Orissa

Cuttak

CC/29/2020

Babuli Kar - Complainant(s)

Versus

Propriertor,M/s Omm Bauti Bharat Gas Gramin Vitarak,Ramesh chandra Rout - Opp.Party(s)

K Panigrahi

05 Jan 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.29/2020

 

1.        Babuli Kar,

S/O: Late Padma Charan Kar.

 

2.        Aditya Kar,

S/O: Babuli Kar.

 

3.        Subhalaxmi Kar,

D/O:Babuli Kar.

 

4.         Asish Kumar Kar,

S/O: Babuli Kar.

 

All are of Village-Pashania(Chandipur),

P.O:Papthuripada,P.S:Banki,Dist:Cuttack.                                 ... Complainants.

 

                                                             Vrs.

1.  Proprietor of M/s. OmmBauti Bharat Gas Gramin Vitarak,

Ramesh Chandra Rout,At/PO:Kumusar,

Nuagaon,Code-192199,Via:Banki, Dist:Cuttack.

(Distributor of B.P.C.L LPG), PIN-754008.

 

   2.       The State Head,Bharat Petroleum Corporation Limited,

           2^nd floor,Alok Bharati Tower,Saheed Nagar,

             Bhubaneswar.

 

3.     Khurda LPG Territory Office,Territory Manager,

           LPG Bharat Petroleum CorporationLimited,LPG

           Bottling Plant and Territory Office,33 Industrial Estate,

           P.O: P.N.Colelge,Khruda-752057.

 

4.     IIC Lombard General Insurance Co. Ltd.,

           Kailash Plaza,LinkRoad,Cuttack.

 

5.    The Oriental Insurance, City Branch Office,1 A

                           StationSquare,Bhubaneswar,PIN-751001.                                  … Opp. Parties.

 

 

Present:    Sri Debasish Nayak,President.

                    Sri SibanandaMohanty,Member.

 

   Date of filing:     11.12.2018

Date of Order:    05.01.2023

 

For the complainant:           Mr. K.Panigrahi,Adv. & Associates.

For the O.P no.1:                   Mr. R.C.Rout,Adv& Associates.

For the O.Ps no.2 & 3:          Mr. D.P.Pradhan,Adv. & Associates.

For the O.P no.4:               Mr.R.Pati,Adv. & Associates.

For the O.P no.5 :               Mr. S.Roy,Adv. & Associates.

 

Sri Debasish Nayak,President. 

          The case of the complainants as made out in the complaint petition bereft unnecessary details in short is that at about 10.30 pm in the night of 16.3.18 the wife of complainant no.1 namely Saraswati Kar sustained burn injuries while she was cooking food in her woven through BPCL LPG cylinder.  Though she was brought to SCB Medical College and Hospital, Cuttack,  she succumbed to her burn injuries thereon 17.3.18 at about 6 A.M.  The complainants were using LPG cylinder bearing consumer no.73500555.  It is alleged by the complainants that while cooking there was leakage of gas below the woven from the pipe connecting the LPG stove to the gas cylinder as a result of which heavy fire broke out and for the said reason Saraswati Kar wife of the complainant no.1 Babuli Kar caught fire on her person and was burnt.  Hearing to her scream, complainants no.1 & 2 had rushed to the spot and had tried to rescue Saraswati Kar by disconnecting the gas supply from the gas cylinder by turning the regulator to “off” position and by dousing the fire.  While doing so, complainants no.1 & 2 had also sustained burn injuries on their persons and were treated initially at S.D.Hospital,Banki but due to the seriousness of their injuries they were also shifted to SCB Medical College and Hospital,Cuttack  for treatment alongwith the other injured Saraswati Kar.  Complainants no.1 & 2 had remained under treatment at SCB Medical College and Hospital,Cuttack   as indoor patients from 17.3.18 and were discharged on 31.3.18.  Due to the death of Saraswati Kar, U.D.Case was registered at Mangalabag P.S vide no.508 of 18 and the IIC,Mangalabag P.S had thereby requested the IIC,Banki to enquire into the cause of death of Saraswati Kar.  The IIC,Banki P.S accordingly had conducted enquiry and had reported to the IIC,Mangalabag P.S that in the night of 16.3.18 while cooking  in her kitchen Saraswati Kar had sustained burn injuries on her person due to accidental fire incident.  She was shifted to the S.D.Hospital,Banki that night and on 17.3.18 morning she was shifted to SCB Medical College and Hospital,Cuttack for better treatment.

          After being discharged from the hospital when complainants no.1 & 2 had gone to their house, the Regional Manager of O.P no.2 had visited the residence of the complainants and had assured them for the compensation.  The complainants had made their representationstogether with the relevant documents claiming for compensation to O.P no.2 on 22.5.18 and to O.P no.1 on 23.5.18.  The complainants later had sent reminders to the O.P no.2 on 13.1.20 in this context but when no compensation was granted by the O.Ps to them, they had approached this Commission seeking compensation to the tune of Rs.10,00,000/- due to  the death of deceased Saraswati Kar with interest thereon @ 12% per annum from the date of the fire accident and have further claimed cost to the tune of Rs.15,000/- from the O.Ps.

          In order to prove their case, the complainants have filed copies of several documents alongwith their complaint petition together with copies of various newspaper clippings specifying the death of Saraswati Kar.

2.       Out of the five O.Ps as arrayed in this case, though all the O.Ps have contested this case, O.Ps no.1,4 & 5 have filed their respective written versions separately and O.Ps no.,2 & 3 have filed their written version conjointly.

          From the written version of O.P no.1, it is noticed that according to him, the case of the complainant is not maintainable.  He has disputed the death of Saraswati Kar due to leakage of gas from the LPG woven and fire thereof.  He had gone to the house of the complainants but had not found any burnt articles of gas stove, regulator or connecting pipe there.  He had immediately intimated the matter to O.P no.2 and the Sales Manager of O.P. no.2 had also visited the spot for enquiring about the incident.  O.P. no.1 has also urged that the investigation into the case as made by the IIC, BankiP.S  is perfunctory since because it does not disclose anything about any gas tragedy there.  O.P no.1 disbelieves that the cause of death of Saraswati Kar was due to gas tragedy and that complainants no.1 & 2 Babuli Kar and Aditya Kar respectively to have sustained grievous injuries on their persons due to such gas tragedy.  He has specified that O.P no.2 though had visited the spot personally on the next day of incident, he could not detect any such burnt materials on the spot.  O.P no.1 has also specified in his written version that as per the terms and conditions of BPCL he had insured covering all the risks including third party risk to person and properties through Oriental Insurance Company vide policy no.345304/48/2018/2281 which was effective from 26.1.18 till the midnight of 25.1.19.  Thus, in toto it is the prayer of O.P no.1 through his written version to dismiss the complaint petition with cost as filed by the complainants.

          From the written version of O.Ps no.2 & 3 it is noticed that one Rajarshi Mukherjee, the Territory Manager has filed the written version on their behalf.  According to him, the complainants through their letter dt.13.1.20 had intimated about the alleged incident which was received by O.P no.2 on 17.1.20.  Thus, O.Ps no.2 & 3 through their written version have alleged that after 20 months of the alleged incident the matter was brought to their notice. After getting the said letter, the same was forwarded by O.P no.2 to O.P no.3 for necessary action and the complainants were intimated to get in touch with O.P no.3 vide their letter dt.3.2.20.  O.Ps no.2 & 3 have further alleged that though the matter was investigated into, there was no seizure of any material, no notice of any burnt mark on the gas cylinder or pipe.  They have urged that O.P no.1 hadvisited the spot where he found the gas cylinder was intact without any burnt mark.  Thus, it is the contention of O.Ps no.2 & 3 through their written version that the alleged occurrence was never due to leakage of gas, it cannot be a gas tragedy and accordingly they had prayed to dismiss the complaint petition with cost.

          They have filed together with their written version the letter addressed to the complainant no.1 dt.3.2.20 instructing him to get in touch with their Khurda office which is the LPG territorial jurisdiction of the complainants.  They have also filed copy of agreement in between the BPCL and complainant no.1.

          As per the written version O.P no.4 thecase of the complainant is not maintainable which is liable to be dismissed with cost.  O.P no.4 has alleged in his written version that though the occurrence had taken place on 16.3.18 the complaint was lodged after two years which is hit by Sec-24A of C.P.Act,1986 and U/S-69(1) of C.P.Act,2019.  O.P no.4 has further alleged about the non-joinder of necessary party and about the condition in the policy to report to the insurance company immediately on the happening of the incident.  O.P no.4 has drawn attention towards the autopsy report of the deceased Saraswati Kar wherein it is mentioned that there was no odour of any inflammable substance detected from the body of the deceased and it is for this, O.P no.4 has urged through his written version that the fire accident was not due to LPG gas leakage.  That apart, O.P no.4 has urged about absence of any fire brigade report, seizure of any LPG gas materials and other materials so as to prove about the death of Saraswati Kar due to the leakage of gas.  According to O.P no.4, in order to extract money from the insurance company, the complainants with a malafide intention had implanted the story of leakage of LPG gas here in this case.  Thus, it is prayed by O.P no.4 through his written version to dismiss the complaint petition with exemplary costs.

          The O.P no.4 has also filed copies of several documents including copies of their policy terms and conditions.

          As per the written version of O.P no.5 also the case is not maintainable which is liable to be dismissed with cost.  The complaint petition is barred by law of limitation.  O.P no.5 through his written version has also reiterated the contentions of the other O.Ps that there is no material to reveal here in this case about the leakage of gas from the gas cylinder thereby causing burn injuries on the person of Saraswati Kar resulting her death and also thereby causing injuries on the persons of complainants no.1 & 2.  Thus, the O.P no.5 has also urged through his written version to dismiss the complaint petition with cost.

          He has also filed copies of certain documents to prove hisstand.

3.       Keeping in mind the averments as made by the complainants in their complaint petition together with all the contentions of the written versions as filed by the O.Ps to this case, this Commission thinks it proper to settle the following issues in order to arrive at a just and proper conclusion here in this case.

          i.          Whether the case of the complainant is maintainable?

          ii.         Whether the complaint petition is barred by limitation ?

iii.        Whether the O.Ps were deficient in their service and if they had practised any unfair trade ?

iv.        Whether the complainants are entitled to the reliefs as claimed by them?

 

Issue No.ii.

Out of the four issues as arrayed in this case, issue no.ii be taken up first for consideration here in this case.

In order to further their case, the complainants have filed evidence affidavit of complainant no.1.  The same when perused, it is noticed that it is the only reiteration basically about the averments of the complainant petition.

O.Ps no.2 & 3 have also filed evidence affidavit through one Girish Debidas Sonawane who happens to be the Territory Manager of Khurda LPG territory office.  When the said evidence affidavit is perused, it is noticed that it is ofcourse a gist of the written version as submitted by the O.Ps no.2 & 3 earlier and nothing else.

          O.P no.4 has also filed evidence affidavit through one Suresh Dash working as Sr. Manager(Legal) in their Company who has also reiterated the averments of the written version of O.P no.4.

          O.P no.5 has also filed evidence affidavit through one Anmol Kishore Bhanja working as Sr. Divisional Manager in their Company and he also has reiterated the averments of the written version of O.P no.5 only.

It is the contention of O.P no.4 through his written version at para-2 that the complaint petition being filed two years after the occurrence is hit under the provisions of the C.P.Act.  But while perusing the case record it is noticed that admittedly occurrence took place on 16.3.18 and as per the order-sheet of this case, the same was filed before this Commission on 3.3.20.  Thus, it is well within the statutory period and limitation of two years and the contention raised in this regard by O.P no.4 appears to be vague.  This issue is answered accordingly.

Issue no.iii.

          Now coming to the issue no.iii which is the pertinent issue, while probing into all the facts and materials as available in the case record, this Commission finds that admittedly Saraswati Kar wife of Babuli Kar complainant no.1 had died at the SCB Medical College and Hospital,Cuttack in the morning of 17.3.18.  Her cause of death was due to fire accident and that also is not disputed.  While trying to rescue Saraswati Kar, complainants no.1 & 2 Babuli Kar and Aditya Kar respectively had sustained burn injuries on their persons and this fact also is not disputed by the O.Ps.  Their main contention is that the burn injuries on the persons of the deceased Saraswati Kar as well as of Babuli Kar and Aditya Kar were not due to leakage of gas from the gas cylinder while Saraswati Kar was engaged in cooking at her kitchen on 16.3.18 night but the cause of fire was something else.  In this contention O.P no.1 through his written version has stated that he had visited the spot and had intimated O.P no.2 to that effect.  But the said contention of O.P no.1 finds no corroboration from that of O.P no.2 when the written version of O.P no.2 is perused.  O.P no.1 has also mentioned in his written version  at para-4 that O.P no.2 had visited the spot and had enquired about the incident in presence of the complainant and others but this contention of O.P no.1 also gains no corroboration from that of O.Ps no.2 & 3 as it is noticed while perusing the written version of the O.Ps no.2 & 3.  Rather, it is the contention of both of them that they only knew about the incident after receiving the letter of the complainants on 17.1.20.  O.Ps no.2 & 3 have mentioned at para-7 of their written version that O.P no.1 had told them to have visited the spot and had noticed the gas cylinder to be intact without any burn-mark.  But quite strangely, the said contention as made by O.Ps no.2 & 3 in their written version at para-7 is not at all stated by O.P no.1 that he had ventilated about such fact to the O.Ps no.2 & 3.  The contention of O.P no.4 in his written version at page-8 that they should have been intimated by the insured immediately after happening of the incident but as per the pertinent decision of Hon’ble Supreme Court, in the case of Jaina Construction Company Vrs. The Oriental Insurance Company Ltd and another as reported in 2022 Live Law(SC) 154 wherein their lordships Hon’ble Shri Justice Sanjiv Khanna & Hon’ble Ms. Justice Bela M Trivedi have held that the Insurance Company cannot repudiate the claim merely on the ground that there was delay in intimating the Insurance Company about the occurrence.Thus, this contention of O.P no.4 also does not hold good here in this case.  The contention of O.P no.4 that the post-mortem report reveals about no odour of any inflammable substance detected from the body of Saraswati Kar reveals that there was no LPG gas leakage but this contention lacks justification also.  Since because the injuries on the persons of the deceased Saraswati Kar were antemortem and were all thermal injuries.  That apart, as per the medical report it reveals, complainants no.1 & 2 had also sustained thermal injuries.  The LPG gas would certainly leave odour as raised by O.P no.4 lacks cogent evidence in this regard.  While going through the documents as available in this case, it is noticed that complainant no.1 Babuli Kar happens to be a labourer and at the spur of the moment he had tried his best to rescue his wife who was being set ablaze due to the fire accident and he alongwith his son Aditya had also sustained burn injuries on their persons while rescuing Saraswati Kar.  Being a labourerundoubtedly he has scanty knowledge so as to give a call to the fire-brigade immediately in order to extinguish the fire and rather,

he was busy in carrying his wife to the S.D.Hospital,Banki for treatment.  The IIC,Banki after conducting inquiry has submitted his report to the IIC,Mangalabag P.S wherein he has mentioned about the fire accident causing burn injuries on the persons of SaraswatiKar,Babuli Kar and Aditya Kar.  He has not mentioned about the cause of catching fire in his report.  But such latches on the part of the IIC,Banki P.S will never give a departure to the liabilities of the O.Ps here in this case.  It is because, the O.Ps do not dispute about the use of LPG Cylinder at the residence of the complainant.  They also do not dispute that in the night of 16.3.18 Saraswati Kar was engaged in cooking at her kitchen by using LPG stove and gas cylinder.  Now the question is whether there was fire due to electric short circuit, kerosene lamps, candles or match-stick or any explosive or highly inflammable substance etc.   Thermal heat can be produced from substances like petrol, kerosene which are highly inflammable or by explosives and also by LPG gas.  The O.Ps who were so keen and claim to have gone to the spot where they found that the gas cylinder was intact there was no burn-mark on the gas regulator,  gas pipe and gas stove, but they have not whispered about the presence of any container of highly inflammable explosive substances, petrol/kerosene etc if noticed by them which might have caused  fire if it is from any other source other than from gas leakage.  Thus, in absence of such pleas and when it is undisputed by them that the deceased SaraswatiKar was engaged in cooking at her kitchen in the night of 16.3.18 by using LPG stove and gas cylinder, inference can undoubtedly be taken that infact there was fire accident due to gas leakage and nothing else.

All the contentions as raised by the O.Ps appears to be an effort as made by each of them to camouflage the truth but the shilloutte of the truth is well significant here in this case for which this Commission has no hesitation to come to a definite conclusion that infact Saraswati Kar had died due to the burn injuries sustained on her person which were antemortem and that she had sustained those burn injuries while cooking in her kitchen in the night of 16.3.18 in her gas stove and gas cylinder only and the pre-ponderance of the probabilities here in this case imbibes us to opine that only due to leakage of gas such unprecedented fire accident had occurred.  That apart, the complainant no.1 had written about the compensation towards his deceased wife Saraswati Kar to O.Ps no.2 & 3 in his petition dt.13.1.20 which was replied by O.P no.2 to the complainant no.1 through letter dt.3.2.20 whereinthe complainant no.1 was instructedto get in touch with O.P no.3 for settling the claim for compensation since because the territorial jurisdiction of the residence of the complainants is under O.P no.3.  O.P no.2 has never disputed as regards to the contention of the letter of the complainant no.1 in his letter dt.13.1.20 that his wife Saraswati Kar had died due to burn injuries as sustained on her person in the night of 16.3.18 due to leakage of LPG cylinder/stove while cooking.  Thus this Commission finds the O.Ps to be deficient in their service and also to have practised unfair trade as they had malafidely,arbitrarily and unilaterally repudiated the claim of the complainantswith ulterior motive.  This issue is thus answered in favour of the complainants.

Issues no.i& iv.

          From the discussions as made above, the case of the complainants as filed is maintainable and they are entitled to the reliefs as claimed by them.

                                                          ORDER

          The case is decreed on contest against the O.Ps who are found to be jointly and severally liable here in this case.  Thus, the O.Ps are directed to settle the claim of the complainantsby paying the assured amount of Rs.10,00,000/- alongwith interest thereon @ 12% per annum from the date of claim i.e.,from 22.5.2018 till the final payment is made to the complainants.  They are also directed to paya sum of Rs.2,00,000/- towards compensation for the mental agony and harassment caused to the complainants and further to pay a sum of Rs.30,000/- towards the litigation expenses of the complainants within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 5^th   day of January,2023 under the seal and signature of this Commission.    

                                                                                                            Sri Debasish Nayak

                                                                                                                        President

 

 

 

                                                                                                              Sri Sibananda Mohanty

                                                                                                                            Member