BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)

DATED THIS THE 30^th DAY OF MARCH, 2024

CONSUMER COMPLAINT NO.580/2018

PRESENT

SRI RAVI SHANKAR, JUDICIAL MEMBER

SMT. SUNITA C.BAGEWADI, LADY MEMBER

1.            Smt.Manjula

          W/o Sri.Devaraje Gowda.M.H,

          Aged about 55 years,

2.      Sri.Devaraje Gowda.M.H.

          S/o H.Honnegowda,

          Aged about 65 years,

...Complainant/s

3.      Sri.H.Honnegowda

          S/o late Aisami Gowda,

          Aged about 85 years,

Since died by his LRs

3 a)   Kantha Rajegowda,

S/o. late Honnegowda.H,

Aged about 68 years

          3 b)   Kenge Gowda

                   S/o late H.Honnegowda

                   Aged about 60 years,

          3 c)    Govindegowda,

S/o late H.Honnegowda

                    Aged about 64 years,

          3 d)   Putta Honnegowda,

                   S/o late H.Honnegowda,

                   Aged about 64 years,

          3 e)    Shankara Lingegowda,

                   S/o Late H.Honnegowda,

                   Aged about 56 years   

Complainants are

R/at Honnenahalli, [VI],

Honnenahalli [PO],

Nagamangala [TQ],

Mandya District,

Karnataka-571 418

(Complainant No.1&2 - By Sri.Priyanka S.Angadi, Advocate)

(LRs of Complainant No.3 – By S.Guru Prasanna, Advocate)

-Versus-

1.      M/s. Hindustan Petroleum

          Corporation Ltd,

          Company Incorporated under the

          Provisions of the Companies Act,

          Having its registered office at:

          Petroleum House 17,

          Jamshedji TATA Road,

          Churchgate, Mumbai-400 020

          By its Managing Director

…Opposite Party/s

2.      M/s. Prasanna Gas Agency,

          Mahaveera Road,

Bellur, Mandya-571418

3.      M/s. Lombard General Insurance

          Company Ltd,

          Having its registered office at:

          ICICI Lombard House,

          414, Veer Savarkar Marg,

          Near Sidhivinayak Temple,

          Prabhadevi, Mumbai – 400 025

          By its Managing Director

(OP No.1 – Exparte)

(OP No.2-By Sri.Basavaraju, Advocate)

(OP No.3-By Sri.H.N.Keshava Prashanth, Advocate)

O R D E R

BY SRI.RAVISHANKAR, JUDICIAL MEMBER

The complainant Nos.1, 2 and 3 dead by his LRs have filed this complaint against the Opposite Parties alleging deficiency of service in not settling the claim towards fire accident due to explosion of gas cylinder which resulted in loss to the tune of Rs.80,98,500/-, hence prays for settlement of the claim to the tune of the above said amount along with 18% interest per annum and compensation as deemed fit.

 2. The brief facts of the complaint is that, the complainant is the customer of the 2^nd OP agency having customer ID No.606539 and he use to book the HP LPG gas cylinder for domestic/cooking purpose at their house situated at Honnenahalli. The 1^st OP is the Company which has supplies the gas cylinder of the 2^nd OP, in turn the 2^nd OP supplies to the LPG cylinder to the complainants. The 3^rd OP is the Insurance Company who had provided public liability insurance.

Such being the case, on 30-7-2017 while the 1^st complainant cooking for lunch at 1.30 p.m., the LPG gas cylinder busted into flames and caused fire accident, due to which the entire house of the complainant was burnt, even the house articles, furniture and other goods kept were all turned into ashes. Immediately the fire accident was informed to the fire brigade and they have arrived to spot and tried to extinguish the fire. However due to vast rapid spread of the fire, the entire house was burnt. Anyhow, the fire brigade was tried to avoid the fire spreading to neighbor houses also.

Due to the said fire accident, the complainants suffered the following loss of articles; 

Further the market value of the residential house built in the site measuring 50x80 sq. ft. was totally burnt and the cost of the entire house is Rs.40,00,000/-.

After the fire accident, the complainants have lodged a police complaint regarding the LPG gas cylinder blast with Belluru police, Nagamangala. The Revenue Inspector, Belluru Hobli has inspected the spot and approximately measured the damages caused by the fire accident. The officials of the Fire department have also visited the spot and conducted mahazar. The officials of Nagamangala Gram Panchayath have also visited the spot and have given a report to the Government of Karnataka about the damages caused by the Fire Accident.

The complainant further alleged that, it is only due to supply of defective LPG gas cylinder; the gas was leaked and caught fire at the time of cooking. It is only due to a supply of defective cylinder, the fire incident was happened. Due to which, the complainant lost his entire house and he was forced to putting him to street. The said fire incident was informed to both OP Nos.1 and 2 and sought for payment of compensation to the tune of Rs.80,98,500/-, but the OP Nos.1 and 2 without any reason have denied to pay the compensation as prayed. Instead of that, the OP No.3 being a Insurance Company had offered to pay a meager amount of Rs.2,00,000/- without considering the loss of entire house.  The award offered by the OP No.3 is unjust and meager and not satisfactory, the complainants have suffered the entire house articles due to fire accident, they also suffered the loss of lots of dry coconuts which was stored in the roof of the house. The complainants have to start construction of a new house and also to purchase every house articles along with utensils of kitchen. Hence the OP Nos.1 to 3 are liable to pay the above said amount towards loss.

The amount of Rs.2,00,000/- is very meager and denied to pay the entire amount claimed by the complainants. As such, the OP Nos.1 to 3 rendered deficiency in service and in not settling the claim towards the loss due to fire blast of gas cylinder. Hence prays to allow the complaint and direct the OPs to pay compensation for deficiency in service also, in the interest of justice and equity.

3. During the course of the trial, the complainant No.3 died and the LRs of the complainant No.3 were brought on record and amended the cause title of the complaint. The LRs of the complainant No.3 are continued in the complaint. 

4. After service of the notice, the 1^st OP not appeared before this commission; hence the 1^st OP placed exparte. The OP Nos.2 and 3 appeared through their counsel filed version.

5. The 2^nd OP in his version has contended that, the complainants have not entitled to get any claim as claimed by the complainants. The complaint filed by the complainants is false, frivolous, vexatious and speculative in character; they have suppressed the material true facts besides they withhold the documents which are relevant to the litigation. As such the complaint is liable to be dismissed without going into the merits of the case. 

The 2^nd OP further contended that, the measurement of the house stated therein and the rest of the contents of the complaint are not within the knowledge of the 2^nd OP. The measurement of the house measuring 50X80 sq. ft. is denied and false. It is contrary to spot inspection report conducted on 31-7-2017, as per the sport mahazar the measurement of the house seems to be 60 X 40sq.ft. whereas the complainants claimed 4000 sq. ft. whereas the house built in 60 x 40 sq. ft. is only 2400 sq. ft. As such the complainants falsely pleaded that the house was built in the site measuring 50 x 80 sq. ft. No doubts the complainants have produced Form No.9 extract issued by PDO of Arani Grama Panchayath to show the measurement. On perusal of the same it seems that the material alteration of the documents name “Henchu” measuring 50 x 80 sq. ft. has been subsequently inserted. Therefore the material alteration of the documents varies the rights of the parties. Unless and until cogent evidence and sufficient materials has been placed to the satisfaction of this Commission, the claim of the complainants towards the building in the site measuring 50 x 80 sq. ft. cannot be believed and the same it has to be rejected.

The 2^nd OP further contended that the complainants deliberately ill intention and in order to gain wrongfully has suppressed the material facts. The complainants have deliberately not pleaded the date of ordering LPG cylinder, date of booking of the cylinder and date of delivery of the cylinder and they have also not pleaded after purchase of the cylinder how many days they have utilized the cylinder. As such the complainants have not approached this commission with a clean hand. Hence, the claim has to be denied.

The 2^nd OP further contended that, HP LPG cylinder supplied to the complainants as no any manufacturing defect. There is no any deficiency in service on the part of this OP also at the time of supply of the cylinder which was no manufacturing defect and also noticed no leakage. The delivery boy was delivered with a good faith and with a bonafide relief that the cylinder is in order. Therefore the allegation made by the complainants with respect to the usage of the cylinder is not acceptable and the complainants without any reasons and alleged there is a leakage in the gas cylinder. Hence the complainants are not entitled to get any relief as prayed in the complaint. Further at the time of delivery of the cylinder it was sealed and delivered on 11.6.2017 from that day the complainants have utilized the cylinder for cooking nearly 11 days, the incident was occurred on 30-7-2017. Hence if at all there is any leakage they could have noticed at the first usage itself whereas the complainants utilized the cylinder for 11 days. Hence there is no chance of leakage from the cylinder due to which the fire was occurred, there may be some other causes for fire and it was not due to leakage in the gas cylinder. As such the complainants are not entitled to get any compensation as prayed in the complaint.

The 2^nd OP further contended that the complainants had not produced any materials of documents/cogent material to show item no.1 to 17 mentioned in the pleading are destroyed without any documents, the loss of the said articles amounts cannot be assessed, the complainants are liable to put strict proof of the same. The assessment of loss to the tune of Rs.40.00 lakhs to the loss of house is only imaginary and exorbitant. The complainants are liable to put strict proof of the same.   

The 2^nd OP further contended that, at the time of delivery of the gas cylinder it was intact, SC valve is in good condition and the safety pin was bent and stuck to the side of the valve. It is therefore due to negligence in the handling of the cylinder itself, the fire was caught and the complainants have not taken proper caution and safety while using the cylinder. Hence the fire accident has been occurred; it is only due to negligence on the part of the complainants itself, the fire accident was occurred, there is no any manufacturing defect in the cylinder and they are not liable to pay claim made by the complainants.

The 2^nd OP further contended that, as per the pleadings the complainants have moved the cylinder from the kitchen to the living room for the purpose of cooking the non-vegetarian food, it is clear as per the pleading as the complainants have negligently moving the cylinder from kitchen to living hall for the purpose of cooking, they have taken proper caution and safety measure at the time of moving which resulted in explosion of the gas cylinder. Hence it is clear case of negligence on the part of the complainants themselves. There is no any defect found in the gas cylinder and they have not supplied any defective cylinder to the complainants.                                                  

The 2^nd OP further contended that the 3^rd OP is the Insurance Company who have indemnified the public liability and after the fire accident, the 3^rd OP had carried the separate investigation on 2-8-2017 and as per the survey damages, the 3^rd OP has offered to pay a compensation of Rs.2.00 lakhs but the complainants have not accepted the same and filed this false complaint in order to gain wrongfully. The legal notice issued claiming that huge amount was replied suitably, there is no deficiency in service on the part of this OP and they are not liable to pay any claim made by the complainant and as such prayed for dismissal of the complaint, in the interest of justice and equity.  

6. The 3^rd OP also filed version and contended that M/s ICICI Lombard General Health Insurance Company Limited is regulated by the Insurance Regulatory and Development Authority (IRDA) constituted under the Act of Insurance Regulatory and Development Authority Act, 1999 which has been empowered to regulate, promote and ensure orderly growth of the insurance business and has, inter-alia, the powers to control and regulate the rates, advantages, terms and conditions that may be offered by insurers and protection of the interest of the policy holders in respect of matters concerning assigning of policy, nomination by policy holders, insurable interest, settlement of insurance claim, surrender value of policy, and other terms and conditions of contracts of insurance. Every policy of the 3^rd OP, including the Standard Terms and Conditions and key feature documents, has gone through the scrutiny of IRDA which is a statutory body.

The 3^rd OP further contended that a policy of insurance is a policy of utmost good faith. Upon receiving a proposal form from the 1^st OP herein complainant, a public liability policy was issued vide policy bearing No.4008/ 148542022/00/000 on 2-5-2018 and valid till 1-2-2019. The policy was issued based on the declarations provided by the 1^st OP in his proposal form.

The 3^rd OP further contended that during the currency of the policy period, the insured has intimated about the occurrence of the fire incident which occurred on 30-7-2017 in the premises of the complainants and accordingly this OP caused investigation about the occurrence of the fire incident due to usage of the Gas cylinder and has visited the sport. It is further submitted that after the detailed survey, this OP has assessed the damages caused to the complainant’s premises. This OP further submits that on receipt of the survey reports, this OP came to know that the incident occurred only because of the negligence of the complainant’s in using the Gas cylinder. It is further submitted that when the gas cylinder was delivered to the complainant by the 2^nd OP herein, the same was checked for weight and leakage by the personnel of the 2^nd OP herein in the presence of the complainant herein and the same was delivered after the complainant’s satisfaction. Hence it is clear that gas cylinder was very much in order and it was sealed in a proper manner and there was no leakage of the gas. It is further submitted that as per the investigation conducted by this OP, the complainants have shifted the gas cylinder from kitchen to living room in order to prepare the non-vegetarian food and in the said process, the complainants have not fitted the regulator of the gas cylinder in a proper manner and hence there may be a leakage of the gas and therefore it is clear that only because of the negligence of the complainants, the incident occurred. However, this OP on a humanitarian ground has accepted its liability as per the terms and conditions of the policy of insurance issued and has issued the DD for a sum of Rs.2.00 lakhs in favour of the complainant. But the same was not accepted by the complainant. The above facts and circumstances clearly demonstrate that there was no deficiency of service on the part of the 3^rd OP herein and this OP has acted as per the terms and conditions of the policy, since the liability of this OP is only to the extent of Rs.2.00 lakhs towards the properly damage as per Section II of the terms and conditions of the policy, it reads as under;

“Section II: Personal Accident covers to customers including related parties and property damage solely at authorized customer’s registered premises (irrespective of liability at law)

1. Personal accident for Rs.6.00 lakhs per person per accident.
2. Medical expenses for Rs.30.00 lakhs per event (maximum Rs.2.00 lakhs per person) immediate relief upto Rs.25,000/-
3. Property Damage: Maximum of Rs.2.00 lakhs per event at authorized customers registered premises.
4. Per year: Rs.20.00 crores.

In view of the above terms and conditions of the policy, the liability of this OP is limited to Rs.2.00 lakhs towards the property damages.

The 3^rd OP further contended that, the policy of insurance is the evidence of the terms of the agreement between the insured and insurer. The promise of the insurer to indemnify the insured is subject to the terms and conditions and exceptions of the policy. It is further submitted that as per the policy of insurance issued, the liability of this OP is only to the extent of Rs.2.00 lakhs and not more than that.

The 3^rd OP further contended that the averments made in paragraph no.1 and 2 of the complaint, needs no reply, since the same is admitted as correct.  It is further contended that, this OP has issued a public liability policy. However, the liability of this OP is limited to the terms and conditions of the policy. The averment made in the paragraph no.4 of the complaint is concerned, the same is matter of record and the complainants are put to strict proof of the same.

The 3^rd OP further contended that, the averments made in the paragraph no.5 of the complaint is concerned, the same is between the complainants and the OP Nos.1 and 2 of the complaint and hence this OP does not want to meet the said averments.

The 3^rd OP further contended that, the averment made in the paragraph no.6 of the complaint is concerned, the same is matter of record and the complainants are put to strict proof of the same. However, it is submitted that on receipt of the intimation from the insured, this OP caused investigation about the occurrence of the fire incident due to usage of the gas cylinder and has visited the spot. It is submitted that after the detailed survey, this OP has assessed the damages caused to the complainant’s premises. The OP most respectfully submits that on receipt of the survey report, this OP came to know that the incident occurred only because of the negligence of the complainant’s in using the gas cylinder. It is submitted that when the gas cylinder was delivered to the complainant by the 2^nd OP herein, the same was checked for weight and leakage by the personnel of the 2^nd OP herein in the presence of the complainant herein and the same was delivered after the complainants’ satisfaction. Hence it is clear that gas cylinder was very much in order and it was sealed in a proper manner and there was no leakage of the gas. It is further submitted that as per the investigation conducted by this OP, the complainants have shifted the gas cylinder from kitchen to living room in order to prepare the non-vegetarian food and in the said process, the complainants have not fitted the regulator of the gas cylinder in a proper manner and hence there may be a leakage of the gas and therefore it is clear that only because of the negligence of the complainants, the incident occurred.

The 3^rd OP further contended that the averments made in the paragraph no.7 and 8 of the complaint is concerned, the same is matter of record and the complainants are put to strict proof of the same. The averment made in the paragraph no.9 of the complaint is concerned, the same is denied as false and the complainants are put to strict proof of the same. It is further submitted that the incident occurred only because of the negligence of the complainants and there is no deficiency in service and prays for dismissal of the complaint, in the interest of justice and equity. If at all, the 3^rd OP arrived for conclusion that, the complainant is entitled for an amount of compensation is restricted to Rs.2.00 lakhs and there is directed to pay the said amount, as such prays for dismissal of the complaint.    

 7. The complainant filed his affidavit evidence and marked documents as Exs.C1 to C24. In spite of sufficient opportunity provided, the OP Nos.2 and 3 not filed their affidavit evidence and no documents produced. The complainants filed notes of arguments.

8. Heard the arguments

9. On perusal, the following points will arise for our consideration;

(1)     Whether the complainants proved deficiency in service on the part of Opposite Parties?

(2)     Whether the complainant is entitled to the reliefs as sought?

(3)     What Order?

10.    The findings to the above points are;

          (1)     In the affirmative

          (2)     In the affirmative 

(3)     As per final order

R E A S O N S

Point Nos.1 and 2:-  

11. On perusal of the pleadings, version of the OP Nos.2 and 3, affidavit evidence and documents produced by the complainants, it is an admitted fact that, on 30-7-2017 fire accident took place due to LPG gas cylinder explosion in the house situated at Honnenahalli village, Belluru hobli, Nagamangala, Mandya District, due to which the entire house was burnt, in this regard the complainants had produced spot mahazar report marked as Ex.C6, photographs to show, the entire house was burnt marked as Ex.C14 to C19.

12. On perusal of the said photographs and spot mahazar, it is evident that, the entire house was burnt by the time when the fire brigade approached. Anyhow the fire brigade has appeared to the spot and extinguished the fire as per the news paper produced by the complainant marked as Ex.C13. The complainants also produced one certificate issued by the Karnataka Fire Brigade and Essential Service with respect to the extinguish of the fire which was caused due to LPG gas cylinder explosion which is marked as Exs.C5 to C7, in the said reports it is mentioned that the house situated in site measuring 50x80 sq.ft. and all the house hold articles utensils, Ragi, Paddy, Dry Coconut were all burnt including the house itself and the local authority also drawn the spot mahazar as per Exs.6 and 7 at the time of drawing an spot mahazar, they have estimated the loss to the tune of Rs.48,43,500/- and the same was reported to the Tahasildar and District Divisional Commissioner. The said local authority also recommended for payment of compensation to the tune of Rs.42,43,500/-. After receipt of the said, the Government of Karnataka had suggested to claim the compensation by virtue of the policy. We noticed the 3^rd OP insured the third party liability on behalf of the OP Nos.1 and 2.

13. The complainants also intimated to the same to the local dealer and the 3^rd OP for settlement of the claim, immediately the 3^rd OP officials have appointed a surveyor to assess the loss and finally arrived for payment of meager compensation of Rs.2.00 lakhs. Aggrieved by the said, the complainants approached this Commission alleging deficiency in service and claimed for compensation to the tune of Rs. 80,98,500/- and the list of loss has provided as here under;   

14. When compare to the list given by the complainants in the affidavit and the loss assessed by the local authority, there is a difference of nearly 40.00 lakhs. We are of the opinion that, on looking at the photographs and other documents, the complainants had definitely suffered the loss to tune of Rs.40.00 lakhs to Rs.50.00 lakhs as assessed by the local authority. The complainants due to explosion of the gas cylinder was constrain to built a new house by purchasing all required house articles, utensils and other items. The complainants also suffered perishable items such as Ragi, Paddy and Dry Coconuts, the said loss cannot be assessed at the bare eye. Under this circumstance, we have no hesitation to award Rs.46.00 lakhs as a global compensation to be payable to the complainants.

15. The 3^rd OP had not filed any affidavit in support of their defence before this commission and also not produced any survey report or any other materials to show how they have arrived for payment of compensation for meager amount of Rs.2.00 lakhs, when such huge loss was seen and reported. The settlement offered by the 3^rd OP being an indemnifier definitely amounts to deficiency in service. The 3^rd OP is under liability as per the policy terms and conditions to pay Rs.46.00 lakhs as a global compensation to the complainants. The complainants also entitled to get compensation of Rs.5.00 lakhs towards deficiency in service in not settling the claim as soon as it was reported along with litigation expenses of Rs. 25,000/- to the complainants. Accordingly, the complaint is allowed.

16. Point No.3: In view of above discussion, we proceed to pass the following:-

O R D E R

The complaint against the Opposite Party Nos.1 and 2 is dismissed.  

The complaint is allowed against the Opposite party No.3 with litigation expenses of Rs.25,000/- to the complainants.

The 3^rd OP is directed to pay global compensation of Rs.46.00 lakhs to the complainants along with 9% interest per annum on the said amount from the date of filing of this complaint, till realization.

Further the 3^rd OP is directed to pay an amount of Rs.5.00 lakhs to the complainants as compensation for deficiency in service.

Further the 3^rd OP is directed to comply the above order within 30 days from the date of receipt of this order.  Failing which, the payable amount shall carry interest @12% p.a. from the date of default till realization.

Send a copy of this order to both parties.

Member                                    Judicial Member

Jrk/-