BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.

Complaint no.229/14.

Date of instt.: 03.11.2014. 

                                                 Date of Decision: 04.09.2015.

Usha W/o Sh. Tainta @ Om Parkash, H.No.391, VPO Keorak, Tehsil & Distt. Kaithal (Haryana).

                                                        ……….Complainant.      

                                        Versus

1. Randhir Gas Agency, Karnal Road, near Secretariat Kaithal, Tehsil & Distt. Kaithal through its proprietor Randhir Singh.

2. Prrachi Gas Bottling Pvt. Ltd.1/11A, Om Heera Panna Shopping Mall, near Oshiwara Police Station, Andheri (West) Mumbai, 400053, through its Director.

..……..Opposite Parties.

COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.

Before:           Sh. Jagmal Singh, President.

                        Sh. Rajbir Singh, Member.

     Smt. Harisha Mehta, Member.

Present :        Sh. Ashok Tanwar, Advocate for complainant.

Sh. V.K.Manon, Advocate for the opposite party.No.1.

Op No.2 already abated.

                       ORDER

(JAGMAL SINGH, PRESIDENT).

                       The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he got a gas connection from the Op No.1 on 06.12.2012 for sum of Rs.4450/- vide receipt No.706.  It is alleged that after getting the gas connection, only two cylinders refilled by the Op No.1 on 28.03.2013 and 13.07.2013 and after this, the Op No.1 stopped to refill the cylinder of the complainant.  It is further alleged that the complainant approached the Op No.1 regarding refill of gas cylinder or to return the amount deposited by the complainant at the time of getting the gas connection but the Op No.1 did not do so.  This way, the Ops are deficient in service.  Hence, this complaint is filed.   

2.     Upon notice, the opposite party No.1 appeared before this forum, whereas correct address of Op No.2 was not filed by the complainant despite availing several opportunities as on the two addresses given by the complainant, notices were sent but it is reported on the notices that the Op No.2 had left the place, so, Op No.2 was abated by this Forum vide order dt. 24.04.2015.  Op no.1 filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; jurisdiction; that there involves complicated question of law and facts and for adjudication of which, only the civil court is the best platform; that the cylinders received from Op No.2 were given to the consumers with the surety that they can get it refilled after 21 days by depositing the empty cylinders in the company and further they will have to pay the price of gas filled in the cylinders.  The Ops used to send the cylinders to the company; that the agency was run by the Op No.1 under the administration and instructions of Op No.2, the Op No.1 was bound by every instruction of the Op No.2.  The Op No.1 is not authorized to act independently.  There is relationship of principal and agent between the answering Op and Op No.2.  The Op No.1 cannot be held liable for the lapse, misconduct or principal respondent No.2.  The Op No.2 supplied cylinders for 4-5 months and thereafter, supply was stopped and the empty cylinders sent by the answering Op to Op No.2 were also withheld; that under contract act, the principal is liable for the act of the agent and agent is not liable for the acts of the principal.  So, the complaint is totally against the principal of natural justice and provisions of Contract Act.  There is no deficiency in service on the part of answering Ops.  On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.    

3.     In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A and document Ex.C1 to C2 and closed evidence on 28.05.2015.  On the other hand, the Op No.1 tendered in evidence affidavit Ex.RW1/A and documents Ex.RA to RH and closed evidence on 11.08.2015.    

4.     We have heard ld. counsel for the complainant and Op No.1 and perused the case file carefully and minutely and have also gone through the evidence led by the parties.

5.     It is argued by ld. Counsel for the complainant that the complainant had got a gas connection from Op No.1, who is the authorized dealer of Op No.2 and the complainant had paid Rs.4450/- vide receipt No.706 dt. 06.12.2012 and the Op No.1 had issued a gas connection along with gas copy.  The copy of receipt is Ex.C1 and the photo-copy of gas copy is Ex.C2.  It is further argued that the Op No.1 only refilled the gas cylinder twice and thereafter, the Ops stopped to refill the empty cylinder and when the complainant approached the Op No.1 for refill of the cylinder, he lingered on the matter on one pretext or the other and ultimately refused to refill the same and on 14.10.2014, the Op No.1 has refused even to listen the complainant.  Ld. Counsel for the complainant stated that the Ops be directed to refill his cylinder regularly, otherwise, refund the total amount received from the complainant.  He also submitted a catena of authorities titled as Ram Naresh Sinha (Dr.) Vs. Amitabh Kumar & others, 2012(1) CPJ page 45 (NC); Biswananth Mukherjee Vs. West Bengal State Electricity Board & others, 2012(1) CPJ page 47 (NC); Bhoomi Gas Bottling Company Ltd. Vs. M.S. Moorthy & others, 2005(3) CPJ page 102 (Tamil Nadu State Commission); Dharam Chand Vs. M/s. Mandeep Gas Service, 1993(2) CPJ page 985 (Punjab State Commission) and AA BEE Resort and Travel Pvt. Ltd. Vs. Om Parkash Palia, 2015(2) CLT page 188 (Delhi State Commission).  On the other hand, the counsel for Op No.1 has argued that the Op No.2 advertised that they want to appoint agents for supply of filled gas cylinder to the consumers and Op No.1 was granted agency on deposit of security amount of Rs.10 lacs.  He further argued that in fact the gas connection was given to the complainant by Op No.2.  Now as the Op No.2 has absconded and gone underground, the Op No.1 could not supply the refilled gas cylinders because the same are to be supplied to Op No.1 by Op No.2.  He further argued that many FIRs have been registered throughout India against the Op No.2.  He also argued that the Op No.1 was the agent of Op No.2, the owner of Gas Company and Op No.1 is not liable for the acts of Op No.2.  It is further argued by ld. Counsel for the Op No.1 that the Op No.2 has cheated the Op No.1 as the Op No.2 supplied cylinders for 4-5 months and thereafter stopped the supply and gone underground.  Ld. Counsel for the Op No.1 submitted authorities titled as C.N. Anantharam Vs. M/s. Fiat India Ltd. & others bearing Special Leave Petition Nos.21178-21180 of 2009 decided by Hon’ble Supreme Court on 24.11.2010 and Elof Hansson (I) Pvt. Ltd. & others Vs. Shree Acids & Chemicals Ltd. bearing RFA (OS) No.17/2002 decided by Hon’ble High Court of Delhi on 30.01.2012.

6.          From the above facts and circumstances of the case, it is clear that the Op No.2 has granted an agency to the Op No.1 and Op No.1 was the authorized dealer of Op No.2.  The complainant had got the gas connection of Op No.2 through his authorized dealer Op No.1 after depositing an amount of Rs.4450/- vide receipt Ex.C1.  From the gas copy Ex.C2, it is clear that the complainant had paid Rs.2400/- for one cylinder on 06.12.2012 and the receipt Ex.C1 indicates that the complainant deposited Rs.4450/- and out of which the refundable amount was Rs.2400/- only.  The Op No.1 has not placed on the file any contract regarding the terms and conditions between the Ops No.1 and 2. So, the contention of Op No.1 that he being the agent is not liable to pay any compensation has no force.  In case titled as AA BEE Resort and Travel Pvt. Ltd. Vs. Om Parkash Palia (supra), Hon’ble Delhi State Commission held that the agent cannot escape from the liability.  The para No.13 of the same runs as under:-

        The other contention that the appellant is only an agent having booked the ticket for Airlines/Op No.2 is not liable to pay any compensation has also no force.  The appellant had sold the ticket on behalf of Delta Airlines i.e. Op No.2 as its booking agent.  In these circumstances, it cannot escape the liability.  The National Commission in Express Travel Vs. M.R. Shah III(2002) CPJ, NC has held that both travel agent and airlines are jointly and severally liable to pay compensation.

So, the Op No.1 of the case in hand cannot escape from his liability.  The authorities produced by the Op No.1 are not applicable to the facts of the present case.  Hence, there is deficiency in service and unfair trade practice on the part of Ops.

7.     Thus, in view of above discussion, we allow the complaint partly and order that the Ops are jointly and severally liable to pay Rs.2400/- the returnable amount to the complainant, subject to the condition that the complainant will return the cylinder taken at the time of gas connection.  The Ops are also burdened to pay Rs.2200/- as lump sum compensation on account of harassment, mental agony and costs of litigation charges.  Let the order be complied with within 30 days from the date of communication of this order, failing which, the complainant shall be entitled to interest @ 8% p.a. from the date of commencement of this order till its payment.  A copy of this order be sent to both the parties free of costs.  File be consigned to the record room after due compliance.

Announced.

Dt.04.09.2015.

                                                                (Jagmal Singh),

                                                                President.

                (Harisha Mehta),     (Rajbir Singh),       

                        Member.         Member.