DATE OF FILING-19.8.2008

                                                                                                DATE OF DISPOSAL-24.2.2014

                                                                                       O R D E R

Dr. N.Tuna Sahu, Member

            The above named complainants have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986 (for short C.P. Act 1986) alleging deficiency in service on part of Opposite Parties (for short O.Ps).

2.         The brief fact of the consumer complaint as alleged by the above complainants that the complainant No.1 is a regular customer to all the O.Ps through O.P.No.1 as they have a gas connection having consumer No.15165. Complainants are residents of their residential house situated at the address stated above and they used to reside there with their family.  The O.P. No.1 used to supply gas cylinders to the complaint No.1 in regular intervals. Accordingly the complainant No.1 purchased a filled up gas cylinder from O.P. No.1 but unfortunately on 21.08.2006 when the daughter of complainant No.3 Ms. A. Mamata talking with the complainant No.1 and with the wife of complainant No.1, all of sudden fire broke in the vicinity i.e. in the kitchen as the defective gas cylinder leaked through the defective regulator and all the 3 members present caught fire on their bodies and ran to other room of the house and fire was extinguished by the persons nearby but all the 3 persons sustained  sever burn and removed to the hospital immediately and remained there for long period but unfortunately the daughter of complainant No.3 died on 28.08.2006. It is also stated in the complainant that the matter was informed to the police and an U.D. case has been initiated by police. It is also claimed that the matter was appraised to the O.P.No.1 who assured the complainant to make good in monetary terms for the damage caused to the complainants through the company. It is also alleged that the O.P. No.1 surprisingly adopted dilating tactics to get the claim time barred.  The loss of life of the daughter of the complainant No.3 made him subject to psychological and emotional imbalance and also the complainant No.1 and 2 and their children were subjected to constant, continuous shock and panicky which can’t be compensated. Hence, the complainants have preferred this claim before this Forum with a prayer for compensation to be granted to the complainants to the tune of Rs.19,99,000/- and to pass such other orders as the Hon’ble Forum may deem fit in the circumstance of the case.

 3.        On receipt of the notice from this Forum, the O.P. No.1, 2 & 3 appeared before this Forum through their learned counsel on 25.9.2008 and filed their version on 12.2.2009. The O.P. No.4 & 5 also appeared through their learned counsel on 21.07.2010 and filed his written version on 13.03.2013 and memo of argument filed on 11.2.2014.

            The O.P. No.1 in his written version/argument stated that the averments made in the complaint petition are all not true and correct and the complainants are put to strict proof of the same. The averments made in the complaint which are not specifically admitted are deemed to have been denied.  It is stated that it is true that the father of the complainant No.1 was a consumer of O.P. No.1 and domestic gas consumer card was issued to the complainant No.1 for the purpose of making endorsement of date of receipt of a refill cylinder. The said consumer card is being relied on the complainant No.1. Further, the said consumer card goes to show that the complainant No.1 has received a refill cylinder on 16.02.2006 and there after the complainant No.1 has not received any refill cylinder from O.P. No.1. As such O.P. No.1 is no way connected to this proceeding since the complainant No.1 ceases to be a consumer of this O.P. within the meaning of the Consumer Protection Act, 1986.  It is also averred that the daughter of complainant No.3 who sustained some injuries and died in the M.K.C.G. College Hospital while on treatment. But it is contended that he is not a consumer and he is not entitled for any compensation under C.P. Act, 1986.  It is also contended that as per the rule of the Bharat Petroleum Co. Ltd, the gas connection together with necessary appliances are to be purchased from the company duly appointed authorized dealers and it is obligatory on the part of such dealers to replace any defective appliances against its cost on receipt of any complaint from the consumer. Strangely till the fateful date of occurrence, the complainant did not made any complaint regarding defect of any appliance to the O.P. No.1 and neither choose to inform the mishap to local police or to the O.P. No.1. Hence, the appliances supplied by Opposite Parties are standard appliances being certified by Bureau of Indian Standards (BIS). Even the consumer not informed the incident to the distributor the reason best known to him and for that this O.P. No.1 is no way responsible. The O.P. No.1 after receipt of the notice from the Forum took pain to ascertain that the daughter of complainant No.3 was died in M.K.C.G. Medical College and the attended physician reported the matter to the nearby Baidyanath Police Station and an UD Case No.157/06 on 28.08.2006 was registered at about 11.45 AM. On procurement of certified copies of documents along with postmortem report it reveals that the deceased sustained injuries due to dry heat and died due to shock as a result of septicemia. Hence, the complaint is not maintainable in the eye of law and not entitled for any relief and prayed to dismiss the same with cost.  

            The O.P. No.2 & 3 in their written version/ argument stated that the averments made in the complaint are not all true and correct and complainants are put to strict proof of the same. It is stated that the entire complaint as made through the complaint by the complainants before this Forum  are totally illegal, uncalled for and the same are baseless and the petition is not maintainable in the eye of law. The O.P.No.2 &3 do not recognize the complainants and are not customers of O.P. No.1 as per record and cease to be a consumer. The O.P. Company is a national level company and to protect any untoward incident /mishaps, the O.P.No.2&3 has taken insurance for all the bonafide LPG customers by the Corporate Office throughout country for the year 2006-07 and insurance coverage was taken from M/s Bajaj Allianz General Insurance Co. Ltd covering legal liability and personal accident cover for 3^rd party consumers, distributors and transporters vide Policy No.OG-07-1906-3301-00000005. It is also contended by the O.P.No.2 & 3 that at the time of granting new connection, the customer is issued subscription voucher where it is clearly mentioned that the company shall not be liable for any loss or damage caused to any person or property as a result of installation and in the event of any accident involving the consumer’s installation, he shall forthwith inform the distributor. There is a system of pre-delivery inspection where the distributor’s delivery boys at the customer’s premises carries out pre-delivery inspection i.e. valve leak check, O ring check, leak check, weight of the cylinder and once customer is satisfied then only the cylinder is delivered. The corporation shall under no circumstances be liable or responsible for any loss, injury or damage to the distributor or to the customers, their servants, employee and agents. It is also stated that the distributor will at all times fully indemnify the corporation from and against all losses, damages, claims, suits and otherwise arising from in connection with injury to person or property, short deliveries or otherwise however in connection with matters covered by agreement. The Oil Marketing area offices at their showroom have system for quick Redressal of problems pertaining to LPG. Even for the sake of argument if the complainant is the customer of O.P.No.1, as per document, the complainant last refill taken on 16.02.2006 and the alleged incident/accident took place on 21.08.2006 nearly after 6 ½  months. It is denied that there was any fire due to cylinder and regulator. If it was defective how the alleged complainant was ever using the same without informing the O.P.No.1 and never sought for any replacement. The allegation that the cylinder was defective is also denied a person can’t use same cylinder for 6 and half months. The allegation that the regulator is defective is also denied and how the complainant using that defective regulator till date without wishing for replacement. Even if it was burnt due to defective it should have been returned to the distributor but the complainant did not do so.  The customers are aware that if any cylinder gets lost or any mishaps happens then they can get fresh good cylinder once they file FIR/ Police final report and give the same along with the complaint to the distributor. Apart from that the same at no point of time the complainants had never complained orally or in writing to the O.P.No.2 &3 about the incident and the said O.Ps would have taken steps to inform the statutory authorities i.e. Chief Controller of Explosive, Nagapur who would have investigated and prepared the report to send to the explosive department and intimation would have also given to the insurance company who would have deputed their surveyor and assed the loss to the best of their knowledge.  As no information of accident was informed no action could have been taken by the O.P.No.2 &3.  It is also pointed out by O.P.No.2 &3 that if the alleged incident happened why the complainants not informed the local fire brigade or local police or to the O.Ps. It is the only attended physician reported the matter to the local police where an UD case No.152 of 2006 dated 28.08.2006 was registered.  As per the investigating Police Officer report dated 28.098.2006, it is stated that in the kitchen the regulator at pipe of gas cylinder was burst whereas as per the final report dated 10.6.2008 of ASI B.N. Pur Police station, there was a leak of gas from the cylinder, caught fire and whereas complainants have stated that in the kitchen as the defective gas cylinder leaked through the defective regulator caught fire, so all the three aforesaid statement are contradictory to each other.  So the complainants are not entitled for any damage as claimed in the complaint petition and the complainants are not consumers under C.P. Act, 1986. Hence, there is no merit in the complaint of the complainants and the complainants have no cause of action to file the petition before this Forum and in view of the above noted facts and circumstances, the O.P. NO.2 &3 humbly pray to graciously dismiss the petition filed by the complainants with costs in the best interest of justice.

            Similarly, the O.P. No.4 & 5 in their written version/ argument stated that the averments made in the complaint are not all true and those that are not specifically admitted herein are deemed to have denied. It is also stated that the complainant is not a consumer as defined under Section 2(d) of C.P. Act, 1986 and does not fall under the purview of consumer dispute as envisaged in Section 2(e) of the Act hence this Forum has no jurisdiction to entertain the complaint. The complainants are not consumers of O.P.No.4 &5 hence denied for want of knowledge. The alleged incident was never intimated to the O.Ps at any point of time before filing this complaint hence there is no deficiency in service. It is also stated that the Oil Corporation did never intimate the incident to these Opposite Parties and the O.Ps do not admit and denies the alleged accident. It is also submitted that as per the averments the accident occurred on 21.08.2006 but the complaint was filed casually in the year 2010 and till then there was no intimation provided to this O.Ps which is gross violation of terms and conditions of the policy and there was not reasonable opportunities provided to the O.Ps to investigate the alleged accident hence the claim straight way dismissed. It is also alleged that the complaint is barred by limitation as it was filed after 4 years of alleged cause of accident  and the law does not help whose who sleep over their rights. However, it is also admitted that as per the policy referred, the O.Ps have the limited liability for the third party insurance of Rs.1,00,000/- only but the claim filled by the complainant for Rs.19,99,000/- is highly excessive and exorbitant and same is liable to be dismissed.  It is also argued that the filled gas cylinder was received on 16.02.2006 and the alleged accident occurred on 21.8.2006 after a long lapse of more than six months. The present consumers have not proved that they are the consumers of these O.Ps and the present complaint is not maintainable since the gas connection is in the name of Epili Pitambar vide consumer No.15165 and he is alive but the complaint is filed by E. Subash Chandra. The consumer of gas has not submitted the alleged gas pipe, regulator or the gas cylinder to the distributor for necessary laboratory test. The complainants have never taken any steps to furnish the above instruments to distributor to check hence this proves that the claim of the present complainants is an attempt to defraud the O.Ps to make wrongful gain. The alleged accident was never intimated to the O.P. No.4 &5 at any point of time before filing of the complaint. The complainants have not approached the Forum with clean hand. So, there is no deficiency in service on part of the O.P.No.4 &5 and since the complainants have no locustandi to file the same, it is liable to be dismissed with exemplary cost.

4.         On the date of hearing we have heard the rival submissions made above by the learned counsel for the respective parties and perused the complaint petition of the complainants, written version/arguments of all parties and verified the documents on record filed by the parties.  During the course of hearing of the consumer dispute, the learned counsel for the complainants argued that the complainant No.1 is the regular customer to all the O.Ps through O.P. No.1 as he has a gas connection having consumer No.15165. The complainants were residents of their residential house at the address stated in the complaint. The O.P. No.1 used to supply gas cylinders to the complainant No.1 in regular intervals. Unfortunately, on 21.8.2006 when daughter of complainant No.3 Miss A. Mamata talking with the complainant No.1 and with the wife of complainant No.1 who was cooking and all of sudden fire broke in the vicinity due to defective gas cylinder leaked through defective regulator and all 3 sustained severe burn injury and fire was extinguished by the persons nearby and were removed to hospital immediately and were remained there for treatment for long period but unfortunately the daughter of complainant No.3 died on 28.08.2006. The police was informed about the mishap and an UD case was registered by Police. In the matter the O.P. No.1 was apprised of the matter who assured the complainants that he would make good in monetary terms for the damages caused do the complainants through company but the O.P.No.1 did not do so. The loss of life of daughter of the complainant No.3 made him subject to psychological and emotional imbalance and also the complainant No.1&2 and their children were subjected to constant, continuous shock and panicky which affected their routine day to day work and studies that is to be assessed altogether loss of Rs.19,99,000/- which the O.Ps are liable to pay jointly or severally to the complainants and make good in terms of compensation for mental agony and physical strain and the loss sustained by the complainants and their families due to deficiency in service of O.Ps. Hence, he requested to direct the O.Ps to pay the compensation on humanitarian grounds in the interest of justice.

5.         We perused the pleadings made above by the learned counsels for respective parties and verified the case record and relevant documents placed on it.  On perusal of the case record it is found that the complainant No.1 i.e. E. Subash Chandra is the son of E. Pitamber who is the consumer of domestic gas bearing consumer No.15165 of O.P.No.1. So it can’t be said that the complainant is not a consumer since there is relationship of father and son between the first complainant and consumer of the gas. So the consumers are beneficiary consumers under the C.P. Act. From the discharge documents of M.K.C.G. Medical College, Berhampur, it is also found that Sri E. Subash Chandra S/o E. Pitamber was admitted in the MSW-I Ward of the Hospital on 21.8.2006 for burn injury vide Indoor Regd. No.1631 and Bed No.225 who was discharged from the said Hospital on10.09.2006. From the Dead Body Carrying Certificate, it is also evident that Post Mortem Examination was conducted on the body of deceased Miss. Adala Mamata, daughter of A. Dilli related to case No.152 and P.M. No.437 dated 28.08.2006.  Thus, from this it is inferred that the complainant No.1 Sri E. Subash Chandra was admitted into the Hospital for the burn injury and it was certified in the discharge record that he had sustained 18% burn injury. However, on careful perusal of the case record we do not find any Police FIR report for the alleged incident of gas accident. It is also a fact that the complainant received the refilled gas cylinder on 16.02.2006 and the alleged fire incident took place on 21.08.2006 which is after a gap of more than six months. It is impossible to use a single gas cylinder continuously for more than six months by the complainants. So it is very difficult for us to infer that the alleged incident was occurred due to defective cylinder supplied by the O.P. No.1 since there was no supply of further cylinder to the consumers after 16.02.2006. Thus, the liability of supplying of defective cylinder to the complainants can’t be saddled with O.P. No.1 as because it is not proved that the said cylinder was supplied by O.P. No.1. We also failed to find out any documents relating to the insurance claims of the complainants that were submitted before Opposite Parties. We do not find force in the contentions of the learned counsel for the complainants that O.P. No.1 was appraised the case who assured them to make good in monetary terms for the damage caused to the complainants through company, since there is no such documentary evidence found from the case record. Further, as contended by the learned counsel for the complainants that the gas pipe, cylinder and regulator was defective is also not proved since there is no such report obtained from any competent laboratory to prove the same. It is very difficult to hold that the said gas gadgets were defective, since the complainants never submitted before the O.P. No.1 or 2 & 3 the said devices for laboratory test. Thus, the learned counsel for the complainants failed to prove that the gas pipe, cylinder and regulator were defective and nothing has been placed before us by the learned counsel for the complainants that would persuade us to hold otherwise. Though it is admitted by O.P. No.4&5 that there is a 3^rd Party Insurance for an assured sum of Rs.1,00,000/-, but on perusal of pleadings of the learned counsel for the complainants and verification of documents on record, it is found that there was no intimation to Opposite Parties and specifically to O.P. No.4 & 5 regarding the incident of fire due to defective cylinder. If we speak it more clearly and precisely, there was not a single document placed on the case record regarding insurance claim by the complainants before the O.P. No.4 &5. Thus, it is vague to contend that there is deficiency in service on part of O.Ps for non-settlement of the insurance claim of the complainants. Moreover, as per the argument of the learned counsel for the complainants that the incident was appraised to the O.P.No1 who had assured the complainants to make good in monetary terms through company for the damages caused to them. But we do not find any document in the case record to corroborate his argument and he also failed to lead any documentary evidence to that effect. So we feel that there is no force in his argument hence we are not inclined to accept the same. The learned counsel for complainants also orally prayed before this Forum to direct the O.P. No.4 &5 to pay the insurance claim to the complainants on humanitarian grounds, but it is very difficult for us to issue such a direction without relying on any documents. It is the duty of the complainants to prove their case with documentary evidence but if they failed to do so, the Forum can’t award any relief based merely on arguments. We therefore, have no hesitation to dismiss the case of the complainants in the light of above discussions and our finding is fortified with the decision of the Hon’ble National Commission in the case of New India Assurance Co. Ltd vs. Mala & Ors decided on 08.01.2007 vide First Appeal No.91 of 2005.  In the light of the above discussion and aforesaid citation, we dismiss the case of complainant due to devoid of merit.        

6.         In the result, we dismiss the case of the complainants against all Opposite Parties due to devoid of merit but there is no order as to cost. The consumer dispute is disposed of accordingly.

7.         The order is dictated and corrected by me on this 24^th day of February 2014. Copy of order shall be supplied to the parties free of cost as per rule.

                                                                                                                    (Dr. N. Tuna Sahu)                                                                                                                                       Member   

                                                                                           I Agree             (Mrs. Minati Pradhan)

                                                                                                                        Lady Member