By. Sri. Jose. V. Thannikode, President:

The complaint is filed under section 12 of the Consumer Protection Act of 1986 against the opposite parties to get cost and compensation for the death of the husband of the complainant, due to the deficiency of service.

2. Brief of the complaint:- The 1^st complainant is the wife, and 2^nd & 3^rd complainants are the children of Mr. P. Suresh who died on a fire blast from a gas cylinder, who was the customer of opposite parties No.1 to 3 under consumer No.606705. On 19.03.2010 at about 8.30. PM while the said suresh was trying to ignite the gas stove after shifting the empty gas cylinder with new one, because of the leakage of gas from the gas cylinder he caught fire and sustained burn injuries and subsequently he was taken to Assumption Hospital, Sulthan Bathery for treatment. On the advice of the doctors he was taken to Medical College Hospital, Kozhikode and from there he was succumbed to death due to burn injuries on 29.03.2010 at about 10.00 PM, while he was under treatments. His postmortem was conducted by one Dr. Sujith Sreenivas, Assistant Professor and Deputy Police Surgeon on 30.03.2010 and the Doctor opined that he died of Dermo Epidermal burns involving 45% of total body surface area. The Sulthan Bathery Police has registered case as Crime No.285/2010 in the said incident and Final report was filed before the Honorable Sub-Divisional Magistrate Court, Mananthavady as unnatural death (FAD) on 30.04.2010.

3. As a result of the fire the kitchen also caught fire and the people also who assembled there managed to control fire. The fire force unit under the leadership of Mr. K.M. Johny, Assistant Station Officer, Fire station Sulthan Bathery came to the place and after pumping water on the gas stove and cylinder, took the cylinder out of the kitchen. The regulator was seen melted and after obtaining a washer and regulator from the nearby house closed the cylinder. The A.S.M who was the first officer who examined the gas cylinder told that the system on the gas cylinder was not properly working. So that he closed the cylinder by putting a new washer and a regulator. The deceased Suresh left behind his wife Manjula, aged 31 yrs the complainant No.1 and minor children Gautham Krishna and Bhagath Krishna complainants No.2 and 3 respectively as his legal heirs.

4. The death of the Suresh was occurred due to the leakage of gas from the cylinder which caused fire and blast which was supplied by the opposite party No.1 and it is manufactured by opposite party No.2 and it is filled and sealed by opposite party No.3 and opposite Party No.1 to 3 insured with opposite party No.4 to cover all the LPG consumers. Complainant further stated that the leakage caused due to the manufacturing defect or refilling defect of the gas cylinder. Hence it cause the death of Suresh and thereby the complainant No.1 lost her beloved husband and complainant No.2 & 3 lost their beloved father. The loss caused is very huge and it cannot be compensated on terms of money but it limiting to Rs.15 Lakhs and prayed before the Forum to direct the opposite parties to pay Rs.15 Lakhs as compensation for the loss of dependency, consortium, amenities of life, love and affection and for pain and sufferings, funeral expenses etc and to pay Rs.10,000/- as cost of the proceedings and further stated that all the opposite parties are jointly and severally liable to compensate it.

5. Notice were served to opposite parties and all the opposite parties entered in appearance through counsels and opposite party No.1 to 3 filed version, but opposite party No.4

not filed version even after giving so many opportunity for filing version and opposite party No.4 is set ex-parte on 19.05.2014.

6. In the version, opposite party No.1 denied most of the allegations in the complaint and admitted that the deceased was a cooking gas consumer with opposite party No.1 and states that the incident was never brought to the notice of this opposite party, even after almost 2 years after the incident and it is known to them only when a copy of complaint is served from this Forum. The police have closed the case as unnatural death and if there is any substance or truth in the said allegations, the complainant would have handed over the said cylinder and regulator to the concerned authorities, for investigation. The complainant have not done it so far for the last two years and further stated that the complainants are continued to avail the refill supply from the opposite party. Hence opposite party No.1 prayed for the dismissal of the complaint with compensatory cost to this opposite party.

7. In the version of opposite party No.2 & 3 the Opposite party No.2 and 3 also denied almost all the allegations in the complaint and admitted the role as opposite party No.2 and 3 and stated that opposite party No.2 and 3 appoints Distributors by virtue Distributorship Agreement and the relationship between these opposite parties and its distributors is completely governed by the terms and conditions of the Distributorship Agreement. It is submitted that the 1^st opposite party was appointed as Distributor vide Distributorship Agreement dated 26.10.2010 . A copy of the same is produced herewith as Ext.B1 and further states that the relationship between these opposite parties and the 1^st opposite party is that of 'principal to principal'. The relationship is clearly mentioned in Clause 2(a) of Ext.B1, moreover, in terms of Clause No.18 &19 of Ext.B1 the dealer is to act as a principal and to fully indemnify the Corporation against all claims including 3^rd party claim. Therefore it follows that the obligation to the individual cooking gas customers of these opposite parties and the 1^st opposite party distributor are distinct and separate and therefore any deficiency in service depends upon the above legal principle and on facts stated above and further stated that the incident was never reported to opposite party No.2 & 3. (But the above Agreement dated 26.10.2010 is not produced before the Forum by opposite party No.2 and 3 and not adduced any oral evidence and it is not marked as Ext.B1, even though in the version stated so. Ext.B1 is copy of the Insurance Policy which is produced by opposite party No.2 and marked by opposite party No.1).

8. Opposite Parties No.2 and 3 further stated that even though the incident occurred on 19.03.2010 the FIR is lodged only on 29.03.2010 and the incident was never reported to any of the opposite parties and hence no verification of the truth, cause of the accident and circumstances leading to the accident could be investigated by the company officials by visiting the accident spot during that period. On checking the records of the 1^st opposite party. It is found that the customer was also availing the refill supplies from the dealer till 15.02.2012. In case of an accident of the alleged nature takes place, the regulator which is claimed to have been melted could have become dysfunctional requiring the need by the customer to approach the dealer for a new regulator. The cylinder also was never handed over to the company or to the dealer with burned marks and replaced with an alternate cylinder. In this cases the customer has never surrendered the regulator or the cylinder to the dealer but have been continuously taking refill.

9. The distributor and HPCL are having public liability Policy which cover all the LPG consumers and for availing the accident benefit it has to be reported to concerned company authorities as well as distributor at the time of the accident happens and necessary investigations are required to be carried out by the insurance office as well as the company to entertain any claims in this regard. We came to know about this complaint only through this court notice which is about 2 years after this incident and no evidence can be gathered at this point of time. Hence we request the Honorable Consumer Disputes Redressal Forum to dismiss the complaint in the interest of justice. With prejudice to the above averments, it is also submitted that these opposite parties were having a Public Liability Policy for the period 22.04.2009 to 21.04.2010 against accidental losses taking place in the registered premises of customers from National Insurance Company. It is further submitted that for the disposal of this matter National Insurance Company is also a necessary party to this case and notice may be issued to National Insurance Company. There is no cause of action for the complainant against this Opposite Party and cause of action shown in the complaint is against the facts and the same is unsustainable in law. The complainants are not entitled for any of the relief claimed in the complaint. The complaint is devoid at any merit and the same liable to the dismissed ordering cost to the respondent. It is therefore prayed that the Honorable Forum may be pleased to accept the contention of these Opposite Parties No.2 and 3 and dismiss the complaint with cost to this opposite parties. However if the Honorable Forum is pleased to find that the alleged accident took place due to any deficiency in service or defect in the goods provided by these respondents, National Insurance Company may be held liable to compensate the consumer.

10. The complainant filed proof affidavit and stated as stated in the complaint, and further stated that the deceased was a healthy man aged 42 years and he used to earn about Rs.10 Lakh income from ginger cultivation per year and also much earnings was from his studio named Elian Videos and also stated that the melted regulator and the damaged cylinder is taken by the 1^st opposite party in the next day of accident itself and further stated that the new regulator and new cylinder was supplied to complainant by the opposite party No.1 on 20.03.2010 and she is examined as PW1 and Ext.A1 to A8 is marked. Opposite party No.1 also filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.B1 is marked. Opposite party No.2 and 3 not adduced any oral evidence. Opposite party No.4 declared as ex-parte on 19.05.2014. Ext.A1 is the FIR, which shows that FIR is registered on 29.03.2010 and the incident took place on 19.03.2010. But the FIR is lodged in the same day of death “ as un-natural death and cause reported “as on 19.03.2010 at 8.30 pm, Suresh S/o. Madhavan, Kuthiyathottathil House, Kuppady amsom, from his house accidentally caught fire from the gas stove due to the leakage of cylinder and burned and died on 29.03.2010 at 21.00 hrs from the Medical College Hospital, Kozhikode while undergoing treatment”. Ext.A2 is the Final report filed by the Station House Officer, Sulthan Bathery Police Station wherein it is reported that when the deceased was connected the gas cylinder and ignited with stove, gas leaked from regulator and he caught fire and he burned seriously and died from Medical College Hospital, Kozhikode on 29.03.2010 while undergoing treatment. Ext.A3 is the Postmortem report which shows that PM No.445/2010 dated 30.03.2010. History as per KPF 102- Accidental burns from Gas(LPG). “Deceased died of dermo epidermal burns involving 45% of total body surface area”. Ext.A4 is the site Mahazer, which shows “Mahazar of Cr No.285/10 of Sulthan Bathery Police Station, in Kuppady in the house bearing No. XXII/563 of Sulthan Bathery Panchayath is the place of occurance. In which it is stated the kitchen situated in the East-south corner of the house is the place of occurance and wherein it can be seen that , the wood almirah, Electric oven, mixie were burned and all the wall of the kitchen seen darkened due to deposit of carbon during fire. Ext.A5 is the Death Certificate of the deceased Suresh. Ext.A6 is the Subscription Voucher of Deceased Suresh in Consumer No.606705 which is issued by opposite party No.1. Ext.A7 is the Inquest Report which shows the deceased died due to burned injury which also proves the incident. Ext.A8 is the copy of SSLC Book first page of the 1^st complainant, in which the date of birth of 1^st complainant is seen as 22.06.1979, It shows that the age of 1^st complainant is 31 at the time of accident.

12. Ext.B1 is the copy of the Insurance Policy which is produced by opposite party No.2 and which is marked by OPW1. The document is issued by the opposite party No.4 to opposite party No.1 to 3, which cover for “Whilst arising out of the use of LPG supplied by the insured in reticulated systems, community kitchen, other application like geysers, lighting, generator sets, irrigation pumps etc.. & whilst the cylinder is being connected to the LPG installation and whilst being disconnected from the LPG installation”. Limits of liability per person upto Rs.10 Lakhs. The period of insurance was from 22.04.2009 to 21.04.2010.

13. On perusal of the complaint, version, affidavits, documents, deposition and evidence, the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service from the part of the opposite parties?

2. Whether the complainants are entitled to get compensation and if so what is the

quantum?.

3. Who is liable?

4. What Relief and Cost.

14. Point No.1 :- The main contention of the opposite parties are that the FIR is not registered on the date of incident. It cannot be said that without knowing the depth of the injury no one will go directly to the police for report but it is pertinent to note that after death of the patient within two hour FIR is registered. The another contention of the opposite parties are that the incident was not reported to the opposite parties at any time. For that no specific information or any guidelines is given to the consumers by the opposite party No.1 to 3 and it is not produced before the Forum also and the insurance policy conditions and guidelines also not supplied to the consumers, and regarding the incident the FIR, Final Report, Postmortem Report and inquest Report and the evidence produced before the Forum will clearly prove the incident. Regarding the contentions of opposite party No.1 to 3 that the incident was not reported to the opposite party No.1 to 3 is not correct because the statement in the affidavit and in the deposition that the Regulator and Cylinders were taken by the opposite party No.1 and on 20.03.2010 the new Regulator and new Cylinder was supplied was not disproved by the opposite parties and regarding the incident, the deposition of PW1 the eye witness states that she was seen the incident, and the accident occurred when her husband refixing the old cylinder with new one. When the stove ignited, the burner popped out and then totally got fired. Regarding the earnings of the deceased the complainant stated that the deceased was a ginger cultivator and he was earning an average profit of Rs.10 Lakh per year and was also holding a video shop and from the shop also much earnings was there, it was not challenged by opposite parties. But we can see that a healthy man aged 42 years having ginger cultivation and simultaneously holding a Video shop will earn minimum net profit of Rs.10,000/- per month and moreover the love and affection, dependency, consortium, pain and sufferings, and care of wife and children of a low age cannot be compensated on terms of money.

15. Further the 1^st opposite party stated that in any reason this Honorable Forum found that the complainants are entitled for compensation then opposite party No.4 is liable to pay the same. Opposite party No.2 and 3 stated that “However if the Honorable Forum is pleased to find that the alleged accident took place due to any deficiency in service or defects in the goods provided by these respondents, National Insurance company may be held liable to compensate the consumer. On perusal of all the evidences we are in the opinion that there was a gross deficiency of service from the side of opposite party No.1 to 3 in providing the proper service. In a ruling reported in 2014 (4) CPR 27(NC) October 2014 Part 10, Honorable National Commission found deficiency of service in a gas cylinder explosion case. Hence the Point No.1 found accordingly.

16. Point No.2:- According to the complainants the deceased Suresh died because of the injuries sustained in the said fire accident and they are entitled to get compensation. To show that the deceased Suresh had died because of the injuries sustained in the accident the complainant's have produced Ext.A1 to A8 documents. Ext.A3 is the Postmortem Report which shows that “Deceased died of Dermo Epidermal burns involving 45% of total body surface area”. As deceased Suresh died because of the injuries he sustained in the accident, his Legal Heirs and Dependents are entitled to get compensation. The 1^st complainant is the widow of the deceased and 2^nd and 3^rd complainants are the children of deceased. They being the widow and the children, they are entitled to get compensation.

17. Now the quantum of the compensation can be fixed. According to the complainants the deceased was aged 42 years. It is evidenced from the Death Certificate, therefore the multiplier applicable is “15”. As the earnings of the deceased adduced by the complainants is not challenged by the opposite parties, we fix the notional income of the deceased at Rs.10,000/- per month. As the deceased was succeeded by his widow and children, 1/3 of the income could be deducted towards the personal and living expenditure of the deceased and 2/3 could be treated as the contribution to the family. So the loss of dependency can be calculated as follows:- 10,000x12x15x2/3=11,20,000/-. Further towards loss of consortium the 1^st complainant (the widow) is entitled to get a sum of Rs.2,00,000/-, since her age at the time is 31, and towards the love and affection all the complainants are entitled for Rs.1,50,000/- and for pain and sufferings Rs.25,000/- and for the funeral expenses Rs.25,000/- and for amenities of life Rs.20,000/-. Thus the complainants are entitled to get a total compensation of Rs.15,40,000/-. But we award a total compensation of Rs.15,00,000/-, Since the prayer is only for Rs.15,00,000/- Hence the Point No.2 is found accordingly.

18. Point No.3:- Admittedly the opposite party No.1 to 3 insured with opposite party No.4. By virtue of the policy the opposite party No.4 is liable to indemnify the opposite party No.1 to 3 upto the extent of the policy coverage. Opposite party No.1 to 3 is vicariously liable as the distributor, refiller and manufacturer. Thus the opposite parties are jointly and severally liable to pay the compensation to the complainants. The Point No.3 is found accordingly.

19. Point No. 4:- In the result this complaint is allowed as follows:-

(a). The opposite party No.4 is directed to pay Rs.10,00,000/- (Rupees Ten Lakhs Only)to the 1^st complainant with 9% interest per annum from 21.11.2011 and Rs.4,000/-(Rupees Four Thousand Only) as cost of the proceedings, Since the 2^nd and 3^rd complainants are minors.

(b). The opposite party No.1 to 3 are directed to pay Rs.5,00,000/- (Rupees Five Lakhs only) to the 1^st complainant with 9% interest from 21.11.2011 and Rs.4,000/- (Rupees Four Thousand Only) as cost of the proceedings. The opposite party No.1 to 3 are jointly and severally liable to pay the amount.

All the opposite parties are directed to comply the Order within one month from the date of receipt of this Order. Thereafter the complainants are entitled for an interest @12% per annum for whole amount.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 23^rd day of December 2014.

Date of Filing: 21.11.2011.

PRESIDENT :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Manjula. Complainant.

Witness for the Opposite Parties:

OPW1. Rahim. Manager, Reliance Gas Service.

Exhibits for the complainant:

A1. True Copy of First Information Report.

A2. True Copy of Final Report.

A3. True Copy of Postmortem Report.

A4. True Copy of Mahazar.

A5. Death Certificate. Dt:01.04.2010.

A6. Subscription Voucher.

A7. True Copy of Inquest Report.

A8. True Copy of First page of SSLC Book of 1^st complainant.

Exhibits for the opposite Parties.

B1. Copy of Insurance Policy.

Sd/-

PRESIDENT, CDRF, WAYANAD.