Per Mr. S. R. Khanzode, Hon’ble Presiding Judicial Member.

These appeals since involved the same set of facts and common question of law, are disposed of by this common order.  Undisputed facts are that Late Bharati Sadashiv Nimase had taken  Hindusthan Petroleum gas connection through its dealer- Shantilal Jain, who is proprietor of Indradeep Agencies situated at Kalyan.  Her consumer number was 626641 and she was provided with two gas cylinders.  She was residing at room no.3 (a room having dimension 10’ x 10’) situated at Ramwadi, Tilak Chowk, Kalyan (W), District- Thane.  She used said gas connection for domestic purpose and it is also stated that she used to prepare home food and supply tiffin to her customers.  She used to reside along with her mother- Late Shantabai Bhangale with her children Nilesh and Varsha.  Her mother used to take care of the grandchildren Nilesh and Varsha.  Her cousin sister’s daughter-in-law, namely, Savita Sunil Kale (since deceased) used to reside in her neighborhood.  On 06/04/2007 after finishing her pooja, she went to her kitchen platform to start her daily work of cooking.  At that time she found her gas cylinder was empty and therefore, she started replacing said cylinder.  While replacing the cylinder with the gas filled cylinder, the gas started leaking and since there was a burning oil lamp which she lit at that time performing pooja, the gas caught fire and there was an explosion.  Hearing the noise of explosion her children Nilesh and Varsha rushed outside the room and her mother Late Shantabai who was working outside ran inside room and so her neighborer Late Savita.  Both the Bharti, her mother Shantabai and neighborer Savita sustained severe burn injuries.  They were taken to Rukhminibai Hospital at Kalyan by the neighborers and from there to (looking to their serious condition) Sion Hospital, Mumbai where they succumbed to their injuries on 09/04/2007.

        Alleging deficiency in service on part of gas company, namely, Hindusthan Petroleum Corporation Ltd. and his dealer- Shantilal Jain who according to the complainants are responsible for said gas explosion due to defective gas cylinder; these consumer complaint nos. 526/2007, 536/2007 and 537/2007 were filed respectively by the legal representatives of deceased Savita, deceased Bharati and deceased Shantabai.  Bajaj Alliance General Insurance Co. Ltd. (hereinafter referred as Bajaj Insurance Company) being the insurer for Hindusthan Petroleum Corporation Ltd. ( H.P.C.L. in short) and New India Assurance Co.Ltd.( New India Assurance Company in short) who is a insurer for dealer-Shantilal Jain, were also impleaded as one of the opposite parties.  It may be pointed out that H.P.C.L. is not made a party as per the description in the complaint, but the complaint is filed against its Managing Director(CEO) and looking to the definition of “Person” embodied in Section 2 (1)(m) of Consumer Protection Act, 1986 (hereinafter referred as Act for brevity) the company H.P.C.L. itself and its official/officer, namely, the Managing Director are not one and the same but are distinct juridical entities.

        Claiming himself as a sole legal heir of Late Bharti Sadashiv Nimse, her minor children Nilesh and Varsha through their legal guardian and maternal uncle- Avinash Yashwant Bhangade filed consumer complaint no.536/2007.  It came to be decided by an order dated 15/11/2009 and feeling aggrieved thereby, H.P.C.L. and opposite parties, namely, New India Assurance Company and Bajaj Insurance Company preferred appeals respectively bearing no.933/2009, 1022/2009 and 1162/2009.

        Claiming himself as sole representative of Late Shantabai Yashwant Bhangade, her son Avinash filed consumer complaint no.537/2007 which came to be decided on 16/05/2009 and feeling aggrieved thereby, H.P.C.L., New India Assurance Company and Bajaj Insurance Company filed appeals respectively bearing numbers 934/2009, 1023/2009 and 1159/2009.

        Likewise claiming themselves as legal heirs of Late Savita Sunil Kale, her husband Sunil and children, namely, Sayali, Omkar, Reshma filed consumer complaint no.526/2007 which came to be decided by order dated 16/05/2009.  Feeling aggrieved thereby, H.P.C.L. New India Assurance Company and Bajaj Insurance Company preferred appeal respectively bearing numbers 935/2009, 1021/2009 and 1161/2009.

        It appears dealer-Shantilal Jain did not prefer any appeal.

        We heard submissions of Adv.Mr.S.R.Page for appellant in A.Nos. 934, 935/2009 and none were present for respondent.  In A.Nos. 1021, 1022 and 1023/2009 we heard Adv.Smt.Kalpana R.Trivedi for appellants and Adv.Mr.S.R.Page for respondent no.2 and Adv.Mr.S.R.Singh for respondent no.3. In A.nos. 1159/2009, 1161/2009 and 1162/2009 we heard submissions of Adv.Mr.S.R.Singh & Co. for appellant, Adv.Mr.S.R.Page for respondent no.2 and Adv.Smt.Kalpana Trivedi for respondent no.4.  Perused the record.

        In the instant case only Late Bharati S.Nimse was a consumer of LPG gas connection.  Late Shantabai, Late Savita though victims of the accident in question have no relationship with the LPG gas connection/equipment provider or manufacturer and therefore, prima-facie, no consumer dispute in connection with the death of Shantabai and Savita would lie.

        Forum below in the impugned order while assuming the jurisdiction as a functionary under consumer Fora failed to take into consideration these aspects.  It appears that attention of the parties to the dispute was also not invited to this vital aspect and naturally, they were not heard on it. 

        While settling any consumer dispute of the nature before us, at a first instance Forum below need to have addressed to the inter se relationship as a consumer and service provider between the parties and at the second instance must address itself whether there is any deficiency in service on the part of service provider(s) and whether it is established.  These particular aspects unfortunately, are ignored by Forum below and it perhaps got swayed by emotional aspect of the accident rather than settling disputes according to law and thus, impugned order resulted into mis-carriage of justice.

        There is report of fire brigade dated 13/4/2007 and further there is LPG accident report of investigator from H.P.C.L. company, namely, Mr.Mahesh Ram.  It is alleged that there was no defect in the equipment supplied, namely, the cylinder from which the gas was leaked and which was responsible for gas explosion.  It is also alleged on behalf of H.P.C.L. and the opposite party/insurance company that consumer Late Bharti was negligent in handling the cylinder while replacing the empty cylinder with the filled one.  She did not observe the safety norms.  Further she used “Y” tube connection which was not admissible and also used a regulator of B.P.C.L. on the cylinder of H.P.C.L.  When we made enquiries as to whether these facts  are established by proper evidence and whether the documents on the parties relie were tendered in evidence or not as per requirement of Section 13 (4) of the Act, both the parties conceded that they were not so tendered.  It is also submitted on behalf of both the parties that they need to be given opportunity to lead proper evidence and to bring on record the relevant documents after availing opportunity per provision of Section 13 (4) of the Act.  It would bee just and proper if both the parties are given such opportunity to establish their respective case.  Complainants from all the three complaints also need to address themselves about description of the parties particularly, since H.P.C.L. is not joined as a party as pointed out earlier.  Therefore, we accept submissions of both the parties to remit back the matter in the larger interest of justice. 

Holding accordingly we pass the following order:-

                        :-ORDER-:          

1.   Appeal Nos.933, 934, 935, 1021, 1022, 1023, 1159, 1161 and 1162 of the year 2009 are allowed.

2.   Impugned orders in consumer complaint no.526/2007, 536/2007, 537/2007 are set aside. 

3.   The consumer complaints are remitted back to the Forum below in the light of observations made in the body of the order.

4.   Both the parties shall appear Forum below on 11/01/2011.  Forum below shall give an opportunity to both the parties, if they so desire, to amend their respective complaint and to file their written versions and after duly following the procedure as per Section13 (4) of the Consumer Protection Act, 1986 and after giving an opportunity of hearing, arties, settle the dispute according to law.

5.   The appeals stands disposed of accordingly.

6.   In the given circumstances both the parties to bear their own costs.

7.   The amounts deposited, if any, as a condition of stay shall be returned to the respective appellants.

8.   Copies of the order be furnished to the parties. 

Pronounced and Dictated on 29 November, 2010.