S.A. Siddiqui, Member (Judicial):
1. Aggrieved by order dt. 19.01.2009 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 1956 (Hereinafter called the Act).
2. The facts of the case are that complainant/respondent is owner of Hyundai Ascent car bearing no. DL2FJ-0070. On 26.06.2007, 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 6½ 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 Orien Automobiles Delhi Pvt. Ltd. Patparganj on 28.06.2007. 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 dt. 28.07.2007 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 formost 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.
3. The complainant filed rejoinder. Parties led evidence. Upon evaluation of evidence on record, the Ld. 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 expensives 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.1000/- as litigation cost.
4. The OP was not satisfied and preferred this appeal inter-alia on the main ground that the Ld. DCDRF recorded a finding of contributed negligence. The complainant/respondent was found negligent himself. under the circumstances the Ld. DCDRF erred in attributing the negligence on the part of the appellant. It tantamounts to paying premium for the negligence of the complainant.
5. Since the contributoy negligence was established the entire burden of getting the engine repaired should have been put exclusively on the shoulders of complainant/respondent. The Ld. 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 Ld. DCDRF in its order dt. 19.01.2009 was erroneous and illegal and could not be maintained.
6. The complainant/respondent filed reply. He maintained that the petrol pump owner/vender was duty bound to enquire from the owner/driver and fill diesel or petrol which is required by the car. He denied that there was no sticker at the opening cork indicating diesel/petrol. He further maintained that the Ld. DCDRF recorded a clear- cut finding of deficiency on the part of the OP/appellant. He therefore cannot be permitted to wrongly attribute negligence towards owner/driver. The impugned judgment and order dt. 19.01.2009 was legally sound order and should be maintained.
7. We have heard counsel for the parties and peruse the record. The noteworthy feature of the case is that the finding of the contributory negligence has not been challenged. However, the contention of the learned counsel for the appellant was that since complainant/respondent miserably failed to discharge his part of the duty, he should not have been allowed to get any amount for repair of car engine and compensation, lest it would be like paying premium for the negligence. He failed to ensure that complainants car was parked at a correct dispensing unit. He also failed to ask vender to fill diesel as his car was a diesel car. Therefore no negligence could be attributed on the part of the petrol pump owner or the vender.
8. It has, however, not been disputed that the OP/appellant issued a receipt no. 5213 dt. 26.06.2007 to the car owner and it was written on the back of the receipt that œWrongly put petrol instead of diesel?. It was also a fact that petrol filled in the tank was removed and after complete cleaning diesel was filled. Some mechanic was pressed into service, the car was started but it was not running smoothly. Ultimately, the car owner had to spend a sum of Rs.38,604/- for complete repair of the engine. The car owner was put to lot of inconvenience, mental pain and agony. This fact is very much evident from the fact and circumstances of the case. We are therefore of the firm view that the finding of contributing negligence by the Ld. DCDRF does not suffer from any infirmity or illegality. The view taken by the Ld. DCDRF that both should bear half the cost of the repair also appears just and proper. An amount of compensation of Rs.3000/- and cost of Rs.1000/- are also very modest amounts. Therefore we do not find any justification for any interference from our side with the result the appeal fails and is liable to be dismissed.
9. Accordingly, the appeal is dismissed. Impugned order dt. 19.01.2009 is confirmed.
10. Let a copy of the judgment be provided to the parties free of cost as per rule.
11. FDR, if any, shall be released in favour of the appellant. Copy of the judgment shall be placed on the complaint file.