Haryana

Ambala

CC/402/2016

Smt. Kusum Lata - Complainant(s)

Versus

M/s Rashtriya Gas Sewa - Opp.Party(s)

Sandeep Kashyap

24 Apr 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA

 

Consumer Complaint No.: 402 of 2016

Date of Institution: 28.10.2016

Date of Decision: 24.04.2018

 

1. Smt. Kusum Lata, aged 43 years, w/o Late Shri Naresh Kumar, S/o Shri Ram Rattan;
2. Rimpy, aged 23 years, D/o Shri Naresh Kumar;
3. Subham Kumar, aged 21 years, S/o Shri Naresh Kumar;
4. Vishal, aged 19 years, S/o Shri Naresh kumar.

• All are the permanent residents of village Bhakhtua, Post Office Kurali, Tehsil Naraingarh, Distt. Ambala.

                                                                                         ...................Complainants

VERSUS

1. M/s Rashtriya Gas Sewa, Opp. Community Hall, Naraingarh, Distt. Ambala, through its Proprietor/Partner;
2. Territory Manager, L.P.G. Bottling Plant, Bharat Petroleum Corporation Limited, Lalru, P.O. Tiwana, Distt. Mohali (Pb.);
3. M/s United India Insurance Company Limited, Divisional Office No. 17, First Floor, 226, Canada Building, Dr. D.N. Road, Fort, Mumbai-400001, through its Divisional Manager.

                                                                                ...................Opposite Parties

 

BEFORE:    SHRI D. N. ARORA, PRESIDENT

        SHRI PUSHPENDER KUMAR, MEMBER

        MS. ANAMIKA GUPTA, MEMBER

 

Present:    Sh. Sandeep Kashyap, Adv. for Complainant.

                    OP No.1 already ex parte.

                    Sh. K.C. Jain, Adv. for OP No.2.

                    Sh. Dev Batra, Adv. for OP No.3.

                                     

ORDER

PER ANAMIKA GUPTA, MEMBER

1.                  Smt. Kusum Lata and others, Complainants have filed this complaint under Section 12 of the Consumer Protection Act, 1986 against M/s Rashtriya Gas Sewa and others/Opposite Parties (hereinafter called the “OPs”). The case of the complainants is that late Shri Naresh Kumar s/o Shri Ram Rattan is the late husband of Complainant No.1 and father of Complainant Nos.2 to 4. He was having a domestic Double Barrel LPG Gas connection of OP No.2 through OP No.1 since 14.07.2011 under Consumer No.13956 (Annexure C-1).  In early morning of 03.11.2014, he went to the kitchen of his house to prepare tea for himself, but as the running gas cylinder was almost exhausted, the burner was flickering. So he brought in the cylinder lying in reserve for replacing the running cylinder and removed the plastic seal of the said reserved cylinder and found that some rubber like substance was lying in the nozzle of the said cylinder, which led him to remove the same , so as to fix the regulator over the nozzle of the said reserved cylinder, but as soon as the said rubber like substance was removed from the nozzle, the LPG gas started leaking out, which immediately caught fire due to its close proximity with the burner of the hot plate which was still flickering. The fire broke out and his clothes also caught fire as a result of which he suffered serious burn injuries and was immediately taken to the Civil Hospital, Naraingarh and subsequently referred to Government Medical College and Hospital Sector-32 Chandigarh where he succumbed to his burn injuries on 08.11.2014 (Annexure C-3). His post-mortem report and a DDR recorded in this regard have been annexed as Annexure C-4 and C-5 respectively. The complainants further aver that the said cylinder bearing number 1170 was manufactured by OP No.2 and supplied by OP No.1 to the complainants on 24.10.2014 (Annexure C-1). It is further averred that after the aforesaid unfortunate incident, OP No.1 visited the place of occurrence and assured that the matter for compensation is under consideration. Appreciating no progress in the claim process, Complainant No.1 wrote her grievances via letter dated 18.02.2015 (Annexure C-6) to the Hon’ble Minister of State- Petroleum & Natural Gas Commission, Government of India which was duly acknowledged vide letter dated 26.02.2015 (Annexure C-7). Annexure C-6 was also addressed to OP No.2 in reply of which OP No.2 informed that necessary formalities for insurance claim have been completed from their end and is in under process with OP No.3 (Annexure C-8). Thereafter, finding no progress in the process despite such assurance and felt aggrieved after such tragic incident, Complainants preferred to file this complaint before us. It is further mentioned in the complaint that the deceased was a hale and hearty man and was aged about 44 years at the time of his death (Annexure C-9). The deceased was employed as a driver at Naraingarh Sugar Mills Limited, PO: Shahzadpur, Tehsil Naraingarh, District Ambala from 01.04.2004 onwards at monthly emoluments @Rs.9000/- (Annexure C-10). 
2.                In its reply, OP No.2 has denied the averments raised by the complainant. OP No.2 denied its liability on the ground that there was an agreement executed between it and OP No.1, which was to act as Principal not an agent. On behalf of OP No.2, it was strenuously urged that it was not liable to pay the compensation awarded. If at all, the compensation was to be paid, it was the liability of OP No.1 because as per Distribution Agreement dated 01.08.2001 (Annexure R-1) OP No.1 was to act as Principal and not an Agent of OP No.2 (hereinafter referred to as “Issue No.1”). Further, it is averred that the deceased was replacing cylinders while a cow dung chulha was burning in the same confined space and that it was the deceased’s negligence in replacing cylinders in the presence of an active fire that caused the accident, being completely contrary to safety precautions and common sense (hereinafter referred to as “Issue No.2”). Further, OP No.2 denies the fact of any manufacturing defect in the cylinder which according to OP No.2 after refilling goes through multiple checks and safety systems before being passed on to the distributors for delivery to the customers with pre-delivery inspection (hereinafter referred to as “Issue No.3”).
3.                In its reply, OP No.3 has raised several objections against the complaint. It is stated that there was no privity of contract between OP No.3 and the deceased (hereinafter referred to as “Issue No.4”). Also, with regard to maintainability of the present complaint before this Forum, it is submitted by OP No.3 that when interest portion is added, the relief claimed as on the date of filing complaint comes out to be on the higher side of pecuniary jurisdiction of this Forum (hereinafter referred to as “Issue No.5”). It is further averred that the perfect cylinder was supplied to the deceased customer and the same remained in the perfect condition till the rubber found lying in the cylinder was removed by the deceased which resulted into gas leakage; and that the burning of other fire product i.e. chulha in the kitchen aggravated the fire, and thus it was solely the negligence on the part of the deceased (hereinafter referred to as “Issue No.6”). It is further alleged that the registered address of the deceased customer and the place of accident are different and resultantly, no liability could be fastened against OP No.3 in terms of Public Liability Policy: 021700/46/13/37/00000041 (w.e.f. 02.05.2014 to 01.05.2015) (Annexure R-2) (hereinafter referred to as “Issue No.7”).
4.                The Complainant has placed on record an affidavit sworn in by Shri Jaswinder Singh, Sarpanch of village Bakhtua, P.O. Kurali, Tehsil Naraingarh, District Ambala wherein he deposed that the deceased was having a LPG gas connection in his own name and that in the morning on 03.11.2014 the deceased and his clothes accidently caught fire due to leakage of LPG from the gas cylinder and was taken to Civil Hospital, Naraingarh and thereafter referred to Chandigarh where he died due o burn injuries on 08.11.2014 (Annexure C-12 and 13). 
5.                We have heard ld. Counsels for Complainant and OPs and have also perused the case file as well as written statement filed by OPs.
6.                We will be deciding Issue-wise. As regard Issue No.1 is concerned, it is an undisputed matter of fact that the gas cylinder bursted while being replaced resulting into death of Shri Naresh Kumar besides damage to the house. The blast was due to nothing but as a result of manufacturing defect in the gas cylinder. The manufacturer was nobody else but OP No.2. So, on the Distribution agreement referred to above, OP No.1 cannot be allowed to escape from its liability to compensate the consumer. As regard Issue No.2 is concerned, though the deceased replaced cylinders while a cow dung chulha was burning in the same confined space and that there he showed little carelessness, but it is hard for any ordinary person to reasonably anticipate such untoward incident. At the most, it could reduce the amount of compensation on account of contributory negligence of the deceased. Moreover, the fact that the rubber like substance essential for maintaining gas leakage was already out in the cylinder which subsequently became the reason for such incident; would not absolve the liability of the manufacturer for such defect in the cylinder. As regards Issue No.3 is concerned, it is alleged that all cylinders issued to the consumer are checked thoroughly before delivery. It is not said about the specific gas cylinder. Nothing has been said about this particular gas cylinder. As such, this contention does not hold water. As regards Issue No.4 is concerned, it is said that in case liability rested on OP No.2, then OP No.3 would also have to pay off the liability, subject to certain conditions, for being the insurer of OP No.2. Coming to Issue No.5, reference is invited towards the Three Judges Bench decision of the Hon’ble National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC) wherein it was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. Since the relief claimed is for Rs.19,25,000/- (Rs.15,00,000 + Rs.4,00,000 + Rs.25,000), the present complaint is very well within the pecuniary jurisdiction of this Forum. As such Issue No.5 regarding the maintainability of complaint before this Forum fails. As regards Issue No.6 is concerned, what has to be seen is that what a reasonable person ordinary would do under such circumstances. Since the rubber like substance was already protruding in the gas nozzle, an ordinary person (having no prior knowledge about it) would remove the obstruction. And that is what the deceased did in the present case. Though it can be said that there he showed little carelessness, but it is hard for any ordinary person to reasonably anticipate such untoward incident. At the most, it could reduce the amount of compensation on account of contributory negligence of the deceased. Moreover, the fact that the rubber like substance essential for maintaining gas leakage was already out in the cylinder since its manufacture which subsequently became the reason for such incident; would not absolve the liability of the manufacturer for such defect in the cylinder. As regards Issue No.7 is concerned, it is apparent that the registered address of the deceased customer is “Naresh Kumar, S/o Ram Rattan, Sugar Mills Campus, Naraingarh, Haryana” whereas the place of accident is “Naresh Kumar, S/o Ram Rattan, Village Bakhtua, P.O. Kurali, Tehsil Naraingarh, District Ambala”. As per Schedule to the Public Liability Policy: 021700/46/13/37/00000041 (w.e.f. 02.05.2014 to 01.05.2015), liability of OP No.3 to indemnify the insured (here OP No.2) towards damage/injury caused to third party has arisen only when the incident occurred at the customer’s registered address. As such, in the present case, the insurance policy taken by OP No.2 is of no help and OP No.2 would have to bear the liability, if any, on its own.
7.                Firstly, we would be like to adjudicate upon the liability of OP No.3. As clarified in preceding para, in terms of Public Liability Insurance (Non-Industrial Risk) Policy taken by the insured, the Insurance Company agrees to indemnify the loss suffered by a third party, only when the accident was caused at the premises of Registered Dealer Gas Agency (in the instant case, OP No.1) or at the registered address of the customer only. Since, in the instant case, the fire incident had not occurred at the registered address of the customer, no liability would be fastened against OP No.3.
8.                Secondly, we would be like to adjudicate upon the liability of OP No.1. As far as the liability of the OP No.1 is concerned, the complaint contains no allegations of negligence against it regarding the alleged accident. It is the responsibility of the agent of OP No.1 to properly check and insure that the cylinder being supplied is from any defect, before delivery. In the instant case, the patent defect in the cylinder i.e. the protruding of the rubber seal in the gas nozzle of the cylinder could very well be identified by the delivery agent of OP No.1 at the time of delivering/supplying the cylinder to the deceased customer and thus it can aptly be said that he has not discharged his responsibility properly. As such OP No.1 is vicariously liable for the act of his delivery agent for deficiency in providing services. .
9.                Lastly, we would be like to ponder upon the liability of OP No.2.  For the reasons aforesaid, it is unhesitatingly held that the accident took place due to the manufacturing defect of the gas cylinder for which OP No.2, who was the manufacturer is liable to pay the compensation. From the facts stated above, it is apparent that no inference other than that of ‘negligence’ or ‘supply of defective cylinder’ on the part of OP No.1 can be drawn.
10.                The unfortunate demise of the deceased has caused irreparable loss to the complainants and certainly the same cannot be compensated with the relief granted in monetary terms by this Forum.
11.                The annual income of the deceased is Rs.108000/- (Rs.9000 x 12). In terms of National Insurance Company Limited vs. Pranay Sethi and Ors. [2017 (13) SCALE 12], an addition of 30% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was between the age of 40 and 50 years, should be made.  Therefore, the annual income of the deceased for compensation claim purpose is hereby calculated as Rs.140400/-. In terms of Sarla Verma and others  vs. Delhi Transport Corporation and another [(2009) 6 SCC 121] we are of the view that the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) since the number of dependent family members were three. After such deduction, the contribution to the family (dependants) is determined as Rs.93600/- per annum. The multiplier will be 14 having regard to the age of the deceased at the time of death (44 years). Therefore the total loss of dependency would be Rs.93600 x 14 = Rs.13,10,400/-. Further, in terms of National Insurance Company Limited vs. Pranay Sethi and Ors. [2017 (13) SCALE 12], compensation for loss of estate, loss of consortium and funeral expenses would be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. Also, the fact that the deceased was taken to Civil Hospital Naraingarh and subsequently to GMCH Sector-32 Chandigarh and was given treatment therein is not disputed. Moreover, in the absence of details of exact transportation and medical expenses, some guess work is required. In this context, Rs.5000/- seems to be reasonable amount towards transportation and medical expenses. Since, no proof is tendered for damage to the house, no damages in this regard is justified to be granted.
12.                For the reasons stated above, the complaint is hereby allowed as against OP Nos.1 and 2 with costs and as such, the OP Nos.1 & 2 are hereby jointly and severally directed to comply with the following direction within a period of 30 days from the date of receipt of copy of this order:-

1. To make compensation of Rs.13,85,400/- [Rs.1310400/- + Rs.15000/- + Rs.40000/- + Rs.15000/- + Rs.5000/-] to the Complainant, along with interest @ 9% per annum from the date of filing of this complaint i.e. 28.10.2016 till realization. If the OPs failed to pay the above said amount within stipulated period then they will pay the interest @ 12% per annum; and
2. To pay a sum of Rs.15,000/- towards harassment and mental agony faced by Complainants in getting the compensation claim; and
3. To pay a sum of Rs.10,000/- towards litigation expenses.

 

Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to the record room.

Announced on: 24.04.2018

          Sd/-                                              Sd/-                                                             Sd/-

PUSHPENDER KUMAR                ANAMIKA GUPTA                            D.N. ARORA

MEMBER                                           MEMBER                                                    PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.

                                   Sd/-

ANAMIKA GUPTA

         MEMBER