Karnataka

Chitradurga

CC/30/2021

G.E.Sowbhagya Lakshmi D/o Eshwarappa, - Complainant(s)

Versus

Territory officer,Head of territory office, - Opp.Party(s)

Sri.Syed Swaleha

14 Jun 2023

ORDER

COMPLAINT FILED ON:31/03/2021

DISPOSED ON:14/06/2023

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

C.C.NO:30/2021

DATED: 14^th JUNE 2023

 

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                  Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER        

  Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER       

COMPLAINANT	G.E.Sowbhagya Lakshmi      D/o Eshwarappa,      Advocate and Agriculturist,      Aged about 55 years,      R/o Main Road,      Kondlahalli Village,      Molkalmuru Taluk.   (Rep by S.Syed Swaleha, Advocate)
V/s
OPPOSITE PARTIES	Territory Officer, Head of Territory Office,      Bharath Petroleum      Corporation Ltd.,      T.M. Retail, Mangalore,      Mangalore Coastal Installation,      Near APMC Yard, Off-NH-17,      Baikampadi-575011.   Sales Manager, Bharath Petroleum Corporation Ltd., Bharath Petroleum Pump, Near Sarojabai Kalyana Mantapa, Opp. Navin Hotel N.H-4, Chitradurga.   (Rep by K.A.Nagaraja Reddy, Advocate)

 

::ORDER::

 

By Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER.

 

 

        This is a complaint filed by the complainant Under Section 35  of the consumer protection Act 2019, seeking relief against the OP to return initial deposit amount of Rs.40,000/- application fee of Rs.8,000/- with accrued interest from the date of deposit till realization, along with compensation of Rs.2,00,000/- Lakhs towards inconvenience caused towards mental shock pain and agony and award such other relief as this commission deems fit.

 

2. The Brief facts of the complaint is as follows:

 

 

OP is authorized representative of Bharath Petroleum Limited, have called for application for opening of retail outlet / Dealership in the remote areas to install Petrol Pumps as per the advertisement which was issued to open retail outlet dealership at Kondlahalli Village, towards Molkalmuru (Gramapanchayath Limit) under open category advertised on 25/11/2018 by OP No.1. As per the advertisement complainant submitted her application along with application fee of Rs.8,000/- in favour of Bharath Petroleum Corporation Limited, along with necessary documents.  After receipt of documents and application fee opposite party No.1 has sent two letter dated 02/02/2019 stating that complainant has been declared as successful candidate in "DRAW OF LOTS" conducted on 30^th Jan 2019 for selection of RO dealership and further call upon the complainant to submit the documents and amount within 10 days.  After the receipt of the above letters complainant submitted required Additional documents and paid the initial security deposit amount of Rs.40,000/- that after obtaining of documents and initial security deposit amount, once again OP No.1 has issued a letter dated 25/02/2019 stating that as per the document submitted by complainant was not valid for considering the offered land under group 1.  In view of the same the complainant candidature has been found ineligible and complainant candidature may be  consider for selection along with group 3 applicants as per guidelines.

 

3. After receipt of letter dated 25/02/2019 complainant contracted OPs through letter correspondence as well as through mobile phone and personally visited the OPs several times to consider complainant candidature in group 1 allotment, but no fruitful result has come out from OPs side.  After several correspondence the OP1 have informed complainant that her candidature has been cancelled and thereafter got the knowledge of the same.  Further complainant has requested the OPs to reconsider the candidature of complainant but in spite of the same OPs have not considered complainant request.

 

4. OPs have informed complainants  candidature has been selected in the DRAW OF LOTS held on 30/01/2019 wherein the OPs have listed the candidates who are eligible for group 1 then within span of 20 days the complainant candidature was ineligible for group 1 is illegal one and listing of complainants candidature in group 3 is against to the law of land, this act of the OPs clearly shows they have failed to perform their part of contract.  Thereafter complainant approached OPs for several times and also issued a legal notice by way of R.P.A.D on 29/12/2020 to OP through their council calling upon the OPs for return of the amount.  Though the notice was duly served on the OPs but OPs have not rectified their deficiency in service nor they have come forward to return the amount hence alleging deficiency in service on the part of the OPs complainant have filed this present complaint.

 

5. After issuance of notice to OPs, OPs appeared through their counsel and have filed version in the version OP 1 and 2 have contended that complaint is not maintainable either in law or on facts.  OPs are working under Bharath Petroleum Corporation Limited, Mangalore Territory Office.  The 3 oil marketing companies working under the agencies of government of India vide advertisement dated 25/11/2018 called for selection of dealer for regular and rural retail outlets for various locations in India including the state of Karnataka.  The complainant is one of the applicant for the location Kondlahalli Village, Molkalmuru (Gramapanchayat Limit) Chitradurga District., advertised under open category.  Complainant submitted online application on 17/12/2018.

 

6. All 3 oil companies have adopted uniform procedure for selection of dealers and the oil companies in this regard hosted guidelines for selection brochure in company website also advised for the applicants to go through the brochure carefully before filling up their application form and the brochure can be downloaded from the website of OMC'S free of cost.  Present selection was made on the lines of brochure for selection of dealer for regular and rural retail outlets dated 24/11/2018.  Before submitting application each applicant should go through the stipulations, notes and instructions given in the application form advertisement as well as brochure for selection dated 24/11/2018.  Accordingly complainant participated in the present selection process after going through the stipulations contained in the brochure for selection and thereby accepting the same.

 

      Applicant under Group 1 is required to "own Land". Further each applicant should have a confirmatory letter from an advocate (Appendix-1118) giving details of the current ownership, documents relied upon and the category under which the land falls (Group 1 or 2) before submitting the application. This instruction are also mentioned as NOTE in point No.13 in the application form, which is mandatory in nature. The applicant also has given undertaking as per Point No. 15 of the application.

 

     ELIGIBILITY CRITERIA FOR INDIVIDUAL APPLICANTS PROPRIETORSHIP/PARTNERSHIP:

 

Common Eligibility Criteria for all Categories applying as Individual (as on date of application unless mentioned otherwise) (v) Land (Applicable to all categories):

 

     The applicants would be classified into three groups as mentioned below based on the Land offered or land not offered by them in the application form:-

 

 

Group 1: Applicants having suitable piece of Land in the advertised Location/area either by way of ownership / Long term lease for a period of minimum 19 years 11 months or as advertised by the OMC.

 

Group 2: Applicants having Firm offer for a suitable piece of Land for purchase or Long term Lease for a period of minimum 19 years 11 months or as advertised by the OMC.

 

Group 3: Applicants who have not offered Land in the application.

 

      In case Land offered by all the applicants under Group 1 & Group 2 is found not suitable/not meeting requirements, then these applicant/s under Group 1 & Group 2 along with applicants under Group 3 (who did not offer Land along with application) would be advised by the OMCS to provide suitable Land in the advertised Location/stretch, within a period of 3 months from the date of issuance of intimation Letter to them through SMS/e-mail. In case the applicant fails to provide suitable Land within the prescribed period or the Land provided is found not meeting the laid down criteria, the application would be rejected.

 

The other conditions with respect to offering of Land are as under:-

 

The eligibility of applicant with regard to the land (Group 1 or Group 2) will be decided by Oil Company with reference to a confirmatory Letter from an advocate (Appendix III B) to be arranged by the applicant.

 

      Each applicant will have to declare, in the application form, the category under which offered Land falls. Supporting the above, confirmatory Letter from an advocate (Appendix III 8) giving details of the current ownership, documents, relied upon and the category under which the Land falls (Group 1 or Group 2), as on date of application, is also to be furnished as and when advised.  The Group under which the  applicant's Land falls, would be determined based on the declaration given in the application and confirmatory letter from the  advocate regarding the same."

 

Clause 12 of the Brochure for selection dated 25/11/2018, it has been clearly been mentioned that the application fee is Non Refundable.  The procedure for selection of dealer at the location where the complainant applied is made through Draw of lots.

 

Procedure for selection of the eligible candidate by the oil Company as stipulated in the Brochure for Selection dated 24.11.2018 is as follows:

 

a. Listing of the candidates is done under Group -1 or Group 2 relying on the information and declarations submitted by the applicant in their application form, if the applicant mentioned Group-1 then their application is considered or evaluated under Group-1, if applicant mentioned Group-2 then their application is considered or evaluated under Group-2, the mentioning of Group -1 or Group-2 by the applicant entirely depends on the confirmatory letter issued by the advocate as on the date of application or prior to submitting the application. Hence the confirmatory letter of an advocate cannot be beyond the date of application and any deficiency in the letter is not rectifiable.

 

b. As per the Brochure for Selection dated 24.11.2018 Group 1 candidate are given first preference in selection process.  All Group 1 candidates are then informed to attend the draw of lots procedure. Draw of lots done in-front of the attended candidates under Group- 1 for that location. The successful candidate in the Draw of lots is then intimated about their selection in the Draw of Lots on that day through given email ID of the candidate and also through letter to the given address of the candidate. Also it is intimated to the selected candidate to pay 18% of the ISO (Initial Security Deposit) within stipulated time to scrutinize the application and the documents submitted by the candidate and also to submit the required documents as required under the Brochure for selection dated 24.11.2018. As per clause 28 sub-clause (145) the ISO amount would be forfeited if the selected candidate is found ineligible during the selection process at any stage except for rejection of land. ASC (Application Scrutiny Committee) after receipt of 18%  inspects or scrutinizes the documents, letters and affidavits submitted by the selected candidate. While scrutiny if deficiency is noticed by the committee, if they are rectifiable then candidate is informed to submit rectified one, if they are not rectifiable then the candidature under Group -1 is rejected and such candidate is considered under Group -3. (Group requires just submission of application only, under Group 3 there is no need of advocate confirmatory letter or detail of land).

 

      7. Procedure for selection was informed about the provision selection and also complainant deposited the ISD amount and documents required under the brochure for selection.  Accordingly complainant submitted Rs.40,000/- as ISD amount.  Complainant submitted the (Appendix III B ) confirmatory letter from the advocate by name Sri. G.C.Mallikarjuna dated 19/12/2018 which was beyond the date of application but not within the date of  application i.e., 17/12/2018. 

 

8. The confirmatory letter by on Advocate is mandatory before submitting application the applicant has to fill the application based on the confirmatory letter issued by an Advocate.  On this ground the candidature of the complainant was listed under group 3 as the confirmatory letter of Advocate is beyond the date of application which is not rectifiable one.  The candidature of complainant was rejected under group 1 and the same was intimated to the complainant vide email dated 25/02/2019 that his candidature is rejected under the group 1 and would not be considered under group 3.  Also the ISD amount deposited was forfeited as per class 20 sub class 3.  Further, it is contended that there is no consumer service provider relationship between complainant and OP and therefore the question of deficiency against the OP would not arise.  Complaint filed before this Hon'ble Commission is not maintainable as the complainant is not a consumer and there is no contractual liability exists between the complainant and the opposite parties, the relief sought before this Hon'ble Commission and the relief prayed before the Hon'ble High Court of Karnataka at Bangalore in W.P. No.13924/2019 (GM-Res) are contrary to each other.  Further denies all other allegations made in the complaint and hence OP 1 & 2 Prays to dismiss the complaint with exemplary cost.

 

9. Affidavit evidence of complainant is filed reiterating the facts mentioned in the complaint and got marked Exhibit A-1 to A-6 and closed their side evidence.

 

10. Affidavit evidence of OPs is filed.  On behalf of the OPs Affidavit evidence is filed by one Sri V.Chandrakanth Naik, sales officer, Barath Petroleum Corporation Limited, Chitradurga and have also filed affidavit evidence on behalf OP No.1 as he is fully conversant with the facts of the case and got marked Exhibits B-1 to B-4 and closed their side evidence.

 

11. Written arguments of complainant is filed.  Heard the arguments of OPs and argument of complainants is taken as heard.

 

 

12. Points that arise for our consideration are as follows:-

1. Whether complainant proves deficiency in service on the part of the OP?
2. Whether complainant is entitled for the relief as sought in the complaint?
3. What Order?

 

13. Our answers to the above points are as follows:

1. Negative

2. Negative

3. As per final Order 

:: REASONS ::

       14. It is admitted by both parties that OP is authorized representative of Barath Petroleum Corporation Limited, had called for application for opening of retail outlet / Dealership in the remote areas to install petrol pumps as per the advertisement issued to open retail outlet / Dealership at Kondlahalli Village, Molkalmuru Grampanchayath limit under open category advertised on 25/11/2018 complainant submitted application along with application fee of Rs.8,000/- along with all necessary documents to OP No.1 and after receipt of the documents and application fee OP 1 has sent letter dated 02/02/2019 stating that complainant has been declared as successful candidate in DRAW OF LOTS conducted on 30^th Jan 2019 and further, OPs called upon the complainant to submit the relevant documents within 10 days from the date of intimation.  After which complainant submitted required additional documents and paid initial security deposit of Rs.40,000/-.  After the receipt of same OP 1 had issued a letter dated 25/02/2019 stating that document submitted by the complainant was not valid as the offered land don't fall under group 1 category in view of the same the complainants candidature was not considered for selection for the retail outlet /Dealership as per the guidelines of the OPs.  Now the crux of the matter is to consider whether there is any deficiency in not considering the complainant candidature for selection of opening of retail outlet / Dealership by the OPs?  OPs are working under Barath Petroleum Corporation Limited, Mangalore Territory Office.  The Indian Oil Corporation, Bharath Petroleum Corporation and Hindustan Petroleum Corporation, this 3 oil marketing companies working under the agencies of Government of India as per Exhibit B-1, to their advertisement dated 25/11/2018.  Complainant was one of the applicant for the location Kondlahalli Village, under open category complainant has submitted online application on 17/12/2019.  All the 3 oil company have adopted uniform procedure for selection of dealers and in this regard OPs hosted guidelines for selection in company website and also advised the applicants to go through the brochure before filling of the application form and their brochure was left in the website to download the same in the website of OMCS at free of cost.

 

       The present selection was made in line of brochure for selection of dealer for regular and rural outlets dated 24/11/2018.  Before submitting the application every applicant should go through the stipulations instructions given in the application form.  According to said instructions complainant participated in the present selection process after accepting the terms and conditions of the brochure of the OP as per Exhibit A-3.  As complainant was selected for group 1 and was required to own land and should have produced a confirmatory letter from an advocate.  The land offered by the complainant under group 1, group 2 and group 3 was not found suitable for meeting requirements as advised by the OMCS to provide suitable land in the advertised location within the period of 3 month from the date of issuance of the  intimation letter.  As the complainant failed to provide suitable land meeting the laid down criteria further as the complainant fall under the group 1 category it was bounden duty of the complainant to provide suitable land along with confirmatory letter issued by an advocate which should be well within the date of application or prior submitting the application, here the complainant alleges that he had eligible criteria and have submitted confirmatory letter well within date of application.  But complainant have not produced any cogent document to affirm the same.  And also as per clause 28 sub clause 145 the (ISO) initial security deposit amount would be forfeited if the selected candidate is found ineligible during the selection process. Further complainant was listed under group 3 as a confirmatory letter of advocate is beyond the date of application which was not rectifiable. Complainant states that he has obtained confirmatory letter from advocate dated 19/12/2018 which is beyond the date of application but not within the application date i.e, 17/12/2018 as such complainant candidature was rejected under group 1 and group 3 and the same was intimated to the complainant by email dated 25/02/2019.  Initial Security Deposit (ISD) amount deposited was also forfeited as per clause 20 sub clause 3.  Moreover granting of the dealership by the OPs is a prerogative power and also the said application should be supported by the required documents as per the terms and conditions of the brochure uploaded by the OPs. The parties to the contract should strictly adhere to the terms and conditions of the contract and can't alter terms and conditions according to their whims and fancies.   Further complainant have also filed Writ Petition before the Hon'ble High Court of Karnataka in W.P. NO.13924/2019 which is pending before Hon'ble High Court of Karnataka at Bangalore for adjudication.  Moreover complainants have also suppressed the said fact in his complaint before this Commission.  When complainant himself have approached Hon'ble High Court of Karnataka to consider the candidature and approaching through this complaint before this commission and praying for return of Initial Security Deposit (ISD) amount does not arise as the writ is pending for adjudication, as the complainant has prayed for stay of further proceedings for the location in the said Writ Petition.  Now the OPs cannot take any further action which may amount to contempt of court.  All this facts reveals that complainant have not approached this commission with clean hands.  One who seeks equity must do equity. Complainant have also failed to produced any cogent documents to show that the selection of RO Dealership was not conducted properly by producing any document to show the same.  Hence complainant have utterly failed to prove deficiency in service on the part of the OP accordingly we answer point No.1 and 2 in the negative.

 

15. For the foregoing reasons we proceed to pass the following order.        

:: ORDER ::

Complaint filed by the complainant Under Section 35 the Consumer Protection Act 2019 is hereby dismissed.  No order as to cost.

Supply free copy of this order to both the parties.

 

(Dictated to the Stenographer, typed by him, the transcript corrected, revised and

then pronounced in the open commission by us on 14^th June 2023.)

 

 

             Sd/-                                       Sd/-                                  Sd/-

  LADY MEMBER                   MEMBER                     PRESIDENT

  

-:ANNEXURES:-

 

Witness examined on behalf of Complainant:

 

PW-1: G.E.Sowbhagya Lakshmi D/o Eshwarappa, by way of affidavit evidence.

 

Documents marked on behalf of Complainant:

 

01	Ext-A-1:-	True copy of the Transaction Summary dated:06/02/2019
02	Ext-A-2:-	True copy of the Result of DRAW F LOTS (FOR RETAIL OUT LET DEALERSHIP) Date:02/02/2019
03	Ext-A-3:-	True copy of the RO Dealership letter dated:02/02/2019
04	Ext-A-4:-	Copy of the Legal Notice dated:23/12/2020
05	Ext-A-5:-	Indian Postal Receipt dated:29/12/2020
06	Ext-A-6:-	Indian Postal Acknowledgement dated:30/12/2020

 

 

Witness examined on behalf of Opponents:

 

DW-1: V.Chandrakanth S/o Somlia Naik, by way of affidavit evidence for OP No.1 and 2.

 

Documents marked on behalf of opponents:

 

01	Ext.B-1:-	User Manual (Brochure)
02	Ext.B-2:-	Self Attested copy of application filed by the complainant dated:17/12/2018.
03	Ext.B-3:-	Copy of Appendix III B dated:19/12/2018
04	Ext.B-4:-	Self Attested copy of ASC report dated:12/02/2019

 

           Sd/-                                       Sd/-                                  Sd/-

  LADY MEMBER                   MEMBER                     PRESIDENT

  

 

 

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