Punjab

Sangrur

CC/1236/2015

Sunil Kumar - Complainant(s)

Versus

Bhawanigarh Gas Service - Opp.Party(s)

Shri Sanjeev Goyal

25 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

                                                           

                                                Complaint No.  1236

                                                Instituted on:    09.10.2015

                                                Decided on:       25.07.2016

 

Sunil Kumar aged about 34 years son of Late Shri Prem Chand, resident of Jain Colony, Bhawanigarh, Tehsil and District Sangrur.

                                                        …Complainant

                                Versus

1.             Bhawanigarh Gas Service, authorised dealer of Bharat Gas, Opposite Truck Operator Union, Bhawanigarh, Through its proprietor/partner.

2.             The New India Assurance Company Limited, Divisional Office, College Road, Sangrur through its Divisional Manager.

                                                        …Opposite parties

 

For the complainant  :               Shri GS Shergill, Adv.

For OP No.1             :               Shri Amit Bhalla, Adv.

For OP No.2             :               Shri Ashish Kumar, Adv.

 

Quorum:   Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

Order by : Sukhpal Singh Gill, President.

 

1.             Shri Sunil Kumar, complainant (referred to as complainant in short) has preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that father of the complainant, namely, Shri Prem Chand was having a domestic gas connection bearing number 15298 of OP number 1. Unfortunately, at about 8.00 AM pm 2.5.2015, the father of the complainant was preparing the tea on the gas stove and suddenly due to the technical/manufacturing fault, the gas leaked out from the cylinder, as a result of which, a fire broke out and the father of the complainant badly burnt in the said incident.  As such, he was immediately taken to Civil Hospital, Bhawanigarh from where he was referred to Rajindra Hospital, Patiala and to PGI Chandigarh.  On 7.5.2015, the father of the complainant succumbed to the burn injuries. It is further averred that DDR number 18 dated 7.5.2015 was also recorded at PS Bhawanigarh and the post-mortem was conducted at PGI Chandigarh.  It is further averred that on 26.5.2015, the complainant came to know that the OP number 1 was having the personal accident policy under which every gas connection holder was insured in case of mis happening due to gas leakage. Thereafter the complainant lodged the claim with the OP number 1 and submitted all the documents, but nothing happened. It is further stated that thereafter the complainant got served a legal notice dated 10.7.2015 to the OP number 1 and thereafter the OP number 1 disclosed that he is having an insurance policy from OP number 2 and thereafter the complainant approached OP number 2 for getting the claim, but all in vain.  Thus, alleging deficiency in service on the part of the OPs, the complainant has prayed that the OPs be directed to release the payment of personal accident insurance on account of death of the father of the complainant as well as loss to the articles and further claimed compensation and litigation expenses.

 

2.             In reply filed by the OP number 1, legal objections are taken up on the grounds that the complaint is not maintainable, that there is no deficiency in service on the part of the OP, that this Forum has no jurisdiction to hear and try the complaint, that the claim is not payable.  On merits, it is admitted that the complainant is a domestic gas connection bearing number 15298. It is admitted that the OP number 1 always deliver gas cylinder to the consumer after pre delivery inspection in the presence of the customer. It is further admitted that the complainant approached the OP number 1 and the OP number 1 advised the complainant to approach Op number 2 for release of the claim amount.  The other allegations levelled in the complaint have been denied in toto.

 

3.             In reply filed by OP number 2, it is admitted that the OP number 2 issued a multi perils for LPG dealers policy in favour of OP number 1 for the period from 23.7.2014 to 22.7.2015. The policy as well as its terms and conditions were supplied to the insured. However, it is stated that the father of the complainant was not covered under the policy, therefore, the company has no liability to pay any compensation to the complainant.  It is stated that neither the complainant nor the insured informed the OP till today regarding death of Prem Chand gas connection holder when he was making the tea on the gas stove.   The other allegations levelled in the complaint are denied in toto.

 

4.             The learned counsel for the complainant has produced Ex.C-1 affidavit, Ex.C-2 copy of letter dated 26.5.2015, Ex.C-3 copy of PMR report, Ex.C-4 copy of DDR, Ex.C-5 copy of legal notice, Ex.C-6 and Ex.C-7 copies of postal receipts, Ex.C-8 copy of natural death report, Ex.C-9 copy of statement of Narata Ram, Ex.C-10 copy of death certificate, Ex.C-11 to Ex.C-14 affidavits and closed evidence. The learned counsel for the OP number 1 has produced Ex.OP1/1 affidavit and Ex.OP1/2 copy of insurance policy and closed evidence. The learned counsel for OP number 2 has produced Ex.Op2/1 affidavit, Ex.Op2/2 copy of policy schedule, Ex.OP2/3 copy of terms and conditions and closed evidence.

 

5.             We have carefully perused the complaint, version of the opposite parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits acceptance, for these reasons.

 

6.             It is an admitted fact of the complainant and OP number 1 that Shri Prem Chand (now deceased) was having a gas  connection bearing number 15298. It is further an admitted fact that Shri Prem Chand died on 2.5.2015 due to fire broke out from the leakage of cylinder supplied by the OP number 1.   It is further an admitted fact that the deceased Prem Chand succumbed to the injuries sustained due to the accident/incident arose from the leakage of cylinder, of which DDR number 18 dated 7.5.2015 was also lodged at PS Bhawanigarh, a copy of which on record is Ex.C-4.   The post-mortem on the dead body of the deceased Prem Chand was also conducted, a copy of which on record is Ex.C-3.  In the present case, the grievance of the complainant is that though the OP number 1 had taken an insurance policy from the OP number 2 for accidental death arose from the leakage of cylinder etc. , but the OP number 1 did not lodge the claim with the OP number 2. It is only on 10.7.2015 when the complainant got served a legal notice dated 10.7.2015 to the OP number 1 and after that the OP number 1 disclosed that it is having an insurance policy of OP number 2.  But, the OP number 2 did not pay the claim despite submission of all the documents to the OP number 1.  Now, the question for determination before us is whether the complainant is entitled to get the claim or not. 

  

7.             The stand of the OP number 2 in its written reply is that the OP number 2 had issued a multi perils for LPG Dealers policy in favour of OP number 1 for the period from 23.7.2014 to 22.7.2015 and further the OP number 2 has stated that neither the complainant nor insured i.e. OP number 1 informed the company regarding death of Prem Chand Gas Connection holder at the time of preparing the tea at the gas stove.  Further it has been denied by the OP number 2 that the complainant ever lodged any claim with it.   As such, any deficiency in service on the part of the OP number 2 has been denied.

8.             We have very carefully perused the whole case file and heard the arguments of the learned counsel for the parties in length and find that the deceased Prem Chand being the connection holder was insured under the policy taken by OP number 1 from OP number 2.  But, we are unable to go with the plea taken by the OP number 2 that the claim was never lodged with it. We may mention that the present complaint has been filed on 09.10.2015 and the OP number 2 i.e. insurance company appeared on 27.11.2015 through its counsel Shri Ashish Kumar, Advocate and since then the OP number 2 was in very much knowledge about the death of the connection holder Shri Prem Chand, but no steps for lodging of the claim were taken by the OP number 2.  There is no explanation from the side of the OP number 2 that why they even did not lodge the claim after filing the present complaint and receiving the summons by OP number 2.  To support the allegations of the complainant, he has produced on record Ex.C-1 affidavit and Ex.C-2 is the copy of application intimating the OP number 1 about the incident of leakage of cylinder.  Ex.C-10 is the copy of death certificate of the deceased. Further Ex.C-11 to Ex.C-13 are the affidavits of Shobha Garg, Nisha Bansal, Surekha Rani and Vinod Kumar, sisters and brother of the complainant, wherein it has been clearly mentioned that they have relinquished their right in favour of the complainant on account of death of his/her father.  Further Shri Charan Pal Sidhu, proprietor of OP number 1 has also produced his sworn affidavit wherein it has been clearly mentioned that the claim is only payable by OP number 2 (insured). Further the learned counsel for the complainant has cited S. Iyyapan versus United India Insurance Company Limited 2013(3) RCR Civil 654 (Supreme Court), wherein it has been held that it is the statutory right of third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.   Further the learned counsel for the complainant has cited Smt. Munni Devi and others versus Farid Khan and others 2014(4) RCR (Civil) 53, wherein it has been held that the insurer cannot escape from its liability. However, the insurer has every right to proceed against the insured for the recovery of the amount in the event of violation of any condition of the insurance policy.   As such, the learned counsel for the complainant has contended vehemently that in the present case also, the complainant has claimed the amount being the third party beneficiary, as the policy in question was for the welfare of the connection holders. The law cited above is fully applicable in the present case as such the complainant has the statutory right to recover the amount of compensation from the insurer and the OP number 2 can recover the awarded amount from OP number 1 for violation of the terms and conditions.

 

9.             Further to support his contentions, the learned counsel for the complainant has cited Madhuri Govilka and others versus Hindustan Petroleum Corporation and another IV (2006) CPJ 338 (NC), wherein it has been held that if LPG cylinder is defective and burnt, then it is certainly a manufacturing defect.  Further it was held that inference of negligence of supply of defective cylinder on part of the opposite party can be duly drawn.  It is further held that as per dealership agreement, liability of manufacturer vis-a-vis dealer is on principle to principle basis and both are liable to pay compensation because dealership also undertakes to provide services to the consumer.    Further in another case titled as D.Shankar versus Gopi Agencies and others IV (2010) CPJ 73 (NC),  it has been upheld that due to leakage of gas, wife of the complainant had severe burn injuries and expired and compensation of Rs.5. 00 Lacs was awarded.  Further the complainant has cited Bharat Petroleum Corporation Ltd. and another versus Dharam Pal III (201) CPJ 377 (NC), wherein it has been held that if gas cylinder leaked or was defective and fire broke out, even if said precautions were not meticulously followed, while changing the cylinder it would not exonerate appellant and the distributor from their liability.  It was held to be a case of deficiency in service.  From the above case laws, it is proved that the deficiency in service on the part of the OPs is writ large.

  

10.           Now, coming to the point of compensation payable to the complainant. As per the policy Ex.OP2/3 under section X public liability AOA, the maximum liability of the OP number 2 in such a case is Rs.10,00,000/-. As such, we feel that the ends of justice would be met if the OP number 2 is directed to pay to the complainant a sum of Rs.10,00,000/-.

 

11.           In view of our above discussion, we allow the complaint and direct OP number 2 to pay to the complainant an amount of Rs.10,00,000/- along with interest @ 9% per annum from the date of filing of the present complaint i.e. 09.10.2015 till realisation. It is made clear that the OP number 2 is at liberty to recover the above amount of compensation from OP number 1 for violation of the terms and conditions of the policy. We further order the OPs number 1 and 2, who are jointly and severally liable to pay to the complainant an amount of Rs.10,000/- in lieu of consolidated amount of compensation for mental tension, agony and harassment as well as litigation expenses.

12.                   This order of ours be complied with within a period of thirty days of its communication. A copy of this order be supplied to the parties free of cost. File be consigned to records.

                Pronounced.

                July 25, 2016.

                                                        (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                                (Sarita Garg)

                                                                   Member