concerned entrusted person of opposite party are appearing.
That apart in the said report ACLM clearly mentioned that four photocopies of seal of the cylinder from different position have been enclosed and this Forum took notice of those four photocopies wherefrom it is evident that the complainant as well as entrusted person of opposite party have put their signatures in all four photocopies.
So, it is crystal clear that as per report of concerned ACLM that the Actual Net Weight (residual weight) varies showing five times 20 g. and showing one time 18 g. and the four photocopies clearly indicate that there is complete seal of the cylinder.
On 9.8.2018 opposite party filed a petition praying for examination of seal and on the same date this Forum clearly observed vide order dated 9.8.2018 opined to hear the said petition during final hearing and accordingly at a time of final hearing of argument Ld. Counsel was harping on the contents of petition and submitted for a direction to examine the seal of the disputed gas cylinder from proper authority.
It is pertinent to note that in the said report ACLM has enclosed four photocopies of the seal of the cylinder from the different positions. Therefore, further prayer of the opposite for examination of seal of the disputed gas cylinder only indicates that either to make the matter complicated or to get the matter delayed opposite party has made such prayer. Further the four photocopies submitted by the ACLM in his report clearly shows different positions of seal on the disputed cylinder and wherefrom it can be discerned that at the time of examination of the disputed cylinder by the ACLM the condition of the seal on the cylinder was proper. To the mind of this Forum the petition dated 9.8.2018 of the opposite party appears to be sans any substance and as such the said petition is answered in negative.
Another point also raised by the Ld. Advocate of the opposite party that complainant did not file the copy of concerned (blue book) for establishing on which date gas was booked and on which date gas was supplied and as such complainant’s case became weak.
Regard being had upon such submissions of the Ld. Advocate of the opposite party it may be pointed out that mere not filing the concerned (blue book) on the part of complainant, certainly will not change the entire scenario, because in our day to day life we are quite experienced in what mode and what way gas cylinders are being supplied to the customers and discussing on that score is not at all needed. It is the opposite party who contested the case upon the subject matter introduced by the complainant and opposite party never took any ground that he did not supply the gas cylinder in question. So, we do not find any merit in such submission of the Ld. Advocate of the opposite party.
Further it may be noted that not attending before the authority of pre-litigation mediation by the opposite party inspite of notice clearly indicates that he did not care or bother about the sufferings and harassment of the complainant. Even it seems that opposite party has no respect towards the authority of pre-litigation mediation.
Considering the total episode and taking in view the entire materials on record we are of the opinion that complainant succeeds to prove his case. Hence, it is,
O r d e r e d
that the instant case being No.01/2018 be and the same is allowed on contest against the opposite party.
The opposite party is directed to supply a fresh gas cylinder duly and properly fully filled in to the complainant at his house exchanging the disputed cylinder within 15 days from this date of order.
The opposite party is further directed to pay Rs.2000/- to the complainant towards the mental agony and harassment of the complainant within 15 days from the date of this order.
