DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Mahajan s/o Late Sh. Sadalu Ram, r/o H.No.715, Sector 38-A, Chandigarh.

---Complainant

Vs.

1]   Hindustan Petroleum, Plot No.6-A, Sector 19, Chandigarh, through its Managing Director.

2]   M/s Parnam Gas Service, SCO No. 388, Sector 37-D (Back Side), Chandigarh, through its Proprietor Sh. Krishan Lal Maini.

3]   IFCO TOKIO General Insurance Company Limited, 5^th Floor, 182, ASRA Building, Waterfilled Road, Bandra (W), Mumbai.

---- Opposite Parties

BEFORE:   MRS.MADHU MUTNEJA            PRESIDING MEMBER

SH. JASWINDER SINGH SIDHU    MEMBER

Argued By:    Sh. Sunil K. Chaudhary, Counsel for Complainant.

              Sh. B.S. Jaswal, Proxy Counsel for Sh. G.S. Jaswal, Counsel for OP No.1.

              Opposite Party No.2 ex-parte.

              Sh. Varun Chawla, Counsel for OP No.3.

PER MADHU MUTNEJA, PRESIDING MEMBER

1.          The instant complaint has been filed by Sh. Mahajan, LPG consumer connection holder and thereby a consumer of the Opposite Parties. The Complainant has stated that he lives together with his wife and children, including married children all of whom are dependent upon him. His Gas Connection No. is 819035. Details of delivery of gas on 26.05.2010 from the Opposite Parties have been placed at Annexure C-1.

          On 02.06.2010 while the daughter-in-law of the Complainant was cooking meal for the family at about 12:30 P.M. on H.P. gas stove, the gas cylinder finished and needed to be changed. Sh.Uttam Chand son of the Complainant opened the cap of the filled gas cylinder which has been supplied on 26.05.2010 by the Opposite Parties. At once gas came out due to leakage of valve and Sh. Uttam Chand caught fire with high flames. The incident was reported to the fire brigade and local police, who extinguished the fire from the body of the Complainant’s son. Voter card of the injured has been placed at Annexure C-1/1. DDR No. 27 dated 02.06.2010 was recorded at Police Station Sec.39, Chandigarh (Annexure C-2). After extinguishing the fire, Sh. Uttam Chand was admitted to the PGI with burn injuries, which were assessed at 85-90%. He remained admitted in PGI for about one month. OPD ticket and follow up card are at Annexure C-3 and C-4. The son of the Complainant suffered injuries and became incapable to earn his livelihood due to defective gas cylinder supplied on 26.05.2010. The Opposite Party was also informed of the incident. The Opposite Party did not offer any condolence hence the Complainant issued the demand notice, asking for compensation of Rs.5.00 lacs., but the Opposite Parties did not take any action or pay any compensation (Demand Notice Annexure C-5). It has been stated that Sh.Uttam Chand had been earning his livelihood by plying a fruit rehri in Sector 38-A, Chandigarh. He was earning about Rs.3,000/- p.m., but was now incapable to do work. Alleging deficiency in service, the Complainant has filed the instant complaint with a prayer for compensation of Rs.4.90 lacs, as per the following details:-   

I)   Loss of 100% earning capacity. The son of Complainant was 31 years old and was earning Rs.3,000/- pm x 1 years = Rs.36,000/- p.a. Therefore, Rs.36,000/- p.a. x 12 years = Rs.4,32,000/-.

II)  Loss of enjoyment of life, pain and mental tension present and future Rs.50,000/-.

III) Litigation expenses Rs.8,000/- 

2.          Notice of the complaint was sent to Opposite Parties seeking their version of the case.

3.          As none appeared on behalf of Opposite Parties No.1 and 2, both were proceeded against exparte on 15.07.2011. However, on an application preferred by the Opposite Party No.1 and no objection by the Complainant, the exparte orders against Opposite Party No.1 were set-aside on 14.09.2011.

4.          Opposite Party No.1 in reply has taken the preliminary objection that the Complainant is not entitled to file the present complaint as the case for compensation cannot be filed in a representative capacity. The actual victim Sh. Uttam Chand has not filed the complaint. It has been stated in the DDR that the daughter-in-law (Jyoti) was cooking food on the stove when Sh. Uttam Chand changed the empty gas cylinder with the filled gas cylinder, which leaked and immediately caught fire. It is asserted that while changing gas cylinder, when cap is removed there is always a slight leakage of gas and general instructions have been given to all consumers not to open the seal if there is some flame nearby. The daughter-in-law was cooking food on the stove and in the process of opening the cap, the obvious leakage of gas due to extra pressure of gas caused the fire due to which the son of the Complainant suffered by way of injury. Opposite Party No.1 has also contended that the incident has happened due to the negligence of Sh. Uttam Chand who has failed to act as per the instructions given to the consumers not to open the gas cylinder near flammable items. This fact has been concealed by the Complainant who has tried to put the entire burden of his fault on Opposite Parties No.1 and 2.

          Also, there is no direct relationship between the Complainant and Opposite Party No.1 as the Complainant has booked his gas from Opposite Party No.2. As per the Dealership Agreement dated 27.8.2011 entered into by the Opposite Party No.1 with Opposite Party No.2, the Corporation is not liable for any act or omission by the dealer or its servants and the dealers will be deemed to have acted as a principal and not as an agent of the answering Opposite Party No.

          On merits, Opposite Party No.1 has denied all averments due to want of knowledge. It has also been maintained that no expert opinion has been filed with the complaint to prove any fault on the part of Opposite Parties No.1 & 2. The leakage of gas was not due to the fault of Opposite Parties nor was there any technical defect in the gas cylinder. The pressure of gas was full in the cylinder on the day when it was put into use. Hence, it cannot be said that there was gas leakage. Relying on H.P. Gas Consumer Instruction Booklet (which is on record), Opposite Party No.1 has prayed for dismissal of the complaint. 

5.          Opposite Party No.3 in its reply has maintained that Complainant is not a consumer of the answering Opposite Party. Insurance policy has been issued by the Opposite Party No.3 to Opposite Party No.1. No deficiency in service or unfair trade practice by the Opposite Party No.3 has been alleged. No claim is payable to the son of the Complainant by the Opposite Party No.3, who is not a party to the complaint.  

          On merits, Opposite Party No.3 has contended that all contentions relate to Opposite Parties No.1 & 2 and no intimation of the incident or claim has been given to the Opposite Party No.3 either by the Complainant or by the Opposite Parties No.1 & 2. Though no claim has been filed by Opposite Party No.1, Opposite Party No.3 submits that its liability for the claim, if any, would be subject to terms and conditions of the insurance policy and exclusions thereof. The Complainant has not taken any policy from the Opposite Party No.3. Opposite Party No.3 has therefore, prayed for dismissal of the complaint.

6.          Parties were permitted to place their respective evidence on record, in support of their contentions.

7.          We have heard the learned counsel for the contesting parties (Opposite Party No.2 being ex-parte) and have perused the record. Opposite party No.2 on being duly served failed to put in appearance.  In the absence of any reply/version from the side of opposite party No.2, all the averments of the present complaint qua it have gone unrebutted.  

8.          The grievance of the Complainant has arisen due to alleged leakage of gas from the cylinder supplied to him by the Opposite Party No.2 on 26.05.2010. The fire has been ignited when the cylinder was being changed on 02.06.2010. It is pertinent to mention here that the cylinder has remained sealed with the Complainant in the intervening period of about 07 days and he has not expressed/complained about any leakage of gas in this period.

9.          It is also important to note here that the Complainant has given in the DDR dated 02.06.2010 (Annexure C-2) that his daughter-in-law was cooking food on a stove. 

10.        It is common knowledge that LPG gas is highly inflammable. It is kept pressurized in the cylinder and there would definitely be some leakage/release when the cap is opened. The precautions for the safety of all the users as laid out by the Hindustan Petroleum Corporation Ltd. as well as the instruction booklet clearly lay out that no gas stove should be burning when the cylinder is installed. The relevant safety rules are enumerated below: -

“9.  No other heating device (like an electric oven or a kerosene stove) should be placed within a meter of a H.P. Gas Appliance.”

“5.  Immediately contact your distributor or emergency service cell for a mechanic if you smell the foul odour of H.P. Gas.”

“Do not keep electric oven and kerosene stove at least within one meter distance from HP gas stove.”

11.        The relevant portion of the DDR No. 27 dated 02.06.2010 (Annexure C-2) placed on record by the Complainant is reproduced herewith:-

Statement of Shanti W/o Mahajan R/o H.No. 715, Sec.38, Chandigarh:-

“……………..Today, my son Uttam, Daughter-in-law Jyoti and their two minor children were at home. My son Uttam was changing empty gas cylinder in kitchen with refilled HP cylinder. As and when he opened cap of refilled cylinder then gas at once started to leak and daughter-in-law Jyoti was cooking food on stove nearby and it caught fire due to at once leakage of gas and it burns mouth, hands and back of my son. Some one called police. Then police and fire brigade reached on spot who extinguished the fire. Police took my son to Hospital for treatment. This incident has occurred due to leakage of gas due to which my son sustain burns. This incident has occurred by-chance and suddenly and no one is responsible.”

Statement of Uttam Singh s/o Mahajan R/o H.No. 715, Sec.38, Chandigarh:-

“……………Today, I, my wife Jyoti, Children and mother were present at home. My wife was cooking food on stove at kitchen. Due to finish of gas cylinder, I was changing with another refilled H.P. cylinder. As and when I opened the cap of gas cylinder to regulate it with the regulator then at once gas leaked and it caught fire due to burning of stove nearby on which my wife was cooking and my cloths caught fire due to which my whole body sustain burns. I cried for help. People, fire brigade and police reached on spot. Now, I am under treatment in PGI. This incident has occurred with me at the time of regulating gas cylinder with regulator in kitchen and due to burning stove nearby. No one is responsible and this incident has occurred by-chance and suddenly at the time of changing gas cylinder. My wife and children are well at home.”

Statement of Vijay s/o Mahajan R/o H.No. 715, Sec.38-D, Chandigarh:-

“At that time, I was in another room of house. This incident has occurred with my brother in kitchen due to leakage of gas while changing gas cylinder and connecting with the regulator and caught fire from stove due to which he sustain burn in body. This incident has occurred by-chance and suddenly and no one is responsible.”

           The inference of the Police is as under:-

“Police action – from above statement of witnesses and spot verification – this incident has happened by chance and suddenly due to caught of fire in stove while patient Uttam Singh changed gas cylinder in kitchen. No one found responsible. No offence is made out for police action. Recorded in Roznamcha.”

12.        The opposite party no.1 has also tendered the report (Annexure R-1/4) which is prepared by one of its officials namely Abhinav Sethi, Sales Officer, Chandigarh.  It bears the date 3.6.2010.  From the perusal of page 28 of the reply, while informing its senior authorities, the Sales Officer under different headings had observed in the following manner :-

“DESCRIBE ACCIDENT

(Circumstances, cause of accident, source of gas leakage and source of ignition etc. and possible motive of suicide)

Customer is using kerosene stove at a distance of 1.5 mtrs. As the safety cap of cylinder is opened, cylinder catches fire.

XXX       XXX       XXX

          CAUSES : Leakage of gas from cylinder, as cylinder pin remains pressed.

XXX       XXX       XXX

          Action taken such as education/remedial steps where it is established it is due to customer’s fault. 

Customer educated about need of ventilation in room & not to place kerosene stove ……

Action taken if it is faulty equipment.

Equipment replaced as there is a leakage of gas due to pin of cylinder in pressed position.”

Though the complainant has alleged in his complaint that the cylinder in question started to leak as soon as the cap of its nozzle was taken off, apart from his averments, he has filed only an affidavit in support of his contentions. Though there is no other evidence from the side of the complainant to prove these averments, but at the same time, Annexure R-1/4, tendered by opposite party No.1 and is the report of its official, who was responsible to convey the details of the accident to his higher ups, has conclusively proved that the pin inside the nozzle of the gas cylinder remained in a pressed position resulting into the leakage of the gas and the gas cylinder was full to its capacity, and in the absence of any means to control this leakage  the accident that happened with the son of the complainant was only due to the fault in the gas cylinder itself.  Even the efforts of the opposite parties to shift the blame on the complainant by claiming that there was a burning kerosene stove close by, too does not cling to the complainant as the said stove was lying at a distance of 1.5 meters away from the leaking gas cylinder which is more than the one meter distance, as advised in their booklet.   It would not be out of place to comment that even if there was no source of ignition in the room, where such a huge amount of gas had leaked, even a spark from outside the room could have resulted in the accident. 

13.        It is further noticed that opposite party No.1 while tendering Annexure R-1/4 has preferred not to file this document in totality.  It is revealed from page Nos. at the bottom of this document it was a 17 page document, but opposite party No.1 has only preferred to file 9 pages from pages 27 to 35.  The remaining 6 pages have not been filed for the reasons best known to it.

14.        Though the son of the complainant remained hospitalized for a number of days, he has failed to place on record the details of the expenses incurred on the treatment of his son.  The prayer clause of the complaint also mentions that the son of the complainant has lost his capacity to earn but there is also no certificate from a competent authority to prove this fact.  Furthermore, the quantum of loss suffered to the tune of Rs.4,32,000/- on account of loss of earnings cannot be decided in the absence of any supporting evidence.  However, the injuries due to the accidental leakage of gas from the cylinder is proved from the F.I.R. (C-2), the OPD ticket (C-3) and also from the fact that the fire brigade was called in to extinguish fire in the room where the accident had taken place, and the same are also not denied by the opposite party.   In these circumstances, the complainant having suffered loss of his household belongings as well as his son having received burn injuries is conclusively proved.  We are also of the view that the supply of faulty cylinder is an act of deficiency in service and the complainant deserves to be adequately compensated for the loss suffered by him. 

15.        In the light of our above observations, finding definite deficiency in service on the part of the opposite parties No.1 & 2 in not looking into the grievances of the complainant, which he had registered with them by sending them a legal notice, we allow the present complaint against them.  We are not inclined to pass any order against opposite party No.3 as it was only substituted by opposite party No.1 at a later stage and the complainant too has not alleged any deficiency in service qua it.  Hence the present complaint is dismissed qua opposite party No.3.

16.        We direct opposite party No.1 & 2 to pay a consolidated amount of compensation to the tune of Rs.35,000/- on account of deficiency in service as well as mental agony and harassment suffered by the complainant.  Parties are left to bear their own costs. 

17.        This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amount of Rs.35,000/- shall carry interest @18% per annum from the date of filing of this complaint till actual payment.

18.        The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

03^rd June, 2013                                   

Sd/-

(MADHU MUTNEJA)

PRESIDING MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER