BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 268/2011 Filed on 24.08.2011

ORDER DATED: 15.06.2017

Complainant:

Gopakumar. B.P, Kausthubam, Nettathanni, Mulloor P.O, Thiruvananthapuram.

                               (By Adv. R.S. Kalkura)

Opposite parties:

1. M/s Hindustan Petroleum Corporation Ltd., Reg. Office 17, Jamshedji, Tata Road, Mumbai-400 020 represented by its Managing Director.
2. Hindustan Petroleum Corporation Ltd., Kochi LPG Unit, Regional Office, Seaport-Airport Road, Irumpanam P.O, Kochi-682 309 represented by its Senior Regional Manager.

(By Adv. V.K. Mohan Kumar for 1^st & 2^nd O.P)

3. The Manager, Fathima Gas Service, Customer code 15119400, Fathima Building, Vizhinjam Road, Kovalam Junction, Thiruvananthapuram-27.

(By Adv. P. Jayapalan Thampi)

Additional Opposite party:

4. National Insurance Co. Ltd., Corporate Regional Office, Royal Insurance Building, 2^nd floor, 12, JRD Tata Road, Mumbai-400 020.

This C.C having been heard on 16.05.2017, the Forum on 15.06.2017 delivered the following:

ORDER

SMT. R. SATHI:  MEMBER

The case of the complainant is that he is a consumer of 1^st opposite party and has been allotted double barrel connection through its dealer, the 3^rd opposite party.  The domestic cooking gas cylinders are supplied to the consumer under consumer No. 602956 by the dealer.  On 27.06.2011 at 6.26 am due to leak in the cylinder, blast had occurred and the entire building had been severely damaged and affected by the engulfed fire.  As a result of the blast the roof, walls, floor, utensils and other items in the house got damaged.  As such, the complainant had sustained very heavy loss and damages.  The fact was duly informed to the officials of the opposite parties and also complied with the conditions stipulated by the opposite parties.  The insurance officials visited the premises convinced of the above facts and had taken photographs of the entire premises.  Statement regarding the accident and also obtained copies of the customer card voucher, ration card, fire station report and GD extract dated 27.06.2011 from the complainant.  The complainant had intimated the opposite parties 1 to 3 vide letter dated 14.07.2011 about the visit of the valuer P. Surendran to his premises on 20.07.2011 and had requested for their personal presence during valuation.  None of the officials of the opposite parties were present at that time.  The valuation report was forwarded to the opposite parties on 22.07.2011.  But the complainant’s claim was not settled so far and it causes hardship, financial strain and inconvenience to the complainant.  The act of the opposite parties amounts to negligence, deficiency of service and unfair trade practice.  Hence the complainant approached this Forum for directing the opposite parties to pay an amount of Rs. 6,18,557/- with interest @ 12% per annum from 27.06.2011 till the date of payment along with compensation of Rs. 1,00,000/-. 

The opposite parties accepted notice, entered appearance and filed version. 

Opposite parties 1 & 2 filed version jointly.  The opposite parties 1 & 2 stated that they appoint dealers for the distribution of LPG subject to the terms and conditions of the dealership agreement.  As per the agreement between these opposite parties and 3^rd opposite party is principal to principal basis and 3^rd opposite party is solely liable for all damages that may be caused to its customers.  The complaint is bad for non-joinder of necessary parties as these opposite parties were having a special contingency insurance policy with National Insurance company at the time of accident.  It is true that on verification it was found that there occurred an accident in the house of the complainant on 27.06.2011 but it is not correct to state that the accident was caused due to the leakage of LPG.  At the time of delivery of the cylinder or at any point of time when the cylinder was stored and used by the complainant in his premises, no such alleged defect was pointed out by the complainant.  There is no deficiency in service or any negligence on the part of these opposite parties.  The officials of these opposite parties and 3^rd opposite party requested the complainant to entrust the gas cylinder and regulator for expert examination, but the complainant has not co-operated with the request of the opposite parties.  It is submitted that the alleged accident occurred not on account of any negligence or default of these opposite parties.  The alleged leaking of gas if at all occurred may be due to the mishandling of the cylinder whereby the nozzle might have been damaged.  These opposite parties are not liable to pay compensation or cost of the proceedings to the complainant.  These opposite parties sent the claim form along with all required documents and details to the insurance company.  The insurance company by this letter dated 05.08.2011 informed these opposite parties that they are treating the claim as ‘no claim’ since they observe that the alleged accident occurred at a place different than the authorized customer’s registered premises.  These opposite parties again requested the insurance company to process the claim as submitted since the new residence of the complainant is in the same compound and also within 3 to 4 meters from his earlier residence.  However there is favourable response from the insurance company.  The insurance company rejected the claim of these opposite parties without any justification.  Assuming without admitting it is submitted that if the Hon’ble Forum is pleased to find that the alleged accident due to the deficiency in service of these opposite parties or the 3^rd opposite party, National Insurance Company may be made liable to pay the compensation that may be granted. 

The 3^rd opposite party filed version contending that the complaint is bad for non-joinder of necessary parties as National Insurance Company was not made party to the complaint.  This opposite party admits the blasting and damages caused due to the blast.  The claim was forwarded to the insurance company, but the company rejected the claim on the ground that the accident was not occurred in the registered premises.  The complainant did not entrust the gas cylinder and regulator to this opposite party.  An expert examination of gas cylinder and regulator is necessary to find out the cause of accident.  The accident occurred not on account of any negligence or default of the opposite parties.  The 3^rd opposite party is only a dealer of opposite parties 1 & 2.  The bottling of the gas in the cylinder was done by the opposite parties 1 & 2 in a faultless manner with utmost caution and safeguards human and property.  These opposite parties are not liable to pay the compensation or cost of the proceedings to the complainant. 

The National Insurance Company was impleaded as additional 4^th opposite party.  The additional 4^th opposite party accepted notice, but failed to appear before this Forum.  Therefore 4^th opposite party was set exparte. 

The complainant filed affidavit in lieu of chief and examined as PW1.  The documents produced by the complainant were marked as Exts. P1 to P44.  The 2^nd opposite party Chief Regional Manager filed affidavit in lieu of chief for 2^nd opposite party and on behalf of 1^st opposite party and examined as DW1.  The documents marked as Exts. D1 to D3.  The commission reports marked as Exts. C1 and C2. 

Issues:

1. Whether there is any deficiency of service or unfair trade practice on the side of opposite party?
2. Whether the complainant is eligible for any reliefs sought for?

Issues (i) & (ii):- In this instant case on 27.06.2011 at 6.26 am due to the defect in the gas cylinder supplied to the complainant, the cylinder got leaked and blast had occurred.  As a result the roof as well as walls, floor of the building, utensils, electrical, electronic and other equipments kept in the house all had got destroyed or damaged.  The complainant intimated about the incident to the opposite parties and the opposite parties and their insurance officials visited the complainant’s premises.  But the opposite parties rejected the claim of the complainant and hence complainant approached this Forum for directing the opposite party to pay an amount of Rs. 6,18,357/- with interest @ 12% per annum from 27.06.2011 till date of payment and Rs. 1,00,000/- towards compensation.  The opposite parties 1 to 3 filed version and as per their version complainant impleaded National Insurance Company as additional 4^th opposite party.  The additional 4^th opposite party accepted notice, but not filed any reply.  The opposite parties and 1 & 2 in their affidavit stated that these opposite parties on verification found that there occurred an accident in the house of complainant.  The gas cylinders distributed by these opposite parties to consumers are subject to various safety checks including the length of the cylinder, efficiency of the valves etc.  The opposite parties 1 & 2 sent the claim form along with all required documents and details to the insurance company.  The opposite parties 1 & 2 also produced Ext. D3 letter.  But the insurance company rejected the claim as ‘no claim’ since they observed that the accident occurred at a different place than the authorized customer’s registered premises.  In reply to this the opposite parties 1 & 2 sent Ext. D2 letter to the insurance company.  In that Ext. D2 letter it is clearly stated that the complainant had built a house and shifted his residence to Kousthubam which is in the same compound and is only around 3 to 4 meters from his earlier residence.  But no favourable response was from the side of the insurance company.  The complainant stated that after construction of the new building he had intimated the fact to the opposite party who thereupon instructed that the change of address being nearby to his family house, there is no necessity to make any entries.  The complainant was allotted a second cylinder on 17.02.2009 and the address shown is that of old one despite bringing to the notice of opposite parties about change of address.  For this complainant produced Exts. P1 to P7 to substantiate the case.  The opposite parties 1 & 2 admits the change of address and also states that it is only 4 or 5 meters difference.  The next contention raised by the contesting opposite parties is that the complainant refused to hand over the regulator and cylinder to the opposite parties for expert report.  At the time of cross examination complainant stated that the same was examined by the expert appointed by the court.  Ext. C2 is the report.  He also stated that the reason for not handing over the regulator and cylinder is that if it is handed over evidence will be destroyed.  In Ext. C2 report after detailed examination expert stated that the pin of the spring loaded automatic valve inside the neck of the gas cylinder what prevents automatic release and controls the flow of gas was found missing.  He concluded that the incident took place due to the mechanical failure of the spring loaded valve that controls the gas flow thereby leading to the explosion and severe damage to the house.  No objection was filed against Ext. C2 report.  The complainant filed commission application to assess the condition of the construction of the work and other allied matters.  The Advocate Commissioner filed Ext. C1 report.  On going through the evidence and statement it is clear that there is deficiency of service on the part of the opposite parties.  Ext. C2 report clearly states that there is defect in the cylinder.  For calculating the damages we can rely on Ext. P20 which is taken after the blast after giving notice to the opposite parties.  At the time of cross examination DW1 deposed that “incident നടന്ന ശേഷം loss estimate assess ചെയ്ത് തരുവാനാണ് complainant-നോട് നിര്‍ദ്ദേശിച്ചത് (Q) അതെ (A) ആ നിര്‍ദ്ദേശത്തെ തുടര്‍ന്ന്‍ Surendran എന്നയാള്‍ ഇത്രാം തീയതി inspect ചെയ്യാ൯ പോകുകയാണെന്ന് മുന്‍കൂട്ടി notice തന്നിരുന്നു (Q) തന്നിരുന്നു (A) ആ സമയം നിങ്ങളാരും ഹാജരുണ്ടായിരുന്നില്ല (Q) എനിക്ക് ഓര്‍മ്മയില്ല (A) This shows that Ext. P20 assessment was taken at the instruction of opposite parties and also giving notice to opposite parties.  We are of the view that there is clear deficiency of service on the part of opposite parties and therefore complaint is allowed in part.  The opposite parties are directed to pay Rs. 6,18,537/- to the complainant for the loss along with Rs. 25,000/- towards compensation and Rs. 10,000/- towards costs.

In the result, complaint is partly allowed.  The opposite parties are jointly and severally directed to pay Rs. 6,18,537/- to the complainant along with compensation of Rs. 25,000/- and Rs. 10,000/- towards costs within two months from the date of receipt of this order, failing which the amount of Rs. 6,18,537/- shall carry interest @ 12% from the date of default till payment. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

 Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of June 2017.     

     Sd/-

R. SATHI                               : MEMBER

      Sd/-

P. SUDHIR                            : PRESIDENT

      Sd/-

                                                                        LIJU B. NAIR                        : MEMBER

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C.C. No. 268/2011

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - Gopakumar

 II      COMPLAINANT’S DOCUMENTS:

P1     - Copy of title deed

P2     - Copy of title deed

P3     - Copy of plan of the building

P4     - Copy of location certificate dated 13.12.2006

P5     - Copy of location plan

P6     - Copy of form for sanction of a building permit

P7     - Copy of residential/ownership certificate

P8     - Copy of gas issuing register

P9     - Copy of SV/TV/CTA Form having Sl. No. 3618509

P10   - Copy of SV/TV/CTA Form having Sl. No. 9451211

P11   - Copy of ration card No. 1106240234

P12   - Copy of ration card No. 1106005982

P13   - Copy of ration card No. 1106005982

P14   - Copy of fire report

P15   - G.D Extract of Vizhinjam Police Station dated 27.06.2011

P16   - Copy of letter from complainant to 3^rd O.P

P17   - Copy of letter from 3^rd O.P to complainant

P18   - Copy of letter from complainant to 2^nd O.P

P19   - Copy of letter from complainant to 2^nd O.P

P20   - Detailed estimate for loss due to gas leakage

P21   - Copy of letter dated 01.08.2011 sent by complainant to OPs.

P22   - Copy of letter sent by 1^st O.P to complainant

P23   - Copy of Malayala Manorama daily

P24   - Copy of estimate dated 04.11.2011

P25   - Copy of estimate dated 05.11.2011

P26   - Copy of retail invoice dated 09.11.2011

P27   - Copy of retail invoice

P28   - Copy of retail invoice dated 10.11.2011

P29   - Copy of invoice dated 10.11.2011

P30   - Copy of invoice dated 26.11.2011

P31   - Copy of invoice

P32   - Copy of estimate dated 03.12.2011

P33   - Copy of invoice

P34   - Copy of invoice

P35   - Copy of retail invoice dated 19.03.2012

P36   - Copy of retail invoice dated 18.10.2013

P37   - Copy of retail invoice dated 30.11.2013

P38   - Copy of tax receipt dated 23.04.2013

P39   - Copy of tax receipt dated 14.05.2013

P40   - Copy of receipt dated 23.04.2013 for Rs. 341/-

P41   - Copy of pass book

P42   - Copy of certificate issued by SBT Vizhinjam Branch

P43   - Photos

P44   - C.D

III      OPPOSITE PARTY’S WITNESS:

          DW1 - G. Vinod Kumar

 IV     OPPOSITE PARTY’S DOCUMENTS:

D1     - Copy of memorandum of agreement dated 10.02.2010

D2     - Copy of letter dated 29.08.2011 issued by 1^st O.P to 4^th O.P

D3     - Copy of letter dated 26.07.2011 issued by 1^st O.P to 4^th O.P

  V     COURT EXHIBIT:

          C1     - Commission Report

          C2     - Commission Report

                                                                                                      Sd/-

PRESIDENT

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