SRI. SAJEESH.K.P    : MEMBER

    The complainant has  filed this complaint  under Sec.12 of the Consumer Protection Act 1986,  seeking direction against the  OPs to Rs.3672/- towards the delivery charges and to pay Rs.9000/-  towards the physical hardships and Rs.30,000/- as compensation for  mental agony.

Complaint in brief :-

   According to the complainant, 1^st OP is a gas agency and 2^nd OP is territory  manager of Bharat Petroleum  who is the business partner of 1^st OP.  The complainant’s grievance stated in brief  ie,  complainant resides at Elankode which is 4.5 Km away from 1^st OP’s gas agency.  The 1^st OP collected delivery charges for several years from complainant.  This was complained by  complainant to both OPs but all went in vein.  After that complainant registered a complaint in online complaint redressal cell of 2^nd OP.  According to complainant, no delivery charges is applicable when the customer resides within 5 KMs  distance from gas agency.  The complainant put an RTI before the territory manager regarding the distance fixed which delivery charges not  applicable and also about the status of his complaint regarding the deduction of Rs.21/- for every delivery for years.  On January 2017, OP reduced Rs.21/- which is the delivery charges from his amount but so far no amount was reimbursed which was excessively collected under the head of  delivery charges and hence this complaint.

         After filing the complaint, commission  sent notice  to both OPs.  Both OPs entered  appearance before the commission and filed their version accordingly.

Version of   1^st OP in brief:

    The 1^st OP denied the entire averments except those admitted specifically.  The 1^st  OP admits the residence of complainant.  The OP denied that they  unauthorisedly collected delivery charges from complainant.  The District Collector  fixes the delivery charges from time to time and 1^st OP has  facility to measure the distance from agency to delivery point.  Hence after receiving the application from customers, employee of 1^st OP will call customers to record the details of distance etc. All other necessary details are also collected by  employer from customer for smooth functioning. In the present case complainant’s house was included in the category of 10 km and collected delivery charges as existing for such distance from time to time.  After getting complaint from complainant, 1^st OP verified the distance and necessary changes are made in the system to avoid delivery charges.  The delivery charges for the last 8 years were not uniform and 1^st OP is paying the salary and other remuneration on the basis of total collection of delivery charges collected cannot be considered and there is no deficiency of service and the complaint is liable to be dismissed with cost of 1^st OP.

Version of   2^nd  OP in brief:

    2^nd OP denies the entire allegation made by complainant.  There is no partnership between 1^st OP and 2^nd OP.  2^nd OP is the principal and 1^st OP is the distributor as per the distributorship agreement signed by both parties.  The purchase  and sale of LPG is between complainant and 1^st OP not between  2^nd OP.  The 2^nd OP has no knowledge of the averment regarding the collection of extra Rs.30/- and Rs.21/- in addition to the bill amount.  The 2^nd OP never received any  complaints regarding  misbehavior  of the   agency staff.  The delivery charges are nil upto  5 km.  The transportation charges are fixed  by the District Collector from time to time and complaint regarding  the collection of delivery charges was rectified by 1^st OP and not collected thereafter.  Hence there is no damages caused to complainant  and  the complaint is liable to be dismissed.

       Due to the rival contentions raised by the OPs to the litigation, the commission decided to cast the issues  accordingly.

1. Whether there is any deficiency in service and unfair trade practice from the side of  OPs?
2. Whether there is any  compensation  &  cost to the complainant?

       In order to answer the issues, the commission called evidence from both parties. The  complainant produced documents which is marked as Exts.A1 to &A8.    Ext.A1 is the  original bill issued by 1^st  OP dtd.25/11/2015 with delivery  charge.  Exts.A2 to A5 are the original bill dtd.4/1/16,11/6/16,5/11/16,14/12/2016 .Ext.A6 is  original bill dtd.9/1/17 without delivery charge.  Ext.A7 is the original bill dtd7/2/17 and Ext.A8 is the reply  under RTI Act issued by 2^nd OP dtd.20/1/17.   The complainant adduced evidence  through proof  affidavit and examined as PW1.No document from the side of OPs.    1^st OP adduced evidence through  proof affidavit and examined as DW1.  1^st OP filed argument note.

   Let us have a clear glance into the  evidences placed before the commission to answer the issues framed.  The point of dispute between  the parties arise  due to the excessive and unauthorized collection of  delivery charges from the complainant by  1^st OP.  Firstly, let us look into the evidences brought by complainant to prove the point  he raised on the  excessive collection of delivery charge.  On perusing  Exts.A1 to A5, the  bills during  the years 2015 to 2017 seen that  except Exts.A6&A7 a delivery charge of Rs.21/- is deducted.  During the cross-examination of 1^st OP he specifically admitted that they collected Rs.10/- per delivery from complainant until 2015.  Thereafter Rs.21/- is collected by 1^st OP from the complainant is evident  from ExtsA1 to A5.  Secondly, the 1^st OP deposed that complainant had  7 or 8  bookings of gas cylinders per year .  Hence it is clear that an amount  towards the delivery charge is collected by 1^st OP from the time  the complainant took the connection from 1^st OP.  In order to calculate  the exact  amount  which  the complainant paid towards delivery charge.  Exts. A1 to A5 is relied by this  commission and also relied on the deposition of 1^st OP regarding the average number of cylinder, that complainant booked and Rs.10/- was collected until 2015 by 1^st P from complainant.

   The next point arise  is that  how the amount is fixed and is any exception  to the  customers comes under certain distance.  According to   OPs 1&2 affidavit and  deposition during the cross-examination  it is clear that District Collector is the concerned authority to fix the rate of delivery charge as per distance from agency to the customer’s  abode.  According to Ext.A8, answer received by complainant  U/S 6 of RTI Act and the deposition of 1^st OP it is clearly stated that no delivery charge is applicable  if the  distance is under 5 Kms and the complainant ‘s residence is about 4.850kms which is specifically admitted by 1^st OP.  The complainant clearly deposed that he is seeking relief against 1^st OP.  The complainant had produced receipt issued by 1^st OP to prove his case.  From all these available documentary as well as oral evidence the commission calculated unfair trade practice of 1^st OP as follows.  The 1^st OP is under the obligation to  pay Rs.400/- till 2015 as per the delivery charge they collected at the rate of Rs.10/- for approximate 8 cylinder per year, and to pay Rs.336/-  towards the delivery charge at the rate of Rs.21/- for 8 cylinder per year till 2017  January.  Furthermore, the contention regarding the extra delivery charges collected by delivery boy cannot be taken into consideration  as there is no evidence with regard to it.

   The complainant is entitled to get compensation due to the  unfair trade practice as the 1^st OP clearly admitted that the house of complainant is under 5km which  no delivery charges is applicable and as per the Exts.A1 to A5 it is clear that a delivery charge of Rs.21/- is collected for delivery  and 1^st OP clearly admits that complainant purchased approximate number of 7 or 8 cylinders per year.  Therefore complainant is entitled to get compensation and cost for unauthorized excessive collection of delivery charge by 1^st OP.

           In the result complaint is allowed in part, the 1^st opposite party is directed to pay Rs.736/-  towards the delivery charges excessively collected from complainant during  the year 2010 to 2017 and also pay Rs.10,000/- as compensation  for mental agony and Rs.2000/- as cost of the litigation to the complainant within 30 days of receipt of this order. Failing which complainant is at liberty to file execution application against  opposite party as per the provisions of Consumer Protection Act 2019.

Exts:

A1 to A7-Original bills dtd.25/11/15,4/1/16,11/6/16,5/11/16,14/12/16,9/1/17,7/2/17

A8-RTI  reply issued by 2^nd OP

PW1-Suresh.P- Complainant

DW1-V.T.Anilkumar-1^st OP

Sd/                                                             Sd/                                                   Sd/

PRESIDENT                                     MEMBER                                           MEMBER

Ravi Susha                                       Molykutty Mathew                              Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR