The complainant’s case in short is that complainant is a bonafide customer of O.P. No.1 & 2 since in the year 2011 and his Consumer ID is 621618 and Regulator number is 354673. The mother of the complainant namely Nani Bala Dey @ Deb aged about 81 year, who was a widow and resides with the complainant and his family members.
On 17.12.2011 at about 12.30 P.M. when the mother of the complainant cooking in the said gas (H.P.) she succumbed burnt injury due to accidental fire in the regulator of gas cylinder which supplied by the O.P. No.1, who was an authorized dealer of O.P. No.2 & 3. The mother of the complainant admitted to Haripal Hospital and thereafter referred to Imambara Sadar Hospital, Chinsurah, Hooghly. But she died on 18.12.2011 at about 4.30 A.M. The Hospital Authority lodged FIR with the Chinsurah P.S. which is registered as UD Case No.401/2011 dated 18.12.2011. Post Mortem of deceased Nani Bala Dey @ Deb was done and cause of death was burnt injuries
O.P. No.4 & 5 is the insurer of O.P. No.1 to 3, Hindusthan Petroleum Corporation Ltd. and the policy number is 251100/46/11/9500000136 which was valid from 2.5.2011 to 1.5.2012. The complainant claimed Rs.10,00,000/- before the O.P. No.4 & 5 and Rs.52,000/- for loss of property on 16.12.2012 which was received by the office of the O.P. No.1 on 20.12.2012. The claim form supplied by the O.P. No.1 on 15.12.2012 after considerable delay.
On 20.12.2011 the Dealer, Sales Manager and Area Plant Manager visited the house of the complainant and investigate the spot of accident and inspected the defective regulator wherefrom the accident took place. Thereafter on 08.12.2012 the surveyor of the National Insurance Company Ltd. visiting the house of the complainant. The surveyor carried out the proper investigation enquiring all particulars to set forth the claim of such accident which was caused due to the negligent and intentional supply of defective regulator by authority of Hindustan Petroleum Corporation Ltd.
It is to be mentioned here that prior to the accident the complainant made several oral request to the O.P. No.1 as well as O.P. No.2 & 3 for replacement of the defective regulator from the very installation of the same but O.Ps. pay no heed to the utter cry of the complainant.
On 15.2.2013 the complainant received a letter from the O.P. No.2 wherein the complainant came to know that the National Insurance Company Ltd., has rejected the claim of the complainant without stating the reason. It is very unfortunate that to avoid the claim and damages and to save the skin of the dealer and O.P. No.2 & 3, the Insurance Company deliberately rejected the bona fide claim of the complainant.
On 21.5.2013 the complainant sent a notice through his advocate to all the O.ps. O.P. No.1 sent a reply notice dated 24.6.2013, wherein the O.P. No.1 has denied all allegations and has tried to avoid the claim of the complainant on some pretext or other. Finding no other alternative the complainant has been compelled to file this case before this Ld. Forum with a direction to the O.P. No.4 & 5 to pay Rs.10,52,000/- to the complainant for such negligence and deficiency in service which is cause by the O.P. No.1 to 3, to pay Rs.4,00,000/- as compensation for deficiency in service and to pay Rs.3,00,000/- as compensation for mental pain and agony.
O.P. No.1 contested this case by filing written version denying all the material allegations as leveled against him. O.P. No.1 submits that this O.P. happens to be the Proprietor of M/s. Unique Gas Service Company and a Dealer of Hindustan Petroleum Corporation Ltd. since long and deals with the business through outs the area very sincerely and without any customer dissatisfaction. The present petitioner filed this case with some ulterior motive. Actually there was never any sort of any defect in the ‘Regulator’ supplied with the gas cylinder to the complainant. More or less five gas cylinders were supplied to the complainant till the date of accident on 17.12.201. In this time no written or oral complaint has been come from the side of the complainant. Be it mentioned here that the regulator itself is a valve for regulating of gas supply from cylinder to the gas over and has no pace to reserve any gas in it. So, question of fire in the regulator does not arise.
This O.P. further submits that the required safety measures were not observed by the complainant and his other family members. On the contrary the complainant and his family member are very much negligent in using of gas oven and that is why they allowed an old and infirm lady of 81 years to handle the case oven. Burn was caused due to effect of cloth/shawl catching fire. This victim lady stayed at the first floor with her family member whereas the ground floor is occupied by three tenants. At the time of accident the victim was alone in the first floor by closing the collapsible gate under lock and key and the other family members were away from the house it could not be possible for the tenant of the first floor to went up stair and save her life. The tenants have expressed their version which could be find from the report dated 21.12.2011 furnished by the enquiry officer of O.P. No.2 & 3.
This O.P. also stated that immediate after accident an enquiry team headed by Manager, Sales Manager and Representative of O.P. No.1 visited the house of the complainant where the victim died, found the gas cylinder intact and the regulator attached with the gas pipe lying in the floor. On inspection of the regulator by the Plant Manager, no defect appears in the regulator. On perusal of the document filed by the complainant it could be revealed from the enquiry report that ‘due to careless, said fire wearing apparel’. Besides that there are different contradictory statements of the complainant in different document. It is very important thing that if the accident occurred due to burst of regulator while the oven was inflaming then it could have resulted severe casualties and the building might have collapsed for the same.
The O.P. No.1 being a dealer under O.P. No.2 & 3 was not at all negligent on its part because there is no document to show that O.P. No.1 was ever informed about any alleged leakage in regulator. The concerned delivered on 30.12.2011. The delivery boy had checked the cylinder and weight in their presence and that was put on use from 15.12.20111 onwards. The O.P. No.1 does not have any liability or responsibility so far the rejection of insurance claim being No.251100/46/11/9590001616, because the settlement of claim is clearly within the domain of O.P. No.1 & 2 and as such the O.P. No.1 has nothing to comment upon the same. There is no deficiency in service on the part of the O.P. No.1 and thus O.P. No.1 cannot in any way covered under the purview of C.P. Act and thus complaint is liable to be dismissed with cost.
The O.P. No.2 also contested this case by filing written version denying inter-alia all the material allegations as leveled him. The O.P. No.2 submits that there was never any sort of any defect in the “Regulator” supplied with the gas cylinders to the complainant from the very date of supply of the same as on 10.7.2011 resulting in leakage of gas there from at any moment, as are now being claimed. The supply and consuming thereof (through the same Regulator) more or less 5 gas cylinders on 20.9.2011, 21.10.2011, 9.11.2011, 13.12.2011 (right from the day of installation of the gas connection on 10.7.2011 till the date of the accident on 17.12.2011) without any sort of written complaint to the O.ps., is strong evidence as well as the pointer to the fact that there cannot be any effect in the Regulator, as are now being complained of.
That required safety measures were not observed by the complainant and/or the other members of his family. On the contrary, the complainant and the other members of his family are very much negligent in user of the gas oven. That is why, inspite of the fact of being a senior aged member of the family, aged over 80 years, the complainant and his wife were in the habit of allowing their mother to handle the gas that was too in their absence at the home. Whereas such an octogenarian lady not only went alone to cook rice by wearing woolen garments/shawl during the winter season, but was preparing other items at the same time, e.g. cutting and washing ladies fingers while the gas was on in a small kitchen room having a part of the windows closed and even the collapsible gate was kept under lock and key at the entrance of the first floor.
That probability of the unfortunate incident of catching fire to the wearing shawl carelessly, cannot be ruled out at all followed by lapses of about half an hour time thereafter till she was rescued and sent to health centre by the tenants after they were able to get entry to the place of incident while the victim lady could unlock the collapsible lock herself. The evidence of the tenants and the report submitted on 15.06.2012 by Mr. Jyotirmoy Mandal, the ASI of Police attached to Chinsurah Police Station in his report under Sec.174 Cr.P.C. contained in PRB Form No.53 vide Rule 276, is the only conclusion of this fact. Hence, this case prayed for dismissed with cost.
O.P. Nos. 4 & 5 are also contested this case by filing written version denying all the material allegations as leveled against them. The O.Ps. submit that three nationalized oil companies namely Indian Oil Corporation Ltd. and associates, Bharat Petroleum Corporation Ltd. and Hindusthan Petroleum Corporation Ltd. were covered under a Special Contingency Insurance Policy issued by National Insurance Company Lt., Regional Corporate Cell, Mumbai under policy No.251100/46/11/9500000136 for the period from 2.5.2011 to 1.5.2012. The sum insured of the liability was for death Rs.5,00,000/- per person per event, for medical expenses Rs.1,00,000/- per person per even, immediate relief, Rs.25,000/- each person and all in an accident in authorized customer’s registered premises and the policy excess is Rs.10,000/- but it is made absolutely clear that the Insurance Company’s liability is strictly subject to terms, conditions, exceptions/exclusions of the policy. Sri Kalidas Deb being an authorized customer of HPCL having consumer No.621618 was covered under the above policy with his family members for any loss of life or property damage or injury arising out of accident due to defective equipment and out of negligence of part of gas dealer. So, as per policy condition the liability has to admitted by the insured (HPCL) and then only the Insurance Company will compensate as per limit of the policy. Now on scrutiny of the technical report of the experts of the HPCL (Form-A) and LPG accident report (Form-B) wherein it was observed that the accident occurred not due to defect of regulator or cylinder and the fire might have caught in the clothing or the deceased which then got spread to damage the regulator and that there was no leakage in the cylinder valve and ‘O’ ring remained in the cylinder valve remained intact and as the insured (HPCL) did not admit their negligence and their liability was not established the Insurance Company was not at all liable to pay compensation as per policy condition and so, Mumbai Corporation Cell issued ‘NO Claim’ letter to HPCL on 22.01.2013. Hence, the complaint case is liable to be dismissed.
The complainant filed photocopies of some documents like postal receipt, lawyers letter dated 21.5.2013, letter dated 17.12.2012 addressed to the Area Sales Manager, public liability claim form, letter dated 21.12.2011 addressed to the Manager, Unique HP Gas Service, disposal order of dead body as per inquest report dated 18.12.2011, PRB Form No.53, death certificate and papers of Hindustan Petroleum.
Point for decision
- Whether complainant is a consumer or not?
- Whether the complainant’s mother died due to defect of the gas supply system in the oven?
- Whether the complainant is entitled to get compensation as per C.P. Act?
Decision with reason
All the points are taken up together for convenience and brevity of discussion of this case.
It is admitted position that the complainant used the gas which supplied by the O.P. No.1. The O.P. No.2 & 3 are the senior authority of O.P. No.1 and O.P. No.4 & 5 are the authority of insurance company. The complainant, Kalidas Deb has adduced evidence. In his evidence in chief complainant has stated his case i.e. he was the customer bearingNo.621618 and regulator serial No.354673 supplied by the O.P. No. 1 & 2 at the time of installation gas cylinder in his house. Nanibala Deb aged 80 years was his mother. On 17.12.2011 at about 12.30 PM Nanibala Deb was cooking. She succumb burn injury due to accidental fire in the regulator of a gas cylinder of Hindustan Petroleum. The said supply was insured being Policy No. 251100/46/11/9500000136 for the period from 2.5.2011 to 1.5.2012. The injured was taken to Imambara Hospital where she died on 18.12.2011 at 4.30 PM. The hospital authority lodged the FIR with the Chinsurah Police Station being case No.401/2011 dated 18.12.2011. Thereafter Chinsura police investigated the case and opined that the patient diet due to effect of burnt injury which cause due to burst of regulator of gas cylinder. The complainant filed claim before O.P. No.4 & 5 demanding Rs.10,00,000/- for human life and Rs.52,000/- for loss of property on 16.12.2012. The claim was received by the O.P. No.1 on 20.12.2012. O.P. No.1 supplied the claim form to this complainant on 15.12.2012.
On 20.12.2011 the dealer, sales Manager and Area Plant Manager visited the house of the complainant and enquired the spot of accident and inspected the defective regulator. Thereafter on 8.12.2012 the National Insurance Company investigated the house of the complainant, local police station and distributor office by the surveyor.
On 17.12.2011 the complainant made several oral requests to the O.P. No.1, 2 & 3 for replacement of the defective regulator from the very installation of same on 10.7.2011. The complainant and his family used to notice that leakage is causing from the regulator. On 15.2.2013 the complainant received a letter from the O.P. No.2 wherefrom the complainant came to know that the claim of the complainant has been rejected.
On 21.5.2013 the complainant sent notice to the O.Ps. through his advocate claiming Rs.10,52,000/-. The O.P. No.1 sent back the reply denying all the allegation of the complainant.
O.P. No.1 in her evidence in chief stated that she is the Proprietor of M/s.Unique Gas Service Company under Hindustan Petroleum Corporation Ltd. and deals to the business throughout the area very sincerely.
The present petition of the complaint has been filed by the complainant with some ulterior motive only to malign the hard earned reputation and goodwill of M/s. Unique Gas Service. Actually there was never any sort of the defect in the regulator supplied with gas cylinder to the complainant from the very date of supply of the same as on 10.7.2011, resulting of leakage of gas. The supply and consuming through the same regulator more or less five gas cylinder has been used (on 10.7.201120.9.2011, 21.10.2011, 9.11.2011, 13.12.2011) till the date of accident on 17.12.2011. It is pertinent to mentioned that the regulator itself a valve for regulating gas supply from cylinder to the gas oven and has no space to reserve any gas in it. So, question of fire in the regulator does not arise.
On the contrary the complainant and the other members of the family are very much negligent in using of gas oven and that is why they allowed an old infirm lady of 81 years to handle the gas oven and that was to in absence of other family members. Burnt was due to the effect of cloth/shawl catching fire. Beside this victim lady stayed at first floor with her family members whereas the ground floor is occupied by three tenant families. At the time of accident the victim was alone in the first floor by closing the collapsible gate under lock and key and the other family members were away from the houses so it could not be possible for the tenant of the first floor to went upstairs and save her life. The tenant have expressed their version which could be find from the report dated 21.12.2011 furnished by the enquiry officer.
Immediate after accident an enquiry team headed by Manager, Sales Manager and the representative of the O.P. No.1 visited the house of the complainant and found that the gas cylinder intact and the regulator attached with the gas pipe lying in the floor. On inspection of the regulator by the Plant Manager, no defect appears in the regulator.
On perusal of the document filed with the complaint it could be revealed from the enquiry report, copy of the dead body challan and the report submitted by PSI Jyotirmoy Mondal of Chinsurah P.S. , U/D case No.401/2011 dated 18.12.2011 that ‘due to careless said fire in the wearing apparel’. That there are different contradictory statement of the complainant in different documents in different times. It is very important that if the accident occurred due to burst of regulator while the oven was in flaming state then it could have resulted severe casualties and the building might have collapsed for the same.
Being a dealer under O.P. No.2 & 3 was not at all negligent on the part of the O.P. No.1 because there is no document to show that O.P. No.1 was ever informed about any alleged leakage in regulator. The concerned cylinder was delivered on 30.12.2011. The delivery boy had checked the cylinder and weight in their presence and was put on use from 15.12.2001 onwards. This PW-1 avoid her liability regarding the result of the incident.
The O.P. No.2 & 3 did not adduce any evidence on oath. They have stated that their written version is their evidence. In the written version O.P. stated and attributed to want of safety measures by the complainant in using the gas cylinder wherein the complainant allowed 80 years old lady to cook rice in kitchen.
The O.P. No.4 & 5 have filed affidavit in chief denying inter-alia all the material allegation. It is the positive version of the evidence that 81 years old lady was cooking in the gas sustained fatal injury due to accidental fire in the gas cylinder. The burden of prove upon the complainant to establish that there was firing in the regulator. There is no recorded information regarding the defect in the regulator. They appointed surveyor to submit report and considering the said report as well as the report of the technical investigation of the petroleum company and national insurance company, rightly rejected the claim of the complainant. The claim is malafide.
From the above evidence it transpires that the complainant submitted claim. The Insurance Company No.4 & 5 appointed surveyor. Surveyor submitted the report after investigation. Considering the report of the surveyor the O.P. No.4 & 5 rejected the claim. Again O.P. No.1 dealer stated the connection to the complainant was insured by valid insurance with O.P. No.4 & 5. It is also fact that the Nanibala Deb died due to burn injury. The complainant submits that incident of firing was taken place due to the bad condition of the regulator which ignited the fire causing grievous hard i.e. burning on the body of the Nanibala Deb who died subsequently in the hospital.
So, the moot questions before us whether there was any defect in the regulator or not.
In this case so far the material on record there is oral evidence and reply of the O.Ps. therein are concerned the complainant was not present at the home when the accident took place and his wife was also not present. Incident took place in the first floor. Entrance was closed. None have witness the occurrence of igniting the flam. The tenant who lives in the ground floor and others rescued the victim. So, the circumstance of the circumstantial incidence is the only evidence to justify what was happened. In this respect police investigated the case and surveyor appointed by O.P. No.4 & 5 also made investigation. After the incident on 17.12.2011, the police was informed on 18.12.2011. The police report dated 15.6.2012 stated that the cause of death was due to effect of the burnt injuries. The post mortem report also shows burnt injuries anti-mortem in nature. So, the police document is shows that death occurred due to burnt injuries. The report of police investigation indicates burnt injury. Senior Manager, KLRO vide report dated 21.12.2011 had narrated the accident as per version of eye witness in the locality i.e. in the local of the incident. The observation made by the Agni Mitra(ESO) on 19.12.201 and Dibyendu Maity (PM) on 20.12.2011, in the second para of the report the regulator found to be in on condition as the PIN was protruding out. The burnt knob was adjusted by using a clamp and this burnt regulator was fitted on the cylinder. The same was checked for leakage by using soap solution and no leakage from the regulator was observed. The stove was put on using this burnt regulator and the same was working satisfactorily. But there had been burnt marked in the regulator end and the regulator knob and the bracket portion part were found to be burnt. This observations show that regulator was burnt but the observation does not repeat anything the manner in which the regulator became burnt because there is a difference between the stove and the regulator. It has also been remarked ‘there was no case of regulator malfunctioning’. In the para of possible cause of accident it has been shown ‘burnt was due to cloth/shawl catching fire’. At a stretch of imagination we find no link between firing on the body and firing in the regulator. The remark that the burnt was due to shawl catching fire has no probative force because the source of the fire was regulator. Only leakage from the regulator can attract fire from the stove. This probability of burning regulator cannot be ruled out. The net result of the investigation by the surveyor is that there was burnt regulator. The O.Ps. did not produce the alleged regulator before this Forum for material exhibit and examination by this Forum. The said regulator, oven and connective rubber pipe has not been sent to the forensic laboratory for their opinion.
The report of G.C. Sahu, Surveyor has been filed. This report was prepared after instruction from the National Insurance Company on 4.12.2012. Investigation was done on 8.12.2012. In this report the cause of occurrence was the fire from the regulator causing burning of the Nanibala Deb @ Dey. The surveyor also estimated the sum insured liability showing total sum for death Rs.5,00,000/- per person per event, medical expenses Rs.1,00,000/-, property damaged Rs.1,00,000/-, immediate relief Rs.25,000/-. But this report dated 2.1.2013 goes for the complainant. It is not understandable what provoke the O.P. No.4 & 5 to reject the recommendation of G.C. Sahu, Surveyor and Loss Assessor, 11 Clive Row, Kolkata-01. In the last part of the report it has been embodied that ‘we confirmed the death of Nanibala Deb was due to accidental fire in the regulator of gas cylinder of HP as a authorized consumer place and net liability was calculated Rs.4,90,000/- with remarked that “we recommend for payment of compensation as per the policy terms and condition. All the terms and conditions of the policy had been complied with”. Inspite of that O.P. No.4 & 5 did not act as per recommendation. As per letter the O.P. No.3 Hindustan Petroleum Corporation informed the complainant Kalipada Deb by letter dated 15.2.2013 that O.P. No.4 & 5 advised O.P. No.3 regarding rejection of the claim.
After perusal of above record it appears that O.P. No.4& 5 appointed the Surveyor & Loss Assessor, G.C. Show, who investigated the incident. The said surveyor has submitted the reports which have been mentioned herein before regarding finding the opinion showing that the cause was accidental fire in the regulator of gas cylinder of HP Authorized consumer place.
So, the all points are goes to the petitioner. The petitioner’s mother died in the accidental fire coming out from the regulator of the gas cylinder and the complainant is entitled to get relief as per the law. Accordingly, the quantum of compensation should be such and would be adequate. The surveyor recommended Rs.4,90,000/- vide letter dated 2.1.2013 inspite of that Insurance Company No.4 & 5 did not pay any heed without applying of mind and rejected the claim of the complainant of this case. For this reason the complainant has compelled to come before this Forum for justice. Accordingly, the quantum will be adequate and sufficient for mental satisfaction of the complainant as well as of the society. After deliberation on this point we are of opinion that if we ordered Rs.4,90,000/- for payment to the complainant by the O.P. No.4 & 5 jointly along with interest @ 10% p.a. from the date of filing this case i.e. from 30.7.2013 till realization, then there shall be justice to the complainant. The complainant is also entitled to get Rs.50,000/- for litigation cost for coming and going to this Forum from 30.07.2013 till this date of order. We are also opinion that if this order for compensation is passed then the same will suffice the need of justice. Hence, it is
Ordered
that the case be and the same is allowed on contest against the O.Ps.
The O.P. No.4 & 5 are directed to pay Rs.4,90,000/- as recommended by their Surveyor, G.C. Sahu along with interest @ 10% p.a. on the above mentioned amount from the date of filing this case i.e. from 30.7.2013 till realization. The O.P. No.4 & 5 are also directed to pay litigation cost of Rs.50,000/-. The O.P. No.4 & 5 are further directed to issue an A/c. payee cheque in the name of the complainant after calculating the whole amount i.e. Rs.4,90,000/- plus interest plus Rs.50,000/-. The above directions will be complied with within 45 days from this date of order, failing which the complainant is at liberty to execute the same through this Forum.
Let the copies of this order be supplied to the party free of cost.
