BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.

F.A. 1497/2007 against C.C. 181/2006, Dist. Forum, Guntur.

Between:

The National Insurance Company Ltd.

Rep. by its Branch Manager

LVR Complex, Koretipadu

Guntur. Rep. by its Authorised Signatory

Regional Office at Hyderabad *** Appellant/

O.P. No. 4

And

1) Ganta Lakshmi, W/o. Babu Rao

D.No. 5-165/A, 137, Indira Nagar

Mangalagiri, Guntur Dist. *** Respondent/

Complainant.

2) H.P.C.L.

Rep. by its General Manager

Visakapatnam.

3) Royal Gas Company

Rep. by its Proprietor

Railway Station Raod

Mangalagiri, Guntur Dist.

4) United India Insurance Company Ltd.

Rep. by its Divisional Manager

Kubera Towers, 15/1,

Arundelpet, Guntur.

*** Respondents/

Ops 1 to 3.

Counsel for the Appellant: M/s. Agasthya Sarma.

Counsel for the Respondent: M/s. M. Ravindranath Reddy (R2)

Smt. S.A.V. Ratnam (R4)

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

&

SMT.M.SHREESHA, LADY MEMBER.

 

MONDAY, THIS THE THIRTYFIRST DAY OF MAY TWO THOUSAND TEN

ORAL ORDER: (Per Hon’ble Sri Justice D.Appa Rao, President.)

***

1) This is an appeal preferred by the opposite party No. 4 insurance company against the order of the Dist. Forum directing it to pay Rs. 55,000/- together with interest and costs.

2) The case of the complainant in brief is that she was a registered consumer of H.P cooking gas with OP2 dealer manufactured by OP1. While so on 18.12.2004 the dealer had supplied new sealed filled in H.P gas cylinder to the complainant. At about 7.45 p.m. when she wanted to prepare the dinner she removed the plastic seal and security cap and tried to connect to the stove in the process gas gushed out and caught fire, and damaged the house and household articles like T.V. fan etc. On information the fire authorities extinguished the fire. A report was also given to the police. The damage was to a tune of Rs. 80,000/-. Complaining deficiency in service on the part of manufacturer (Op1), dealer (OP2) and insurance companies (Ops 3 & 4) she filed the complaint claiming Rs. 1 lakh towards value of the damaged articles and Rs. 50,000/- towards compensation for mental agony and costs.

3) Op1 manufacturer resisted the case. While putting the complainant to prove each and every fact it alleged that it had never supplied any defective gas cylinder to its dealer (OP2). The gas could not have been leaked nor damage could have been occurred. At no point of time the said fact was intimated to them. There was variation between the certificate issued by the fire department and the report issued to the police. As per the agreement between it and Op2 dealer it was Op2 that was liable. The claim was exorbitant. The claim was not maintainable, against it, and therefore prayed for dismissal of the complaint.

4) The dealer (Op2) equally resisted the case. It alleged that the complainant had taken it for commercial purpose, and not for domestic purpose. The accident was not due to leakage. There was no leakage in the cylinder. There could not have been any accident by removing the safety cap. She made a false claim in order to gain unlawfully. At any rate appellant/Op4 was liable as the policy covers the public liability to the extent of Rs. 25 lakhs and the policy was in force, and therefore prayed for dismissal of the complaint with costs.

5) Op3 insurance company resisted the case by stating that it did not issue any policy. Neither the complainant nor Op2 ever informed about the accident. Therefore it prayed for dismissal of the complaint with costs.

6) Op4 the appellant herein equally resisted the case. While denying the accident, it alleged that it has issued the policy covering the building of OP2 at Thulluru and Namburu for stocks of stoves and cylinders besides covering the public liability. The policy in force from 10.10.2005 to 9.10.2006. It was liable only if the loss was caused at the insured’s premises and when the employees of the insured were installing the gas connection or when they were carrying by its employees. It has not issued the policy covering the risk of property of the complainant while she was dealing with gas cylinder. There was no intimation as to the accident. When damage was caused while the complainant removing the safety cap of the cylinder supplied by Op2 and manufactured by Op1 primarily they were answerable, if any damage has been occasioned. The complainant did not furnish any particulars as to the loss nor got it estimated either by an engineer or qualified surveyor. Had the fact been intimated it could have got the loss assessed. Therefore it prayed for dismissal of the complaint with costs.

7) The complainant in proof of his case filed her affidavit evidence and got Ex. A1 to A6 marked while the insurance companies filed Exs. B1 & B2 policies.

8) The Dist. Forum after considering the evidence placed on record opined that in view of conditions in the policy covering the public liability, Op4 insurance company was liable to pay the damage caused to the complainant which it estimated at Rs. 55,000/- and directed it to pay with interest @ 9% p.a., from the date of complaint together with costs of Rs. 2,000/-.

9) Aggrieved by the said decision, Op4 insurance company preferred the appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective. It ought to have seen that Section 10 deals with public liability and an obligation is cast upon the insurer to indemnify the insured for any loss and damage to the property at any insured premises or at any customer premises being installed by the insured or its employee or when the gas cylinders are being carried by the insured or its employees only. When the complainant herself was connecting the gas cylinder by removing the safety cap when neither the insured nor its employee were present there is no liability basically on it. No report was ever made to them in order to get the facts investigated. At any rate either Op1 manufacturer or Op2 dealer is liable to pay compensation. Therefore it prayed that the complaint be dismissed.

10) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

11) It is an undisputed fact that the complainant is a registered consumer of HP gas with OP2 dealer for the cylinder manufactured by Op1. It is also not in dispute that appellant has issued insurance policy in favour of Op2 wherein public liability was also covered for the period from 10.12.2005 to 9.10.2006. The case of the complainant is that on 18.12.2005 Op2 dealer supplied a new sealed filled in HP gas cylinder. At about 7.45 p.m. when she intended to prepare dinner she removed the plastic seal and safety cap of the cylinder and when she was trying to connect the cylinder to the stove, gas gushed out and caught fire, wherein household articles, documents, TV etc. were destroyed.

12) Evidently on report by the complainant, the fire service extinguished the fire evidenced under Ex. A3. The fact that articles worth Rs. 80,000/- were destroyed is evidenced from Ex. A4 certificate issued by MRO, Mangalagiri. She also intimated the said fact to the police evidenced under Ex. A5. It is not known as to what happened to the complaint issued to the police. She did not allege anywhere that she had intimated the said fact to the appellant. If we may say so, equally to Ops 1 & 2. She filed the complaint without putting the opposite parties any notice of her filing a complaint before the Dist. Forum. No doubt, there was no occasion for any of the opposite parties to verify the version of the complainant. Be that as it may, Exs. A1 to A5 would undoubtedly show that there was a fire accident in her house. By her own version, it is very clear that when she was trying to connect the cylinder to the stove which was supplied by Op2 dealer on the very same day, while she was removing the plastic seal and safety cap, gas gushed out and it caught fire. It is not known why the complainant did not inform either to the manufacturer or to the dealer or even to the insurance company as to the accident. The Dist. Forum unfortunately did not consider the liability of Ops 1 & 2 manufacturer and dealer respectively. Mainly it opined that since the insurance policy covers the incident, it had awarded Rs. 55,000/- and directed the appellant to pay the said amount with interest.

13) Op4/appellant has no doubt issued an insurance policy Ex. B1 in favour of Op2 dealer including the public liability. Since Op2 was not informed, it cannot be said that Op2 was guilty of not informing the appellant. Had it been informed it could have followed the procedure as per Section 4 of the terms and conditions of the policy. The complainant mainly refers to the liability of the insurance company towards public liability. Section X of Ex. B1 policy reads as follows:

The companywill indemnity 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) accidents 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 anysuch 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.

i) at any insured’s premises specified in the schedule.

ii) at any being installed by the insured and or his employees

iii) whilst the gas cylinders are being carried by the insured and/

or his employees.

The indemnity granted under this section is extended to cover the liability of the insured arising out of the authorized use by the insured of any cycle/tricycle covered under section VI of this policy. The maximum amount payable by the company as compensation including litigation expenses in respect of any one accident or a series of accidents arising from any one event and for all accidents during any one period of insurance shall not exceed indemnify limits stated in the schedule.

A reading of the above would undoubtedly show that appellant is liable to pay towards accidental damage to the property when it is being installed by the insured or its employees. The narration of the accident would show that Op2 had supplied the gas cylinder but he did not connect to the gas stove of the complainant. It should have refused to supply the gas cylinder unless the complainant agrees to get the gas cylinder connected to the gas stove. Since only on such contingency it was liable to pay compensation if any untoward thing happened.

14) It is not the case of the complainant that the accident took place when the cylinder being installed by the employees of Op2. The complainant alleged that when she intended to prepare the dinner she herself removed the plastic seal and safety cap of the cylinder and tried to connect it to the stove and in the process accident took place.

15) It is not known why the complainant did not prefer any appeal against the order of the Dist. Forum in not awarding compensation against Ops 1 & 2 who were mainly responsible or liable for the accident, if really there was some defect in the gas cylinder. Ops 1 & 2 could not have preferred any appeal as the complaint against them was dismissed. At any rate, even if principles of natural justice, equity and fairness are invoked, this Commission has no jurisdiction, to treat it as an appeal preferred by the complainant and modify the order by mulcting the liability as against OP1 or Op2. The question whether Op2 who supplied the cylinder would be liable under the policy was neither raised nor considered. Had such a contention been taken, the entire appreciation would have been different.

16) We have been observing that since rules of CPC or rules of evidence need not be applied for the proceedings initiated under the Consumer Protection Act and only principles of natural justice, equity and fair play have to be applied the parties are not bothered to prove any of these facts except filing rigmarole evidence and whatever documents they have. The provision of discovery and inspection is not being clutched which could have been necessary whatever be the deficiency either in the pleadings or in evidence. Section 3 of the Consumer Protection Act clarify that the provisions would be in addition to and notin derogation of the provisions of any other law for the time being in force. The liability of Op2 vis-à-vis the complainant has not been raised nor was considered solely on the ground that insurance policy was obtained by OP2, wherein liability to the public is guaranteed.

17) Learned counsel for the complainant relied a decision of this Commission inSenior Area Manager, Indane Area Office Vs. S. Subbarayudu reported in 2004 (6) ALD (Cons) 9for the proposition that the manufacturer and insurance company were liable to compensate in case of inherent defect in the cylinder. We do not see how the said decision is applicable to the instant case. No allegation was made that there was defect in the cylinder.

18) The Dist. Forum granted compensation without verifying whether this clause would apply to the instant case. We do not want to reiterate that the said clause could only be applied provided the injury suffered while employees of Op2 commits any deficiency in service while installing the gas cylinders. That was not the case here. When the complainant admittedly mentioned in her own complaint that the accident took place while she was fixing the cylinder to the stove, it cannot be said that appellant is liable. When there is no pleading even at the stage of appeal that Op2 is liable on the ground that it had committed breach of conditions in not getting the cylinder connected to the stove, we are unable to help or come to the rescue of the complainant. The appellant at no stretch of imagination was liable to compensate the loss caused to the complainant. It is beyond the terms of insurance contract.

19) In the result the appeal is allowed, consequently the order of the Dist. Forum is set-aside. No costs.

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

Dt. 31. 05. 2010.

*pnr