Complainant absent. Counsel prays time. Several adjournments given. Very old case. Even then complainant not ready. Hence dismissed for non prosecution. Dated this 19th day of September, 2008. Sd/- C.S. SULEKHA BEEVI, PRESIDENT Sd/- E. AYISHAKUTTY, MEMBER 

By Smt. C.S. Sulekha Beevi, President,

1. Complainant who is working as Surveyor is a consumer under opposite party for domestic L.P.G. Connection from 08-7-1999. Opposite party did not supply refill cylinders promptly. Opposite party supplied a refill cylinder on 10-11-2003. The cylinder was old and had rust here and there. The inmates of his house requested for change of the cylinder at the time of supply itself. But the employee of opposite party did not heed to the request. Complainant was using the cylinder supplied on 10-11-2003. While so, on 16-11-2003 he and his family had to go to a relatives house. They left the house locked and returned only after 7 PM in the evening. After coming back, on opening the door itself, complainant and his wife Yasodha sensed the pungent smell of gas. Complainant inspected the cylinder and saw that the regulator was in the 'off' mode. Understanding that the gas leak was due to defect of cylinder he immediately telephoned the office of opposite party. No one attended the phone. That opposite party who is dealing in supply of inflammable substance like L.P.G. is bound to attend the call of consumers at any time and has the responsibility to take necessary steps. Not attending the call is gross negligence on the part of opposite party. Complainant then perused the pamphlet supplied by opposite party and followed the instruction No.21 given in the pamphlet. It was mentioned in the said instruction to separate the regulator from the cylinder. Complainant separated the regulator and then gas emerged out of the knob of the cylinder with much noise, force and in a puffed manner. The gas spread over the body of the complainant and made a wet appearance. Seeing this his wife fainted and fell down. With much difficulty complainant took the cylinder out of the house. At this time there were about 10 family members inside the house. Complainant informed the Fire force and also changaramkulam police station. The Fire force came soon and defused the leaking cylinder. Timely action of fire force saved the complainant, his family and assets. Due to the incident complainant's wife suffered shock and had to undertake treatment from Dr. Saithu Mohammed at Ponnani Ansar hospital. That her medical reports show that the blood pressure which occurred due to the incident has affected her liver also. That complainant came to understand from the fire force officers that the cause of incident was the defect of the gas cylinder. By supplying a cylinder, which is not at all fit for use, opposite party has committed gross deficiency in service and unfair trade practice. The act of opposite party in not attending the phone call of complainant is also deficiency. That opposite party is liable to compensate the complainant with rs.5,00,000/-, towards hardships and mental agony suffered. Complainant had filed a complaint before the Revenue Divisional officer also on the same incident. But this case was dropped due to financial influence of opposite party. Complainant prays for compensation of Rs.5,00,000/- and costs of Rs.5,000/-. He also seeks a direction against Bharat Petroleum Corporation to cancel the license of opposite party and to give direction to opposite party to stop the supply of cylinders unfit for use.

2. A detailed version was filed by opposite party specifically denying the allegations. It is submitted that complainant was provided with gas connection on 30-3-2000 and not on the date averred in the complaint. That opposite party supplies the gas cylinders on priority basis. No booking is superceded and nobody is given any out of priority privilege. The statements that the gas cylinder was very old and had rust here and there and that when demanded for a rust free cylinder, opposite party was not willing to replace the cylinder are denied by opposite party as false. Denying the allegations in para 3 of the complaint it is submitted by opposite party that the complainant had used the cylinder for 7 days. As per the complaint, the complainant was back home on 16-11-2003 at 7 PM. It is stated that by this time the distribution agency of opposite party will be closed. In any emergency situation, the complainant has to contact No.0484-396125. This information is provided to the consumer every time the supply is replenished. There is a customer service centre attached to opposite party office, the services of this office is available even during holidays and after office hours. That even going by the averments in the complaint, there is no deficiency. If the contentions of the complainant is correct, the incident is nothing but leakage from nozzle and valve of the cylinder. As complainant states that he saw the regulator fitted correctly to the valve, then if there is any leakage to the valve it may be due to the presence of dust particles inside the valve. It usually happens because of negligence of consumer while replacing the regulator. While doing replacement the regulator is kept on the kitchen slab. There may be dust on the slab. If any tiny particle enters the regulator it gradually reaches between valve and nozzle of the regulator which would lead to causing block of valve and nozzle. If this happens the valve will not shut completely and may cause leaking of gas. The entire panic occurred due to lack of presence of mind of complainant. He removed the regulator and threw the cylinder outside. The specific instruction in No.21 given in the pamphlet to the consumer states that in case of gas leak it is sufficient to remove the regulator and place the cap on the valve. The cap is permanently tied to the cylinder. If a little force is applied on the cap the valve and nozzle will shut firmly. Then there is no chance of leakage. The same thing was done by fire force, and the leak was stopped. Complainant admits reading instruction No.21, but has not fully complied it. Though complainant removed the regulator he did not place the cap. Alerting the fire force was a correct action on the part of complainant. In the bill itself the contact numbers in case of emergency is given. Immediately after receiving information, on the next day at 9 AM opposite party visited the house of complainant. Opposite party offered to substitute the cylinder. Complainant was not willing to accept. There was balance gas inside the defect alleged cylinder. Opposite party inspected the cylinder and removed the cap. But there was no leak. The valve pin was also tested. It was found in working condition. More than four years have elapsed after the incident. The cylinder is still in possession of the complainant. Keeping the cylinder permanently is against provisions. Complainant has not taken any steps to conduct inspection of the cylinder at the time of filing this complaint. LPG is liquified petroleum gas. When it is allowed to come into contact with atmosphere it gushes out. On 16-12-2002 an inspection was conducted by opposite party on the premises of the house of complainant. The installation was found in order. So the leakage might have occurred due to the negligence on the side of complainant. Opposite party had tested the cylinder after the alleged incident. There was no leak to the valve. It means there was no defect. Leak can occur due to defect of nozzle, valve or body of cylinder. Each leak has to be managed in a particular manner. Instructions are provided in pamphlets. The gas cylinders are provided by Bharat Petroleum Corporation. Opposite party is only an agent for distribution of filled gas. The cylinders are manufactured and distributed by Bharat Petroleum Corporation. Hence they are a necessary party as the allegation is defect of cylinder. The allegations that complainant's wife suffered shock and had to take treatment etc. are denied. The claim is inflated and without any basis. Complainant had lodged complaint before the Revenue Divisional Officer. The said complaint was dismissed and no further action was taken by complainant. No person can be allowed to take recourse of law on the same cause before two authorities. On this ground itself the complaint is not maintainable. That complainant is not entitled to any reliefs.

3. Evidence consists of the oral evidence of complainant who was examined as PW1 and Exts.A1 to A5 marked. Opposite party filed counter affidavit. Exts.B1 and B2 marked for opposite party. Complainant did not seek any opportunity to cross examine opposite party has not filed any application for the same. The complaint was filed with assistance of lawyer, Sri.K.T.Siddiq who previously appeared for the complainant. Later Sri.S. Prasad filed vakalath for complainant and conducted the case. Thereafter the case was conducted by the complainant himself.

4. Points for consideration:-

(i) Whether opposite party has committed deficiency in service.

(ii) If so, reliefs and costs.

5. Point (i):-

The main allegations levelled against opposite party are (i) that on 10-11-2003 the refill cylinder supplied by opposite party was old and rusty. Though inmates of the house requested for change of cylinder, the employee of opposite party did not heed to the request (ii) On 16-11-2003 due tot he defect of the valve of the cylinder gas leaked inside the house. Though complainant tried to contact opposite party through phone there was no one to attend the call made in such an emergency situation (iii) Complainant then removed the regulator as per instruction No.21 given in the pamphlet provided to complainant at the time of availing connection. The gas inside the cylinder gushed out with much noise and force. Seeing this complainant's wife suffered shock and had to take treatment later. Complainant then had to call the fire force who came and defused the cylinder. That the whole mishap occurred due to the deficiency on the part of opposite party supplying a defective cylinder.

6. To avoid repetition the facts are not narrated again. The main point that arises for analysation is whether the incident of gas leakage occurred due to the defect of the cylinder. It is the case of complainant that the refill cylinder supplied on 10-11-2003 was old and rusty. Apart from the complaint regarding it's appearance complainant has not stated that he noticed any defect tot he valve of the cylinder at the time of first filling the cylinder. Complainant has used the cylinder from 10-11-2003 till 16-11-2003. In the complaint or in the affidavit he does not have a case that he noticed any defect to the cylinder while using the cylinder till 16-11-2003. He has not averred that the cylinder exhibited even a small amount of gas leaking during the interval from 10-11-2003 till 16-11-2003. in the box the complainant put forward a new case that after the supply of the cylinder, while using the cylinder there was leaking and that he had informed the matter to opposite party. The evidence of complainant (PW1) regarding this is as under:

"കേസിന്ന് ആസ്പദമായ സംഭവത്തിലെ cylinder 14-11-2003-ന്ന് ആണ് എനിക്ക് മാറ്റിത്തന്നത്. 10-11-2003-ന്ന് ആണ് കേസിന്ന് ആസ്പദമായ cylinder മാറ്റി തന്നത് എന്നു പറഞ്ഞാല്‍ ശരിയല്ല. പരാതിയില്‍ 10-11-2003-ന്ന് ആണ് cylinderമാറ്റിത്തന്നത് എന്നു എഴുതി കാണുന്നുണ്ടെങ്കില്‍ ‍എനിക്ക് ഒന്നും പറയാനില്ല."

"10-11-2003-ന്ന് refill ചെയ്തു ലഭിച്ച cylinder 16-11-2003-ന്ന് ആണ് leak ചെയ്തത് എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. 10-11-2003 മുതല്‍ 16-11-2003 വരെ കൂടിയ 5 ദിവസം ഞാന്‍ അതേ cylinder ഉപയോഗിച്ചിരുന്നു. 16-11-2003-ന്ന് വൈകുന്നേരം 9 മണിക്കാണ് സംഭവം ഉണ്ടായത്. അന്നേ ദിവസം വൈകുന്നേരം 7 മണി വരെ ഞാന്‍ വീട്ടിലില്ലായിരുന്നു. വൈകുന്നേരം 4 മണി മുതല്‍ 7 മണി വരെ വീട്ടിലില്ലായിരുന്നു. തിരിച്ചെത്തി 9 മണിക്കാണ് സംഭവം ഉണ്ടായത്."

"എന്‍െറ വീട്ടുകാരുടെ കൈയില്‍ നിന്നുമാണ് cylinder-ല്‍ leak ഉണ്ടായത് എന്നു പറഞ്ഞാല്‍ ശരിയല്ല. 10-11-2003 മുതല്‍ ‍16-11-2003 വൈകുന്നേരം വരെ യാതൊരു complaint-ഉം ഉണ്ടായിരുന്നില്ല എന്നു പറഞ്ഞാല്‍ ശരിയല്ല. നേരത്തെ cylinder-ന്ന് leak ഉണ്ട് എന്നുളള കാര്യം എതൃകക്ഷിയെ വിളിച്ചു പറഞ്ഞിരുന്നു. അപ്രകാരം വിളിച്ചു പറഞ്ഞതായി ഹരജിയിലൊ affidavit-ലും പറഞ്ഞിട്ടില്ല."

7. This contention raised by complainant that the cylinder had leak prior to 16-11-2003 and that he had reported the matter to opposite party which is highly material is unsupported by any pleadings. Complainant has no case that such plea was raised by him in the complaints lodged before police and Revenue Divisional Officer which were complaints prior to this case. No amount of evidence can be let into a plea which has not been raised at all. Hence we are unable to accept the contention of the complainant that the cylinder had any leak from the date of supply till the date of incident.

8. Regarding the incident the evidence relied by the complainant is his own oral testimony and Exts.A3 and A4. Complainant affirms that at the time of incident there were about 10 family members inside the house. Interestingly none of them have been cited as witness nor examined. Even their affidavits have not been filed. The complaint and the proof affidavit does not mention as to who are the family members, other than his wife who were present in the house at the time of incident. The sole interested testimony of complainant cannot be wholly accepted without necessary corroborative evidence. The document mainly relied by complainant is ext.Ext.A3 which is the report of the fire force. The relevant portion in part II of extra3 is as follows:

"തീയുടെ വ്യാപ്തി പരിസരമാകെ ഗ്യാസ് ലീക്കായി."

"തീപിടിത്തത്തിന്‍െറ ഊഹിക്കപ്പെടുന്ന കാരണം വാള്‍വിന്‍െറ സ്പ്രിംഗ് ദ്രവിച്ചതിനാല്‍ "

On the reverse side of Ext.A3 the Fire Station Officer has certified as under:

"The information quoted in part II of this report is only in respect of the data as furnished to the department not necessarily full and accurate on any matter contained therein which can be determined only after due investigation by the appropriate agency".

9. There is no investigation report by police or any other agency before us to establish that, the informations recorded in Ext.A3 are correct. For this reason Ext.A3 is totally unreliable. Ext.A4 is an outpatient ticket issued to complainant's wife on 22-11-2003. The prescription is issued by the department of Psychiatry of Ansar hospital. The consultation is 6 days after the incident. If the complainant's wife had suffered terrible shock and had fainted as stated in the complaint, then the delay to consult the doctor has to be explained by the complainant. In the absence of such explanations the only inference that can be drawn is that the incident of gas leak was not the proximate cause of such illness.

10. The complaint is resisted by opposite party by strongly contending that the valve of the cylinder had no defect at all. It is the case of opposite party that they had checked the cylinder the next day for defects and did not find any. It is also the case of opposite party that the fire force had defused the cylinder by simply placing the cap on the valve which strongly indicates that the cylinder had no defect of leak of gas. The complainant has no case that fire force had applied any other method to defuse the cylinder. Further, admittedly the cylinder is still in the possession of the complainant. He submitted that he has kept the cylinder till this date in the 'as is where is' condition. Then definitely complainant could have taken steps to conduct inspection of the cylinder and procure a report of an expert. No steps were taken in this regard. The fire force has not stated in Ext.A3 that they found the valve and spring inside, in a damaged condition. At the cost of repetition it has to be stated that opposite party has specifically pleaded and affirmed that they conducted inspection of the cylinder the next day itself and found the valve in good condition. Gas leak could occur due to various reasons. The burden rests upon the complainant to prove that the leak was due to the defect of the cylinder. From the materials and evidence placed before us we have to say that complainant has been unable to discharge this burden.

11. Another allegation raised against opposite party is that at the time of emergency when complainant called opposite party there was no one to attend the phone call. According to complainant the incident occurred at 9 PM. The evidence of PW1 is as follows:

"16-11-2003-ന്ന് വൈകുന്നേരം 9 മണിക്കാണ് സംഭവം ഉണ്ടായത്. അന്നേ ദിവസം വൈകുന്നേരം 7 മണി വരെ ഞാന്‍ വീട്ടിലില്ലായിരുന്നു. വൈകുന്നേരം 4 മണി മുതല്‍ 7 മണി വരെ വീട്ടിലില്ലായിരുന്നു. തിരിച്ചെത്തി 9 മണിക്കാണ് സംഭവം ഉണ്ടായത്."

It was submitted on behalf of opposite party that by this time the distribution of office of opposite party will be closed. That in case of emergency customers have to contact in the emergency numbers provided in the bill given to the consumer at each time of supply of refil cylinder. That there are other contact numbers also provided to the consumers in the leaflet given at the time of availing connection. This submission on the part of opposite party is reasonable and justifiable. Complainant cannot insist that the distribution office of opposite party has to work round the clock when there are other contact numbers provided to be used in cases of emergency.

12. Opposite party has challenged the maintainability of the complaint on the ground that complainant has already filed a complaint before the Revenue Divisional Officer, Tirur, upon the same incident. It is stated by complainant that the proceedings before Revenue Divisional Officer was dropped due to influence of opposite party. This was controverted by opposite party who argued that the proceedings were dropped due to non-prosecution of the case by the complainant. Ext.A5 is the copy of the order dated, 27-4-2005 in A-7226/03 (proceedings before Revenue Divisional Officer) produced by the complainant. We have to say that Ext.A5 is an incomplete document. It appears to be last page of a document. The entire document is not seen produced. In Ext.A5 it is seen as under:

"27-4-2005

Petr. Absent. Adv. For respd appeard. The petitioner was not appeared for the last several hearing. Today also he has not appeared.

The respdt. firm has filed written statement that they have taken necessary steps to over come such contingencies and that the petr

has no case to proceed against the distributor.

In the light of the statement filed by the counter petr. Further action in this matter is dropped."

It is crystal clear that the case was dropped due to the continuous default on the side of complainant. Complainant has not filed any revision against this order. The case before the Revenue Divisional Officer was filed in 2003 prior to this case. There was no sitting of this Forum from February, 2004 till June, 2007. On such circumstances even if tis case was pending before Forum, complainant ought to have been diligent in prosecuting the case before the Revenue Divisional Officer if he was interested to get an early relief. The complainant had also lodged complaints before ponnani Police. No documents regarding the investigation of the police has been placed before us by the complainant, to substantiate his contentions.

13. From the above discussions we have no hesitation to conclude that complainant has failed to establish a case in his favour. We therefore do not find any deficiency in service on the part of opposite party.

14. In the result we dismiss the complaint. No order as to costs.

Dated this 23^rd day of September, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : P. Krishnan, Complainant.

Documents marked on the side of the complainant : Ext.A1 to A5

Ext.A1 : Subscription voucher (SV 052) from opposite party to complainant.

Ext.A2 : User's Manual from opposite party to complainant.

Ext.A3 : Fire force report dated, 16-11-2003 prepared by K. Ashraf Ali, Asst. Station Officer.

Ext.A4 : Prescription dated, 22-11-2003 from Ansar Hospital, Thrissur.

Ext.A5 : True photo copy of the proceeding paper of Revenue Divisional Officer, Tirur.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 and B2

Ext.B1 : User's Manual

Ext.B2 : Cash Memo

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER