By Jayasree kallat, Member:

            The complainant has taken gas connection from the first opposite party as Consumer No.7047.  The first opposite party is the distributor of liquid petroleum gas.  The second opposite party is the manufacturer of L.P.G. and cylinder and third opposite party is the insurer of the first opposite party.  The complainant’s case is that on 30-11-01 the complainant’s wife replaced empty gas cylinder with a new refilled one, on the morning of 30-11-01 after connecting when she lighted the stove fire broke out under the pressure regulator spread all over the kitchen, and a number of house hold articles were damaged.  The fire caused damage to most part of the house also.  According to the complainant the reason for fire is either due to the defect of the cylinder, valve, pressure regulator or improper excessive filling of the gas in the cylinder. Fire was caused due to the inadequate safety measures or improper service of the opposite parties.  Timely intervention of the wife of the complainant, neighbours and fire officers of Mukkom fire station stopped the explosion of the cylinder and saved the lives of family members.  As soon as the accident occurred complainant had informed the first opposite party. First opposite party had informed the second opposite party and the second opposite party informed the 3^rd opposite party.  As a result claim form was submitted before the 3^rd opposite party and insurance surveyor had inspected the site and filed a report.  Complainant’s case is that because of the fire the whole portion of the kitchen was damaged.  A number of costly house hold articles were also damaged in the fire.  Complainant also has given a list of damaged articles which includes 2 Qtls. of Rubber and 1 Qtl. of Arakkanut which was kept in the kitchen to get dried.  Complainant alleges that fire broke out because the second opposite party has not taken proper precaution while filling the gas in the cylinder and has not followed the norms.  The negligence of first and second opposite party was the reason for fire breaking out under the regulator of the cylinder and thus causing damage to the kitchen part of the newly built house, many costly house hold articles and also 2 Qtls.  of rubber and 1 Qtl. of Arakkanut which was kept in the kitchen.  As opposite party-3 is the insurer of opposite party-1 who has supplied the cylinder to the complainant, the complainant had put forward the claim of compensation to all of the opposite parties.  Opposite parties have repudiated the claim as per Ext.A5 letter dated 12-1-03.  Hence this complaint.

            Opposite parties-1,2, and 3 have filed separate version.  Opposite party-1 filed the version contending that the complaint is not maintainable in Law or on the true facts and is liable to be dismissed,  except those that are expressly admitted. First opposite party submits that they are the distributor of second opposite party.  The allegation that on 30-11-01 when the complainant’s wife was lighting the stove with the gas lighter it caught fire from regulator knob of the cylinder and fire broke out which caused damage to house hold articles and complainant’s house are baseless and untrue facts.  It is not true to say that fire broke out from the gas cylinder or other parts of the cylinder.  When the complainant informed about the accident first opposite party had inspected the place.  On the inspection opposite party had found that the kitchen was containing both LPG domestic installation as well as fire wood choola about 2 Mts. apart.  There was a chimney above the fire wood choola which was used by the complainant to dry the rubber sheets.  Opposite party contends that the fire broke out in the kitchen because of the negligent act of the complainant by having a fire wood choola 2 Mts. Apart from the gas stove connected to LPG cylinder.  The fire is not due to LPG but LPG cylinder got fire from burning fire wood from the choola.  Hence allegation made in the complaint against the first opposite party is unsustainable and utter false.  The allegation set out in Para-5 and 6 is not correct.  The claim set out in Para-7 of the complaint is also denied by the first opposite party.  The allegation made in the Para-8 of the complaint that the gas was not properly filled in the cylinder by the second opposite party and have not taken safety measures with regard to the cylinders are baseless and unsustainable.  The first opposite party is only a distributor and have no connection with filling the gas to the cylinder.  There was no negligence from this opposite party with regard to the alleged accident.  The first opposite party is not liable or responsible for paying the amount claimed in the complaint.  Hence first opposite party prays to dismiss the complaint with compensatory cost.

            Opposite party-2 filed a version denying all the averments and claims in the complaint.  Except those that are expressly admitted.  The complaint is filed without any reason or justification and with avaricious and other ulterior motives. It is a false,  frivolous, speculative and unsustainable complaint.  The petition is not maintainable and it is liable  to be dismissed.  The allegations put forward by the complainant are absolutely false and untenable.  According to 2nd opposite party the complainant will not come within the definition of a consumer.  There is no relationship or transaction in between the 2nd opposite party and the complainant.  The claims and the case alleged by the complainant is one not covered by the Consumer Protection Act. Hence this Forum has no jurisdiction to entertain the complaint.  The allegation in Para-2 of the complaint that the 3^rd opposite party is an insurer of first opposite party is not correct.  The allegations and claims in Para-4 of the complaint are baseless, untrue and unsustainable.  The complainant had deliberately suppressed true facts.  The detailed investigation made by the second opposite party as well as the first opposite party revealed that the allegations and claims are false and misleading.  The enquiries revealed that during 30-11-01 the kitchen where the gas cylinder and stove were kept has been a room of 100 sq.ft.  In the same room the complainant had a choola, the oven in which fire wood is used for cooking.  In the same room the complainant was drying rubber sheets.  The type of the fire wood used by the complainant was dried old rubber trees which gets fire easily and it burns speedly and eminating considerable heat.  On 30-11-01 the complainant was drying rubber sheet in the kitchen using firewood.   By the absolute negligent conduct of the complainant and his wife, the kitchen caught fire from the choola which eminated considerable heat.  The dried rubber caught fire from the choola and house hold articles got damaged and a portion of the house also got burnt.  The complainant had suppressed this fact that the fire occurred due to the rubber sheet getting fire from the choola.  Both the gas stove and the choola were in the same kitchen.  The gas cylinder and stove was also effected by the external fire and heat.  The roof was also made of wood.  There was subsequent damage caused to the L.P.G. installation.  A slight damage had occurred to the rubber tube and the gas cylinder was in dark colour due to the smoke.  The valve with “O” ring was in tact.  No damage had occurred to the cylinder did not affect the painting of the cylinder.  The cylinder specification was legible.  This indicates that there was no incident as alleged in the complaint.  Hence the allegation of the complainant that when the complainant’s wife attempted to light the stove using gas lighter fire broke out from the regulator’s knob and accordingly there was fire through out the kitchen causing loss and damage to the building, and other house hold articles is absolutely baseless and false.  The incident happened because of the negligence of the complainant.  It is not true or correct that there was out breake of fire from the gas cylinder.  The second opposite party also denies that there was a report registered before Fire Station. The second opposite party also states in the version that the averments in the complaint that the house is a new one is vague because the year of the construction of the building is not mentioned.  If the complainant had already received the insurance amount as claimed by the complainant then the present complaint is not sustainable.  The allegation that the second opposite party was convinced regarding the alleged case is not correct.  The averments and claims made in Para-7 of the complaint are not admitted to be correct by the second opposite party.  The second opposite party is not liable or responsible if at all any damage occurred due to fire can be proved by the complainant.  The averments and claims in Para-8 are baseless and incorrect.  The averment that the gas was not properly filled in the cylinder, and that there was no safety measures  adopted are absolutely baseless and incorrect.  According to second opposite party loss and damage due to fire is not because of improper service of second opposite party or because of improper filling of the gas in the cylinder.  The fire occurred from the fire wood choola.  The fire and heat spread through out the kitchen causing fire to the rubber sheets kept by the complainant to get dried in the kitchen.  There was no negligence in filling in the cylinder.  The second opposite party is not liable or responsible for paying any amount for the alleged loss sustained by the complainant.  The allegation that 3^rd opposite party is the insurer of second opposite party is not correct.  The claim set out is devoid of merits.  The case and claim of the complainant as seen in the complaint are totally barred by limitation.  The loss and damage to the movables and the value calculated to be Rs.60290/- is baseless.  There was no inadequacy in the service rendered by second opposite party.  The complainant is not entitled to get any compensation or cost from second opposite party.  The second opposite party submits that the complaint filed is false, frivolous and speculative with ulterior motives.  Hence second opposite party prays to dismis the complaint directing the complainant to pay cost to the second opposite party.

            Opposite party-3 filed version denying all the averments and allegations made in the complaint.  The complaint is not maintainable and it is liable to be dismissed.  The complaint is bad in law for mis-jointer of parties.  The 3^rd opposite party is totally unnecessary party since there is no privity of contract between the complainant and 3^rd opposite party.  There is no consumer dispute pending between the complainant and the third opposite party.  It is true that third opposite party had issued a Policy No.2002/123 to the first opposite party.  It was a ‘Multi-Perils Policy for LPG Gas Dealers’  The policy was issued special terms and conditions and exclusions in the policy schedule. Vide this policy the 3^rd opposite party undertook to indemnify the insured who is the 1^st opposite party for the loss and damages caused to the building or contents of the insurer’s premises due to fire, lightening, explosion of gas, riot, earthquake etc. As per Section-VI of the policy this opposite party also undertook to “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 for the accidental damages to property caused by or arising from installation of gas filled liquefied petroleum gas cylinder in the premises of the insured’s customers or while 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 while such empty cylinders are in the course of being carried from the premises of the insured’s customers to the insured’s premises”.  From the above it is manifest that in order to fasten liability of 3^rd opposite party under the policy of insurance the following conditions have to be satisfied.  (a)  Since the liability of this opposite party is to indemnify the insured only, the claim shall be made by the insured.  (b)  the claim made by the insured shall be in respect of their legal liability to pay compensation including litigation expenses.  In other words the amount claimed should be in consequence of a legal award passed.  (c)  Such legal award of compensation shall pertain to damage to property caused by or arising from installation of gas filled liquefied petroleum gas cylinder in the premises of the insured’s customers.    In the present case no legal award of compensation has been passed by any Court of law, Tribunel or Forums against the first opposite party.  The complaint filed by the complainant against 3^rd opposite party is devoid of any merit and liable to be dismissed.  The complainant had suppressed the actual facts the complainant is not entitled for any compensation from 3^rd opposite party.  There is no privity of contract between the complainant and the 3^rd opposite party.  The 3^rd opposite party is an unnecessary party.  Hence third opposite party is praying the Hon’ble court to direct the complainant to take stop to delete the 3^rd opposite party from the party array and also to award compensatory cost to 3^rd opposite party.

            The points for consideration are (1)  whether there was any negligence on the part of the opposite parties?  (2)  whether the complainant is entitled to get any relief.

            PW1 to PW5 were examined and Ext.A1 to A11 were marked on complainant’s side.  RW1 was examined and Ext.B1 to B3were marked on opposite party’s side.

Point No.1:

            The case of the complainant is that the complainant was a consumer of first opposite party as per consumer No.7047.  On the morning of 30-11-01 when the complainant’s wife was lighting the gas stove with the gas lighter fire broke out under the pressure regulator and spread through the kitchen.  Due to the fire the entire house hold articles in the kitchen and other part of the building got damaged.  According to the complainant kitchen wares, electrical fittings and agricultural products ( 2 Qtls. of rubber and 1 Qtl. of Arakkanut)worth Rs.60290/- and a part of the house got damaged.  The loss of the building was reimbursed by the personal insurer, M/s. United India Insurance Company.  The building only was insured.  The complainant alleges that fire is either due to the defect of the cylinder, valve, pressure regulator or improper filling of the gas in the cylinder.  Complainant had reported in Mukkom fire station immediately.  Complainant was examined as PW1, his wife as PW2 and other neighbour PW3 who witnessed the incident were examined.  PW2 has stated in her deposition that on the morning of 30-11-01 when she tried to light the gas stove it did not light up.  She assumed that the cylinder has become empty.  She connected a new cylinder and then when she tried to light the stove with the gas lighter, the stove was lighted but suddenly she could see fire under the regulator.  She suddenly switched off the stove ran out and shouted. Then PW3 her neighbour hearing the shout ran to the complainant’s house .  The other neighbours also reached.   PW2’s deposition in Page-1

As against this PW1, the complainant in his deposition in Page No.12 cross ofO.P.3 states that

This shows no consistency of what the complainant and his wife says.  She further deposed that the fire has caused due to the leakage in the gas cylinder.  The complainant’s and his wife’s allegation is that the fire had caused because of the negligence of the second opposite party in refilling the cylinder.  They are seeking compensation from the opposite parties for the deficiency of service for refilling the cylinder in a deficient manner.  The complainant has impleaded OP-1 the distributor of the gas cylinder, O.P.-3 the insurer of opposite party-1.  The point we have to consider is whether there was any negligence on the part of the opposite parties.  In page-5 of deposition of PW2 the complainant’s wife has admitted that there was a choola (Oven using firewood) in the kitchen 10 ft. away from the gas stove.  In Page-6 of the deposition of PW2 in the cross examination of Opposite party-2 also she has admitted that

PW1, the complainant has also admitted that there is choola which is lighted with firewood and gas stove also in the kitchen.  In Page-10 of the deposition of PW1 has stated that

From the depositions of PW1 and PW2 it has been come out that they were keeping the gas stove and cylinder, choola in the same room. Opposite party-2 has furnished Ext.B2 which shows that no flammable or combustible material should be stored in the immediate vicinity of the cylinder or in the same room in which it is kept.  It is known for even a common man that they should not keep the LPG gas cylinder, stove and have choola using fire wood in the same room as LPG which is highly inflammable.  But in this case the complainant had violated all the directions. He had kept the LPG gas cylinder and firewood choola in the same room and also he had kept rubber sheet over the firewood chimney to get it dried.  Hence there was negligence on the part of the complainant. On a perusal of M.O1 gas cylinder Forum has been convinced that the fire was caused not because of the leakage of gas in the cylinder.  If there is leakage of gas and the cylinder caught fire as the complainant and his wife says the cylinder would have exploded as the L.P.G. is highly explosive.  Within minutes of catching fire under the regulator the cylinder will explode. But in the complainant’s case the cylinder is safe and is produced before the Forum.  PW2 has stated that she has removed the cylinder from the kitchen as soon as the fire broke out.  But she was not affected by the fire.  But the whole articles in the kitchen including 2 Qtls. Rubber sheet, 1 Qtl. Arakkanut and a part of the building caught fire.  According to the complainant huge damage was sustained.  It is very surprising to note that the leaking gas cylinder got unharmed in this whole incident.  Accordingly we are of the opinion that there was no negligence or deficiency in filling the gas cylinder but deficiency had occurred at the hands of the complainant.  We are of the opinion that there was no deficiency on the part of the opposite party.

Point No.2:

            As Forum could not find any deficiency on the part of the opposite parties the complainant is not entitled to get any relief.

            In the result the petition is dismissed.

Dated this the   4th day of August 2008.

        Sd/-                                                  Sd/-                                                                 Sd/-

PRESIDENT                                       MEMBER                                           MEMBER

APPENDIX

Documents exhibited for the complainant:

A1.  Fire report dt. 30-11-2001.

A2.  Photocopy of news paper cutting.

A3.  Photocopy of statement issued by Ist O.P. dt. 27-12-01.

A4.  Photocopy of letter dt. 14-3-02.

A5.  Photocopy of letter dt. 26-3-02.

A6.  Photocopy of letter dt. 21-5-02.

A7.  Photocopy of letter dt. 12-1-03.

A7 (a)  Certified copy of House plan.

A8.   Bill dt. 18-6-98.

A9.  Bill dt. 23-1-93.

A10. Bill dt. 20-12-2001.

A11.  Survey report of O.P.3.

Documents exhibited for the opposite party.

B1.  Description of accident report.

B2.  Distributors convention manual.

B3.  Copy of Policy No.2003/171 and copy of policy conditions.

Witness examined for the complainant.

PW1.  Chacko.N.K. (Complainant)

PW2.  P.P. Susan, Complainant’s wife.

PW3.  Joseph.N., Nhaduvil Kattil, Kodenchery-P.O.

PW4.  M.P. Gopalan,  Officer-in—charge, Mukkom Fire Station.

PW5.  Joseph Cheriyan, Surveyor of O.P.3.

Witness examined for the opposite party.

RW1.  K.K. Narayan, Deputy Manager ,I.O.C.

M.O.1.  Gas cylinder produced by complainant.

                                                                                                Sd/- President

                                                // True copy //

            (Forwarded/By order)

                                                                                    SENIOR SUPERINTENDENT.