Complaint filed on 20-03-2009
Complaint disposed on 7-7-2011
BEFORE THE DISTRICT CONSUMER REDRESSAL FORUM :: AT :: KARIMNAGAR
PRESENT: HON’BLE SRI K. DEVI PRASAD, B.Sc., LL.B., PRESIDENT
SMT.E.LAXMI, M.A.LL.M, PGDCA (CONSUMER AWARENESS) MEMBER
SRI K. CHANDRAMOHAN RAO, B.Com, LL.B., MEMBER
THURSDAY, THE SEVENTH DAY OF JULY, TWO THOUSAND ELEVEN
CONSUMER COMPLAINT NO. 57 OF 2009
Between:
- Sri Katkam Mahesh, S/o. Narsaiah, Age 39 years, Occ : Private Employee, presently R/o. Chaitanya Nagar, Metpally, Karimnagar district.
- Sri Katkam Venu, S/o. Narsaiah, Age 35 years, Occ : Petty business (Idli Centre), R/o. Chaitanya Nagar, Metpally, Karimnagar district.
… Complainants
AND
- Hindustan Petroleum Corporation Limited, Regional Office Post Box No.2, Cherlapally, Hyderabad, represented through its Chief Regional Manager.
- Metpally Gas Agencies, situate at H.No.2-3-166/A, Vegetable Market Road, Opp: SBH Street, Metpally – 505 325, district Karimnagar, represented through its Manager/Proprietor.
… Opposite Parties.
This complaint is coming up before us for final hearing on 7-6-2011 in the presence of Sri G.Sai Kumar and K. Narsa Goud, Advocates for complainant and Sri E. Raja Reddy and M. Ravindranath Reddy and B. Srinaryana, Advocates for opposite party no.1 and Sri Md.Kaleem Mohinuddin, Advocate for opposite party no.2 and, and on perusing the material papers on record, and having stood over for consideration this day, the Forum passed the following :
::ORDER::
1. This complaint is filed under Section 12 of C.P. Act, 1986 seeking direction to opposite parties to pay Rs.19,05,000/- in all counts towards compensation, damages and costs of the complaint.
2. The brief averments of the complaint are that complainant no.1 is the Kartha of the joint family of complainant no.2 who is the consumer of LPG Gas bearing no. 623082 with opposite party no.2. Both the complainants are living in house jointly in a rented portion situated at Chaithanya Nagar locality of Metpally in premises bearing H.No.1-3-250. On 26.12.2008 at about 9-00 PM, while the inmates of the complainants were attending the domestic chores, all of sudden, the refill supplied by the opposite parties burst with heavy sound and the residence caught fire. In the said accident, the wife of complainant no.2 was burnt and in order to save his wife, the complainant no.2 also came in contact with fire and both of them sustained bodily injuries. At the time of accident the complainant no.1 was away from home. The complainant no.2 and his wife sustained internal burn injuries and is undergoing treatment at Government Hospital at Metpally. The doctors who are attending on the injured persons have informed that the complainant no.2 sustained more than 50% of permanent disability and his wife sustained disability to the extent of more than 25% and both of them suffer with disfigured faces. This had happened only due to leakage of Cylinder supplied by the opposite parties.
3. The complainants further submit that having learnt of the accident, the fire extinguisher extinguished the fire. Even then, the damage to the house was caused to the extent of Rs.1,20,000/- and damage to the household articles was caused to the extent of Rs.85,000/-. The MRO of Metpally visited the spot and assessed the damages. The complainants informed about the accident to the opposite parties and requested to make good the loss sustained by them and they have also submitted relevant documents to process the claim. But the opposite parties failed to settle the claim of the complainants.
4. The complainants further submit that complainant no.2 and his wife were running Tiffin Center on a Push Cart at Cinema Talkies Road, Metpally and earning Rs.10,000/- per month. Due to the permanent disability sustained by them, they were kept away of their business. The doctors who are attending on them have opined that the chances of recovery from disfigurement of the faces are very remote and they have to remain with disfigured faces for ever. Hence, the complainants claimed Rs.17,00,000/- towards compensation for the bodily injuries caused to the complainant no.2 and his wife. Vexed with the delaying attitude of the opposite parties, the complainant-1 got issued Legal Notice to opposite parties. As there is no response from opposite parties the complainant filed this complaint.
5. The Chief Regional Manager, Hyderabad filed counter on behalf of Opposite party no.1 denying the averments made in the complaint and submits that as per clause 18 of the Dealership Agreement Dt:14.8.2001 between the Corporation and the 2nd opposite party who is a distributor, the relationship between them is that of Principal to Principal basis. Further as per clause 18, 19 and 21 of the said agreement, the 2nd opposite party has to indemnify the 1st opposite party with respect to any third party claims. The 2nd opposite party has taken insurance policy for third party risks. Therefore, the Insurance Co. is a proper and necessary party to the complaint. Hence the complaint is liable to be dismissed for non-joinder of necessary party.
6. Opposite party no.1 further submits that consumer no.623082 was issued to complainant no.1 on 6.2.2007 with single Cylinder and the residential address was given as H.No.4-2-102, Near Post Office, Metpally. Subsequently, on the request of complainant no.1 for change of address Dt: 28.6.2008, the refills were being delivered to the new address i.e. H.No.1-4-180/2, Chaithanya Nagar, Metpally. But the said accident occurred on 26.12.2008 at H.No.1-3-250 and the Cylinder involved in the accident is also not supplied by opposite party no.1, it is of Super Gas Company as evident from the document Service Attendance Certificate Ref No.118/08 Dt: 26.12.2008. The opposite party no.1 further submits that they came to know the alleged accident only after receiving the notice Dt: 10.3.2009 on 17.3.2009. After gathering the entire information, a suitable reply was given to complainants on 8.4.2009 and the same was also acknowledged by the complainants on 11.4.2009. Therefore, there is no deficiency or negligence in service on the part of opposite party no.1. Hence, prayed to dismiss the complaint against them.
7. Opposite party no.2 filed counter denying the averments made in the counter and submitted that the complainant no.2 and his wife are resident of H.No.1-3-250 at Chaithanya Nagar locality of Metpally which is a rented house of one Arukulla Rajesh and alleged incident occurred at the said house. The complainant no.1 is resident of H.No.4-2102 near Post Office, Metpally. The complainant no.1 earlier was a consumer of opposite party no.2 and he was having his residence at H.No.4-2-102 and last Cylinder was sent at the same address of complainant no.1. The Cylinder involved in the accident was not supplied by opposite party no.2. The Cylinder which was involved in the accident was of Super Gas Company as evident from the Fire Service Attendance Certificate, as such, they are no way concerned with the incident. The opposite party no.2 further submits that the complainant no.2 and his wife are not the consumers of opposite party no.2 and the alleged incident did not occur due to the leakage of refill supplied by the opposite party no.2. Hence, they are not liable to pay any compensation to complainants. Therefore, prayed for dismissal of the complaint against opposite party no.2 with costs.
8. The complainant no.2 filed Proof Affidavit on his behalf and on behalf of complainant no.1 reiterating the averments made in the complaint and filed documents which are marked as Ex.A1 to A12. Ex.A1 is the subscription voucher issued by opposite parties Dt: 6.2.2007. Ex.A2 & A3 are the Panchanama Reports conducted by MRO, Metpally Dt: 27.12.2008. Ex.A4 is the photo copy of Domestic Consumer Card bearing no.623082. Ex.A5 contains two original Under Treatment Certificates of complainant no.2 and his wife Dt: 30.12.2008. Ex.A6 & A7 are the Professional Courier Receipts addressed to opposite parties Dt: 10.3.2009. Ex.A8 is the copy of Legal Notice Dt: 10.3.2009 issued by counsel for complainant addressed to opposite parties. Ex.A9 is the Family Member Certificate issued by Thahsildar, Metpally Dt: 18.8.2009. Ex.A10 is the attested copy of Property Tax Receipt Dt: 5.9.2008. Ex.A11 & A12 contains (nine + one) photographs showing the damage caused by fire accident.
9. Both the opposite parties have filed their Proof Affidavits reiterating the averments made in the counter and the documents filed on behalf of them are marked as Ex.B1 to B9. Ex.B1 is the photo copy of Fire Service Attendance Certificate Dt: 13.3.2009. Ex.B2 is the photo copy of representation by complainant submitted to opposite parties for change of address Dt: 28.6.2001. Ex.B3 & B4 are the photo copies of HP Gas Receipt Dt: 3.12.2008 & 2.3.2009 respectively. Ex.B5 is the reply from counsel for opposite parties Dt: 2.4.2009. Ex.B6 is the photo copy of acknowledgment card Dt: 11.4.2009. Ex.B7 is the photo copy of postal receipt Dt: 8.4.2009. Ex.B8 is the photo copy of agreement Dt: 14.8.2001. Ex.B9 & A1 are one and the same documents.
10. The point for consideration is whether there is any deficiency of service on the part of opposite parties, if so, what relief can be awarded to the complainants?
11. The complainants no.1 & 2 averred in their complaint that they were residing at H.No.1-3-250 Metpally with their wives and families together. It is further stated that complainant no.1 is the subscriber of HP Gas agent i.e. the opposite party no.2 under consumer connection no.623082 under domestic category.
12. It is further stated in the complaint that on 26.12.2008 around 9.15 P.M. the said HP Gas Cylinder exploded causing grievous injuries to complainant no.2 and his wife Mamatha who were shifted to local Priya Sai Hospital, Metpally by 108 Ambulance for treatment. Complainants state that complainant No.1 and his wife were away at the time of the incident.
13. Complainants further stated that the fire fighters of the local fire station arrived at the scene of the accident on being informed and extinguished the fire which engulfed the house, gutting the roof, doors, windows and house-hold articles.
14. Complainants alleged that the said cylinder being leaky caused the accident resulting in injuries to complainant no.2 and his wife and damages to house, doors, windows and house-hold articles. The damage to house was estimated at Rs.1,20,000/- and house-hold articles at Rs.85,000/ totaling to Rs.2,05,000/- as mentioned in the Panchanama Report Dt: 27.12.2008 Ex.A2 & A3.
15. The complainants state that complainant no.1 and his wife who were eaking out their liveli-hood by running a Tiffin Hotel were deprived of their source of income as they were grievously injured with disfigured faces as a result of fire accident caused by defective LPG Cylinder.
16. Complainants alleged that complainant no.1 approached opposite party no.2 and requested for payment of compensation of Rs.17,00,000/- having submitted all the required documents and that complainant no.1 made several rounds demanding settlement of claim, but in vain.
17. Complainants alleged that opposite party no.2 neither settled his claim nor repudiated inspite of several approaches. As no response came-forth from opposite party no.2 the complainant no.1 got issued Legal Notice Dt: 10.3.2009 to opposite party no.2 (Ex.A8) demanding settlement of claim for compensation which too went unresponded. Vexed at this the complainants filed this complaint alleging deficiency of service on the part of opposite party no.1 & 2 and prayed for relief.
18. Opposite party no.1 in his counter denied all the allegations of the complainants and contended that it is not liable to pay any compensation under the terms of agreement with opposite party no.2 as contained in Ex.B8. Relying on the said memorandum of agreement, we do not find any deficiency of service on the part of opposite party no.1 and so the complaint against opposite party no.1 is dismissed.
19. Opposite party no.2 in its counter, denying all the allegations, made in the complaint contend that it was not liable to pay any compensation to the complainants on the plea that the Cylinder involved in the accident was of Super Gas Company and not of HP Gas Company and in support of this contention it filed Fire Service Attendance Certificate Dt: 13.3.2009 (Ex.B1) in which it was clearly mentioned “cause of fire – LPG Super Gas leakage”.
20. Opposite party no.2 raised contentions that the HP Cylinder was delivered to the complainant no.1 at his changed addressed i.e. H.No.1-4-180/2, Chaithanya Nagar, Metpally and filed LPG delivery slips Dt: 3.12.2008 (Ex.B3) and Dt: 6.3.2009 (Ex.B4) where as the accident occurred at H.No.1-3-250, Metpally as stated by the complainant. Opposite party no.2 filed the letter of the complainant no.1 Ex.B2 with request to opposite party no.2 to change the address for delivery of LPG Cylinder to H.No.1-4-180/2 where the said Cylinder was delivered vide Ex.B3 and B4. No complaint is filed to the Police immediately after the incident. Even there is no evidence produced to show that the damaged Cylinder was returned to the agent concerned for making claim.
21. Complainants failed to file the Gas Delivery Slip to show that HP Cylinders were supplied to them at H.No.1-3-250, Metpally where the explosion of the HP Gas Cylinder alleged to have occurred. More over the complainants failed to lodge complaint with Police on the date of the accident inspite of the damages and loss being on high side and the complainant no.1 failed to state as to disposal of the exploded LPG Cylinder. He ought to have returned it to opposite party no.2 for lodging complaint and claiming compensation.
22. In the Panchanama Ex.A3 there is no mention of the name of the company of the Cylinder involved in the explosion. Here we find two things at variance. In the complaint house number of the ill-fated house where fire accident occurred was mentioned as 1-3-250 and the name of the Cylinder as HP Gas Cylinder, where as delivery slips of the Cylinder marked Ex.B3 & B4 filed by opposite party no.2 show the number of the house as 1-4-180/2. The Service Attendance Certificate Ex.B1 makes it clear that the cause of fire with LPG Super Gas leakage. In the Photographs filed marked as Ex.A11 numbering seven do not depict the damaged Cylinder though the photographs are said to have been taken immediately after the fire accident. None of the photographs show the damaged Cylinder or any part of the Cylinder. But strangely the statement made in the Panchanama shows that the leaky Cylinder was thrown out of the house into drainage. When the Cylinder is thrown out in the drainage as per Ex.A3 Panchanama how could the photographs taken with regard to the damaged articles in the house depict Cylinder in the house. This clearly speaks that for the purpose of this case the Cylinder was kept in the house and the photographs of it was taken. Assuming without damage if the Cylinder was thrown in the drainage there was no problem for the complainants to get the photographs of the Cylinder lying in the drainage. It appears because the photographs is created for the purpose of this case PW2 was again recalled and examined to get the CD marked as Ex.A12 and filed photograph. Though the photographs was filed it could not be marked due to objection. During the Cross Examination the complainant no.1 deposed that he did not give letter Ex.B2 Dt: 28.6.2008 to the opposite party no.2 (HP Gas Company for change of address to H.No.1-4-180/2 instead of 4-2-102. Perusal of the signature appearing as of complainant no.1 on Ex.B2 in which he sought change of address compared with his signature found on deposition i.e. the statement recorded before this Forum as PW1 clearly show that both the signatures are of one person. Ex.B3 & B4 the delivery slips disclose the house number as 1-4-180/2 thus the documents produced by the complainant and their oral evidence recorded in Forum and the documents filed by opposite parties clearly prove that the Gas Cylinder which exploded in house number 1-3-250 Metpally was of Super Gas Company and not of HP Gas Company.
23. Opposite party no.2 could clearly establish two things viz that it did not deliver its HP Gas Cylinder at H.No.1-3-250 and that the Cylinder which exploded at H.No.1-3-250 was of Super Gas Company and not of HP Gas Company of which he was the agent on the strength of Ex.B3, B4 & B1.
24. The complainants failed to show the manner of disposal of the exploded Cylinder because it is the obligation of the subscriber to surrender the cylinder to its agent by way of information about the alleged leakage and to pave the way for claiming compensation as justified. Complainants even failed to report the matter to local Police which could have added credence to their allegations as effective evidence.
25. In the complaint the complainants stated that the complainant no.1 submitted all the required documents to opposite party no.2 along with his claim for compensation but failed to file any documents in proof. In the complaint the complainants alleged that their legal notice Dt: 10.3.2009 addressed to opposite parties was not responded. But actually the counsel for opposite parties responded to the complainants vide his letter Dt: 2.4.2009 Ex.B5 in which it was clearly mentioned that the Cylinder involved in the accident was not of HP Gas Company and that no such accident took place at H.No.4-2-102 where their HP Cylinder refills were delivered. In fact there is no record placed by complainants to show that immediately after the fire accident information was given to the agent concerned with regard to fire accident. The delivery slips Ex.B3 & B4 prove that the refills were supplied in January 2009 and in February 2009 to the said customer no.623082 at above address H.No.1-4-180/2 Chaithanya Nagar, Metpally. Thus, these documents filed by opposite parties falsify the allegation of the complainants.
26. On the basis of the above findings we see no deficiency of service on the part of opposite party no.2 and besides, their allegation that the opposite party no.2 supplied leaky Cylinder to the complainant no.1 is not proved. The counsel for the complainants has filed a citation reported in III (2010) CPJ 377 (NC), rendered decision in a case Bharat Petroleum Corporation Ltd. & Others Vs Dharampal. In this case the identity of the company of the LPG Cylinder which was involved in the mishap was established on the basis of Police Report and so the agent i.e. LPG Company was held liable and the order of the District Forum below and of State Forum were upheld by National Commission with some modifications in the award.
27. But in this case the complainants could not establish that HP Gas Cylinder was involved in the mishap. On the other hand it is the Super Gas Cylinder which was involved in the fire accident. Therefore, this case is not relevant to that on hand.
28. At the time of granting LPG connection the consumer is given leaflet containing instructions as precautionary measures about what to do and what not to do. One among them is that the seal of the refill should be got checked by the delivery crew at the time of taking delivery as a sign of precaution. More over when such explosion of LPG Cylinder occurs causing fatal burn injuries besides heavy damage to property it is normal course a complaint would be lodged with the Fire Station authorities and with Police, thereafter to the agent concerned. But here the complainants failed to place on record any evidence to prove that he had informed the agent about the accident and that he had surrendered damaged Cylinder and lodged written claim for compensation. In such situation the Enquiry Report of Police supports regarding the identity of the Cylinder. But in the absence of this evidentiary proof, we draw inference that the LPG Cylinder involved in the explosion was of Super Gas Company and not of HP Gas Company.
29. In the result the complaint is dismissed with no order as to costs.
Dictated to Stenographer (DUR) and transcribed by her, after correction the orders pronounced by us in the open court this the 7th day of July, 2011.
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MEMBER MEMBER PRESIDENT
NO ORAL EVIDENCE HAS BEEN ADDUCED ON EITHER SIDE
FOR COMPLAINANT:
Ex.A1 is the subscription voucher issued by opposite parties Dt: 6.2.2007.
Ex.A2 & A3 are the Panchanama Reports conducted by MRO, Metpally Dt: 27.12.2008.
Ex.A4 is the photo copy of Domestic Consumer Card bearing no.623082.
Ex.A5 contains two original Under Treatment Certificates of complainant no.2 and his wife Dt: 30.12.2008.
Ex.A6 & A7 are the Professional Courier Receipts addressed to opposite parties Dt: 10.3.2009.
Ex.A8 is the copy of Legal Notice Dt: 10.3.2009 issued by counsel for complainant addressed to opposite parties.
Ex.A9 is the Family Member Certificate issued by Thahsildar, Metpally Dt: 18.8.2009.
Ex.A10 is the attested copy of Property Tax Receipt Dt: 5.9.2008.
Ex.A11 & A12 contains (nine + one) photographs showing the damage caused by fire accident.
FOR OPPOSITE PARTIES:
Ex.B1 is the photo copy of Fire Service Attendance Certificate Dt: 13.3.2009.
Ex.B2 is the photo copy of representation by complainant submitted to opposite parties for change of address Dt: 28.6.2001.
Ex.B3 & B4 are the photo copies of HP Gas Receipt Dt: 3.12.2008 & 2.3.2009 respectively.
Ex.B5 is the reply from counsel for opposite parties Dt: 2.4.2009.
Ex.B6 is the photo copy of acknowledgment card Dt: 11.4.2009.
Ex.B7 is the photo copy of postal receipt Dt: 8.4.2009.
Ex.B8 is the photo copy of agreement Dt: 14.8.2001.
Ex.B9 & A1 are one and the same documents.
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MEMBER MEMBER PRESIDENT
