Kerala

Idukki

CC/91/2016

Gracy - Complainant(s)

Versus

M/s Bharath Petrolium Co-operation - Opp.Party(s)

Adv.Augustine Mathew

30 Aug 2019

ORDER

DATE OF FILING : 14/03/16

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30^th day of August 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT.ASAMOL P. MEMBER

CC NO. 91/2016

Between

Complainant : Gracy, W/o Paul,

Residing at Eanthunkal House,

Methotty Kara, Velliyamattam Village,

Thodupuzha Taluk – 685 588.

(By Adv: Augustine Mathew)

And

Opposite Party : 1 . M/s.Bharath Petroleum Corporation Ltd.,

4 &6, Currimbhoy Road, Post Box No.688,

Ballard Estate, Mumbai – 400 001.

(By Adv: K.M.Sanu)

2 . Odackal Bharath Gas Gramin Vitrak,

Odackal Building, V/319B (XII 458B),

Velliyamattam V(XII), Velliyamattam,

Idukki, Kerala – 685 588.

(By Adv: Shiyana Sebastian)

3 . The Branch Manager, Oriental Insurance Co.Ltd.,

No.37/137B White House, First Floor,

Kaloor, Kadavanthara Road, Ernakulam,

Impleaded as per order dated 18/07/16.

4 . The United India Insurance Co.,

Hillson Height Floor 12, Kottayam, Near Collectorate

Impleaded as per order dated 12/06/17.

O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)

 

The case of the complainant is that,

 

On 15/02/15, while opening the protection cap of the gas cylinder, which was issued by the second opposite party to the complainant on 06/12/14, it was seen that it was delivered without fixing the safety valve and as a result the gas

(Cont......2)

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vented out and spread all over the residential building bearing No.VI/172 of Velliamattom Grama Panchayathe and caught fire from the burning stove situated in the adjacent room. The entire building and valuable property such as Cash for Rs.50,000/-, Mixer Grinder, 2 Mobile Phones, Gents Watch, Ladies Watch, Television, 15 Sovereigns of gold, Coats three in numbers, one table, one TV Stand, one Iron box, Almirah and Utensils worth Rs.12,000/- were totally caught fire. Apart from the loss of these items, the petitioner suffered mental agony and inconveniences which would cost an amount of Rs.3 Lakhs. Immediately after the incident the complainant preferred a complaint before the village officer, Velliamattom and police authority, Kanjar. The village officer had issued a certificate confirming the loss of articles and damages to the building on 27/02/15, and Kanjar police visited the property and prepared a Mahazar by noticing the above said damages.

 

The complainant further averred that he approached the second opposite party and on their advice he approached the first opposite party. Even though the first opposite party promised that they would take necessary action to make sure that the complainant would be compensated reasonably, no such measures have been initiated from the side of the opposite parties. Thereafter the complainant issued a legal notice to both opposite parties. Even though, they accepted the notice, only the second opposite party send a reply stating some lame excuses and the first opposite party failed to respond it.

 

Hence alleging deficiency on the part of the opposite parties, the complainant filed this petition for allowing the relief such as to direct the opposite parties pay Rs.4,47,300/- as compensation for damages caused to the properties and further direct them to pay Rs.3 Lakhs as compensation for mental agony and also direct them to pay cost.

 

Upon notices opposite parties entered appearance and filed detailed reply version. In their version the first opposite party contented that they are insured with M/s United India Insurance Company for any public liability. Hence the insurance company must be a necessary party in this complaint.

 

(Cont......3)

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The opposite party further contented that the averments of the complainant is unbelievable because the cylinders are despatched from the bottling plant only after checking the safety cap and leak O-ring valves with special equipments and in no circumstances the LPG cylinder could be delivered without fixing a safety valve. Further the second opposite party also check for leaks from the valve, O-ring and Bung at the time of delivery the cylinders to the customers. The opposite parties denied the averment of damage and further contented that the burned currencies, if proven, would be replaced by RBI. Further the gold, if any has been melted due to the alleged fire, can be reused.

 

Opposite parties further contented that the averment of the complainant such as the first opposite party given assurance for compensate the complainant is false and hence denied. The second opposite party has informed the first opposite party that the second opposite party is insured with M/s Oriental Insurance company and claim form for the compensation has already been submitted by the second opposite party to the above company on 18/02/15 along with the FIR and other necessary documents. The insurance company through their letter dated 17/02/15 to depute a person to conduct survey and complete other proceedings at the earliest.

 

Hence for the interest of justice the Forum may upheld the contentions of the opposite parties and dismiss the complaint with their cost.

 

In their version the second opposite party contented that the above case is bad for non-jointer of necessary parties. The oriental insurance company to which the second opposite party is insured with is a necessary party to the proceedings.

 

The 2^nd opposite party further contented that this opposite party has delivered the cylinder to the complainant after checking the valve and washer with an equipment designed specially for that purpose. Therefore, there is no chance of an accident due to the negligence of this opposite party. Opposite party further contented that the complainant will get the whole money reimbursed from RBI, if at all any damage occurred as to the currency notes as alleged. The valuation of damages shown in the complaint for melting of gold

(Cont......4)

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ornaments is excessive and it can be re used. The claim for loss of different house hold items and mental agony are also highly exaggerative. The complainant has to prove the damages and value of the materials damaged in the fire accident.

 

The second opposite party further contented that the damages if any caused to the complainant is not due to any negligence from their part and is not liable to compensate. Moreover this opposite party had insured his proprietary concern with the Oriental Insurance Company and this policy is valid at the time of alleged incident and if the complainant is entitled for any compensation from this opposite party their above said insurer is liable to insulate this opposite party. This fact was intimated to the complainant through the reply notice. Hence the complainant has no cause of action against this opposite party.

 

Based on the contention in the reply version arises of the first and second opposite parties. Complainant filed a petition to implead the insurance companies of first and second opposite parties. This petition is allowed and the Branch Manager, Oriental Insurance Company Ltd., and Branch Manager, United India Insurance Company are impleaded as additional opposite parties 3 and 4 respectively.

 

Upon notice opposite parties 3 and 4 entered appearance and filed detailed reply version. In their version the third opposite party contented that nobody made any claim against this opposite party till the receipt of the copy of impleading petition and nobody made any intimation regarding any such accident as alleged in the complaint. By that non- intimation, this opposite party lost the opportunity to assess the loss if any by a competent surveyor. As per the contract of insurance with the second opposite party, this opposite party's liability if any is limited to Rs.Ten Lakh per year. As per general exclusion clause 1(a), the first 5% of each and every claim subject to a maximum of Rs.10,000/- in respect of each and every loss arising out of the Act of god perils such as lightening, land slide, STFI, Subsidence and rock slide covered under the policy. The third opposite party further stated that the first opposite party had insured the subject matter with the fourth opposite party United India Insurance Company and liability if any may be apportioned accordingly.

 

(Cont......5)

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In their reply version the fourth opposite party admitted the insurance policy to the first opposite party and its validity. The fourth opposite party contented that as per the policy the maximum liability of the insurer in respect of property damage at authorised customers registered premises per event after deducting compulsory excess of Rs.10,000/- is Rs.90,000/-. Therefore as per policy this opposite party is liable to pay is the actual damage to property suffered by the complainant subject to maximum of Rs.90,000/-. The 4^th opposite party further contented that the complainant is not a customer of the opposite party and she is not the owner of the said property. Hence she is not entitled to get the claim under this policy. The complainant's building caught fire not due to the leakage of gas as alleged, but it happened due to the negligence of the complainant. The allegation that properly worth Rs.4,47,300/- was damaged in the accident is not correct and hence denied and as per this policy the fourth opposite party has no liability to pay any compensation for mental agony and inconvenience.

 

Evidence adduced by the complainant by way of proof affidavit and documents and one witness one Sudhakaran V.S., Retired S.I of Police, Kanjar were examined as PW2, the complainant was examined as PW1 and Ext.P1 to Ext.P7 were marked. Ext.P1 is the gas subscription voucher issued by the second opposite party to the complainant, Ext.P2 is the copy of site mahazar prepared by the S.I. of police, Kanjar on 16/02/15, Ext.P3 is the certificate issued by the village officer, Velliamattom, Ext.P4 is the copy of legal notice dated 27/11/15, Ext.P5 is the postal receipt , Ext.P6 and Ext.P7 are AD cards.

 

From the opposite parties side policy copy issued by the fourth opposite party, policy schedule issued by the third opposite party are marked as Ext.R1 and Ext.R2 respectively.

 

Heard both sides,

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the complainant is entitled to ?

 

(Cont......6)

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The Point:- We have heard the counsel for both parties and had gone through the records.

 

It is an admitted fact that the complainant is a consumer of the second opposite party gas agency, who is an agency of the first opposite party. On perusing the evidence on record and the deposition of witness, it is seen that the accident and resultant damage caused to the properties of the complainant due to the leakage of cooking gas from the gas cylinder issued by the second opposite party, for and on behalf of the first opposite party, on 15/02/15 is not challenged by none of the opposite parties. Even though complainant stated the list of damaged articles in the complaint and proof affidavit, no clear and cogent evidence is produced before the Forum except Ext.P2, Seen Mahazar, and Ext.P3 certificate of the village officer. The contention regarding the damages and resultant loss denied by the opposite parties 1 to 4. In their reply version opposite parties 1 and 2 specifically stated that no evidence is produced by the complainant to convince the Forum to corroborate the contention in the complaint regarding the list of articles allegedly damaged due to the explosion of gas cylinder. The learned counsel for the opposite parties pointed out that, in Ext.P2 Mahazar the police stated the name of some articles, but they miserably failed to assess the total damages caused to the complainant.

 

On perusing the record it is seen that, from the side of the complainant, the Sub Inspector of Police, Kanjar who prepared the mahazar as PW2 for establishing version of the complainant. In his deposition the witness categorically stated that, on going through the deposition of PW2, it is seen that he prepared the Ext.P2 scene mahazar, without conducting any enquiry and also without assessing the damages of the property. For strengthening their version, complainant produced Ext.P3, certificate issued by the village officer, Velliamattom. On perusing these documents it is seen that, the village officer certified that the house hold articles are caught fire due to the leakage of gas cylinder. In this certificate also damage is not assessed by the village officer. Hence the assessment of damages which is stated in the complaint and proof affidavit of PW1, cannot be corroborated with any of the above said documents and hence the assessment of damage done by the complainant cannot be admissible due to the lack of supporting evidences.

(Cont......7)

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At the same time Forum is of a considered view that none of the opposite parties has challenged the leakage of gas cylinder and its resultant issues. Opposite parties 1 and 2 has not a case that the cylinder in question has not delivered by them. Ext.P1, the original subscription voucher is more than sufficient to confirm the consumer relationship with the second opposite party and the complainant.

 

As per the request of the first opposite party and the second opposite party, their insurers are impleaded as additional opposite parties in order to shift their liabilities. In their version the third and fourth opposite parties are admitted the issuance of insurance policies to the first and second opposite parties and the extent of their coverages of liability to the general public, who are the registered customers of the first and second opposite parties. The Fact of customer relationship with opposite parties 1 and 2 and the complainant is not challenged. Hence the opposite parties 3 and 4 being the insurers of the first and second opposite parties are legally liable to cover the damages for and on behalf of their respective customers ie, opposite parties 1 and 2.

 

In their version the third opposite party admitted that their liability is limited to Rs.10 Lakhs per year. As per their general exclusion clause 1(a) the first 5% of each and every claim subject to a maximum of Rs.10,000/- in respect of each and every loss arising out of Act of god perils such a lightening etc. To substantiate their version the third opposite party produced Ext.R1 policy certificate.

 

In their reply version the fourth opposite party admitted their maximum liability in respect of property damages suffered by the complainant subject to a maximum of Rs.90,000/- by deducting compulsory excess of Rs.10,000/-.

 

On perusing the averments of the complainant, it is seen that complainant assessed Rs.3,30,000/- as loss of gold ornaments and Rs.50,000/- as loss of currencies. As stated in the reply version of the opposite parties 1 and 2 the Forum is of a view that the gold ornaments can be re-used or can be sold. If it is caught fire as alleged, except the loss of shape, no loss of weight is occurred.

(Cont......8)

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More over the complainant is failed to produce the remnants of items stated in the list before the Forum to fortify her version. Like wise the allegations of loss of currency cannot be believable and accepted.

 

Hence on the basis of above discussion, The Forum considered the version of the complainant that, she suffered some loss due to the unchallenged leakage of gas cylinder its resultant explosion. It can be consider that some loss was suffered to the complainant, but not as assessed by herself. If any amount is ordered by the Forum as damages to the complainant it must be met by the opposite parties 3 and 4 and on behalf of opposite parties 1and 2 being their respective insurers.

 

Under the above circumstances, Forum found that the actual damages caused to the complainant will come around Rs.1.5 Lakhs and Forum direct opposite party 3 being the insurer of the first opposite party shall pay Rs.60,000/- and opposite party 4 , being the insurer of the second opposite party, shall pay Rs.90,000/- as they admitted, to the complainant. Being the agent of the first opposite party, who is having direct relationship with the complainant and who is responsible for the supply of defective gas cylinder, which is the subject matter of the incident, the second opposite party is liable to pay Rs.10,000/- as compensation and Rs.5,000/- as cost for the deficiency in their service to take up the matter timely to the first opposite party and their insurance company and forced the complainant to approach this Forum.

 

The amount stated above in various heads shall pay to the complainant by respective opposite parties within 30 days from the date of receipt of the copy of this order, failing which the amount stated above except the cost shall bear 12% interest from the date of default of payment till its realisation.

 

Pronounced in the Open Forum on this the 30^th day of August, 2019.

 

Sd/-

SRI. S. GOPAKUMAR (PRESIDENT)

Sd/-

SMT. ASAMOL P. (MEMBER)

(Cont......9)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Gracy Paul

PW2 -Sudhakaran V.S.

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 - The gas subscription voucher issued by the second opposite party

to the complainant

Ext.P2 - The copy of site mahazar prepared by the S.I. of police,

Kanjar on 16/02/15

Ext.P3 - The certificate issued by the village officer, Velliamattom,

Ext.P4 - The copy of legal notice dated 27/11/15

Ext.P5 - The postal receipt

Ext.P6 and Ext.P7 - AD cards.

On the side of the Opposite Party :

Ext.R1 - Policy copy issued by the fourth opposite party

Ext.P2 - Policy schedule issued by the third opposite party

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT