IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 21st DAY OF OCTOBER 2022
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.No.13/2016
- Lathika, Binu Bhavanam,
Vadakke Nenmenicheri,
Munrothuruthu, Munrothuruthu P.O.,
Kollam 691502. : Complainants
(By Adv.P.R.Jayachandran)
Addl.Com. 2. Devarajan,
Bindhu Bhavan,
Vadakke Nenmenicheri,
Munrothuruthu, Munrothuruthu P.O.,
Kollam
(By Adv.P.R.Jayachandran)
- Binu Raj,
Bindhu Bhavan,
Vadakke Nenmenicheri,
Munrothuruthu, Munrothuruthu P.O.,
Kollam
(By Adv.P.R.Jayachandran)
(Addl.complainant 2 and 3 are impleaded as per I.A No.28/20 dated 23.01.20)
V/s
- Sr.Regional Manager,
Hindustan Petroleum Corporation Ltd.,
Kochi L.P.G.Regional Office, Airport Road,
Irumpanam P.O., Cochin, Ernakulam 682309.
(By Adv.T.Ajeesh)
- Proprietor,
Breez Gas Agency,
Mangad P.O., Kollam.
691015.
(By Adv.A.Shanavas Khan)
Addl.Op3 The Divisional Manager,
United India Insurance Company Ltd.,
Divisional Office, Beach Road, Kollam. : Opposite parties
(By Ad.S.Dileep Kumar)
(Addl.opposite party impleaded as per I.A No.08/17 dated 08.02.17)
ORDER
Smt.Sandhya Rani, B.Sc, LLB, Member
This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.
The averments in the complaint in short are as follows:-
The complainant Lathika has availed a domestic gas connection on 23.09.2010 as per consumer No.1015778 from 2nd opposite party Breeze Gas Agency, Mangad, Kollam. At the time of availing the gas connection the complainant has remitted Rs.5,000/- including Rs.1250/- for the cylinder and Rs.150/- as deposit amount. 1st opposite party is the Senior Regional Manager, Hindustan Petroleum Corporation Ltd., Cochin. The 2nd opposite party has insured with the 3rd opposite party to indemnify any damages sustained to the complainant while she was using the gas connection. On 09.06.2014 at about 6 A.M the cylinder bursted due to leakage of gas and fire occurred in the house of the complainant . Due to that fire the residential house of the complainant having two bed rooms, varanda and kitchen were completely destroyed and all the household articles including TV, fridge, almirah, cots, table, chairs, clothing articles, vessals and all other valuable records etc. were destroyed. Certain wooden articles worth Rs.1,00,000/- stored in the house for the construction of a new building were also destroyed. It is further alleged that the 2nd opposite party has not conducted periodical checking of the regulator and tube provided at the time of availing gas connection to her and thereby the accident occurred. At the time of incident the complainant and her husband were not present at their house. They were at their relatives house because their house construction was going on. The neighbours those who have saw the incident have informed the matter to the East Kallada Police and Kundara Fire Force station. The East Kallada Police has registered a Fire Occurrence case as Crime No.674/2014 and the Fire Force Station Officer, Kundara has prepared a fire occurrence report stating that the accident occurred due to gas leakage. The loss sustained to the complainant is also accessed by the Fire Station Officer. The East Kallada police has filed a U/N Report in the crime case in which it is stated that the fire occurred not due to any electric fault. Though the complainant informed the matter to the 2nd opposite party they didn’t take any action. Moreover 2nd opposite party have failed to inform the matter to 1st opposite party and they have taken an indifferent attitude towards the complainant. According to the complainant the lack of proper care on the part of the 2nd opposite party is the main cause of this incident. Hence there exists deficiency in service and unfair trade practice on the part of opposite parties. In the circumstances the original complainant claims Rs.6,00,000/- along with interest for the loss and damage sustained to her and Rs.25,000/- by way of compensation and also to give direction to the 2nd opposite party to issue fresh gas cylinder to the complainant. Hence the complaint.
Opposite parties 1 and 2 entered appearance in response to the notice and they filed separate version resisting the allegations levelled against them in the complaint. On the basis of the contentions of 1st opposite party Additional 3rd opposite party was got impleaded. They have also filed separate version. According to opposite party No.1 & 2 the complaint is not maintainable either in law or on facts and is bad for non-joiner of necessary parties. The averment regarding the date of availing gas connection and the consumer number stated in the complaint are admitted by opposite parties 1 & 2. According to them the alleged payment of Rs.5,000/- to the 2nd opposite party for availing gas connection is to be proved by the complainant. According to 1st opposite party there is no possibility of bursting of gas cylinder due to gas leakage because bursting is likely to cause only due to prolonged heating of cylinder due to external fire. The fire that has been caused by some other reason and resulted in loss to the property of the complainant cannot be indemnified by the 1st opposite party. It is further contended by 1st opposite party that the gas cylinder provided to the complainant was thoroughly checked before it was delivered to her. That the four quality checks were being done after fitting a gas cylinder such as weight check, valve leak check, O-ring check and under water test bath for finding any leakage and the same was sealed with a tamper proof seal before the cylinder delivered to the customers. The cylinder delivered to the complainant was leak proof and provided with good standard and quality. It was the duty of Fire Force Department to ascertain the cause of fire before coming to the conclusion that the fire is caused due to leakage of gas. The report of the Fire Force Department is based on only possibility without making primary and proper investigation regarding the cause of fire. According to the 1st opposite party they have received intimation regarding the fire incident only after getting notice from this Hon’ble Forum. During the alleged period of accident LPG related damages were insured with the United India Insurance Company Limited and they are bound to indemnify the same and as such the said Insurance Company has to be impleaded in the party array. According to them there is no deficiency in service on the part of 1st opposite party. The 1st opposite party further prays to dismiss the complaint with heavy costs.
According to the 2nd opposite party they are the authorized agent and distributer of 1st opposite party. The 2nd opposite party has no knowledge regarding the burst of gas cylinder used by the complainant and they were also not responsible for the leakage of gas. The complainant has not intimated the fact of fire accident to the 2nd opposite party on the next day of incident. The 2nd opposite party is only an agent and distributor of the 1st opposite party who used to supply cylinder filled with gas and the 2nd opposite party used to distribute the same to the consumers according to the booking. The 2nd opposite party has no responsibility or liability regarding the incident. The alleged gas cylinder was supplied to the complainant by the 2nd opposite party on 21.05.2014 and since then the same was used by her without any defect. If there were any leakage that would have been intimated to the authorized dealers without any fail. According to 2nd opposite party they are not responsible for the fire accidents occurred due to the usage of old and dilapidated cylinder tube. At the time of filing this complaint there exists no consumer relation with 2nd opposite party because since 30.06.2014 the complainants connection was transferred to Devi Gas Agency, Pavithreswaram. After the fire incident the complainant didn’t intimated the 2nd opposite party regarding the incident. There is no deficiency in service or unfair trade practice on the side of 2nd opposite party. Hence the 2nd opposite party prays to dismiss the complaint with their costs.
In view of the contentions of 1st opposite party that the complaint is bad for non-joinder of necessary parties, the additional 3rd opposite party has been got impleaded. In response to the notice the additional 3rd opposite party entered appearance and resisted the complaint by filing written version.
However the 3rd opposite party would admit that they had issued a public liability policy in the name of 1st opposite party M/s Hindustan Petroleum Corporation Ltd. for the period commencing from 02.05.2014 to 01.05.2015, and the risk coverage were specifically mentioned in the policy. It is further contended that as per the policy condition No.1, the insured shall give immediate notice to the company in writing to the nearest office of the company with a copy to the policy issuing office in respect of any claim under the policy. The insured is also expected to lodge complaint before police concerned forthwith. But in this case though the insured was having full knowledge of the claim lodged by the complainant with them, they failed to intimate the claim in writing to the 3rd opposite party as stipulated in the policy conditions and thereby violated policy conditions No.1(a) & (b) of the claim procedure. The 3rd opposite party got intimation regarding the claim only on receipt of the notice from the Hon’ble Forum/Commission. So 3rd opposite party could not evaluate the loss sustained to the building premises of the customer. The insured has violated the policy conditions and thereby the 3rd opposite party has forfeited the right to get indemnified under this policy. Moreover the claim made by the complainant is not supported with any authentic proof or documents. That the complainant has failed to produce any document proving the nature of construction and age of the existed building and the actual loss suffered due to the burning of their residential building. The entire claim raised in the complaint is not supported with any documentary evidence and only based on mere surmises. Hence the complainant is not entitled to get any compensation from the 3rd opposite party. The 3rd opposite party further prays to dismiss the complaint as against them with compensatory costs.
In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get compensation as prayed for in the complaint?
- Reliefs and costs?
Evidence on the side of the complainant consists of oral evidence of PW1 and PW2 and Ext.A1 to A9 documents in which A3, A5 and A6 are marked subject to proof. Smt.Lathika the original complainant has died during trial after examining her as PW1. Hence her husband Devarajan and her son Binuraj were got impleaded as 2nd and 3rd additional complainants, as her legal heirs. Subsequently the 2nd additional complainant Devarajan was also died and now the additional 3rd complainant Binuraj remains as the only legal heir of the original complainant. Evidence on the side of opposite parties 1 and 2 consists of the oral evidence of DW1 and 2. The 3rd opposite party has not adduced any oral evidence but got marked Ext.D1 series documents.
Both sides have filed notes of Arguments.
Heard both sides.
Point No. 1 & 2
For avoiding repetition of discussion of materials these two points are considered together. The following are the admitted facts in this case. The original complainant Lathika is a consumer of the 1st opposite party Hindustan Petroleum Corporation Ltd. The 2nd opposite party Breeze Gas Agency is the authorized delivery agent of 1st opposite party. Additional 3rd opposite party is insurer of the 1st opposite party. The complainant has availed a domestic gas connection from 1st opposite party on 23.09.2010. The 2nd opposite party has delivered the refilled gas cylinder at the residence of the complainant on 21.05.2014. During the period of accident the LPG related damages were insured with additional 3rd opposite party which is liable to indemnify the loss caused to the 1st opposite party in this regard. It is also an undisputed fact that on 09.06.2014 fire occurred in the residential house of the complainant and all the house hold articles and all their valuable records were destroyed. At the time of the incident the deceased complainant and her family were not present at their house. The nieghbours those who have saw the incident have informed the matter to the East Kallada Police and Kundara Fire Force Station. The East Kallada Police has registered Ext.A1 FIR for Fire Occurrence for the incident as Crime No.674/2014 and the Fire Force Station Officer, Kundara has visited the damaged house and prepared Ext.A3 fire report.
According to the original complainant fire occurred in her house due to leakage of gas through the regulator and tube attached to the cylinder. The main allegation raised by her is that the 2nd opposite party has not properly conducted periodical checking of regulator and tube hence the incident happened and that there is lack of proper care on the part of the 2nd opposite party. It is true that in Ext.A3 Fire report it is stated that the fire occurrence might have caused due to the gas leakage. Ext.A8 UN report filed by the Sub Inspector of Police, East Kallada, Police Station reveals that the fire occurred not due to any electric fault. However the original complainant has no case when she lodged Ext.A1 first information that fire occurred due to any gas leakage. What is stated in Ext.A1 by the complainant is that 08.06.2014 cm{Xn 10 aWn¡pw 09.06.2014 cmhnse 6 aWn¡pw CS-bv¡p-ff GtXm ka-b-¯mWv sjUv Xo ]nSn-¨-Xv. F§s\ Xo ]nSn¨p F¶v F\n-¡-dn-bn-Ã. In Ext.A8 U.N.report it is stated that the complainant’s husband and son has given statement before the investigating officer that Bh-em-Xn-¡m-cn-bp-ambn i{Xp-X-bnepw t]meokv tIknepw Ign-bp¶ ]ßn-\n-bpsS ho«p-Im-cpsS And-thm-Sp-Iq-Sn-bm-bn-cn¡pw Xo ]nSn¯w Dm-b-Xv. In the light of the above evidence on record and in the absence of any reliable materials it cannot be held that the fire occurred due to the leakage of gas due to the use of old and dilapidated regulator and tube. It is also clear from the available materials that the complainant has never raised any allegation that the regulator and gas tube are old and dilapidated and there is leakage of gas from the cylinder through the regulator or gas tube.
The learned counsel for the 1st opposite party has argued that the gas cylinder delivered to the complainant was thoroughly checked before it was delivered to her. After filling the gas cylinder it would undergo four quality checks such as weight check, valve leak check, O-ring check and under water test before it is sealed with a tamper proof seal. That the cylinder was leak proof provided with good standard and quality and without an external force gas cylinder will not break and set fire. It is also pointed out that causes of fire is not stated in Ext.A9 GD entry prepared by the fire and safety officials. In Ext.A3 fire report it is recorded that the fire occurred may be due to leakage of gas. In Ext.A1 FIR also it is stated that there is chance of occurring fire due to leakage of gas. But it is only a suspicious finding and not based on any statement of the aggrieved or any of the inmates of the damaged house. On the overleaf of Ext.A3 it is clearly stated that the data furnished in the report may not be full and accurate and the genuineness of the same can be brought out during investigation by an appropriate agency. Even in police investigation it is not revealed that the cause of fire is leakage of gas from the gas cylinder. It is further to be pointed out that there is delay in intimating the fact to the insurance company.
The learned counsel for the 3rd opposite party has pointed out that the complainant in Ext.A1 F.I.Statement has stated that Rm³ Ah-km\w ho«n t]mbXv HcmgvN ap¼m-Wv. A¶v sjUv ]q«n DSs\ Xs¶ t]mbn-cp-¶p. 08.06.2014 cm{Xn 10 aWn¡pw 09.06.2014 cmhnse 6 aWn-bv¡p-an-S-bn-ep-ff GtXm ka-b-¯mWv sjUv Xo ]nSn-¨Xv. F§s\ Xo ]nSn-¨Xv F¶v F\n¡v Adn-bnÃ. It was also stated in that ho«p-]-I-c-W-§fpw aäpw I¯n \in¨v 1,50,000/þ cq]-bpsS \jvSw kw`-hn-¨p. It is further to be pointed out that in Ext.A3 Fire report also it is seen stated that the cause of fire has to be properly investigated by a competent investigating agency by registering a crime for the incident. In Ext.A8 UN report it is seen stated that the husband and son of the complainant expressed their strong doubt before the police, regarding the involvement of the family members of one Smt.Padmini for the cause of fire. It is also stated that the said Padmini and her family members are on inimical terms with complainant and her family. In Ext.A8 U.N report the investigating officer has never made even a suspicion regarding leakage of gas from the LPG cylinder as the cause of fire. It is clear from Ext.A4 copy of book that the LPG cylinder was supplied at the residence of the complainant on 21.05.2014 but the alleged incident occurred almost 19 days after its installation. If there was any defect in the LPG cylinder there is every chance of identifying the same much earlier.
It is pertinent to note that mere leakage of LPG will never cause fire without ignition of fire from any external source. Here the LPG cylinder got blasted due to the external heat that resulted in expansion of LPG gas when the cylinder engulfed in the fire, occurred to the premises due to some unknown reasons. In this connection the doubt expressed by the husband and son of the complainant that the neighbor Padmini and the members of her family might have involved in the accident by hitting fire to the house cannot be ruled out.
It is pertinent to note that during evidence stage the original complainant (PW1) attempted to establish a new cause for the fire occurrence. But there is apparent contradiction in the evidence of PW1 and PW2 regarding the cause of incident. According to PW1 “Xte-Zn-hkw aI³ h¶n-cp-¶p. Nmb A\-¯m³ Kymkv Hm¬ sNbvX-t¸mÄ Xo ]nSn-¨-XmWv At¸mÄ Ah³ ho«n \n¶v Cd§n HmSp-I-bmWv sNbvX-Xv. But she has no such case while lodging Ext.A1 F.I.version. According to PW1 aI³ Nmb CSp-t¼mÄ Kymkv I¯n-¡p-hm³ {ian-¨-t¸mÄ Xo ]nSn-¨-Xm-Wv. She has no such case before police or before the fire and safety officials which is evident from Ext.A1 and A3 documents. However according to PW2 “ Xo I¯nb kabw eXn-I-(complainant) bpsS aI³ a{Zm-kn Bbn-cp-¶p. Again in reexamination she deposed that kw`h kabw eXn-I-bpsS aI³ Fhn-sS-bm-sW¶v Adnbn-Ã. But in the complait it is seen stated in the 4th para that lÀPn I£nbpw IpSpw-_hpw ho«n CÃm-Xn-cp-¶Xp aqew Pohm-]mbw Dm-bn-«n-Ãm-¯-Xp-am-Wv. In view of the above contradictory evidence of PW1 and PW2 the case advanced by the complainant cannot be believed at all.
In view of the above evidence of PW1 and PW2 it is clear that the incident was occurred not during the use of the LPG cylinder and therefore the opposite parties are not liable to make amend the loss caused to the complainant due to the fire occurred in her residence due to some other reasons and therefore no deficiency in service or any unfair trade practice can be inferred on the part of any of the opposite parties. The points answered accordingly.
Point No.3
In the result the complaint stands dismissed.
No costs.
Dictated to the Confidential Assistant Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Commission this the 21st day of October 2022.
S.SANDHYA RANI:Sd/-
E.M .MUHAMMED IBRAHIM:Sd/-
STANLY HAROLD:Sd/-
Forwarded/by Order
Senior superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Lathika
PW2 : Rajamma
Documents marked for the complainant
Ext.A1 : FIR issued by East Kallada, Police Station dated 09.06.2014.
Ext.A2 : Mahazer dated 09.06.2014
Ext.A3(S/p) : Kerala fire and rescue services report dated 09.06.2014.
Ext.A4 : Gas Book
Ext.A5 series (S/p) : Photographs
Ext.A6 (S/p) : Paper report
Ext.A7 : Copy of ration card
Ext.A8 : Fire occurrence report
Ext.A9 : Copy of General Diary, Fire & Rescue, Kundara
Witnesses Examined for the opposite party:-
DW1 : Sanal Kumar
DW2 : Muthubeevi
Documents marked for opposite party:-
Ext.D1series : Copy of the Insurance Policy with condition
Ext.D2 : Policy schedule cum certificate of insurance
