JUDGMENT
B.S. Yadav, J. (Member)
(1) This is a Revision Petition filed against the Order passed by State Consumer Disputes Redressal Commission, Haryana, Chandigarh by which the order of District Forum, Ambala City dismissing the complaints separately filed by Respondent Nos. 1 and 2 (herein) were set aside and the two complaints were remanded to the District Forum for their trial on merits.
(2) The facts are that the present Petitioner M/s. Mohindra Gas Enterprises holds distributorship of L.P.G. (liquified petroleum gas) for Bharat Petroleum Corporation Ltd. (Respondent No.3 herein). Respondent No. I Mr. Jagdish Poswal and Respondent No.2 Mr. Baij Nath had separately registered with the said distributor for Lpg connection in the year 1985. They were told by the distributor at that time that they would be informed of their turn for getting the gas connection when their bookings matured. Both those persons waited patiently for information from the distributor regarding the release of their respective gas connection but to no avail. In November, 1990 they came to know that many other persons junior to them in the order of booking of gas connection with the distributor had been supplied gas connections. Both those persons approached the distributor who told them that their gas connections have been cancelled as they did not come to take the same. The distributor further told them that if they were still anxious to have the gas connection they would have to purchase gas stove (chulla) from him. The price quoted for the gas stove was exorbitant. The complainants refused to yield to the pressure of the distributor and filed complaint before the District Forum alleging that they were never informed by the distributor about maturity of their booking and he be directed to release their gas connections.
(3) The distributor in both the complaint cases took identical defence. According to him, the complainants failed to take the gas connection within the stipulated period of 90 days when information about the maturity of their gas connection was conveyed to them. The gas connection could now be released only if No Objection Certificate was obtained from the Respondent No. 3 (herein). A preliminary objection was also taken on behalf of the distributor that the complaints had no locus standi to file the complaint under the Consumer Protection Act. 1986 (for short the Act) as no money whatsoever was paid to him at the time of registration and consequently no consideration either for the purchase of goods or hiring of the services had been paid.
(4) The District Forum upheld the preliminary objection of the distributor and held that the complainants had neither bought any goods for consideration from the distributor nor had hired any service for consideration and therefore none of them was a ‘consumer’ as defined in Section 2( I )(d) of the Act. It may be mentioned here that both the complaints were heard together by the District Forum. Consequantly, both the complaints were dismissed.
(5) Both the complainants filed separate appeals before the State Commission which were heard together and disposed of by the impugned order. The State Commission arrived at the following findings. 1. After noticing the definition of ‘service’ as given in Section 2 (l)(o) of the Act wherein the words ‘supply of electrical or other energy’ occur, the State Commission came to the conclusion that Lpg being another kind of energy (analogous with electrical energy) would squarely come within the fold of service as defined in the Act. 2. After noticing the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1988 issued under the Essential Commodities Act. 1955, the State Commission held that the statutory orders itself labels a person who is registered with a distributor or an oil company as a ‘consumer’. 3. The State Commission perused the Lpg Manual (Technical Section) and the terms of the subscription voucher and held that the totality of the incidents visualise a contract between the oil companies on the one hand and the registered consumers on the others and there are mutual obligations of the supply of Lpg to the consumers and the payment, therefore, on the terms and conditions laid down in the Manual. 4. The definition in the sub-clause (ii) of clause (d) of Sub-Section (1) of Section 2 of the Act clearly brings within the ambit and scope not only consideration which has been paid but equally a consideration which as yet has been wholly promised or partly paid or partly promised. The consumer undertakes to pay and is bound to pay the price of gas fixed by oil companies according to its tariff and to make deposits for the loan of gas cylinder and the other accessories in the manner provided in the Manual. Rights and liabilities on either side come into being. 283 5. Person formally registering for the release of Lpg connection with the authorised dealers of the nationalised Petroleum Corporation are ‘consumers’ within the ambit of its definition under the Act. Consequently, as noticed earlier both the appeals were accepted and order of the District Forum was set aside and the complaints were remanded for trial on merits.
(6) We have heard the arguments advanced on behalf of the parties and have gone through the records. In our opinion the State Commission has very succinty and carefully dealt with each and every point. The Counsel for the Petitioner tried to attack the findings of the State Commission on fact as well as law. It is to be kept in mind that this Commission is dealing with this Petition in its revisional jurisdiction. The appellate Order of the State Commission cannot be set aside on the ground that some point of law or of fact has been wrongly decided. It is well settled that an Appellate Forum has the jurisdiction to decide a question of law as well as of fact rightly or wrongly. While exercising the revisional jurisdiction the question to be seen is whether the lower Forum has exercised jurisdiction and rested in it by law or has exercised it with material irregularity. The counsel for the petitioner failed to point out any irregularity or lack or ergror of jurisdiction in the order of the State Commission. The counsel for the Petitioner arrued that the State Commission fell into error in holding that it is a case of hiring of service. According to him it is merely a case of sale of goods i.e. of liquified petroleum gas. In our opinion, there is no weight in this argument. Item 03.03.01 of the Manual referred to above itself lays down’ a L.P. Gas customer obtains the following continuing or recurring services: (a) Loan of the Corporation equipment. (b) delivery of refill cylinders. (c) technical service for appliance on leakage of equipment. Therefore, when the Petroleum Corporation itself does not claim that it is selling any goods to the customer, it is futile to argue that the customer of L.P.Gas connection is a purchaser of goods.
(7) It was next pointed out by the petitioner’s counsel that the subscription voucher referred to by the State Commission is the one which is signed both by the distributor and the customer when the gas connection is released and the customer pays the necessary dues. A proforma of the subscription voucher has also been produced by the Revision Petitioner. However, the Manual shows that the document which the customer signs at the time of registration for gas connection is also called ‘subscription voucher’. The State Commission has reproduced the condition Nos. 2 to 4 printed on the reverse of the subscription voucher. These conditions are not similar to the one contained in the proforma produced by the petitioner. Therefore, it is wrong to argue that the State Commission did not refer to the proper document while coming to the conclusion that the registration of the gas connection clearly visualise a contract between the Oil Company on the one hand and the registered consumer on the other and there are mutual obligations of the supply of L.P. Gas to the consumers and the payment on the terms and conditions laid down in the Manual.
(8) If no payment is made at the time of registration it does not mean that a person getting himself registered for a gas connection with the distributor is not hiring any service. Service as defined in sub-clause (0) of clause (1) of Section 2 means service of any description which is made available to potential -users. The consumer who hires a service has been defined in sub-clause (ii) of clause (d) of sub-section (1) of Section 2 of the Act. According to the definition it is not necessary that consideration should be paid at the time of hiring of service. If the transaction is supported by consideration which has been paid or promised, or partly paid or partly promised or under any system of deferred payment even then it will be a valid consideration for the hiring of the service. The present case is one, the payment of part consideration was deferred till the gas connection was released.
(9) In the light of the above’ discussion, we do not find any force in the present Revision Petition and dismiss the same with cost which we assess at Rs.500.00 payable to each Respondent No. 1 & 2.
Y. Krishan, J. (Member)
(10) In the order of my brother Member Mr. Justice B.S. Yadav, he has stated the relevant facts in detail and it is, therefore, unnecessary for me to repeat them.
(11) The order of the State Commission, which has been challenged in the Revision Petition, raises two questions of great importance. The District Forum had dismissed the complaint on the grounds that the L. P.G. distributor and that the complainant had not hired any “service” of the distributor for consideration. The findings of the District Forum were reversed by the State commission in appeal by holding that: (a) L.P.G. is a “service” and not a “goods”: (b) that on being registered with the distributor for supply of gas, a person becomes a ‘consumer’ under the Consumer Protection Act.
(12) The findings of the State Commission on these issues are of far reaching importance” having all India ramifications and go to the root of the scope of jurisdiction of Consumer Forums.
(13) According to the Revision Petitioner, L.P.Gas is a ‘goods’ and that the State Commission has grossly erred in holding that the supply of L.P.Gas falls within the definition of ‘service’ under Clause (o) of Section 2(1) of the Consumer Protection Act by comparing the same with the supply of electricity. He has submitted that while electricity is supplied as goods. Liquid petroleum gas (LPG) is definitely not just an energy but goods in the form of liquidity. Simply because the gas is used as energy for heating purpose, cannot make it cease to be goods, If that be so, even the coal or fire-wood would not be ‘goods'”.
(14) Further the Revision Petitioner has pleaded that a person by executing the subscription Voucher and getting himself registered with the L.P.G. distributor does not become a ‘consumer’ within the meaning of the Consumer Protection Act. 1986.
(15) I have carefully considered these issues and my findings there are as under: Whether L.P.Gas falls in the definition of ‘service’ in Clause (o) of Section 2 (1) of the Consumer Protection Act? In my opinion Section 2 (l)(o) includes within the term ‘service’ electrical or other energy-”other energy” being chemical, nuclear or mechanical (wind, water, tidal energy etc.). Fuels, solid, liquid or gaseous, though sources of energy are clearly ‘goods’. L.P.G. is a fuel which produces heal energy through combustion. L.P.G. is a substance which is the source of energy but is not energy. Other examples of fule substances are coal, petrol, wood etc. L.P. Gas is not energy, but a substance which can be converted into energy. In my opinion L.P.Gas is “goods”. 2. The second issue is who is a consumer under the Consumer Protection Act?
(16) The State Commission’s order has drawn attention to definition of the ‘consumer’ in the L.P.G. Regulation and Supply Order of 1988 issued under the Essential Commodities Act. 1955. “A person who is registered with a distributor or oil company for supply of L.P.Gas cylinder.” We, however, have to go by the definition of consumer as contained in Section 2(l)(d) of the Consumer Protection Act. When a customer signs subscription voucher and makes deposit for L.P. Gas connection he may be a consumer under L.P.Gas Regulation and Supply Order of 1993. But he cannot be deemed to have become a consumer as he has neither bought any goods nor hired any services. He may have paid in advance a part of the consideration in the term of a deposit but the acquisition of goods or enjoyment of service is still to follow.
(17) In consequence, registration of a potential customer for L.P.G. connection does not make him a consumer under the Consumer Protection Act.
(18) In short the supply of L.P.Gas is a ‘sale of goods’ and does not involve, in itself, ‘rendering of service’. More importantly registration of a person with the distributor for supply of gas does not make him a ‘consumer’ under the Consumer Protection Act so long as he does not actually purchase the L.P.Gas.
(19) In the result, the order of the State Commission is set aside and the order of the District Forum is confirmed. There is no order as to costs.