IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Friday the 30^th day of January, 2009

Filed on 07.03.06

Present

1. Sri. Jimmy Korah (President)
2. Sri. K. Anirudhan (Member)
3. Smt. Shajitha Beevi (Member)

in

C.C.No.58/06

between

Complainant:-                                                             Opposite Parties:-

     Smt.Vidhya.S,                                             1.         Prasanth Gas Agency, Jayalakshmy,

     Puthukkattu House,                                     Vandhanam Building, CMC-4, Cherthala.

     S.L.Puram.P.O.,                                                     

     Cherthala.                                                    2.         Bharath Petroleum Corporation Ltd., KRL,                 

     (By Adv.T.S.Arunkumar)                                        LPG Bottling Plant Ltd., Ambalamukal,

                                                                                    Ernakulam, Represented by its territory manager.

                                                                                    (By Adv.C.Muraleedharan)

                                                                        3.         The Manager, Oriental Insurance Co. Ltd.,

                                                                                    Deepthy Building, Pallimukku, Kochi.                                                                           

                                                                  4.         The Manager,

The New India Assurance Company Ltd.,

            M.O. Ward, Alappuzha.

(By Adv.T.S.Arunkumar)

O R D E R

SRI.JIMMY KORAH (PRESIDENT)

The complainant case is as follows: - The complainant was a gas connection holder bearing consumer No.28853 of the 1^st and the 2^nd opposite parties. On 27^th October 2005, the complainant was engaged in preparing food using the gas cylinder supplied by the opposite parties. While so the complainant noticed fire on the cylinder around its regulator. The complainant along with other family members right away attempted to douse the said fire. Meanwhile, the flames spread to the entire room, and the scared complainant and other inmates ran out for their life. In the said accident, the entire kitchen, the wiring and the utensils therein were burned up. The material gas cylinder and the regulator the opposite parties supplied were of poor quality. The inferior quality of this cylinder gives way to the said mishap. The complainant and her family sustained monetary as well as mental woes. The complainant, though approached the opposite parties several times to get her grievance addressed the same was turned down. All the opposite parties are liable for the said fire accident. There is deficiency of service on the part of the opposite parties. Got aggrieved on this the complainant approached this Forum for compensation and other relief.

1. On notices being sent, the opposite parties turned up and filed separate versions. The contention of the 1^st opposite party is that on receiving the information of the accident, the 1^st opposite party alerted the other opposite parties. The 3^rd opposite party without delay appointed a surveyor to assess the damage the complainant sustained. The surveyor accompanied by the other opposite parties inspected the spot, took photographs and procured relevant documents from the complainant. However, according to this opposite party the fire accident was the outcome of the mishandling of the cylinder by the complainant. The cylinder supplied by the opposite party was not defective. The complainant was using a stale regulator and worn-out rubber tube for the time being. Notwithstanding this, the complainant is entitled to compensation. The 1^st opposite party is having a public liability policy with the 3^rd opposite party.  The complaint has been filed at its instruction. As such, the 3^rd opposite party is to be directed to pay compensation to the complainant, the 1^st opposite party prays.

2. The contention of the 2^nd opposite party is also almost in similar lines with the 1^st opposite party.  According to the 2^nd opposite party the accident has resulted from the defective handling of the cylinder. The cylinder the opposite parties supplied was perfect. Before the same being delivered, the perfection of the cylinder was reassured by repeated checking. The complaint is merit less. This opposite party has availed a public liability policy from the 4^th opposite party to indemnify its loss if any.  However, the complainant is not entitled to any relief. The complaint is only to be dismissed with cost, the 2^nd opposite party asserts.

3. The 3^rd opposite party contends that the indemnity policy is issued to the LPG dealers that covers the damage caused to the third party only if the 1^st opposite party is directly involved in the same. In the case of the damage caused to the complainant in the present case, same was the consequence of the complainant's mismanagement of the cylinder. The 1^st opposite party has no sort of involvement in the said mishap, the 3^rd opposite party forcefully argues. However, the 3^rd opposite party appointed a surveyor to assess the damage caused to the complainant, and the report was duly submitted. Nonetheless, the complainant is disentitled to any amount inasmuch as the accident took place consequent to complainant's deficiency. There is no merit in the complaint, and the complaint is only to be dismissed with cost, the opposite party affirms.

4. The 4^th opposite party contends that the public liability policy it issued to the 2^nd opposite party indemnifies only 40% of the claims arising out of the accident that too emerged in the premises of the insured. In so far as the accident in question is concerned, the same took place in the complainant premises. According to the 4^th opposite party, they had public liability policy with the 3^rd opposite party. As such, 3^rd opposite party is liable to pay compensation to the complainant. The 4^th opposite party is unnecessarily drawn into the Present case. Hence it is to be absolved from its liability to the complaint, the 4^th opposite party submits.

5. The evidence of the complainant consists of the testimony of the complainant herself as PW1, the commissioner was examined as PW2 and the engineer was examined as PW3, and the documents Exbts Al to A5 were marked. Ext. A1 is the copy of the 1^st page of the consumers pass book, A2 is the copy of the Subscription Voucher, A3 is the copy of the Bill No.615676, A4 is the copy of the Extract of Mararikkulam Police Station dated, 29.10.2005 and A5 series is the copies of the certificate and detailed estimate of damages of the building.  On the side of the opposite parties documents Exbts. B1 to B4 were marked.  Ext. B1 is the copy of the report of the Fire Force and the copy of the Public liability policy for Oil Industries from New India Assurance Company, B2 is the copy of the Fire Survey and Loss Assessment Report from Thomas Grom Surveyors dated, 18.04.2006, B3 is the copy of the LPG Dealers Indemnity from the Oriental Insurance Company Ltd and B4 is the copy of the Policy Schedule from the New India Assurance Company Ltd.  Commission Report and mahasar is marked as Exbts.C1 and C2.  

6. Bearing in mind the contentions of the parties, the questions crop up before us for consideration are:-

(a) Whether the accident took place due to the complainant's mishandling of the cylinder?

(b) Whether the complainant is entitled to the damages sought for?

7. The material accident or the damage so caused is seemingly not denied or disputed. Of course, the complainant case as to the circumstance of the accident and the volume of damage is seriously challenged by the opposite parties. According to the opposite parties the fire accident was not due to any inferior characteristic of the gas cylinder, but down to the mishandling of the cylinder by the complainant. It is worthwhile to notice that, yet the 1^st opposite party is of the view that the complainant is entitled to some damages though not to the extent claimed by the complainant. Worthier yet to see that the 3^rd opposite party insurer even appointed the surveyor to assess the level of damage the complainant sustained. Even now this opposite party contends that it is not liable to pay compensation to the complainant, for the accident in question is the outcome of complainant's mismanagement of the cylinder. To put it simply, the 3^rd opposite party is not liable, inasmuch as the cylinder supplied by the 1^st & 2^nd opposite party was perfect, and no deficiency is attributable to them. Keeping in view the contentions of the opposite parties, we meticulously peruse the materials placed on record. We find no materials brought on record to show before us that the fire accident was solely caused by the complainant's negligence or unprofessional approach. On the other hand, the complainant asserted that the accident was the consequence of the poor quality of the cylinder supplied by the first two opposite parties. It appears that the complainant has successfully substantiated whatsoever have be pleaded in the complaint through PW2 & 3. In contrast to this, it seems that no evidence worth a piece of paper either to support or to substantiate the case advanced by the opposite parties is forthcoming. Needless to say mere making statement does not take the place of proof. We are least hesitant to hold that the complainant is entitled to the damages for the damages he sustained by the terrifying burst of the gas cylinder supplied by the opposite parties. By the way, we are of the view that the contention of the 4^th opposite party merits acceptance.

8. In view of the facts and circumstance of the instant case, the 3^rd opposite party is directed to pay the complainant an amount of Rs.50,000/-(Rupees fifty thousand only) with interest @ 12% per annum from the date of complainant's application for claim with the opposite parties. The 3^rd opposite party is further directed to pay a cost of Rs.5,000/-(Rupees five thousand only) to the complainant. The opposite party shall comply with the order within 30 days of receipt of this order.

In the result the complainant is allowed accordingly.

Pronounced in open Forum on this the 30^th day of January, 2009.

Sri. Jimmy Korah

Sri. K. Anirudhan

Smt. N. Shajitha Beevi 

Appendix:-

Evidence of the complainant:- 

PW1                -     Vidya.S (Witness)

PW2                -     Nisha.N.S (Witness)

PW3                -     Harilal (Witness)

Ext. C1            -     Commissioners Mahasar

Ext. C2            -     Commissioners Report                              

Ext. A1            -     The copy of the Pass Book issued by the opposite parties

Ext. A2            -     The copy of the Subscription Voucher

Ext. A3            -     The copy of the Bill No.615676

Ext. A4            -     The copy of the Extract of Mararikkulam Police Station dated, 29.10.2005

Ext. A5 series   -     The copies of the certificate and detailed estimate of damages of the building (2 Nos)

 Evidence of the opposite parties:-

Ext. B1 -     The copy of the report of the Fire Force and the copy of the Public liability policy for

      Oil Industries from New India Assurance Company

Ext. B2 -     The copy of the Fire Survey and Loss Assessment Report from Thomas Grom

       Surveyors dated, 18.04.2006

Ext. B3 -     The copy of the LPG Dealers Indemnity from the Oriental Insurance Company Ltd

Ext. B4 -     The copy of the Policy Schedule from the New India Assurance Company Ltd.

Typed by:- k.x/-