ADVOCATES WHO APPEARED IN THIS CASE

For the appellant                       :           Mr. S. N. Sarma

                                                               Mr. A. Chowdhury

                                                               Mr. K. N. Kalita

For the respondent                       :      Mr. N. N. Upadhyaya

                                                            Mr. P. K. Bordoloi

                                                            Mr. S. Sharma

Date of Argument      :     12–12–2016

Date of Judgment       :     03–01–2017

JUDGMENT

D. K. Mahanta, Member

          Challenge in this appeal is to the judgment dated 05-11-2013 passed by the District Consumer Disputes Redressal Forum, Dibrugarh, in respect of the Complaint Petition Case No. 4 of 2013. By the impugned order, the appellant Company has been directed by the District Forum to provide the domestic pipeline gas connection in the residence of the complainant on payment of the required sum. It has further been ordered by the District Forum that the appellant Company would be required to pay to the complainant rupees ten thousand as compensation towards mental harassment and deficiency in service plus rupees five thousand as litigation cost.

          Briefly stated, the facts leading to the filing of the complaint petition before the District Forum are as follows: On 23-05-2012, the complainant applied to the appellant Company for a domestic pipeline gas connection for his residence and deposited Rs.4000/- towards the initial payment. It has been alleged that the appellant failed to provide the gas connection in spite of the respondent repeatedly visiting their office several times. Under the above situation, the complainant filed the complaint petition, afore mentioned, before the District Forum, Dibrugarh, alleging deficiency in service by the appellant Assam Gas Company Limited.

          Before the District Forum, the appellant has submitted that their Company is carrying on the business of supply of natural gas through pipeline to the residences of the consumers against payment of installation charges and the price of the gas to be supplied. The work of providing domestic gas connections through pipeline is however based on the technical feasibility, safety and security aspect. Once the technological viability is found affirmative, the gas connections to its prospective consumers are released on the first come first serve basis. It has further been submitted that after receipt of the application submitted by the complainant, the officials of the appellant Company surveyed the technical feasibility and the same being found satisfactory, on 14-08-2012, prepared the estimate for installation charges which came to Rs.8,705-02. However, after submission of the application form, the complainant never visited their office to enquire about the outcome of his application and he also failed to deposit the balance amount of Rs.4,705-02 (Estimated amount of Rs.8,705-02 less the application amount of Rs.4000) and his name also being much lower position in the priority list for providing such gas connection, the appellant Company was not in a position to provide the said pipeline gas connection.

          Under these circumstances, the respondent, as complainant, instituted Complaint Petition Case No. 4 of 2013 and after hearing the parties, the District Forum allowed the complaint with cost. Aggrieved by the said order, the appellant Assam Gas Company Limited has now filed this appeal.

We have perused the impugned award of the District Forum as well as the records of the complaint case. Counsels appearing for both the parties have also been heard at length.

          During the course of the hearing it has come to light that as suggested by this Commission, the complainant has now deposited the balance amount of the installation charges, as assessed by the appellant Company, and consequently the gas connection has since been installed in the complainant’s residence. As the main grievance of the complainant and also the major direction of the impugned judgment for providing such gas connection in the residence of the complainant have now been settled, we are now required to consider as to whether the award of compensation and litigation cost in favour of the respondent complainant, on the basis of the finding of the District Forum as regards the alleged deficiency of service by the appellant Company, is liable to be set aside or sustained.

          It appears from record that in support of his case, the complainant has examined himself as the sole witness while Officer-in-Charge of the Assam Gas Company Limited, Dibrugarh Branch, has been examined by the appellant / respondent as the lone witness from their side. It is not disputed that on 23-05-2012, the complainant applied to the appellant Company for a domestic pipeline gas connection to be installed in his residence and deposited Rs.4000/- towards the initial payment.

          In his complaint petition, the complainant has mentioned that after submission of his application on 23-05-2012, he visited the Dibrugarh office of the appellant on 08-02-2012 (sic) and on 11-02-2012 (sic) to enquire about the result of his application. He has alleged that on 08-02-2012, the officials of the Gas Company asked him not to visit their establishment any longer and threatened that otherwise, he would face dire consequences. As per the narration of the complaint petition, during his further visit on 11-02-2012, he was told by the executives of the appellant Company to submit a fresh application with the required registration amount. According to the complainant, the afore mentioned actions of the appellant therefore constitute deficiency in service.

          If these statements are to be believed, it will mean that the complainant visited the office of the Assam Gas Company Limited, Dibrugarh Branch, to enquire about outcome of his request for gas connection even before submission of his application on 23-05-2012. The inconsistency of the dates mentioned in the complaint petition cannot be said to be inadvertent mistakes, because, in his deposition also, the complainant has categorically asserted that he submitted his application for domestic gas connection on 23-05-2012 and afterward visited the office of the appellant on 08-02-2012 and on 11-02-2012 to enquire about the outcome of his application. Obviously, when the application was submitted in the month of May the reported enquiry about the said request in the month of February of the same year is simply ridiculous and therefore cannot be believed.

          Unfortunately, the District Forum did not notice this grave inconsistency in the story put forwarded by the complainant and came to the finding that the failure of the appellant Gas Company to provide the pipeline gas connection, on the basis of the application filed by the complainant dated 23-05-2012, has resulted deficiency in service. The District Forum also failed to observe that the complainant did not deposit the balance amount of Rs.4,705-02 necessary for installation of the gas connection. In view of this non-payment of the assessed dues by the complainant himself, evidently, the appellant Company cannot be held responsible for not providing the pipeline gas connection to the residence of the complainant.

          It is not disputed that the respondent complainant has only registered his name for supply of domestic gas connection through pipeline to his residence and at the time of filing of his complaint petition, such gas connection was yet to be provided by the appellant to him and therefore, he cannot be termed as a ‘consumer’ as provided Under Section 2(1) (d) of the Consumer Protection Act, 1986. At best, the complainant can be said to be only a prospective consumer and as such, his complaint is not maintainable under the Consumer Protection Act, 1986. The National Commission in the case of Prem G’s International –vs- Union of India and Another [Decided on 21st October, 1993] has observed that earnest money deposit required to be furnished by an applicant for export licence or quota is not a consideration for rendering services and for that reason, the applicant is not a consumer.

          In the present case also, the deposit of Rs.4000/- by the complainant towards initial payment at the time of filing of his application, cannot be said to be a consideration for rendering services by the appellant Company. The work of providing domestic gas connections through pipeline is decided on several factors like the technical feasibility, safety and security. Once the technological viability is found affirmative, the gas connections to its prospective consumers are released on the first come first serve basis.

          After receipt of the application from the complainant, the officials of the appellant Company surveyed the technical feasibility and the same being found satisfactory, on 14-08-2012, prepared the estimate which came to Rs.8,705-02. However, the complainant failed to deposit the balance amount of Rs.4,705-02 and in view of this position, the appellant Company was not in a position to provide the said pipeline gas connection.

          According to the appellant, after submission of his application, the complainant never visited their office to enquire about the outcome of his application. It may also be mentioned here that we have already held that the version of the complainant regarding his visit to the office of the appellant Company to make inquiries about his application for domestic pipeline gas connection has not been established on record.

            Under the above circumstances, the inability to render service due to reasons wholly beyond the control of the appellant Company cannot be held to be a case of deficiency in service. It is a recognized principle of law, that the deficiency in service connotes willful non-performance of a service which ought otherwise to be performed or the denial of a service which is not so denied to others placed in similar circumstances.

          In view of this discussion, we are unable to agree to the finding of the District Forum that there was deficiency of service on the part of the appellant Company.

For the reasons stated above, this appeal is allowed but without any order as to costs. In the result, the impugned order of the District Forum is set aside and the complaint is ordered to be dismissed.

Send back the original records to the concerned District Forum along with a copy of this judgment. The statutory amount deposited by the appellant before this commission may be released in their favour.