The case of the complainant in brief is that the complainant, resident of Tinsukia had purchased a Truck bearing Registration No.AS-23/AC-1917 on 20.09.09 for the purpose of his business. Said vehicle ran different places outside District of Tinsukia. On 01.08.10 for the purpose of business his vehicle went to Dibrugarh and filled total 91 litres of diesel for a sum of Rs.3500/- from the filling station of OP No-2. Subsequently, after filling the said diesel from OP No.2 in the course of running the said vehicle got damaged to such an extent that the engine of the vehicle became unworkable and required to repair with the expenditure of Rs.34780/. The complainant on the next date i.e. 02.08.10 while found that the vehicle got damaged due to filling diesel from the OP No.2 he made enquiry of other vehicles who filled diesel from OP No.2 found all the vehicle got damaged. As such, he visited the place of OP and requested OP No.2 to repair his newly purchased  vehicle but the OP No.2 refused. The complainant on 04.08.10 sent his vehicle for repair at Micro diesel Pump Centre at Tinsukia and incurred an expenditure of Rs.24,997/-. On 05.08.10 Rs.5500/- and on 06.08.10 Rs.4283/- and altogether paid Rs.34780/- as result, the complainant suffered huge monetary loss in his business due to sudden halt of the vehicle and also for the damage of the engine for filling defective diesel from OP No-2. Thus, it is clear that due to filling inferior quality of diesel on 01.08.10 from the filling station of the OP No.2 is amount to negligence and deficiency in service on the part of OPs for which the complainant claims Rs.34,780/- for total repairing charge of the vehicle, Rs.3500/- for expenditure incurred in filling the fuel, compensation of Rs.50,000/- for mental harassment and agony and Rs.1,00,000/- for compensation for loss of earning and cost of the suit.

            After registering the case notices were issued to the OPs No. 1 and 2 who have contested the case by filing separate written statements. OP No.2 in his written statement stated inter-alia that the case is not maintainable in law as well as in fact and there is no deficiency on the part of OP No-2. Further, OP No.2 stated that the complainant has not filed any documentary evidence to show that the vehicle of the complainant was damaged by the diesel of the OPs. Complainant has also not filed any certificate from any recognised or registered servicing centre to the effect that the engine of the vehicle of the complainant was damaged due to the filling diesel of the OP.  Further, there is no any analysis report filed by the complainant from any Government Department or from any other expert. The complainant has also not mentioned the actual date of damage of the vehicle as the complainant has filled  91 litres of diesel on 01.08.10 and thereafter he ran his vehicle. The complainant never visited the place of OP No-2 and requested to repair the vehicle for damage of the engine. The vehicle of the complainant was damaged due to negligence and lack of maintenance from the side of the complainant and not for diesel. In absence of any certificate or report of expert it cannot be ascertained that the engine of the vehicle was damaged due to filling of diesel in the filling station of OP No-2. As such, there is no deficiency in service on the part of OP No-2 for which the claim petition of the complainant is liable to be dismissed.

               OP No.1 in his written statement stated that the complainant is not a consumer within the definition of ‘consumer’ as defined U/s. 2 (1) (d) of the Consumer Protection Act, 1986 as the complainant has not purchased diesel from this OP No-1. Now the complainant has filed this claim petition against OP No.1 without any basis with a malafide intention, to tarnish the trade name of this OP. It is further submitted that as per Motor Spirits and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractice) Order, 2005 the dealer is supposed to inspect the tank of the truck in which he receives the product to ensure that quantity and quality of the product is as per delivery documents issued and the quality of the product conforms to the requirements of the Bureau of Indian Standard specification for Motor Spirits and High Speed Diesel respectively as per norms specified in the said control order. It is a product delivered to the dealer i.e. OP No.2 at the terminal of OP No.1 where after the same are transported by the dealer to the retail outlet as such, the quality of diesel supply by this OP to OP No.2 is conforming to the relevant standard as prescribed by the aforesaid control order. The complaint petition, in absence of, any merit and material evidence against this OP the same is liable to be dismissed with cost.

          In this case complainant gave his evidence by swearing affidavit and exhibited 4 (four) documents in support of his case. On the other hand, OP No.1 and 2 examined Sri Gokul Swargiary and Smti. Manisha Borgohain respectively as DW-1 and DW-2 and exhibited no documents to rebut the case of the complainant.

DISCUSSION, DECISION AND REASONS THEREOF:

         Upon going through the evidence and the documents submitted by the complainant and OPs it is found that the complainant is the businessman of Tinsukia who purchased a Truck bearing Registration No.AS-23/AC-1917 dated 28.09.09. Said vehicle runs different places for the business purpose. On 01.08.2010 for business purpose his aforesaid vehicle went to Dibrugarh and filled 91 litres of diesel in the filling station of OP No.2 for a sum of Rs.3,500/- vide Ext-1 Cash Memo. Subsequently, after filling the said diesel the engine of the Truck got totally damaged. As such, on the next day i.e. on 02.08.2010 he made an enquiry of other vehicles who filled fuel from the OP No.2 and found that  the other vehicles also got damaged for filling fuel i.e. diesel from OP No-2. The complainant had to incur expenses of Rs.34,780/- for the repairing of the damaged engine vide Ext.2,3 and 4. He suffered huge monetary losses in his business due to sudden halt of the vehicle for damage and repairing. As such, the complainant approached before the OP No.2 with request for compensation and repairing which he refused. The OPs, accordingly, committed deficiency in service by selling defective oil/ diesel. In this case the complainant furnished 4 documents in support of his case. Ext-1 is the Cash Memo by which he purchased or filled diesel from filling station of OP No-2 and Ext.2,3 and 4 are the Cash Memos by which he repaired his  vehicle.

        Now the question is whether the complainant could prove  his case by leading above evidence by swearing affidavit as well as documents as above submitted by him ?

          Be it mention here that, it is settled principle of law that in order to succeed,  the case of the complainant, he has not only to alleged the nature of defect  or impurity of the diesel but also to prove the same by leading evidence including the expert evidence. In this case first of all, it is to be mention here that complainant has deliberately avoided to mention the specific nature of the defect in the diesel. In this case no better position is spelled out in the affidavit filed by the complainant. Apart from that, the complainant has not led any expert evidence that the diesel was of inferior quality. The complainant has failed to produce any other documentary evidence to show that his vehicle was damaged due to filling diesel at filling station of OP No.2. Also has not filed any certificate from any recognised or registered servicing centre to the effect that the engine of the said vehicle was damaged due to filling the diesel of the OPs. There is also no any analysis report filed by the complainant from any concerned Government Department that the oil of the OP No.1 filled at OP No.2 are defective. The complainant has neither collected nor submitted any analysis report of the sample of the oil/ diesel of the OPs to show that the diesel was not of standard quality or inferior quality as a result of which the vehicle of the complainant damaged. In addition to these, it is to be mentioned here that the complainant has also failed furnish any document or certificate from the Servicing Centre or Garage, where the vehicle was repaired to ascertain that the vehicle was damaged due to the use of defective or inferior quality of the  diesel of the OPs.

           It is pertinent to mention herewith that the complainant has filed a complaint before Deputy Commissioner, Dibrugarh regard the inferior quality of the diesel of the OPs and Deputy Commissioner suspended/cancelled the retail licence of the OP No-2. On this the OP No.2 preferred an appeal before the Commissioner of Upper Assam Division, Jorhat who after due consideration of relevant documents and order passed by learned Deputy Commissioner, Dibrugarh and analysis of the 3 report of conducted by Deputy Commissioner, Dibrugarh observed as under : (documents though not exhibited by OP but submitted with written statement which is available with the record)

“ On analysis of the 3 reports it is observed that the cancellation order passed by the learned Deputy Commissioner, Dibrugarh was based on the test report No.2 which was undertaken on the sample collected from M/s R.D. Filling Station. As the sample contained water as 0.25 and sediment 3.52 against 0.05 maximum as per BS II specifications. But at the same time the learned Deputy Commissioner did not consider  the test report in respect of the sample collected from the fuel tank of the vehicle No.AS 23-AC 1917 which contained water as high as 38 against 0.05 maximum as per BS II specifications. The enquiry conducted by the Deputy Commissioner, Dibrugarh   was based on the complaint received from the owner of this vehicle who allegedly bought diesel from M/s. R.D. Filling Station. It appears that the vehicle owner mischievously lodged complaint against M/s. R.D. Filling Station. It is also observed that the Deputy Commissioner could not examine at the  test report in respect of the sample collected from the consignment which was decanted on 1.8.2010 as only 110 ml. sample could be collected. As such the test could not be carried out in respect of water content, sediment, etc. of the H.S.D. under reference procured by M/s. R.D. Filling Station. The deputy commissioner, however, without ascertaining the source of water content and sediment found in the sample of M/s. R.D. Filling Station concluded that the owner of the filling station indulged in malpractices. From the test report concerning the sample collected from M/s. R.D. Filling Station, it is observed that the density of the sample is within the required limit as per BS II specifications.

                Since it will not be possible to say definitely that M/s. R.D. Filling Station on its own added water to its stock of HSD, it cannot be said without any doubt that M/s. R.d. Filling station indulged in malpractices. As such the cancellation order passed by the learned Deputy Commissioner, Dibrugarh on the basis of malpractices cannot be accepted. As such, this order is liable to be quashed. The learned Deputy Commissioner, Dibrugarh will ensure that the trade licence of the appellant be revived with immediate  effect so that the resumption of sale of HSD by M/s. R.D. Filling Station, Tekela Chiring Gaon, Dibrugarh can be taken up immediately.”

     From the above observation it appears clear that Deputy Commissioner based on test report No.2 which was  undertaken on the sample collected from M/s R.D. Filling Station without ascertaining that the source of the water content and sediment, hold the sample of OP No.2 adulterated  and concluded that OP No.2 indulged in malpractice though the density of the sample was within the required limit as per BS II specification.

          In view of the above we could observe that the complaint is not supported with sufficient evidence and, therefore, the  complainant has failed to prove the allegation made against OPs. Though  it is admitted that the complainant had purchased diesel and got repaired his vehicle but the Cash Memo produced in proof of purchase of diesel and the  Cash Memos of repairing of the vehicle do not show that the diesel is inferior quality. Though Deputy Commissioner, Dibrugarh suspended or cancelled the retail licence but on appeal Commissioner of Upper Assam Division, Jorhat quashed the cancellation order and allowed to revive the trade licence of the OPs on the ground of sample being within the required limit as per BS II specification.

         We shall not hesitate to express our view that the vehicle was damaged due to negligence and lack of maintenance from his own parts. Our opinion is based on the fact narrated and the evidence led by the complainant itself.

         For the above reasons, this Forum came to the conclusion that the complaint filed by the complainant is liable to be dismiss. Accordingly, the case is dismissed without cost.