This is a case where a LPG cylinder on being connected to the regulator by the wife of respondent no.1/complainant started leaking. When a matchstick was ignited, the entire kitchen was engulfed with fire, causing damage to the property. It also resulted in injury to the inmates. The dealer/respondent no.3 (M/s Phoenix Distributors) was informed about the incident. Representative of respondent no.2/manufacturer (Hindustan Petroleum Corporation Limited) also visited the site and assured all help. However, when no relief except the replacement of the defective cylinder was received, a consumer complaint came to be filed before the District Consumer Disputes Redressal Forum, Bhopal (for short ‘District Forum’). It was resisted by the dealer as well as the manufacturer. The National Insurance Company Ltd. (the present petitioner), to be called as Insurance Company here-after, was not made a party in the complaint. After considering the evidence adduced by the opposing sides, the District Forum found it to be a case of a defective cylinder having been supplied by the manufacturer and the dealer and, therefore, directed both the dealer and the manufacturer to jointly and severally compensate the complainant in a sum of Rs.1.00 Lakh. Aggrieved thereupon, all the three parties i.e. the complainant, the dealer as well as the manufacturer filed appeals before the M.P. State Consumer Disputes Redressal Commission, Bhopal (for short ‘State Commission’) and challenged the award passed by the District Forum. Obviously, the complainant wanted the compensation to be enhanced while the dealer and the manufacturer pleaded for setting aside of the District Forum order. The manufacturer’s plea before the State Commission was that their contract with the dealer was on principal-to-principal basis and they had no privity of contract with the complainant. Further, any defect noticed in a cylinder supplied by them to the dealer is required to be verified and tested before acceptance and the defective cylinders are required to be returned to the manufacturer. In this background, they submitted that they be absolved from any liability erroneously thrust on them by the District Forum. The case of the dealer on the other hand was that the consumer himself had carried the gas cylinder to his residence and fixed the regulator thereon negligently, which resulted in the fire. It was further contended that a kerosene stove was burning side by side when the cylinder was to be connected, which is a clear violation of the guidelines issued to the consumers. The State Commission, however, framed the main issue as to whether the incident occurred on account of wrong fixing of the regulator on the cylinder or on account of a defective cylinder having been supplied by the dealer. On consideration of the facts and evidence before it, the State Commission arrived at the conclusion that a cylinder without washer had been supplied to the consumer by the dealer, but finding that the dealer was covered by insurance provided by the petitioner/Insurance Company, it modified the order of the District Forum, absolving the manufacturer of any liability, and vide the impugned order directed the dealer and the petitioner/Insurance Company to make good the loss of the complainant as awarded by the District Forum. It was in this background of the shifting of liability jointly from the dealer and manufacturer to the dealer and Insurance Company that this revision petition has been filed by the petitioner/Insurance Company. At the outset, it may be stated that the dealer, who along with the present petitioner has been held liable, has not challenged the order passed by the State Commission; perhaps it would have no liability as its risks are covered under the policy. We have heard learned counsel for the parties and have carefully gone through the orders passed by the District Forum as also the State Commission and have perused the records. An attempt has been made by the learned counsel for the petitioner to make out a case absolving the Insurance Company of any liability. In that regard, it has been submitted that the petitioner/Insurance Company had not been impleaded as a party in the complaint before the District Forum but was roped in subsequently at the stage of appeal. Even otherwise, their policy covers the risk only of the dealer and under the coverage of ‘Public Liability’ the product or any defective product is not covered. Since the case pertains to supply of a defective gas cylinder, the petitioner/Insurance Company cannot be made liable under the terms of this policy. Contending that the incident was because of the negligence by the user, who mishandled the cylinder and did not fix the regulator on the cylinder properly, it was the consumer who was responsible for the said incident. The fora below, according to him, have erroneously held that the policy will cover the risk of even the negligence of a consumer. He has also referred to the reliance placed by the State Commission on the decision of the Supreme Court in the case of Indian Oil Corporation Vs. Consumer Protection Council, Kerala & Another [(1994) 1 SCC 397] and has distinguished the said judgment by contending that in the said case the dealer had given unauthorized connection to the consumer whereas in the present case it was a fully authorized connection. He has also referred to general condition no. 4(b) of the policy, which provides that notice is required to be given to the insurer within 14 days from the date of knowledge of the incident but a claim has been submitted after a period of four years of the incident. In short, he has submitted that the State Commission has misinterpreted the policy conditions, as the main cause of the alleged loss is due to defect in the cylinder. He has, therefore, submitted that the petitioner/Insurance Company be absolved of any liability. No one has appeared on behalf of the complainant or the dealer. Learned counsel for the manufacturer, however, has appeared and submitted that the State Commission has rightly absolved the manufacturer of any liability as all the cylinders in the bottling plant are subjected to leak testing so as to verify as to whether there is any leakage from the cylinder valve or ring inside the cylinder valve. All cylinders thereafter passed through water test bath to find out any leakage from the neck and body of the cylinder. This rigorous procedure apart, filled cylinders are dispatched from the bottling plant and received by the LPG dealer at their godown where again they are checked for correctness of weight and safety. Any cylinder found leaky or defective in any manner has to be segregated and returned to the bottling plant. Only safe and sound cylinders are to be delivered by the dealer to the consumers. In this background, learned counsel submits that there is no question of any chance delivery of any leaky cylinder to the dealer/customer. Further, learned counsel for the manufacturer has justified the order of the State Commission by contending that there was no privity of contract between the complainant and the manufacturer. No consideration had passed from the complainant and their relation with the dealer was on principal-to-principal basis. The dealer being not an agent of the manufacturer, no liability could be fastened on them. Negligence, if any, for allowing the customer to carry the cylinder on his own whereas the guidelines mandated the dealer to deliver at the premises of the customer, will be on the dealer and the manufacturer cannot be made liable for the negligent act of the dealer. In this regard, he has also placed reliance on the order of this Commission in the case of Flame Gas Service, Bikaner & Ors. Vs. Aklesh Kumar Bansal & Ors [I (1995) CPJ 78 (NC)]. Having heard the learned counsel appearing for the petitioner/Insurance Company and the manufacturer and having gone through the records of the case, it may be stated that the law of liability with regard to the manufacturer vis-à-vis the dealer stands settled in the judgment of the Hon’ble Supreme Court in the case of Indian Oil Corporation Vs. Consumer Protection Council (supra) wherein it clearly laid down the primacy of the clauses under the agreement between the manufacturer and the dealer and has ruled that when the agreement is on principal-to-principal basis, the manufacturer will not be liable. Thus, no fault can be found with the order passed by the State Commission that the manufacturer will not be liable. Insofar as the petitioner/Insurance Company is concerned, undoubtedly under Section-X of their policy, the petitioner/Insurance Company had undertaken to indemnify the dealer for any liability towards third party arising out of any accident. In our view, the incident will be covered under this section of the policy as otherwise the very purpose of taking an insurance policy for third party coverage will be defeated. Section-X, which deals with public liability can be gainfully reproduced, which reads as under :- “Section X – Public Liability The Company will indemnify the Insured (or in the event of the death of the insured his legal representative) against all sums which the insured shall become legally liable to pay in the event of : a) accidental bodily injury to any person (not being either a member of the insured’s family or a person engaged in and upon the service of the insured at the time of occurrence giving rise to such injury nor a person claiming against the insured under any workmen’s compensation act. b) Accidental damage to property (not being property of or belonging to or in the custody or under the control of the Insured or any person in the services of the Insured or upon which the Insured or any such person is or has been working if that damage results directly from such work) happening during the period of insurance specified in the schedule in connection with the Trade/Business as described in the schedule.” Clearly, this provision covers the incident of the kind under adjudication in this case and the State Commission, therefore, has committed no irregularity or illegality in holding the petitioner/Insurance Company liable. Under the circumstances, there being no merit in this revision petition it is dismissed, however, with no order as to cost. The petitioner/Insurance Company is directed to comply with the award of compensation as given by the District Forum within a period of two months from today, failing which it will attract interest @ 7% per annum till its payment.
......................JB.N.P. SINGHPRESIDING MEMBER ......................S.K. NAIKMEMBER | |