Date of Filing 02.09.2020

                                                                                                             Date of Disposal: 29.01.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

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

               THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                              ……MEMBER-I

CC.No.22/2022

THIS MONDAY, THE 29^th DAY OF JANUARY 2024

1.Mr.BalaKumar,

    S/o.Bakthavachalam,

2.B.Meenakshi,

    D/o.Balakumar,

3.B.Indhumathi,

   D/o.Balakumar,

Both are residing at

No.7, Kamber Street,

Avadi Chekpost, Chennai 600 054.                                                       ......Complainants

                                                                              //Vs//

1.The General Manager,

    Consumer Claims Division,

    Cooking Gas Division,

    Indian Oil Corporation,

    Regional Office, No.500, Thenampet,

    Opposite SIET College,

    Anna Salai, Chennai 600 018.

2.M/s.Shri Ragavendra Gas Agency,

    Rep. by its Proprietor,

    Indian Gas Services,

   No.404, CTH Road,

   Avadi, Chennai 600 054.

3.The General Manager,

   Claim Division,

   ICICI Lombard General Insurance,

   ICICI Lombard House,

   No.414, Siddhi Vinayak Temple,

   Prabhadevi, Mumbai – 400 025.

4.The Regional Manager,

    ICICI Lombard General Insurance,

   Ground Floor, Third Floor No.684/690,

   Seethakathi Business Centre,

   Anna Salai, Thousand Light East,

   Thousand light, Chennai.                                                                 ….opposite parties.

Counsel for the complainants                          : M/s.Kamalakaran, Advocate.

Counsel for the 1^st opposite party                   :  Mr.P.S.Sivasubramaniam, Advocate.

Counsel for the 2^nd opposite party                  : Exparte.

Counsel for the 3^rd and 4^th opposite parties. : M/s. A.Lathamaheswari, Advocate.

This complaint coming before us on various dates and finally on 19.01.2024 in the presence of M/s.Kamalakaran, counsel for the complainant and Mr.P.S.Sivasubramaniam, counsel for the 1^st opposite party and M/s. A.Lathamaheswari, counsel for the 3^rd and 4^th opposite parties and 2^nd opposite party was set exparte and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

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

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties to pay a sum of Rs.50,00,000/- towards compensation for the death of one Mrs.Munjula by the fire accident along with 18% interest to the complainants.

Summary of facts culminating into complaint:-

2. Claiming compensation for the death of one Mrs.Munjula by the fire accident the present complaint was filed by the legal heirs of the deceased victim.

3. Deceased was having service for Gas Connection vide Number 7525800477 from the 2^nd opposite party.  During  the month of March 2017 the Regulator of the gas connection did not function properly and the deceased Manjula sent several representations and complaints both orally and in written form with regard to the same and finally on 17.05.2017 gave a written complaint to both the first and 2^nd opposite party.  However, no action was taken by them On 24.05.2017 at 6.45am while preparing food for the complainants due to gas leakage the cylinder got blast resulting in fire accident.  In the said accident the deceased got surrounded with fire and the 2^nd complainant tried to save their mother during which both of them sustained severe burn injuries.  The deceased Munjula and the 2^nd complainant got admitted in KMC Hospital.  The deceased Munjula was said to sustained 73% burn injuries and the incident was immediately reported to the Avadi Police Station and Registered as FIR No.928/2017.  However, inspite of treatment Munjula died on 30.05.2017.  Both the 1^st and 2^nd opposite party assured for compensation and there were several rounds of talk between the complainant and 1^st and 2^nd opposite parties.  However as no compensation was paid on 19.02.2020, legal notice was issued to the 2^nd opposite party.  However no reply was sent and hence again on 13.03.2020 notice was issued to both the 1^st and 2^nd opposite party for which the 1^st opposite party replied on 27.07.2020.  As the complainant was not satisfied with the reply issued by the 1^st opposite party the present complaint was filed claiming compensation of Rs.50,00,000/- from both opposite parties with 18% interest along with cost of the proceedings.

The crux of the defence put forth by the 1^st opposite party:-

4. The 1^st opposite party filed version stating that the complaint has to be dismissed on the ground of limitation.  It is submitted by them that utmost care has been taken by them in the gas filling station and also during the delivery of the cylinders.  The failure and negligence on the part of the customer in not following the safety measure involves great risk to their life and limb.  It is denied that there was leakage in the regulator and that complaint was made to them.  It is submitted that only after receipt of legal notice during 2019 the 2^nd opposite party inspected the complainant’s house and confirmed that the accident had occurred due to leakage of gas in AC and electricity fault and thus there was no fault in their equipment.  Further any incident involving LPG should be reported to the Insurance Company within 30 days from the date of accident.  Since the accident was not reported within the stipulated time and the claim was made at this belated stage it could not be entertained.  The reason for fire accident was not mentioned in the FIR as no cylinder was recovered from the accident spot.  It was found that the gas leakage from AC was the cause for the fire accident and the same occurred in the Bed Room and not in kitchen.  Thus the 1^st opposite party sought for the dismissal of the complaint.

The crux of the defence put forth by the 3^rd and 4^th  opposite parties:-

5. The 3^rd and 4^th opposite party filed version stating that the complainants are not consumers as per section 2(7) of the Consumer Protection Act 2019.  It is denied that the products of the 1^st and 2^nd opposite parties were insured with the 3^rd and 4^th opposite parties.  The 3^rd and 4^th opposite parties cannot be held liable for the negligence of the complainant storing the LPG cylinder at a dangerous place. There was no privity of contract between the complainant and 3^rd and 4^th opposite parties.  The 1^st and 2^nd opposite parties should have exercised utmost care and safety in delivering the LPG cylinder to their customers and in attending the faults.  If they failed to do so the 3^rd and 4^th opposite party could not be held liable.  No cylinder was ceased from the respective place.  Further when the accident was not reported within 30 days no claim could be made at a future date.  Thus they sought for the dismissal of the complaint.

6. On the side of complainants proof affidavit was filed and documents marked as Ex.A1 to Ex A27 were submitted. On the side of 1^st opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B3 were submitted. On the side of 3^rd and 4^th opposite party proof affidavit was filed and document marked as Ex.B4 was submitted. Though one Mr.K.Murugan, Advocate filed vakalath for 2^nd opposite party thereafter he did not appear before this Commission to file any written version and prosecute the case and hence he was called absent and set exparte on 16.08.2022 for non filing of written version within the mandatory period as per the statute.

Points for consideration:-

1. Whether the negligence and deficiency in service as alleged by the complainants with regard to supply of a defective cylinder resulting in fire accident causing death of one Mrs.Manjula has been successfully proved by the complainants by admissible evidence?
2. If so to what reliefs the complainant is entitled for?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1. Letter given by one Mrs. Nirmala to the Inspector of Police, Avadi Police Station was marked as Ex.A1;
2. Photographs  was marked as Ex.A2;
3. Copy of FIR dated 24.05.2017 was marked as Ex.A3;
4. Hospital entry sheet was marked as Ex.A4
5. Copy of Death Report was marked as Ex.A5;
6. Post-Mortem Certificate was marked as Ex.A6
7. Death Certificate was marked as Ex.A7;
8. Acknowledgment receipt to get legal heirs certificate was marked as Ex.A8;
9. Affidavit of 1^st complainant was marked as Ex.A9;
10. Aadhar card of deceased Mrs.Munjula was marked as Ex.A10;
11. Receipt issued by the 2^nd opposite party in the name of deceased was marked as Ex.A11;
12. Receipt issued by the 2^nd opposite party in the name of deceased was marked as Ex.A12;
13. Cylinder Distribution Book was marked as Ex.A13;
14. Receipts for the purchase of cylinders was marked as Ex.A14;
15. Family card was marked as Ex.A15;
16. Aadhar card of the 1^st complainant was marked as Ex.A16;
17. Aadhar card of the 2^nd complainant was marked as Ex.A17;
18. Aadhar card of the 3^rd complainant was marked as Ex.A18;
19. Legal notice issued by the complainants to the 2^nd opposite party dated 19.02.2020 was marked as Ex.A19;
20. Postal receipt was marked as Ex.A20;
21. Acknowledgement card for proof of delivery was marked as Ex.A21;
22. Legal notice issued by the complainants to the 1^st and 2^nd opposite parties dated 13.03.2020 was marked as Ex.A22;
23. Postal receipt was marked as Ex.A23;
24. Acknowledgement cards for proof of delivery was marked as Ex.A24;
25. Letter given by the 1^st complainant to the 2^nd opposite party stating that there was some leakage in the regulator and requesting to attend the same by their technicians was marked as Ex.A25;
26. Reply notice issued by the 1^st opposite party to the 1^st complainant dated 27.07.2020 was marked as Ex.A26;
27. Report issued by Avadi Fire Station dated 28.08.2023 was marked as Ex.A27;

The following documents were filed on the side of 1^st opposite party in support of their defence;

1. ICICI Lombard General Insurance Policy Schedule was marked as Ex.B1;
2. Reply notice issued by the 1^st opposite party was marked as Ex.B2;
3. Investigation Report by the 2^nd opposite party was marked as Ex.B3;

The following documents were filed on the side of 2^nd opposite party in support of their defence;

1. Copy of policy schedule was marked as Ex.B4;

7. Heard the oral arguments adduced by the complainants, the 1^st opposite party and 3^rd &4^th opposite parties.

8. The crux of the complaint allegations is that the leakage of the cylinder though reported to the 2^nd opposite party several times, the same was not attended which resulted in the fire accident due to cylinder blast and death of the wife of 1^st complainant and mother of 2^nd and 3^rd complainants.

9. On the other hand the crux of oral arguments of all the opposite parties is that the claim was not made within 30 days of the fire accident and hence could not be considered.  Further they also denied that due to cylinder blast the fire accident occurred and they relied upon the inspection report (Ex.B3) to contend that only due to gas leakage from the AC in the Bed Room of the complainant the alleged accident took place.  Thus all the opposite parties deny their liability to make the claim honoured.

10. On appreciation of the entire pleadings and materials this Commission could arrive at the following reasonings;

a) The Post-Mortem Report (Ex.A6) clearly establishe that the death was due to COMPLICATIONS OF BURNS SEPTICEMIA and hence it is confirmed that death occurred only due to fire accident.

b) Vide Ex.A25 the complainant had submitted the cop of letter sent to the 2^nd opposite party stating that there was some leakage in the regulator and requesting the 2^nd opposite party to attend the same by their technicians.  This document was not disputed by any of the opposite parties and thus the leakage problem in the regulator was presumed to be proved.

c) It was even admitted by the 1^st opposite party that the fire accident occurred due to gas leakage but the source was stated as AC.  However, the said version was not substantiated by the 1^st opposite party by any document.

d) The inspection report alleged to have been submitted by the 2^nd opposite party to the 1^st opposite party provides that the accident occurred only due to gas leakage from the AC in the Bed Room of the complainant.  However, the 2^nd opposite party remind absent and was set exparte.  Therefore the truthfulness and the mode of inspection reminds unsubstantiated and hence could not be relied upon by any of the opposite parties.

e) It is the defence of the 1^st opposite party that as no cylinder was recovered from the spot it could not be believed that due to cylinder blast the fire accident had occurred.  However, as per Ex.A27 submitted by the complainant, in the report given by the Fire Station, Ambattur it has been clearly stated that

“jP tpgj;J vz;.1562/2017> ehs; 24.05.2017 md;W 07.10 kzpastpy; vz;.07> fk;gu; njU> Mtb> Nkw;F fhe;jp efu;> nrd;id 6000054> vd;w Kftupapy; LPG Nf]; frpT fhuzkhf tPL jP tpgj;Jf;Fs;shdJ.  Mtb epiya Cu;jp nry;Yk; Kd; jpUkjp> kQ;Rsh taJ 45 kfs; kPdhl;rp taJ 25 MfpNahu; jPf;fhak; mile;j epiyapy; nghJkf;fshy; 108 Nehasu; Cu;jp %yk; kUj;Jtkidf;F mDg;gp itf;fg;gl;ldu; vdTk; ,j;jPtpgj;jpy; gPNuh> Nrhgh> fl;by;> gpupl;[;> Ngd;> Jzpfs; kw;Wk; rhkhd;fs; jP tpgj;Jf;Fs;shfp Nrjkile;jd.  ,j;jPapid Mtb jPaizg;G – kPl;G gzpfs; epiya Cu;jp kw;Wk; FOtpduhy; jP mizf;fg;gl;lJ vd njuptpf;fg;gLfpwJ.”

The said document was not disputed either in pleadings or arguments by opposite parties.  Therefore the reasonings given by the 1^st opposite party that no cylinder was found at the accident spot and hence the cylinder blast could not be believed assumes no significance.

f) Limitation point was raised by all the opposite parties that the complaint was filed beyond the period of 2 years from the date of incident.  However, we could see that CMP.No.15/2020 was filed to condone the delay which was allowed on 22.04.2022 and hence the said defence is not available to the opposite parties.  Further it has to be considered that the due to lack of awareness over insurance for gas cylinder blast, the claim process in many cases get delayed.  Therefore the defence of the opposite parties that the claim has to be dismissed on the ground of limitation has to be brushed aside.

g) The defence of the 3^rd and 4^th opposite parties is that the complainant are not consumers and hence they could not maintain the complaint.  It is to be appreciated that as per Section 2(5) of Consumer Protection Act a Complainant in case of death of a consumer may be his legal heirs or legal representative.  Also being the beneficiaries of the person having gas connection the complaint filed by the husband and minor children of the deceased victim was very well maintainable before this commission.

h) It is contended by 3^rd and 4^th opposite party that for the fault of 1^st and 2^nd opposite parties in not rectifying the regulator fault resulting in the fire accident they could not be held liable.  However the same could not be taken as a valid defence to repudiate the claim of the complainants.  If the 3^rd and 4^th opposite parties disputes their liability with respect to the acts of 1^st and 2^nd opposite parties it is for them to proceed separately against the 1^st and 2^nd opposite party but the same will not affect the claim of the complainants in any manner.

j) The opposite parties failed to lead any documentary evidence to show that due to negligence on the part of deceased victim or the complainants the accident had occurred. 

k) Though it is contended by the opposite parties that the accident occurred due to gas leakage from the AC in the Bed Room of the complainant, the photographs submitted as Ex.A2 sufficiently prove that the accident occurred only in the kitchen and not in the Bed Room.  Hence the arguments that for the reason that the cylinder is not found out the accident could not be believed is a mere statement and this Commission could not rely on the same to disprove the complaint allegations. Our view was supported by the decision rendered by the National Consumer Disputes Redressal Commission in M/s. Oriental Insurance Company Limited Vs Kanta Jhamu & t Ors dated 31.05.2019 wherein it has been held that

“The fire official's report further substantiates that the fire was only on account of leakage in the gas cylinder.  The contention of the Learned Counsel appearing for the Dealer that the fire could also be because of short-circuit and that there is no other evidence to prove that the fire was on account of leakage in the subject cylinder, is untenable in the light of the fact that there is no other evidence filed either by IOCL or the Dealer to prove to the contrary.  The contention of both IOCL and the Dealer regarding contributory negligence by the Complainants is also untenable as all that the two ladies had done was to open the seal of the fresh cylinder.  The stand taken by the Dealer that the customer is required to check the leakage of gas at the time of delivery is not possible practically as the consumer is not required to open the seal of the gas cylinder at the time of delivery.  The customer can only check for any other defects/deficiencies.”

Thus for the above discussed reasonings when the complainants had successfully proved that the fire accident occurred due to leakage of Gas Cylinder and when the opposite parties failed to discharge their burden of proof of any negligence on the part of complainants for the fire accident and when it is the established Legal Principle that the manufacturer is vicariously held liable for the act of Distributors, we hold all the opposite parties liable for the fire accident and consequently to pay compensation.

In the result, we hold that the opposite parties are jointly and severally liable to pay the compensation to the complainants for the death of the victim Manjula due to the cylinder blast resulting in fire accident.  We answer the point accordingly in favour of the complainants and as against the opposite parties.

Point No.2:-

11. As per the documents produced and proved the deceased victim is of the age 45 years who is the wife of the 1^st complainant and mother of the 2^nd and 3^rd complainants.  Due to death of Mrs.Manjula the 1^st complainant had lost his wife and 2^nd & 3^rd complainants had lost their mother, love and affection which they would have received from the deceased victim.  In such circumstances as per the established Statutory liability the complainants are entitled for a compensation of Rs.10,00,000/- to be paid jointly and severally by all the opposite parties.  We also award Rs.10,000/- towards litigation expenses.

In the result, the complaint is partly allowed directing the opposite parties 1 to 4 jointly and severally directing them

 a) To pay a sum of Rs.10,00,000/- (Rupees ten lakhs only) towards compensation for the mental agony and hardship caused to the complainants by the death of Mrs.Manjula in the fire accident, within six weeks from the date of receipt of copy of this order;

 b) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainants;

c) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, an interest at the rate of 6% will be levied on the said amount from the date of complaint till realization.

 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 29^th day of January 2024.

   Sd/-                                                                                                                         Sd/-

 MEMBER-I                                                                                                         PRESIDENT

List of document filed by the complainant:-

List of documents filed by the 1^st opposite party:-

List of documents filed by the 3^rd and 4^th opposite parties:-

   Sd/-                                                                                                                     Sd/-

 MEMBER-I                                                                                                     PRESIDENT