MATTA AUTOMOBILES BHARAT PETROLEUM CORP. LTD. Vs. BRIJ MOHAN

JUDGEMENT

(1.) AGGRIEVED by order dated 19.1.2009 passed in complaint case No. 1065/2007 by DCDRF(East) Convenient Shopping Centre, Saini Enclave, Delhi, opposite party filed this appeal under Section 15 of the Consumer Protection Act 1986 (Hereinafter called the Act). The facts of the case are that complainant/respondent is owner of Hyundai Ascent car bearing No. DL2FJ -0070. On 26.6.2007, he was going to Hathras (UP) from Shakarpur (Delhi) along with his friends. On the way he went to a petrol pump namely Matta Automobiles, appellant/OP, and asked the vender/operator to fill speed diesel. However, inadvertently or by mistake the fuel operator filled petrol instead of diesel. When the complainant detected this blunder mistake he brought this fact to the notice of the owner/respondent who assured that petrol filled in the tank will be removed and that no harm to the engine of the car will be caused. He called a mechanic from Tata Telco who removed the petrol from the fuel tank of the car. The car was started. Complainant/respondent somehow reached Hathras and came back to Delhi. He had to stay at petrol pump for about 6 1/2 hours and was subjected to lot of problems. The engine of the car was also not running smoothly and was giving troubles. He therefore, took his car to Orion Automobiles Delhi Pvt. Ltd., Patparganj on 28.6.2007. The car was ultimately repaired thoroughly and a bill of Rs. 38,604 was raised by the mechanic which was paid by the complainant/respondent. Since the complainant underwent lot of inconvenience, mental pain and agony he decided to file a consumer complaint. He sent registered legal notice dated 28.7.2007 to OP/appellant which was duly tendered consumer complaint was filed against which the OP/appellant filed written statement. The OP/appellant maintained that no cause of action accrued to the complainant and he wrongly filed the complaint which is liable to be dismissed. There was no negligence on the part of the OP/appellant or petrol pump operator. The complainant should himself have been vigilant. He cannot attribute negligence on the part of the petrol pump owner/operator. From outer appearance one cannot make out whether a car is a diesel or petrol car. He should not have stopped his car at a diesel dispensing unit. There was no sticker at the opening cork indicating diesel/petrol. Moreover, the petrol pump sells Bharat Petroleum Products such as speed petrol, diesel, higher diesel. There exists no speed diesel. If vender is asked to dispense speed, petrol shall be put into the tank. The same thing happened with this car also. It is the foremost duty of the car owner/driver to remain vigilant and to ensure that right fuel was filled. The negligence cannot be attributed to the petrol pump owner. He helped the car owner being consumer friendly and helpful.

(2.) THE complainant filed rejoinder. Parties led evidence. Upon evaluation of evidence on record, the learned DCDRF recorded a finding of negligence on the part of the OP. However, he also found the complainant guilty of 'contributory negligence' and decided that both the parties should bear half the expenses incurred in repair of the car engine. He, therefore, decreed that the OP should pay a sum of Rs. 20,000 towards expenses of the car engine repair besides paying Rs. 3,000 as compensation Rs. 1,000 as litigation cost.

(3.) SINCE the contributory negligence was established the entire burden of getting the engine repaired should have been put exclusively on the shoulders of complainant/respondent. The learned DCDRF further erred for not recording a specific finding against the complainant/respondent. Being car owner he should have ensured that the car was parked at a diesel dispensing unit. He should have further ensured that only diesel was filled in a diesel engine car. Any conduct otherwise on the part of the car owner/driver was wrong and reprehensible. Thus, the conclusion reached by the learned DCDRF in its order date 19.1.2009 was erroneous and illegal and could not be maintained.