Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 388.
Instituted on : 20.10.2014.
Decided on : 08.02.2017.
Madan Lal s/o Sh. Suraj Mal, R/o H.No.1467/34, Sheetal Nagar Jhajjar Road, Rohtak.
………..Complainant.
Vs.
- M/s Khanagwal Gas Service, Azad Nagar Circular Road, Rohtak.
- Indian Oil Corporation(Indane Gas), Kohand Asand Road Village Guga, Distt. Karnal.
- United India Insurance Company Ltd. 323/21 Jawahar Market, Opposite ‘D’ Park Rohtak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh. Dharamvir Sharma, Advocate for the complainant.
Sh.Ajay Dua, Advocate for the opposite party No.1.
Opposite party No.2 exparte.
Sh.A.S.Malik, Advocate for opposite party no.3.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he is consumer No.K25662 and holder of domestic LPG Gas connection card No.315678 with opposite party No.1 having distributor code No.104324 who used to supply LPG cylinders for domestic use. It is averred that the complainant was supplied the LPG Gas cylinder without any number as per entry made in Gas Book on dated 09.04.2014 at page-115 and on the same day at night, the LPG cylinder so issued was exchanged with the old cylinder and the LPG Cylinder caught fire and made the cylinder to burst with three number explosions in which all the house hold kitchen utensils and other eatables etc. were destroyed beside the kitchen and other adjoining living room walls of the residence of the complainant cracked causing extensive damage to the moveable/immoveable property belonging to the complainant as described in FIR No.406 dated 09.04.2014 viz laptop, A.C., Washing machine, T.V. and other misc items costing Rs.113000/- self assessed as per details attached on the basis of approximate purchase value. It is averred that FIR no.406 dated 09.04.2014 was immediately lodged with P.S.Shivaji Colony, Rohtak on the same day and intimation of occurrence of accident was also given to the opposite party No.1 immediately on the next day but did not take any action except to ask the complainant to contact the Indian oil Corporation i.e. opposite party no.2 who happen to be the supplier of filled LPG domestic cylinders. It is averred that intimation of the accident was also reported to opposite party no.2. The Fire Station Officer at Rohtak was also informed to extinguish the fire. It is averred that the damage to the building structure as estimated by a registered Architect is Rs.154386/-. It is averred that complainant informed the opposite parties within time but none was deputed by the opposite party to inspect the site of accident to assess the loss and to submit the report. It is averred that complainant has suffered a loss of Rs.367386/- and as such opposite parties are liable to pay the alleged claim to the complainant. As such it is prayed that opposite parties may kindly be directed to pay Rs.367386/- as compensation alongwith interest and litigation expenses to the complainant.
2. On notice, the opposite parties appeared and filed their separate written reply. Opposite party no.1 in its reply has submitted that the cylinders are being insured from United India Insurance Company Ltd. and supply of cylinder to the complainant is a matter of record. It is wrong and denied that while using the gas burner on 09.04.2014 the LPG cylinder caught fire and made the cylinder to burst with three number of explosions. It is averred that there is a possibility that the complainant remained negligent in exchanging the gas cylinder and new cylinder was not properly fitted due to which the alleged incident took place. It is averred that the cylinder was handed over to the complainant by the employee of company in proper condition. There is no report of any expert that the alleged fire took place due to any defect in the cylinder. Without any report of any expert, it cannot be said there was any defect in the cylinder. It is averred that on enquiry it was found that complainant himself was negligent in using the cylinder and chulha against the specification of the company. It is averred that the fire had taken place due to some other reason and from some other source by the complainant. It is averred that complainant has filed the present false complaint only to get undue benefit. It is averred that a false FIR was lodged by the complainant and intimation was not given to the answering opposite party in proper time. It is averred that no action was required to be taken by the answering opposite party as there was no fault on the part of answering opposite party. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of complaint with costs.
3. Opposite party no.2 in its reply has submitted that the reasons for the accident as described in the official report prepared by the answering opposite party include a careless and cavalier attitude on the part of the customer, usage of non-standard tube i.e. PVC tube, hot plate not being kept at ground level, hot plate not being approved by the ISI and also improper ventilation of the kitchen. It is averred that the leakage can be ascribed to the knob of the non standard hot plate. It is averred that none of the opposite parties including the answering opposite party are liable to the complainant. It is averred that the case of the complainant shall not be covered within the terms of the Insurance policy guidelines of the opposite party no.3 in this case, for reasons reiterated above. It is averred that the accident in this case was caused primarily due to the negligence of the complainant. It is prayed that the complaint may kindly be dismissed with costs.
4. Opposite party no.3 in its reply has submitted that no claim was registered regarding the loss of 09.04.2014 of the said policy and till date O.P.No.3 has not received any claim intimation regarding the loss by LPG cylinder on 09.04.2014 except summons of the Hon’ble Forum. So, as per terms and conditions of the policy the claim is not payable. It is averred that no opportunity was given to inspect the site and to appoint a surveyor to assess the loss. So, O.P. no.3 is not liable to pay any amount which was assessed by Malik Architect Association. On merits it is submitted that the risk was not covered as mentioned in the complaint and there is no negligence on the part of opposite party no.1 & 2 when the said incident happened. All the other contents of the complaint were stated to e wrong and denied. Opposite party prayed for dismissal of the complaint with costs.
5. Both the parties led evidence in support of their case.
6. Ld. Counsel for the complainant in his evidence tendered affidavits Ex.CW1/1A, documents Ex.CW1/1 to Ex.CW1/XI and has closed his evidence. On the other hand, ld. Counsel for the opposite party no.1 tendered affidavit Ex.RW1/A, document Ex.R1 and has closed his evidence. Opposite party no.3 has tendered affidavit Ex.RW3/A, document Ex.R3/A and has closed his evidence. However opposite party no.2 did not appear at the time of filing the evidence and was proceeded against exparte vide order dated 04.05.2016 of this Forum.
7. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
8. In the present case it is not disputed that complainant is consumer of opposite party no.1 & 2 bearing consumer no.K25662 as is proved from the subscription voucher Ex.CW1/1. It is also not disputed that as per refill receipt Ex.CW1/III, complainant had taken a refill cylinder on 09.04.2014 from the opposite party no.1 and as per copy of FIR Ex.CW1/IV, a blast had occurred in the house of complainant during the course of connection of alleged cylinder and had caused damaged to the household articles and house of the complainant. As per copy of Occurrence Book of Haryana Fire Brigade services Ex.CW1/VIII, fire had taken place in the house of complainant on 09.04.2014 and Ex.CW1/IX is the copy of Fire report receipt. Ex.CW1/X is the copy of report of Architect who had assessed the loss of Rs.154386/-. Photographs of the burnt items Ex.CW1/XI-1/18 to CW1/XI 18/18 are also placed on record. On the other hand, contention of opposite party no.1 is that there is possibility that the complainant remained negligent in exchanging the cylinder and new cylinder was not properly fitted due to which the alleged incident took place. Ld. counsel for the opposite party no.1 has also made a statement that opposite party No.1 is the dealer of opposite party no.2 and the cylinders received from the opposite party no.2 are supplied by the opposite party no.1 in as it is condition and if there is any defect in the cylinder then only opposite party no.2 is liable for the same. On the other hand, contention of opposite party no.3 is that fire on the stock of gas cylinder at Godown(cylinders) is only covered under the policy and as such the claim is not payable.
9. After going through the file and hearing the parties it is observed that as per the contention of opposite party no.1 on enquiry it was found that complainant himself was negligent in using the cylinder and chulha against the specification of the company but the opposite party has not placed on record any document to prove that there was negligence on the part of complainant while installation of the LPG Cylinder. On the other hand, there is sufficient evidence on the file as tendered by the complainant e.g. copy of FIR, Fire Services report and photographs etc. to prove that the fire had taken place in the house of complainant due to explosion in the LPG cylinder and the complainant had suffered loss to his moveable and immoveable property. To prove the loss complainant has placed on record copy of Architect Ex.CW1/X. Now the question arises that who is liable for the loss caused to the complainant. In this regard it is observed that as per the insurance policy Ex.R1/XII of opposite party no.1 the alleged policy is only for the fire on the stock of as cylinder at Godown. Hence opposite party no.3 is not liable to pay any compensation. As per the complaint and affidavit filed by the complainant the cylinder was old one and looked like worn out. On the other hand, as per the contention of opposite party no.1 the alleged cylinder was supplied to the opposite party no.1 by opposite party no.2. But the opposite party no.2 has not placed on record any document to prove that no old and worn out cylinder was supplied to the opposite party no.1 which could have been prove by the opposite party no.2 as per the record available with it. Moreover opposite party no.2 has not filed any evidence and has been proceeded exparte. In this regard reliance has been placed upon the law cited in III(2008)CPJ 98 titled Pahnawa Boutique & Anr. Vs. Shaifi Verma whereby Hon’ble Haryana State Commission, Panchkula has held that: “Complaint fully supported by affidavit-No basis to reject complainant’s version-O.P.failed to contest proceedings despite notice-Order of Forum allowing the exparte complaint upheld” and as per 1998(3)CCC 65(P & H) Hon’ble Punjab & Haryana High Court in Sardari Lal Vs. Kartar Singh & Ors. has held that: Non-appearance of a party as a witness in the suit-Gives rise to a strong presumption against him”. Regarding the liability of Indian Oil Corporation we have placed reliance upon the law cited in 1(2015)CPJ 451(NC) titled as Indian Oil Corporation Ltd. Vs. Ramesh Thakur & Ors. whereby Hon’ble National Commission, New Delhi has held that: “Accident took place because of cylinder being old and worn out and supply of LPG in such kind of cylinder cannot be said to be act of negligence or omission on part of distributor but constitutes negligence on part of Indian Oil Corporation itself-Petitioner is terribly remiss in discharge of their duty-Compensation awarded”. In view of the aforesaid law which is fully applicable on the facts and circumstances of the case it is observed that opposite party no.2 is liable to pay compensation to the complainant as per the report Ex.CW1/X of Malik Architect which includes the damage to the house of the complainant as well as House hold equipments.
10. In view of the facts and circumstances of the case it is observed that opposite party no.2 shall pay a lump sum compensation of Rs.154386/-(Rupees one lac fifty four thousand three hundred eighty six only) and Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which opposite party no.2 shall be liable to pay interest @ 9% p.a. on the awarded amount from the date of decision. Complaint is disposed of accordingly.
11. Copy of this order be supplied to both the parties free of costs.
12. File be consigned to the record room after due compliance.
Announced in open court:
08.02.2017.
Joginder Kumar Jakhar, President
..........................................
Komal Khanna, Member.
…………………………………..
Ved Pal, Member
