Order No. 7 date: 25-07-2017

Sri Shyamal Gupta, Member

This Appeal arises out of the Order dated 25-01-2016 passed by the Ld. District Forum, North 24 Parganas in C.C. No. 527/2015 whereof the complaint has been allowed.

Briefly narrated, case of the Complainant is that he received an LPG cylinder from the OP No. 1 on 31-03-2015.  At the time of delivery of the said cylinder, its seal was intact.  On 11-04-2015, when the said cylinder was put to use, the weight of the cylinder appeared quite less and so a complaint was lodged with the OP No. 1. On checking, it was found that the weight of the cylinder was 17 kg.  Allegedly, despite this the OP No. 1 did not replace the underweight cylinder.  Complaint to the OP No. 2 also did not yield any positive result.  Hence, the complaint.

OPs did not contest the case.  So, the matter was heard ex parte and the case was allowed.

Decision with reasons

It is stated by the Appellant that as per prevailing procedure and practice of Indian Oil and also to protect the interest of consumers, in case any defect is found with the cylinder, the same is immediately replaced to the customer after observation of certain procedure.  In order to ensure this, SQC (Statistical Quality Check) system is strictly followed at the Plant of the Respondent No. 2 and also at the end of the Appellant.  It is further claimed that it is carrying 100% SQC at the time of receipt of cylinders from the Plant as per prevailing guideline and procedure  being unveiled by the Respondent No. 2 and in case any cylinder is found defective during such checking, the same is returned to the Respondent No. 2 through the same truck.  Not only that, it is claimed by the Appellant that it also carries out 100% pre-delivery checks  and in case any cylinder is found defective, the same is taken back to the godown for onward return to the Respondent No. 2.  Claiming that there was no deviation in respect of the disputed cylinder as well, it is alleged that the Respondent No. 1 with a mala fide intention filed the complaint.

Heard the Ld. Advocate who represented the Appellant and also the Authorized representative of the Respondent No. 1.

It is stated by the Appellant that it is 100% SQC compliant.  However, no tangible proof is forthcoming before us from its side to establish that the disputed cylinder was subjected to multiple checks at different levels before delivering the same to the end user. 

In fact, there is no explanation from the side of the Appellant as to why it does not equip its delivery men with portable weighing machine and voluntarily show the weight of cylinder to customers before delivering the same to them and obtain due acknowledgement to that effect to avoid unnecessary complications. 

Although it is claimed by the Appellant that the refill cylinder was supplied after checking of seal, weight etc. to the satisfaction of the Respondent No. 1 and the same was also acknowledged by the Respondent No. 1 who put his signature on the counter foil of cash memo, it is refuted by the Respondent No. 1 stating inter alia that he did so only to confirm receipt of the refill cylinder and nothing else. 

It is alleged by the Appellant in its Memo of Appeal that after discussing the matter with the Respondent No. 2, it asked the Respondent No. 1 to replace the disputed cylinder.  However, the Respondent No. 1 did not agree to such proposal. 

Going by the preponderance of probabilities, in absence of any cogent documentary proof to support such contention we find no reason to accept it as a gospel truth.  It is hardly believable that while the primary grudge of the Respondent No. 1 against the Appellant revolved over supply of underweight cylinder, he would not gladly accept such proposal.  Let us not forget that when his perseverance with the Appellant/Respondent No. 2 did not yield any positive result, the Respondent No. 1 initially approached the Department of Consumer Affairs & Fair Business Practices, Govt. of West Bengal knowing it fully well that they try and resolve disputes through mediation and under this mechanism, one does not get any compensation for the mental stress, agony etc. one has to endure whenever defects are found with the goods in question or deficiency in service occurs.  If the Respondent No. 1 had any mala fide intention, as alleged by the Appellant, he would straightway approached the Consumer Forum seeking monetary compensation against the Appellant and Respondent No. 2.  We strongly condemn such unethical endeavour on the part of the Appellant to cast aspirations on the sincerity of purpose of the Respondent No. 1 without any basis. 

On a thoughtful consideration of the material on record, we find nothing wrong with the decision of the Ld. District Forum which at its wisdom allowed the complaint.  Having said that it does seem to us that the Ld. District Forum has been too generous while allowing the complaint.  It is the settled position of law that compensation should be reasonable, lest it cause prejudice to the other side unfairly.  Accordingly, we tend to modify the same to some extent.

In the result, the Appeal succeeds in part.

Hence,

O R D E R E D

that A/333/2016 be and the same is allowed on contest in part.  The impugned order is modified as under.

The Appellant shall replace the defective cylinder free of cost within 45 days hence after collecting the defective cylinder from the residence of the Respondent No. 1.  Besides, the Appellant and the Respondent No. 2 shall jointly and severally pay a sum of Rs. 5,000/- and Rs. 2,000/- as compensation and litigation cost, respectively, within the aforesaid stipulated period by sending requisite DD to the residence of the Respondent No. 1, i.d., Respondent No. 1 shall be at liberty to execute the order in accordance with law.