SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 12 of Consumer Protection Act, seeking to get an order directing opposite party to pay Rs.50,000/- towards compensation to the complainant, alleging deficiency in service on the part of opposite party in rendering service to complainant as a result she suffered mental agony and harassment.
Case of complainant is that complainant is a retired employee as superintendent (additional chief Judicial Magistrate court) for almost 35 years service, living alone. The complainant is a consumer of OP vide consumer number 2247 since 2012 and it is about 3km from the house of complainant. Complainant availed 10 cylinders from OP during the period from 07/10/2017 to 04/11/2019. For each cylinder OP levied 30 rupees excess form the bill amount. Complainant made booking through online for the supply of a filled gas cylinder with the OP, on 20/12/2019. On 02/11/2019 an employee claimed to be of the company came to her house for inspecting the cylinder to be safe and informed the gas cylinder tube should be changed and received Rs.236/- as fee from her. As per the instruction complainant had replaced the tube with a new one. Complainant submitted that normally OP delivered gas cylinder within one week after booking. But OP has not delivered the gas till 03/02/2020. Further stated that on 03/02/2020 when she contacted the office of OP, complainant got information that the gas connection of complainant was blocked due to non-replacing the gas tube and informed to purchase the tube from OP’s office. Though she had told about the change of tube and made many requests for the delivery of the filled gas cylinder, OP had not delivered new filled gas cylinder. Complainant pleaded that she had booked again on 12/02/2020 as per the instruction of OP and on 13/02/2020 OP had delivered new cylinder. Complainant alleged that the non-supply of a newly filled gas cylinder was due to non purchasing of cylinder tube from OP. Complainant has stated that there was a delay of 24 days from the 1st booking. It was stated that on account of non-supply of a newly filled gas cylinder, she felt harassed. Complainant claimed compensation from OP due to the grievance of receiving excess amount than bill for the filled cylinder and also for the delay of 24 days of supply of new filled gas cylinder.
OP denied the allegation of the complainant about the receival of excess amount of Rs.30/- by the delivery boys. Further denied the averment of complainant about the booking for new filled cylinder on 20/12/2019. OP contended that complainant had booked the cylinder only on 12/02/2020 and cylinder was delivered on the next day 13/02/2020 itself. OP contended that complainant has taken connection on 2004 and hence, the safety tube should have been replaced within 5 years. But even on repeated requests by the delivery boys, complainant was not ready to exchange it with a new one. OP denied the allegation of complainant about the delay in supply of new filled gas cylinder. It was further submitted that normally the new filled gas cylinder being delivered within 2,3 days of booking. OP submitted that they have given instruction to change the old gas tube, with an intention to get rid of dangerous situations to complainant and neighbours. It was further submitted that the filled gas cylinder was delivered to the complainant without any delay and as such, there was no negligence or intentional default on the part of the OP. OP further submitted that the delivery boys of the OP had not collected excess amount than the bill amount to the filled gas cylinder supplied and as such also there was no negligence or deficiency on her part. Therefore complaint is liable to be dismissed.
Both sides led their evidence complainant has filed her chief affidavit and 9 documents. She has been examined as Pw1 and marked the documents as Ext.A1 to A9 series. OP has filed her chief affidavit and documents. She was examined as Dw1 and the documents were marked as Ext.B1 to B4. After that the learned counsels of the both parties made oral argument.
The 1st question that falls for determination is, as to whether, the delivery boy collected extra amount of Rs.30/- from the complainant at the time of delivery of filled gas cylinder and if so, whether OP is liable? The perusal of Ext.A2 series and A3 Diary, it is seen that complainant has written in each bills in Ext.A2 series and the relevant pages in Ext.A3 personal diary of complainant that she had paid extra 30 rupees to delivery boys for each filled cylinder delivered to her. OPs learned counsel vehemently denied the said allegation of the complainant and also the entries in Ext.A2 series bills of OP as well as in Ext.A3 diary. The learned counsel of OP submitted that in Ext.A2 series the complainant herself has written which she has admitted during examination time. OP’s counsel further stated that the entries made in Ext.A2 series are fraudulently made by the complainant without any reality. Further submitted that the entries made by complainant in Ext.A3 the personal diary kept by complainant also cannot be believed because the 1st and last page of Ext.A3 are of 2016. So entries in Ext.A3 also made by the complainant recently for production of evidence to support her case. The learned counsel of OP argued that so Ext.A2 series and ext.A3 cannot be accepted and does not support complainant’s first allegation about receipt of extra amount of Rs.30 by the delivery boys for supply of each filled cylinder.
On verification of Ext.A3 the personal diary of complainant, we can reveal the entries made in the diary started from 31/12/2015 and there is continuation of entries for each and every expenses incurred to the complainant in the subsequent each days till 07/12/2019. It is true that the last page of Ext.A3 contains the expenses of 2016. But on keen perusal it is revealed that, the entry was made for the details of expense happened to her on that particular date. Moreover the entry made of receival of extra amout for cylinder of reach day is tallied with Ext.A2 series. We cannot see any additional entry inserted on the expenses noted in the particular date. Further admitted fact that the handwriting in Ext.A3 belongs to the complainant. So considering the above said facts, there is no reason to disbelieve and discard the Ext.A3 and also the amount noted by the complainant in Ext.A2 series bills. Hence it is clearly evident that the delivery boys collected extra Rs.30 for each cylinder delivered to the complainant. More over during cross-examination time OP’s counsel asked such a question to Pw1. It is further an admitted fact that the distance between the complainant’s house and OP’s office is of within 2-3 Km. Hence collection of extra amount of Rs.30 for each cylinder is a deficiency in service on the part of delivery boys. It is admitted that the delivery boys are the employees of OP. So there is vicarious liability held on the OP for the deficient service of her employee. Thus the 1st allegation of complainant is found in favour of complainant.
The next question, that fall for determination, is, as to whether there was deficiency in service on the part of the OP, in committing delay in delivery of refilled gas cylinder, as a result where of the complainant was harassed. Admittedly, the complainant is a consumer of the OP vide consumer number 2247. Here there is a dispute regarding date of booking made by the complainant for the supply of a filled gas cylinder with the OP on 20/12/2019. Complainant alleged that she had booked the disputed gas cylinder on 20/12/2019 but the filled cylinder was delivered only after 24 days, despite of repeated requests and change of gas tube with new one and also she had to book again on 12/02/2020 as per the instruction of OP. On the other hand OP submitted that there was no delay in supply of the disputed new refilled gas cylinder to the complainant. According to OP, the averment of complainant about booking on 20/12/2019 is not correct. According to OP, complainant made booking on 12/02/2020 and the cylinder was delivered on the next day itself ie on 13/02/2020. So there is no delay happened from the side of OP in supply of the disputed gas cylinder.
Here OP raised a contention that since the complainant has not changed the gas tube as per the company’s instruction, she had been blocked in the system from delivering new filled gas cylinder. But from the evidence of Dw1 is page (3) Ext.A5 report ൽ ട്യൂബ് പഴക്കമുള്ളതായി പറഞ്ഞിട്ടുണ്ടോ? ഇല്ല. Ext.A5 ൽ C2 പ്രകാരം rubber tube െൻറ പഴക്കം 1½ വർഷത്തിൽ കുറവാണോ? “അതെ” എന്ന് ഉത്തരം Indian standard അംഗീകൃതമാണോ എന്ന് C1 ൽ കാണുന്നതിന്? “അതെ” എന്ന് ഉത്തരം കൊടുത്തിട്ടുണ്ട്. പരാതിക്കാരി ഉപയോഗിച്ച rubber tube ന് 5 വർഷത്തെ പഴക്കവും ഇല്ല BIS അംഗീകൃതവുമാണ് എന്നാണ്? അതെ. ഇതിെൻറ കോപ്പി നിങ്ങളുടെ കൈവശം ഉണ്ട്? ഉണ്ട്.
Hence from the evidence of Dw1 it is clearly evident that the above said contention of OP is not correct and the complainant had changed to new standard one as recommended by the company. Moreover OP failed to produce any evidence to show that complainant was blocked in the system by the company to supply new filled cylinder.
So though complainant has not produced any evidence to show that she had booked on 20/12/2019 for getting new gas filled cylinder, from the circumstances of this case and from the aforesaid contentions of OP, it is clear that there was delay from the side of OP in supplying gas cylinder. This means that there was negligence on the part of the OP. The OP was thus clearly deficient, in rendering service to the complainant, a retired officer aged 73 years, living alone having health issues, as a result where of she suffered a lot of mental agony and harassment. The news paper publications submitted from the side of both parties cannot be treated as evidence in support of each parities pleading without proving the authenticity of the news published.
From the facts and circumstances of this case, since there is evident that there is deficiency in service on the part of OP, complainant is entitled to get relief.
In the result complaint is allowed in part. Opposite party is directed to pay Rs.25,000/- to complainant as compensation for the mental agony and harassment to the complainant due to deficiency in-service in service of opposite party. Opposite party is further directed to pay Rs.5,000/- as cost of the proceedings. Opposite party shall comply the order within one month from the date of receipt of the order. Failing which the awarded amount Rs.25,000/- carries interest @ 9% per annum from the date of order till realization. complainant is at liberty to file execution application against OP for executing the order as per the provisions in Consumer Protection Act 2019.
Exts.
A1- Subscription voucher (marked with objection)
A2 (series)- Bills (10 in numbers)
A3 – Personal diary
A3(a) – Date and payment of gas
A4 – Customer card (marked with objection)
A5 – Inspection notice & receipt
A6 – E-mail copy
A7(series) – Letter to BSNL and reply
A8(series) – Newspaper quoting (5 in numbers)
A9(series) – Newspaper quoting “CBI raid on gas agency”(6 in numbers)
B1-Journal (objected by complainant)
B2-Report published by Mathrubhumi (objected by complainant counsel)
B3-Desabhimani report (objected by complainant counsel)
B4-Certified copy of High court order
Pw1-Complainant
Dw1-OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
