KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NOs, 224,225,226,255,256 & 257/10
JUDGMENT DATED 31.03.2011
PRESENT:-
SMT. VALSALA SARANGADHARAN : MEMBER
SHRI. S. CHANDRA MOHAN NAIR : MEMBER
Appeal No.224/2010
APPELLANT
The Proprietor
St. George Gas Agency
XVII/276, Andamukkam,
Thamarakulam, Kollam
( Rep. by Adv. Sri. Narayan R & others)
Vs.
RESPONDENTS
1. S.Prabhakaran,
Ananda,
Kulangarabhagom
Chavara, Kollam.
( Rep. by Adv. Smt. S. Laila)
2. The Manager,
Marketing Division
Indian Oil Corporation,
Southern Region, Cochin.
( Rep. by Adv. M/s. Menon & Pai)
3. M/s. National Insurance Co. Ltd.
Divisional Office,Mumbai
( Rep. by Adv. Sri. Prasanna Kumar Nair)
Appeal No.225/2010
APPELLANT
1. The Proprietor
St. George Gas Agency
XVII/276, Andamukkam,Thamarakulam, Kollam
( Rep. by Adv. Narayan R & others)
Vs.
RESPONDENTS
1. Indira, W/o S.Prabhakaran
Ananda, Kulangarabhagom, Chavara, Kollam
( Rep. by Adv. Smt. S. Laila
2. The Manager,
Marketing Division
Indian Oil Corporation,Southern Region, Cochin.
( Rep. by Adv. M/s. Menon & Pai)
3. M/s. National Insurance Co. Ltd.
Divisional Office,
Mumbai
( Rep. by Adv. Sri. Prasanna Kumar Nair)
Appeal No. 226/2010
APPELLANT
1. The Proprietor,
St. George Gas Agency
XVII/276, Andamukkam,Thamarakulam, Kollam
( Rep. by Adv. Narayan R & others)
Vs.
RESPONDENTS
1. Indira, W/o S.Prabhakaran
Ananda, Kulangarabhagom
Chavara, Kollam
( Rep. by Adv. Smt. S. Laila)
2. The Manager,
Marketing Division
Indian Oil Corporation,
Southern Region, Cochin.
( Rep. by Adv. M/s. Menon & Pai)
3. M/s. National Insurance Co. Ltd.
Divisional Office,
Mumbai
( Rep. by Adv. Sri. Prasanna Kumar Nair)
Appeal No.255/2010
APPELLANT
The Manager,
Marketing Division
Indian Oil Corporation,
Southern Region, Cochin.
( Rep. by Adv.M/s.Menon & Pai)
Vs.
RESPONDENTS
1. S.Prabhakaran
Ananda, Kulangarabhagom, Chavara, Kollam
( Rep. by Adv. Smt. S. Laila)
2. The Proprietor,
St. George Gas Agency
XVII/276, Andamukkam,Thamarakulam, Kollam
( Rep. by Adv. Narayan R & others)
3. M/s. National Insurance Co. Ltd.
Divisional Office,Mumbai
( Rep. by Adv. Sri. Prasanna Kumar Nair)
Appeal No. 256 /2010
APPELLANT
The Manager,
Marketing Division
Indian Oil Corporation,
Southern Region, Cochin.
( Rep. by Adv.M/s.Menon & Pai)
Vs.
RESPONDENTS
1. Indira, W/o S.Prabhakaran
Ananda, Kulangarabhagom
Chavara, Kollam
( Rep. by Adv. Smt. S. Laila)
2. The Proprietor
St. George Gas Agency
XVII/276, Andamukkam,
Thamarakulam, Kollam
( Rep. by Adv. Narayan R &others)
3. M/s. National Insurance Co. Ltd.
Divisional Office,
Mumbai
( Rep. by Adv. Sri. Prasanna Kumar Nair)
Appeal No. 257 /2010
APPELLANT
The Manager,
Marketing Division
Indian Oil Corporation,Southern Region, Cochin.
( Rep. by Adv.M/s.Menon & Pai)
Vs
RESPONDENTS
1. Rahul, son of Prabhakaran
Ananda, Kulangarabhagom, Chavara, Kollam
( Rep. by Adv. Smt. S. Laila)
2. The Proprietor,
St. George Gas Agency
XVII/276, Andamukkam,Thamarakulam, Kollam
( Rep. by Adv. Narayan R &others)
3. M/s. National Insurance Co. Ltd.
Divisional Office,Mumbai
( Rep. by Adv. Sri. Prasanna Kumar Nair)
JUDGMENT
SMT. VALSALA SARANGADHARAN ; MEMBER
These appeals are preferred against the orders of CDRF, Kollam dtd. 27.2.2010 in C.C. Nos. 212, 213 and 214/2006. By the impugned orders the appellants/1st and 2nd opposite parties are under orders to pay a sum of Rs. 3lakhs as compensation in C.C. 212/2006 and a sum of Rs. 1.25 lakhs each as compensation in C.C. 213/06 and in C.C. 214/06. It is aggrieved by these directions that the present appeals are filed by the first and second opposite parties. As the cause of action for the complaints and the opposite parties are the same in all the 3 complaints, we are disposing of the above appeals by this common order.
2. The complainant in C.C. 212/06 is the consumer of the opposite parties and the complainant in C.C. 213/06 is his wife and the complainant in C.C. 214/06 is their son. The common case put forwarded by the complainants is that the complainant in C.C. 212/06 and his family were residing at Kadappakkada, Kollam and in 2004 they shifted their residence to Chavara and on 1.11.2004, the first opposite party served one gas cylinder to the complainant. On 3.11.2004 at about 8 .30 PM, the complainant connected the gas cylinder to their gas stove and when the stove was lightened, unexpectedly fire spread over the kitchen and the complainants in the respective complaints sustained thermal burns and were immediately taken to Upasana Hospital, Kollam and from there they were referred to Medical college hospital, Trivandrum. It is the case of the complainants that the complainant in C.C. 212/2006 sustained more than 70% burn injuries and the complainant in C.C. 213/2006 sustained 25% burn injuries and the complainant in C.C. 214/06 sustained 30% burn injuries and their neighbour by name Mr. Rajan, who came to help the complainant was also sustained superficial burn injuries. Alleging deficiency in service on the part of the opposite parties, the complaints were filed praying for directions to pay expenses incurred by the complainants with compensation and costs.
3. The first opposite party in all the complaints filed version and contented that no such gas cylinder as alleged by the complainants has been delivered by him and that he cannot be blamed for the fire and injuries that happened to the complainants. It is admitted that the first opposite party was the authorized agent of the second opposite party. It was also submitted that the cylinder involved in the accident was not supplied by the first opposite party and on enquiry, the first opposite party came to know that it was the neighbour named Rajan, fitted the regulator and when he lighted the burner the gas that was in the room got fire and the complainants in the respective complaints suffered burn injuries. It was also contented that the consumer had taken the cylinder from the first opposite party only on 2.1.2004 and 25.11.2004 in the year 2004 and no cylinder was taken on 1.11.2004 as alleged by the complainants. The first opposite party has also taken the contention that the accident took place on 3.11.2004 but the intimation regarding change of address was given only on 7.6.2005. Pleading that there was no negligence or deficiency on his part he prayed for the dismissal of the complaints.
4. The second opposite party filed version and contented that they have conducted an enquiry about the incident and found that on 3.11.2004 at about 8.15 P.M. the complainant in C.C. 212/06 tried to replace the empty cylinder with a filled one and as he could not fit the regulator properly he sought the help of his neighbour one Mr. Rajan who applied pressure in the valve and release some quantity of gas and after that fitted regulator and kept the cylinder beneath the platform of the kitchen and when he lighted the burner, the leaked L.P.G. in the room got fire and the complainants sustained burn injuries. They further contented that whole mishap occurred due to the mistake of the consumer and his neighbour. Pleading that there was no deficiency on their part they prayed for the dismissal of the complaints.
5. The 3rd opposite party also filed version and contented that the complaints were not maintainable and that the 3rd O.p is not liable to pay any amount as the accident occurred not in the registered premises and the claim advanced by the complainants can not be justified in any manner and prayed for the dismissal of the complaints.
6. We heard the learned counsel for the appellants and the respondents in the respective appeals. The learned counsel for the appellant in Appeal Nos. 224,225,226/2010 argued before us that the Forum below had fastened the liability on the appellant/first opposite party also without proper appreciation of facts and circumstances of the case. It is argued by him that the complainants had approached the Forum without any evidence to show that the gas cylinder was supplied by the first opposite party and that the complainants failed to prove any manufacturing defects in the gas cylinder. It is argued by him that mere pleading that the cylinder was taken from the first opposite party will not be sufficient to justify the Forum in directing them also to pay compensation to the complainants. He has also advanced the contention that Ext. D4, the customer history card would clearly show that the consumer had taken gas from the first opposite party only on 2 occasions in the year 2004. ie, on 2.1.2004, and 25.11.2004. According to him the complainant might have obtained the gas cylinder from some other source. It was only on 7.6.2005 that the change of residence from Kadappakada to Chavara was informed by the complainant and he had requested for supplying gas cylinder on the changed address. Moreover the first opposite party was informed about the accident only after a lapse of one month and the complainants have not proved any manufacturing defects in the cylinder. Hence he argued for the position that the Forum ought to have dismissed the complaints with costs.
7. The learned counsel for the appellant in appeal Nos. 255,256 and 257 of 2010 ie, the second opposite party in the complaints submitted that as soon as the second opposite party came to know about the incident an enquiry was conducted and a report was prepared and it was marked as Ext. D1. The learned counsel placed much reliance on Ext. D1 and argued before us that it was Mr. Rajan, the neighbour who applied pressure on the gas valve with some gadget which resulted in the release of gas inside the 3 side closed kitchen. He has also submitted that the said Rajan fitted the regulator in the cylinder and when the complainant in C.C. 212/2006 lighted the burner of the hot plate having an auto ignition knob, the alleged accident happened and for which the opposite parties can not be mulcted with any liability whatsoever for the careless and casual way in which the replacing of the cylinder was carried by the consumer and his neighbour.
8. The 3rd opposite party was not fastened with any liability. However being the 3rd respondent in all these appeals, the learned counsel supported the findings and conclusions of the Forum below that they are not liable to indemnify the second opposite party since there was violation of the policy conditions. They submitted that they are liable to indemnify the risk of personal accident cover to 3rd party only in respect of any accident that occurred at the customer’s registered premises only. He further contented that the second opposite party did not produce the entire details in time as requested by them for considering the claim and thus argued before us that the order of the Forum below is to be upheld as against the 3rd respondent/3rd opposite party.
9. On hearing all the parties in these appeals, we find that it is the admitted case of all the parties that on 3.11.2004, at about 8.30 P.M., a fire occurred consequent to the attempt in lightning the stove and that the complainant himself, his wife and son were seriously injured due to the fire accident. It is also come out in evidence that the injured were rushed to Upasana Hospital, Kollam and from there they were taken to Medical College Hospital, Trivandrum. It is also not disputed that the injured were treated for a considerable period at Medical College Hospital, Trivandrum and the complainant in C.C. 212/2006 was having 70% burn injury, the complainant in C.C. 213/06 was having 25% burn injuries and complainant in C.C. 214/2006 was having 30% burn injuries. It is also not in dispute that the accident was occurred in the premises of the complainant. It is also borne from the records that the incident occurred from a fire due to leakage of gas manufactured and supplied by the second opposite party. Even in Ext. D1, the copy of L.P.G accident report, the second opposite party has no case that it was not their gas cylinder that was the reason for the whole unhappy and unfortunate incident. The first opposite party would argue that he did not supply any gas cylinder to the complainant on 1.11.2004.
10. The learned counsel for the appellant in appeal Nos. 255,256 & 257/10 has argued before us that the Appellant/second opposite party can not also be held liable to pay any compensation. Ext. D1, LPG , the accident report is a document that was relied on to support their case that the accident had occurred not in the registered premises and in such a situation the forum has passed the order without any justification. But It is also found that the second opposite party has no case that the L.P.G. cylinder where from the gas leaked and fire occurred was not manufactured by the second opposite party. The counsel for the complainants submitted that the subject cylinder was handed over to the first opposite party for replacing. If the second opposite party was vigilant they could have immediately taken custody of the cylinder when they came for enquiry on getting information. We find no such attempt from the part of the manufacture/second opposite party. Having found that the Fire occurred from the cylinder supplied by the second opposite party/manufacture and as the manufacture has no case that the complainants had willfully committed the accident, then the manufacturer can be held liable for the payment of compensation. Moreover as per Ext. D7 series it is evident that the 3rd opposite party/Insurer sent letters to the second opposite party/manufacturer to produce relevant documents for considering the claim of the complainants. But they did not supply all the relevant documents before the 3rd opposite party/insurer. We are also find that the compensation awarded in each complaint is only reasonable, considering the gravity of the burns endured by the complainants.
11. The dealer/1st opposite party has got a case that the dealer has not supplied or distributed the gas to the complainant. But he has not adduced any acceptable evidence to show that the complainant/consumer has not purchased gas from the dealer on 1st November, 2004. The dealer will be having the documents regarding the identity of the gas cylinder received from the manufacturer and there will also be documents evidencing distribution of gas cylinders to his customers. Admittedly the gas cylinder in dispute was having the identity. Then the 1st opposite party/dealer can very well establish his case that no such cylinder was allotted to the complainant. Unfortunately the dealer miserably failed in producing the documents evidencing accepting of gas cylinder from the manufacturer and distribution of these cylinders to the customers. The circumstance would show that the complainant being the consumer of the dealer/1st opposite party collected the gas cylinder by paying consideration. The 2nd Opposite party/ Manufacturer has no case that the cylinder in dispute was not their cylinder. The 1st opposite party/dealer could not substantiate their case that the subject cylinder was not distributed to the complainant. It is noted that the said cylinder was manufactured by the 2nd opposite party and distributed the same with LPG to the complainant. So the Forum below has rightly made the opposite parties 1 & 2 liable for the deficiency in service on their part. The case of the Appellant/1st opposite party that he has not committed any deficiency in service cannot be believed or accepted. Moreover there is no case that the complainant is having any gas connection with any other distributor. Rule also prescribes that nobody else can supply filled gas cylinders. Then how the complainant obtained possession of the gas cylinder in question? It is for the manufacturer to give a reasonable explanation regarding the identity of the subject gas cylinder. The manufacturer alone can give the details as to whom the cylinder was given for distribution and the date in which the testing has performed and who was the concerned distributor. Unfortunately no such details or explanation was received from the side of the manufacturer. Admittedly the 1st opposite party is the dealer of the 2nd opposite party and that the complainant was a consumer under the 2nd opposite party, the Indian Oil Corporation. So the irresistible conclusion that can be arrived at is that the cylinder was supplied by the Ist Opposite party/dealer to the complainant being their customer and the subject cylinder was supplied by the manufacturer to the dealer. The manufacturer and distributor have not adduced any evidence to show that proper and adequate precautions were taken by them to avoid gas leakage and other untowered incidents. The fact that such gas leakage and the resultant accident occurred is not disputed. There is nothing indicative of negligence on lapse on the part of the complainant in dealing with the gas cylinder in dispute. On thing should be born in mind that no ordinary prudent man will deal with the filled gas cylinder in a reckless and negligent manner unless there is some malafide intention. The person who handless filled gas cylinder will be very much alert in handling the same. So it is highly improbable to believe that the complainant behaved in a rash and negligent manner so as to invite danger to himself and his family members. So only possible conclusion is that something was wrong with the subject cylinder and it was only due to the improper and negligent handling of the cylinder before its delivery to the complainant. The poor consumer will not be in a position to say as to the negligence on the part of the manufacturer or the dealer. So both the manufacturer and the dealer are liable for causing the damage to the complainant and his family members. The Forum below has passed the order appreciating all the facts, circumstances and evidence on record. We find no urgent reasons to interfere with the impugned orders. Hence the appeals are liable to be dismissed.
12. In the result, the appeals are dismissed. The impugned orders of the lower forum is confirmed. As far as the present appeals are concerned, there shall be no order as to costs.
VALSALA SARANGADHARAN ; MEMBER
S. CHANDRA MOHAN NAIR : MEMBER
