Punjab

Ludhiana

CC/19/528

Vipan Singh - Complainant(s)

Versus

M/s Avtaar Flame Centre - Opp.Party(s)

N.S.Rana Adv.

14 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 528 dated 18.11.2019.                                                       Date of decision: 14.02.2023.

Vipan Singh son of Shri Inder Singh, resident of House No.113, Ward No.10, Sector 32-A, LIG Flats, Ludhiana                                                                                                                                                      ..…Complainant

                                                Versus

1. M/s. Avtaar Flame Centre, St. No.6, Beantpura, Chandigarh Road, Ludhiana through its Manager/Prop./Partner/Auth. Signatory.
2. Manohar Gupta, Delivery Man, M/s. Avtaar Flame Centre, St. No.6, Beantpura, Chandigarh Road, Ludhiana.
3. M/s. Indian Oil Corporation Ltd., Indian Oil       Bhawan, G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai-400051 through its Managing Director/Director.                                                                                                                                                                     …..Opposite parties

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. N.S. Rana, Advocate.

For OP1 and OP2          :         Exparte.

For OP3                         :         Sh. K.L. Kochar, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant is holder of LPG connection of opposite party No.3 Indian Oil Corporation Ltd. which is attached with the distributor opposite party No.1 Avtaar Flame Centre. Opposite party No.2 being the employee of opposite party No.1 came to house of the complainant on 18.10.2018 to deliver the refill of gas cylinder booked by him. Opposite party No.2 did not check the refill at the time of delivery and assured that everything is alright. The complainant paid refill charges of Rs.905/- to opposite party No.2. The complainant stated that he was using the previous cylinder delivered on 13.09.2018 and the same was about to empty in second week of November 2018 so he booked the refill as he had to provide Langar in Peer Baba Samadh situated adjoining to his house on 15.11.2018 i.e. Thursday. The delivery boy came to deliver the same on 12.11.2018 and the complainant asked him to remove the previous refill dated 13.09.2018 attached with the burner so as to install the new refill delivered on 12.11.2018. The delivery boy removed the previous refill and installed the new refill on 12.11.2018. However, the refill cylinder delivered on18.10.2018 was still lying intact in the house of the complainant. On 15.11.2018, the refill delivered on 12.11.2018 was used to prepare Langar for which huge quantity of LPG was consumed and the same refill became empty on 25.11.2018. On that day, opposite party No.2 was distributing the refill in the area and the complainant requested him to change the refill properly after checking the same who removed the empty refill and installed the refill delivered on 18.10.2018 bearing cylinder No.325241 but opposite party No.2 did not check the cylinder and told that everything is alright. After opposite party No.2 left the spot, immediately fire took place in kitchen due to leakage in the cylinder and the fire spread in the whole house due to which entire household articles including the structure was burnt. The complainant further stated that the pipe, regulator and other accessories were of ISI Mark and the fire took place due to leakage of LPG and due to non-checking of refill by opposite party No.2. The complainant reported the matter to Fire Brigade officials who came and extinguished the fire with help of the complainant and other mohalla residents and they issued a certificate dated 17.12.2018 in this regard. The fire brigade officials also informed the police and they reached at the spot and lodged DDR No.45 dated 26.11.2018. The complainant lodged a claim with opposite parties for the loss of Rs.8,00,000/- and the opposite parties started the process and took into possession the burnt cylinder along with other accessories and relevant documents on 20.12.2018 but till date they have not paid the compensation to the complainant. The complainant further stated that the incident occurred due to defect in the gas cylinder or by leakage and also due to non-checking of refill by opposite party No.2 at the time of its delivery and installation and due to fire, the entire household articles have got burnt and the structure of building has become very weak but there was no loss of life. The complainant and his family suffered shock and depression and their health has deteriorated. The aforesaid facts, amounts to deficiency in service and unfair trade practice on the part of the opposite parties. The complainant sent a legal notice dated 11.04.2019 to the opposite parties  claiming loss of Rs.8,00,000/- and compensation of Rs.5,00,000/- but the opposite parties sent a false and frivolous reply dated 11.05.2019. Hence this complaint, whereby the complainant has prayed for issuing direction to the opposite parties to pay an amount of Rs.10,00,000/- as loss of articles, Rs.1,00,000/- as compensation and also to pay legal expenses of Rs.20,000/-.

2.                Notice was issued to opposite party No.1 and 2 through registered post on 22.07.2020 but none turned up for opposite party No.1 and 2 despite this service and as such, opposite party No.1 and 2 were proceeded against exparte vide order dated 24.09.2020.

3.                Upon notice, opposite party No.3 appeared and filed written statement. In the written statement, opposite party No.3 assailed the complaint  on the ground of for non-joinder of necessary parties, lack of cause of action, lack of locus standi and misuse of process of law by the complainant. Opposite party No.3 alleged that as per records, the complainant Vipan Singh gave in writing to opposite party No.1 Avtar Flame Centre on 20.12.2018 stating therein that on 18.10.2018, LPG cylinder was delivered to him which was put to use by him on 23.11.2018 and the same was also in use on 25.11.2018 but on 25.11.2018 at about 11 AM, fire broke all of a sudden in the Chulla of the complainant and due to said fire, the house hold articles of the complainant were burnt but in the present complaint, a totally different false story regarding taking of said fire on25.11.2018 has been mentioned. Moreover, the complaint is not maintainable against opposite party No.3 Indian Oil Corporation due to any alleged working of distributors, his servants, agents and workman in regard to such installation, sale, distribution, connection repairs or otherwise and the distributor shall be bound to inform the customer in writing of this provision through correspondence or at the time of enrolment of the customer. As per cause 12 of the “terms and conditions governing of the loan of Indane Cylinder (s) and regulator (s) to customers” which is issued at the time of release of new connection. “The corporation shall not be liable for any loss or damage caused to any person or property as a result of the installation or use of gas by the customer. In case of any accident involving consumer’s installation he will forthwith advice the corporation’s distributor from whom he received supply.’ Opposite party No.3 further alleged that there is no privity of contract between the complainant and opposite party No.3 as the sale made by opposite party No.3 to its distributor i.e. opposite party No.1 was on principal-to-principal basis and there was no relationship of ‘service provider’ and ‘consumer’ with the complainant as such opposite party No.3 is not liable to reimburse for the loss if any suffered by the complainant. As per the transaction entered between the distributor and the Corporation, the distributor shall act and shall always be deemed to have acted as principal and not as an agent or on account of the Corporation as per Cause 17 of the contract entered into between the corporation and distributor reproduced as under:-

“17. In all contracts or engagements entered into by the Distributor with the customers for sale of LPG and/or the sale and/or installation and/or repairs of appliances and/or connections thereof with LPG cylinders (filled or empty) and or refills and/or pressure regulators and/or attached equipment the Distributor shall act and shall always be deemed to have acted as a principal and not as an agent on account of the Corporation and the Corporation shall not be in any way liable in any manner in respect of such contracts and/or engagements and/or in respect of any act or omission on the part of the Distributor, his servants, agents and workmen in regard to such installation, sale, distribution, connections, repairs or otherwise. The Distributor shall be bound to inform the customer in writing of this provision through correspondence or at the time of enrolment of the customer.”

                   On merits, opposite party No.3 reiterated the crux of averments made in the preliminary objections and has denied any deficiency in service on its part and also prayed for dismissal of the complaint.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of his LPG connection book, Ex. C2 is the copy of DDR No.45 dated 26.11.2018, Ex. C3 is the copy of fire call report dated 17.12.2018, Ex. C4 is the copy of application moved to police station, Ex. C5 and Ex. C6 are the copies of news items dated 26.11.2018, Ex. C7 to Ex. C9 are the photographs, Ex. C10 is the legal notice dated 11.04.2019, Ex. C11 to Ex. C13 are the postal receipts, Ex. C14 is the reply dated 11.05.2019 to legal notice dated 11.04.2019 and closed the evidence.

5.                On the other hand, counsel for opposite party No.3 tendered affidavit Ex. RW3 of Sh. Mahesh Dhiman, Manager (LPG-CSC) of opposite party No.3 along with documents Ex. RW3/1 is the copy of application moved by the complainant on 20.12.2018, Ex. RW3/2 is the copy of memorandum of agreement and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, rejoinder, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.   

7.                Perusal of the complaint shows that the complainant has stated that the gas cylinder/refill delivered to him on 18.10.2018 was installed on 25.11.2018 and due to leakage of the same, fire broke out resulting in burning of house hold articles. The fire was got extinguished by the officials of Fire Brigade who issued a certificate Ex. C3 in this regard. The DDR No.45 dated 26.11.2018 Ex. C2 was also recorded by the police officials. The complainant has alleged the loss of Rs.8,00,000/-. It is evident from the pleadings of the complaint that during the delivery and the installation of the cylinder in question, it remained unutilized in the house of the complainant himself. According to the complainant, in between, he booked and used two another cylinders. Ex. C3 fire call report has assessed the loss to be Rs.5 lac to Rs.6 Lac as per affidavit of the complainant. The officials did not make any independent report  with regard to the assessment of loss. The complainant has not led any evidence to establish the loss. Mere allegations that due to improper installation of cylinder by the delivery man which resulted in breaking of fire is not sufficient to conclude that the conduct of the opposite parties has resulted in the loss of house hold articles of the complainant. The complainant moved an application Ex. RW3/1 on 20.12.2018 mentioning the reason for fire break and propounded a story with regard to breaking of fire in his cloth shop and entire stock of cloth has been burnt. The story improved in the complaint with regard to the installation of cylinder by the delivery man is also conspicuously missing. As such, the complainant has failed to discharge his initial burden of proving deficiency in service on the part of the opposite parties.

8.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

9.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:14.02.2023.

Gobind Ram.

Vipan Singh Vs M/s. Avtar Flames                    CC/19/528

Present:       Sh. N.S. Rana, Advocate counsel for the complainant.

                   OP1 and OP2 exparte.

                   Sh. K.L. Kochar, Advocate counsel for the OP3.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)           (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:14.02.2023.

Gobind Ram.