The complainants namely Punam Kumari, Srikant Kr and Kundan Kumar have filed this complaint petition against BSFCSC Indane Motipur, Shiyavati Market Baruraj, Muzaffarpur and one another (o.ps) for realization of Rs. 20 lacs/- to each person as collective accident claim amount.
The brief, facts of the case is that the complainant are Consumer of Gas company and they are Member of joint family. The further case is that the daughter-in-law complainant no.-1 namely Chandani Devi aged about 25 years went to prepare breakfast at about 7. AM on 08-3-2013 and when she ignited the Gas Stove, fire caught in her clothes suddenly. The further case is that the complainant no.- 2 & 3 went to rescue her and they also sustained burn injuries. The further case is that all the injured person were admitted in Maa Janki Hospital but during the course of treatment, their condition become worst so on 11-03-2011, they were admitted at S.K.M.CH. The further case is that on 13-03-2013 at about 3 PM Chandni Devi died during the course of treatment at burn ward of the above hospital and treatment of rest two injured persons were going on. The further case is that just after occurrence, complainant no.-1 informed the Area Sales Manager of Indian Gas as well as local dealer. The further case is that the complainant no.-2 & 3 returned after treatment. They all requested Area Sales Manager, of Indian Gas for compensation in respect of the accident but o.ps didn’t pay any claim amount. The further case is that the accident was inquired by C.O. Motipur, Officer Incharge of Saivaipatti P.S.,- Officer Incharge of Ahiyapur and Motipur P.S,.- D.C.L.R (West), S.D.O west and Deputy collector of Disaster Management and they found the occurrence true. The further case is that Rs. 1.50/- lacs was sanctioned as compensation by Disaster Management to the complainants.
The complainant has filed the following documents with the complaint petition - photocopy of letter of District Magistrate, Mzaffarpur Regarding the sanction of Rs. 150 lacs to complainant no.-1 annexure-1, photocopy of order of District Magistrate, Muzaffarpur annexure-2, photocopy of paper cutting - annexure-3, photocopy of printed paper annexure-4, photocopy of discharge ticket of Srikant Kumar -annexure-5, photocopy of money receipts annexure-5A to D photocopy of Post Mortem, report of Chandni Devi annexure-6, photocopy of death certificate of Chandani Devi annexure-7, photocopy of Fard Bayan of Ram Vilash Bhagat, annexure-8, photocopy of written petition of Kundan Kr- annexure-9, photocopy of discharge ticket of Kundan Kr -annexure-10.
On issuance of summon o.p no. 1 appeared on 24-07-2015 but he didn’t file his w.s., so he was debarred from filing w.s. vide order dated 26-11-2015.
O.P no.02 appeared and file his w.s. on 08-10-2015 with prayer to dismiss the complaint case as the same is not maintainable. It has been mentioned in the w.s. that there is no relationship of consumer and service provider between the complainant’s and the answering o.p and as such the complaint case is not maintainable and the same is liable to be rejected. It has been further mentioned that the complainants have got no cause of action against the answering o.p and the complainants have wrongly made him party in this case. It has been further mentioned that the o.p no.-1 namely M/S BSF, Motipur is a L.P.G Distributor of Indian Oil Corporation Ltd. It has been further mentioned that M/S BSF Motipur Muzaffarpur (o.p no.-1) has also entered into distributorship agreement under the certain written terms and conditions with Indian Oil Corporation Ltd. for sale of the L.P.G in its distributorship area. It has been further mentioned that according to clause 17 and 18 of the Distributorship agreement, the Distributor shall Act and shall always be deemed to have acted as principal and not as an agent or on account of the I.O.C Ltd and corporations shall not in any way be liable in any manner in respect of such contracts and / or engagement and or/ in respect of any act or omission on the part of the Distributor, his servants agents and Workmen in respect to such installation Sale, distribution, Connections repair or otherwise. The copy of relevant clause 17 and 18 of Distributorship agreement has been annexed as annexure-A . It has been further mentioned that since said accident has not been brought to the knowledge of concerned sale officer, Patna or any concerned person, or authority of Indian Oil Corporation Ltd, therefore o.p no.-1 is not in position to comment upon. It has been further mentioned that answering o.p no.-2 has never received any application with respect to the aforesaid LPG accident at any point of time, so the o.p. could not investigate the alleged accident, therefore it is not proper to say that the subjected accident is an L.PG accident due to supply of defect / faculty cylinder. It has been further mentioned that LPG customer of IOC are covered under insurance for loss of lives and property on account of accident due to supply of defective / faculty cylinders to customer, but for availing the same, accident is required to be brought on notice to the I.O.C immediately and necessary investigations are also required to carry out by I.O.C Ltd. It has been further mentioned that o.p has got knowledge about the alleged L.P.G accident at belated stage after 4 years from the date of alleged LPG accident dated 29-03-2012, by receiving information of the complaint case. It has been further mentioned in the supplementary w.s. by way of affidavit that the user of product of the OIC (LPG cylinder) is insured for the purpose of any causality etc. resulting in any accident during the storage of LPG cylinder and therefore any damage of property or any injury or causality if happens due to any such accident, the risk is covered by Insruance Company and the claim of the Consumer is to be duly paid by the concerned Insurance Co. under the terms and conditions of the public liability insurance policy for oil industries in the light of the agreement as entered into between IOC Ltd and IFFCO TOKIO General Insurance Company Ltd. for the period 22-04-2010 to 21-04-2011. The copy of Insurance Policy No. 41013839 entered into between OIC Ltd. IFFKO TOKIO General Insurance Company Ltd has been annexed as annexure-B. The clause 12 of the terms and condition of governing the loan of Indian cylinder has been annexed as annexure-C.
On the date of argument the complainant furnished the photocopy of letter of Additional Secretary, dated 28-02-2014 to District Magistrate, Muzaffarpur photocopy of sanctioning of Rs. 1,50000/- as grant to Kundan Kr and photocopy of order of collectriate Muzaffarpur, (District Disaster Management section )
The complainant’s Kundan Kumar and Sri Kant Kumar have been examined themselves as AW-1 and AW-2 on affidavit.
The moot question involved in the present case is as whether there is any defect in the goods or deficiency in service on the part of o.ps.
The o.p no.-2 has stated in his w.s. that as per clause-17 and 18 of the Distributor agent agreement, he is not liable for any loss occurred and the o.p no.-1 M/S BSF Motipur, LPG Distributor may be liable as per terms of the agreement. Learned Lawyer for the o.p no.-2 has also raised the above question during his argument AW-1 Kundan Kumar has stated in his examination- in - chief that on 08-03-2013, at about 7 a.m when his wife Chandani Devi went to prepare breakfast, she switched on Gas Stove and ignited the same, flames of fire caught in her body so she became badly injured. This witness also became injured in the occurrence. He has further stated that he and his father went to rescue her and they sustained injuries in their hands & leg. He has further stated in para-4 of his deposition that due to negligent act of com and wrongly refilling the cylinder and not providing protective pipe by the company, occurrence took place. The same has been corroborated by Srikant Kumar (AW-2) in his deposition. These witnesses have not been cross-examined by o.p No contradictory evidence has been adduced by the o.p on this point. Suffice to say that o.ps are duty bound to compensate the consumer if he suffered injuries due to defect in the goods. The phrase defect has been defined in section 2 (f) of the Consumer Protection Act 1986 which is as follows.-
- “ defect means any fault, imperfection or short coming in the quality, quantity, potency , purity, or standard which is required to be maintained by or under any law for the time being in force [ under any contract, express or implied, or] as is claimed by the trader in any manner whatsoever in relation to any goods”.
The complainant has annexed annexure 1 & 2 to show, that the District Administration Muzaffarpur and Disaster Management, Patna, enquired into the matter of occurrence and found that Chandni Devi died on 13-03-2013 due to explosion in the cylinder which shows defect in the good. The District Administration, in the light of letter 1293 and AA /Pra dated 17-04-2012, grated RS. 1.50 lacs/- as compensation to the husband of deceased namely Kundan Kr.
Since, there was leakage in the L.P.G. Gas cylinder which bursted after ignition of the stove, so it leads us to only one decision that there was defect in goods supplied by the o.ps O.P No.-2, however tried to ward off their liability by taking shelter under the so called agreement with the distributor whereby entire burden in case of mishap has been put on the shoulders of Distributor. Ostensibly O.P no.-2 didn’t subject the cylinders in question to any technical examination in order to find out if their existed any defect in the said cylinder or not? The distributor, therefore, is duty bound to supply defect free cylinder to the consumer. Though as per distribution agreement the liability, in case of miss happening solely rested on the distributor, yet at the same time the agreement does not take away the responsibility and liability of the manufacturer and as such manufacturer cannot escape the liability under the grab of distribution agreement. The Hon’ble N.C. in case reported in III (2010) C.P.J. 377 ( N.C.) titled as Bharat Petroleum corporation and others V.S Dharmapal, made the following observations Consumer Protection Act - 1986. Section 2 (1) (f), 2 (1) (g). 14 (41) (d), 19 LPG- Gas cylinder –leakage – defective Fire broke out two persons died and one child suffered burn injuries, - State Commission held deficiency in service in supplying defective cylinder – Hence appeal Contention, as per clause-11 of subscription agreement mandates observance of certain precautionary measures – Not accepted Even if said precautions were not meticulously followed while changing cylinder would not exonerate appellant and distributor from their liability Incumbent upon appellant to have technical examination of cylinder- failure to do so will make adverse inference drawn against him Deficiency in service proved order upheld and C.C. No.- 80-82/2008.
On perusal of the entire evidence available on record and the case law as referred above, it becomes crystal clear that in case of defect in the L.PG Gas cylinder, both the distributor and manufacturer are liable to make good, the loss suffered by the consumer.
A consumer does not mean the person in whose name LPG Gas connection is issued but entire family which uses the Gas and if it endangers the life of other persons in the house, they are also entitled to the compensation.
The o.p has also raised a question that no information to his sales officers or area officer, IOC Ltd. or concerned Ltd. Distributor (o.p no.-1) was given by the complainant regarding the occurrence, just after the occurrence. The answering o.p no.-2 have never receiving any application with respect to the aforesaid LPG accident at any point of time as stated in complaint petition he has also mentioned in the w.s. that after 4 years of the occurrence the o.p came to the knowledge of accident when he received the notice of the case so the required investigation of LPG accident was not carried out and the investigation report along with public liability insurance claim has not sent to the concerned insurance company namely M/S IFFKO KOKIO General Insurance Company Ltd. for necessary action by the concerned insurance company as required under the insurance policy for payment of claim against the LPG accident AW-1 Kundan Kr has stated in para-3 of his examination-in-chief that just after the occurrence he informed area Sales Manager, of IOC and Local dealer. The same fact has been corroborated by AW-2 Punam Kumari, in para- 3 of her examination in chief. No evidence has been adduced on behalf of o.ps to controvert the above facts. O.p No.-1 Distributor of IOC has not filed any w.s. to contradict the above facts though he has appeared in the case so adverse inference can be drawn against him.
The complainant has filed photocopy of postmortem report of Chandni Devi as annexure-6 in which it has been mentioned that the disceased died due to shock and burn injuries. The injuries were caused by flame of fire. The complainant has also filed photocopy of Fard Bayan of Ram Vilash Bhagat annexure-8, information by Srikant to the Officer In charge of Motipur P.S. regarding the occurrence as annexure-9. The complainant has also filed letter of Additional Secretary, Disaster Management Department Govt. of Bihar, Patna written to District Magistrate, Muzaffarpur and order of the D.M. Muzaffarpur which prove the occurrence. The complainant has also annexed photocopy of petition filed before C.O and Anchal Motipur and Muzaffarpur which shows that information was given to C.O Motipur also regarding the occurrence.
So, this contention of the o.p is also not proved by any evidence adduced on his behalf
As regards compensation, it is clear that Chandni Devi died in the occurrence and two persons became injured. The complainant has filed photocopy of paper cutting and others printed paper. There is no signature of any one and there is also not any agreement to show that up to what amount will be paid in the incident. So, no reliance can be placed on the above papers filed on behalf of complainant.
The complainant has also filed the papers regarding the admission in Maa Janki Hospital and research Centre and S.K.M.CH. Medical College and hospital Muzaffarpur, about treatment of diceased and the injured persons. The complainant has filed some bills which are faint and the same are not visible. It cannot be read. It is clear from the evidence adduced on behalf of complainant that Chandani Devi died in the occurrence and two persons namely Kundan Kr. and Srikant Kumar became injured but the o.ps have not paid any amount to the complainant. So, we are of the considered opinion that there is deficiency in service on part of o.ps. We are also on the opinion that o.p no.-1 & 2 are jointly and severaly liable to pay compensation.
In the circumstances, the claim petition is allowed and o.ps are directed to pay Rs. 5 lacs/- with respect to death of Chandani Devi, Rs. 1 lacs/- as compensation for treatment of Sri Kant Kumar, Rs. 1 lacs/- as compensation for treatment of Kundan Kumar, Rs. 10,000/- as litigation cost within two months from the date of receipt of certified copy of order /, Let a copy of this order be furnished to both the parties as per rule.
