Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 196/2018

This  case has been filed by the complainant  against the OP No. 1 for passing a decree directing to pay compensation of Rs. 15,00,000/- to the complainant  alongwith interest @ 12%  per annum  and also for passing direction to pay further compensation of Rs. 2,00,000/- for mental harassment , pain and suffering negligence  and wrongful activities  and also for passing direction to the OP No. 1 for payment of Rs. 1,00,000/- as litigation cost.

Fact of this case

The  case of the complainant  which is deciphered  from the petition  of complaint  in bird’s eye view  is that the complainant  is a consumer  of LPG Gas under the OP No.1 and the complainant  has been residing at 97/D, Jenous  Road (1^st  Floor), Liluah Railway Colony  near Kali Mandir , P.O. & P.S. Belur, PIN – 711 204 where fire accident was occurred  due to blast of gas cylinder .  According to the case of the complainant OP No. 1 is a Gas Agency  and carrying  on business  at 237, G.T. Road, Belur, Howrah, PIN 711 202 and the OP No. 1 is a dealer of LPG Gas under OP No. 2.  It is alleged that the gas blast accident has occurred  on 14.10.2017 at  the residence of the complainant.  It is submitted that the complainant  booked the gas on 02.10.2017  and the delivery boy delivered  the gas cylinder  to the complainant on 10.10.2017 at the residence of the complainant and the delivery boy delivered the LPG gas cylinder  without checking  and without showing the weight of the gas cylinder.  It is asserted that on 14.10.2017 while the wife of the complainant  put lighter on the gas stove, suddenly  the said gas cylinder  blasted  with terrible sound  and huge fire  and as a result of which the wife of the complainant, daughter of the complainant and son of the complainant sustained  severe  injury and were admitted to hospital with burn injury.  It is further alleged that after the fire accident Police Officer on 15.10.2017 seized the gas cylinder.  As per case of the complainant  side the wife , minor daughter and minor son were admitted to B.R. Singh Railway Hospital , Kolkata and they were  discharged on 03.11.2017 and due to such fire accident the daughter of the complainant  felt to sick in the final examination of Upper Nursery  and as a result of which her one year of educational carrier  was spoiled.  It is also submitted by the complainant that he filed claim before Respondent No. 2 and also submitted reminder to Respondent No. 1.  It is further alleged that there was negligence and deficiency of service on the part of the OP / Respondent No. 1 and for all these reasons the complainant has instituted this complaint case as prayer of the complaint petition.

Defence Case

On the other hand the OP Nos. 1 & 2 after appearing  in this case contested  this case  by filing W/V  where the OPs denied  each and every  allegations  leveled against them in the petition of complaint.  The specific case of the complainant  in a nutshell  is that the delivery man  of OP No. 1 delivered  the cylinder  at the house of the complainant on 10.10.2017 after  duly showing  weight  and checking  the said cylinder  and the said cylinder  was received by the wife of the complainant  and at the time of delivery the delivery man  also had shown the wife  of the complainant that the  cylinder  cap of the said gas cylinder  was properly sealed  and that the domestic gas has a pungent  smell  which can be detected  from a far distance  and so there was a leakage  the wife of the complainant  could have take steps  and there was a chance of reporting this matter  before the office of the OP No. 1 but it has not been done.  It is alleged that the complainant approached to the OP No. 1 for information relating to any possibility of insurance claim and he was informed about all the procedures of lodging an accident claim before the OP No. 5.  It has been pointed out that OP No. 1 also maintains an insurance with  OP No. 2 which also  covers  3^rd Party claim.  It is alleged that at no point of time the OP No. 1 advised the complainant to file any accident claim before the OP No. 2 and on the insistence of the complainant and pursuant to the complainant letter dtd. 31.12.2017 the Objecting OP No. 1 had written a letter  to OP No. 2 on 4^th January, 2018 wherein  it was requested  from the end of OP No. 1 to take immediate steps for settlement of the claim so that the complainant  could avail insurance claim.  According to the case of the OP No. 1 they have always extended their cooperation and expressed their sincere concern for the said complainant after the said fire accident  and after said fire accident the OP No. 1 reported the accident to OP No. 5 and on receipt of such information  they filed LPG Accident Claim intimation before the  insurer ICICI Lombard .  According to the case of the OP No. 1 there was no negligence  or deficiency of service  on the part of the OP No. 1 and so the OP No. 1 prayed  before this District Commission for dismissing  this case with heavy cost.

The OP No. 2 has adopted the plea in the W/V that this case is not maintainable  and the  complainant has no cause of action for filing this case against OP No. 2 and the Insurance Policy which is  existing  is not covering any accident claim  or 3^rd Party Claim and so the complainant  is not entitled  to get any relief from OP No. 2.  It has also been stated by the OP No. 2 that the complainant has not sought for any claim against OP No.2   and for all these reasons the OP No. 2 has prayed before this District Commission for dismissing this case against  OP No. 2

The OP Nos. 3 & 4  appeared  in this case  and submitted W/V but ultimately  had not taken any steps  on & from  07.11.2022.  As a result of which  this case is running exparte  against OP Nos. 3 & 4.

The Proforma  OP No. 5 even after receiving  the summons  of this District Commission has neither appeared  nor filed any W/V and for that reason this case is running exparte  against OP No. 5.

Points of consideration

On the basis of the pleadings  of the parties  this District Commission for the  purpose of deciding the fate of this case and also for arriving at just and proper decision  of this case is going to adopt the following points of consideration :-

            (i)        Is this case maintainable in its present form and in the eye of law?

(ii)       Has the complainant any cause of action for filing this complaint case against the OPs or not?

            (iii)      Is  the complainant consumer under the OPs  or not?

(iv)      Whether this Court has any jurisdiction to try this case or not?

(v)       Whether the complainant is entitled to get  compensation, litigation cost  which has been  paid in this case against the  OP No. 1 or not?

(vi)      To what other relief / reliefs is the complainant is entitled to get in this case?

Evidence on record

The complainant has submitted evidence on affidavit  in support of  his case and against the said evidence on affidavit the OP Nos. 1 & 2 have filed interrogatories and the complainant has given reply against the said interrogatories.

On the other hand in order to disprove the case of the complainant  the OP Nos. 1 & 2  have submitted evidence on affidavit and against the said evidence on affidavit  the complainant has filed interrogatories  and the OP Nos. 1 & 2  have given reply against the said interrogatories.

Argument  highlighted  by the parties

In course of argument the complainant side and Op Nos. 1 & 2 have filed Brief Notes on Argument and in addition to the said Brief Notes on Argument Ld. Advocates  for the complainant side and OP Nos. 1 & 2  also have highlighted verbal submission.

Decision with reason

All  Points of consideration are clubbed together and taken up for discussion jointly  as because  the issues involved in these points of consideration  are interlinked and / or interconnected with one another.

For the purpose of arriving at  just and proper decision in respect of the above noted points of consideration and also for deciding the fate of this complaint case, this District Commission finds that there is necessity of making scrutiny of the material of this case record and also for scanning the  evidence given by complainant and the representative of OP Nos. 1 & 2 .

After going through the material of this case record  this District Commission finds that the complainant has not sought for or placed  any claim against Op No. 2  and Proforma OP Nos. 3 to 5 .  This mater would be revealed from the prayer portion of the complaint petition.  As there is no claim  of the complainant against Op No. 2 and Proforma OP Nos. 3 to 5 , this District Commission  is of the view that this case can be dismissed against the said Op No. 2 and Proforma OP Nos. 3 to 5.

Now, it is very important to note that the entire  claim of the complaint is against the OP No.1, is the dealer of Proforma OP No. 5.  In this regard, it is very crucial to note that the complainant in support of his claim  has submitted evidence on affidavit which is nothing but the replica of the petition  of complaint but in this regard it is very surprising  to note  that there is no corroborative evidence in support of the claim of the complainant .  Moreover, the complainant in order to prove  the liability  of OP No. 1 and  so that there was leakage  in the gas cylinder  supplied by OP No. 1 there is no prayer for expert examination .  Without getting expert opinion  it is very impossible  to determine  that there was negligence on the part of the  OP No. 1  and the gas cylinder   which was supplied  by OP No. 1 was defective  in nature .  In this connection , it is very mention worthy that the complainant  has also no prayed for Local Inspection Commission  that to prove  the said issue.  Moreover,  in this case the complainant side  has impleaded Belur Fire Brigade  as a party in this case.  But surprisingly  in course of trial  the complainant side has neither examined any officer  of the Belur Fire Brigade  nor sought for any report from the Belur Fire Brigade Proforma Op No. 4 .  Similarly,  it is also vital to note that  the Investigating Officer, Belur Police Station  who has been impleaded Proforma OP No. 3 has not been  cited as a evidence in this case.  Complainant has also not called for any officer of Belur Police Station  to adduce  evidence  in support of the case of the complainant.

In this regard  this District Commission  after going through the material of this case record finds that the Police Authority  of Belur Police Station seized  the effected gas cylinder from the residence  of the complainant  under proper seizure  list  and the said cylinder was sent to the Administrator, F.S.L., Belgachhia, Kolkata – 700 037, Govt. of W.B. for examination and report.  Over this issue the Administrator, F.S.L., Belgachhia, Kolkata – 700 037, Govt. of W.B.  has submitted report in this case.  On close examination of the said report  it would further be evident  that the said report  has been prepared by Forensic  Expert  Dr. S.C. Sarkar and this expert  has observed that the  nozzle  of the gas cylinder  was properly  fitted  with rubber gasket  and no leakage  could be detected  through  the nozzle  of the cylinder.  This observation of the Forensic Expert  Dr. S.C. Sarkar  has neither  been challenged nor been controverted  by the complainant.  So, the said report  which is submitted by F.S.L. is an admitted document and from the said admitted document  it is revealed that  there is no fault on the part of the OP No. 1 and the gas cylinder  which was supplied by OP No. 1 was not defective.

A cumulative consideration of the above noted discussion goes to show that the complainant has miserably failed to prove his case against all the OPs.  Under this position this District Commission has no other way but to dismiss this case on contest against the OPs.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 196/2018 be and the same is dismissed on contest.  No order is passed as to cost.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission.

Dictated & corrected by me

  President