Indian Oil Corporation Ltd. vs B.ADVANI

APPEAL No. 76/90 has been filed by the opposite-parties No. 1 and 2 before the District Forum. APPEAL No. 91/90 has been filed by the complainant before the District Forum. Both these appeals under Section 15 of the Consumer Protection Act, 1986 are directed against the order dt: 30.1.90 passed by the District Forum, Jodhpur in Complaint Case No. 116/89. By the impugned order opposite parties no. 1 to 3 were directed to refill the gas cylinder of the complainant after realising charges for refilling as when they are booked and supplied to the other consumers. Opposite parties no. 1 to 3 were ordered to comply with the order within one month. Facts leading to these appeals are these:

THE complainant deposited a sum of Rs. 290.23 with opposite party No. 4 (Hydro Carbons) towards security money and other accessories for booking of cooking gas vide Hydro Carbon receipt No. 4666 dt: 13.4.73. Gas connection was given to him vide delivery voucher No. 3807 dt: 16.4.73. No consumer number is mentioned in the delivery voucher. However the case of the complainant is that consumer number 3257 was allotted to him and consumer card for the delivery of refill cylinder thereto was prepared in his name by opposite party No. 4. THE complainant has stated that he used to get refills regularly on consumer number 3257 from opposite party no. 4 and is having refill vouchers from 1973 to 1982. Whenever refill gas cylinder was booked, gas coupons no. 26711-20 were also issued to him by respondent no. 4. Refills cash memos dt: 11.5.73,16.7.73 and 14.12.73 (photo stat copies) have been submitted, in which consumer No. H.C.3257 has been mentioned. In regard to the removed of defects, two memos dt: 11.5.73 and 14.8. have been submitted. In the memo dt: 14.8 below the signatures with ink date 19.8.82 has been written. Photo stat copy of the gas coupen for one refill No. 26711 has been filed in duplicate in which consumer number mentioned is 3257. Opposite party No. 4 informed the complainant on 20.9.82 that Consumer No. 3257 had been transferred to opposite party No. 3 (Technocrats). According to the complainant notice of the transfer was not communicated to him. THE complainant contacted opposite party No. 3 for booking the refill gas cylinder. Opposite party No. 3 in forced the complainant that Consumer No. 3257 of M/s. Hydro Carbons (Opposite party No. 4) is of Shri Ramesh Mal Singhvi C/o Shri B.M. Singhvi, 4th B, Nalla Road, Jodhpur as per register, and that name of Ramesh Mal Singhvi was deleted from the said register of consumers vide termination No. 11169 dt: 29.3.73 by opposite party No. 4. THE complainant has averred that from April 73 to August 82 he has been getting the refilled cylinder regularly under Consumer No. 3257. On refusal by opposite party No. 3 the complainant contacted the Sr. Sales Officer I.O.C. Jodhpur and apprised him of the original receipts and vouchers. He agreed to this blunder and the complainant was advised that it was only the Head Office i.e. opposite party No. 1 who can regularise the case. Opposite party No. 1 was moved with documents but nothing was done. It has been averred that the complainant has deposited the security money with opposite party No. 1 through opposite party No. 4 and so as to why the opposite parties have stopped to send the refill gas cylinder. It has been mentioned by the complainant that his wife is a patient of asthma and is allergic to smoke and other smells. She feels great difficulty without the cooking gas. To avoid kerosene stove, she is to cook on electric stove. All this is due to the negligence of the opposite parties in not supplying refill gas cylinders. He has, therefore, claimed Rs. 12,000/- per year from the opposite parties from the date of stoppage of supply of gas cylinder until the supply is started. THE complaint was filed before the District Forum, Jodhpur with a prayer that the opposite parties may be directed to regularise the supply of gas cylinder forthwith alongwith compensation and costs of the proceedings and also to take appropriate criminal action under the Act against the opposite parties. A direction was sought against the opposite parties to replace the old gas refill cylinder with regulator with a new piece to the complainant without further deposit of fresh security money. In support of the complaint, affidavit of the complainant was submitted. On behalf of opposite parties No. 1 and 2 version of the case was filed contesting the complaint. A preliminary objection was raised that opposite party No, 1 is a Corporation, the ownership of which vests in the Govt, of India, and as such per Section 3 of the Monopolies and Restrictive Trade Practice Act, 1969 the provisions of the Act are not applicable to this undertaking. Reference was made to Section 2 (r) of the Act and it was pleaded that for the non-supply of refill gas cylinder, no allegation or charge of unfair trade practice can be levelled upon it THE averments relating to the deposit of security amount or issuance of Indane consumer voucher were denied. For the work done by IOC itself, security is to be deposited with it. It was pleaded that Consumer No. 3257 was Ramesh Mal Singhvi and on his transfer, transfer voucher No. 11169 was issued. According to opposite party no. 1, opposite party No. 4 wrongly, illegally and unauthorisely in collusion with the complainant started giving refill gas cylinder on that consumer number. After the termination of the agency of opposite party No. 4, opposite party No. 3 was appointed as its agent and when the true facts came to the notice, opposite party No. 3 refused to supply the gas cylinder. It was asserted that no relationship of consumer and trader exists between the complainant and opposite party No. 3. An objection was taken regarding the maintainability of the complaint on the ground that the complainant on the same facts instituted. Suit No. 939/82 against the I.O.C. and opposite parties No. 3 and 4 in the Court of Munsif, Jodhpur city. THE relief sought in that suit was regarding the supply of refill gas cylinder. THE suit was dismissed on 17.12.86. After the dismissal of the suit, whatever cause of action has arisen that had come to an end after the dismissal of the suit. Malafide intention was imputed to opposite party No. 4 on the ground that refill gas cylinder as alleged by the complainant was supplied from 1973 to 1983 wrongly and illegally and on account of that the complainant is not entitled to refill gas cylinder from opposite parties No. 1 to 3. Allegations of the illness of his wife and the defects narrated by the complainant were denied. It was prayed that the complaint may be dismissed and further that it is a stale claim and the complaint has been filed after considerable delay and so is not maintainable. Opposite party No. 3 vide their letter dt: 10.5.89 addressed to the President, District Forum, Jodhpur stated that opposite party No. 3 is a distributor of LPG (cooking gas Indane) appointed by IOC Ltd. and are bound to work in accordance with their policies and guidelines. It was stated in that letter that in the month of September 1982 IOC asked it to give LPG refill gas supply to the consumers of Hydro Carbons in accordance with the consumer register of Hydro Carbons, material photo stat copy of that register was enclosed with the letter. It was submitted in that letter that name of the complainant B. Adwani does not appear on the said register at the claimed consumer No. 3257 and, therefore, opposite party No. 3 is unable to provide LPG refill supply against that consumer No. 3257. Opposite party No. 4 also filed reply to the complaint on 19.8.89. It was pleaded by them that according to the delivery vouchers produced by the complainant, he was allowed gas connection in accordance with the instructions of opposite parties No. 1 and 2. THE security amount deposited by the complainant alongwith the security amounts of the other consumers were sent to opposite party No. 1. A plea similar to that of opposite parties No. 1 and 2 regarding institution of suit and its dismissal was taken. An objection regarding limitation was also taken, stating that supply of refill gas cylinder to the complainant was discontinued from 1982. District Forum was established in the year 1989 and so it was no jurisdiction to hear the complaint, being barred by limitation. THE complainant submitted an affidavit on 29.9.89. An additional affidavit dt: 15.12.89 was submitted by the complainant. It will be dealt in detail hereinafter. On 14.12.89 photo stat copies of the order sheet dt: 12.4.89, application dt: 12.4.89 and application dt: 17.12.86 were submitted. THE District Forum passed the order as aforesaid on 30.1.90. Oppositp parties No. 1 and 2 filed the appeal on 6.3.90. THE Complaint filed the appeal no 26.3.90. It was reported that the complainant''s appeal was barred by 24 days. An application for condonation of delay supported by affidavit was submitted. In the application for condonation of delay the complainant-appellant has stated that he expected that opposite parties No. 1 and 3 would comply with the order dt: 30.1.90 of the District Forum and resume supply of gas cylinder replacing old cylinder within one month, though he had sent letter on 7.2.89 with photo stat copy of the order dt: 30.1.90 to opposite party No. 3 by registered post which was received by it on 12.2.90 and a copy thereof to opposite party-respondent No. 1 under certificate of posting. An application was submitted by him on 7.3.90 for non-compliance of the order dt: 30.1.90 before the District Forum. In para 4 of the application it was stated that the appellant had remained sick and is suffering from asthma etc., the treatment of which is still going on. Besides that appellant''s wife is too suffering from asthma and her treatment is still continuing, and the appellant''s mother got heart attack and is confined to bed till today and, therefore he could not file the appeal in time. It was prayed in the application that delay may be condoned. It is correct as contended by the learned Counsel for the opposite parties-respondents that the complainant-appellant has filed to make out any sufficient cause for not presenting the appeal within the prescribed period of limitation as according to him no sufficient cause explaining each days delay as envisaged by the expression so used in proviso to Section 15 of the Act has been made out. It is settled now that the word sufficient cause should be liberally construed and further that it is not proper to insist for explaining each days delay. We have carefully considered the principles laid down in AIR 1987 S.C. 303 and are of opinion that the complainant-appellant has succeeded in making out the case for condonation of delay in presenting the appeal. However, in view of the conclusion to which we have arrived at in regard to the merit of the appeal, no useful purpose will be served in pursuing the matter of belated presentation of the appeal. It needs to be mentioned here that the opposite parties-appellants in Appeal No. 76/90 also presented the appeal after three days of the period prescribed for presenting it. Having considered the application for condonation of delay under proviso to Section 15 of the Act supported by the affidavit, appeal was registered subject to all just exceptions. No objection was raised on behalf of the complainant at the time of the hearing of the appeal about the belated presentation of the appeal. In these circumstances, delay of three days is condoned. It will be proper to decide both the appeals on merits. We propose to take up Appeal No. 76/90 filed by opposite parties No. 1 and 2 appellants first. Mr. Anant Kasliwal, learned Counsel, urged that the order of the District Forum suffers from more than one infirmities and so it would be set aside. He assailed the following findings arrived at by the District Forum in the impugned order : 1. That opposite party No. 4 has given the gas connection to the complainant according to the instructions of opposite parties No. 1 and 2 and on account of that from the year 1973 to 1982, he has been getting the refill gas cylinders, that the security amount was deposited by opposite party No. 4 on the basis of which the gas connection was given and so it has been regularised and on the basis of these premises if opposite party No. 4 had committed any mistake and has acted against the rules, no fault can be found with the complainant. 2. That despite the dismissal of the suit in default and dismissal of the application for restoration as not pressed the complaint as filed before the District Forum was not maintainable. 3. That the wife of the complainant is a patient of asthama and allergy on account of smell, and 4. That as the complainant has given affidavit and has been receiving refill gas cylinder upto 1982, the complainant is entitled to have a refill gas cylinder from opposite parties No. 1 to 3.

We have tested the findings of the District Forum on the basis of the material on record and are of opinion that they are erroneous and cannot be sustained in law. A photo stat copy of the register submitted by opposite party No. 3 shows that Consumer No. 3257 was of Shri Ramesh Mal Singhvi. The subscription and voucher number of Shri Ramesh Mai Singhvi is 36303 dt: 28.9.72. After his transfer, a transfer voucher No. 11169 was issued as is evidenced by the entry in the register. It means that Shri Ramesh Mal Singhvi ceased to be a consumer of Hydro Carbons from 29.3.73. The complainant has produced refill cash memos dt: 16.7.73 and 14.12.73 showing Consumer No. as 3257. One fails to understand that when the transfer voucher of Consumer No. 3257 had already been issued on 29.3.73 how could refill voucher of consumer number 3257 on the two dates mentioned above could be issued by opposite party No. 4. The complainant reported some defects in regard to the gas stove. The memos are dated 11.5.73 and 14.8. As stated above, the photo stat copy of the memo dt: 14.8 by ink 19.8.82 has been written. In the first memo consumer number is not mentioned whereas in the other memo Consumer No. 3257 is mentioned. But that is not of much help to the complainant for the transfer voucher in favour of Consumer No. 3257 Shri Ramesh Mal Singhvi has already been issued. The complainant besides producing refill cash memo dt: 16.7.73 and 14.12.73 no refill cash voucher from 14.12.73 to 1982 have been produced. Gas coupon No. 26711 is of course of Hydro Carbons of Consumer No. 3257 and as statad above Consumer No. 3257 was of Shri Ramesh Mal Singhvi and transfer voucher No. 11169 dt 29.3.73 was issued to him. Receipt number 4666 dt: 13.4.73 of Hydro Carbons does not contain any consumer number. However the photo stat copy of the delivery voucher dt: 16.4.73 3257 is written. But that is also after the issuance of the transfer voucher. On the basis of the material on record the District Forum was not justified in coming to the conclusion which it did that as the refill gas cylinders were supplied to the complainant from 1973 to 1982 for Consumer No. 3257, the complainant is a consumer. The agency of opposite party No. 4 came to an end and as per instructions of opposite parties No. 1 and 2 in the month of September, 1982 opposite No. 3 was asked by opposite party No. 1 to refill supplies to the consumers of Hydro Carbons in accordance with the consumer register of M/s. Hydro Carbons and in the register of M/s. Hydro Carbons the name of the complainant Shri B. Adwani was not there. Consumer No. 3257 was Shri Ramesh Mal Singhvi who has already got issued a transfer voucher. The District Forum was wrong when it held that gas connection was given to the complainant according to rules by opposite party No. 4. It appears to be an arrangement between the complainant and opposite party No. 4. Opposite parties No. 1 to 3 are not bound to supply the refill gas cylinder, on the basis of the alleged supply of refill gas cylinder by opposite party No. 4 even after transfer voucher of Consumer No. 3257 had been issued.

THE complainant had instituted a suit in 1982 in the Court of Munsif, Jodhpur City against Indian Oil Corporation and opposite parties No. 3 and 4 which was registered as Suit No. 939/82. THE relief claimed in the suit was identical with that which has been claimed in the complaint. THE suit was based on the same facts which have been incorporated in the complaint. That suit was dismissed in default on 17.12.86. On the same day an application was made by the complainant for restoration of the suit. THE application remained pending for considerable time. It appears from the order sheet dt: 12.4.89 (photo stat copy of the certified copy is on record) that the complainant''s Counsel had submitted an application that he does not want to proceed with the application. As per prayer the application was dismissed as not pressed. According to this the application for restoration of the suit which was dismissed in default was dismissed as not pressed and, therefore, the suit remained dismissed in default. THE case of the complainant is that in fact he submitted an application for withdrawal of the suit. THE uncertified copy of the application dt: 12.4.89 in which the next date mentioned is 17.5.89 has been placed on record. Certified copy of the application was not filed by the complainant though certified time copy of the order sheet dt: 12.4.89 was submitted by the complainant. Be that as it may, in view of the order sheet dt: 12.4.89 the fact remains that the application for restoration of the suit was dismissed as not pressed. THE District Forum opined that the suit was not dismissed on merits and as he got the restoration application dismissed as not pressed, the complainants could file a complaint before the District Forum. It has been held in various cases by the National Commission that if a party has restored to a civil remedy by instituting a suit with respect to the same subject matter and identical reliefs, it is not proper for the redressal forums to proceed with the matter in complaint under Section 12 of the Act. In this case the suit instituted in 1982 by the complainant was dismissed in default in 1986 and under the provisions of Order IX, R. 9 the complainant could not bring a fresh suit on the same cause of action in a civil Court. It follows, therefore that the dismissal of the suit will operate as a bar for resorting to any remedy in the Court. This is not permissible. THE District Forum went completely wrong when it held that the complainant could file a complaint under the Act. THE matter does not rest at that, opposite party No. 3 did not supply refill gas cylinder to the complainant after receipt of the intimation from opposite party No. 1 that refill supplies are to be made to the consumers of M/s. Hydro Carbons in accordance with the consumer register of M/s. Hydrocarbons. After that supply of refill gas cylinders was not made to the complainant and that led to the institution of the suit in the year 1982 which was dismissed in default on 17.12.86. THE complainant filed the complaint before the District Forum in respect of the grievance which has occurred in the years 1982. Chapters I, II, and IV of the Act came into force on 15.4.87. Chapter III of the Act came into force from 1.7.87. After the coming into force of Chapter III, Redressal Forums were established. THE complainant as stated above filed the complainant on 5.4.89. THE claim of the complainant is a stale one, and it cannot be entertained. It should not have been entertained, heard and decided under the Act. For all these reasons the directions of the District Forum to opposite parties No. 1, 2 and 3 for supply of refill gas cylinder to the complainant cannot be sustained and the order under appeal in so far as relates to this direction has to be set aside.

THE complainant has filed Appeal No. 91/90 praying that opposite parties-respondents No. 1 to 3 may be directed to comply with the order dt: 30.1.90 and heavy compensation with interest and costs may be awarded to him from the date of stoppage of the supply of refill gas cylinder until the supply is resumed. It has already been held while deciding the appeal of opposite parties No. 1 and 2 that the complainant is not entitled to the supply of refill gas cylinder on the basis of Consumer No. 3257 and, therefore, compensation or award of interest does not arise. THE complainant is not entitled to the compliance of the order dt 30.1.90 which is being set aside and also for compensation. The result is of that Appeal No. 76/90 filed by opposite parties No. 1 and 2 before the District Forum is allowed and we set aside the order dt: 30.1.90 passed by the District Forum, Jodhpur in so far as it relates to the directions to opposite parties No. 1 to 3 to supply refill gas cylinder to the complainant on payment of costs. Appeal No. 91/90 filed by complainant has no merit and it consequently fails and is hereby dismissed. The complaint of the complainant filed against the opposite parties shall stand dismissed. Parties shall bear their own costs of both the appeals. Complaint dismissed.