Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.- 222/2016
1. Sh. Gobind Mishra, aged about 40 years
son of Shri Vidya Nath Mishra,
2. Pawan Mishra, aged about 18 years
son of Shri Gobind Mishra,
3. Sanjeev Kumar Mishra, aged about 13 years, minor
son of Sh. Gobind Mishra, through complainant no. 1
being the natural guardian and next friend having
no interest adverse to the minor)
Residents of F-36- B, near Nepali Mandir, Punjabi
Basti, Baljeet Nagar, Delhi …Complainants
Versus
OP1: M/s Shakti Traders, through its
Proprietor/ Partner/ Director Office at: 268/10,
Joshi Road, Karol Bagh, New Delhi
OP1(a): Oriental Insurance Company Limited
SCO-D/5, First Floor above OBC Bank Sector-1, IMT,
Manesar, Gurgaon, Haryana-122001
OP2: M/s Hindustan Petroleum Corporation Ltd
through its Managing Director,
Delhi RegionalOffice, 6th Floor, Core-2,
Scope Minar, District Centre, Laxmi Nagar, Delhi-92
OP2(a): United India Insurance Company Ltd
DO-17, 226, Canada Building, First Floor
Dr. D.N. Road, Fort, Mumbai-40001
Regional Office At: 8th Floor, Kanchenjung
Building, 18, Barakhamba Road, New Delhi-110001 ...Opposite Parties
Date of filing: 06.06.2016
Date of Order: 09.06.2023
[Death case of Smt. Manju]
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh, President
ORDER
.
1. (Introduction)- The complaint was filed for allegations of deficiency in services and negligence against OPs. The Complainant no.1/Sh. Gobind Mishra is a registered consumer/subscriber of domestic LPG connection from OP1 and there was episode of leakage of gas cylinder on 25.07.2015 at about 07:00/07:30 pm when lid was opened and leaking gas cylinder caught fired from blinking from electric meter, consequently 8 family member out of 14 family members got burn injuries apart-from burn injury to a neighbour, who came to help them. Out of 8 injured in a family, 4 were died of such burn injuries. The police was informed, formal FIR was also registered. All the injured were taken to hospitals, where their MLCs were prepared and post mortem of deceased were also conducted, opinion of cause of death were also rendered.
The complaint under the Consumer Protection Act, 1986 was initially filed against OP1 M/s Shakti Trader, LPG/dealer/distributor and against OP2/manufacturer/M/s Hindustan Petroleum Corporation Limited; they filed their reply. They disclosed names of their Insurers namely the Oriental Insurance Co. Ltd. (now OP1(a) of OP1 M/s Shakti Trader and the United India Insurance Co. Ltd. (now OP2(a) of OP2 M/s Hindustan Petroleum Corporation Ltd. Consequently, the complainants applied for amendment in the complaint, which was allowed and names of Insurers were impleaded, as mentioned and shown in the array of parties. Notices were also issued to them, they had also filed their respective reply. The case of parties will be narrated as per amended complaint and replies.
The record is voluminous. There are also repeat of many facts and circumstances as well as link facts are also scattered in the pleadings. Moreover, in pleadings at many instances there is reference of documents but without detail, and for some instances just facts are mentioned. In order to maintain the symmetry and clarity, the case of each party will be put at one place as per pleadings and documents and relevant contents of documents may also be narrated to make it convenient to comprehend and to appreciate the case of parties.
2. Since, there was incident of leakage of LPG gas cylinder and fire explode as well as burn injuries to many persons and some of them had died also. Therefore, it is appropriate to mention relevant circumstances at this stage, as it will make convenient to comprehend the situation.
Date, time and place of occurrence - It was 25.07.2015 and time was at about 07:00/07:30 pm at Ground floor of House no. F-36B near Nepali Mandir, Punjabi Basti, Baljeet Nagar, Delhi.
Inhabitants in the multi-storey house - This house property is built on plot of 44 sq. yards, consisting of the ground floor, the first floor and the second floor. The plot was jointly purchased Shri Gobind Misra's wife Manju and his widow sister Smt. Poonam. Smt. Poonam alongwith her two children were dependent on her brother Gobind Mishra. Sh. Gobind Mishra, his brothers Shri Manikant & Shri Ratenesh and sister Ms Poonam alongwith their families are jointly residing in the said property. Gobind Mishra is registered subscriber of LPG connection no. 662516 for domestic use at their address. The detail of family, alongwith other relevant details consequent to incident of fire, is as follow-
(a) Sh. Gobind Mishra’s widow sister alongwith her children are residing at ground floor, where common kitchen for entire joint family is functional, their detail is as follows:-
(i) Ms. Poonam widow of Shiv Shankar
(ii) Ms. Aarti (daughter, aged 12 yrs)
(iii) Ms. Pooja (daughter, aged 14 yrs, died on 31.07.2015; she had 50% burn injury as per FIR & MLC no. 161154/15).
(b) Sh. Gobind Mishra along with his family is residing in one room at first floor, their detail is :-
(i) Complainant no.1 Mr. Gobind Mishra (40 yrs, injured 24% burn injury as per discharge summary)
(ii) Ms. Manju (wife, died on 30.07.2015,
she had 65% burn injury as per FIR & MLC no. 161156/15)
(iii) Ms. Laxmi (daughter, died on 03.08.2015, she had 55% burn injury as per FIR &n MLC no. 161186/15)
(iv) Complainant no.2 Mr. Pawan (son, injured 16% burn injury as per discharge summary).
(v) Complainant no.3 Mr. Sanjeev (son, injured 26% burn injury as per discharge summary).
© Sh. Gobind Mishra’s brother Mr. Manikant along with his family also resides in 2nd room at first floor, their detail is -
(i) Mr. Manikant (since dead, died on 10.08.2015, he had 45% burn injury as per FIR & MLC no. 161185/15)
(ii) Ms. Khusboo (wife, 25 yrs)
(iii) Mr. Abhishek (son, 6 yrs)
(iv) Mr. Raj (son, 2 yrs)
(v) Ms. Radha (daughter)
(d) Sh. Gobind Mishra’s brother Mr. Ratnesh is residing at second floor, his particulars: are-
(i) Mr. Ratnesh (aged 20 years, injured 15% burn injury as per discharge summary).
Name of police station and treating hospitals - A formal FIR no. 507/2015 was registered on 25.07.2015 u/s 336/337 IPC in P.S. Anand Parbat while recording occurrence hours 07:00pm to 11:30 pm for LPG leakage from gas cylinder and fire at ground floor as well as of nine injured, whose MLCs were collected by Police from RML Hospital. Police had also seized subject gas cylinder. All nine injured persons including a neighbour [namely Mr. Monu son of Hemant, who affected to 15% burn injury, MLC no. 161170/15) were firstly taken to Vallabh Bhai Patel Hospital, however, the injured were referred to R.M.L. hospital, where M.L.Cs of all the injured were prepared.
With this material introduction of names, facts and other relevant features, the further case of parties is being taken.
3.1. (Introduction to dispute of parties) – The complainants have grievances of deficiency of service and of negligence against OP1 and OP2 that because of their omission and commission, there was leakage of gas from LPG cylinder and episode of fire had happened, in which four persons died and five persons were injured. They along-with their insurers OP1(a) and OP2(a) respectively liable because of their public risk policies to compensate the complainants. The complainants seek compensation of Rs. 20,00,000/- along with interest at the rate of 9% pa from the date of treatment till realization against OPs for the death of Ms. Manju.
3.2. Whereas, all the OPs opposed the complaint that neither there is any negligence on the part of OP1 or OP2 nor there is deficiency of services as well as OP1(a) and OP2(a) are also not liable in terms of insurance policy contract, particularly it is a false complaint as the complainants want to take benefit of their own wrong/faults as well as the domestic LPG gas cylinder for first floor of the premises was found being used for commercial and factory purposes at ground floor for manufacturing of mobile chargers.
4.1. (Case of complainants) – Complainant no.1/Mr. Gobind Mishra is a registered consumer of OP1 vide consumer no. 662516 dated 19.09.2009 for domestic cylinder (subscription voucher is Annexure-A to the complaint). OP1 is having dealer code no. 956160. Sh. Gobind Mishra booked a cylinder on 20.07.2015 against registration, it was delivered to him on 24.07.2015 by delivery boy of OP1 (delivery receipt is Annexure-B). Sh. Gobind Mishra kept the said gas cylinder in stock to be used when first cylinder would be empty. The cylinder delivered on 24.07.2015 was not examined by delivery boy of OP1 at the time of its handing over to Mr. Gobind Mishra. Since it was subsidized gas cylinder, the subsidy was credited in the bank account no. 0604000101483227 PNB, Patel Nagar, Delhi (copy of passbook is Annexure-C).
4.2. It was 25.07.2015 at about 07:00/07:30pm, when Smt. Manju Mishra and Ms. Laxmi were preparing dinner for all the members of joint family in the common kitchen at ground floor and the gas cylinder being used became empty. Sh. Pawan Kumar Mishra brought filled up cylinder in the kitchen for replacing to empty cylinder. As soon as the lid of cylinder was opened, the gas started leaking. Therefore, Sh. Gobind Mishra and his wife Ms. Manju Mishra had brought the cylinder out of kitchen in covered varanda to avoid any mishap. Unfortunately, in the varanda there was electricity meter and gas being leaked from cylinder caught fire from the blink of electric meter. Consequently, fire took place. Sh. Gobind Mishra, his wife, daughter, his both sons suffered burn injuries, besides other members of joint family since Sh. Gobind Mishra and his wife became panic, they raised hue and cry and all the relatives, who were residing in the premises came to help them but all of them were trapped in that fire. A boy namely Monu, who is living in neighbor, also came to help the trapped members of the family and put the lid on the cylinder to plug leakage, thus he saved the blast of cylinder. Monu in his rescue efforts of help suffered burn injuries.
All the injured were taken to Vallabh Bhai Patel Hospital, however, while looking the serious condition of injured, they were referred to RLM Hospital in burn ward, where four injured member of family expired after a few days, one of them is Mrs. Manju (she is wife of Sh. Gobind Mishra and mother of Sh. Pawan Kumar Mishra and Sanjeev Kumar Mishra) expired on 30.07.2015 (her post-mortem report is Annexure-D to complaint, it opines cause of death as “ cause of death is septic shock consequent up on infected burn injuries. All injuries are ante- mortem in nature and are caused by flames of fire”). Apart there-from, there was household articles, clothes, mobiles etc., worth of Rs. 10,000/- were engulfed in the fire.
A formal FIR no. 507/2015 of incident was registered in P.S. Anand Parvat u/s 336/337 IPC (Annexure-E). The gas cylinder was seized by the police. As per rules it was required to the intimation of incident to Chief Controller of Explosive, Nagpur, Maharashtra for conducting the mechanical inspection of the cylinder, however, the IO of FIR did not comply with the requirement and failed to issue necessary directions for mechanical inspection of the cylinder.
The complainants no. 1 to 3 also suffered superficial deep burn injuries in their hands, legs and other parts of the bodies. Sh. Gobind Mishra was discharged from hospital on 03.08.2015, he was immobilized physically and was also under severe shock due to death of his wife, daughter and other relatives. On 11.08.2015, he realized that police mistakenly took possession of the other empty cylinder instead of subject leaked cylinder, therefore, after request of his relatives to the police about the mistake happen, the police seized the subject leaked cylinder, which was bearing cylinder no. 146753 by seizure memo.
4.3. The complainant/Sh. Gobind Mishra through his Advocate had sent legal notice dated 25.08.2015 to OP1 and OP2, however, there was some omission happened in the contents of notice due to cut and paste of matter in notice, on the basis of some other previous matter in the record of computer, whereby it was mentioned as if the cylinder was already leaking prior to incident, but it was not so, therefore, on 13.01.2016 a separate legal notice was sent to SHO, P.S. Anand Parvat; Chief Controller of Explosives, Nagpur, Maharashtra; OP1 and OP2 for inspection of the leaked cylinder as per rule 72 of the Gas Cylinder Rules, 1981 and Section 8 of Indian Explosive Act. However, there was no action by them (its record is Annexure-F). Moreover, a corrigendum/rejoinder notice dated 13.01.2016 was also sent, wherein the circumstances were explained that the pin of leaked cylinder was either broken or defective and the gas started leaking when the lid was opened. It was also informed that no inspection was carried out by the employees of OP2, as alleged in their reply and a wrong stand is being taken that the kitchen was situated at the second floor or the cylinder was utilized for commercial purposes in factory for manufacturing mobile phone chargers and other allied items. Actually, there was inspection of regulator and pipe-lines a few days back by the agent of OP1, for which inspection slip was issued that regulator, gas stove and the tube affixed were having no discrepancies (inspection slip is Annexure-G).
The Complainant no.1/subscriber has been maintaining the gas cylinder properly with due care with all safety norms as prescribed. Sh. Gobind Mishra and other family members are consumer as beneficiaries of such services as all the family members were using a common kitchen and sharing the expenses. Ms. Poonam along with her family are dependent completely on Sh. Gobind Mishra for all purposes. Whereas, there is deficiency of service on the part of OPs for supplying defective gas cylinder, they are liable to pay compensation to the complainant(s). That is why the complaint.
4.4. The complainant was a mason and he was earning Rs.15,000/- per month. The complainant's wife Smt. Manju was aged about 35 years, she was 8th pass and she was rendering the household services to the family. In Royal Sunderum vs Manpeet [2012 ACJ 721], principles were laid down to calculate the compensation for home-maker, which are as follows:
(i) Salary of house wife where she is non-matriculate is taken under minimum wages,
(ii) there will be addition of 25% where the home-maker is less than 40 yrs.
iii) the multiplier will be adopted as per second schedule of Sec 163A of MV Act.
iv) A sum of Rs. 25,000/- will be added towards loss of love and affection and Rs. 10,000/- towards loss of consortium and 9% interest was also awarded on the computed award from the date of filing of the petition till it realization.
By applying this, the minimum wages of non-matriculate is Rs. 10,010/- pm on the date of incident of 25.07.2015 and the multiplier of 17 as per second schedule as the deceased was aged about 35 years. The complainants are also entitled to enhancement of 25% in the income of the deceased, thus a sum of Rs. 25,000/- is to be added for loss of love and affection and Rs. 10,000/- towards consortium. In Rajesh vs Rajbir [2013 ACJ 1403], a sum of Rs. 1,00,000/- each under the head of loss of love and affection and consortium and Rs. 25,000/- under the head of funeral expenses were considered. Thus, the total compensation comes to Rs.30,00,000/-. However, the complainant restricts the claim to the tune of Rs. 20,00,000/- along with interest @ 9% pa from the date of petition till realization. The complaint is accompanying with the documents, which are already referred and narrated.
5.1 [Case of OP1]- OP1//M/s Shakti Traders does not dispute that Sh. Gobind Mishra is registered subscriber for LPG domestic connection, however, the other allegations of the complaint are denied with request to dismiss the complaint. The complaint is abuse of process of law, the complaint is false and malicious, it is without cause of action and also pre-mature complaint, since the alleged incidence is under investigation of FIR and no charge-sheet has been filed. There is no negligence or deficiency of services on the part of OP1 as the incidence had happened because of fault and negligence of subscriber and others. The subscriber was supplied the gas cylinder in sealed and properly checked condition by both sides at the time of delivery, there was no complaint about the leakage of any defect in gas cylinder delivered. Further, there is no evidence that the subject cylinder was cylinder of OP1 or cylinder was used as per prescribed domestic connection and terms and conditions. Moreover, it also needs thorough investigation whether or not the cylinder delivered was defected cylinder, since on inspection it was found that the cylinder was used commercially as a factory. It is fake and manipulated complaint and OP1 is not liable for any count. Further, it was also found in inspection that the kitchen is situated on the first floor but the alleged incidence was at ground floor, where complainant no.1 is running a factory illegally for manufacturing of mobile chargers. The OP1 is duly insured with OP1(a) for all the risks and mis-happening in the due course of business, therefore, if any liability occurs in future, then OP1(a) has sole and absolute liability, which the subscriber/complainant is also knowing.
5.2 There is delay of informing the incidence as the alleged incidence of 25.07.2015 but OP1 was apprised after about one month on 25.08.2015; it shows mala-fide conduct of the complainant to extort money. The subscriber cooked a false story of leakage in the LPG cylinder and there was blinking of electric meter in varanda, which result into spread of fire. The complaint deserves dismissal.
5.3 [Rejoinder of complainants]- The complainants reaffirm the complaint correct by denying allegation of reply. The rejoinder also reflects general observation with regard to Delhi, that cylinder blast are common as gas are filled in warn out cylinder, without checking pins and rubber of knobs of the cylinder. The OP1 took flimsy ground that the cylinder was used for commercial purposes at first floor, there is no proof by the OP1. The complaint is not a pre-mature, since police has carried the investigation and also recorded the written statement of witnesses, the incidence happened makes liable the Distributor as well as petroleum company since old warn out cylinders are filled in without checking rubber in the knob are properly fixed. The principle of strict liability applies in this case. The allegations of use of cylinder for commercial purposes for operating factory or mobile charger unit is denied and there is no investigation by the OP1 nor any documentary evidence is filed in support of this plea of OP1. Otherwise, the complainants have given notice to the concern authorities to do needful, however, they paid no heed. The complaint is correct.
6.1 [Case of OP1(a)]- OP1(a)/Oriental Insurance Co. Ltd. opposes the complaint on facts as well as on other reasons. The complaint needs thorough trial, it needs examination in chief and cross-examination of witnesses of both sides, it cannot be adjudicated summarily but by civil court. On facts, OP1(a) denies allegations of negligence or deficiency of services as well as when the gas cylinder was delivered, it was checked and found to be fit for use. The incidence happened because of negligence of subscriber and his family. Moreover, any inherent defect, whatsoever, is because of negligence of OP2 and any liability emanating from the incidence is fasten upon OP2 and OP2 (a). The incidence is shrouded with mystery and proper procedure was not followed by the authority is concerned. There is no report of concern SDM nor any forensic report of defected cylinder and in the absence of documents and reports, nothing can be alleged of negligence of OP1. An insurance policy for multi-perils risk cover for LPG dealer was issued by OP1(a) vide policy no. 215301/48/2016/1972 w.e.f. 28.06.2015 to 27.06.2016 in the name of M/s Shakti Traders, which also comprises its terms and conditions.
6.2 As per record on 24.07.2015 a gas cylinder was supplied to the consumer by delivery-man of OP1, it was delivered after checking and inspection and the same was found to be fit for use. There was no negligence on the part of OP1 but it was consumer, who was at fault, who did not operate the cylinder properly. OP1 was not negligent in any manner for the said incidence, since all safety standards were observed by the gas agency as per prescribed rules and regulations. There is no cause of action against OP1(a) and also no deficiency of services, therefore, the compliant is liable to be dismissed. The investigation in the case was botched by the police and concern authorities, which led to the confusion in the whole proceedings.
The complainant no.1/subscriber's previous counsel had given legal notice after verifying the facts from him but later there is deliberate attempt to conceal the lapses and to improve the case of complainant. The cylinder was being used for commercial purposes in the factory illegally by the complainant. The reply of OP1 is accompanied with the terms and conditions of the policy.
6.3 [Rejoinder of complainants]- The complainant filed the rejoinder in detail, however, the allegations in the reply are denied and the complaint is reaffirm as correct; the rejoinder is on the lines of narration as given in paragraph 5.3 above. In addition, the inspection report dated 21.06.2015 clearly describes that condition of regulator, rubber, stove and general condition were satisfactory and nowhere in the report it is mentioned that the complainant was using cylinder for commercial purpose. The otherwise, the report is bogus. The factual position was explained in the complaint about the corrigendum and legal notice.
7.1 [Case of OP2]- OP2(a)/Hindustan Petroleum Corporation Ltd. also opposes the complaint that the same is false fabricated and concocted and it has been filed with intension to causing damage to the image of corporation. It is abuse of process of law. There was no complaint or information from the complainants about leakage or any defect in cylinder delivered. There is also delay of one month as incident was of 25.07.2015 but legal notice was sent on 25.08.2015. No such event had taken place of supply of defective cylinder.
7.2 On investigation of the case, actual cause of accident, source of gas leakage and source of ignition could not be established, however, during investigation the some facts emerged are- (a) the customer is having a domestic HPC connection on first floor of the registered address, (b) the customer was involved in a commercial activity on the ground floor at the registered address, (c) the incident took place on the ground floor as per the FIR report and as confirmed by the customer, (d) there was no loss of property or other structural damages reported by the customers or by police during the fire accident, (e) the customer never approached the opposite party no. 1 or opposite party no. 2 to report about the accident and (f) the customer was using LPG cylinder for the commercial activity at the ground floor of the registered address, (the copy of investigation is annexure R1 to reply).
The OP2's risk is covered by insurance policy no. 0217002715P101332273 issued by OP2(a)/M/s United India Insurance Company (copy of policy is annexure R2). Moreover, as per clause 18 of LPG distribution-ship agreement executed between the relationship between OP1/Dealer and OP2/Manufacturer are of principal to principal (annexure R3 is an agreement), therefore, the dealer shall act as principal and to fully indemnify the corporation. The reply reproduces clause 18 as well as clause 19 of such agreement to fortify that any eventuality happens, then OP2 will not be liable for any liability. Consequently, in terms of agreement, OP2 has no liability at all in respect of the said incidence.
Moreover, as appearing from the investigation, the kitchen is situated on the first floor and the incidence occurred at the ground floor, where a factory for manufacturing mobile chargers and other items was running illegally as well as it also appears to such investigation that the said incidence did not take place while the cylinder was utilized for cooking purposes but incidence is result of self-negligence of the complainant as he was using domestic cylinder in commercial activity. The consumer has never reported or registered any leakage complaint in writing or through portal or personally, which also shows that complaint is an afterthought. The cylinder was supplied to the complainant no.1 being sealed and properly checked by both the sides at the time of delivery. The contents of complaint are self-contradictory as on the one side, it is alleged that police had seized the cylinder and on the other side it is stated that the same is required to the given to the Chief Controller of Explosives Nagpur Maharastra for appropriate mechanical inspection of the said cylinder vis-à-vis the police had seized other empty gas cylinder instead of subject leaked gas cylinder. There is also unreasonable delay informing the OP1 and OP2 of alleged incidence, it creates a strong doubt in the case. The averments made in the legal notice and corrigendum notice are false, self-contradictory and concocted story, there was another story in the subsequent legal notice, the OP2 has made reply dated 21.09.2015 (there are annexure R4 and R5). The OP2 also denies the facts about the age, qualification and wife of complainant no. 1 for want of knowledge, however, the complainants are not entitled for any compensation because of objections already raised. The complaint deserves dismissal.
7.3 [Rejoinder of complainants]- The complainants filed rejoinder to the reply of OP2 and complainants deny all the allegations of reply. The complaint is reaffirmed as correct and this replication is also on the lines of paragraph 5.3 above, which are not repeated for the sake of brevity.
8.1 [Case of OP2(a)]- Except the averments admitted, OP2(a) denies other allegations of complaint. The complaint deserves dismissal since there is no privity of contract between the complainant and OP2(a), the complaint is bad for mis-joinder of OP2(a) being not necessary party. The complainants concealed the material facts about use of LPG cylinder by him and his family, the complainant or his family members failed to check at the time of delivery of gas cylinder by delivery man, they have committed gross and deliberate negligence by the consumer and the distributor; there is violation of mandatory rules of safety by the consumer and the distributor, thus OP2(a) has no liability. Moreover, neither complainant no.1 informed nor complained to the dealer or Corporation that the cylinder supplied was not checked by the delivery-man, thus consumer is guilty of his own wrong by using unchecked cylinder. The subscriber's gas stove fitting and fixtures were not checked as per specify mandatory rules and requirements, the complainant suffered losses by his own wrong and deliberate negligence. The OP2(a) relies upon some specific terms and conditions of the Insurance Policy inter-se OP2 and OP2(a), which are reproduced as follows:-
Policy exclusion clause 9.1 states that-
(i) That insured shall given written notice to the company as soon as reasonably practicable of any claims made against insured (or any specific event of circumstances that may give rise to a claim made against the insured) and which form the subject of Indemnity under this policy and shall give all such additional information as the company may require. Every claim, write, summons or process and all documents relating to event shall be forwarded to the Company immediately they are received by insured.
The liability of OP2(a) may arise at the stage if the compensation is awarded against the OP1 & OP2 and they may claim to indemnify by the OP2(a) and OP2(a) shall indemnify the OP1 and OP2 as per terms and conditions of Insurance policy. In Dr. (Mrs.) Indu Sharma vs Indraprastha Apollo Hospital, [Case no. 104 of 2022, dod 30.07.2015 by Hon’ble National Commission] it was held that insurance company shall indemnify the respective OPs, as per law. Moreover, the OP2(a) has promised to indemnify the insured ‘Hindustan Petroleum Corporation’ subject to certain terms and conditions of the insurance policy, which does not cover to indemnify for unlimited liability. The schedule of insurance policy (refer the page 35 of Annexure R of this Complaint), the terms and conditions of the insurance policy, are as under:-
Per year: Rs. 100 crores
Personal Accident to third parties and customers and property damage at authorized customers’ registered premises (irrespective of liability of Law)
a) PA 1 to 5: Rs. 5,00,000/- per person per event;
b) Medical expenses: Rs. 15,00,000/- per event (max. Rs. 1,00,000/- per person, immediate relief upto Rs. 25,000/- per person;
c) Property damage: Max, Rs. 1,00,000/- per event at authorized customers’ registered premises;
d) per year in aggregate Rs. 8 crores.
(v) That the public liability policy for oil industries ( being annexure at page 26 of the complaint)
Exclusion/ exceptions: Clause 3 is that "this policy does not cover liability arising out of deliberate, willful or intentional non-compliance of any statutory provision and non-fulfill of maintenance or poor quality control".
8.2 Since the consumer failed to examine the gas cylinder at the time of delivery, which is against the safety norms, therefore, OP2(a) is not liable to compensate against the concern indemnity policy. Moreover, as per complaint, the fire was caused by blinking in electric meter, which is very much concerned with the liability of electric supply of agency, which contributed in the present mis-happening, thus OP2(a) is not liable to compensate against indemnity policy nor OP2(a) is liable for deliberate negligence of consumer of distributor of LPG cylinder. The IO of the case failed to followed rules to ascertain the leakage. OP2(a) was not served with any legal notice nor corrigendum/rejoinder. There is no deficiency of services or negligence on the part of OP2(a).
8.3 [Rejoinder of complainants]- The complainants filed their detailed rejoinder, it is replica of complaint and also denies the allegations of reply. There is no duty caused upon the complainant to inform the distributor and the manufacturer that the cylinder was not checked by the delivery-boy, this defence is just to harass the complainant; otherwise, no document has been provided to the complainant that the subscriber was to inform the Oil Companies for not checking the cylinder. The insurance company took the defense, which could be only by oil companies. Neither the policy nor the terms and conditions of policy were supplied to the complainants, thus the same are not applicable against the consumer and his family. Under the Consumer Protection Act, the provisions of CPC and principles of contract are not strictly applicable and the Consumer Fora has to seek whether there is deficiency in maintaining of LPG gas cylinder on the part of distributor company or the main oil gas company. The incident of fire happened due to leakage of gas cylinder, the leaking cylinder was brought in the varanda for safety but there was electric meter and gas cylinder caught fire from blink of electric meter, therefore, electricity company is not responsible. The complaint is correct.
9.1. (Evidence)- In order to establish the complaint, complainant no. 1 Sh. Gobind Mishra filed his detailed affidavit of evidence, it is replica of complaint coupled with documents.
9.2. Sh. Tajender Kumar Sethia, Proprietor M/s Shakti Trader filed his affidavit of evidence for OP1 and it is reiteration of contents of reply.
9.3. OP1(a) filed detailed affidavit of evidence of Sh. Subhash Chandra, Deputy Manager (Legal), being insurer of OP1, it is on the pattern of reply and terms and conditions of policy has been supplemented.
9.4. OP2/ Hindustan Petroleum Corporation led evidence by filing affidavit of Sh. Sushil Kumar, Deputy General Manager (LPG Region, Delhi), it is supplemented with the documentary record filed with the reply, already referred in the case of OP2.
9.5. OP2 (a)/ United India Insurance Co. Ltd., being insurer of OP2, filed affidavit of Sh. S.C. Giri, Regional Manager, it is compact and brief affidavit of evidence based on the material containing in the reply to the complaint.
10.1 (Final hearing)- OP1,OP1(a), OP2 and OP2(a) filed their respective written arguments and majority of the contentions are repetition of their pleadings and evidence, however, during arguments certain case law were supplemented by two OPs, apart from a few case law mentioned in the written arguments, they will be discussed appropriately.
10.2. The parties were given opportunity to make oral submissions. Sh. Sanjeev Mehta, Advocate for complainant, Sh. Daljeet Singh & Satish Kumar, Advocates for OP1 and Sh. Ravi Rai, Advocate for OP2 made the oral submissions and insurer/other OP1(a) and OP(a) failed to make oral submissions. However, the contentions of all the parties will be considered on the basis of material on record.
11.1.1 (Findings)- The contentions of all the parties are considered, keeping in view the material on record. There are many admitted facts as well as the disputed facts. They are cull out from the record, they are being mentioned to make it convenient to appreciate the case of parties.
[Admitted facts] - The undisputed facts like Sh. Gobind Mishra is registered subscriber of domestic LPG connection for his residence, he is holding of double cylinders, registered booking of LPG gas cylinder on 20.07.2015, delivery of cylinder on 24.07.2015 against receipt memo, credit of subsidy in the account of subscribe/consumer, strength of family of subscriber, incident of leakage of LPG gas and spreading of fire on 25.07.2015, registration of FIR in P.S. Anand Parvat after that incident of fire, medical examination of injured in Vallabh Bhai Patel Hospital and then their shift and further treatment in RLM Hospital, where MLCs of nine persons being victim of fire were prepared and its collection by police, there was 4 casualties and their post-mortem was requested by police and it was conducted, the cause of death was also opined in the post-mortem reports. Complainant no.1's wife Smt. Manju is one of them.
11.1.2. The police had seized leaked LPG cylinder during investigation of the case, however, final outcome of the investigation has not been brought on the record by either of the parties is also an admitted fact. The complainant had issued legal notices to the OP1 and OP2 and to other authorities, however, there is no appointment of any expert nor any forensic report or report of are SDM despite the complainants had written notice to the competent authorities. Moreover, OP2 also pleads that there is mystery about the source of ignition for causing fire, as nothing unfolded during the investigation by OP2.
11.2.1 [Disputed facts] - However, the remaining are disputed facts as well as rival plea on the point of negligence or deficiency of services. The complainants allege that the leakage of gas was result of delivery of defective LPG cylinder, when lid was opened, immediately the gas was leaked from cylinder and when the cylinder being leaked was brought to the varanda, the fire was caught from the blinking of electric meter. There is also deficiency of services on the parts of OPs.
On the other side, the OPs blamed complainant that it was complainant/ subscriber who was at fault and the subscriber is trying to take benefit of his own fault, the incident had happened because of mishandling of LPG cylinder, that too by not following the safety norms. The subscriber was running a factory and domestic LPG gas cylinder was being used commercially in manufacturing unit of mobile charger, no incident had happened during cooking in the kitchen vis-à-vis the LPG connection was issued for kitchen at first floor, whereas the cylinder was being utilized at ground floor in the factory illegally. There is delay of about one month that incident of 25.07.2015 was informed to OP1 and OP2 by notice dated 25.08.2015, there is also unexplained delay.
11.2.2. The other disputed issue is of entitlement for compensation as well as quantum of compensation, apart from the liabilities of OPs; as the case of complainants is that they are entitled for compensation and other relief but OPs deny of compensation as well as their liabilities to pay it. OP1 and OP2 have also inter-se rival plea as OP1 put its case that whole liability will be of OP2 but OP2 put it otherwise firstly because OP1 is dealer of manufacturer OP1, the contractual relation is of principal to principal, secondly OP1/dealer has responsibility and liability for all events and incident.
11.2.3. Now, those disputed issues are taken one by one.
12.1.1. There is an objection that complaint is pre-mature since police had registered FIR and investigation is yet to be concluded, however, reasons are misplaced, since investigation by police may result into charge-sheet or final report, but it is consumer complaint, which is in addition to and not in derogation to other law. This plea of OP1 carries no weight.
12.1.2 OP1 has reservation that the complaint involves crucial question of investigation and trial by the civil court because it needs examination in chief and cross examination of witnesses of the parties, it cannot be tried summarily by the Consumer Forum. It is opposed by the complainants’ side that the consumer forum is competent to determine the issue and majority of the facts are in the form of documentary record vis-à-vis the witnesses produced on behalf of OPs are their officers, their deposition are also based on record and perception. The complainant no. 1 has narrated the episode, there is registration of FIR and also medical paper of treatment/post-mortem report, it does not warrant that such record can be examined by the civil court exclusively, the Consumer Forum is competent and the matter can be dealt summarily.
The rival contention of both the parties are considered, the submissions and the counter submissions of the parties are themselves suffice to say that majority of the facts are based on documentary records, none of witnesses of the OPs is spot witness nor evidence of deliveryman was led nor any fact to suggest that there exists difficulty for leading evidence nor any material is lacking which may require cross examination, On the other side there is no plea on behalf of the complainant that cross examination of witnesses of OPs are required, as the relevant documentary record have been filed. Therefore, it is held that the Consumer Forum/ Commission is competent determine/ adjudicate the dispute summarily. Accordingly this contention is decided against the OPs.
12.1.3. OP2 has raised an objection that complainants are not consumer. Whereas the complainant no.1/subscriber has reservation that it is clearly covered under the definition of consumer and potential users/beneficiary are also consumer.
The contentions are compared in the light of record. OP2 does not dispute that OP1/agency is its dealer and the relationship of the complainant no.1/ as registered subscriber and of OP1/ LPG agency are not disputed. The subscriber of LPG connection as well as the beneficiary in the family are covered within the definition of consumer under Consumer Protection Act, 1986. The OP1(a) and OP2(a) are insurers, to cover public risks insurance policy. This plea of OPs also stand disposed off against them and in favour of subscriber/complainants.
12.1.4. The OPs have objections that incident was of 25.07.2015 but OP1 and OP2 were not informed immediately but they got the information on receipt of legal notice of 25.08.2015, there is delay in informing the OP1 and OP2 vis-à-vis the other OP1(a) and OP2(a) were not served with any legal notice; the delay in giving the information is misconduct of complainants, which shows mala-fide. Whereas, the complainants opposed this plea firstly, the police stands informed immediately, secondly, the complainant no.1 was not aware of the terms and conditions of insurance policy or of others as not apprised with them. Lastly, the police was informed, who came into action immediately. The plea of OPs is just to escape from the liability and that is why this kind of objections are being raised.
By looking into this rival stand of the parties, many circumstances are on record either expressly or impliedly. It is manifest from the record that the complainants/subscriber had not informed OP1 or OP2 immediately after the episode, however, there were legal notices firstly 25.08.2015 and then corrigendum/ rejoinder and also separate notice dated 13.01.2016, which were sent to OP1 and OP2 apart from the same was sent to SHO, Anand Parvat and other competent authority. Simultaneously, the police FIR no. 507/2015 was registered on 25.07.2015 on the same day of incident. Moreover, not only the complainant no.1/ subscriber but also his wife, daughter, two sons, two brothers, daughter of his sister apart from a neighbour were taken to hospital because of burn injuries. The complainant no.1/subscriber was discharged on 03.08.2015, when he was in immobilized condition as well as under shock. These circumstances are suggesting that first notice could be sent on 25.08.2015 as an information. Thence, another notice and separate corrigendum dated 13.1.2016 were also sent. The purpose of information was to do needful inclusive of to inspect and survey the site as well as it was legal advices in notice for mechanical inspection of leaked cylinder may also be carried out, but it was not done. The contentions of both sides on this issue stand answered and disposed off.
It is not out of context to mention that when the formal FIR was registered in P.S. Anand Parvat as well as notice dated 13.01.2016 was sent to competent authorities inclusive of SHO, P.S. Anand Parvat and OP1 and OP2, it was within the power and authority of these concerned, to get examined the cylinder but for want of action in this regard there is no report of forensic expert, report of SDM or other surveyor. The OP2's Deputy Manger had carried out the inspection but it has been mentioned in the report that cylinder was not inspected because police did not show it, however, no request letter to police is proved that police was actually requested to inspect cylinder in official capacity or for what reasons it was not allowed. Consequently the evidence led by the parties, either direct or documentary or circumstantial and other narration of witnesses will be assessed to decide the disputed issues.
12.1.5. On the side of complainants, there is ocular witness or victims who suffered injuries and on the other side there are evidence of officer of OPs, none of them is a spot witness, PO1 had not led evidence of delivery-man of gas cylinder. The contents of FIR, the post-mortem report of the deceased/ MLC of injured and other narration explained are episode of leakage of LPG from the cylinder, which caught and spread fire at the said premises.
But according to OPs, it happened due to mishandling of LPG cylinder by the subscriber or his family members and their negligence; a factory of mobile charger manufacturing unit was being run illegally by utilizing the LPG cylinder and it was found so on inspection by OP2. OP2 relies upon its report dated 25.09.2015 being report no. 001 by its Deputy Manager Sales, namely, Sh. Ketan Karnik.
It is opposed by the complainants vehemently there was no negligence or mishandling of LPG gas cylinder by the complainant nor it was being used for commercial purposes or for manufacturing unit of mobile charger nor such unit is in existence nor any factory was in function nor there is any independent report to this effect. The report of Deputy Manager Sales cannot be accepted as a report of an expert or a surveyor, since Section 64 UM of the Insurance Act mandates that a surveyor or loss assessor shall be a qualified person as per norms laid down and the said report does not show meeting of such requirement/qualification by Deputy Manager Sales. By assessing and comparing the rival plea, the following conclusions are drawn-
(i) the complainant has proved inspection slip dated 21.06.2015 (which is prior to date of incident of 25.07.2015) in respect of inspection of regulator, rubber hose, stove and other aspects, there is nothing in that report to be construed that the cylinder stove etc., were not being handled properly; besides the complainant has been subscriber of LPG gas connection from the year 2009 being registered consumer no. 662516 dated 19.09.2009;
(ii) the OPs allege that the LPG gas cylinder meant for domestic purpose was being used for commercial purposes and running of factory of mobile phone chargers. The OP2 had also got done inspection of the premises. Neither there is any evidence nor any iota of fact in the inspection report of OP2 as to what kind of plant, machine, tools, material (raw or otherwise) were found existing there and what was the source of energy for operating machine if any, there is also no reference of any final product of mobile charger to construe that an establishment/ factory was existing there;
(iii) there is no report, demonstration, illustration nor any indication as to how LPG gas cylinder was being used for the purposes of manufacturing of mobile charger or how it was being used as an in-let gas or otherwise, if there was manufacturing unit/ factory in the premises of subscriber/complainant no. 1;
(iv) there is nothing mentioned specifically or any discovery by the OPs as to what kind of mishandling was there on the part of complainants, which resulted into leakage of gas;
(v) by reconstructing the episode explained and narrated by subscriber, immediately after putting off the lid from the subject gas cylinder, the LPG gas started releasing forcefully, being its pressure, then cylinder was brought at another place in varanda to avoid any incident at place of kitchen at ground floor but incident of fire happened in the varanda by catching of fire from the blink of electric meter. This efforts of bringing cylinder in the condition of releasing of gas at other place was for safety and to avoid any kind of mis-happening in the kitchen, however, it had happened at other place in the varanda. Such efforts of brining gas cylinder at other place was bona-fide to avoid any unfortunate incident and it cannot be construed negligence or fault on the part of subscriber & others. Further, it is also emerging from the material on record that it was not knowing/conscious at that moment that there was blink in the electric meter, which may came into contact gas releasing from cylinder,
(vi) OP1 has raised doubt, whether it was same cylinder, which was supplied, however, subscriber has given detail of booking/registration, its delivery as well as cylinder number, then onus was shifted on OP1 to disprove it by leading other strong evidence of that cylinder was not delivered by OP1, it has not been done so by OP1 and
(vii) it is matter of record that subscriber had sent legal notice dated 25.8.2016 as if cylinder was already leakage condition but subsequently the circumstances were explained as reiterated in the complaint, however, it would not given any benefit to the OPs since FIR for leakage of gas cylinder was already registered, there is also report by Delhi Fire Service Department on record. In addition, OPs plea that on one side police had seized the cylinder and on the other side said notice was sent to competent authorities for inspection, however, there is nothing in consistent since the same is requirement of law, competent authorities may do inspection and file reports.
The aforementioned conclusions established that the complainant/ subscriber as well as the other persons came to rescue from the releasing of gas from the cylinder were neither negligent nor at their fault. The OPs could not establish negligence on the part of complainant.
13.1. It is submitted on behalf of complainants that whenever gas cylinder is supplied, it is closed with a cap, however, there may be many reasons for leaking of LPG cylinder, like rubber fitted on knob of cylinder is cut off, or knob is defective and as soon as the cap or lid is opened, gas started coming out from the cylinder. The principle of strict and absolute liability are applicable in such cases. (reliance is placed on para 15 of Shri Dharam Pal vs Bhart Gas Service and Ors. dod 25.04.2006 by SCDRC, Delhi). As per the Public Liability Insurance Act, 1991, hazardous substance are defined read with the provisions of Environment Protection Act, 1986 and the nature of LPG cylinder falls within that category, the dealer and the corporation are bound to observe the norms, standards and consequent liabilities pertaining to safety measure of LPG gas cylinder. The principles of strict liability laid down in Rylands vs Fletcher, 1968 LR3 HL 330 is applicable. The further submissions on behalf of complainant are fortified from the case law, which are as follows:-
(i) M.C. Mehta and another vs Union of India and others, dod 20.12.1986, 1987 ACJ 386 SCC (para 31), held "we are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas, owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost of carrying on the hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not and
(ii) Delhi Jal Board vs Raj Kumar & Ors. Dod on 28.10.2005, 125 (2005) Delhi Law Times 120 (DB) (Para 20) "thus in case where the principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendant may not have been at any fault".
(Para 38) In India, Article 38(1) of the Constitution states “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
Moreover, it was the responsibility of dealer and corporation to get inspected the LPG cylinder from experts for appropriate opinion. The complainant no. 1 had also given notice to do needful, however, despite such notice the inspection was not got done. The complainant relies upon-
(a) Master Dhiraj Rajesh Hukmatani & Anr. Vs Ahmedabad Co-operative stores Ltd. & Ors. FA no. 85/2011 dod 18.01.2018 by NCDRC, it was held (in para 18) that it was for the manufacturer or the dealer to ascertain and prove the cause of leakage of gas; he distributor as well as manufacturer were held for deficiency in services as no attempt to ascertain the cause of accident was made by them (para 20) and
(b). Madhuri Govilka & Ors. vs Hindustan Petroleum Corporation & Ors IV (2006) CPJ 338 (NC) dod 03.10.2006, it was held that doctrine of res ipsa loquitur was applicable and inference of negligence and supply of defective cylinder was drawn in respect of leakage of gas cylinder, which was supplied on 12.08.1995 and incident happened on 26.08.1995 vis-à-vis it was also held that OPs in that case failed to establish that gas cylinder was not defective in any other manner. Further the gas cylinder was having manufacturing defect, manufacturer was held liable.
13.2 Whereas, on the other side, the OPs have reservations that neither the doctrine of Rylands vs Fletcher nor the principle of res ipsa loquitur nor the case law presented is applicable. The plea of complainants are not acceptable in the facts and features of this case.
13.3. The notice sent to authorities have been proved on behalf of complainants but there is no record that OPs had made any efforts or request for inspection of spot and cylinder from the experts.
Whereas, the conclusion drawn in para 12.1.5. above proves the plea of complainant that the release of gas on opening the lid could be because of defect. Otherwise, what happens after removing the lid, the regulator is to be affixed on that knob and regulator is switched on and then gas is released. Whereas, in this case the LPG gas started leaking and released after putting off the lid, it ought not to have been so. Therefore, circumstances on record are in favour of complainant that there was defect in the LPG gas cylinder supplied. The episode of fire happened, which result into burn injuries and causalities. It would not dilute the circumstances that cylinder was supplied on 24.07.2015 and episode had happened on 25.07.2015. It would also not mitigate the responsibility that when the cylinder was handed over it was fit, since the cylinder was supplied as a whole body but its operational points were in the under lid, consisting of knob and pin. There is also contradictory pleas of OP1 and OP2, one stand is that gas cylinder was delivered after checking it by both sides and other plea is that complainant was negligent by not checking the cylinder when delivered. The LPG gas cylinder supplied was defective, it amounts of deficiency of services on the part of OPs. The case laws filed by complainants are in their favour. However, complainant could not bring on record/prove damages stated to have happened to house-hold goods etc.
14.1 The complainants request that it is settled law that compensation should be just compensation and since there is deficiency of service on the part of OPs. The complainants [being husband & children of deceased Smt. Manju], are to be compensated in terms of law settled. The further submissions of complainant are fortified from the law laid down, from time to time in the following cases:-
(i) Balram Prasad vs Kunal Saha and others, (2014) 1 SCC 384, it is duty of Tribunals, Commissions and Courts including Supreme Court to award just and reasonable compensation even if the same is more than what was originally claimed.
(ii) Taskinuddin & Ors. vs State (NCT of Delhi) & Anr., 2013 (138) DRJ 614 dod 11.09.2013, held that compensation may be awarded on the norms of standard compensation/ conventional amount and compensation for pecuniary loss of dependency.
(iii) Royal Sundaram Alliance Insurance Co. Ltd Vs Manmeet Singh 2012 ACJ 721, when there is no actual income but notional income of home-maker is to be computed, the law was laid down as to how minimum salary is to be computed on the basis of educational qualification of a graduate, matriculate or non-matriculate vis-à-vis the age etc.
(iv) National Insurance Co. Ltd. vs Pranay Sethi and others 2017 ACJ 2700 dod 31.10.2017 by Hon’ble Constitutional Bench, in para 61 many conclusions were drawn by referring previous decisions for selection of the multiplier, 2nd schedule appended to the M V Act being guiding factor r/w case of Sarla Verma case ,determining the compensation under certain circumstances, factors for applying the multiplier apart from other conventional pattern of award of compensation.
14.2. Whereas the OPs have reservations that when the complainants are not entitled for compensation from any quarter, the reasons of complainants are misplaced.
14.3. By considering the rival plea, inclusive of conclusion already drawn in aforementioned paragraphs, especially that there is deficiency of services on the part of OP1 and OP2, the complainants are entitled for compensation in respect of death of Smt. Manju, aged about 38 years at the time of her death and she was non-matriculate. The guiding factors may be taken from Table of precedents and as per the norms settled in Sarla Verma Vs DTC [2009 ACJ 1428 (SC), para 21], the multiplier is 16. Since, she was not actually earning salary or self-employed but being a home-maker, thus notional income of a non-matriculate may be considered [being minimum salary of semi-skilled of Rs.10,010/- in 2015] as held in Royal Sundram Alliance Insurance Co. Ltd. (supra) and there is no provision of deductions towards personal and living expenses. However, subsequently in National Insurance co Vs. Prnay Sethi 2017 ACJ 2700, certain conclusion were drawn, which also includes enhancement of 40% as well as 1/2 of the income of the deceased would be deducted as personal and living expenses.
The complainants also calculated the amount of compensation in the complaint on the basis of multiplier 17, while relying upon Royal Sundram Alliance Insurance Co. Ltd. (supra) but in the written arguments, multiplier 16 was applied, amount was calculated. But another calculation was also made on the basis of National Insurance co Vs. Prnay Sethi 2017 ACJ 2700 and finally amount claimed is Rs.16,92,876. However, there is miscalculations, as by notional income of Rs.10,010/-+its 40%=Rs.14,014x12x16=Rs.26,90,688/- and its half is to be for personal and living expenses, the rest amount of compensation comes of Rs.13,45,344/-. The complainants are entitled for this amount of compensation of Rs.13,45,344/-. The interest component of 7%pa from the date of complaint till its realization will also meet both ends, the complainants are also held entitled for interest.
15.1. However, question arises, who will be liable to pay compensation and interest? There is also rival plea inter-se OP1, OP1a and OP2, OP2(a) with regard to liability of compensation. According to OP1, it is insured by OP1(a) and there is no liability of OP1. On the other side, the relationship of OP2 and of OP1 are principle to principle being dealer and corporation respectively, that too, on the basis of dealership agreement. OP2 also contends that the whole responsibility is of OP1 being dealer having relation with the subscriber/ consumers and there is no role of OP2, but OP1 has contentions contrary to it that OP2 being corporation is liable. OP2(a) also denies direct liability, since OP2 has no role at all as well as the complainant no. 1 and others were at fault for which OP2 cannot be held liable. The OP2 fortifies its contentions while relying upon:-
(a) Indian Oil Corporation vs Consumer Protection Council, Kerala and another, dod 07.12.1993, (1994) 1 SCC 397, it was a case of unauthorized gas connection and complaint was in respect of deficiency of services, it was held that there is no privity of contract between the appellant and the consumer, therefore, action itself is not maintainable before the Consumer Forum.
(b) M/s Hindustan Petroleum Corporation Ltd. vs M/s PSNR Combines and others: [2010] NCDRC 29, it was held that in view of terms and conditions of agreement and specific clauses (18 & 19), the appellant cannot be held liable.
15.2 Whereas, the complainants opposed the plea of OPs that there are vicarious liabilities, they all are liable to compensate jointly and severally. The principle of strict liability, public risk insurance policy and relationship of dealer & manufacturer of OP1 and OP2 as well as their insurers, bind all of them. The Public Liability Insurance Act 1991 also prescribes minimum no fault liability, whereas in this case there are clear cut deficiency of services. The case of Indian Oil Corporation vs Consumer Protection Council, Kerala (supra) is distinguishable, since in that case there was un-authroised connection and it was not case of consumer, whereas in the present case there is registered subscriber. Further support is taken from -
(i) K.G. Sathyanarayan vs Bharat Petroleum Corporation, dod 19th May, 2006, 3(2006) CPJ 8 NC (Para 25) According to Clause 16, the distributor shall, at his own cost maintain adequate trained and competent staff, to do installation work and for connecting appliances to cylinders and/ or refills and pressure regulators and to attend to the work of repairing appliances and providing free technical services to the customers in accordance with the general instructions given or laid down by the Corporation. If the trained staff was kept for providing free technical service to the customers in accordance with the general instructions, the staff after noticing defect or low quality tube should have advised and could have refused even to supply the gas cylinder without changing connecting tube.
(Para 26). In view of the aforesaid facts and circumstances, it would be evident that by not insisting as changing the tube and installing gas cylinder despite defective tube, M/s Rohan Gas Distributors failed to ensure a duty caste on them under the distributors agreement to give necessary technical advice. Thus, the distributor failed to perform its duty to ensure safety of the consumer and, thus, lend assistance in creating an occasion for gas leak which resulted in the accident. The complainant also contributed to the accident by unwittingly switching on the light point when he was not supposed to do it under the safety instructions. Thus, both have contributed to the accident.
33 (14). Thus, it is clear that the relationship is one of principal to principal basis. The reliance by the authorities below that the circumstances, documents and conduct of parties proved the relationship as of principal and agent is difficult to understand. This is a case in which the 2nd respondent M/s. Karthika Gas Agency has given an unauthorized connection it was a legal connection nothing would have been easier than to produce the subscription voucher. Such a voucher as rightly pointed out by the learned Counsel for the appellant, is important and will bind an appellant-Corporation. The authorities below have not given due importance to the subscription voucher. Section 8(2) of the LPG Control Order reads as under:-
No person shall possess or use liquefied petroleum gas filled in cylinder or in bulk form unless he has received supply thereof from a distributor or from an Oil Company.
37.3. (3). “No distributor of a Government Oil Company shall supply liquefied petroleum gas filled in cylinder to any person unless he,
(a) xxx
(d) remove the seal prior to use of the cylinder:
Provided that the distributor or his authorized representative or the delivery person may remove such seal in the presence of the consumer either for testing, checking or installation of the cylinder;
(ii) Indian Oil Corporation Limited vs Rakesh Kumar Prajapati and Ors., dod, 06.05.2008, 3 (2008) CPJ 19 NC, while referring K.G. Sathyanarayan vs Bharat Petroleum Corporation (supra), it was clarified that there is gazette notification of LPG (Regulation of Supply and Distribution ) Order dated 26.04.2000, which makes it clear that distributor/dealer would be acting only under the authority of the company and not independently. Hence petroleum company cannot avoid its liability as principle, notwithstanding the agreement with the dealer.
(iii) Hindustan Petroleum Corpo. Ltd vs Vijaynagar Gas Agencies, FA no. 132/2007 dod 28.09.2012, while dealing with the dealership agreement and it is not provided anywhere that the sale of filled cylinder by the Appellants to the dealer was on principle to principle basis and as such the Appellants are liable to indemnify the loss suffered by the Respondents. Finding recorded by the State Commission to the effect that the sale made by the Appellants to its dealer was on principle to agent basis and not on principle to principle basis is upheld.
15.3. Thus, by taking together all the circumstances, which does not need much elucidation that the circumstances and ratio of laws in the case presented on behalf of complainants are leaning towards the complainants that OP2 is also necessary party and complaint is not bad for joining OP2 as a necessary party. Other OPs are also appropriate and necessary party to complaint, in terms of contract of indemnity and its implications (section 124, 125 and 126 of the Indian Contract Act, 1872). In fact OP1(a) and OP2(a) were impleaded when their relation as insurers came to the knowledge and notice of complainants. Accordingly, this contention is also disposed off, while holding that compensation will be payable by the OPs jointly and severally.
16, Accordingly, the complaint is allowed in favour of complainants and against the OP1, OP1(a), OP2 and OP2(a) to pay jointly and/or severally damages/compensation Rs.13,45,344/- along-with interest at the rate of 7%pa from the date of complaint till its realization. which will be payable within 30 days from the date of receipt of this order, In case the amount is not paid within 30 days, then rate of interest will be 9% per annum in place of 7% pa. No order as to costs. The complaint filed u/s 12 of the Consumer Protection Act, 1986 for deficiency of services and damages stands disposed off.
17. Announced on this 9th June, 2023 [ज्येष्ठ 19 , साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
