DATE OF FILING : 08-04-2010.
DATE OF S/R : 27-04-2010.
DATE OF FINAL ORDER : 28-05-2012.
1. Sri Biswanath Adhikary,
Son of Sri Gobinda Adhikary,
2. Smt. Shibani Adhikary,
wife of Sri Biswanath Adhikary,
residing at village – Bhirtafe ( N ), Jaduberia,
Post & P.S. Uluberia, District – Howrah,
PIN – 711316. ---------- --------------------------------------------------Complainants.
- Versus -
1. Indian Oil Corporation Limited,
represented by its Senior Area Manager,
Indian Oil Corporation Ltd.,
( MD ) Kolkata Area Office,
I.B.P. House, P.O. & P.S. Dhakuria,
Kolkata.
2. M/S. PAL Enterprise,
Bauria Station Road,
P.O. & P.S. Bauria, District – Howrah,
PIN – 711316.
3. The Proprietor,
M/S. Pal Enterprise, Bauria Station Road,
P.S. and P.O. Bauria,
District – Howrah,
PIN – 711316.
4. Sri Bikash Dhara,
s/o. late K. Dhara,
Gas Delivery Man,
under M/s. Pal Enterprise,
Bauria Station Road, P.S. & P.O. Bauria,
District – Howrah, PIN – 711316 and
also village – Bahirtola, P.S. Uluberia,
P.O. Jaduberia, District – Howrah,
PIN – 711316.
5. Regional Manager,
National Insurance Company Ltd.,
5 N.S. Road,
Kolkata – 1.
6. Divisional Manager,
National Insurance Company Ltd.,
3rd floor, Sterling Building,
65, Murzban Road,
Mumbai – 400 001.
7. Officer In Charge,
Uluberia Police Station, Uluberia,
Howrah,
PIN – 711316. .
8. Officer In Charge,
Uluberia Fire Station, Uluberia,
Howrah,
PIN – 711 316. ------------------------------------------------------Opposite parties.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Smt. Samiksha Bhattacharya.
Member : Shri P.K. Chatterjee.
F I N A L O R D E R
1. The instant case was filed by complainants U/S 12 of the C.P. Act, 1986, as
amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainants have prayed for direction upon the O.Ps. to pay Rs. 4 lacs for medical treatment, Rs. 5 lacs for the cost of plastic surgery, Rs. 5 lacs as compensation for mental agony, Rs. 50,000/- for damages and Rs. 25,000/- for litigation costs.
2. On 11-07-2009, the hitherto used gas cylinder being fully exhausted, the complainant no. 2 Shibani Adhikary, the wife of the complainant no. 1, in the midst of cooking took the offending cylinder no. 3559781, batch no. being 1891 for replacement to finish the unfinished cooking. As soon as the seal was opened and regulator was placed for adjustment, suddenly the gas substance started gushing out with tremendous force throwing aside the nozzle to the utter shock and surprise of Shibani and within seconds the entire kitchen turn into an inferno. Needless to mention Shibani caught fire and started shouting for help. The fire caught from the burner which was still reddish being just extinguished. Being attracted at the outcry of Shibani, her mother in law came to her rescue and she also received some burn injuries. Both were taken to Uluberia S.D. Hospital and thereafter to SSKM Hospital, Kolkata. Sibani received 50% burn. She was discharged from hospital on 07-11-2009; with glaring ugly marks of burns. The cylinder is more than 10 years old, last checked on October,1999; was completely unworthy of use due to the gross negligence of the O.P. nos. 1 & 2 ; the delivery man, O.P. no. 4 never checked the cylinder at the time of delivery ; local P.S. was informed on the same date i.e. on 11-07-2009, O.P. nos. 1 & 2 were immediately informed of the incident; one officer namely Vinit Kumar of the Indian Oil Corporation came to the spot through O.P. nos. 2 & 3; made inspection, assured all necessary help and financial support with no ultimate result. The present life of the complainant has been made horrible as her children are scared of her ugly look. Hence the case.
3. The O.P. no.1, Indian Oil Corporation Ltd. filed separate written version ; denied all the material allegations made in the complaint and contended interalia that the complainant is the consumer with respect to one cylinder ; that the other cylinder belonged to separate consumer ; that the single cylinder, allegedly the offending one was supplied to the complainants on 09-06-2009 after proper inspection ; that no accident occurred in between 09-06-2009 and 11-07-2009 ; that the report submitted by the field officer reflected that the test date and the numbers were not legible due to the effect of fire on the said cylinder ; that the cylinders are filled at the bottling plants through comprehensive testing ; that no question of negligence on the part of the o.ps. does arise ; that the entire complaints is frivolous, vexatious having no cause of action ; that there was no necessity for local inspection after long span of the alleged incident and as such the complaint should be dismissed.
4. O.P. nos. 2 & 3 also filed separate written statement ; denied all the materials allegations in toto and contended interalia that the story of fire was the result of a suicidal attempt on the part of the complainant no. 2 ; that any defect on the cap could be stopped easily by putting the cap again on the cylinder top ; that there was no negligence on the part of the o.ps. ; that New India Assurance Company is the necessary party. So the complaint should be dismissed.
5. O.P. no. 4, the delivery man submitted separate written version and contended interalia that there was no defect of the cylinder as delivered by him on 09-06-2009 to the complainant ; that the complainant no. 2 was satisfied about the safety and weight of the cylinder at the time of delivery. So the case should be dismissed.
6. The O.P. nos. 5, 6 & 9 got opportunity to file written version but did not ultimately take any step. So the case was heard against them ex parte. Same is the case of O.P. nos. 7 & 8 who prayed for expunction of their names from the cause title as they are not necessary parties. As no relief has been prayed against the O.P. nos. 7 & 8, their names are expunged from the cause title as it was ordered that the matter would be considered at the time of final hearing.
7. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
ii) Whether the complainants are entitled to get any relief as prayed for ?
DECISION WITH REASONS :
8. Both the points are taken up together for consideration. The saddest story of Shibani Adhikary may be taken to have been written in utter shock and despair of Shibani herself with no hope to restore her hitherto charm and gracefulness, symbolizing the womanhood, drained and rubbed off by the raging fire of a gas cylinder. Without being swayed by emotion, we can very well feel and fathom the degree of panic that now travels her through like electrocution whenever she touches the gas cylinder knob. Her world of existence is divided into two distinct demarcation after 11-07-2009 – one of gracefulness, peace, happiness, sweet dreams and good many expectations and the other being cruel, monstrous, ugly with frustrating dark dreams. When we compare her lively looking as is seen in the photo copy of the admit card ( Annexture D1 and Annexure E ) and Identity Card issued by her employer Rose Valley Company to that of her present looking and features ( when she stood behind her lawyer ) we cannot afford to be dispassionate bereft of any sympathy, humanly feeling and pain.
9. Whatever be the chain of arguments and loud proclaims of the ld. Lawyers of the o.ps. to distract our concentration to shield their negligence and deficiency in service and levelling aspersions against the complainant no. 2 Shibani, as a suicidal survivor, we after going through the enclosures and other materials on record, are of the view that the instant complaint must succeed owing to following reasons :
( a ) Much have been argued on behalf of the o.ps. that the complainants have come before this Forum not in clean hands. In support of their claim they drew our attention to the fact that the complainant did not prefer superior Forum against the order no. 8 dated 20-07-2010. By virtue of the order my ld. predecessor in office rejected the prayer for local inspection as prayed on behalf of the complainant. True it is that the complainant did not prefer superior Forum against the order of rejection. On scrutiny of the order no. 8 dated 20-07-2010 we come across that the prayer for local inspection was rejected at that stage only to avoid unnecessary delay of the proceeding. Yes the complainant missed the opportunity of preferring the higher Forum. On the contrary we are of the view that it was the bounden duty of the o.ps. to pray for expert commission to ascertain the dispute over cylinder leakage as the reputation of the well known company of O.P. no. 1 was at stake. The prayer for a local inspection or expert commission cannot be a monopoly of the complainant in such a case of nearly fatal accident. The allegation of the complainants definitely touched the callousness and faulty maintenance of the cylinder for years together. What factors deterred the o.ps., especially the O.P. no. 1 to pray for an expert commission to dispel the doubt – whether it was a suicidal bid by the complainant no. 2 or bursting of the cylinder for mechanical defect caused due to poor maintenance. Had there been an expert commission, the mystery of the leakage would have been unveiled. We are sure that the o.ps. deliberately did not press for commission only to suppress their deficiency and thereby to canvass the suicidal bid to distract the attention of the Forum. The O.P. no. 1 perhaps further apprehended that the reputation of the Indian Oil Corporation would be sullied if further probe was proceeded. In fact this LPG disaster ought to have been an alarm bell for the top management that there is some thing drastically wrong with the LPG cylinders not tested for years together. The O.P. no. 1 far from taking serious note of the horrifying incident attempted to shove things under the carpet. The o.ps. cannot reap any benefit for non preference of the higher Forum by the complainants against the order of refusal. Complainants might have apprehended delay in disposal of their main prayer. This non-diligence cannot be interpreted as complacency or patent weakness of their complaint.
( b ) To set the dispute of existence of double cylinder in the residence of the complainant at rest, we simply indicate that the family having single cylinder, in most cases takes the surplus cylinder of their neighbours or relatives residing in the neighbourhood in cases of emergency and return the one when it is delivered by the delivery man against their respective order. It is though illegal in the eye of law, still it is the common practice in these days when 90% families irrespective of their status use cooking gas for cooking. But in the instant the used cylinder stood in the name of the father of the complainant no. 1.
( c ) The Annexure C reflects that the booking for the cylinder was done on 02-06-2009 and it was delivered on 12-06-2009. It is the persistent claim of the complainants that the delivered cylinder was not fitted with the oven then and there as the cylinder standing in the name of the father of the complainant no. 1 temporarily was in use already. The O.P. no. 4, delivery man though loudly proclaimed that he tested the cylinder fixing the regulator and found it O.K. on 12-06-2009 is just a myth and lofty claim. It is our common experience that the delivery man of the LPG in fact obliges us by delivering the cylinder and leaves the entrance door then and there receiving the payment. In 1% case the delivery man takes the trouble to test the same with the oven. In the instant case the delivery man ( O.P. no. 4 ) never delivered the item after scrutinizing the safety aspects of the offending cylinder. This is the persistent claim of the complainant no. 2, Shibani.
( d ) We, being the consumers of the LPG have bitter experience that age-old and worn out cylinders are supplied indiscriminately. The cylinders are either unworthy of use or somehow serve the purpose of the consumers. The Indian Oil Corporation Authority knowing fully well that the supply of dented, defective and worn out cylinders carry the risk of life of the consumers, remains complacent. Their slumber is so deep that they cannot be aroused until and unless a catastrophe occurs. The unfortunate accident of 11-07-2009 was duly informed to both the o.ps. no. 1 & 2. They held joint enquiry under the leadership of Vinit Kumar and Binod Kumar. Unfortunately no report is forthcoming before the Forum lest the truth is revealed. We have no hesitation to opine that the o.ps. left no stone unturned to suppress the cylinder disaster. Had it been a case of catching fire from the gas stove and the O.P. no. 2 was herself responsible for the accident, the o.ps. would not have dealt with the case of such disaster in a hush-hush manner and there would have been flood-gate of reports against the complainant no. 2 on behalf of the o.ps. The conduct of the o.ps. in the present case raises strong suspicion that the cylinder being age-worn had a defective socket and nozzle. As soon as the regulator was pushed for operation by the complainant no. 2, the nozzle got thrown away emitting the gas contained in a gush. When the kitchen turned into an inferno catching fire from the extremely hot burner the O.P. no. 2 was placed in the midst of raging fire. On being attracted at her outcry, her mother in law came to her rescue and she also received burn injuries.
( e ) The fire accident from LPG cylinder is not disputed. It is reinforced from the report of the West Bengal Fire Service Occurrence Book ( photo copy ). It is learnt from the report that on 11-07-2009 the fire broke out from the LPG cylinder and the complainant no. 2 and her mother in law received burn injuries and shifted to hospital. There is no denial on the part of the o.ps. over the fire accident but they claimed that it was a suicidal bid by the complainant no. 2 and not for the LPG cylinder as it was not defective. In fact this attempt to build up an alternative case on the part of the o.ps. is just insane. Had it been a suicidal bid , a police case would have framed Shibani, ( the complainant no. 2 ) U/S 309 I.P.C. No such case was started by the local P.S. No report from the doctors who treated her medically on emergency basis either in Uluberia Sub Divisional Hospital or in the SSKM Hospital confirming the suicidal bid has been produced by the o.ps. to justify their bizarre claim. In fact this is a common aspersion against a woman even when she meets a fire accident. We have discussed in the foregoing paragraphs that the o.ps. took refuge to such scandalous burgain only to shield their responsibility. The Superintendent of Police, Howrah, was informed on behalf of the complainants vide letter dated 25-11-2009 that the Officer in charge of Ulubria P.S. was requested to start a case against Indian Oil Corporation, ( the o,p. no. 1 and Pal Enterprise, O.P. no. 2 ) and to take appropriate legal measures for their negligent act of supplying defective cooking gas cylinder. In this letter the Superintendent of Police, Howrah, was informed of the accident of 11th July, 2009 and was requested to expedite the process of the case and to punish the responsible person. This letter ( photo copy ) Annexure K reflects very many things – the inaction and callousness of the police authority to take action in such a burning issue when the supply of defective LPG Cylinder is rampant and for such negligence Shibani Adhikary caught fire from the LPG cylinder. It was not a suicidal bid. So the dispute over the suicidal attempt by Shibani is set at rest.
( f ) Ld. Lawyer for the O.P. nos. 2 & 3 categorically argued that the accident never occurred from the second cylinder supplied on 12-06-2009. If his argument to be accepted then it stands that the cylinder which was just used supplied by her father in law was to blame. Unfortunately this LPG cylinder belonged to the Indian Oil Corporation. Naturally O.P. no. 1 cannot have any respite from the regours of law. Whoever be the agent of this cylinder, Indian Oil Corporation cannot shift their responsibility. But the claim of the ld. Lawyer for the O.P. nos. 2 & 3 just stand on feeble foundation. The offending cylinder caries the no. 3559781 with batch no. 1891 lastly checked in the month of October,1999. This cylinder being faulty could not be filled with the regulator socket resulting slippage of the nozzle. We have already discussed that the O.P. nos. 1 & 2 and 3 had ample opportunity to place the offending cylinder under strict scrutiny. Rather they shield their responsibility and suppressed the truth on the plea that the cylinder got defaced and blackish for the extensive burn. Such evasive statement on the part of the o.ps. cannot be sufficient for exoneration. We have no hesitation in our mind that the LPG cylinder supplied by the O.P. no. 2, M/S. Pal Enterprise against the booking dated 02-06-2009 is the offending cylinder and the culprit one. So the O.P. nos. 2 & 3 cannot have respite. This defective cylinder belonged to the O.P. no. 1 Indian Oil Corporation as they are the supplier. So O.P. no. 1 as we have stated earlier is also found responsible for deficiency in service and unfair trade practice.
( g ) Admittedly the complainant no. 2 Shibani Adhikary was first taken to Uluberia Sub Divisional Hospital soon after the fire accident. She received 50% burn injury spreading over her face, chest and abdomen, legs, neck and both hands. The Uluberia Hospital having no proper arrangement to treat burn injury cases with such serious magnitude, she was referred to SSKM Hospital, Kolkata. She had to undergo medical treatment in the SSKM Hospital for nearly four months and was discharged on 7th November, 2009 with considerable deformity on her face, entire body. The marks of severe burn injuries are clearly discernable whenever she attended Forum on dates. We have occasion to visualize the burn impressions on her face and both hands. In fact she marginally survived from the cruel hands of death. Ld. Lawyer for the complainants stated before us that her children after her release from the hospital were tremendously shocked to see their mother for such ugly transformation. The photographs enclosed displaying eight snaps on different dates during her treatment is simply horrifying. Even a cursory glance of the photograph is sufficient of trigger panic to the viewer. It is certainly the blessings of the almighty that she survived from near death. We are extremely unhappy over the conduct of the o.ps. who only to save their face levelled aspersions upon Shibani Adhikary that she attempted a suicide. This submission is thoroughly irrational, motivated and purposive. She was 28 years old on the date of accident i.e. 11-07-2009. The medical documents ( photo copy nearly 30 pages ) indicate how extensive and thorough was her treatment process. We can easily imagine what agonizing pain she had to withstand for months together after the LPG disaster. The attempt on the part of the ld. Lawyers of the o.ps. to minimize the pain and sufferings of Shibani is not at all supportable. We have arrived at the definite conclusion that the extremely unfortunate LPG disaster occurred due to the defective LPG cylinder supplied by the Indian Oil Corporation signifying gross deficiency in service and unfair trade practice. We are now proceeding towards the quantum of compensation. Amount of compensation shall be commensurate with the degree of pain and sufferings due to the deficiency in service. We are very much shocked at the conduct of the o.ps. who instead of assuaging the grouse of the complainant no. 2 Shibani started a dilly-dallying process only to suppress their fault. This conduct of the o.ps. must be attended with exemplary compensation and damages.
10. Accordingly we are of the view that a sum of Rs. 4 lacs ( Rs. 2 lacs each from the O.P. no. 1 and O.P. nos. 2 & 3 ) shall be sufficient for medical treatments and Rs. 5 lacs for plastic surgery ( from the O.P. no. 1 ) and Rs. 4 lacs ( Rs. 2 lacs each by O.P. no. 1 and O.P. nos. 2 & 3 ) for prolonged mental agony and pain to the complainant no. 2 Shibani Adhikary shall be reasonable and justified, in addition to the litigation costs of Rs. 20,000/- ( Rs. 10,000/- each from the O.P. nos. 1 and 2 & 3 ). The O.P. no. 1, Indian Oil Corporation in addition to the payment of compensation shall deposit Rs. 1 lacs to the Consumer Welfare Fund for their lack of sincere and sympathetic behaviour to a bonafide consumer.
In the result the complaint succeeds and the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 32 of 2010 ( HDF 32 of 2010 ) be allowed on contest with costs against all the O.P. nos. 1 and 2 & 3 and dismissed without cost against the O.P. no. 4 and exparte against the rest without cost.
The complainants are entitled to a compensation of Rs. 4 lacs ( Rs. 2 lacs each from the O.P. nos. 1 and 3 ) for prolonged medical treatment and Rs. 5 lacs for plastic surgery from the O.P. no. 1, Indian Oil Corporation, and complainants are further entitled to a compensation of Rs. 4 lacs ( Rs. 2 lacs each from the O.P. nos. 1 and 3 ) for prolonged mental agony, pain and sufferings. They are further entitled to a litigation cost of Rs. 30,000/- ( Rs. 15,000/- each from the O.P. nos. 1 and 3 ).
The O.P. no. 1, Indian Oil Corporation shall further deposit a sum of Rs. 1 lac to the West Bengal Consumer Welfare Fund for the benefit and welfare of the LPG consumers.
The o.ps. be directed to pay the aforesaid amount to the complainants and O.P. no. 1 to deposit the amount of Rs. 1 lac to the Consumer Welfare Fund within 30 days from the date of this order failing the amount shall carry interest @ 12% per annum till full satisfaction.
Be it further mentioned that the amount of Rs. 20,000/- if paid by the O.P. no. 1 towards interim relief as per prayer of the complainants, be deducted from the total amount as saddled upon the O.P. no. 1.
The complainants are at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
