ORDER
By Smt. Padmini Sudheesh, President

The complainant’s case in brief is as follows:
The complainant is a consumer of the Indian Oil Corporation and the 1st respondent is the distributor of cooking gas to the complainant. During the year 2006 the complainant has supplied with only one gas cylinder. He has complained to the 1st and 2nd respondents several times. But there was no remedy at all. The gas cylinder booked on 2007 January was not obtained till date. It is deficiency in service and this complaint has filed.

2. In the counter filed by the 1st respondent it is stated as follows:
The complainant is a consumer by No.7506. It is not correct to say that the complainant has been supplied with only one cylinder in the year 2006. The gas cylinder was supplied to the complainant as per the availability and also on the basis of priority. This respondent is ready to do this in future also. Hence dismiss the complaint.

3. The 2nd respondent has also stated in their version that there is no lapse on his part in supply cooking gas to the petitioner. No request has been received from the complainant in this regard. On receiving the notice he has directed the 1st respondent to solve the problem and accordingly the petitioner has obtained gas from the 1st respondent. The 2nd respondent has also stated that generally 21 days gap is occurred between supply of LPG cylinder. In future also the petitioner can be supplied with LPG on availability.

4. The respondents 3 to 5 filed counter to the effect that these respondents are unnecessary parties and the complaint is bad for misjoinder of parties. There is no details of the distribution of supply of the gas cylinders. The allegations against respondent 1 and 2 are to be proved by them. There is no deficiency in service on the part of these respondents and pray to dismiss the complaint.

5. The points for consideration are:
1)Is there any deficiency in service by the respondents?
2) If so reliefs and costs ?

6. The evidence consists of Exhibits P1 and P2 and Exhibit R1

7. The complainant’s case is that he has not obtained the LPG cylinder regularly. He has obtained only one in the year 2006. The contention of the respondents are that the petitioner has been supplied with the gas cylinder as availability and also on the basis of the priority in booking. There is no serious contention on the part of respondents. As per Exhibit R1 there was irregular supply of cylinder. Exhibit P2 shows regular supply to some extent. The 1st respondent agreed in the counter that they are ready to supply the gas cylinder on priority and on availability. The relief sought is distribution of one gas cylinder in each month. Since the distribution depends on the availability we can only direct to provide the gas cylinder on availability. In the circumstances there is no scope for any compensation.

8. In the result complaint is partly allowed and the 1st respondent is directed to supply the gas cylinder on availability. The 1st respondent is further directed to pay cost of Rs.500/- (Rupees Five hundred only) to the complainant within one month.

Dictated to the Confdl. Asst., transcribed by her, corrected by me and pronounced in the open Forum this the 27th day of March 2009.

Govinda Bhat,

S/o A****h Bhat,

Aged 39 years,

Dodda Thota Mane,

AmaraMadnur Village,

Sullia Taluk, D.K. …….. COMPLAINANT



VERSUS



1. The Manager,

Rai Indane Gas Agencies,

Akshatha Kalyayana Mandira Sankirna,

Sullia Taluk, D.K.

Sri Rampet,

Sullia, D.K.

2. Tahasildar,

Food and Civil Supplies,

Sullia Taluk, D.K.

3. District Commissioner,

Food and Civil Supplied,

Mangalore, D.K. District.

4. Assistant Manager (Sales),

Indian Oil Corporation,

City Point, Kodialbail,

Mangalore, D.K. District. ……. OPPOSITE PARTIES





1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.

The Complainant filed this complaint against the Opposite Parties No.1 to 4 for non supply of refill gas cylinder against for which he had advance booked on 26.6.2007 by Sl.No.3466. It is submitted that the Opposite Party No.1 is the Management Authority of Rai Indane Gas Distributor i.e. Namitha.A.Shetty is the Proprietor and Management Authority. The Complainant is a consumer of LPG Cylinder by holding Consumer No.3406 and who had advance booked for refill cylinder on 26.6.2007, inspite of several requests of the Complainant the Opposite Party No.1 refused to supply the refill cylinder. The Complainant made written complaint before Opposite Party No.2 and 4 in spite of that the Opposite Parties are not responded.


It is further submitted that, the Complainant inspite of advance booking the Opposite Parties supplied refilled cylinder to the other consumer by ignoring the Complainant. It is further submitted that, as per the rules and regulations laid under (Regulations of Supply and Distribution) Order 2000, no distributor shall refused to sell LPG on any working day during working hours to the Consumer Registered with the distributor and further contended that no distributor shall refused to make home delivery at the address of the consumer as registered with the distributor provided they may fix additional charges for home delivery in view of the geographical terrain or the distance in the area of Distribution.


In this case the Complainant made repeated request for refilled cylinders just after advance booked. But the Opposite Parties refused to supply the refilled cylinder which amounts to deficiency in service and hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to issue a refilled cylinder to the resident of the Complainant and also pay compensation and cost of the proceedings.



2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 appeared through their counsel and filed version. Opposite Party No.2 to 4 despite of servicing notice not appeared nor contested the case till this date, hence we have proceeded exparte as against Opposite Party No.2 to 4. The acknowledgement 3 in Nos. marked as Court Document No.1 to 3.

Opposite Party No.1 admitted that the Complainant is the holder of consumer No.3406. It is stated that the Opposite Party had supplied the refilled cylinder immediately after the booking on 26.6.2007 through their centre at Doddathota but the Complainant failed to collect the same from that centre intentionally. Consequently, this Opposite Party cancelled the booking.

It is further submitted that, the Complainant was working under this Opposite Party, the Complainant stolen some refilled cylinder and misused the same for his personal use. Thereafter the case was registered and penalty was imposed. It is contended that, the 2nd Opposite Party directed the 1st Opposite Party not to deliver the cylinder to the Complainant. And contended that there is no deficiency in service and the allegations alleged in the complaint are denied by this Opposite Party and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Parties committed deficiency in service?

(ii) If so, whether the Complainant is entitled for the reliefs claimed?

(iii)What order?

4. In support of the complaint Sri Govinda Bhat (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex.C1 to C20 were marked for the Complainant as listed in the annexure. Opposite Parties placed exparte led no evidence. One Ashok Rai of Opposite Party (RW-1) filed counter affidavit and answered the interrogatories served on him. Ex.R1 to R6 were marked for the Complainant as listed in the annexure. The Complainant and Opposite Party No.1 filed written notes of arguments.

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon’ble Forum and answer the points are as follows:

Point No.(i): Affirmative

Point No.(ii) & (iii): As per the final order.
REASONS

5. Points No. (i) to (iii):

The points which are not in dispute is that the Complainant is the consumer of domestic LPG cylinder bearing consumer No.3406 in Indian Oil Corporation, Sullia Branch which belongs to the 1st Opposite Party. The Opposite Party 2, 3 and 4 are the officers of the Government Department and they have placed exparte. The Opposite Party No.1 is a Management Authority of Rai Indane Gas Distributor i.e. Namitha.A.Shetty is the Proprietor and Management Authority.

That the allegation of the Complainant is that, on the basis of the above consumer number he had made advance booking for the refilled cylinder on 26.6.2007 bearing Sl.No.3466 in the office of the 1st Opposite Party. Thereafter, the Complainant had personally approached the 1st Opposite Party to get the refilled cylinder, but the 1st Opposite Party gave a reason of insufficient supply from the I.O.C. and not issued the refilled cylinder till this date and contended that without considering the principle of priority the Opposite Party made arrangement for supply of cylinder to other customer who are advanced on later dates.


It is submitted that, there were sufficient supply from the I.O.C. but the 1st Opposite Party did not consider priority in supply refilled cylinder and given unsatisfactory reason of insufficient supply which are false. It is also submitted that the 1st Opposite Party never made any attempt to open new distribution centre at Doddathota. Feeling aggrieved by the same the Complainant filed application under Right to Information Act even for which the 1st Opposite Party informed nothing till today and thereafter several complaints were made even though the Opposite Party No.1 not issued the cylinder.

On the contrary, the Opposite Parties 2, 3 and 4 who are the officials of Government Department not appeared nor contradicted the evidence of the Complainant who are placed exparte.

The Opposite Party No.1 though appeared contended that the refilled cylinder supplied to the location at SCDC Building, Doddathota, but the same was not collected by the Complainant. And further it is contended that, the advance booking of the Complainant cancelled as per rules and regulations of Opposite Party No.1 i.e. after booking the cylinder within 21 days the customer required to collect the refilled cylinder from the centre. Since the Complainant not collected the cylinder the advance booking was cancelled and contended that there is no deficiency.

Now the point for consideration is that, whether the Complainant advance booked the refill cylinder with the Opposite Party No.1 and Opposite Party No.1 not supplied the refilled cylinder to the Complainant?

In order to substantiate the case of the Complainant, CW-1 examined and produced Ex.C1 to C20 and RW-1 examined and marked Ex. R1 to R6.

The documents produced by the Complainant i.e. Ex.C7 information of IOC shows that Opposite Party No.1 is the Management Authority of Rai Indane Gas Distributor i.e. one Namitha.A.Shetty is the proprietor and the Management Authority. But in the instant case, one Mr.Ashok Rai filed affidavit who is not a authorized person nor a G.P.A. Holder.

Further we have noticed that the Complainant is a consumer of L.P.G. Cylinder by holding consumer No.3406 who had advance booked for refill cylinder on 26.6.2007 by Sl.No.3466 this has been admitted by the Opposite Party No.1 in their version as well as in their evidence. From the admitted fact stated above, it is proved that the Complainant booked for refill cylinder on 26.6.2007.


The Ex.C2 and C3 are the complaint made by the Complainant before the Opposite Party No.2 and 4 by stating that on 26.6.2007 the Complainant had advance booked for refill cylinder and the same is refused to supply inspite of repeated requests. The said notice has been served to the Opposite Parties in spite of that the Opposite Parties not supplied the refilled cylinder to the Complainant against the advance booking. The Opposite Party No.1 vehemently contended that the refilled cylinder supplied to the location at the SCDC Building, Doddathota but the same was not collected by the Complainant and further contended that the Complainant was not collected within 21 days as required, hence the cylinder was cancelled and produced customer history card.


On careful scrutiny of the history card produced by the Opposite Party we have noticed that at Sl.No.9 one advance booking was cancelled after 27 days of advance booked and in SL.No.3 was cancelled on 7.9.2007 but no reasons was stated. In SL.No.4 the refilled cylinder was booked on 2.3.2007 and cylinder was supplied even lapse of 92 days. Further at Sl.No.1 the cylinder was booked and more than 212 days lapsed after advance booked but the same was not cancelled. From the above customer history card produced by the Opposite Party appears to be not genuine because the Opposite Party No.1 not followed the uniform rules to all the customers. Hence it cannot be considered.

However, apart from the above, our attention was drawn towards the rules and regulations laid under the The Liquid Petroleum Gas (Regulation of Supplies and Distribution) Order, 2000, Wherein Section 9 (a) specifically states that:

“No Distributor having stock of Liquefied Petroleum Gas at the business premises shall refuse to sell L.P.G. on any working day during working ours to the Consumer Registered with that Distributor.



Further Section 9(c) Every Distributor shall take steps to ensure that stocks of Liquefied Petroleum Gas are available at the business premises at all times.



Further Section 9(e) No Distributor shall refuse to make home delivery at the address of the consumer as register with the distributor.“



From the above regulations it is made very clear that, no distributor shall refuse to make home delivery at the address of the consumer as registered with the distributor provided they may fix additional charges for home delivery inview of the geographical terrain or the distance in the area. And further The Ex.C7 i.e. information of I.O.C. shows that the said fixed transport charges for every round trip Rs.1.60 beyond the 5 kms of radius. The above said regulations is applicable to all the distributors including the Opposite Party No.1. The Opposite Party No.1 cannot refuse to deliver the refilled gas cylinder to the Complainant at any cost. The Ex.C2 and C3 are show that the Complainant repeatedly made the request with the Opposite Parties despite of that the Opposite Parties not delivered the refilled gas cylinder against the advance booking.


Further we find that there is no documents produced by the Opposite Party No.1 to show that the centers are established at SCDC Bank building Doddathota and other various places. The Opposite Party No.1 is abide by the rules and regulations laid under the above Act and Opposite Parties cannot excise their right according to their vims and fancies. The Opposite Party No.1 cannot establish the location according to their convenience but it has to be approved by the body of Government. Further the Opposite Party No.1 not produced any document to show that the location or center can be established beyond 5 kms of radius.

In the given case, admittedly the Complainant had advance booked for refill cylinder on 26.6.2007 and the same has been admitted by the Opposite Party No.1, the contention that the Complainant not collected the refilled gas from Doddathota center has no basis because there is no proof to that effect.

The Opposite Party No.1 contended that, as per the rules and regulations the customer required to collect the refilled cylinder from the center and advance booking of the Complainant can be cancelled as per rules and regulations of Opposite Party No.4. But no such rules and regulations were produced before the Fora by the Opposite Party No.1. As per the information of I.O.C. i.e. Ex.C8, the rule of restriction of 21 days is not applicable for supply of refill cylinder. Under such circumstances, there is no question of cancellation arises if not collected by the consumer. And further Opposite Party No.1 is bound to make home delivery of refilled gas and Opposite Party is not empowered to direct the consumer to collect from the center. The cancellation of the advance booking of the Complainant by the Opposite Party is arbitrary and not justifiable. Since it is a consumer right to get the refilled cylinder and it is the duty of the Opposite Parties to provide refilled gas cylinder to the Complainant.


The Opposite Parties cannot round and say the Complainant misused the gas cylinder or he has been charged penalty etc. etc is not relevant in the given case because as a consumer holding consumer No.3406 who had advance booked for refilled cylinder on 26.6.2007 is a right and the Opposite Parties shall obliged for the same. In the given case the Opposite Parties by giving one or the other reasons deliberately and inspite of receiving repeated requests from the Complainant not supplied the domestic Consumer LPG Gas cylinder to the Complainant as against the advance booking is proved and which amounts to deficiency in service.

And we further find that, if at all the Complainant house/residence is situated beyond the radius of 5 kms the Opposite Party ought to have charged for him as per the regulations laid under the Act. But in the given case, no such attempts was made and the Opposite Parties miserably failed to deliver the refilled cylinder to the Complainant. Therefore, we are of the considered opinion that the service rendered by the Opposite Parties amounts to deficiency in service and the Opposite Party No.1 being a authorized distributor is hereby liable to deliver the refilled cylinder to the residence of the Complainant immediately without waiting further.

In this case we have noticed that the Complainant booked the gas two years back from this day, but the Opposite Party No.1 intentionally not delivered the refilled gas cylinder. Under that circumstance, we hold that the Opposite Party No.1 is hereby directed to deliver the refilled cylinder to the residence of the complainant immediately and we feel that Rs.5,000/- awarded as compensation for the inconvenience and the harassment caused to the Complainant. Apart from the above we further direct that the Opposite Party No.1 as a distributor shall give preference to the advance booking consumers rather showing partiality between the consumers. And Rs.1,000/- awarded as cost of the litigation expenses. Compliance and Payment shall be made within 30 days from the date of this order.

No deficiency proved against the Opposite Party No.2 to 4 in this case. Hence the complaint against Opposite Party No.2 to 4 are hereby dismissed.



6. In the result, we pass the following:


ORDER

The complaint is allowed. The Opposite Party No.1 is hereby directed to deliver the refilled cylinder to the Complainant residence immediately and also pay Rs.5,000/- as compensation and Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

K.Krishnapillai,S/o.Narayanapillai,Puthu Veedu
...........Appellant(s)

Vs.

The Managing Director,Indian Oil Corporation Ltd., Divisional Office Panampally Nagar, Cochin

P.K.Premraj,Indian Oil Dealer and Other
...........Respondent(s)





ORDER





The complainant is the father in law and power of attorney holder of one Mr. R. Raveendran Pillai who is the owner of the vehicle bearing Reg.No. KL.02/Q.8074. The complainant is a consumer within the meaning of Section 2[1][d] of the Consumer Protection Act. The de-facto complainant is conducting a taxi service which is Toyota-Qualis F3 vehicle referred to above. This vehicle was purchased utilizing loan from HDFC Bank. As on 13.6.2004 the vehicle could run 37800 Kilometres. The vehicle was being given proper maintenance.. On 13.6.2004 the vehicle was filled with diesel for Rs.500/- from the bunk of the 1st opp.party, and while the vehicle was proceeding to Kollam it got a break down and the engine could not be started.


The vehicle was taken to its authorized service centre, the Nippon Toyota, Moopan Mortors Pvt. Ltd. On 14.6.2004 the vehicle was subjected to major repairs sum of Rs.30,728/- was spent towards workshop expenses The vehicle got damaged due to the usage of water stained diesel from the bunk of the first opp.party. The complainant also sustained loss of value of diesel Rs.5,00/- and Rs.15,000/- being damage towards income to be earned during that period. Though the opp.party was requested to pay the amount, they refused to pay the amount and hence the complaint.



The first opp.party filed version contending interalia that the complainant is not a consumer within the meaning of section 2[1][d] of the Consumer Protection Act. The first opp.party is one of the dealers of petroleum products of the 2nd opp.party having his outlet at Kavanadu, Kollam. The entire installation for the outlet is established and maintained by the 2nd opp.party and this opp.party as dealer use the same for storage and sale of petroleum products On 12th and 13th June 2004 there was incessant rain followed by flash floods inundating the area around the outlet.


The 1st opp.party has made thorough checking of the petroleum products in the underground tanks to make sure that the products are not contaminated . On that occasion no instance of water staining was detected At about 8.30 a.m. on that day from the complaints of three consumers this opp.party could detect stain of water in the diesel sold to them. At the same point of time the 1st opp.party has supplied diesel to the complainant also.


Immediately the 1st opp.party stopped the sale of diesel and informed the matter to the 2nd opp.party and took steps to settle the claims of the above said consumer including the complainant . Though the other three consumers settled the claim the complainant straight away put forth a claim of Rs.1,00,000/- . The presence of water particles never cause any serious harm or damage to the vehicle or its engine as alleged by the complainant and the only repair to be done in such circumstances is to clean the diesel tank ,replace the diesel filter and to refill diesel. No major or other repairs consuming more than one or two hours is required in such cases.


The contention that the complainant spent Rs.30,728/- towards workshop charges is unfounded. The loss alleges to have sustained by the complainant is also not true. The averments in para 6 are not correct. The 1st opp.party has taken all precautionary measures to avoid supply of contaminated fuel and he was ready and willing to settle the matter then and there on reasonable terms. There s no unfair trade practice or deficiency in service on the part of the first opp.party. Hence the opp.party 1 prays to dismiss the complaint.



The 2nd opp.party filed a separate version also contending interalia, that the complainant is not a consumer and the complainant is not maintainable either in law or on facts and with more or less identical contentions as that of the 1st opp.party.



Points that would arise for consideration are:

1. Whether or not there is deficiency in service on the part of the opp.parties?

2. Reliefs and costs.

For the complainant PW.1.and 2 are examined. Ext. P1 to P8 are marked.

For the opp.party DW.1 is examined.



POINTS: There is no dispute that on 13.6.2004 the complainant filled diesel in his Toyota Quali9s vehicle bearing Reg.No.KL-2Q 8074 from the Bunk of the 1st opp.party and the vehicle break down on the way due to the water stained diesel filled lby opp.party.1.


The contention of the opp.parties is that the complainant is not a Consumer within the meaning of Sec.2[1][d] of the Consumer Protection Act as the vehicle is a commercial vehicle land the complainant is not the RC owner of the vehicle. That contention does not appeal to us. Though the vehicle is a commercial vehicle the dispute relates to the quality of the diesel purchased and therefore we are of the view that the complainant is a consumer within the meaning of Wec.2[1][d] of Consumer Protection Act.



Now the question is whether the repairs done to the vehicle is as a consequence of the water stained diesel supplied by the 1st opp.party or not. The diesel supplied by the 1st opp.party was water stained is not disputed by opp.party 1 also. But their definite contention is that due to incessant rain the area around the outlet was inundated with flash flood and water drained into the tank contaminating the diesel which came to the notice of the oppp.party when persons who filled petrol from the outlet complained.


PW.1 has also admitted that there was rain. According to the 1st opp.party the claim of 3 persons who filled diesel from their outlet on that day prior to the complainant herein were settled refunding the diesel charges and paying the workshop charges for cleaning diesel tank and replacing filter. Though the same terms were offered to the complainant he refused to seetle the matter on the terms accepted by the above 3 persons with ulterior motives.



The specific contention of the 1st opp.party is that the presence of the water stained diesel will never cause any serious damages to the engine and the only repair to be done in such case is to clean the diesel tank and replace the diesel filter and that such work could be completed within 1 or 2 hours. According to the complainant the entire work covered by Ext.P3 was necessitated due to the use of water stained diesel. However no independent expert evidence was adduced to establish that contention.



PW.2 is the service Manager of the Nippon Tyotta at Thiruvananthapuram. He has stated in cross examination that the complaints referred to in Exts.P3, P4 and P5 would happen only if water contained diesel is filled in the diesel tank. He would further state that immediately on seeing the vehicle he come to know that the vehicle require major repairs and that a months time would be required for the repairs. Ext.P5 shows that the vehicle was brought on 14.6.2001 and PW.2 promised to return the vehicle on 15.6.04. PW.2 in cross examination has admitted that he promised to return the vehicle after repairs 15.6.2004.



If PW.2 was satisfied that the vehicle requires major repairs spreading over a month one is at a loss to understand as to how he agreed to return the vehicle after repairs on the next day. In cross examination he has admitted that even if water contained diesel is filled always this type of repairs would not be required from which it is clear that the repairs in such cases would be minor viz cleaning of diesel tank replacement of diesel filter etc.


It cannot be believed by any stretch of imagination that a service Engineer like PW.2 cannot understand the defect on examination of the vehicle on 14.6.2004 and it is obvious that he has issued Ext.P5 after fully satisfied with the nature of repairs. His subsequent version that he was satisfied that major repairs spreading over a month would be required can as argued by the opp.parties, be the result of a collusion between PW.1 and PW.2.


It is also to be noted that some parts of the vehicle are alleged to have been send to Bangalore for major repairs. But no material worth believable is forthcoming regarding the repairs alleged to have been carried out at Bangalore. As pointed out earlier PW.2 being an employee of the dealer and his inconsistent version regarding time for repairs in Ext.P3 to P5 his evidence cannot be safely relied on to come to the conclusion that the vehicle need major repairs due to the incident.



It is worth pointing out in the context that the vehicle herein has run 37800K. meters within a span of 10 months and as argued by the opp.parties it is quite probable that such a vehicle would require the repairs as per Ext.P3 to P5. The conduct of the complainant in not examining an independent expert is highly suspicious. Only an independent expert can say that the repairs as per Ext.P3 to P5 are necessitated due to the use of water stained diesel. The answer of PW.2 to a pointed question is also highly material.
.


On has to grop into the darkness to know whether the water content herein was small or large. In cross examination PW.2 admitted that in Ext.P3 to P5 there was no mention regarding presence of mud from which it can be inferred that the quantity of water content was small . On a perusal of the entire evidence in this case we are of the opinion that the contention of opp.parties that major repairs were done to the vehicle in collusion between PW.1 and 2 is quite probable. The omission to adduce independent expert evidence is also fatal to the case of the complaint.

Govinda Bhat,

S/o A****h Bhat,

Aged 39 years,

Dodda Thota Mane,

AmaraMadnur Village,

Sullia Taluk, D.K. …….. COMPLAINANT



VERSUS



1. The Manager,

Rai Indane Gas Agencies,

Akshatha Kalyayana Mandira Sankirna,

Sullia Taluk, D.K.

Sri Rampet,

Sullia, D.K.

2. Tahasildar,

Food and Civil Supplies,

Sullia Taluk, D.K.

3. District Commissioner,

Food and Civil Supplied,

Mangalore, D.K. District.

4. Assistant Manager (Sales),

Indian Oil Corporation,

City Point, Kodialbail,

Mangalore, D.K. District. ……. OPPOSITE PARTIES







This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.

The Complainant filed this complaint against the Opposite Parties No.1 to 4 for non supply of refill gas cylinder against for which he had advance booked on 26.6.2007 by Sl.No.3466. It is submitted that the Opposite Party No.1 is the Management Authority of Rai Indane Gas Distributor i.e. Namitha.A.Shetty is the Proprietor and Management Authority.


The Complainant is a consumer of LPG Cylinder by holding Consumer No.3406 and who had advance booked for refill cylinder on 26.6.2007, inspite of several requests of the Complainant the Opposite Party No.1 refused to supply the refill cylinder. The Complainant made written complaint before Opposite Party No.2 and 4 in spite of that the Opposite Parties are not responded. It is further submitted that, the Complainant inspite of advance booking the Opposite Parties supplied refilled cylinder to the other consumer by ignoring the Complainant.


It is further submitted that, as per the rules and regulations laid under (Regulations of Supply and Distribution) Order 2000, no distributor shall refused to sell LPG on any working day during working hours to the Consumer Registered with the distributor and further contended that no distributor shall refused to make home delivery at the address of the consumer as registered with the distributor provided they may fix additional charges for home delivery in view of the geographical terrain or the distance in the area of Distribution.


In this case the Complainant made repeated request for refilled cylinders just after advance booked. But the Opposite Parties refused to supply the refilled cylinder which amounts to deficiency in service and hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to issue a refilled cylinder to the resident of the Complainant and also pay compensation and cost of the proceedings.



2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 appeared through their counsel and filed version. Opposite Party No.2 to 4 despite of servicing notice not appeared nor contested the case till this date, hence we have proceeded exparte as against Opposite Party No.2 to 4. The acknowledgement 3 in Nos. marked as Court Document No.1 to 3.

Opposite Party No.1 admitted that the Complainant is the holder of consumer No.3406. It is stated that the Opposite Party had supplied the refilled cylinder immediately after the booking on 26.6.2007 through their centre at Doddathota but the Complainant failed to collect the same from that centre intentionally. Consequently, this Opposite Party cancelled the booking.

It is further submitted that, the Complainant was working under this Opposite Party, the Complainant stolen some refilled cylinder and misused the same for his personal use. Thereafter the case was registered and penalty was imposed. It is contended that, the 2nd Opposite Party directed the 1st Opposite Party not to deliver the cylinder to the Complainant. And contended that there is no deficiency in service and the allegations alleged in the complaint are denied by this Opposite Party and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Parties committed deficiency in service?

(ii) If so, whether the Complainant is entitled for the reliefs claimed?

(iii)What order?

4. In support of the complaint Sri Govinda Bhat (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex.C1 to C20 were marked for the Complainant as listed in the annexure. Opposite Parties placed exparte led no evidence. One Ashok Rai of Opposite Party (RW-1) filed counter affidavit and answered the interrogatories served on him. Ex.R1 to R6 were marked for the Complainant as listed in the annexure. The Complainant and Opposite Party No.1 filed written notes of arguments.

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon’ble Forum and answer the points are as follows:

Point No.(i): Affirmative

Point No.(ii) & (iii): As per the final order.
REASONS

5. Points No. (i) to (iii):

The points which are not in dispute is that the Complainant is the consumer of domestic LPG cylinder bearing consumer No.3406 in Indian Oil Corporation, Sullia Branch which belongs to the 1st Opposite Party. The Opposite Party 2, 3 and 4 are the officers of the Government Department and they have placed exparte. The Opposite Party No.1 is a Management Authority of Rai Indane Gas Distributor i.e. Namitha.A.Shetty is the Proprietor and Management Authority.

That the allegation of the Complainant is that, on the basis of the above consumer number he had made advance booking for the refilled cylinder on 26.6.2007 bearing Sl.No.3466 in the office of the 1st Opposite Party. Thereafter, the Complainant had personally approached the 1st Opposite Party to get the refilled cylinder, but the 1st Opposite Party gave a reason of insufficient supply from the I.O.C. and not issued the refilled cylinder till this date and contended that without considering the principle of priority the Opposite Party made arrangement for supply of cylinder to other customer who are advanced on later dates.


It is submitted that, there were sufficient supply from the I.O.C. but the 1st Opposite Party did not consider priority in supply refilled cylinder and given unsatisfactory reason of insufficient supply which are false. It is also submitted that the 1st Opposite Party never made any attempt to open new distribution centre at Doddathota. Feeling aggrieved by the same the Complainant filed application under Right to Information Act even for which the 1st Opposite Party informed nothing till today and thereafter several complaints were made even though the Opposite Party No.1 not issued the cylinder.

On the contrary, the Opposite Parties 2, 3 and 4 who are the officials of Government Department not appeared nor contradicted the evidence of the Complainant who are placed exparte.

The Opposite Party No.1 though appeared contended that the refilled cylinder supplied to the location at SCDC Building, Doddathota, but the same was not collected by the Complainant. And further it is contended that, the advance booking of the Complainant cancelled as per rules and regulations of Opposite Party No.1 i.e. after booking the cylinder within 21 days the customer required to collect the refilled cylinder from the centre. Since the Complainant not collected the cylinder the advance booking was cancelled and contended that there is no deficiency.

Now the point for consideration is that, whether the Complainant advance booked the refill cylinder with the Opposite Party No.1 and Opposite Party No.1 not supplied the refilled cylinder to the Complainant?

In order to substantiate the case of the Complainant, CW-1 examined and produced Ex.C1 to C20 and RW-1 examined and marked Ex. R1 to R6.

The documents produced by the Complainant i.e. Ex.C7 information of IOC shows that Opposite Party No.1 is the Management Authority of Rai Indane Gas Distributor i.e. one Namitha.A.Shetty is the proprietor and the Management Authority. But in the instant case, one Mr.Ashok Rai filed affidavit who is not a authorized person nor a G.P.A. Holder.

Further we have noticed that the Complainant is a consumer of L.P.G. Cylinder by holding consumer No.3406 who had advance booked for refill cylinder on 26.6.2007 by Sl.No.3466 this has been admitted by the Opposite Party No.1 in their version as well as in their evidence. From the admitted fact stated above, it is proved that the Complainant booked for refill cylinder on 26.6.2007. The Ex.C2 and C3 are the complaint made by the Complainant before the Opposite Party No.2 and 4 by stating that on 26.6.2007 the Complainant had advance booked for refill cylinder and the same is refused to supply inspite of repeated requests. The said notice has been served to the Opposite Parties in spite of that the Opposite Parties not supplied the refilled cylinder to the Complainant against the advance booking.


The Opposite Party No.1 vehemently contended that the refilled cylinder supplied to the location at the SCDC Building, Doddathota but the same was not collected by the Complainant and further contended that the Complainant was not collected within 21 days as required, hence the cylinder was cancelled and produced customer history card. On careful scrutiny of the history card produced by the Opposite Party we have noticed that at Sl.No.9 one advance booking was cancelled after 27 days of advance booked and in SL.No.3 was cancelled on 7.9.2007 but no reasons was stated.


In SL.No.4 the refilled cylinder was booked on 2.3.2007 and cylinder was supplied even lapse of 92 days. Further at Sl.No.1 the cylinder was booked and more than 212 days lapsed after advance booked but the same was not cancelled. From the above customer history card produced by the Opposite Party appears to be not genuine because the Opposite Party No.1 not followed the uniform rules to all the customers. Hence it cannot be considered.

However, apart from the above, our attention was drawn towards the rules and regulations laid under the The Liquid Petroleum Gas (Regulation of Supplies and Distribution) Order, 2000, Wherein Section 9 (a) specifically states that:

“No Distributor having stock of Liquefied Petroleum Gas at the business premises shall refuse to sell L.P.G. on any working day during working ours to the Consumer Registered with that Distributor.



Further Section 9(c) Every Distributor shall take steps to ensure that stocks of Liquefied Petroleum Gas are available at the business premises at all times.



Further Section 9(e) No Distributor shall refuse to make home delivery at the address of the consumer as register with the distributor.“



From the above regulations it is made very clear that, no distributor shall refuse to make home delivery at the address of the consumer as registered with the distributor provided they may fix additional charges for home delivery inview of the geographical terrain or the distance in the area. And further The Ex.C7 i.e. information of I.O.C. shows that the said fixed transport charges for every round trip Rs.1.60 beyond the 5 kms of radius. The above said regulations is applicable to all the distributors including the Opposite Party No.1. The Opposite Party No.1 cannot refuse to deliver the refilled gas cylinder to the Complainant at any cost. The Ex.C2 and C3 are show that the Complainant repeatedly made the request with the Opposite Parties despite of that the Opposite Parties not delivered the refilled gas cylinder against the advance booking.


Further we find that there is no documents produced by the Opposite Party No.1 to show that the centers are established at SCDC Bank building Doddathota and other various places. The Opposite Party No.1 is abide by the rules and regulations laid under the above Act and Opposite Parties cannot excise their right according to their vims and fancies. The Opposite Party No.1 cannot establish the location according to their convenience but it has to be approved by the body of Government. Further the Opposite Party No.1 not produced any document to show that the location or center can be established beyond 5 kms of radius.

In the given case, admittedly the Complainant had advance booked for refill cylinder on 26.6.2007 and the same has been admitted by the Opposite Party No.1, the contention that the Complainant not collected the refilled gas from Doddathota center has no basis because there is no proof to that effect.

The Opposite Party No.1 contended that, as per the rules and regulations the customer required to collect the refilled cylinder from the center and advance booking of the Complainant can be cancelled as per rules and regulations of Opposite Party No.4. But no such rules and regulations were produced before the Fora by the Opposite Party No.1. As per the information of I.O.C. i.e. Ex.C8, the rule of restriction of 21 days is not applicable for supply of refill cylinder. Under such circumstances, there is no question of cancellation arises if not collected by the consumer.


And further Opposite Party No.1 is bound to make home delivery of refilled gas and Opposite Party is not empowered to direct the consumer to collect from the center. The cancellation of the advance booking of the Complainant by the Opposite Party is arbitrary and not justifiable. Since it is a consumer right to get the refilled cylinder and it is the duty of the Opposite Parties to provide refilled gas cylinder to the Complainant.


The Opposite Parties cannot round and say the Complainant misused the gas cylinder or he has been charged penalty etc. etc is not relevant in the given case because as a consumer holding consumer No.3406 who had advance booked for refilled cylinder on 26.6.2007 is a right and the Opposite Parties shall obliged for the same. In the given case the Opposite Parties by giving one or the other reasons deliberately and inspite of receiving repeated requests from the Complainant not supplied the domestic Consumer LPG Gas cylinder to the Complainant as against the advance booking is proved and which amounts to deficiency in service.

And we further find that, if at all the Complainant house/residence is situated beyond the radius of 5 kms the Opposite Party ought to have charged for him as per the regulations laid under the Act. But in the given case, no such attempts was made and the Opposite Parties miserably failed to deliver the refilled cylinder to the Complainant. Therefore, we are of the considered opinion that the service rendered by the Opposite Parties amounts to deficiency in service and the Opposite Party No.1 being a authorized distributor is hereby liable to deliver the refilled cylinder to the residence of the Complainant immediately without waiting further.

In this case we have noticed that the Complainant booked the gas two years back from this day, but the Opposite Party No.1 intentionally not delivered the refilled gas cylinder. Under that circumstance, we hold that the Opposite Party No.1 is hereby directed to deliver the refilled cylinder to the residence of the complainant immediately and we feel that Rs.5,000/- awarded as compensation for the inconvenience and the harassment caused to the Complainant.


Apart from the above we further direct that the Opposite Party No.1 as a distributor shall give preference to the advance booking consumers rather showing partiality between the consumers. And Rs.1,000/- awarded as cost of the litigation expenses. Compliance and Payment shall be made within 30 days from the date of this order.

No deficiency proved against the Opposite Party No.2 to 4 in this case. Hence the complaint against Opposite Party No.2 to 4 are hereby dismissed.

The dealer of Indian Oil corporation, savarkar Nagar, Nalgonda, Andhrapradesh- 508001 has not provided the Air free service, even i have given complaint three times. Inview of these i request you to persue in this matter and provide the facility regularly. Thanking you sir,

K.Narasimha Rao, president,
Pragna consumers Organisation,
plot no.85, Alivelumanga puram colony,
panagal Road, Nalgonda-508001,
Andhra Pradesh.