DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : CC/64/2018
Date of Institution : 01.06.2018
Date of Decision : 06.08.2019
Balvir Kaur wife of Surjit Singh resident of Village Kalala Tehsil and District Barnala.
…Complainant
Versus
1. Sandaur Indana Gramin Vitark, Malerkotla Raikot Road, Sandaur, Tehsil Malerkotla District Sangrur through its Manager/Proprietor.
2. Indian Oil Corporation Limited, Tel Bhawan, 1st Floor, Plot No. 6E, Sector 19-B, Madhya Marg, Chandigarh through its Managing Director.
3. New India Assurance Co. Ltd., Branch Malerkotla through its Branch Manager.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Lokeshwar Sewak counsel for complainant.
Sh. Varinder Kumar Goyal counsel for opposite party No. 1.
Sh. SM Gupta counsel for opposite party No. 2.
Sh. Vinay Kumar Jindal counsel for opposite party No. 3.
Quorum.-
1. Sh. Kuljit Singh : President
2. Sh. Tejinder Singh Bhangu : Member
(ORDER BY KULJIT SINGH, PRESIDENT):
The complainant namely Balvir Kaur has filed present complaint under Consumer Protection Act against Sandaur Indane Gramin Vitark, Sandaur and others. (In short as opposite parties).
2. The facts leading to the present complaint as stated by the complainant in his complaint are that the complainant is the consumer of the opposite party as opposite party issued a domestic gas customer card No. 7100074110 for domestic purpose and they are using this for cooking their meal. At the time of obtaining LPG connection from the opposite parties the mechanic of the opposite parties installed the gas stove in the house of complainant on 31.10.2015 and gas stove, regulator and gas pipe were purchased by the complainant from the opposite parties at the time of installing the same in her house and opposite party No. 1 assured the complainant that there are branded articles and company is responsible for any fault or complaint if accrued and mechanic of opposite parties checked the connection time to time. Even when the complainant refilled the gas cylinder from the opposite parties the mechanic of the opposite parties fitted the gas cylinder with the gas stove at the house of the complainant and also checked the rubber pipe manufactured by opposite party No. 2 which was purchased by the complainant from opposite party No. 1.
3. It is further alleged that complainant has only son namely Amritpal Singh of 21 years old who was a good Athlete. On 16.6.2017 at about 6.30 PM when he was trying to boil the milk on the said LPG Gas Stove and light the gas stove with match box stick suddenly the son of the complainant caught fire as there was some leakage in the rubber pipe and son of the complainant immediately rushed to Civil Hospital, Barnala from where he was referred to GMCH, Sector 32, Chandigarh on 17.6.2017 where he died on the same day due to burnings. The complainant had lost her only son due to negligence and poor quality of rubber pipe of the opposite parties No. 1 and 2 and complainant moved an application before the opposite party No. 1 for the death compensation of her son on 2.9.2017 but the opposite parties No. 1 and 2 did not bother the same and not paid any compensation to the complainant which is deficiency in service and unfair trade practice on their part. Hence the present complaint is filed seeking the following reliefs.-
1) The opposite parties may be directed to make compensation of Rs. 6,00,000/- on account of death of Amritpal Singh.
2) To pay Rs. 50,000/- as compensation for mental agony and harassment.
3) To pay Rs. 5,000/- as litigation expenses.
4) Any other relief to which the complainant is found entitled.
4. Upon notice of this complaint, the opposite party No. 1 filed written version taking preliminary legal objections interalia on the grounds that opposite party No. 1 is insured with the opposite party No. 3 w.e.f 15.7.2016 to 14.7.2017 vide policy No. 36130348161300000001 so name of answering opposite party be deleted from the array of the opposite parties. Further, the complainant has not come to this Forum with clean hands and concealed the true facts. Further, she has no locus standi or cause of action to file the present complaint and this Forum has no jurisdiction to try and decide the present complaint. Further, this complaint is just an abuse of process of law.
5. On merits, it is admitted that complainant is consumer of the opposite party and they issued a domestic customer card No. 7100074110 for domestic purpose. It is denied that at the time of obtaining LPG connection the mechanic of opposite parties installed the gas stove in the house of complainant and gas stove, regulator and gas pipe were purchased by the complainant from the opposite parties. It is submitted that at the time of release of connection special instructions were told to the complainant and her family in regard to use the said connection and also advised that pipe or other articles be changed if found damage and also assured that on the information of the complainant or any family member of complainant the mechanic of the opposite party checked and replace any equipment if found any defect but in regard to any fault complainant or any member of the family never informed the opposite parties so alleged accident occurred due to negligence of complainant and her family members. The opposite party No. 1 denied rest of averments as alleged by the complainant in her complaint. However, it is submitted that opposite parties gave precautions and procedure to use the said LPG gas and also gave special instructions to the complainant or any family member of the complainant regarding use of LPG gas connection. Further, the answering opposite party fully insured with the opposite party No. 3 so opposite party No. 3 is fully responsible for the claim for any accident occurred due to use of LPG connection. There is no fault of the opposite party No. 1. It is further submitted that the complainant wants to get the alleged compensation then the insurance company is responsible for any claim/compensation lodged by the complainant. It is further submitted that complainant gave the documents of claim to the opposite party No. 3 for settlement of claim and insurance company deputed a Surveyor for assessment of claim, so present complaint is pre mature and liable to be dismissed. Lastly, the opposite party No. 1 requested to dismiss the present complaint with costs.
6. The opposite party No. 2 also filed written version taking legal objections on the grounds that complainant has not approached this Forum with clean hands and suppressed the material facts from this Forum. Further, there is no privity of contract between the complainant and answering opposite party as the transaction entered in between the distributor i.e opposite party No. 1 and the corporation and distributor shall act and shall always be deemed to have acted as principal and not as an Agent or on account of the corporation which is mentioned in Clause 17 of the agreement. So, the answering opposite party is not liable for the negligent Act of opposite party No. 1. Further, the complainant is not a consumer of the answering opposite party. It is further objected that all the registered LPG consumers are covered under an Insurance Policy taken by the PSU Oil Companies. Public liability insurance policy was taken from ICICI Lombard General Insurance Company Ltd, Mumbai and this complaint is bad for non joinder of necessary party as answering opposite party purchased policy No. 4008/130680523/00/000 from ICICI Lombard General Insurance Company Limited for the period from 2.5.2017 to 1.5.2018 so insurance company is a necessary party for proper adjudication of the present complaint. Further, the complainant has not complied with the instructions and mandatory directions of the LPG Rules and Regulations. The alleged accident was not reported by the complainant or distributor to the answering opposite party and they only know about the same on 23.8.2018 and they reported the matter to the insurance company i.e. ICICI Lombard General Insurance Company on 28.8.2018. Further, this Forum has no jurisdiction to try and entertain the present complaint and it is not maintainable.
7. On merits, it is submitted that distributor is required to install the connection at the customer's premises. The answering opposite party has called the investigation report of the alleged accident which was investigated by Suresh Kumar Senior Manager (LPG), Indian Oil Corporation, Patiala and submitted his report dated 27.8.2018. As per Clause 12 of the terms and conditions of Subscription Voucher, the Corporation shall not be liable for any loss or damage caused to any person or property as a result of the installation or use of gas by the consumer. In case any accident involving consumer's installation he/she must forthwith advice the concerned Distributor from whom the supply was received. But the complainant has not immediately informed about the incident. So, there is no deficiency in service or unfair trade practice on the part of opposite party No. 2 and complaint may kindly be dismissed with costs.
8. The opposite party No. 3 also filed written reply taking legal objections on the grounds that complainant is not a consumer and complaint is not maintainable against the answering opposite party. Further, the complainant has no locus standi and cause of action to file the present complaint against the answering opposite party and she has suppressed material facts from this Forum. Further, intricate question of law and facts are involved in the present complaint so only civil court is competent to decide the matter. Further, the matter involved in this complaint is not covered under the insurance policy and there is violation of terms and conditions of policy by the insured so answering opposite party is not liable to pay any claim. The complaint is bad for non joinder of necessary party and this Forum has no jurisdiction to decide the present complaint.
9. On merits, the averments of the complaint are denied by the opposite party No. 3. However, it is admitted that opposite party No. 1 is insured with the answering opposite party vide multi perils for LPG dealer policy bearing No. 36130348161300000001 which is valid from 15.7.2016 to 14.7.2017. The terms and conditions were immediately supplied to the opposite party No. 1 who opted Section-I, II, IV and VIII of the terms and conditions of the policy. The claim of the complainant does not fall under these Sections because Section-I relate to Fire and Allied Perils, Section-II is relate to Burglary and House Breaking Stock in Trade Including Cylinders Only, Section IV is relate to Cash In Transit/Safe/Counter and Section-VII is relate to Workmen's Compensation Insurance, so answering opposite party is not liable to pay any claim to the complainant and it is opposite parties No. 1 and 2 are liable to pay the same. The alleged accident does not covered in the insurance policy. As per terms and conditions of the policy only the company will indemnify the insured in respect of any loss if the claim will covered under the said Sections. Further, the cylinder in question was not delivered on the day of alleged accident and there is large gap between receiving of last cylinder and alleged accident. The complainant did not disclose the date of delivery of gas cylinder and cylinder number which was delivered before alleged incident. Further, complainant is failed to prove any defect in gas pipe. Further, the equipments gas stove, cylinder, gas pipe and regulator are manufactured by the opposite party so the opposite party No. 2 is liable to pay the claim. The complainant had taken different stand before police and she has not stated before police regarding incident was occurred due to leakage of pipe. The complainant has failed to prove that he has purchased the gas pipe and other equipments from the opposite party No. 1 and she filed a false complaint just to grab money form the opposite parties. Rest of averments are denied by the opposite party No. 3 and prayed for the dismissal of the present complaint with cost against the answering opposite party.
10. In support of her case, the complainant tendered into evidence copy of domestic connection card as Ex.C-1, copy of postmortem report as Ex.C-2, copy of DDR No. 10 dated 22.6.2017 as Ex.C-3, copy of application dated 2.9.2017 as Ex.C-4, copy of death certificate as Ex.C-5, photographs of gas pipe as Ex.C-6 and Ex.C-7, affidavit of complainant as Ex.C-8 and closed the evidence.
11. To rebut the case of the complainant, the opposite party No. 1 tendered in evidence affidavit of Birbal Singh as Ex.OP-1/1, copy of covering letter of RTI as Ex.OP-1/2, copy of claim note as Ex.OP-1/3, copy of letter dated 1.12.2017 as Ex.OP-1/4, copy of letter dated 24.10.2017 as Ex.OP-1/5, copy of collection receipt dated 13.7.2016 as Ex.OP-1/6, copy of policy schedule as Ex.OP-1/7, copy of registration form as Ex.OP-1/8, copy of refill receipt book as Ex.OP-1/9, copy of newspaper as Ex.OP-1/10, copy of pass book of HDFC Bank of complainant as Ex.OP-1/11, copy of PAN card of complainant as Ex.OP-1/12, copy of Aadhaar car of Buta Singh as Ex.OP-1/13, copy of Aadhaar card of Balvir Kaur as Ex.OP-1/14, copy of Aadhaar card of Amritpal Singh as Ex.OP-/15, copy of Aadharr card of Surjit Singh as Ex.OP-1/16, copy of death certificate as Ex.OP-1/17, copy of examination report as Ex.OP-1/18, copy of report under Section 174 of Cr.PC Ex.OP-1/19, copy of statements of Malkit Singh, Harbhajan Singh, Boota Singh, Shanti Sarup, Balvir Kaur as Ex.OP-1/20 to Ex.OP-1/24, copy of investigation report as Ex.OP-1/25, copy of investigation fee Bill as Ex.OP-1/26 and Ex.OP-1/27, copy of letter dated 23.1.2018 as Ex.OP-1/28, copy of letter dated 13.9.2017 as Ex.OP-1/29, copy of letter dated 2.1.2019 as Ex.OP-1/30, copy of letter dated 7.1.2019 as Ex.OP-1/31, copy of demand draft as Ex.OP-1/32, copy of letter dated 29.12.2018 as Ex.OP-1/33, copy of postal receipt as Ex.OP-1/34, copy of letter dated 28.11.2018 as Ex.OP-1/35, copy of letter dated 8.12.2018 as Ex.OP-1/36, copy of postal receipt as Ex.OP-1/37, copy of Form A as Ex.OP-1/38, copy of IPO as Ex.OP-1/39, copy of receipt of IPO as Ex.OP-1/40, copy of postal receipt as Ex.OP-1/41, copy of letter dated 21.9.2018 as Ex.OP-1/42, copy of postal receipt as Ex.OP-1/43, copy of emails as Ex.OP-1/44 and Ex.OP-1/45 and closed the evidence. The opposite party No. 2 also tendered in evidence affidavit of Rachit Aggarwal Ex.OP-2/1, copy of agreement dated 20.10.2016 as Ex.OP-2/2 and Ex.OP-2/3, copy of insurance policy as Ex.OP-2/4, copy of investigation report as Ex.OP-2/5 and closed the evidence. The opposite party No. 3 tendered in evidence copy of insurance policy as Ex.OP-3/1, copy of multiple insurance policy as Ex.OP-3/2, affidavit of Vipan Kumar Chaudhary as Ex.OP-3/3 and closed the evidence.
12. We have heard learned counsel for the parties and have also examined the record of the case very minutely and also gone through the written arguments .
13. The complainant has tendered in evidence her affidavit Ex.C-8 in support of her case. She deposed in her affidavit that she and her family are using LPG for cooking their meal. The mechanic of opposite parties installed the gas stove in her residence on 31.10.2015 and gas stove, regulator and gas pipe was purchased from opposite parties by her at the time of installing the same from opposite party no.1. Opposite party no.1 assured her that it is branded articles and company/opposite party no.2 is responsible for any fault or complaint if accrued in routine and mechanic of the opposite parties will check the connection time to time and guide her. She was using regularly the said connection in routine manner for her daily use. On 16.06.2017 at about 6.30 PM, when her son was trying to boil the milk on the said LPG gas stove with match stick then suddenly her son caught fire due to leakage in the rubber pipe and he was referred to GMCH Sector 32 Chandigarh on 17.05.2017, where he died on the same day due to burning. Ex.C-1 is gas customer card no.7100074110 for domestic purpose issued in the name of Balvir Kaur by opposite party no.1. Ex.C-2 is postmortem report dated 22.06.2016 issued by GMCH Sector 32 Chandigarh. Ex.C-3 is copy of FIR dated 22.06.2017 registered at P.S Mahil Kalan. Ex.C-4 is letter addressed from complainant to Manager/opposite party no.1 regarding death claim of her son. Ex.C-5 is death certificate dated 21.06.2017 of Amritpal Singh. Ex.C-6 to Ex.C-7 are photographs clippings of the defective gas pipe.
14. To counter this evidence of the complainant, opposite party no.1 tendered in evidence affidavit of Birbal Singh Proprietor Sandaur Indane Gramin Vitrak Malerkotla Ex.OP-1/1 on the record. This witness stated that at the time of release of connection special instructions given to complainant and her family in regard to use of above said connection and also advised them that pipe or other articles be changed, if found damage or seen any fault. But the complainant never complained to opposite parties about any defect. He denied any negligence on the part of opposite party no.1. Opposite party no.2 tendered in evidence affidavit of Rachit Aggarwal Senior Manager (LPG-Sales) Chandigarh Area Office Indian Oil Corporation Ltd as Ex.OP-2/1 on the record. This witness deposed that there is no privity of contract between the complainant and opposite party no.2. As per transaction entered into between the Distributor i.e. opposite party no.1 and Corporation/opposite party no.2. The Distributor/opposite party no.1 shall act and shall always be deemed to have acted as principal and not as an agent or on account of corporation. As per clause 17 of the contract between into the corporation and distributor opposite party no.2 cannot be made liable for any negligent act. Ex.OP-2/2 is non judicial e-stamp paper. Ex.OP-2/3 is memorandum of agreement executed between the parties. Ex.OP-2/4 is policy schedule with terms and conditions. Ex.OP-2/5 is accident investigation report. Opposite party no.3 tendered in evidence copy of insurance policy as Ex.OP-3/1. Ex.OP-3/2 is Multi Perils Insurance Policy for liquefied petroleum gas dealers. Ex.OP-3/3 is affidavit of Vipan Kumar Chaudhary Divisional Manager New India Assurance Company Ltd on the record. This witness stated that as per terms and conditions of the insurance policy the complainant is not entitled any claim from opposite party no.3. He denied any deficiency in service and unfair trade practice on the part of opposite party no.3.
15. From perusal of entire record on the file and hearing respective pleadings of the parties, we find that it is an established fact that due to leakage in the gas pipe son of the complainant Amritpal Singh died on 21.06.2017 as per death certificate issued by GMCH Sector 32 Chandigarh, vide Ex.C-2 on the record. The counsel for complainant alleged deficiency in service and unfair trade practice on the part of opposite parties. On the other hand, opposite parties refuted the allegations of the complainant. The counsel for opposite parties pleaded that incident occurred due to negligence of the complainant and her family members. Opposite party no.1 is fully insured by opposite party no.3/New India Assurance Co. Ltd, so that opposite party no.3 is fully responsible to pay the insurance claim for any accident occurred due to LPG Connection.
16. The counsel for opposite parties relied upon below noted judgments in support of their case:-
i) New India Assurance Co. Ltd versus Mala and others by National Commission reported in 2007(2) CPJ 80.
ii) United India Insurance Company Limited versus Jagdish Ram Sharma and others by State Commission Punjab Chandigarh reported in 1993(3) CPJ 292.
iii)Shushila Devi versus M/s N.K. Cooking Gas Agency by National Commission New Delhi and others reported in 2016(2) CPJ 450.
iv) Tarlochan Singh versus Joti Gas Agency and others by State Commission Punjab Chandigarh reported in 2001(1) CPC 257.
v) R.Raga Navya and others versus Hindustan Petroleum Corporation Ltd and others by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad reported in 2007(2)CPJ 505.
17. The above referred judgments relied upon by counsel for opposite parties are relating to leakage of gas due to negligence on the part of complainants themselves. This judgments are not applicable in the present case because there is a manufacturing defect in the gas pipe.
18. Opposite party no.1 in their written version, it is admitted that company/opposite party no.2 is responsible for any fault or complaint, if accrued in the routine manner and mechanic of the opposite parties will check the connection time to time and guide the complainant. Opposite party no.1 also admitted that pipe or other articles be changed, if found damage or seen any fault. The onus on the part of opposite parties to prove that case of the complainant is genuine or not? It is an established fact that Amritpal Singh son of the complainant died due to leakage of gas pipe. The opposite parties admitted in their written reply that they are responsible for any fault or complaint, then the liability is on the part of opposite parties to settle the claim of the complainant at its own level. As per version of opposite parties, if the mechanic of opposite parties check the gas connection of the complainant from time to time then it is bounden duty of opposite parties to remove the defect and replace the defective part and opposite parties cannot wriggle out from the same.
19. The case of complainant covered by Hon’ble National Commission New Delhi in case titled as Madhyuri Govika and others versus Hindustan Petroleum Corporation and another reported in IV(2006) CPJ 338, wherein it has been held that if LPG cylinder is defective and burnt, then it is certainly a manufacturing defect. Further it was held that inference of negligence of supply of defective cylinder on the part of opposite parties can be duly drawn. As per dealership agreement, liability of manufacturer vis-à-vis dealer is on principle to principle basis and both are liable to pay compensation because dealership also undertakes to provide services to the consumer. Opposite party no.1 pleaded in his written reply that “gas stove, regulator and gas pipe” are branded articles and company is responsible for any fault, if accrued in routine manner and company is responsible for any fault or complaint and mechanic of the opposite parties will check the connection time to time and guide the complainant. So, in view of version of opposite party no.1, company/opposite party no.2 is liable to pay claim to the complainant.
20. Learned Counsel for complainant relied upon citation of Hon’ble National Commission, New Delhi in case titled as K.G Sathyanarayan versus Bharat Petroleum Corporation Ltd and others reported in 2006(2) CPC 316 that accident caused due to use of poor quality of rubber tube of LPG. According to terms of agreement it was the duty of the distributor to provide free technical service to the customers as provided in general instructions, which was lacking in the present case. In the instant case, the Distributor/opposite party no.1 failed to perform his duty to ensure safety of consumer, which had resulted in an accident. Distributor/opposite party no.1 cannot escape its liability. As the risk stood covered under the insurance policy. The insurer/opposite parties is liable to indemnify distributor. Held further an authorized distributor was acting under authority of company. The company cannot avoid its liability as principal notwithstanding an agreement between the company and the distributor. According to the complainant, the fire took place on account of defective gas pipe of cylinder. DDR no.10 dated 22.06.2017 was registered at Police Station Mahal Kalan in this regard. It is evident that Distributor shall at his own cost maintain adequately trained and competent staff to do installation work and for connection appliances to cylinder and refills and to attend to the work of repairing appliances and providing free technical service to the customers in accordance with the general instructions given or laid down by the Corporation.
21. In view of above discussion, there is deficiency in service and unfair trade practice on the part of opposite parties No. 1 and 2 and as the opposite party No. 1 is insured with the opposite party No. 3, so the opposite party No. 3 is responsible to pay the insurance claim to the complainant. Due to deficiency in service on the part of opposite parties No. 1 and 2 the complainant has suffered irreparable loss which cannot make good by way of money but as per policy of insurance she is entitled for the amount of insurance claim and also for compensation for mental tension and harassment caused by the opposite parties No. 1 and 2.
22. As a result of the above discussion and the citations of the Hon'ble National Commission, present complaint is allowed and opposite party No. 3 is directed to pay Rs. 6,00,000/- (Six Lacs Only) on account of insurance claim for the death of son of the complainant alongwith interest at the rate of 6% per annum from the date of institution of the present complaint till actual realization. However, the opposite party No. 3 i.e. insurance company is at liberty to recover the amount of insurance claim from the opposite parties No. 1 and 2 for violation of the terms and conditions of the policy. The opposite parties No. 1 and 2 jointly and severally liable to pay Rs. 10,000/- to the complainant as consolidated amount of compensation for mental tension, harassment and litigation expenses. Compliance of order be made within the period of 30 days from the date of the receipt of the copy of this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.
ANNOUNCED IN THE OPEN FORUM:
6th Day of August 2019
(Kuljit Singh)
President
(Tejinder Singh Bhangu) Member
