CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present
Sri. Santhosh Kesavanath P. President
Sri. K.N. Radhakrishnan, Member
CC No. 17/2009.
Tuesday, the 24th day of April, 2012
Petitioner : 1) Rosamma George,
Kottayil House,
Kottamuri, Athirampuzha P.O
Kottayam.
2) Ajay George,
--do—
3) Susan Maria George,
--do—
(By Adv. V.T Rejimon)
Vs.
Opposite parties : 1) Indian Oil Corporation Ltd.
Reptd.by its Chief Area Manager,
Indane Area Office,
Panampally Nagar, Kochi.
(By Adv. Zakhier Hussain)
2) Suresh Scaria,
Proprietor,
Priya Gas Agency
Ettumanoor.
(By Adv.Anie Mathew)
3) United India Insurance Co. Ltd.
Reptd.by its Divisional Manager,
Divisional Office, Kottayam.
(By Adv. P.G Girija)
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of the petitioner filed on 15..9..2009 is as follows.
Petitioner’s are the wife and children of late George Sebastian, who subscribed an LPG connection from first opposite party, supplied by second opposite party. 3rd opposite party is the insurer of first opposite party. As the beneficiary of the service availed from first opposite party, petitioner’s are using LPG cylinders supplied by first and second opposite party. On
-2-
14..1..2008 petitioner replaced the old LPG cylinder with a new cylinder supplied by the second opposite party. On 15..1..2008 in between 2 A.M and 2.30 AM due to the leakage of LPG gas cylinder, an explosion was caused in the petitioner’s residential building. Hearing the sound of explosion neighbours and relatives of petitioner’s rushed to the spot. Matter was intimated to the Ettumanoor police and a crime was registered as Crime No. 52/2008. According to the petitioner, due to explosion building of the petitioner, electrical goods, house hold utensils were damaged. The damaged building was examined and loss of damage was ascertained by PWD department. PWD department issued a certificate regarding the damage and assessed the damage for an amount of Rs. 4,27,810/-. According to the private surveyor the loss will come to Rs. 6,00,000/-. The licensed contractor constructed the building and he issued an abstract bill with cost of construction as Rs. 6,66,821/-. According to the petitioner due to the act of deficiency committed by the first opposite party the LPG cylinder was leaked and petitioner sustained huge loss. Hence this petition.
Opposite party filed version contenting that petition is not maintainable. First opposite party admitted that on 5..1..2008 they had given a refill cylinder to the petitioner. But opposite party denied the statement that LPG cylinder was connected on 14..1..2008. The petitioner did not inform any accident to the opposite party and the alleged explosion was not due to leakage of gas from gas cylinder, supplied by second opposite party. Investigation conducted by first opposite party revealed that there was no fire broke out due to the incident. There was no burn mark in any electrical
-3-
circuit in the kitchen at the place where alleged explosion have took place. The alleged explosion is not due to any defect in the cylinder supplied by first opposite party. First opposite party is not informed regarding the accident or about the assessment of damage done as alleged by the petitioner. Surveyor does not inform the opposite party regarding any assessment. Report of the surveyor is in collusion with petitioner. According to first opposite party they have a valid insurance policy with 3rd opposite party and the 3rd opposite party is liable to indemnify first opposite party. So, they pray for dismissal of the petition with their costs.
Second opposite party filed version stating same contention of the 1st Opposite party and they pray for dismissal of the petition with their cost.
3rd opposite party filed version contenting that petition is not maintainable. According to 3rd opposite party explosion was not due to leakage of gas cylinder, supplied by second opposite party. Investigation conducted by first opposite party reveals that no fire broke out in the premises due to the incident. There is no burn mark in the LPG instruments. So the explosion if any may occurred due to some other reasons. The averment with regard to assessment made by PWD engineer is denied by 3rd opposite party. The expenses incurred for the reconstruction in the tune of Rs. 6,00,000/- is denied. 3rd opposite party insurance company was not informed regarding the accident or assessment of damage made by the petitioner. Petitioner is not entitled for any damages. Policy is admitted . According to 3rd opposite party policy is subject to terms and conditions. On information regarding the incidents approved surveyor was appointed to assess the loss.
-4-
Petitioner informed the 3rd opposite party about the accident only on 16..1..2008 and thus the surveyor was deputed. Surveyor visited the premises on 18..1..2008. Opposite party requested the petitioner to submit the estimate of loss but the petitioner submitted the same only on 1..3..2009 ie. after filing the petition. So surveyor could prepare the report only on 31..3..2009. As per the surveyors report petitioner is only entitled for Rs. 1,21,000/-. Opposite party has no occasions to consider the claim. So, they pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether there is deficiency in service on the part of the opposite party?
ii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and
Ext. A1 to A13 documents and deposition of PW1 to PW6 on the side of the petitioner , Ext. B1 & B2 documents and deposition of DW1 on the side of the opposite party.
Point No. 1
According to the petitioner LPG cylinder supplied by first opposite party caused explosion and damages to the petitioner’s residential building. According to the petitioner it is the bounden duty of 1st and 2nd opposite party to supply gas cylinder having no leakage and damages. Opposite party 1 and 2 admitted that they supplied cooking gas cylinder to the petitioner on 5..1..2008. Further more from Ext. A7 gas connection pass book and Ext A8 receipt it can be seen that opposite party 1 and 2 supplied an LPG cylinder to the petitioner on said date.
-5-
All the opposite parties denied the cause of explosion as leakage of LPG cylinder supplied by second opposite party. In order to prove the explosion petitioner produced report of the Forensic Scientific Assistant as Ext. A1. Certified copy of FIR in Crime 52/08 of Ettumanoor Police Station is produced same is marked as Ext. A9. Certified copy of scene mahazar prepared by Ettumanoor Police is produced and is marked as Ext. A10. In Ext. A1 report the Scientific Assistant come to conclusion that there is accumulation of LP Gas in the closed kitchen room, due to leakage from the gas cylinder and the combustion of the released gas, followed by sudden expansion at the high temperature, led to the blast. Cause of leakage is the combined effect of dis function of the cylinder valve which led to release of gas from the cylinder and the failure of the cylinder washer to maintain the released gas effectively in the column extending from the cylinder nozzle to the stove knobs without escape to the surrounding . He further opined that gas leakage through the cylinder valve (pin) when the regulator is removed from the cylinder or when the regulator knob is in “OFF” position is not permissible at any rate.
The surveyor appointed by the 3rd opposite party filed his report. Said report is marked as Ext. B1. In Ext. B1 surveyor come to an observation that there arose an explosion but existence of any other materials of spontaneous combustion and exclusive nature at the building is not examined by police and Forensic expert. Possibility of malicious act of anybody or willfully act of consumer is not informed by the investigating department. As per (Insurance surveyors and loss assessors code of conduct 2000)
-6-
regulation 13 the surveyor or the loss assessor is responsible for examining incurring , investigating verifying and checking upon the cause and circumstances of the loss including the extend of loss and insurable interest. Here the DW1 surveyor is not going to a detail investigation and he is depending the Ext,. A1 report and blaming the opposite party 1 & 2. Police authority has not conducted detail investigation From Ext. A1 and A11 documents we come to conclusion that the case of the petitioner that explosion was due to the LP Gas is much probable.
Next question to be decided is what is the quantum of damages or else the loss sustained to the petitioner. Petitioner produced assessment made by the PWD Engineer and the said document is marked as Ext. A2. Ext. A3 is the loss assessed by the licensed Civil Engineer Ext. A5 is the bill extract given by one KK Kurian a PWD contractor. On the side of the opposite party report filed by the DW1 is produced and same is marked as Ext. B1. The quantum of damages assessed in the above documents are as follows:
a) In Ext. A2 PWD valued damage as 427110
b) In Ext. A3 the private surveyor assessed the damages as six lacks.
c) In Ext. A5 the PWD contractor given a bill extract for Rs. 666821/-
d) The surveyor, DW1, estimated the damage for Rs. 1,21,000/-
3rd opposite party has a definite case that the fact of explosion was not
intimated to the opposite party immediately. Admittedly the explosion occurred on 15..1..2008 and the 3rd opposite party has intimated the same only on 16..1..2008 and the surveyor visited the premises on 18..1..2008. According to the opposite party 1 & 2 they were also not intimated about the accident. Ext. A2 is a valuation made by the PWD Engineer immediately
-7-
after the accident the Executive Engineer is examined as PW3 as per PW3 age certificate issued by the Athirampuzha Grama Panchayath building is 16 years old. In our view Ext. A2 is prepared after deducting the depreciation and after taking the detailed amount for carrying out sanitary and electrification work. PW4 prepared the A5 report. According to PW4 on the basis of direct measurement and based on the PWD rate on year 2007 the said report is prepared.
In our view the report prepared by the surveyor is not much reliable. According to the 3rd opposite party petitioner had not inform 3rd opposite party
about the accident. Probably petitioner may not be aware about the contract of insurance between opposite party 1 & 3. Opposite party 1 and 2 admittedly visited the spot but has not produced any valuation with regard to loss sustained to the petitioner. In Ext. B1 report the surveyor do not specify the actual damages caused to the building and the actual amount required for reconstruction of building. In the counter affidavit of 3rd opposite party it is stated that the petitioner intimated the accident to the 3rd opposite party on 16..1..2008 and immediately the surveyor was appointed. But as far as the opposite party 1 & 2 concerned petitioner never intimated them about the accident. DW1 the surveyor deposed that he prepared only rough estimate with regard to the damage. He further deposed that he did not know the cause of accident. He had not conducted any test with regard to the cause of leakage of the gas cylinder. Even though DW1 assumes other causes for the accident
no possible cause for the accident was described in the B1 report. In B1 report surveyor did not examined cracks caused to the concrete roof and the
-8-
floor. He did not noticed damage caused to house hold utensils and kitchen ware’s. In B1 report it was stated that RCC roof was in a collapsed stage. But DW1 has not noticed damages caused for RCC roof, electrification, plumbing and sanitary, Door and windows, floor tiles etc. DW1 even calculated the labour charges much lessor than the PWD rate. Hon’ble Supreme Court of India in new India assurance company Ltd. Vs. Pradeep Kumar reported in 2009 CPJ( IV) page 46 stated that surveyors report is no last and final word. It may be basis for settlement of claim but neither binding upon the insurer or insured. In our view in the absence of any evidence on report to establish that loss assessed by approved surveyor was correct and justified the Fora can consider the other evidence before the Fora. So, in our view the report filed by the Executive Engineer, PWD building division is acceptable. So point No. 1 is find accordingly.
Point No. 2
In view of the finding in point No. 1. Petition is allowed. In the result 3rd opposite party being the insurer, is ordered to pay the petitioner an amount of Rs. 4,27,810/- with 9% interest from 15..1..2008 till realisation. Opposite party is also ordered to pay an amount of Rs. 25,000/- as compensation for shock and mental agony sustained to the petitioner. Opposite party is also ordered to pay an amount of Rs. 5348/- as cost paid by the petitioner as estimation cost paid by PWD Department. Since admittedly the gas cylinder supplied by opposite party 1 & 2 to petitioner is exploded. Opposite party 1 & 2 are ordered to supply a new gas cylinder to the petitioner. Opposite party is ordered to pay an amount of Rs. 3,000/- as litigation cost to the petitioner.
Order shall be complied with within one month of receipt of the copy of this order.
-9-
Dictated by me transcribed by the Confidential Assistant corrected by me and
pronounced in the Open Forum on this the 24th day of April, 2012.
Sri. Santhosh Kesavanath P. President Sd/-
Smt. Bindhu M. Thomas, Member Sd/-
Sri. K.N Radhakrishnan, Member Sd/-
APPENDIX
Documents for the petitioner:
Ext. A1: Report of the Forensic Scientific Assistant, attached the
Department of Police Dtd: 05..05.2008
Ext. A2: Valuation certificate with detailed estimate of the damage
ascertained by Exe. Engg., PWD Building Division, Kottayam
Ext. A3: Loss and damages caused to the building assessed by the
licensed Civil Engg. K.S Divakaran Dtd: 22..01..2008.
Ext. A4: Receipt issued by the licensed Civil Engg. K.S Divakaran
towards the receipt of Rs. 3,000/-.
Ext. A5: Bill abstract given by he Licensed PWD Contractor KK Kurian
Ext. A6: Copy of Receipt issued by the PWD for towards the assessment
fee of Rs. 5348/-.
Ext. A7: Photocopy of the gas connection passbook.
Ext. A8: Receipt for the issuance of the new gas cylinder on
05..01..2008 by the 2nd opposite party.
Ext. A9: Certified copy of FIR in Crime No. 52/2008 of Ettumanoor
Police Station.
Ext. A10: Certified copy of Scene mahasor in Crime No. 52/2008 of
Ettumanoor Police station.
Ext. A11: Certified copy of Final report (Charge) in Crime No. 52/2008
of Ettumanoor Police Station
Ex: A12series: Photographs with CDs.
Documents for the Opposite parties
Ext. B1: Copy of Survey report Dtd: 31..3..2009.
Ext. B2: Copy of LPG Accident report Dtd: 15..1..2008.
Witness
PW1 : P.T Gervasis, Scientific Assistant
PW2 : K.S Divakaran, Licensed Engineer.
PW3 : P. Humayoun, Exe. Engineer, PWD
PW4 : K.K. Kurian, PWD Contractor
PW5 : Thomas George, Rtd. Exe. Engineer.
PW6 : Shily P. John, RTd. Engineer.
DW1 : Sivanpillai, Surveyor.
By Order,
Senior Superintendent
