BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 01/03/2011

Date of Order : 31/07/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 124/2011

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the complainants' case leading to this complaint are as follows :-

The complainants are husband and wife. The 1^st complainant availed an LPG connection for domestic purpose from the 1^st opposite party through its distributer the 2^nd opposite party. The complainants were regularly availing cylinder from 07-08-2000. On 26-01-2010 at about 8.30 a.m., the 2^nd complainant was cooking in the kitchen after lighting the gas stove. The stove was properly burning for about 5 minutes. Suddenly, there was a deafening explosion coupled with burst of flames. The 2^nd complainant sustained burn injuries. Due to the impact of the accident, the furniture in the kitchen, kitchen cabinet its surroundings and kitchen wares got damaged. The 2^nd complainant was taken to Najath Super Specialty Hospital, Aluva and had undergone treatment upto 09-02-2010. She had suffered 35% burn injury. She had to spend Rs. 19,000/- towards treatment expenses. The 2^nd complainant had taken 45 days of half pay leave from her service. The incident had happened due to the default and laches of the 1^st and 2^nd opposite parties. The complainants quantified the loss at Rs. 3,20,000/- which includes the medical expenses of the 2^nd complainant. The complainants are entitled to get the above amount from the opposite parties with interest. This complaint hence.

2. The version of the 1^st opposite party is as follows :-

The 1^st complainant had earlier filed C.C. No. 216/2010 wherein he had alleged a different version than alleged in the present complaint. The alleged fire occurred only after about 5 minutes after lighting the gas stove which is highly improbable in the case of 'O' ring missing case. In a case of 'O' ring missing the moment, the pressure regulator (DPR) is switched on, there would be leakage of gas from the joint of the DPR as well as the valve of the cylinder and when the stove is ignited there would be a fire. The allegation that the accident occurred due to leakage of gas from the washer and defect in gas cylinder is incorrect. There is no laches or deficiency of service on the part of the 1^st opposite party. The complainants are not entitled to get any of the reliefs as claimed for.

3. The 2^nd opposite party filed a separate version raising the similar contentions that of the 1^st opposite party. In addition to that they stated that the 1^st opposite party is vicariously liable for the acts of the 2^nd opposite party and the 3^rd opposite party is liable to indemnify the 2^nd opposite party.

4. The defense of the 3^rd opposite party is as follows :-

There is no contractual relationship with the complainant and the 3^rd opposite party. The 3^rd opposite party had issued a multi-perils policy for LP Gas Dealer to the 2^nd opposite party for the period from 01-04-2009 to 31-03-2010. No claim can be entertained by the 3^rd opposite party in regard to personal accident to any customer. The liability of the 3^rd opposite party to indemnify the 2^nd opposite party is limited to the damage to the property. The liability is confined to the transport and installation alone and not to the actual use of the cylinder by the consumer and any damage arising thereof during or on account of such use. The entire accident occurred on account of the fact that the complainants did not connect the cylinder properly. As per the surveyor's report, the damage caused to the cupboards in the kitchen and repairing the door panel etc. is only Rs. 5,600/-. The complaint is devoid of any merit and liable to be dismissed.

5. Despite service of notice from this Forum, the 4^th opposite party did not respond to the same for reasons of their own. The complainants were examined as PW's 1 and 3 respectively. The witness for the complainant was examined as PW2. Exts. A1 to A8 were marked on the side of the complainants. No oral evidence was adduced by the 1^st and 2^nd opposite parties and Exts. B1 and B2 were marked on their part. The witness for the 3^rd opposite party was examined as DW1 and Exts. B3 and B4 were marked on their side. Heard the learned counsel for the contesting parties.

6. The only question that comes up for consideration is whether the complainants are entitled to get a compensation of Rs. 3,20,000/- from the opposite party with 12% interest together with costs of the proceedings?

7. It is not in dispute that the 1^st complainant availed himself of a gas connection from the 2^nd opposite party and the 1^st opposite party is the manufacturer and supplier of LPG cylinder to the 2^nd opposite party. It is also not in dispute that the 3^rd and 4^th opposite parties are the insurers of the 1^st and 2^nd opposite parties respectively. None of the opposite parties disputed the unfortunate incident, which happened at the residence of the complainants on 26-01-2010 at about 08.25 a.m.

8. As a result of the accident, the 2^nd complainant sustained burn injuries. The doctor who treated the 2^nd complainant was examined as PW2 and the certificate was marked as Ext. A2. Ext. A2 reads as follows :

“Santhakumary was admitted to this Hospital on 26-01-2010 with history of burns, face, body and lower limbs followed by explosion of gas within kitchen percentage of burns 35%. She was discharged on 09-02-2010 advising daily wound dressing.”

She had to incur a total sum of Rs. 11,331.54 towards treatment expenses evident by Ext. A6 series medical bills. Naturally, she had to suffer lot of physical pain and mental agony due to the injuries.

9. It is pertinent to note that there is no evidence on record to prove the percentage of disability caused to the 2^nd complainant. There is also nothing before us to substantiate the quantum of loss of income. Ext. A6 series goes to show that she had to incur Rs.11,331.54 towards treatment expenses. Ext. A8 photographs would show that the 2^nd complainant had sustained disfigurement after the accident which naturally goes to show that she has to undergo mental agony, physical pain and loss of income. We think that the ends of justice would be met if an amount of Rs. one lakh is allowed to the above ends.

10. The complainants have not produced any evidence to prove the quantum of loss sustained at their residence. The surveyor deputed by the 3^rd opposite party visited the spot and prepared Ext. B3 report. He assessed the damages at Rs. 5,600/-. The photographs appended along with Ext. B3 goes to show that considerable damages have been caused. Ext. B2 is the LPG accident report prepared by Manager, LPG Sales deputed by the 1^st opposite party. In Ext. B2, the damages have been exhaustively assessed and the loss quantified at Rs. 33,000/-. The loss assessed in Ext. B3 is on a lower side and by no stretch of imagination can the damages be repaired or retrieved to the original condition by spending a paltry sum of Rs. 5,600/-. Thus, we rely on Ext. B2. The complainants are entitled to the amounts as per Ext. B2.

11. Now, the question would arise which of the opposite parties are liable to pay the above compensation to the complainants. Ext. B2 LPG Accident Report is the lone evidence to show the cause of accident. The reason as per Ext. B2 reads as under :

“LPG gas was reportedly leaked through pressure Regulator LPG, which leaked out through pressure regulator, caught fire when wife of the customer turned on the stove and ignited the same.”

Admittedly, the regulator is manufactured and supplied by the 1^st opposite party and maintained by the 2^nd opposite party. We cannot exactly point out who is at fault. In that view of the matter, the 1^st and 2^nd opposite parties are jointly and severally liable to compensate the complainants for the loss sustained by them due to the accident.

12. The 3^rd opposite arty contended that as per Section VIII of Ext. B4 personal accident claim of a consumer is limited to a sum of Rs. 15,000/-, but the said clause does not find a place in it. However, Section VI of the policy reads as follows :

“Public liability : The Company will indemnify the Insured in respect of all sums which the insured is legally liable to pay as compensation and litigation expenses incurred by the Insured or by the Petroleum Company with the Company's written consent in respect of accidental death of or bodily injury to any person other than a person under the Insured's Service and/or accidental damage to property caused by or arising from installation of gas filled liquefied petroleum gas cylinder in the premises of the Insured's customers or whilst such cylinders from the Insured's premises are in the course of being carried for installation in the premises of the Insured's customers or whiles such empty cylinders are in the course of being carried from the premises of the Insured's customers to the Insured's premises, not exceeding in all for the compensation and litigation expenses the limit of Rs. 10,00,000/- (Rupees Ten lakhs only) for anyone accident or a series of accidents arising from any one event and Rs. 10,00,000/- for all accidents during one period of insurance.”

13. The 4^th opposite party has not produced the terms and conditions of the policy being absent for their own reasons. Naturally, the 4^th opposite party is legally liable to indemnify the manufacturing defect of the devices of their insured.

14. In short, the 1^st and 2^nd opposite parties are contractually and legally liable to indemnify the loss sustained by the complainants. Our decision is based on the dictum laid down by the Hon'ble National Consumer Disputes Redressal Commission in K.G. Sathyanarayan Vs. Bharat Petroleum Corporation Ltd. & Ors. III (2006) CPJ 8. Being the insurers of the 1^st and 2^nd opposite parties the 3^rd and 4^th opposite parties are equally liable to compensate the complainants.

15. The primary grievance of the complainants having been met , we are of the opinion that no costs are called for. Held so.

16. In the result, we allow the complaint in part and direct as follows :

1. The 3^rd and 4^th opposite parties shall jointly and severally pay Rs. 1,00,000/- (Rupees one lakh only) to the 2^nd complainant towards compensation for the injury sustained by her.

2. The 3^rd and 4^th opposite parties shall also jointly and severally pay Rs. 33,000/- (Rupees thirty three thousand only) to the 1^st complainant towards compensation for the damages caused to the building and the household articles.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amounts shall carry interest @ 12% p.a. till realisation.

Pronounced in the open Forum on this the 31^st day of July 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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