Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
1. These three appeals stand disposed of by this common order since they arise out of one and the same incident and out of one and the same order passed in consumer complaint No.36/2008 Shri Ashok baburao Pokharkar & Anr. V/s. M/s.Kumar Gas Service & Anr. dated 23/04/2010 passed by District Consumer Disputes Redressal Forum, South Mumbai (‘the Forum’ in short).
2. Undisputed facts are that the org. complainant No.2-Mrs.Sujata Ashok Pokharkar is a consumer in respect of LPG gas connection supplied to her for domestic use by the Gas Agency, namely, M/s.Kumar Gas Services-org. opponent No.1 (hereinafter referred to as ‘Gas Agency’). The LPG gas cylinder is manufactured and filled by M/s.Hindustan Petroleum Corporation Ltd.-org. opponent No.2 (hereinafter referred to as ‘HPCL’). When the complainant No.2 in the morning of 19/06/2007 at around 6.45 a.m., was preparing tea, leaked gas caught fire and caused damage to the household items and the structure of the flat. The fire was extinguished by the Fire brigade summoned there. Report to the Police was also made, who recorded the event of fire and also drawn a Panchanama. Report of fire department recording cause of fire was also obtained.
3. Soon after the incident, complainant-Mr.Ashok Pokharkar and Mrs.Sujata Pokharkar (hereinafter referred to as ‘complainants’) after giving a notice to the opponents, Gas Agency and HPCL, filed a consumer complaint on 05/10/2007. The Gas Agency appeared and filed their written version. However, HPCL failed to appear before the Forum. The Forum settled the dispute in favour of the complainants, held the Gas Agency and the HPCL jointly and severally liable to pay compensation of `55,000/- towards medical expenses incurred by the complainants, additional compensation of `50,000/- towards damage caused to the household articles and mental agony and in addition to that also directed to pay `5,000/- as costs. Feeling aggrieved thereby, the Gas Agency filed an appeal bearing No.594/2010, HPCL filed an appeal bearing No.771/2010 and also not satisfied with the compensation awarded, the complainants filed an appeal bearing No.613/2010.
4. We heard Ms.Radhika Vanchiswaran, Advocate proxy for Mr.S.R. Page, Advocate for the appellant/HPCL in Appeal No.771/2010 (and respondent in other appeals), Mr.Ashutosh Marathe, Advocate for the appellants/complainants in Appeal No.613/2010 (and respondents in other appeals). None present for the appellant/Gas Agency in Appeal No.594/2010, but respondents were present and heard.
5. On 13/04/2011 Advocate Mr.S.R. Page, Learned Counsel for HPCL is also appeared and submitted that it would be proper and just to remand the matter for just and proper hearing and thus thereby conceded to the request made by the complainants too.
6. After carefully considering the material placed before us and scrutinizing the impugned order, it could be seen that after receiving the written version from the Gas Agency and recording the fact that HPCL failed to appear and did not file any written version, neither the Forum nor the parties appearing before the Forum adhered to the provisions of Section 13(4) of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for brevity). In Para 10 of the impugned order, a reference is made to the affidavit of evidence filed by the complainants. When we made inquiry, the affidavit of the complainants shown to us, which is nothing but the one filed at the time of filing of the complaint asserting the correctness of the statements made in the complaint. It cannot be an affidavit of evidence unless specifically so adopted by the complainants. It certainly failed to reply any factual statements asserted and raised in the written version filed by the Gas Agency. The record itself shows that no opportunity is offered to the parties contesting the matter to lead their evidence as per the above referred provision. The complainants also conceded to the fact that no evidence is led on their behalf and they need a proper and just opportunity to lead evidence as per provisions of the law, so that dispute can be settled in just and proper manner. According to the HPCL they need an opportunity to file their written version and to lead their evidence. We make it clear at the first instance that mere production of documents unless they are admitted and could be tendered in evidence as per requirements of Section 13(4) of the Act, are no evidence and on which no reliance could be placed by the Consumer Fora. There are certain inherent anomalies which need to be clear by the contesting parties e.g. Police Report of the incident dated 19/06/2007 shows that the fire had taken place due to leak from the gas cylinder. However, complainants had no grievances against anybody and in that report, it is not mentioned that some gas was leaked from the rubber tube connecting to the gas cylinder and the gas stove. Report of Fire Officers which also need to be proved properly and tendered in evidence mentioned that the suppose cause of fire as “Naked Flame (LP gas leaking through the rubber tube of LPG cylinder came in contact with lighted LP gas stove/burner)”. It is further revealed from the documents placed on record that at the time of extinguishing the fire, at the first instance, gas cylinder valve was closed and fire was extinguished with the help of water. This indicates prima-facie that there was no leakage from the gas cylinder.
7. Thus, considering all these aspects, we find that by allowing the parties to lead their respective evidence and also allowing the HPCL in addition to it to file their written version, controversy could be settled in a just and proper manner and thereby, failure of justice could be avoided. Therefore, we accept the contention of the complainants as well as the HPCL made accordingly. Thus, we hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal No.594/2010, Appeal No.613/2010 and Appeal No.771/2010 are allowed. Consumer complaint No.36/2008 is remitted back to the Forum in the light of observations made in the body of the order.
2. Both the parties shall appear before the Forum on 16/05/2011.
3. Forum after giving opportunity to HPCL to file written version on the date of appearance and after giving both the parties to lead their evidence as per provisions of Section 13(4) of Consumer Protection Act,1986 and on hearing, settle the dispute according to the law.
4. In the given circumstances, there shall be no order as to costs.
5. Copies of the order be furnished to the parties.
Pronounced
Dated 15th April 2011
