ADV. RAVI SUSHA, MEMBER.

            Complaint seeking damages to the tune of Rs.8.00,000/- compensation, cost etc.

          The averments in the complaint can be briefly summarized as follows:

          The 1^st complainant is the wife of Late Mr. Thulaseedharan Nair.  The 2^nd and 3^rd complainants are two unmarried daughters are the legal heairs of the late Thulaseedharan Nair.   The husband of the complainant Mr. ThulaseedharanNair was running a hotel at Eambal Junction, Punalur in a rented shop romm in the name and style as Thara Hotel.    1^st opp.party is the Indane Gas distributor in Nellipally Punalur who used to distribute gas cylinders for the purpose of the hotel run by the husband of the 1^st complainant.   2^nd opp.party is Indian Oil Corporation who is manufacturing and filling the gas cylinder for the 1^st opp.party the 3^rd opp.party is the insurance of the 1^st opp.party who is liable to be indemnify the 1^st opp.party is case of a claim agent 1^st opp.party.  On 30.1.2007 at about 7.45 p.m. the Indane gas cylinder issued by 1^st opp.party got leaked and out of the combusting the husband of the 1^st complainant Mr. Thulaseedharan Nair and another worker  Nr. Sudhakaran Pillai sustained severe burn injuries and both of them succumbed to the injuries at Medical College Hospital, Thiruvananthapuram.    Complainant’s husband died on 8.2.2007 due to 85% burn injures.  The incident occurred solely due to the manufacturing defect of the gas cylinder supplied bny the 1^st opp.party and manufactured by the 2^nd opp.party.     By providing unsafe gas cylinder, the 1^st and 2^nd opp.party have committed culpable negligence which amounts to deficiency in service.  Hence the complaint.

          1^st opp.party after receiving notice from the Forum remains absent and was set exparte.  2^nd opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts.   1^st opp.party is the authorized distributor of the 2^nd opp.party.  The husband of the 1^st complainant had availed a gas connection from the 1^st opp.party.   The above connection was used by the complainant’s husband for his business purpose.   The complainant’s husband was running a hotel under the name and style Thara Hotel, Elampal, Punalur. At the tiem of delivery of cylinder, it was defect fee.  On 30.1.2007 at about 7.45 p.m. the Indane Gas Cylinder issued by the 1^st opp.party was caused to be leaked out due to the improper and careless usage of the cylinder by some worker of the complainant by leaving open the regulator for a long time.    It is admitted that two persons got injured due to the fire from the cylinder and the husband of the 1^st complainant died on 8.2.2007.    On getting information about the incident, the representative of the Indian Oil Corporation visited the spot and made an enquiry and prepared a LPG Accident Report.  On enquiry it was reliably learnt that the accident had happened due to the improper and careless usage of the cylinder by the worker of the 1^st complainant’s husband  The 2^nd opp.party’s insurer, M/s. Bajaj Alliance General Insurance Company has handed over compensation of Rs.1,00,000/- ie. M/s. National Insurance Co. whichwas taken by M/s Ganga Prasad Gas Agency.   Even if it is found that the complainant is entitled to get any more amount as compensation.  There is no negligence or deficiency in service on the part of the 2^nd opp.party.  Hence the 2^nd opp.party prays to dismiss the complaint.

          The 3^rd opp.party filed version contending that  the complainant in this case are the wife and children of the deceased Mr. Thulaseedharan Nair, who was a customer of the insured 1^st opp.party in this case.   The personal accident risk of a customer of the insured 1^st opp.party is covered only within the purview of Sec. VIII of the policy condition attached with the policy to a maximum sum insured of Rs.15,000/- per person alone in case such a coverage has been obtained by the insured in the insurance policy taken by him.   The 1^st opp.party insured has not remitted any premium seeking coverage under Sec. VIII of the policy condition and no coverage has been granted by this opp.party covering the risk of the customers of the 1^st opp.party under the policy issued in this case.    It is evidence from the policy itself, that no premium has been collected by this opp.party under Sec. VIII of the policy and no coverage has been granted by this opp.party under section VIII of the policy issued in this case.     The complainants in this case are the legal heirs of the deceased customer of the 1^st opp.party, whose risk is squarely falls under Section VIII of the policy condition.     In the absence of any such coverage under section VIII of the policy, this opp.party is not having any contractual obligation to indemnify the 1^st opp.party in this case or to compensate the complainants case.     The 3^rd  opp.party is not at all a necessary party.  There is no deficiency in service on the part of the opp.party.  Hence the 3^rd opp.party prays to dismiss with compensatory cost.

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties

2.     Reliefs and costs.

For the complainant  PW.1 and 2 are examined.   Ext.P1 to P9 are marked.

For the opp.party DW.1 is examined.  Ext. D1 and D2 are marked.

POINTS:

          There is no dispute regarding the incident.   Complainant’s case is that on 30.1.2007 at about 7.45 p.m. the Indane gas cylinder issued by 1^st opp.party got leaked and out of the combusting the husband of the 1^st complainant Mr. Thulseedharan Nair and another worker sustained severe burn injuies and both of them succumbed to the injuries at Medical College Hospital, Thiruvananthapuram.  Hence filed this complaint for getting compensation and cost.  Opp.party 1 is exparte.  2^nd opp.party has stated that the accident was happened due to the improper and careless usage of the cylinder by the worker of the 1^st complainant’s husband.   They supply cylinder to the distributors after subjecting them at stringent quality checks at the bottling plans.  2^nd opp.party’s insurer M/sBajaj Alliance General Insurance Company has handed as compensation of Rs.1,00,000/- to the 1^st complainant as the full and final settlement of all the claims and there is no negligence or deficiency in service on their side.

          DW.1 in cross examination at page NO.2 has admitted that the cylinder involved in the accident was supplied by them.   Ext.P5 fire report, Ext.P6 and Ext. D2 document shows that the cylinder involved in the accident was found leaking and was supplied by the 1^st opp.party  From Ext. D2 document it is seen that the cylinder involved in the accident was last tested on June 1999 and next text date was on  13/06.   The accident occurred on 30.1.2007. From this it is revealed that the cylinder supplied to the customer even after the expiry date.   According to 2^nd opp.party the accident occurred solely due to the negligence and carelessness of the husband of the complainant and his worker.  More over prior to delivery they supply gas cylinder to distributors after subjecting them at streingent quality checks at the bottling plants.   There is no deficiency in service or negligence from theirside.   From Exts.P5,P6 and D2 it is evident that the gas cylinder was leaking.  In these circumstances the contention that the incident occurred due to the negligence on the side of the 1^st complainant’s husband is unsustainable.   From the evidence it is obvious that the cylinder must be having leakage if not the accident would not have happened.  Hence the complainants are entitled to get compensation.  According to 3^rd opp.party the insured 1^st opp.party has not opted any coverage under Section VIII of the policy ie. personal accident to any customer as per Ext. D1 policy.  The 1^st opp.party has not paid any premium seeking coverage for personal accident risk to any customer of the 1^st opp.party.   Hence 3^rd opp.party has not given any coverage un der the above section.  Here the 1^st opp.party have obtained coverage for section 1 to VI of the policy alone.   According to 3^rd opp.party the coverage under Section VI is for the Public Liability only.   Here the relationship between the 1^st opp.party and the complainant is that of a service provider and the customer.  The Learned counsel for the 3^rd opp.party argued that the public liability risk given under Sec. VI of the policy is only availed to a stranger public who has no relation of any kind of service with the insured 1^st opp.party.   Sec. VIII of the policy condition specifically states that it relates to personal accident to any customers.   Therefore we are of the view that Sec. VI in Ext. D1  policy does not cover the customers of the opp.party 1 and the customers are covered by Sec. VIII of Ext. D2 policy condition.  It is clear that inExt.D1 the opp.party1 has not  paid premium for coverage under Sec. VIII and therefore 3^rd opp.party cannot be said to be liable to pay damages to the complainant.  Since 1^st opp.party has failed to take necessary policy covering to the customers under Sec.VIII, opp.party 1 is liable to pay the compensation amount to the complainant.  Hence there is no deficiency in service on the part of the opp.party 3 and we find that the deficiency in service is on the part of opp.party 1.

          In the result complaint is allowed, directing the opp.party 1 to pay the complainant a sum of Rs.3 lakhs to the complainant as compensation.  Opp.party 1 is also directed to pay Rs.5,000/- towards cost.   The order is to be complied with within one month from the date of receipt of this order.

            Dated this the 28^th    day of September, 2010.

                                                                                    .

I n d e x

List of witnesses for the complainant

PW.1. – Remadevi

PW.2. – Jacob John

List of documents for the complainant

P1. – Attested copy of FIR

P2. – Bill

P3. – Post Mortem certificate

P4. – Copy of Adv. Notice

P5. – Report of Fire Officer    

P6.- Scientific Expert Report

P7. – Post Mortem certificate dt. 8.2.2007

P8. – Death Certificate

P9. – Receipt

List of witnesses for the opp.party

DW.1. – B.S. Pillai

List of documents for the opp.party

D1. – Policy with condition

D2. – Report.