SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This is an application u/s.12 of the C.P. Act, 1986.

The case of the complainant, in short; is that on 07.06.2018 at 16.12.26 hours he had been to the OP-1 Petrol Pump for fuelling diesel in vehicle No. WB-04/H 0518 and fuelled diesel of Rs.1,500/- against Invoice No. 308818 dated 07.06.2018. After fuelled diesel the vehicle stopped on road. The matter was brought to the notice of the OP-1 and one mechanic of OP-2 inspected the vehicle and opined that due to fueling of adulterated diesel all nozzles, diesel filter and other parts of the vehicle are damaged. The OP-1 verbally promised to bear the repairing cost of the vehicle.

Further case of the complainant is that he repaired the vehicle through OP-2 and incurred Rs.5,000/- for such purpose. That on 17.06.2018 at Howrah Station the vehicle having loss of power of motion, vehicle was pulled to the OP-1 Petrol Pump through Breakdown Van and repaired it. Complainant vide letter dated 13.07.2018 requested the OP-1 to pay repairing cost of Rs.21,095/-  but such letter was unattended. There is deficiency in service and unfair trade practice on the part of the OP-1. Hence, the consumer complaint with a prayer for direction upon the OP-1 to pay Rs.21,095/- towards repairing cost including  replacement of the parts of the vehicle including compensation and litigation cost.

The OP-1 appeared in the case but failed to file Written Version within the statutory period prescribed in the C.P. Act, 1986. As such, the case has proceeded ex parte against OP-1.

In spite of service of notice OP-2 did not turn up to contest the case. As such, the case has also proceeded ex parte against the OP-2. 

Decision with Reasons

            Complainant has tendered evidence through affidavit. We have examined the entire material on record and also given a thoughtful consideration to the argument advanced before us.

            On perusal of the photocopy of the invoice dated 07.06.2018 it appears to us that the vehicle No. WB-04/H 0518 fuelled diesel of Rs.1,500/- from  the OP-1 Petrol Pump. His grievance is that due to fuelling of adulterated diesel all nozzles, diesel filter are damaged and the mechanic of OP-2 opined that diesel was adulterated. Complainant incurred Rs.21,095/- towards repairing costs of  the vehicle including replacement of parts, charges of Breakdown Van and computerizing checking cost of Dewar’s Garage. Complainant produced Garage Owner’s certificate dated 04.09.2018 to establish that diesel mixed with water at OP-1 Petrol Pump for which he repaired the  vehicle through OP-2. Complainant also produced photocopies of estimates / Bills dated 26.06.2018 of OP-2 New Sonu Motor, J.S. Diesel dated 12.06.2018, Devendra Singh owner of  New Generation Car Parts dated 12.06.2018, United Auto Centre dated 26.06.2018 and Tax Invoice of Dewar’s Garage Ltd. dated 28.06.2018 to establish his case towards repairing cost of the vehicle including replacement of parts. Complainant did not produce the OP-2 Subhas Dolui, Proprietor of New Sony Motor to prove his report dated 04.09.2018. Even did not file any evidence on affidavit of OP-2 in support of report dated 04.09.2018. Therefore, the complainant has not been able to discharge his onus to prove that fuelled diesel was adulterated for which all four nozzles, diesel filter and other parts of the vehicle were damaged. The matter was reported to Watgunge P.S.  vide GD entry No. 1330 dated 21.06.2018 and Police never collected the sample of adulterate diesel in presence of witnesses and sent it to any laboratory or organization recognized by the Central Government or State Government to analysis, test with a view to determine whether such diesel suffer from any defect.

            It is settled law that where the complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, which over may be necessary, with a view to finding out whether such goods suffer from any defect alledged in the complaint or from any other defect and to the report its finding thereon to the District Forum within a period of 45 days of the receipt of the reference or within such extended period  as may be granted by the District Forum. In the instant case the complainant did not produce sample of the adulterated diesel for its analysis or test. In our opinion the allegation of adulterated diesel cannot be determined without proper analysis or test from any appropriate laboratory. Thus, the complainant failed to prove his case that the fuelled diesel was adulterated. Therefore, the question of deficiency of service and / or unfair trade practice on the part of the OP-1 cannot be established in absence of analysis of test report of diesel. The complainant made no allegation against the OP-2. OP-2 was no way related to the incident as alledged in the consumer complaint thus, the OP-2 cannot be held responsible for any act.

            Regard being had to the facts and circumstances of the case coupled with evidence and material on record, we are of the considered view that the complainant has failed to establish that the fuel was adulterated diesel for which nozzles, diesel filter and other parts of the vehicle bearing No. WB-04/H 0518 were damaged. Thus, the complainant is not entitled to get any relief as prayed for.

            In the result, the case fails.

Hence,

ORDERED

            That the complaint case be and the same is dismissed ex parte against the OPs without any cost.