DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Thursday the 16th day of December 2021
C.C. 130/2013
Complainant
Elambilassery Majeed
S/o. Moideen, Mahara House,
Meppayur (P.O), Kozhikode.
(Rep. by POA Holder)
Smt. Raihanath
W/o. Majeed, Mahara House,
Meppayur (P.O), Kozhikode.
(By Adv. P.A. Jaleel)
Opposite Parties
- M/s. Malayalam Indane Services
LPG Distributiion ofIOC,
Keeshariyur P.O, Koyilandy Taluk
Kozhikode -673 324
(By Adv. K. Sathyan)
- United India Insuranc e Co Ltd
Branch Office, Vatakara – 673 101
(By Adv. T.V. Hari)
- Indian Oil Corporation
Calicut Bottling Plant, Chelari (P.O)
Thenjipalam, Malappuram – 673 636.
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ORDER
By Sri. P.C. PAULACHEN – PRESIDENT.
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
2. The case of the complainant, in brief, is as follows:
The complainant is represented by his wife and Power of Attorney holder Smt. Raihanath. The complainant is residing with his family in house bearing No.A.P.4/4884 situated in the property comprised in resurvey No.92/5 of Mepayur village. The first opposite party is the distributor of LPG cylinder of Indian Oil Corporation. The complainant has taken a domestic LPG connection from the 1st opposite party. The 1st opposite party told the complainant that it has valid insurance coverage with the 2nd opposite party to cover the risk. On 31.10.2010 by leakage of gas from the gas cylinder which has kept inside the kitchen for cooking, the gas cylinder caught fire and the kitchen was completely destroyed. The Fire Force from Perambra unit reached the premises and due to their timely intervention, further damage could be averted. The Police was also informed and after enquiry a certificate was issued by the Police stating that the complaint is genuine. The damage to the house was assessed by Sri.K.K. Basheer, a registered building supervisor, who assessed the damages at Rs.3,33,690/-. The accident has occurred due to the negligence in refilling. The complaint approached the 1st opposite party seeking compensation. But nothing was done in his favour. On 31/08/2012 the complainant issued a lawyer notice to the 1st and 2nd opposite parties demanding compensation of Rs.10,00,000/-. But no reply was sent by them. Hence the complaint for compensation of Rs.10,00,000/-..
3. The Indian Oil Corporation, Calicut Bottling Plant, was impleaded as suppl.3rd opposite party as per order in IA 144/2018. The 1st and 2nd opposite parties filed version. Suppl. 3rd opposite party was set ex parte by our learned predecessors-in-office.
4. According to the 1st opposite party, the 2nd opposite party is liable to pay compensation to the customers for the loss sustained by them in case of damage caused to the property. The 1st opposite party is not aware of the details of the damage and loss sustained by the complainant. The compensation claimed is exorbitant. The gas cylinder was not refilled by the 2nd opposite party, but the 3rd opposite party. Their only duty is to distribute the gas cylinder. The gas leak was not informed to them. There was no negligence or deficiency of service on their part and no compensation is payable by them. There is valid insurance coverage. If at all any compensation is payable, the same has to be paid by the 2nd opposite party. With the above contentions, the 1st opposite party prays for dismissal of the complaint.
5. The contention of the 2nd opposite party is that the policy issued to the 1st opposite party does not cover the risk in the hands of the consumer. The public liability clause does not cover consumer within the definition. So the insurance company is not liable to indemnify the 1st opposite party or to compensate the complaint. To their knowledge, the unfortunate incident happened due to the mishandling of the cylinder by the complainant. The estimated amount assessed by the building supervisor is not admitted. In settlement of Insurance claim, the assessment is to be made by an independent licenced surveyor. The compensation claimed is without any basis. There was no deficiency of service or unfair trade practice on their part. The liability under the policy is subject to conditions, clauses, warranties exclusions etc. The complainant cannot seek any compensation on the strength of the insurance policy issued to the 1st opposite party. Hence the complaint is only to be dismissed.
6. The points that arise for determination in this case are:
(1) Whether the accident due to leakage of LPG gas has
occurred due to the negligence/ deficiency of service
on the part of the 1st and 3rd opposite parties, as
alleged ?
(2) Whether the complainant is entitled to claim compen-
sation ? If so, what is the quantum and who is liable?
(3) Reliefs and costs?
7. PWs 1 to 3 were examined and Exts A1 to A11 were marked on the side of the complainant. The opposite parties did not adduce any oral evidence . LPG Dealers Package Policy was marked as Ext. B1 on the side of the 2nd opposite party.
8. Heard .
9. Point No. 1 : The 1st opposite party is the distributor of LPG cylinder of IOC. The LPG cylinder is filled in the Bottling Plant of IOC at Chelari, Thenjipalam (3rd opposite party). The complainant is a consumer of domestic LPG connection under the 1st opposite party as per Ext.A1 Indane Customer Transfer Subscription Voucher.
10. The case of the complainant is that on 31/10/2010, at noon while the gas cylinder was opened for cooking there was gas leakage from the cylinder and it caught fire and the kitchen was completely destroyed . When examined as PW1 before this Commission, the original complainant Sri. Majeed has spoken about the incident in detail whereby the kitchen of his house building was destroyed by fire due to leakage of LPG gas. His evidence shows that the service of the Fire Force was availed to avoid further calamity. The matter was informed to the Police who also inspected the premises. The evidence of PW2, who is the Assistant Station Officer of the Fire Force, also support the version of PW1. Ext.A2 report prepared by the Station Officer, Fire and Rescue Station, Perambra, further lends support to the case of the complainant that such an accident due to leakage of LPG occurred in his house on 31/10/2010 at noon. It is clearly stated in Ext.A2 that the accident was due to gas leakage. Ext.A3 certificate issued by the local Police also reveals that such an incident happened on 31/10/2010 noon. Thus the evidence of PWs 1 and 2 coupled with Exts A2 and A3 prove that the accident due to gas leakage as alleged has occurred and the kitchen of the house was destroyed. Moreover the contesting opposite parties have not specifically denied the accident in their version. So we have no hesitation to hold that accident due to leakage of LPG gas from the cylinder has occurred on 31/10/2010 noon in the kitchen of the house of PW1 causing damage.
11. The next point to be considered is as to who is responsible for the accident. Admittedly, the gas is refilled at the Bottling Plant of the 3rd opposite party and the LPG cylinder is supplied by the 1st opposite party. Admittedly, the complainant has no role in these matters. The definite case of the complainant is that while the gas connection was opened for cooking there was gas leakage from the gas cylinder and it caught fire. It is specifically reported in Ext.A2 by the Fire and Rescue Authorities that the fire accident was due to gas cylinder leakage. Thus the evidence indicates that the accident was due to the negligence and deficiency of service on the part of the Indian Oil Corporation. The distributor only distributes the gas cylinder supplied to them by the IOC and hence the distributor cannot be held responsible for the incident. The contesting opposite parties 1 and 3 have only a vague denial in this regard. The 3rd opposite party has chosen to remain absent and did not file version and contest the complaint. There is no contra evidence. There is nothing in evidence to indicate that the incident happened due to any mishandling of the cylinder by PW1 or the inmates in his house. From the evidence in hand, we hold that the accident has occurred due to the negligence and deficiency of service on the part of the 3rd opposite party.
12. Point No. 2 :
The complainant has claimed compensation Rs.10,00,000/-. The complainant has assessed the damage caused to his house and to the home appliances through a registered building supervisor and the estimate obtained is marked as Ext.A4. As per Ext.A4, for the rectifying the damages to the kitchen a sum of Rs.1,50,000/- is required. In addition to that, the damage cost to the home appliances like fridge, stabiliser, grinder etc is assessed at Rs.27,400/-. So the total loss is Rs.1,77,400/-. The Civil Engineer who prepared Ext.A4 is examined as PW3 before this Commission. He is having 26 years experience and there is no reason to disbelieve him or to discard Ext.A4. So the damage sustained to the complainant is assessed as Rs.1,77,400/-.
13. We have already found that the accident has occurred due to the negligence of the 3rd opposite party and it is liable to pay the compensation. The 1st opposite party is only a distributor of LPG cylinder of the 3rd opposite party and it is not in any way liable for the unfortunate incident.
14. The case of the complainant is that there is valid insurance coverage for the distributor with the 2nd opposite party and hence compensation has to be paid by the 1st opposite party who is entitled to be indemnified by the insurer. As long as it is not proved that the distributor is responsible for the incident, the complainant is not entitled to claim compensation from them and the insurer is not liable to indemnify the distributor. It may be noted that even if it is presumed that the distributor is responsible for the accident, the insurer is not liable to indemnify the 1st opposite party as per the terms and conditions of Ext.B1 policy. Going by Ext.B1 it is seen that the policy issued to the distributor does not cover the risk in the hands of the consumer. The public liability clause in Ext.B1 reads as follows:
“VII PUBLIC LIABILITY : The company will indemnify the insured (or in the event of death of the insured his legal representative ) against all sums which the insured shall become legally liable to pay in the event of
- Accidental bodily injury to any person (not being
either a member of the insured’s family or a person
engaged in an upon the service of the insured at
the time of occurance giving rise to such injury
nor a person claiming against theinsured under
- Accidental damage to property ( not being the
property of or belonging to or in the custody or
under the control of the insured or any person
in the services of the insured or upon which
the insured or any such person is or has been
such work) happening during the period of
Insurance specified in the schedule in connection
with the Trade /Business as described in the schedule.
- At any insured’s premises specified in the schedule
ii) At any registered address of the customers only whilst being installed by the insured under his
employees
iii) Whilst the gas cylinders are being carried by the
insured and / or his employees. The maximum
amount payable by the company as compensation
including litigation expenses in respect of any one
claim or series of claims arising from one accident
event and for all accidents events during any one
period of insurance shall not exceed Rs.10,00,000/-
(Rupees Ten Lakh only)”.
So the policy covers accidental damage to property at the registered address of the customers only while being installed by the insured under his employees. In this case, the accidental damage to the house of the consumer did not happen whilst being installed by the insured under his employees. So the insurer is not liable to indemnify the 1st opposite party, even if it is taken that it was the 1st opposite party who is responsible for the accident. The complainant is not entitled to claim any amount from the insurance company on the strength of Ext.B1 policy issued to the distributor. The 1st and 2nd opposite parties are only to be exonerated.
15. As already stated, the 3rd opposite party is liable for the accidental damage to the house of the complainant. Hence the compensation of Rs.1,77,400/- is to be paid by the 3rd opposite party. The complainant is also entitled to get Rs.5,000/- as cost of proceedings .
16. Point No.3:
In the light of the findings on the above points, the complaint is disposed of as follows:
- CC 130/2013 is allowed in part.
- The suppl. 3rd opposite party is directed to pay an amount of Rs.1,77,400/- ( Rupees One Lakh seventy seven thousand and four hundred only) as compensation to the complainant with interest at the rate of 6% per annum from the date of complaint i.e, 23/03/2013 till realisation.
- The Suppl. 3rd opposite party is directed to pay a sum of Rs.5,000/- (Rupees five thousand only) as cost of proceedings to the complainant.
- The payment as aforestated shall be made within 30 days from the date of receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by her and corrected by me and pronounced in the open Commission on this the 16th day December 2021.
Date of Filing: 23/03/2013. Sd/-
PRESIDENT
Sd/-
MEMBER
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MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Indane Customer Transfer subscription Voucher
Ext.A2 - Report of Station Officer, Fire and Rescue Station
Ext.A3 - Copy certificate issued by Police
Ext.A4 - Copy of Estimate
Ext. A5 - Copy of Notice issued by Babu Chettiarath
Ext.A6 - Copy of Lawyer Notice
Ext.A7 - Copy of Postal Receipt
Ext.A8 - Copy of postal receipt
Ext.A9 – Copy of Acknowledgement card
Ext.A10 – Copy of Acknowledgement card
Ext.A11 – Building Tax receipt
Exhibits for the Opposite Parties
Ext. B1 - . LPG Dealers Package Policy
Witnesses for the Complainant
PW1 - Elambilassery Majeed - Complainant
PW2 - Jafer Sadik
PW3 – Abdul Basheer
Commission Exhibits
Sd/-
PRESIDENT
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MEMBER
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MEMBER
Forwarded/By Order
Senior Superintendent
