Dipan Roy vs M/S. Sreema (Indan) Distributors

This revision petition has been filed by the petitioner Dipan Roy against the order dated 11.09.2013 of the State Consumer Disputes Redressal Commission, West Bengal, (in short 'the State Commission') passed in SC Case No.FA/108/13.

Brief facts of the case are that the complainant/petitioner booked for gas refill, on 20.8.2011 as booking no.241269 with the opposite party/respondent. To the utter shock to the complainant, opposite party did not deliver the gas refill, even after 18 days from the date of booking. Opposite party did not deliver the gas refill, even after getting a registered letter from the complainant. As the opposite party was not willing to supply the gas refill to the complainant, this act of the opposite party amounted to deficiency in service. The complainant filed a consumer complaint before the District Consumer Disputes Redressal Forum South 2- Pargans, Alipore Kolkata (in short the 'District Forum'). Opposite party contested and pleaded that all the gas agencies had to be regulated by norms and procedure as laid down by Indian Oil. Complainant did not book any refill, either before or after sending the letter. Complainant only booked for gas refill on 26.9.2011 and the same was delivered on 28.9.2011. The complaint was allowed vide order dated 31.12.2012 as follows:-

"In view of above discussions it appears that the case of the complainant is proved.

As a result the case succeeds. Hence.

Ordered

"That the case being CC No.252/11 be and the same is decreed on contest with costs of Rs.5,000/-. The OP is directed to pay Rs.1,00,000/- in total for price of cooked food delivered from home delivery concern, mental agony and deficiency in service and compensation and Rs.5000/- for cost totalling to Rs.1,05,000/- within one month from this day failing which the said amount shall carry an interest @10% p.a. from the date of default till realisation.

This unfair trade practice and deficiency in service is not only to the complainant but to the society also and as such the OP shall pay penalty to the tune of Rs.3,00,000/- out of which 25% to be paid to the complainant and 75% to be deposited with the Consumer Welfare fund within one month."

Aggrieved by the order of the District Forum, opposite party filed an appeal bearing No.FA/108/13 before State Commission. The State Commission passed the following order on 11.09.2013:-

"Going by the above noted facts as on record and discussed we are of the considered view that the complaint was disposed of without giving serious consideration to the evidence produced by the OP/Appellant and relying heavily on the verbal submission of the complainant. The appeal has merit and the same succeeds. Hence,

Ordered

That the appeal be and the same is allowed on contest. The Impugned order is set aside. Consequently, the complaint is dismissed. There shall be no order as to costs."

Hence the present revision petition.

Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioner/complainant reiterated brief facts of the complaint as mentioned above and stated that the State Commission has allowed the appeal of the opposite party on the ground of delivery challans produced by the opposite party wherein it is stated that the gas cylinder was supplied on 28.9.2011 on the booking made on 26.09.2011 whereas, the fact is that no booking was made on 26.9.2011 and no gas cylinder was supplied on 28.9.2011. In fact the cylinder was supplied in the month of November 2011. The State Commission has also allowed the appeal on the ground that no telephone record was filed by the appellant/complainant. Learned counsel stated that he has now got this record and the same has been put on record in this revision petition. Learned counsel for the complainant stated that during non-supply of gas cylinder by the opposite party, complainant had to order food from outside and he had spent Rs.58,000/- in getting the food from outside. Therefore, the District Forum has rightly allowed the complaint and awarded a compensation of Rs.1,00,000/- to the complainant. The State Commission has allowed the appeal of the opposite party and dismissed the complaint on wrong facts.

On the other hand, learned counsel for the respondent/opposite party stated that the complainant made a booking on 26.9.2011 and the gas cylinder was supplied on 28.9.2011. Hence, there is no deficiency on the part of the respondent. The signature on the delivery challan are of the same person who used to receive the gas cylinder in earlier months. The complainant has not denied signature of his attendant who used to receive the gas cylinder. The State Commission has rightly considered the facts and evidence on record to decide the appeal. When no telephone record was filed before the District Forum or the State Commission, and on the contrary, delivery challan were filed by the opposite party duly signed by the attendant of the complainant, the State Commission has based its decision on direct evidence available on record as against the verbal pleadings of the complainant. The gas agency is not earning such huge profits that it could pay a compensation of Rs.1,00,000/- in one case and that too when there is no deficiency on the part of the opposite party.

Learned counsel for the respondent further argued that no fresh record can be accepted at the stage of the revision as this Commission has only to see jurisdictional aspect of the order passed by the State Commission. The opposite party has not got any opportunity to counter these records that are being filed by the complainant at this belated stage. Therefore, these records cannot be considered for deciding the present revision petition.

I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the record. From the pattern of delivery challans, it seems that the claim of booking of the complainant on 28.8.2011 and 3.9.2011 may be true even if the record filed by the petitioner at this stage is not considered. Clearly, when the case was filed, the complainant did not have any record of the booking of the gas cylinder. Call records now being filed by the petitioner/complainant cannot be taken as evidence at this stage and in this regard I agree with the contention of the learned counsel for the respondent that in the revision petition only jurisdictional aspects of the order of the State Commission are to be seen. The District Forum while accepting the expenditure on food has missed out the fact that if the cylinder was available, he would have made expenditure at his home for preparing the food, therefore, the expenditure of Rs.58,000/- cannot be accepted at its face value. The expenditure of food from outside can also not be accepted due to the reason that it is not possible to examine what kind of food was ordered and in how much quantity Section 14(1)(d) of the Consumer Protection Act, reads as under:-

"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"

From the above, it is clear that compensation has to be commensurate with the loss or injury suffered by the complainant due to negligence of the opposite party. In the present case, negligence is that the gas cylinder was not supplied in time. In fact, it is only the cooking expenditure in preparing the food that could be the loss to the complainant. The total food expenditure cannot be considered to be the loss or injury to the complainant. It is not possible to come to any figure which can be treated as cooking expenses for the food supplied by the hotel or agency from where the food was ordered. It is only possible that a lumpsum compensation be granted to the complainant. In my considered view, a compensation of Rs.10,000/- will be just and reasonable in the facts and circumstances of the case.

On the basis of the above discussion, the order of the State Commission dated 11.09.2013 is set aside and the order of the District Forum dated 31.12.2012 is modified to the extent that the opposite party/respondent shall be liable to pay a compensation of Rs.10,000/- (rupees ten thousand only) along with @6% p.a. interest from the date of filing of the complaint before the District Forum i.e. from 02.12.2011 till actual payment instead of Rs.1,00,000/- as awarded by the District Forum along with 10% p.a. interest. The order relating to cost of Rs.5,000/- passed by the District Forum is maintained. Time for compliance would be six weeks from the date of receipt/service of this order. The revision petition no.1412 of 2014 is accordingly disposed of.