BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

Miscellaneous Petition No. 257 / 2007

Arising out of the Order of Hon'ble Commission, 
in Original Petition No. 224 / 2001, dated 16.08.2007

A petition under sec. 22(2) of the Consumer Protection Act

and

In the matter of:

Consumer Protection Council, Rourkela
C/66, Sector-2, Rourkela-769006. Orissa
(A Voluntary Consumer Organisation,
Registered under the Societies Registration
Act, Regn. No. SGD-617-103/87-88,
represented through its Secretary,
Sri B.Vaidyanathan)                                ...      Complainant(s)
                                                          Vs.
Indian Oil Corporation Ltd.
Represented through its Chairman,
Indian Oil Corporation Ltd.
Regd. Office: `Indian Oil Bhavan'
G-9, Ali Yavar Jung Marg
Bandra (East)
Mumbai - 400051 and Others                 ...       Opposite Parties

To

The Hon'ble President &
Members of National Consumer Disputes Redressal Commission
NEW DELHI

May it please your honours:

An application for the review of the Orders passed by the Hon'ble Commission, on 16^th August 2007, in the light of the facts of the case, mandate of law and the submissions of the Complainant placed before this Hon'ble Commission, on the following grounds:

1.0 That an important prayer of the Complainant, (Prayer (d)) "Pay 1% of the amount unduly collected in a year from the consumers through under-weighment, from across the country, to the Complainant Council, so that it may use the fund for doing more such surveys, studies and consumer protection activities", though did find a mention in the Order of the Hon'ble Commission, neither a specific ruling has been given nor the reason for not conceding the relief sought for in the prayer.

1.1 That as directed by the Hon'ble Commission, on 29.01.2004, after the amendments to the Consumer Protection Act were incorporated in 15^th March 2003, the Complainant filed the consolidated submissions, on 03.04.2004, in which all the Prayers stated in the Original Petition, filed on 26.06.01 were repeated, but for Prayer (d), in which the Complainant prayed for 5% of the amount unduly collected from the consumers through under-weighment, from across the country.

That in para 8.0 of the submissions of the above referred petition, the Complainant Council stated "OPs (IOC) have shown total lack of sensitivity to the shortcoming highlighted by the Council. While Hindustan Petroleum and Bharat Petroleum appears to have started the pre-delivery weighment checking of LPG refills at the door steps of the consumers, IOC is yet to commence the same. This also indicates the continuing lack of concern for the consumer interest. This as per sec. 14(d) of the CP Act, deserves the consideration of the Hon'ble Commission for award of `punitive damages."

The consumers continued to suffer loss even in 2004, as the interim order of the Hon'ble Commission, was passed in October 2005, as prayed for by the Complainant (Prayer (b)) for pre-delivery checking of weight of the refill, at the doorstep of the household. So the relief provided in the Act should be available in the instant case as well.

That the OPs (IOC) right from the year 2000 till even 2007 had consistently disregarded consumer interests, in spite of the Hon'ble Commission being seized of the matter. One can well imagine the plight of an ordinary consumer. Hence this is a fit case for awarding `punitive damages'.

2.0 That as directed by the Hon'ble Commission, on 29.01.2004, after the amendments to the Consumer Protection Act were incorporated in 15^th March 2003, the Complainant filed the consolidated submissions, on 03.04.2004, in which all the Prayers stated in the Original Petition, filed on 26.06.01 were repeated, but for Prayer (d), in which the Complainant prayed for " Pay 5% of the amount unduly collected from the consumers through under-weighment, from across the country, to the Complainant Council, so that it may use the fund for doing more such surveys, studies and consumer protection activities". 

This prayer was in line with the amended Consumer Protection Act, in which as per sec. 14(hb), which says: "to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently: 

Provided that the minimum amount of sum so payable shall not be less than five per cent of the value of such defective goods sold or services provided, as the case may be, to such consumers: 

Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed."

The consumers continued to suffer loss even in 2004, as the interim order of the Hon'ble Commission, was passed in October 2005, as prayed for by the Complainant (Prayer (b)) for pre-delivery checking of weight of the refill, at the doorstep of the household. So the relief granted under the Act should be available in the instant case as well. But there is no mention about this prayer in the instant order nor the reasons for not granting the relief that was sought. It is hazardous to guess the quantum of LPG in every refill and admittedly a huge number of consumers across the country. M/s IOC had been indifferent all along to the plight of the consumers and had got unduly enriched by thousands of crores of Rupees. Then why commensurate relieif should not be given to a consumer organisation which brought the problem to public domain and succeeded in systematically (in the process of) ending the loss to crores of consumers across the country? 

2.2 That the Supreme Court in Omar Usman Chamadia v. Abdul and Anr. (JT 2004 (2) SC 176), in para 10, it was observed as follows:
 

"The High Court should not, unless for very good reasons desist from indicating the grounds on which their orders are based because when the matters are brought in appeal, the court of appeal has every reason to know the basis on which the impugned order has been made. It may be that while concurring with the lower court's order, it may not be necessary for the said appellate court to assign reasons but that is not so while reversing such orders of the lower courts. It may be convenient for the said court to pass orders without indicating the grounds or basis but it certainly is not convenient for the court of appeal while considering the correctness of such impugned orders.                                    ....................................

The need for delivering a reasoned order is a requirement of law which has to be complied with in all appealable orders. This Court in somewhat similar situation has deprecated the practice of non-speaking orders in the case of State of Punjab and Ors. v. Jagdev Singh Talwandi (AIR 1984 SC 444)".

2.3 That the in Lucknow Development Authority vs. M.K.Gupta, AIR 1994 SC 787, Hon'ble Supreme Court stated; 

"The provisions of the Consumer Protection Act thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach, subject to that it should not do violence to the language of the provisions and is not contrary to attempted objective of the enactment."

"The expression `unless the context otherwise requires' in section 2 of the Consumer Protection Act, 1986 implies that the definitions of various words and expressions given in this section should be followed generally; but if the context otherwise requires then the interpreter has the discretion to adopt such other meaning of the particular word or expression which is in harmony with the context of the expression and for this purpose sufficient flexibility is provided by the insertion of these words. The General Clauses Act is enacted in order to shorten language used in parliamentary legislation and to avoid repetition of the same words in the course of the each piece of legislation. Such a Act is not meant to give a hide-bound meaning to terms and phrases generally occurring in legislations. That is the reason why the definition section contains the words like `unless there is anything repugnant in the subject or context'."

2.5 That the National Commission has observed in United India Insurance Co. Ltd. vs. Mohan Lal and sons [1986-96 Consumer 1685 (NS)] that the forum under the Act is to protect the interest of the consumer and can grant relief on the basis of the facts in the complaint considering the overall circumstances of the case.

2.6 That an important issue which needs the consideration of the Hon'ble Commission is that voluntary consumer organisations by and large are starved of even the minimum funds required for meaningful sustenance. Hence majority of them depend largely on the patronage of one or two individuals for their survival. That is the reason almost all of them still depend on either foreign funding agencies or the government for taking up various projects and schemes. It is very sad to note that even the few good consumer magazines brought today are struggling to survive, with a circulation of 10,000 - 15,000. In contrast, in countries like UK, millions of copies of such magazines are sold. 

The public apathy in this country necessitates the consumer organisations to look upon the government or funding agencies for their sustenance. Though there are several instances in which an individual consumer suffers a loss, because of the quantum of loss at the individual level being low and since majority of them do not have the technical expertise to pursue the matter, the government expected the consumer organisations to fill the void. It was probably because of this ground reality and also to encourage voluntary consumer organisations to file Public Interest Cases, affecting large number of consumers, the Consumer Protection Act was amended in 2002 and section 14(hb) was introduced.

Unfortunately the legal mandate has not been invoked and the order of the National Commission has ignored the vital prayer of the Council, without even discussing it. Incidentally, the Commission's order has not questioned the quantum of loss (Rs. 750 crores) estimated by the Council. In the larger interests of the consumer movement and the consumer organisations the Council has to be paid the amount prayed for.

Further, any path-breaking verdict is bound to encourage more and more consumer groups to take up cases which affect large number of consumers. That would give a big boost to consumer protection.

3.0 In response to the second prayer of the Complainant the Hon'ble Commission has directed the Oil Marketing Companies (OMC) to issue necessary instruction so that the distributors provide the delivery man, proper weighing scale to facilitate weighing of LPG gas cylinder in presence of customers. Obviously this is required till all the bottling plants are modernised. The Opposite Parties have been directed to publish this information in vernacular as well as in English and Hindi newspapers apart from similar type of advertisements in TV for the information of consumers. 

That the Hon'ble Commission had directed the OPs (IOC), in 2005, to issue advertisements as inserted by M/s Hindustan Petroleum. In spite of that direction the OPs had failed to publish advertisements as directed by the Commission. Copies of the advertisements M/s Hindustan Petroleum and M/s IOC are furnished at Annexures I and II. Even this short form of advertisement had not been published properly. For example, M/s IOC does not seem to have published the delayed advertisement (published in March 2007, as against the direction given in Oct. 2005) in `The Hindu', the largest circulated and widely read newspaper of Tamil Nadu.

That the Hon'ble Commission is keen to protect the consumer interest and safeguard the consumers from unethical practices. So it will be in fitness of things that the OMCs are directed to issue advertisements as was done by M/s Hindustan Petroleum. This will be consistent with the earlier directives of the Hon'ble Commission, issued in 2005 and after all a prominent and conspicuous display of information is bound to attract the attention of all concerned.

4.0 That the affidavit filed by the Director (Marketing) of the Ministry of Petroleum & Natural Gas, Government of India, New Delhi, on 13^th October 2006, had stated that the balance 120 bottling plants would be provided with electronic systems, in a phased period of 4 years. The Hon'ble Commission was pleased to direct the Opposite Parties to modernize the plants in 4 years. The 4 year period ought to commence from 16^th October 2006, the date of filing the affidavit. Though the Order states the period as 4 years, the date of completion of the period has not been stated. As almost an year has passed since the affidavit was filed, it will be in fitness of things that the completion date is mentioned in the order.

5.0 That the Hon'ble Commission was pleased to direct M/s IOC to pay the Complainant-Council a sum of Rs. 50,000/- to meet the expenses incurred by it in protecting the interest of consumers and to continue to protect the interest of the consumers. It may be worth noting that the Hon'ble Commission was pleased to direct the O.P. no.1 to pay the Complainant a sum of Rs. 7,500/- as costs of adjournment, on 12^th Sept. 2003. This instant case had about 29 sittings already and the Complainant had to be present on all these occasions, traveling all the way from Rourkela, spending on an average Rs. 10,000/- per sitting. Even if one goes by the cost awarded by the Hon'ble Commission for the adjournment of one sitting to be reasonable at Rs. 7,500/-, without adequate compensation, the Council will hardly be in a position to "continue to protect the interest of the consumers". 

6.0 That the important findings of the Professors of IIT, Kharagpur have not been adequately reflected in the Order of the Hon'ble Commission. In the Executive Summary of the Report submitted by the professors, it has been stated "Hence the plant (carousel and its accessories) cannot bottle the correct weight of LPG (between 14.05 and 14.35 kg) at its normal production rate." Similarly in "Conclusions: (1).the carousel and its accessories were found to be showing large "variability" with respect to the quantity of LPG filled in each cylinder. (2) At this variability observed the carousel and its accessories is not capable of delivering the correct filled weight of LPG (14.2 ± 0.15 kg) in the cylinders while the plant runs at normal filling/production rate." Though inclusion of these findings might not alter the final conclusion reached in the order, it will nevertheless indicate the strong grounds on which the case was filed and pursued by the Complainant Council.

In view of the submissions contained in the preceding paragraphs the Complainant most respectfully prays the Hon'ble President and Members of the Commission to direct the Opposite Parties to:

a) modernise the left over 120 LPG bottling plants within 4 years commencing from 16^th October 2006;

b) to insert advertisements in vernacular, English and Hindi newspapers and also in TV about pre-delivery weighment checking of LPG refills in presence of the customers, as was publicised by M/s Hindustan Petroleum;

c) to pay 5% of the amount unduly collected in a year from the consumers, estimated at Rs. 750 crores, through under-weighment, from across the country, to the Complainant Council, so that it may use the fund for doing more such surveys, studies and consumer protection activities; and

d) to pass any other order deemed necessary, like inclusion of IIT professors' summary report;

for which act of kindness, the Complainant shall, as is duty bound, ever pray.

                                              For Consumer Protection Council, Rourkela

                                                                (B.VAIDYANATHAN)
                                                                     SECRETARY