For Sourav Das                     : Mr. Sanjoy Kumar Gosh, Advocate

For Indian Oil Corporation     :Ms. Priya Puri, Advocate

                                               : Ms. Tanvi Nigam, Advocate

For Sneha Gas Services       : Mr. N.R. Mukerji, Advocate

                                               Mr. Abhijit Sinha, Advocate (through V.C.)

For National Insurance Co.:  Mr. Saroj Kumar Pandey, Advocate (through V.C.)

1.      Heard Mr. Sanjoy Kumar Gosh, Advocate, for Sourav Das, Ms. Priya Puri, Advocate, for Indian Oil Corporation Limited, Mr. N.R. Mukerji, Advocate, for M/s Sneha Gas Services and Mr. Saroj Kumar Pandey, Advocate, for National Insurance Co., in above appeals.

2.      Above appeals have been filed from the order of West Bengal State Consumer Disputes Redressal Commission, Kolkata, dated 11.03.2020, passed in CC/62/2009, partly allowing the complaint and directing Indian Oil Corporation Limited and M/s. Sneha Gas Services, jointly and severally, to pay compensation of Rs.1600000/- and litigation cost of Rs.25000/-, for death of Subhendu Kumar Das and Smt. Bishnupriya Das (the parent of the complainant) due to burn injuries. As these appeals arise from the same order passed in one complaint, as such, it were consolidated, heard together and are being decided by a common order.

3.      The office has reported that First Appeal No. 924 of 2020 has been filed with delay of 248 days. Impugned order was passed on 11.03.2020, certified copy was prepared/issued on 19.03.2020 and the appeal has been filed on 22.12.2020. The office has reported that First Appeal No. 546 of 2021 has been filed with delay of 500 days. certified copy was prepared/issued on 26.08.2021 and the appeal has been filed 23.08.2021. The appellant has filed I.A. No.5838 of 2021, for condoning the delay in filing the appeal. The office has reported that First Appeal No.86 of 2022 has been filed with delay of 661 days. Certified copy was prepared/issued on 19.01.2022 and the appeal has been filed on 31.01.2022. Supreme Court in Suo Moto Writ Petition (C) No.3 of 2020 waived the limitation from 15.03.2020 to 30.05.2022. As such all the appeals are treated as filed within time.

4.      Sourav Das (the complainant) filed CC/62/2009 for directing Indian Oil Corporation Limited and Sneha Gas Services (the opposite parties), jointly and severally to pay (i) Rs.3500000/-, as compensation for death of his parents Subhendu Kumar Das and Smt. Vinshnupriya Das, due to burn injuries received due to leakage and fire of cooking gas cylinder; (ii) Rs.505922/-, as the expenses incurred in their treatment after receiving burn injuries; (iii) Rs.100000/-, as compensation for mental agony and harassment; (iv) Rs.12000/-, as litigation costs; and (v) any other relief which is deemed fit and proper, in the fact and circumstances of the case. National Insurance Company Limited was impleaded as opposite party-3, in the complaint on 09.09.2010.

5.      The complainant stated that Subhendu Kumar Das was issued double cylinder LPG, from M/s. Sneha Gas Services (opposite party-2), who was an authorised agent of Indian Oil Corporation Limited (opposite party-1), vide Consumer No.SG7520, in February, 1999. Empty cylinder used to be replaced by refilled cylinder time to time. On booking, Bimal (the delivery man of M/s. Sneha Gas Services) delivered refilled cylinder on 05.03.2008. Smt. Bishnupriya Das connected the refilled cylinder to gas stove on 09.04.2009. During use, she noticed that gas smell was missing and colour of the flame was not usual. Smt. Bishnupriya Das made a complaint to M/s. Sneha Gas Services on phone on 09.04.2009, in this respect. Although opposite party-2 assured that they would send some mechanic for inspection but nobody turned up for two days. After waiting for two days, Smt. Bishnupriya Das asked the complainant to arrange some private mechanic. Mr. Prashanta Debnath was running a gas stove repairing shop at 45, Baruipara Lane, Police Station Baranagar, Kolkata. The complainant contacted him and narrated the problem. Mr. Prashanta Debnath came to the house of the complainant on 11.04.2008 at 7:30 hours. Smt. Bishnupriya Das took him in the kitchen for checking the problem. At that time Subhendu Kumar Das was in adjoining room. Suddenly, he heard screaming sounds from the kitchen. He rushed to the kitchen and found that Mr. Prashanta Debnath and Smt. Bishnupriya Das were engulfed in fire. Subhendu Kumar Das tried to rescue them but he also came in grip of the fire. All the three persons received severe burn injuries. The complainant was in bathroom at that time. Looking three persons in burning condition, he was stunned. Subrat Kumar Das (the uncle of the complainant) was residing at ground floor of the same building. Subrat Kumar Das and his wife came on the spot. After arranging some vehicle all the three injured were taken to R.G. Kar Medical College and Hospital, Kolkata with help of the neighbours, where they were admitted around 8:30 hours on 11.04.2008, for treatment. For better treatment, all the three injured were shifted to Park Site Nursing Home, 70, Purna Das Road, police station Lake, Kolkata on 12.04.2008, where they were admitted around 14:00 hours for treatment. During treatment, Mr. Prashanta Debnath succumbed to burn injuries on 21.04.2008 at 21:10 hours. On information of death by the hospital, Lake Police Station got his post mortem on 22.04.2008 and released the dead body to his relative. Treating doctors referred Subhendu Kumar Das and Smt. Bishnupriya Das to higher centre i.e. Mayflower Nursing Home Private Limited, 114-A & B, Ripon Street, Kolkata on 25.04.2008, where they were admitted around 16:20 hours. Smt. Bishnupriya Das succumbed to burn injuries during treatment on 26.04.2008 at 14:15 hours. On information from hospital, Park Street Police Station got her post mortem on 27.04.2008 and released the dead body. On the advice of treating doctor, Subhendu Kumar Das was shifted to Woodlands Medical Centre Limited, 8/5, Alipore Road, Kolkata on 30.04.2008, where he was admitted around 15:00 hours. Subhendu Kumar Das succumbed to burn injuries during treatment on 12.05.2008 at 9:20 hours. On information from hospital, Alipore Police Station got his post mortem on 12.05.2008 and released the dead body. At the time of his death, Subhendu Kumar Das (the father of the complainant) was aged about 53 years and employed in Police Department of West Bengal Govt. and drawing salary of Rs.18188/- per month. His pay scale was revised to Rs.28779/- w.e.f. 01.07.2009. The complainant suffered loss of Rs.2500000/- due to death of his father. At the time of her death, Smt. Bishnupriya Das (the mother of the complainant) was aged about 45 years. She was a household wife. The complainant suffered a loss of Rs.1000000/- due to death of his mother. The complainant incurred total Rs.569722/- in treatment of his father and mother. He received medicalim of Rs.49000/- for his mother and Rs.14800/- for his father. He was entitled for Rs.505922/- towards medical expenses. After performing last rites of his father, Subrat Kumar Das (the uncle of the complainant) made a complaint to M/s. Sneha Gas Services on 23.06.2008, for physical inspection to find out the cause of incident. Mr. Pradip Chakraborty, a mechanic of M/s. Sneha Gas Services inspected the place of incident on 24.06.2008 at 11:00 hours. While testing the regulator, he released small quantity of gas from gas cylinder, which did not have usual smell. On oral query, he informed that due to absence of chemical, usual gas odour was missing. Subrat Kumar Das approached M/s. Sneha Gas Services on 30.06.2008 and sought for a copy of inspection report but same was not supplied. Subrat Kumar Das sent a registered letter dated 05.07.2008 to M/s. Sneha Gas Services for supply of inspection report. After waiting for some time, when he did not receive inspection report, he made a complaint to Baranagar Police Station, in this respect on 19.07.2008. The complainant wrote a letter dated 02.08.2008 to Senior Area Manager, Indian Oil Corporation Limited with a copy of it to M/s. Sneha Gas Services. Then M/s. Sneha Gas Services, vide letter dated 21.08.2008, informed the complainant that Baranagar Police Station was investing the incident and not to disturb them any further. After waiting for some time, this complaint was filed on 20.08.2009, claiming compensation for deficiency in service.                

6.      Indian Oil Corporation Limited (opposite Party-1) filed its written reply and contested the complaint, in which, material facts have been denied. It has been stated that there was no defect in gas cylinder and regulator as such there was no deficiency in service on its part. Gas cylinder was supplied to the complainant on 05.03.2008 and remained at the house of the complainant for more than one month. Had there been any leakage in the cylinder, gas would not have continued till 11.04.2008. Smt. Bishnupriya Das detected the problem on 09.04.2008. Instead of approaching the distributor M/s. Sneha Gas Service, the complainant approached Prashanta Debnath, who was running a small tea stall in his locality and was not a mechanic of gas stoves nor was trained in this field. A trained mechanic can only check/repair gas cylinder and regulator. In the Terms and Condition, the consumer has been specifically prohibited to undertake repair of the equipment at his own lever except by the corporation and distributor. The incident happened due to negligence of Prashanta Debnath and Smt. Bishnupriya Das. The complainant knew the fact of negligence of Prashanta Debnath and Smt. Bishnupriya Das and did not lodge any complaint against M/s. Sneha Gas Service. When Subrat Kumar Das (the uncle of the complainant) made a complaint to M/s. Sneha Gas Services on 23.06.2008, Mr. Pradip Chakraborty, a mechanic of M/s. Sneha Gas Services inspected gas cylinder and regulator on 24.06.2008 at 11:00 hours in presence of the complainant and his uncle and found it in sound condition. Fire incident was neither reported to local Police Station nor Fire Service Station as such correct cause did not unearth. Indian Oil Corporation Limited is not liable for any compensation.

7.      M/s. Sneha Gas Service (opposite party-2) filed its separate written reply. In which, it has been stated that Bimal, the delivery man, supplied the refilled gas cylinder to the house of the complainant on 05.03.2008. As per practice and procedure, he unsealed the cylinder, connected it with the regulator and gas stove and checked it in presence of the customer. In the inquiry report of Police station Baranagar, it has been mentioned that during repair of gas stove by local mechanic, fire incident took place. It has been denied that Mr. Pradip Chakraborty, the mechanic of M/s. Sneha Gas Services, while inspection on 24.06.2008 at 11:00 hours informed that due to absence of chemical, usual gas odour was missing. On the other hand, Mr. Pradip Chakraborty found gas cylinder and regulator in sound condition. Gas cylinders used to be refilled at the plant of Indian Oil Corporation Limited. No other consumer made similar complaint regarding absence of gas smell.  Other pleas were similar to as taken by opposite party-1.    

8.      National Insurance Company Limited (opposite party-3) filed its written reply, in which, it has stated that Indian Oil Corporation Limited had taken “L.P. Gas Trader Combined Policy” vide Policy No.153500/48/07/2000005387, for the period of 15.03.2008 to 14.03.2009, in which, M/s. Sneha Gas Services was Insured. Alleged incident took place on 11.04.2008 but no claim was lodged by the Insured or the beneficiaries of the policy before opposite party-3 as such, the complaint was not maintainable against it.  

9.      The complainant filed Affidavit of Evidence Sourav Das and documentary evidence. Indian Oil Corporation Limited filed Affidavit of Evidence of Ambika Prasad Mishra and documentary evidence. M/s. Sneha Gas Services filed Affidavit of Evidence Soumya Banerjee and documentary evidence. National Insurance Company Limited filed Affidavit of Evidence P.R. Das and documentary evidence. The parties cross-examined the witnesses by serving interrogatory. State Commission obtained report from National Test House (Eastern Region) Kolkata dated 04.07.2014, in respect of Gas Cylinder, Regulator, Rubber Pipe, in which, no defect was found in Gas Cylinder and Regulator. Mr. Pradip Chakraborty, the mechanic of M/s. Sneha Gas Services, in Inspection Memo dated 24.06.2008, did not mention any defect in Rubber Pipe and Gas Stove.    

10.    State Commission by the impugned order dated 11.03.2020 found that it cannot be conclusively held that the accident had taken place due to defects in Gas Cylinder, Regulator and Gas Pipe. At the same time, it is also not proved that the accident had taken place due to any negligence of Prashanta Debnath and Smt. Bishnupriya Das. The incident of fire and death of three persons due to burn injury duly communicated to opposite parties-1 and 2 but they failed to set up claim under “L.P. Gas Trader Combined Policy” No.153500/48/07/2000005387 as such there was deficiency in service on their part. Under Insurance Policy, per person per event of death Rs.600000/- and medical expenses of Rs.200000/- was payable. As such opposite parties-1 and 2 are jointly and severally liable to pay that amount to the complainant. Hence these appeals have been filed.    

 11.   We have considered the arguments of the counsel for the parties and examined the record. Indian Oil Corporation Limited and M/s. Sneha Gas Services have tried to dispute the incident of fire due to gas leakage as fire incident was neither reported to local Police Station nor Fire Service Station. Supreme Court in Sunita Vs. Rajasthan SRTC, (2020) 13 SCC 486, held that civil proceedings have to be decided on the basis of preponderance and probability and best evidence rule is not applicable. At the time of admission of all the three injured in R.G. Kar Medical College and Hospital, Kolkata, their dying declaration were recorded by the attending doctor, in which accidental burn injuries due to leakage of gas from pipe of gas cylinder, were noticed. Similarly, while sending dead bodies for post mortem, concerned police station had obtained report from Baranagar Police Station, who also in its reports have mentioned that burn injuries were received due to leakage of gas. These facts are corroborated with the Affidavit of Evidence of Sourav Das. In his long cross-examination, nothing adverse has come. As such the incident of fire due to leakage of gas and burn injuries received by all the three deceased in the kitchen of the complainant is proved. Pradip Chakraborty, mechanic of M/s Sneha Gas Services in his inspection memo dated 24.06.2008 did not find defect in the gas cylinder, regulator, gas pipe and gas stove. He also did not notice any tempering in these equipments. National Test House also in his report dated 04.07.2014 did not find any defect in gas cylinder and gas regulator. Although none of the euipments relating to the gas cylinder were defective but even then there was leakage of the gas, due to which the fire took place. Such circumstances are covered in the insurance policy as granted by the Insurance Company i.e. liability at law for compensation and claimants cost and expenses in respect of any accident resulting in death or body injury to any person or damage to property in connection with trade. In such circumstances, it was imperative for M/s Sneha Gas Services as well as Indian Oil Corporation to forward the insurance claim to Insurance Company Ltd. for consideration. The accident was duly reported to M/s Sneha Gas Services on 23.06.2008, who in its reply dated 21.08.2008 has strictly warned the complainant not to do any correspondence with them. The incident was also reported to Senior Area Manager of Indian Oil Corporation through letter dated 28.02.2008 but he also remained silent in the matter. In such circumstances, there was deficiency in service on the part of opposite parties 1 & 2 and they were, therefore, rightly directed to pay compensation which otherwise is payable under the insurance policy.  

12.    Findings of fact recorded by State Commission that it cannot be conclusively held that the accident had taken place due to defects in Gas Cylinder, Regulator and Gas Pipe or due to any negligence of Prashanta Debnath and Smt. Bishnupriya Das, are based upon appraisal evidence on record and do not suffer from any illegality.

13.      Sourav Das in his appeal has claimed compensation on the basis of real loss due to death of his parents. As defect in gas cylinder and regulator has not been proved as such State Commission has found deficiency in service only for the reason that opposite parties-1 and 2 had failed to set up claim under “L.P. Gas Trader Combined Policy” No.153500/48/07/2000005387. The compensation has been awarded as payable under the policy. There is no illegality in this respect.

O R D E R

In view of aforementioned discussions all the appeals are dismissed.