Sri Shyamal Gupta, Member
The factual matrix of the complaint case, in a nutshell, is that the father of the Complainant, since deceased, was a customer of the OP No. 2 since the year 1999. As per the booking made by his father, since deceased, a gas cylinder was delivered by the OP No. 2 on 05-03-2008. The said cylinder was put to use on 09-04-2008 after the gas contained in the other cylinder exhausted. While connecting the gas cylinder with the gas oven, his mother, since deceased, noticed some abnormality with the colour of the flame and therefore, the OP No. 2 was informed of the matter over phone on the very same day. Allegedly, although the OP No. 2 promised to depute its technician to check the gas cylinder on that day itself, no one turned up as promised. Therefore, a local technician was called in to check the cylinder the next morning. While the said mechanic was checking the gas cylinder, suddenly the same exploded. As a result, the parents of the Complainant as well as the local mechanic suffered grave burn injury and were rushed to hospital, where they succumbed to death despite the best efforts of treating doctors. Subsequently, the OPs were apprised of the matter, but they refused to pay any compensation to the Complainant. For this reason, this case was filed.
Per contra case of the OP No. 1 is that there was no defect in the gas cylinder, as alleged. It alleged that the so-called mechanic, Prasanta Debnath, since deceased, had no expertise to do such odd job and that he was a tea stall owner. This OP asserted that, by entrusting the job to such untrained person, the Complainant’s father, since deceased, breached usage condition of LPG cylinder. Moreover, Complainant has miserably failed to prove that there was any defect in the cylinder and also as because the Complainant did not hire any service from this OP against payment of due consideration, he had no locus standi to file the complaint case against it.
In its defence, the OP No. 2 submitted that, before delivery, the sealed cylinder was duly checked by the deliveryman as per norm and during the intervening period of delivery of the subject cylinder and the date of accident, no official complaint was lodged from the end of the Complainant or his family members about any sort of defect/deformity with the cylinder in question. Further, during investigation, authorized trained mechanic of this OP found that the rubber pipe was short in length.
The OP No. 3, on the other hand, submitted that the OP No. 2 violated claim procedure by not providing timely intimation about occurrence of the peril forthwith. As the OP No. 2 did not file any claim form in respect of the subject peril, therefore, it could not take any liability to indemnify the loss as per terms, exceptions and conditions of the policy.
All the parties submitted evidence in support of their respective contentions.
Points for consideration
- Whether the complaint case is maintainable?
- Whether there was any deficiency in service on the part of the OPs?
- Whether the Complainant deserves any relief?
Decision with reasons
Point No. 1:
Admittedly, the Complainant’s father, since deceased, took one gas connection from the OP No. 2. Being a beneficiary of the service being hired by the Complainant’s father, since deceased, from the OP No. 2 on payment of due charges, there can hardly be any quarrel as to the status of the Complainant as a consumer. Otherwise too, be it on the account of pecuniary or territorial jurisdiction, the case does not suffer from any sort of infirmity. In view of this, it is held that the complaint case is maintainable in its present form and prayer.
Point No. 2:
The case of the Complainant is that the accident took place on account of supply of a defective cylinder by the OP No. 1 through the OP No. 2. On the other hand, the case of the OP Nos. 1&2 is that, the cylinder was perfectly in order. According to them the peril occurred due to usage of short pipe and inexperience of the tea stall owner.
Be it mentioned here that the gas cylinder, together with damaged pipe and regulator, was sent to the National Test House (Eastern Region) for testing purpose. Following rigorous testing, the said Testing House reported that in respect of yield strength test and tensile strength of weld joint, the cylinder failed to meet the requirement of IS:3296 (Part 1) – 2006, read with IS: 6240-2000. However, regarding other tests those were carried out with the said cylinder, the same met the requirements of aforesaid specification. The said Testing House also reported that as the rubber pipe was in damaged condition, the same was not fit for working performance test, but the same failed to meet the requirements of IS: 9573-2012 in respect of ‘tensile strength and elongation at break’. It was also reported therein that the Regulator performed satisfactorily and no smell of LPG detected during the performance testing of Regulator, fitted with rubber pipe and LPG oven provided by the Laboratory.
We afraid, from the aforesaid report, it cannot be conclusively held that on account of the defects in the cylinder or regulator or the rubber pipe, the accident took place.
Now, coming to the human error angle, as raised from the end of the OP Nos. 1&2, it is curious to note that no tangible proof is put forth from the side of the OP Nos. 1&2 to show that the deceased mechanic was a tea stall owner and not competent to perform such hazardous job. Above all, there is nothing to show that the accident took place on account of the negligence of the deceased mechanic. The very foundation of such averment being rest on sheer surmises and conjecture, we are not inclined to attach any importance to the same.
Whosoever/whatsoever might be at fault, fact of the matter is that the OP No. 2 took insurance coverage to indemnify such peril. Against such backdrop, it remains inexplicable, why did it not report the matter to the OP No. 3 as soon as the Complainant and his uncle reported the matter to it. In terms of Clause No. 4 of the Claim procedure of the subject policy, it was obligatory on the part of the OP No. 2 to intimate the peril to the OP No. 3 forthwith upon gaining knowledge about the same which it did not do. As the OP no. 2 did not file any claim form, the OP No. 3 could not process the said claim after investigating the matter thoroughly though an independent surveyor.
It seems, the matter was also reported to the OP No. 1 vide communiqué dated 05-07-2008; but the letter inexplicably found its way into the waste paper bin.
It appears from the website of the OP No. 1 that, apart from the OP No. 2, the OP No. 1 has also taken a comprehensive ‘Public Liability Policy for Oil Industries’. The above insurance policies taken by Indane LPG Distributors/PSU Oil Marketing Companies are Public Liability Policies and are not in the name of any individual LPG customer. Under this Policy, the beneficiaries are entitled to get the following indemnities:
(a) Personal Accident : Rs.6,00,000 per person per event in case of death;
(b) Medical expenses : Max Rs.2,00,000 per person (Limited to Rs 30,00,000/- per event);
(c ) Property damage : Max. Rs. 200,000/- per event at authorized customers’ registered premises;
(d) Per year in aggregate: Rs. 10 Crore.
On account of the lapses on the part of the OP No. 1 and 2, the legitimate claim of a beneficiary cannot be put in jeopardy. It is a clear case of deficiency in service on the part of the OP No. 1 and 2, who took no step at all to compensate the Complainant by referring the matter to the Insurance Companies concerned in time.
In our considered view, therefore, both the OP Nos. 1&2 shall have to step in and jointly/severally indemnify the instant peril.
It is though claimed by the OP no. 1 that the Complainant’s father, since deceased, had no authority to rope in the service of any person save and except the authorized person of the OP Nos. 1 and 2, the Complainant claimed that his father, since deceased, did bring the matter of abnormality in respect of the colour of the flame of gas to the OP No. 2 the previous day of accident over phone, for obvious reasons, the latter vehemently denied receiving any such call from the side of the Complainant/his father, since deceased. It emphasized the fact that had such call been made, it would definitely assign a complaint number as was done when the matter of accident was brought to its notice by the Complainant along with his uncle.
The denial of the OP No. 2 notwithstanding, it is an open secret that usually dealers do not assign any complainant number whenever they receive routine complaints like the one being made by the parent of the Complainant. It is true that a complaint no. was assigned on 23-06-2008 to the Complainant and/or his uncle. That said, let us appreciate; it was altogether a different scenario. As three lives were lost in the accident, quite naturally, there was no dearth on the part of the OP No. 2 to follow official decorum to keep its record straight. Further, since such services are provided free of cost by the dealers of gas companies, it is hardly believable that a consumer would rope in the service of a local mechanic by burning a hole in his pocket. In view of this, we find no good reason to doubt to the allegation of the Complainant in this regard.
Point No. 3:
OP Nos. 1 and 2 shall jointly and/or severally pay Rs. (6,00,000/- x 2) + (Rs. 2,00,000/- x 2) = Rs. 16,00,000/- to the Complainant within 40 days from this day along with a litigation cost of Rs. 25,000/-, i.d., simple interest @ 9% p.a. over the entire decreetal sum shall be payable for the entire period of default.
The case, accordingly, stands allowed in part.
