Date of Filing      : 08.04.2015

                                                                                                                 Date of Disposal: 31.05.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                       .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                                 ..… MEMBER-I

                 THIRU P.MURUGAN, B.Com,                                                                          ….. MEMBER-II

 

 

 CC. No.32/2015

THIS TUESDAY, THE 31st DAY OF MAY 2022

 

Mrs.Prabavathi 

W/o.Somasundram,

No.13, Sundar Nagar,

Poonamallee Taluk, Chennai -56.                          ......... Complainant.

 

                                                //Vs//

 

1.Sri Narendra Gas Agency,

   No.1, Poonamallee Bypass Road,

   Poonamallee, Chennai -56.

 

2.Indian Oil Corporation India Limited,

   Rep. its Managing Director,

   Door No.500, Anna Salai, 

   Teynampet, Chennai -18.

 

3.The Branch Manager, 

   United India Insurance Company Limited,

   No.7/73, Venkatesan Street, 

   West Tambaram, Chennai -45.                       …..Opposite parties.

 

Counsel for the complainant                  :   Mr.S.Muthukumaravel, Advocate.

Counsel for the 1st opposite party         :   Mr.S.Sushilkumar, Advocate.

Counsel for the 3rd opposite party         :  Mr.L.Thanigaivel, Advocate.

Counsel for the 2nd opposite party        : Exparte

 

                         

This complaint is coming before us on various dates and finally on 13.05.2022 in the presence of Mr.S.Muthukumaravel Advocate, counsel for the complainant and Mr.S.Sushilkumar Advocate counsel for the 1st oppostie party, Mr.L.Thanigaivel, Advocate, counsel for the 3rd opposite party and upon hearing the arguments of the both sides and upon perusing the documents and evidences, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant U/S 12 of the Consumer Protection Act 1986 seeking direction to the opposite parties to pay a sum of Rs.50,000/- towards compensation for the defective supply of LPG cylinder coupled with gross negligent service and deficiency in service and to pay a sum of Rs.8,00,000/- being the expenses and compensation for the act of the opposite parties with interest at the rate of 12% and to pay a sum of Rs.6,000/- towards cost of the proceedings.

 

Summary of facts culminating into complaint:-

 

Crux of the complaint is that one Mr.Somasundram husband of the complainant herein had Gas connection No.TN 50/11/1143475 and on 18.10.2014 when this complainant’s husband tried to lit the gas stove some defects was found with the cylinder and a complaint was given immediately to the 1st opposite party who is the Gas agent.  On the same day a technician named Mr.Samuthiran attended the fault and he tried to repair the cylinder by removing the regulator and by using a pin pressed the LPG cylinder’s nozzle.  When questioned by the complainant’s husband he answered “some extra air was filled in the LPG cylinder so that I am removing the extra air which will not affect us”.  When he was advised to do the repairs in the open place he answered that he has done several repairs in his service. When all the family members and the complainant was having conversation in the hall, the technician tried to lit the stove but fire burst out from the kitchen and engulfed the entire house and within moments the complainant and all the family members sustained grievous injuries.  The technician also sustained injuries. The complainant got burn injuries in both hands, both legs, face and head and was made to undergo treatment in VEE CARE SUNDAR Hospital from the 18.10.2014 to 07.11.2014.  The complainant had to take one month bed rest due to which she could not do her regular works and due to the burn marks was ashamed to go to public places like temple and hence faced great mental agony and hardship. An amount of Rs.6,00,000/- was spent for the treatment of the complainant.  It is also submitted that on the date of accident the electric power supply was suspended for the full day so further damages were avoided to house hold articles fortunately. Thus alleging deficiency in service the present complaint was filed contending that the technician/servant of the 1st opposite party had violated the rules by repairing the cylinder inside the house itself and also by alleging vicarious liability on the part of the 2nd opposite party for supplying the defective cylinder

Defense of 1st Opposite Party by way of Written Version:-

 

The 1st opposite party disputed the allegations in the complaint contending interalia that on the date of accident there was heavy rain and also Deepavali festival was celebrated but inspite of the same the technician was sent on receipt of the complaint from Somasundharam.  It is submitted that during inspection the regulator was already detached and the technician opened all the windows of the Kitchen, balcony door for air circulation.  But all of a sudden fire broke out in the adjacent hall of the kitchen and the fire spread from there to all over the house.  The technician rushed to the hall to help the complainant and his family but he also sustained injuries.  It is submitted that there is no fire in the kitchen and the alleged defective cylinder was intact and not damaged.  It is further submitted that as there no power supply the tube light was lit by the inverter.  It is submitted that as there was leakage of power supply there was fire near the tube light which caused the accident.  Thus the opposite party submitted that there is no defects in the cylinder and also no negligence on the part of the technician. After receiving the complaint, the police as well as the 1st opposite party along with the officials inspected the spot and took photographs. Thus the opposite party sought for dismissal of the complaint. 

The 2nd opposite party remained absent despite sufficient notice had chosen not to appear and file written version therefore he was set exparte.

Defense of 3rd Opposite Party by way of Written Version:-

 

The 3rd opposite party denied the allegations stating that the fire accident mentioned in the complaint was not covered in the insurance policy as per the terms and conditions available in the policy. Thus stating that the complaint is a frivolous one sought for the dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents were marked as Ex.A1 to A10 was filed. On the side of 1st opposite party Ex.B1 and B2 was marked along with proof affidavit filed by 1st opposite party. On the side of 3rd opposite party Ex.B3 and B4 was marked along with proof affidavit.

Point for consideration:

1. Whether there is any deficiency in service on the part of the 1st opposite party in sending an unskilled technician to carry out the repairs in the complainant’s house?

2. Whether the 2nd opposite party committed deficiency in supplying a defective cylinder?

3. If the negligence and deficiency of 1st and 2nd opposite parties are proved whether the 3rd opposite party could be held liable to pay the compensation?

Point Nos.1 to 3:-

On the side of the complainant following documents were filed;

Domestic Gas Customer Card was marked as Ex.A1;

Discharge Summary of the complainant dated 28.10.2014 was marked as Ex.A2;

FIR in Crime No.1580/2014 dated 18.10.2014 was marked as Ex.A3;

Legal notice sent by the complainant dated 02.02.2015 and reply notice by the opposite party were marked as Ex.A4 & Ex.A5;

Rejoinder notice issued by the complainant dated 03.03.2015 was marked as Ex.A6;

Legal notice by the complainant dated 11.11.2014 and reply notice by opposite party dated 28.11.2014 were marked Ex.A7 &Ex.A8;

 Discharge Bills of the complainant was marked as Ex.A9;

Medical Bills of the complainant was marked as Ex.A10;

 

On the side of the 1st opposite party the following documents were filed:

 

Photographs of place of occurrence and cylinder was marked as Ex.B1;

Insurance copy was marked as Ex.B2;

On the side of the 3rd opposite party the following documents were filed:

Copy of LPG Dealers package policy was marked as Ex.B3;

Copy of LPG Traders Policy was marked as Ex.B4.

Heard the arguments advanced by the both the parties. The sum and substance of the arguments advanced by the learned counsel for complainant is that due to the lack of skill and negligent attitude of the technician who attended the fault on 18.10.2014 the fire broke out which caused the accident and hence opposite parties are to be held vicariously liable for the fault on the part on the technician. However, on the part of the 1st opposite party, the counsel argued that the fire took place only in the hall and not due to any Gas leakage as the cylinder was intact and no fire marks was found in the kitchen.  He vehemently argued that the fire accident occurred only because of other sources like EB connection or inverter and not because of the gas that emanates from the gas cylinder and hence the could not be made liable. On the part of the 3rd opposite party the counsel submitted that there is no privity of contract between the complainant and the 3rd opposite party and no claim was made against the 3rd opposite party and further there is no mention about this opposite party in the FIR.  It is the main submission by the counsel for 3rd opposite party that there is no coverage in the policy for this particular accident.  

On perusal of the pleadings and documents it is proved beyond doubt that the complainant sustained grievous injuries vide Ex.A2 Discharge Summary.  But we are unable to cull out the reason for the fire accident that took place on 18.10.2014 to fix the liability on the opposite parties with the available pleadings and evidences produced.  When it is the specific case of the complainant that it is only the lack of skill and carelessness of the technician in carrying out the repair inside the closed room that caused the accident, he ought to have examined the technician to prove the said allegation.  When the 1st opposite party has come out with the defence that as there was no power supply on that specific date and the fire broke out by the inverter through which the tube light was lit, there is no mention about any inverter or any spark from the tube light in the pleadings of the complainant to hold that due to the leakage of the gas from the cylinder and from the spark that emanates from the inverter or tube light the fire accident was caused.  The complainant also did not come forward to prove that the LPG cylinder supplied to him was defective one by sending it for an expert opinion. There is no statement by any of the parties to the complaint that there was any smell due to the leakage of the gas.

Though the counsel for the complainant had submitted various decisions in support of his contentions they did not support the case of the complaint as they are given under different facts and circumstances.  The order passed in “First Appeal Nos.520&575/1992 rendered by National Consumer Disputes Redressal Commission reported in CDJ 1994 (Cons.) Case No.175” could not be relied upon as in that case the technician who also suffered injuries did not make any report about the cause of fire that occurred in the house of complainant but in the present case it is the technician Mr.Samuthiran who reported the incident to the police vide FIR dated 18.10.2014 (Ex.A3) that the fire emanated only from the hall and not from the kitchen. In such circumstances the complainant ought to have rebutted his contentions by examining him.  Further no police report was also filed to bring out clearly the source of the fire accident. 

 Another decision relied upon by the complainant reported in I (2018) CPJ 620 (NC) and rendered in First Appeal No.85, 154, 225, 259 of 2011 by National Consumer Disputes Redressal Commission, New Delhi to establish that it was for the manufacturer or dealer to ascertain and prove the cause of leakage of gas, whereas in the present case even it is not proved that the sources of accident was gas leakage.  Another decision reported in “II (2018) CPJ 258 (NC) made in First Appeal Nos.124 &302 of 2011 by NCDRC was relied upon by the counsel for the complaint in support of his contention that the HPCL or the dealer cannot wash of their hands when the factum of accident was admitted.  This decision is of no support to the case of complainant as in that particular case the principal of res ipsa locquitor has been applied wherein the gas cylinder burst in to flames and due to which the complainant had suffered disfigurement. However, in the present case Exhibit B1 produced by 1st opposite party clearly shows that the cylinder was intact and no fire accident marks were found in the kitchen.  Hence all the citations relied upon by the counsel for complainant did not support the complaint. Hence, we are of the view that the complainant failed to submit sufficient pleadings and evidences to prove the negligence and deficiency in service on any of the opposite parties. 

In such circumstances we are of the opinion that it is a fit case to be tried before the Civil Court wherein both parties can lead evidence and cross examine the witnesses to establish the cause for fire accident which resulted in causing the grievous injuries of the complainant. Relying upon the bald and vague pleadings we are handicapped in deciding the cause for the fire accident and resultantly to fix the liability upon any of the opposite parties.  

 

In the result the complaint is dismissed. In the facts and circumstances no order as to cost. 

 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 31st day of May 2022.

 

 

    Sd/-                                                        Sd/-                                                     Sd/-                                                                                                                                              

 MEMBER-II                                           MEMBER-I                                     PRESIDENT

 

 

List of document filed by the complainant:-

 

Ex.A1 …………… Domestic Gas Customer Card. Xerox

Ex.A2 28.10.2014 Discharge Summary. Xerox

Ex.A3 18.10.2014 FIR in Crime No.1580/2014. Xerox

Ex.A4 02.02.2015 Legal Notice sent by complainant. Xerox

Ex.A5 23.02.2015 Reply Notice by the opposite party. Xerox

Ex.A6 03.03.2015 Rejoinder by the complainant. Xerox

Ex.A7 11.11.2014 Legal Notice by the complainant. Xerox

Ex.A8 28.11.2014 Reply by the opposite party. Xerox

Ex.A9 ………….. Discharge Summary. Xerox

Ex.A10 …………… Medical bills. Xerox

 

 

List of documents filed by the 1st oppostie party:-

 

Ex.B1 ................. photos original

Ex.B2 .............. Copy of LPG Dealers Package policy. Xerox

 

 

  List of documents filed by the 3rd opposite party:-

 

Ex.B3 ................. Copy of LPG Dealers Package Policy. Xerox

Ex.B4 ............... Copy of Traders Policy. Xerox

                                          

    Sd/-                                                       Sd/-                                                  Sd/-                                                                                            

 

MEMBER-II                                        MEMBER-I                                     PRESIDENT