Orissa

Cuttak

CC/31/2020

Aditya Kar - Complainant(s)

Versus

M/s Omm Bauti Bharat Gas Gramin Vitarak - Opp.Party(s)

K Panigrahi & associates

07 Jan 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.31/2020

 

Aditya Kar,

 S/O: Babuli Kar.

 Village-Pashania(Chandipur),

P.O:Pathuripada,P.S:Banki,Dist:Cuttack.                                 ... Complainant.

 

                                                             Vrs.

1.  Proprietor of M/s. OmmBauti Bharat Gas Gramin Vitarak,

Ramesh Chandra Rout,At/PO:Kumusar,

Nuagaon,Code-192199,Via:Banki, Dist:Cuttack.

(Distributor of B.P.C.L LPG), PIN-754008.

 

            2.       The State Head,Bharat Petroleum Corporation Limited,

                  ​2nd floor,Alok Bharati Tower,Saheed Nagar,Bhubaneswar

            3.   Khurda LPG Territory Office,Territory Manager,

           LPG Bharat Petroleum Corporation Limited,LPG

           Bottling Plant and Territory Office,33 Industrial Estate,

           P.O: P.N.Colelge,Khruda-752057.

 

4.     IIC Lombard General Insurance Co. Ltd.,

           Kailash Plaza,LinkRoad,Cuttack.

 

5.    The Oriental Insurance, City Branch Office,1 A

                           Station   Square,Bhubaneswar,PIN-751001.                                  … Opp. Parties.

 

 

Present:    Sri Debasish Nayak,President.

                    Sri SibanandaMohanty,Member.

 

   Date of filing:     11.12.2018

Date of Order:    07.01.2023

 

For the complainant:           Mr. K.Panigrahi,Adv. & Associates.

For the O.P no.1:                   Mr. R.C.Rout,Adv& Associates.

For the O.Ps no.2 & 3:          Mr. D.P.Pradhan,Adv. & Associates.

For the O.P no.4:               Mr.R.Pati,Adv. & Associates.

For the O.P no.5 :              Mr. S.Roy,Adv. & Associates.

 

 

Sri Debasish Nayak,President.                                     

          The case of the complainant as made out in the complaint petition bereft unnecessary details in short is that at about 10.30 p.m in the night of 16.3.18 the mother of complainant namely Saraswati Kar sustained burn injuries while she was cooking food in her gas stovewith BPCL LPG cylinder.  They were using LPG cylinder with consumer no.73500555.  It is alleged by the complainant that while cooking there was leakage of gas below the gas stove from the pipe connecting the LPG stove to the gas cylinder as a result of which heavy fire broke out and for the said reason the complainant alongwith his mother Saraswati Kar and father Babuli Kar had caught fire on their respective persons and were burnt.  Hearing to the scream of his mother Saraswati, the complainant & his father had rushed to the spot and had tried to rescue Saraswati Kar by disconnecting the gas supply from the gas cylinder by turning the regulator to “off” position and by dousing the fire.  While doing so, complainant & his father had also sustained burn injuries on their persons and were treated initially at S.D.Hospital, Banki but due to the seriousness of their injuries they were also shifted to SCB Medical College and Hospital, Cuttack  for treatment alongwith injured Saraswati Kar.  Complainant & his father had remained under treatment at SCB Medical College and Hospital, Cuttack   as indoor patients from 17.3.18 and were discharged on 31.3.18.  As per request of the IIC,Mangalabag,  the IIC,Bankihad enquired into the cause of death of Saraswati Kar and had reported to the IIC,Mangalabag P.S that in the night of 16.3.18 while cooking  in her kitchen Saraswati Kar had sustained burn injuries on her person due to accidental fire incident.  She was shifted to the S.D.Hospital,Banki that night and on 17.3.18 morning she was shifted to SCB Medical College and Hospital,Cuttack for treatment.

          After being discharged from the hospital when complainant & his father had returned to their house, the Regional Manager of O.P no.2 had visited their residence and had assured them for settling the compensation.  The complainant and his father had made representationstogether with the relevant documents claiming for compensation to the O.P no.2 on 22.5.18 and to the O.P no.1 on 23.5.18.  The father of complainant later had sent reminders to the O.P no.2 on 13.1.20 in this context but when no compensation was granted by the O.Ps, the complainant had approached this Commission seeking compensation to the tune of Rs.3,00,000/- for the injuries sustained by him on his person with interest thereon @ 12% per annum from the date of the fire accident and have further claimed from the O.Ps cost to the tune of Rs.5,000/-.

          In order to prove their case, the complainant has filed copies of several documents alongwith his complaint petition together with copies of various newspaper clippings specifying the death of his mother Saraswati Kar.

2.       Out of the five O.Ps as arrayed in this case, though all the O.Ps have contested this case, O.Ps no.1,4 & 5 have filed their respective written versions separately and O.Ps no.2 & 3 have filed their written version conjointly.

          From the written version of O.P no.1, it is noticed that according to him, the case of the complainant is not maintainable.  He has disputed the death of Saraswati Kar due to leakage gas from the LPG stove and fire thereof.  He had gone to the house of the complainant but had not found any burnt articles of gas stove, regulator or connecting pipe there.  He had immediately intimated the matter to O.P no.2 and the Sales Manager of O.P. no.2 had also visited the spot for enquiring about the incident.  O.P. no.1 has also urged that the investigation into the case as made by the IIC,Banki P.S  is perfunctory since because it does not disclose anything about any gas tragedy there.  O.P no.1 disbelieves the cause of death of Saraswati Kar was due to gas tragedy and that complainant & his father, Babuli Kar to have sustained grievous injuries on their persons due to such gas tragedy.  He has specified that O.P no.2 though had visited the spot personally on the next day of incident, he could not detect any such burnt materials at the spot.  O.P no.1 has also specified in his written version that as per the terms and conditions of BPCL he had insured covering all the risks including third party risk to person and properties through Oriental Insurance Company vide policy no.345304/48/2018/2281 which was effective from 26.1.18 to the midnight of 25.1.19.  Thus, in toto it is the prayer of O.P no.1 through his written version to dismiss the complaint petition with cost as filed by the complainant.

          From the written version of O.Ps no.2 & 3 it is noticed that one Rajarshi Mukherjee, the Territory Manager has filed the written version.  According to him, the father of the complainant through their letter dt.13.1.20 had intimated about the alleged incident which was received by O.P no.2 on 17.1.20.  Thus, O.Ps no.2 & 3 through their written version have alleged that after 20 months of the alleged incident the matter was brought to their notice. After getting the said letter, the same was forwarded by O.P no.2 to O.P no.3 for necessary action and the father of the complainant was intimated to get in touch with O.P no.3 vide their letter dt.3.2.20.  O.Ps no.2 & 3 have further alleged that though the matter was investigated into, there was no seizure of any material, no notice of any burnt mark on the gas cylinder or pipe.  They have urged that O.P no.1 had visited the spot where he found the gas cylinder was intact without any burnt mark.  Thus, it is the contention of O.Ps no.2 & 3 through their written version that the alleged occurrence was never due to leakage of gas, it cannot be a gas tragedy and accordingly they had prayed to dismiss the complaint petition with cost. 

          They have filed together with their written version the letter addressed to the father of complainant dt.3.2.20 instructing him to get in touch with their Khurda office which is the LPG territorial jurisdiction of the complainant’s family.  They have also filed copy of agreement in between the BPCL and thefather of the complainant.

          As per the written version of the  O.P no.4, the case of the complainant is not maintainable which is liable to be dismissed with cost.  The O.P no.4 has alleged in his written version that though the occurrence had taken place on 16.3.18 the complaint was lodged after two years which is hit by Sec-24A of C.P.Act,1986 and U/S-69(1) of C.P.Act,2019.  O.P no.4 has further alleged about the non-joinder of necessary party and about the condition in the policy to report to the insurance company immediately on the happening of the incident.  O.P no.4 has drawn attention towards the autopsy report of the deceased Saraswati Kar wherein it is mentioned that there was no odour of any inflammable substance detected from the body of the deceased and it is for this, O.P no.4 has urged through his written version that the fire accident was not due to LPG gas leakage.  That apart, O.P no.4 has urged about absence of any fire-brigade report, seizure of any LPG gas materials and other materials so as to prove about the death of Saraswati Kar was due to the leakage of gas.  According to O.P no.4, in order to extract money from the insurance company, the complainant with a malafide intention had implanted the story of leakage of LPG gas here in this case.  Thus, it is prayed by O.P no.4 through his written version to dismiss the complaint petition with exemplary costs.

          The O.P no.4 has also filed copies of several documents including copies of their policy terms and conditions.

          As per the written version of O.P no.5 also the case is not maintainable which is liable to be dismissed with cost.  The complaint petition is barred by law of limitation. The  O.P no.5 through his written version has also reiterated the contentions of the other O.Ps that there is no material to reveal here in this case about the leakage of gas from the gas cylinder thereby causing burn injuries on the personsof the complainant & his parents.  Thus, the O.P no.5 has also urged through his written version to dismiss the complaint petition with cost.

          He has also filed copies of certain documents to prove his stand.   

3.       Keeping in mind the averments as made by the complainant in his complaint petition together with all the contentions of the written versions as filed by the O.Ps to this case, this Commission thinks it proper to settle the following issues in order to arrive at a just and proper conclusion here in this case.

 

          i.          Whether the case of the complainant is maintainable?

          ii.         Whether the complaint petition is barred by limitation ?

iii.        Whether the O.Ps were deficient in their service and if they had practised any unfair trade ?

iv.        Whether the complainant is entitled to the reliefs as claimed?

Issue No.ii.

Out of the four issues as arrayed in this case, issue no.ii be taken up first for consideration here in this case.

In order to further his case, the complainant has filed his evidence affidavit.  The same when perused, it is noticed that the sameonly reiteration basically about the averments of the complaint petition.

O.Ps no.2 & 3 have also filed evidence affidavit through one Girish Debidas Sonawane who happens to be the Territory Manager of Khurda LPG territory office.  When the said evidence affidavit is perused, it is noticed that it is of course a gist of the written version as submitted by the O.Ps no.2 & 3 earlier and nothing else.

          O.P no.4 has also filed evidence affidavit through one Suresh Dash working as Sr. Manager(Legal) in their Company who has also reiterated the averments of the written version of O.P no.4.

          O.P no.5 has also filed evidence affidavit through one Anmol Kishore Bhanja working as Sr. Divisional Manager in their Company and he also has reiterated the averments of the written version of O.P no.5 only.

It is the contention of O.P no.4 through his written version at para-2 that the complaint petition being filed two years after the occurrence is hit under the provisions of the C.P.Act.  But while perusing the case record it is noticed that admittedly occurrence took place on 16.3.18 and as per the order-sheet of this case, the same was filed before this Commission on 3.3.20.  Thus, it is well within the statutory period and limitation of two years and the contention raised in this regard by O.P no.4 appears to be vague.  This issue is answered accordingly.

Issue no.iii.

          Now coming to the issue no.iii which is the pertinent issue, while probing into all the facts and materials as available in the case record, this Commission finds that admittedly while trying to rescue Saraswati Kar,the  complainant & his father Babuli Kar had sustained burn injuries on their persons and this fact also is not disputed by the O.Ps.  Their main contention is that the burn injuries on the persons of Babuli Kar and Aditya Kar were not due to leakage of gas from the gas cylinder/stove while Saraswati Kar was engaged in cooking at her kitchen on 16.3.18 night but the cause of fire was something else.  In this contention O.P no.1 through his written version has stated that he had visited the spot and had intimated O.P no.2 to that effect.  But the said contention of O.P no.1 finds no corroboration from that of O.P no.2 when the written version of O.P no.2 is perused.  O.P no.1 has also mentioned in his written version  at para-4 that O.P no.2 had visited the spot and had enquired about the incident in presence of the complainant and others but this contention of O.P no.1 also gains no corroboration from that of O.Ps no.2 & 3 as it is noticed while perusing the written version of the O.Ps no.2 & 3.  Rather, it is the contention of both of them that they only knew about the incident after receiving the letter from the father of the complainant on 17.1.20.  O.Ps no.2 & 3 have mentioned at para-7 of their written version that O.P no.1 had told  them to have visited the spot and had noticed the gas cylinder to be intact without having any burn-mark.  But quite strangely, the said contention as made by O.Ps no.2 & 3 in their written version at para-7 is not at all stated by O.P no.1 that he had ventilated about such fact to the O.Ps no.2 & 3.  The contention of O.P no.4 in his written version at page no.8 that they should have been intimated by the insured immediately after happening of the incident but as per the pertinent decision of Hon’ble Supreme Court, in the case of Jaina Construction Company Vrs. The Oriental Insurance Company Ltd and another as reported in 2022 Live Law(SC) 154 wherein their lordships Hon’ble Shri Justice Sanjiv Khanna & Hon’ble Ms. Justice Bela M Trivedi have held that the Insurance Company cannot repudiate the claim merely on the ground that there was delay in intimating the Insurance Company about the occurrence.  Thus, this contention of O.P no.4 also does not hold good here in this case.  As per the medical report, it reveals that the complainant and his father Babuli Kar had sustained thermal injuries.  The LPG gas would certainly leave odour as raised by O.P no.4 lacks cogent evidence in that regard.  While going through the documents as available in this case, it is noticed that Babuli Kar, the father of the complainant happens to be a labourer and at the spur of the moment he accompanied by his son Aditya the complainant of this case,  had tried their best to rescue Saraswati Kar who was being set ablaze due to the fire accident and he alongwith his father Babuli Kar had also sustained burn injuries on their persons while rescuing Saraswati Kar.  Being a labourer the father of the complainant hadundoubtedly has scanty knowledge so as to give a call to the fire-brigade immediately after the occurrence in order to extinguish the fire and rather, they were busy in carrying Saraswati Kar to the S.D.Hospital,Banki for treatment.  The IIC,Banki after conducting inquiry has submitted his report to the IIC,Mangalabag P.S wherein he has mentioned about the fire accident causing burn injuries on the persons of SaraswatiKar, Babuli Kar and Aditya Kar.  He has not mentioned about the cause of catching fire in his report.  But such latches on the part of the IIC,Banki P.S will never give a departure to the liabilities of the O.Ps here in this case.  It is because, the O.Ps do not dispute about the use of LPG Cylinder at the residence of the complainant.  They also do not dispute that in the night of 16.3.18 Saraswati Kar was engaged in cooking at her kitchen by using LPG stove and gas cylinder.  Now the question is whether there was fire due to electric short-circuit, kerosene lamps, candles, match-stick or by any explosive or highly inflammable substance etc.  Thermal heat can be produced from substances like petrol, kerosene which are highly inflammable or even by explosives and also by LPG gas.  The O.Ps who were so keen and claim to have gone to the spot where they found that the gas cylinder was intact  and there was no burn-mark on the gas regulator, gas pipe and gas stove, but they have not whispered about the presence of any container of highly inflammable explosive substances, like petrol/kerosene etc if noticed by them which might have caused  fire; if it is from any other source other than from gas leakage.  Thus, in absence of such pleas and when it is undisputed by the O.Ps that the deceased Saraswati Kar was engaged in cooking at her kitchen in the night of 16.3.18 by using LPG stove and gas cylinder, inference can undoubtedly be taken that infact there was fire accident due to gas leakage and nothing else resulting in burn injuries on the persons of the complainant and his parents.

All the contentions as raised by the O.Ps appears to be an effort as made by each of them to camouflage the truth but the shilloutte of the truth is well significant here in this case for which this Commission has no hesitation to come to a definite conclusion that infact the burn injuries sustained on the persons of the complainant and his parents in the night of 16.3.18 were due to leakage of gas from the gas stove and gas cylinder only  while Saraswati, the mother of the complainant was cooking and the pre-ponderance of the probabilities here in this case imbibes us to opine that only due to leakage of gas such unprecedented fire accident had occurred.  That apart, the father of the complainant had written about the compensation to O.Ps no.2 & 3 in his petition dt.13.1.20 which was replied by O.P no.2 to him  through letter dt.3.2.20 wherein he was instructed to get in touch with O.P no.3 for settling the claim for compensation since because the territorial jurisdiction of their residence is under O.P no.3.  O.P no.2 has never disputed as regards to the contention of the letter of the father of the complainant dt.13.1.20 that his wife Saraswati Kar had died due to burn injuries as sustained on her person in the night of 16.3.18 due to leakage of LPG cylinder/stove while cooking.  Thus, this Commission finds the O.Ps to be deficient in their service and also to have practised unfair trade as they had malafidely, arbitrarily and unilaterally repudiated the claim of the complainant with ulterior motive in this case.  This issue is thus answered in favour of the complainant.

Issues no.i& iv.

          From the discussions as made above, the case of the complainant as filed is maintainable and he is entitled to the reliefs as claimed by hm.

                                                          ORDER

          The case is decreed on contest against the O.Ps who are found to be jointly and severally liable here in this case.  Thus, the O.Ps are directed to settle the claim of the complainant by paying the complainant a sum of Rs.3,00,000/- alongwith interest thereon @ 12% per annum from the date of claim i.e., from 22.5.2018 till the final payment is made.  They are also directed to pay a sum of Rs.5,000/- - towards the litigation expenses of the complainant within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 07^th  day of January,2023 under the seal and signature of this Commission.    

                                                                                                            Sri Debasish Nayak

                                                                                                                        President

 

                                                                                                            Sri Sibananda Mohanty

                                                                                                                            Member