The case of the complainant in brief is that the complainant No.1 is the registered owner of a TATA Winger bearing Registration No.AS 06 F/9240 and entrusted the vehicle to the complainant No-2 for running the said vehicle. The vehicle used to carry passenger and earns about Rs.1800/- per day. On 01.08.10 the complainant filled diesel at the filling station of OP No.2 for a sum of Rs.1000/-. After filling the diesel at the filling station of OP No.2 the vehicle of the complainant started malfunctioning for which the complainant took the vehicle to a mechanic  for repairing. While he brought the vehicle to the mechanic who informed him that his engine and other parts of the vehicle were damaged due to filling diesel of the OP No.1 at filling station of OP No-2. As such,  the complainants immediately rushed to the OP No.2 for compensation and repairing of the vehicle. But OP No.2 flatly refused to provide any compensation and  cost of repairing. The complainants finding no other alternative repaired the said vehicle at their own cost at Rs.24355/-. Meanwhile, the vehicle remains idle for about 24 days causing loss of earning. The complainant had to suffer monetary loss, mental stress and agony due to the inferior quality of the diesel which was filled at the filling station of OP No-2. From the above facts it is clear that there is negligence on the part of OPs by selling inferior quality of diesel which is amount to deficiency in service on the part of OP No.1 and 2. As such, the complainant claim Rs.24355/- for total repairing of the vehicle. Rs1000/- for expenditure incurred in filling the fuel, Rs.43200/- for loss of earning in 24 days, compensation for physical and mental harassment and with cost.

            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 OPs.  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  diesel for Rs.1000/- 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 inter alia 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. 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 6 (six) 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:

     Complainant No.2 Bireswar Gogoi in his  evidence stated that the complainant No.1 is the registered owner of a TATA winger vehicle bearing Registration No.AS 06 F/9240 and entrusted him for running the said vehicle. The vehicle was engaged in the business for commuting passengers and earn about Rs.2000/- per day. On 01.08.10 the vehicle in as usual course filled diesel for Rs.1000/- at the filling station of OP No-2 vide Ext-1, the Cash Memo. After filling the diesel from OP No.2 the vehicle started malfunctioning for which the vehicle was taken to the mechanic for repairing. While the vehicle was taken to the mechanic the mechanic informed him that the engine and other parts of the vehicle were damaged due to the diesel filled at the filling station of OP No-2. The complainant made an attempt to get compensation and repairing charge from OP No-2 but he refused. Finding no other alternative, the PW-1 replaced the parts of the engine and repaired  the engine by incurring expenses for an amount of Rs.24,355/- and Ext.2,3,4,5,6 are the repairing bill and cash memos.

        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. The Cash Memos of purchasing diesel and repairing of the vehicle is not enough to show that the diesel purchased from OP No.2 is defective or inferior quality.  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 which he filled at the filling station of OP No.2  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 to 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 reports 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.