BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 06/05/3009

Date of Order : 31/08/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 248/2009

Between

 

And

C.C. No. 249/2009

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C O M M O N O R D E R

A. Rajesh, President.

1. Since the matter involved in the above cases and the parties thereto are one and the same, we have allowed a joint trial vide order in I.A. No. 361/2010 dated 23-01-2010. So, we are disposing of these complaints by this common order.

2. The case of the complainant in C.C. No. 248/2009 is as follows :

The 1^st opposite party is the distributor of L.P.G. and the 2^nd opposite party is their insurer. The 3^rd opposite party is the manufacturer of L.P.G. and the 4^th opposite party is their insurer. The complainant had availed herself of an L.P.G. connection of the 3^rd opposite party from the 1^st opposite party. The facts being so on 12-01-2009 at about 6 a.m., while the complainant was cooking food by using the L.P.G., all of a sudden gas emitted from the regulator area and the cylinder exploded. Due to the impact of the explosion, the complainant sustained serious burn injuries, her husband as well had sustained injury, later he succumbed to the injuries on 17-01-2009 while he was undergoing treatment at M.O.S.C. Medical mission Hospital, Kolenchery. The accident occurred due to the mal-functioning of the devices supplied by the 1^st and 3^rd opposite parties. The complainant is a coolie labourer and earns a monthly income of Rs. 4,000/-. On 25-02-2009, the complainant caused to issue a lawyer notice to the 1^st and 3^rd opposite parties demanding to pay a compensation of Rs. One lakh for the injuries sustained by her due to the accident to which they replied directing the complainant to approach their insurance company. The complainant is entitled to get Rs. one lakh by way of compensation from the opposite parties together with costs of the proceedings.

3. In C.C. No. 249/2009, the complainants are the wife and 2 children the legal heirs of deceased Ashokan who breathed his last due to the same accident mentioned in C.C. No. 248/2009. They are claiming a total compensation of Rs. 5 lakhs with costs of the proceedings from the opposite parties.

4. Version of the 1^st opposite party :

The 1^st opposite party denies the allegation of leakage of gas from the regulator to cause any cylinder explosion. There was no defects or mal-functioning of any devices or gas cylinder supplied by the 1^st opposite party. The complainant is not entitled for any of the reliefs sought for.

5. Defense of the 2^nd opposite party :

The 2^nd opposite party issued a multi perils policy for L.P. Gas Dealers to the 1^st opposite party valid for the period from 30-06-2008 to 29-06-2009. The 1^st opposite party the insured had complied with all mandatory requisites of the 3^rd opposite party in the matter of supply and installation of L.P.G. cylinder at the premises of the complainant. The cause of gas leak and fire in the premises of the complainant occurred due to the improper and negligent usage of the pressure regulator fitted on the gas cylinder. On account of that, the L.P.G. got leaked. Moreover, there was a burning fire-wood stoke near to the gas stove, from which the leaked L.P.G. got fire and the accident happened. The 2^nd opposite party has no liability to indemnify the complainant.

6. Contention of the 3^rd opposite party :

The 4^th opposite party the insurer of the 3^rd opposite party alone is legally liable to indemnify the complainant for her purported loss. The fire occurred due to a leak from the pressure regulator and not due to any fault of the L.P.G. cylinder. The inspection conducted by the officer of the 3^rd opposite party revealed that the accident was only due to the improper and negligent usage of the pressure regulator which caused the damage to the regulator. The 3^rd opposite party is an unnecessary party to these proceedings.

7. Averments of the 4^th opposite party :

As per the surveyor's report and police records, the incident occurred when fire originated due to leakage of L.P.G. from the gas cylinder by the thrown out pressure regulator from the cylinder. The leaked out L.P.G. caught fire from the conventional oven in the kitchen. So, the accident was occurred only due to the negligence of the complainant. It was revealed that the accident occurred due to the improper and negligent usage of the pressure regulator. The cylinder supplied was in perfect condition at the time of its supply. The liability of the 4^th opposite party is only as per the terms and conditions of the policy issued to the 3^rd opposite party. The 4^th opposite party is not at all liable to pay any amount to the complainant as per the terms and conditions of the policy.

8. The complainant and witnesses were examined as PW's 1 to 3. Exts. A1 to A14 were marked on the side of the complainants. Neither oral nor documentary evidence was adduced by the 1^st opposite party. Ext. B4 and B7 were marked on the part of the 2^nd and 3^rd opposite parties. Witness for the 3^rd opposite party was examined as DW1. Exts. B1 to B3, B5, B6 and B8 were marked on the side of the 4^th opposite party. Heard the counsel for the parties.

9. The points that emanated for consideration are :-

1. Whether the complainant in C.C. No. 248/2009 and the complainants in C.C. No. 249/2009 are entitled to get compensation of Rs. 1 lakh and 5 lakhs respectively from the opposite parties?

    

2. Costs of the proceedings?

10. Point Nos. i. and ii. :- Admittedly on the faithful day, PW1 was present at the scene of occurrence. According to her, on 12-01-2009 while she was cooking food in the stove, all of a sudden gas emitted from the regulator area and the cylinder exploded. The other who witnessed the incident who was nearby is the husband of the complainant who succumbed to the injuries on 17-01-2009 due to the incident. PW2 is a neighbour who is residing hardly 35 meters away from the house of the complainant, who rushed to the spot immediately after the accident. Admittedly, he has had no time or reason to witness the accident. PW3, the surveyor appointed by the 4^th opposite party inspected the scene and prepared his report on 07-02-2009. PW3 deposed before the Forum that he could not state the reason for the damage of the cylinder as well as the regulator.

11. In furtherance of the accident, the S.I. of police, Kuruppampady registered Crime No. 55/2009 and the final report was marked as Ext. B8. As per Ext B8, the S.I. of police has come to the conclusion that the fire had spread from the nearby cooking fire to the L.P.G. which leaked from the gas cylinder. But now the investigating officer came to such a conclusion is not sufficiently explained. The opposite parties maintain that the fire spread from the cooking fire nearby to the leaked L.P.G. and the explosion occurred. According to them, the above conduct of PW1 is prohibited under Rule 4 of the Gas Cylinder Rules 2004. However, apart from the averments of the opposite parties neither oral nor documentary evidence is before us to controvert the contention of the complainant that the accident was caused due to the defect of the regulator, especially when there is no evidence to prove that the complainant was using the conventional oven and the L.P.G. stove simultaneously. Matters sustained so and the complainant's plea being sustained the question arises who is answerable and liable to pay compensation to the complainants.

12. It is not in dispute that the 1^st opposite party is the dealer of L.P.G. and the 2^nd opposite party is their insurer. It is also not in dispute that the 3^rd opposite party is the manufacturer of L.P.G. and the 4^th opposite party is their insurer. The insurance policy issued by the 2^nd opposite party was marked as Ext. B4 and that of the 4^th opposite party was marked as Ext. B1. Section VI(a) in Ext. B4 is 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 of whiles such empty cylinders are in the course of being carried from the premises of the insured' 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.”

Section II(e) in Ext. B1 is as follows :-

“Personal Accident cover to third parties (irrespective of Liability at Law).

(e) Whilst the filled LPG cylinders lying in the registered customer's premises.”

13. In C.C. No. 248/2009, the complainant is claiming a compensation of Rs. 1 lakh for the injury sustained by her and towards the damage of the property. To prove the injuries of the complainant, she produced Ext. A7 discharge summary issued from the M.O.S.C. Medical College, Kolenchery. As per the certificate, she had undergone treatment from 12-01-2009 to 17-01-2009. The clinical findings as per the certificate is as follows :

“Burns in the right forearm, medial aspect of left forearm, face.”

The complainant failed to produce any document to substantiate the expenses incurred by her for her treatment. The lack of which disqualifies this Forum to quantify the same. However, going by natural standards it can be inferred that an amount of Rs. 20,000/- can be granted due to 5 days of hospitalisation medical expenses and loss of wages for 5 days primarily and subsequent loss of wages as claimed.

14. PW3, the surveyor appointed by the 4^th opposite party who prepared Ext. B2 survey report and assessed the net loss sustained to the house and household articles at Rs. 2,950/-. Nothing is on record to repudiate the findings of PW3. The complainant is also entitled to get the above amount from the 2^nd and 4^th opposite parties hence.

15. In C.C. No. 249/2009, the 1^st complainant is the wife and the 2^nd and 3^rd complainants are the minor children of the 1^st complainant and the deceased. The untimely death of the husband of the 1^st complainant and the father of the other complainants causes untold malady which probably cannot be abated especially so, the deceased was only in the prime of his life and could have been much resource, where he to be well. Considering the above circumstances of the case, we have no hesitation in allowing a compensation of Rs. 3 lakhs in C.C. No 259/2009 with 12% interest till payment.

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

1. In C.C. No. 248/2009, the 2^nd and 4^th opposite parties shall jointly and severally pay to the complainant a compensation of Rs. 22,950/- (Rupees 20,000/- + Rs. 2,950/- = 22,950/-) for the reasons stated above.

2. In C.C. No. 249/2009, the 2^nd and 4^th opposite parties shall jointly and severally pay to the complainants a compensation of Rs. 3 lakhs (Rupees Three lakhs) for the aforesaid reason.

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 payment.

Pronounced in open Forum on this the 31^st day of August 2011.

Forwarded/By Order, Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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