SHASHI GAS AGENCY vs SATYABHAMMA CHACHAN

BY this appeal under Sec. 15 of the Consumer Protection Act, 1986 ("the Act" herein) the opposite party-appellant questions the correctness and legality of the order dated July 26,1990 passed by the District Forum, Jaipur. BY the impugned order, the opposite-party-appellant was directed to refill the gas cylinder of the complainant within seven days from the date of booking and further it awarded compensation to the extent of Rs. 500/- for not refilling the gas cylinder in time.

FACTS leading to this appeal, briefly put are these : The opposite party is the authorised agent of Hindustan Petroleum Corporation for supplying gas to the consumers. The complainant-respondent is a registered consumer and number allotted to her is 704115. It is said that the complainant got booked for refilling gas cylinder three months prior to the filing to the complaint but the refilling cylinder was not delivered. Her case is that according to the rules and instructions in vogue refilled gas cylinder should have been supplied within two or three days. Various persons approaches were made by her. Her husband who is a member of the Rajasthan Higher Judicial Service, also phoned eight or ten times reminding for sending refilled gas cylinders. A peon by name Arun was sent with a request for supplying refilled cylinder but all these efforts were of no avail. According to the complainant, the opposite-party-appellant commits illegalities and irregularities in supplying the refilled gas cylinders. As the registers relating to stock booking and supplying of gas cylinders maintained by the opposite-party-appellant do not tally. As the gas cylinder was not supplied in time, she spent three times the cost of the gas cylinder in purchasing kerosene and on account of the use of kerosene, her kitchen was spoiled and the walls became black due to the smoke. She claimed Rs. 1,500/- as compensation though according to her the compensation is incapable of valuation. She filed the complaint dated 24.11.89 praying that a direction may be issued to the opposite party to supply refilled gas cylinder soon after the booking except under unusual circumstances and to restrain it from doing black-marketing of the refilled gas cylinders. A prayer was made for the examination of the record maintained by the opposite-party-appellant. Compensation as detailed in paras 10 and 11 was claimed beside Rs. 500/- as costs of the complaint. The opposite party filed version of the case dated 19.1.90 refuting the allegations made in the complaint. It pleaded that it is wrong on the part of the complainant to say that the refilled cylinder was not supplied even though booking was made three months prior to the filing of the complaint. In para 2 of the version of the case, following statement was submitted : - In support of this plea, the opposite-party filed photo stat copies of the bills of refilled gas cylinders. It was submitted that HPC was not making adequate and sufficient supply of gas cylinders for the last three and four months and the cylinders which were received from it were not sufficient to meet the demand and as a result of that, the gas cylinders were supplied even one month after the date of booking. The averments relating to illegalities, irregularities and black marketing of the gas cylinders were stoutly denied. A plea was taken that there is restriction of supply a refilled gas cylinder within 21 days from the date when the last gas cylinder had been supplied and in that connection reference was made to Order No. Rasad/Ra. Gas/88/194 dated 25.1.88, issued by the Collector (Supplies), Jaipur, A photo stat copy of that order was submitted. It is pertinent to refer the four clauses which have bearing on the question involved. They are as under : - The case of the opposite-party appellant is that the instructions contained in the above order are very well known to all the consumers for the order was given publicity by publishing in the newspapers. It was submitted that the reafter proper supply of the gas cylinders has been made to the complainant. The gas cylinders are being supplied regularly according to turn. On the basis of these premises in the version of the case, it was prayed that the complaint filed by the complainant-respondent may be dismissed. As stated above, version of the case was filed on 19.1.90. Thereafter, 30.1.90,24.4.90,24.3.90,21.4.90 and 26.5.90 were fixed for arguments and the complaint was adjourned for one reason or the other. Arguments were heard on 21.7.90. upto 26.5.90 parties did not produce any oral evidence before the District Forum. An affidavit of the complainant dated 21.7.90 is on record. There is no endorsement of the presentation of the affidavit on it. There is no mention in the order-sheet dated 21.7.90 that the complainant has filed any affidavit. The District Forum by its order dated 26.7.90 passed the impugned order mentioned here in above. Against that, the opposite party has filed this appeal as aforesaid.

Arguments were heard in part on 6.11.90. Thereafter, we directed the learned counsel for the appellant to produce the booking and delivery registers pertaining to the months August, 1989 to December, 1989 for our perusal. Learned counsel appearing for the appellant showed the booking and delivery registers pertaining to the aforesaid months to us and thereafter the arguments were concluded.

WE have carefully considered the reasons given by the District Forum mentioned by it in the order under appeal and also the record in the light of the submissions made by the learned Counsel for the parties. It was vehemently argued by the learned Counsel for the opposite party-appellant that the District Forum went completely wrong in giving a direction in violation of the aforesaid order of the Collector (Supplies) dated 25.1.88 relating to the supply of the refilled gas cylinders, for, the District Forum has ordered that the opposite party appellant should supply the refilled gas cylinder within seven days from the date of the booking of the cylinder. By order dated 25.1.88 issued by the Collector to all concerned, a direction was given that no booking of refilled gas cylinder should be made before the expiry of 21 days from the date of last booking of the gas and further that if the consumers want to take delivery at the agency then no gas cylinder should be supplied before the expiry of thirty days from the date of the supply of the last gas cylinder. Having considered the above mentioned order there is ample justification for the argument of the learned Counsel for the appellant that the District Forum should not have given a direction to the opposite-party-appellant (agency) for supplying gas cylinder within seven days from the date of booking. Subject to the availability of the refilled gas cylinders, the supply has to be made keeping in view the dates of booking and the turn of the consumer. It needs to be mentioned here that it is not in dispute that after the passing of the impugned order, the opposite party-appellant has complied with the direction of supplying the refilled gas cylinder within seven days from the date of the order. The direction given by the District Forum that the opposite party-appellant should supply refilled gas cylinder to the complainant-respondent within 7 days from the date of the booking needs to be modified. The opposite party-appellant should supply refilled gas cylinder to the complainant-respondent, when it is booked, keeping in view the order referred to hereinabove dt. 25.1.88, issued by the Collector (Supplies), Jaipur and that too subject to the availability of the gas cylinders with the gas agency. We want to emphasize that the opposite party-appellant should maintain a register of booking of the gas cylinders as and when they are booked datewise and the gas cylinders should be supplied subject to convenience of distance and feasibility according to the turn when the booking of the gas cylinders is done. We, ourselves, for our satisfaction examined the booking and the delivery registers of the aforesaid five months of the opposite-party-appellant and are satisfied subject to the explanations that were given to our queries that no objectionable irregularity was committed by it in supplying the gas cylinders to the respective consumers according to the booking. The complainant has positively come with a case that the gas cylinder was booked by her three months before the filing of the complaint which is dated 24.11.89. Reference in this connection is made to para 2 of the complaint. The statement submitted by the opposite-party in the version of the case completely belies the facts pleaded by the complainant. The tabular statement submitted by the opposite party in para 2 of the version of the case shows that booking was done on 31.8.89, 21.9.89 and 27.10.89 and refilled cylinders were supplied on 17.9.89,21.10.89 and 31.11.89 respectively. It is inconceivable that the gas cylinders were not supplied for three months after booking. In support of this, the opposite party has submitted the photostat copies of bills of the refilled gas cylinders pertaining to the above months including that of December. We have not mentioned the month of December, for, the complaint was filed on 24.11.89. The opposite party filed the affidavit of Smt. Shashi Jain with the reply to the injunction application, which contains the above mentioned tabular statement. The complainant filed affidavit in support of the injunction application on 24.11.89. Thereafter, it appears that affidavit dated 21.7.90 when the arguments were heard was filed and that was of the complainant. It is submitted by the opposite party-appellant that no affidavit was filed at the time of arguments by the complainant on that day, for, there is no endorsement of presentation on this affidavit and further that its copy was not delivered to the opposite party or its Counsel. In view of the conclusion to which we have arrived at, it will be a futile exercise to make a probe in the matter as to when the affidavit of the complainant was filed. The District Forum has mentioned in the impugned order that the complainant has filed affidavit in support of the complaint.

LEARNED Counsel appearing for the opposite party-appellant pressed for our consideration that the District Forum erred in awarding damages amounting to Rs. 500/- to the respondent without any evidence. It was urged that there was no negligence on the part of the opposite-party in not supplying the refilled gas cylinder. On the other hand, learned Counsel for the complainant-respondent supported the order for the payment of compensation on the basis of the facts pleaded in para 10 of the complaint which, according to him, stand supported by the contents of para 7 of the affidavit of the complainant dated 21/7/1990. Compensation can only be awarded under Sec. 14(1)(d) of the Act, which reads as under : - "(d) To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party."

This clause was considered in Consumer Unity and Society Calcutta v. Chairman and Managing Director, Bank of Baroda (Original Petition No. 2/889), it was observed as under : - "Under this clause compensation can be awarded to a consumer only in respect of any loss or injury found to have been suffered by him due to the negligence of the opposite party. It is of the essence of this provision that the loss or injury for which compensation is to be adjudged and awarded should be found to have been caused by the negligence of the opposite party. The complainant has therefore to establish that there was negligence on the part of the opposite party and that as a consequence thereof loss or injury was suffered by him. It is only in such event that award of compensation would be warranted under the provisions of this sub-clause."

The qaestion as to the manner of award of compensation under S. 14(1)(d) of the Act arose in Bharat Tractors, Muzaffarpur v. Sri Ramchandra Pandey I (1991) CPJ 152 (NC) (First Appeal No. 1 of 1989) decided on 15.5.89 by the National Commission It was held as under : - "While Section 14 of the Consumer Protection Act, 1986 (read with Section 18) does empower the State Commission to award compensation for any injury or loss suffered by a consumer on account of the negligence of the opposite party the claim must be substantiated by sufficient evidence and the compensation has to be assessed not arbitrarily but on the basis of well accepted legal principles."

The question of award of compensation and its quantification again arose in General Manager, South Eastern Railways and others v. Shri Anand Prasad Sinha and others I (1991) CPJ 10 (NC) (First Appeal No. 3 of 1988, decided on 28.8.89) by the National Commission wherein it was observed as under : - "It is an established principle of law that the compensation awarded must have a rational relation to the nature and extent of the injury, inconvenience, physical and mental suffering caused to the complainant by the action or omission of the opposite party. No attempt was made by the State Commission to approach the question of quantification of compensation from the correct perspective."

The principles laid down in the aforesaid decisions were reiterated in Commercial Officer, Office of the Telecom District Manager, Patna v. Bihar State Warehousing Corporation I (1991) CPJ 42 (NC) (First Appeal No. 2 of 1988 with Misc. Petition No. 19/89) decided on 18/10/1989, by the National Commission. It was observed : - "As indicated by us in some of our earlier judgments, the award of compensation by the Forum established under the Act has to be made only on well recognised legal principles governing the quantification of damages or compensation. The compensation to be awarded has to be qualified on a rational basis on the adjudicating forum showing the extent of injury suffered and the manner in which and the extent to which monetary loss has been caused thereby to the complainant."

While awarding Rs. 500/- as compensation the District Forum completely disregarded the principles laid down by the National Commission in the aforesaid decisions. Compensation cannot be awarded arbitrarily and it has to be assessed and quantified on the basis of the well recognised principles. In our opinion, the complainant has failed to substantiate the claim for compensation and further that there is no material to quantify the compensation. Be thus as it may, we have already held that the complainant has failed to substantiate her case that the refilled gas cylinder was not supplied to her though three months had elapsed when she booked it with the opposite party. Both the directions given by the District Forum for refilling the gas cylinder of the complainant within seven days from the date of booking and award of compensation amounting to Rs. 500.00 cannot be sustained. The order passed by the District Forum has, therefore, to be set aside. The result is that the appeal is allowed and the order dated 26/7/1990 passed by the District Forum, Jaipur in Complaint Case No. 242/89 is set aside. With the observations made hereinabove, the complaint is dismissed. The parties shall bear their respective costs of the appeal. Appeal allowed.