A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
C.C. 129 of 2012
Between :
01. D. Shekar @ D. V. Shekar,
S/o Venkat Rajaiah,
Aged about 53 years, Occ : Driver
02. D. Raj Kumar, S/o D. Shekar,
Aged about 30 years, Occ : nil
03. D. Kiran Kumar, S/o D. Shekar,
Aged about 26 years, Occ : nil
All are r/o H. No. 29-646/1/A, Dinakar Nagar
Vinayak Nagar, Neredmet
Malkakgiri Mandal, R. R. District .. Complainants
And
01 M/s. Shreya Enterprises ( H. P. Gas Dealers),
Rep. by its Proprietor Shoba Singh,
Office at H. No. 29-147/33, Neredmet,
Malkajgiri Mandal, R. R. District.
02.M/s. Hindustan Petroleum Corporation Limited,
Rep. by Chief Regional Manager, HCL post.
Bag No. 2, Cherlapally, Ranga Reddy District.
03.The New India Assurance Company Limited
Rep. by its General Manager
Off at No. 401and 402, 4th floor, Al-kareem
Trade Centre, M. G. Road, Ranigunj,
Secunderabad ..Opposite parties
Counsel for the Complainants : M/s. G. Natesh Reddy
Counsel for the Opposite parties : Mr. P. Shankar Rao Patil for OP.1
M/s. Thoom Srinivas for Op.2
M/s. S.N. Padmini for OP.3
Coram :
Sri R. Lakshminarasimha Rao… Hon’ble Incharge President
Sri T. Ashok Kumar .. Hon’ble Member
And
Sri S. Bhujanga Rao ……………Hon’ble Member
Friday, the Twentieth Day of December
Two Thousand Thirteen
Oral Order : ( As per Sri T. Ashok Kumar , Hon’ble Member )
****
01. The complainants filed this complaint U/s. 17 (a) (1) of Consumer Protection Act, 1986 to direct the opposite parties to pay to them an amount of Rs.15,96,500/- for death of Smt. Renuka @ Gynamma, Rs.22,79,400/- to complainant no.2 and Rs.16,45,085/- to complainant No.3, which, comes to Rs.55,20,935/- along with interest @ 12% P.A. from the date of incident till realization towards damages for mental agony and for the loss of the deceased and permanent disability of complainants 2 and 3 and Rs.10,000/- towards costs and legal expenses
02. The case of the complainants in brief is that the complainants’ family is the customer of OP.1 gas dealers under Consumer No.515800 and OP.1 used to supply gas cylinders for their domestic purpose. On 26.12.2008 at about 10.30 hours Smt. D. Renuka @ Gynamma, who is the wife of the 1st complainant and mother of the 2nd and 3rd complainants when exchanging the gas connection from empty cylinder to full cylinder, due to leakage of gas she got burning injuries and on her hues and cries the complainants 2 and 3 who tried to rescue her also sustained 40% above burning injuries. Later, they were got admitted into Gandhi hospital, Secunderabad where the said Renuka @ Gynamma succumbed to the burning injuries on 31.12. 2008 and the complainant no.2 sustained burning injuries to his right hand who became 70% disable and the complainant no. 3 sustained burning injuries to his both legs who became 75% disable, were shifted to ADR Hospital, Arland Bagh, Malkajgiri where they had undergone operations and spent huge amounts of money. The police Neredmet, Cyberabad registered a case in Crime No. 522 of 2008. The 2nd complainant used to earn @ Rs.15,000/- by doing job in M/s. Heritage Foods Limited and complainant no. 3 @ Rs.10,000/- per month doing work in M/s. Universal Cell Company. The complainants 2 and 3 lost their jobs and their lives became miserable. The Ops paid Rs. One lakh while promising to pay Rs One Crore from APCPL. Despite the said promise, Ops sent a letter dated 15.06.2012 repudiating the claim under policy bearing No. 021900/46/07/79/000000142 on the ground that the accident took place other than the Gas connection House no. 29-591 and the gas cylinder was delivered on 17.05.20 to the same address but due to illiteracy and ignorance the complainant could not change the house address in the records. The opposite parties committed breach of contract. The acts of Ops amount to negligence, unfair trade practice and deficiency in service and hence the complaint.
3. OP.1 filed counter opposing the claim of the complainants and denying the allegations made in the complaint and the brief facts of the counter are as under :
The first complainant is the customer of the OP.1 and the said complainants registered address is House no. 29-591, Vinayak nagar, Naredpet, Ranga Reddy District. As usual on booking on 21,.11.2008, the first opposite party delivered Gas cylinder to the first complainant after due verification , checking before delivery on 27.11.2008 vide cylinder serial no. 57400 and subsequently he booked the refilling on 24.12.2008 vide booking No. 10088 and it was so delivered on 29,12.2008 vide cylinder serial no. 320525 on cash memo no. 11649, which disclose the previous cylinder sl. No. 57400. The cylinder which was involved in the subject accident was not supplied by Op.1 and the serial number of the cylinder was different one and it might have borrowed cylinder which was involved in the accident and not delivered by Op.1. In the police investigation the serial number of the cylinder which was involved in the accident is noted as 096605T which was seized from the house of the complainants. There is no fault or deficiency in service on the part of OP.1 and it did not give any assurance to pay Rs. One crore to the complainants as alleged. The income and calculations made by the complainants are incorrect and they were inflated for the purpose of this case. There is no cause of action and the complaint is barred by limitation because accident took place in the month of December, 2008 and the complaint was filed in the year 2012 after lapse of three years. There is no technical expert’s report in favour of the complainant. Connecting cause of death of the wife of the first complainant and injuries to other complainants with OPs. OP. 1 insured with the op. 3 vide policy bearing No. 610410/46/07/22/00000051 and it was in force from 22.1.2008 to 21.1.2009 and the alleged accident occurred during the period in which the said policy was in subsistence. If there is any liability on Op. 1 since it insured with the third opposite party, OP. 3 is liable to pay the compensation in the event of granting the same. OP. 1 paid Rs. One lakh to the complainant on account of pressure of local leaders and also as a gallata was made in connection with the death of the deceased and thus prayed to dismiss the complaint.
4. Second opposite party filed the counter resisting the claim of the complainants and the gist of the said counter is as under :
OP. 2 has no comments to make with regard to the averments regarding purchase of gas cylinder by the complainants from OP.1 and it is unfortunate that wife of the first complainant and mother of complainants 2 and 3 succumbed to the injuries due to the accident involving the gas cylinder and the injuries suffered by complainants 2 and 3. The leaked gas simply will not catch fire without any source of ignition available near to the cylinder. The consumer of the gas was not following the safe cooking practice which is time and again being advertised and published by the Oil marketing companies. The kitchen was not having any proper ventilation which is essential for any kitchen having the gas cylinder for cooking purpose. There was a Diya ( Lamp) in the kitchen and further more the charger of telephone coin box kept in the kitchen was having loose connection,. The cylinder which was involved in the accident was not the cylinder supplied to the complainants by Op. 1 and it appears tht the complainants had borrowed a cylinder from somebody else after the existing cylinder had exhausted as the complainants were having a single cylinder connection. The last delivery of the cylinder was made to the complainants on 27.11.2008 vide cash memo no. 10912 with cylinder serial no,. 57400 where as the cylinder which was involved in the above accident was bearing serial no. 096605 and the said number is not matching with the serial number of the cylinder which was supplied by Op.1. even though OP 2 has been educating the consumers of the gas about the safety measures to be taken by operating the gas cylinder unfortunately some of the consumers are not following the safety measures and operating gas cylinder very causally without being concerned of the consequences. Income of the deceased and the complainants is inflated for the purpose of the complaint. The agreement between Ops 1 and 2 is principal to principal relationship wherein Op 1 agreed and undertaken to indemnity OP 2 Corporation from any claim and liability arising out of any gas cylinder accident in any manner and thereby second OP has been absolved of any liability arising out of the above incidents. OP. 2 did not make any payment nor made promise to pay the amount as alleged. OP. 3 has rejected the claim of the complainants on the ground that the accidents had taken place other than the registered address of the consumer which is in violation of the terms and conditions of the insurance policy. There is no deficiency in service on the part of OP. 2 so also negligence and on the other hand consumer followed unsafe practices while dealing with the gas cylinder. Second OP has all modern and highly sophisticated facilities for testing the cylinders before and after refilling for any leakage or defect by following stringent safety and testing procedures. Once the cylinders are delivered to the distributors it is the responsibility of the distributor to keep the refilled cylinder safely and to check the same for any leakage or damage before lifting the same from its Godown and after delivering the same to the customers and thus Op. 2 prayed to dismiss the complaint.
5. OP.3 opposed the claim by filing written version and contended that the deceased did not mention in her statement given to police that the leaked cylinder was purchased /obtained on 26.12.2008 itself . OP. 3 had issued insurance policy in favour of Op. 1 and a claim was made with Op. 3 vide concerned letter dt. 6.1.2009 does not contain the name and details of the insurance company to which the complainants made the claim intimation. The policy was not in force as on the date of incident. As per the terms and conditions of the policy there is no privity of contract between the complainants and OP. 3 and the complainants have no right to make OP. 3 as party to the consumer complaint. Moreover, the said type of policies which were issued to a gas agencies were indemnity policies i.e only reimbursements to the insured after honouring their respective claims and in respect of the claims that arise due to the explosions of gas cylinders etc. falls under the head public liability which restricts to a sum of Rs. 10 lakhs as per the policy furnished by the complainants and OP.1 either for a single accident or series of accidents that arise in one claim for the same cause of action as such if valid effect and subsisting insurance policies filed and in view of the terms and conditions of the policy, claim of the complainants is not maintainable as death of the deceased did not occur while installation of the filled gas cylinder by the employees of the insured as the said death occurred while the deceased herself exchanging the regulator from the empty cylinder to the filled cylinder which has no details. Apart from the said details, the contentions raised by Ops 1 and 2 were also reiterated by OP 3 and prayed to dismiss the complaint.
6. Both sides filed evidence affidavits reiterating their respective pleadings and Ex. A-1 to A-13 were marked on behalf of the complainant and Ex. B -1 to B -16 were marked for the OPs.
7. Heard both sides with reference to their respective contentions and OP. 2 filed written arguments.
8. Now the points for consideration are
(i) Whether the complaint is filed within limitation?
(ii) Whether Ops 1 to 3 rendered deficient service to the complainants as alleged
(iii) Whether the complainants are entitled for compensation and if so what would be the reasonable compensation to be awarded to them
(iv) To what if relief ?
9. Point No. 1 :
According to the complainants the alleged accident had taken place on 26.12.008 at about 10.30 AM and on account of leakage in domestic gas cylinder Smt. D. Renuka @ Gynamma who is the wife of the first complainant and mother of the complainants 2 an 3 was subjected to fire while she was exchanging the gas connection from empty cylinder to full cylinder and that on hearing her cries her two sons ie complainants 2 and 3 tried to rescue her from the burning injuries and in the said course complainants 2 and 3 also sustained burning injuries and that the said wife of the first complainant while undergoing treatment in Gandhi hospital for the said burning injuries succumbed to such injuries on 31.12.2008. As seen from the record, the complaint was filed on 07.09.2012. But as seen from a letter dated 15.03.2011 issued by Chief Rational Manager, LPG to the complainant No. 1 the information regarding repudiation of claim by Insurance company was informed to him clarifying that on the ground that accident had taken place at the premises other than the registered address of the customer which is a violation of terms and conditions of the policy the claim was repudiated. Thus, the complainants came to know about the repudiation of the claim vide letter d. 15.3.2011 and further the complainants contended second and third complainants are still suffering a lot on account of injuries received in subject accident and thus satisfied to hold that the complaint which was submitted in this Commission on 7.09.2012 is within limitation and as such point no. 1 is decided accordingly in favour of the complainant.
10. Point No. 2 :
The case of the complainants is that on account of leakage of the gas from the cylinder while the deceased was changing the cylinder suddenly fire caught to her and she received severe burn injuries on 26.12.2008 around 10.30 AM in the house bearing No. 29-646/1, Dinakar Nagar, Neredmet and that when complainants 2 and 3 rescued her they also received burn injuries and later on 31.12.2008 around 1.30 Pm the deceased wife of the first complainant succumbed to the said burns in the hospital while undergoing treatment. The contention of the Ops that the subject gas cylinder was not supplied by the Op.1 and there was change of registration address of the complainants and as such they are not liable to answer the claim put forth in this case. The complainant submitted Ex. A-2 copy of statement of the deceased which is said to have recorded by police and it is in the nature of dying declaration wherein she said to have narrated the said aspects. There is no certification of doctor that while recording such a statement of the deceased she was coherent and conscious and was able to give such a statement and as such the said statement so also Ex. A1 copy of FIR which was registered basing on the said statements are not useful for the complainants for the purpose of this case.
11. Ex. B-3 Accident Inspection report dt. 31.12.2008 ( as seen from annexure I ) and Ex. B-4 report of accident dt. 26.12.2008 conducted on behalf of Ops 1/2 reveal that on receiving a call around 1.40 PM from OP.1 stating that one of the customer’s premises while fixing the regular to the refill a sudden pressure was felt and under the pressure the regular plunged on to the face, which presumably developed blister on the face one P. Madhu, Sales officer, visited the customers ‘place bearing door N. 29-591, Vinayak nagar, Neredmet, Malkajgiri, Secunderabad ( customer no. 515800 ) around 3.30 PM and found that the said house was locked and two cylinders were found and were fitted with cap in the compound wall , one is an empty cylinder pertaining to Indian and another HPC cylinder from where the leakage had happened at the customer’s premises and that on weighing the cylinder it was 2.30 kg LPG and a tare weight in HPC cylinder and that last delivery was made to the customer on 27.11.2008 vide cash memo No. 10912 against cylinder serial no. 57400 and that on verification with the cylinder serial No. it was found that the cylinder lying at customer premises is not matching with the cylinder which was delivered on 27.11.2008 and that the cylinder which was presently available was bearing serial No. 096605 and the same was not matching with what the distributor has delivered to them. In the Ex. A-3 it is also mentioned that when the customer opened the cap and tried to fit the regulator to the cylinder valve, immediately after opening the cap LPG gushed out and the customer’s wife could not connect their regulator and then she called his elder son by name D. Raja kumar for assisting for connecting the same and that the LPG continued to leak during the period and accumulated inside of the kitchen and that the window in the kitchen was not opened and that in the kitchen a telephone coin box was kept for charging and the possible source for ignition was due to either loose connection charger of the coin box or open source of fire in the form of Diya in the pooja cubicle located inside the kitchen etc. As rightly contended by the Ops 1 & 2 the leaked gas simply will not catch the fire without any source of ignition available near to the cylinder and in such circumstances the said possible source of ignition cannot be ruled out and in such circumstances it has to be believed that the customer did not follow precaution while changing the cylinder In Ex. B-3 it is also mentioned that during physical inspection of the concerned cylinder upon pulling up the cap the cylinder valve pin was cut and as such it cannot be connected to the Ops negligence and on the other hand there is acceptable force in the contention of the Ops that on account of negligence on the part of the deceased the mishap occurred. As seen from ( Ex.B-5 ) the last delivery of the cylinder was made to the customer, first complainant, by cash Memo No. 10912 dt.26.11.2008 and the cylinder serial no. is 57400 and admittedly the cylinder which involved in the accident was bearing serial No. 096605 and the same is not matching with the serial number of the cylinder so supplied to the first complainant by the OP. 1. There is no dependable evidence from the side of the complainants that the cylinder bearing serial no,. 096605 were duly supplied to them before the said accident had taken place. There is material on record that first complainant booked the refill on 24.12.2008 vide booking No. 10088 and the same was delivered on 29.12.2008 vide cylinder serial No. 320525 on the cash memo No. 11649 and it also discloses the previous cylinder serial no. is 57400. Ex. B2 new cylinder receipt dated 27.12.2008 and Ex. B4 cash memo and delivery letter dt. 29.12.2008 disclose that new order was booked for refill cylinder on 24.12.2008 vide order no. 10088 and it was delivered on 29.12.2008 wherein the old cylinder no. 320525 is shown but not serial no. 096605T. Therefore, the contention of the Ops that the subject cylinder was not duly delivered to the complainants and that possibility of the customer or inmates of the his house borrowing the subject cylinder from others is believable as true. It is much more so when it has not been refuted by the complainants that first complainant was having only one cylinder connection. An Indane cylinder was found in the premises of the complainant as seen from Ex. B3 report and it shows that the complainants are in the habit of borrowing cylinders from others in the event of necessity and when subject cylinder was not supplied by the OP.1 question of the liability of Ops 1 to 3 to pay compensation to the complainants on account of death of the wife of the first complainant and injuries to second and third complainants does not arise.
12. There is no dispute that Consumer customer Connection No. 515800 was allotted to the complainant No. 1 in respect of house bearing No. 29-591, Vinayaka nagar, Neredmet, Malkajgiri. Therefore, he is expected to use the cylinder supplied by the first OP, manufactured by OP. 2 and insured with Op.3 in the said registered premises only and he is not expected to remove the cylinder and the equipment to any other address than that is shown in the subscription voucher without obtaining prior written permission of the Op.1 and he is not expected to exchange the equipment. Admittedly and as seen from Ex. A6 letter of the complainant dt. 6.1.2009 addressed to insurance company the mishap had taken place in the house bearing door no. 29646/1 and in such circumstances, the contention of the Ops that the accident had taken place in the premises other than the registered address of the consumer is believed as true and in view of the said violation also Ops 1 to 3 are not liable to pay any compensation to the complainants and thus the contention of the Ops that they did not render any deficient service and that unfortunate event occurred on account of the negligence of the customer and inmates of his house is acceptable. The complainants did not impeach the credit of the evidence adduced by the Ops by any convincing means and as such none of the documents filed by them are helpful to win the case. The complainant failed to connect Ex. A5 HP Gas receipt to the subject cylinder. In a decision of this Commissions in CD 109/2002 dated 29.12.2006; there was no dispute about the supply of cylinder in question and also with regard to registered premises. Where as in this case the said two aspects which are vital for the decision of this case have been raised and therefore the said decision is not helpful for the complainants. As per the terms and conditions of the policy there is no privity of contract between the complainants and OP. 3 and the complainants have no right to make OP. 3 as party to the consumer complaint. Moreover, the said type of policies which were issued to a gas agencies were indemnity policies i.e only reimbursements to the insured after honouring their respective claims and in that view point also OP. 3 is not liable to pay any compensation. When the two major and important aspects which have gone to the root of the case the PME report, death certificate, letter to insurance company , its order , copy of insurance policy , medical bills and newspaper cuttings and photographs marked in Ex. A series filed by the complainant are in no way helpful for them to succeed the case. Thus point no. 2 is decided against the complainants.
13. POINT NO. 3 :
In view of the finding in point No. 2 against the complainants that the opposite parties did not render any deficient service to them, they are not liable to pay any compensation much less the compensation claimed in the complaint to the complainants and in such circumstances assessment of compensation on account of death of the deceased wife of first complainant and injuries/disability of complainants 2 and 3 is not necessary and as such this point is also decided against the complainants.
14. IN the result, the complaint is dismissed but without costs.
INCHARGE PRESIDENT
MEMBER
MEMBER
DATED : 20.12.2013.
APPENDIX OF EVIDENCE
Witnesses Examined
For complainants : None
For opposite parties : None
Documents Marked
For complainants :
Ex. A-1; 26.12.2008 : First Information Report
Ex. A-2; 29.12.2008 ; Statement of deceased Smt. D. Renuka
Ex.A-3; 01.01.2009 : P.M.E. Report
Ex. A-4: 19.01.2009 ; Original Death Certificate
Ex.A-5: 17.05.2012 : Original Gas receipt
Ex.A-6: 06.01.2009 : copy of letter to Insurance company from
complainant
Ex.A-7; 15.03.011 : Original Order registered by HPCL company
Ex.A-8: 01.01.007 ; copy of Insurance of Gas Agency
Ex.A-9: 31.12.2008 : Medical bill for Rs.28,501/-.
Ex.A-10: 26.12.2008 : Bunch of Medical bills
Ex.A-11: 24.12.2008 ; Gas connection pass book
Ex.A-12: 02.01.2009 : News papers cuttings
Ex.A-13: - : photos along with negatives of deceased and
complainants 2 & 3, showing the death of deceased and injuries of complainants 2 & 3
For opposite parties:
Ex.B-1: - : copy of consumer pass book
Ex.B-2; ; panchanama due to leakage of cylinder
Ex.B-3: 05.01.2009 ; receipt for seizure of cylinder
Ex.B-4: 29.12.2008 : seizure of cylinder receipt
Ex.B-5: 26.11.2008 ; delivery receipt cum cash memo
Ex.B-6: 10.01.20008 ; Insurance policy
Ex.B-7: 31.12.20008 : Letter from OP 2 to Chief Controller of q Explosives
Ex.B-8; 31.12.2008 : Accident report ( Form B) of OP No.2
Ex.B-9: 31.12.008 ; Incident/Accident Inspection report with
Annexure -1 ( Form A) of OP 2.
Ex.B-10: 26.12.2008 : report of Accident under M/s. Shreya Enterprises
Ex.B-11: 02.02.2009 : Survey report of surveyor of Insurance co.
Ex.B-12: 15.03.2011 : Lr. From Op. 2 to complainant
Ex.B-13: 15.03.2011 : Lr to the Chief Regional Manager from complainant
Ex.B-14: 11.09.2009 : Letter from Insurance company
Ex.B-15: 29.12.2008 : Dealership between the OP 2 and complainant
Ex.B-16: - ; Multi perils Insurance policy for L.P.G.dealers
INCHARGE PRESIDENT
MEMBER
MEMBER
DATED : 19.12.2013.
