F.A.No. 595 OF 2006 AGAINST C.D.No.106 OF 2006
 DISTRICT FORUM-III HYDERABAD

Between:

Bhagyanagar Gas Agencies,
Indane Distributors, 1-9-1122/10
Shop No.16 & 17, K.B.Complex,
Vidyanagar, Hyderabad rep., by its
Proprietor  P.Goverdhan Rao
S/o P.Rama Rao, Aged 49 years
Occ: Business R/o Vidyanagar,
Hyderabad

                                                          Appellant/opposite party no.2

A N D

1.    B.Sunil Kumar S/o B.Dharama Rao,
Aged 33 years, Occ: Pvt. Service,
R/o H.No.1-9-1122/C, Plot No.327,
Vidyanagar, Hyderabad.

Respondent/complainant

2.    Area Manager, Indane Area Office,
3-6-436, Himayathnagar,
Hyderabad.

3.    United India Insurance Company Ltd.,
1100, LIC Building, Opp: Central Bank
Bank Street, Hyderabad

Respondents/opposite parties no.1 and 3

Counsel for the appellant               Sri K.Ravindra Reddy
Counsel for the respondent  No.1  Sri S.Rama Sharma
Counsel for the respondent No.2   Sri P.Prabhakar

Counsel for the respondent No.3   Sri V.Sambasiva Rao

          QUORUM:      SRI SYED ABDULLAH, PRESIDING MEMBER
                                                        &

                              SRI R.LAKSHMINARSIMHA RAO, MEMBER

                        MONDAY THE EIGTH DAY OF JUNE                   

                                         TWO THOUSAND NINE

          Oral Order ( As per Sri R.Lakshminarsimha Rao, Member)

***

          The opposite party no.2 in the C.D.No.106 of 2002 on the file of District Forum-III, Hyderabad is the appellant.

          The facts of the case as set out I the complaint are that the respondent no.1 purchased a refill through the appellant and it got exploded on 22.11.2001 causing damage to the household articles and cloths worth Rs.3,25,000/- pertaining to the respondent no.1.  The respondent no.1 lodged a complaint with policy, P.S. Nallakunta Hyderabad.  At the time of the accident, the respondent no.1 and his family members were not in their house.  The respondent no.1 approached the District Forum seeking direction to the appellant and Respondents no.2 and 3 to pay compensation of Rs.3,25,000/- for damage to the articles and Rs.50,000/- as compensation for mental agony.

          The appellant and respondent’s no.2 and 3 contested the claim.  It is the version of the respondent no.2 that on 22.11.2001 immediately after the accident, the respondent no.2 inspected the spot of explosion and submitted his report.  It was submitted that the respondent no.2 had no liability as per the agreement for distribution effected between them and the distributor, the appellant here.  The distributor shall act as principal and take insurance policy from the insurance company at his own cost.

          A counter was filed on behalf of the respondent no.3 company insurance company.  It was contended that the insurance company would indemnity the insured for in the event of his death and his Legal Heirs against all sums which the insured shall become legally liable to pay.

                    The appellant has filed counter.  it was contended that the respondent no.1 was given extra refill by the appellant.  The appellant is not connected with the filling of the refill.  The appellant is not aware of the explosion of the refill and damage to the articles of the respodnentno.1.  The appellant has insured with the respondent no.3 for the period from 10.06.2001 to 09.06.2002.  In case of award in favour of the respondent no.1, it was sought that the liability was to be fastened on the respondent no.3.

                    The District Forum allowed the complaint against the appellant and respondent no.2 and dismissed the complaint against the respondent no3.

                    Aggrieved by the order of the District Forum, the opposite party no.2 has preferred the appeal on the grounds that the District Forum having misinterpreted the terms of the insurance policy dismissed the complaint against the respondent no.3 and arbitrarily fastened liability on the appellant.

                    The point for consideration is whether the appellant is liable to pay compensation as awarded by the District Forum to the respondent no.1?

                    The only grievance of the appellant as canvassed in the appeal is that the appellant is only agent of the respondent no.2 and as such complalint ought to have been dismissed against the appellant.  All the other aspects of the case such as supply of two refills to the respondent no.1, explosion of one of those refills in the house of the respondent no.1 and consequent damage to the household articles pertaining to the respondent no.1.  Though the respondent no.2 claimed damages to his household articles and cloths pertaining to the respondent no.1, the certificate issued by the Inspector of Police, PS Nallakunta discloses that only household articles caught fire and damage due to the explosion of refill (extra refill) supplied to the respondent no.1.  However, there is no dispute in this regard raised by the appellant as also  quantum of damages as awarded by the District Forum.  Therefore, we do not want to interfere with the finding which is deemed to have become final in the absence of any appeal preferred against thereto. 

          Coming to the question of fastening liability of the appellant, the appellant claims to be the agent of the respondent no.2 and any defect particularly manufacturing defect which is stated to have been the cause of leakage of gas and consequential explosion, the respondent no.2 alone is liable and being the agent of respondent no.2 the appellant cannot be held liable to pay any compensation.  We do not agree with the contention as it is settled law that the dealer is jointly liable with the manufacturer to the customer in case of any defect more so, manufacturing defect found in the product sold by the dealer and manufactured by the manufacturer.  The dealer by no means can escape responsibility for the defective products that he sells to their customers. In fact, the apex consumer court as well as the Supreme Court have made it clear that both the manufacturer and the retailer are jointly and severally responsible for the quality of the goods sold to the consumer. If the retailer has any objection to it, he can recover the compensation paid by him from the manufacturer, but as far as the question of liability in regard to the consumer is concerned, he would be equally liable.  It is true that normally such liability with regard to the manufacturing defects is to be borne by the manufacturer. But that would not mean that the dealer is absolved from joint and several liability.   Since the purchase was made through the dealer, the privity of contract was with him. It was therefore incorrect to say that the dealer was not liable.

          In the case of Jose Philip Mampilli Vs. Premier Automobiles Ltd. & Anr. (2004) 2 SCC 278, the Apex Court held that in cases of delivery of defective vehicle the liability to pay the amount is joint and several of the dealer and the manufacturer. No doubt, it was also made clear that in case the dealer pays the amount in the first instance, the same can be recovered by him from the manufacturer. 

          In view of the discussion made and in the light of the settled proposition of law mentioned above, we do not see any ground to interfere with the impugned order fastening liability on the appellant on par with that of the respondent no.2 herein.  Accordingly appeal is liable to be dismissed.

          In the result, the appeal is dismissed confirming the order  dated 2.3.2006 in C.D.NO.106 of 2002 passed by the District Forum-III, Hyderabad.  No order as to costs.

                                                                   PRESIDING MEMBER

                                                                             MEMBER

                                                                        Dt. 08.06.2009