MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.

          Instant Appeal under Section 15 of the Consumer Protection Act, 1986 has been filed by the Appellant/Complainant challenging the judgment and order dated 20.06.2016 passed by the Ld. District Forum, North 24 Parganas, Barasat in Complaint Case No. CC/472/2015 allowing the complaint on contest in part against the Respondent/O.P. Nos. 1 and 2 and dismissed against the Respondent/O.P. No. 3.

          The Respondent/O.P. Nos. 1 and 2 were directed to pay a total amount of Rs.2,00,000/- to the Appellant/Complainant and her husband at a ratio of Rs.25,000/- and Rs.1,75,000/- respectively with interest @ 9% p.a. till final payment.

          The said O.Ps were also directed to pay Rs.10,000/- as litigation cost to the Complainant within one month from the date of the impugned judgment and order.  In case of failure, the Respondents/O.P. Nos. 1 and 2, as directed, should have to pay a sum of Rs.100/- per day from the date of the impugned judgment and order till realization of the entire amount as punitive damages, which, on realization, should have to be deposited with the State Consumer Welfare Fund.

          The Appeal bearing No. A/654/2016 which arose from the same impugned judgment and order and which was filed before this Commission by the Respondent/O.P. Nos. 1 and 2 in the instant case making Appellant/Complainant and Respondent/O.P. No. 3 of the instant case parties to the Appeal as Respondent No. 1 and Respondent No. 2 respectively, was given an analogous hearing and instant order would govern both the Appeals.

          The case of the Appellant/Complainant was that the Appellant/Complainant, being a consumer of HP Gas for domestic purpose under the distributorship of Respondent/O.P. No. 3 met with an accident on 17.03.2014 through bursting of gas cylinder at the kitchen at the time of connecting gas cylinder with the burner.  She and her mother-in-law aged about 75 years who were engaged with cooking in the kitchen, received burning injury in both hands, back side of the body and abdomen.  The Appellant/Complainant received burning injury in her face also in addition.  The fire destroyed, along with other valuables, many household articles and utensils in the kitchen.

          The injured duo were taken first to the R. G. Kar Medical College and Hospital on the same day and on the next day, i.e. on 18.03.2014, they were shifted to Daffodil Hospital at 276, Canning Street, Kolkata – 700074 where they received treatment till they were discharged on 26.03.2014.  The husband of the Appellant/Complainant, the only able bodied person of the victim family, being busy with the making of arrangements for treatment of the injured family members, could find time to diarize the incident with the Lake Town Police Station, not before 22.03.2014.

          The husband of the Appellant/Complainant had to reach the same police station once again for diarizing one further information under No. 2345 dated 23.04.2014 about the death of his mother, i.e., injured mother-in-law of the Appellant/Complainant who, as alleged, not being able to sustain the shock succumbed to her injuries.  The delay in diarizing the complaint was, allegedly, because of the fact that the husband of the Appellant/Complainant had to remain busy with post cremation rituals of the deceased mother.  The husband also contacted the Bidhannagar Police Commissionerate without any result being yielded out of the said effort as no police action could be found forthcoming, allegedly, at the instance of the Respondent/Complainant No. 3 – an influential person in the locality.

          The incident of fire, as the complaint unveiled, was due to the defect in the valve of the cylinder which was corroborated to by the report of the Department of Fire Services.  The Respondent/O.P. No. 3, however, out of his own way, without making any spot verification and not even verifying the defective cylinder very perplexingly held that the cylinder was having no defect since no leakage of gas was detected or reported during the custody of the allegedly defective cylinder for a period of 7 days with the Appellant/Complainant since the date of delivery of the same.

          The Aggrieved Appellant/Complainant then filed the complaint case before the Ld. District Forum.  The impugned judgment and order which was put under challenge in the instant Appeal, originated from the said complaint case.

          The Ld. Advocate appearing on behalf of the Appellant/Complainant described the entire incident in the same lines as it was narrated in the complaint emphasizing specially on the death of his client’s mother-in-law which, allegedly, was the outcome of 100 percent burning of the deceased.  He, in his submission, was not very critical about the assessment of the complaint case made by the Ld. District Forum.  The Appellant/Complainant, however, was not happy with the amount of compensation offered to her and her husband, particularly at a situation when her mother-in-law succumbed to the burning injury that she had to sustain out of the subject incident.

           As he continued, the husband of the Appellant/Complainant also became a victim of neurological disorder failing to absorb the shock of his mother’s accidental death.  The Ld. District Forum should have considered this factor while awarding the compensation which it did not do in spite of the matter being brought to its notice.

          The Ld. Advocate, continued to submit that the Respondent/O.P. No. 3 went to the extent of disconnection of gas supplied to him immediately after the incident.  He also brought to the notice of the Bench about the pendency of a criminal case under Section 304A/308 IPC initiated by the Lake Town P.S. under No. 248//14 dated 03.09.2014 based on an application filed by the Appellant/Complainant under Section 156 (3) of CrPC, 1973 before the Ld. CJM, Barasat. 

          The Ld. Advocate for the Respondents/O.P. Nos. 1 and 2, on the other hand, drew the notice of the Bench to the running page No. 38 of Case A/654/2016, being the Agreement executed between the Company and the Respondent/O.P. No. 3 wherein at Para 17, 18 and 19, running pages 43 and 44, the duties and responsibilities on the part of the distributor had been clearly delineated and submitted that in those paras, particularly at para 18, it was amply elaborated that the dealer should act and should always be deemed to have acted as a principal and not as an agent and the Corporation would not be liable in any of the activities scheduled in the said para to be done by the dealer/distributor itself.

          Therefore, as the Ld. Advocate continued to submit, the responsibility and liability, if any, should be attributed solely upon the Respondent/O.P. No. 3.  It was also contended that Respondents/O.P. Nos. 1 and 2, being the agency, had already entered into an Agreement with the United India Insurance Co. Ltd. on payment of a good amount of annual premium for compensating the victim in similar circumstances as per procedure laid down in the said Agreement.  On the instant occasion, the said Insurance Company was not made a party.  From that perspective also, as submitted, the merit of the case was adversely affected due to non-joinder of necessary party.

          It would reveal from the statement of the Appellant/Complainant that all relevant documents were handed over to the Insurance Company.  This indicated that the Insurance Company had conducted a survey.  The Appellant/Complainant, as it continued to submit, did not implead the Insurance Company seeing that the survey report had gone against the Appellant/Complainant.

          The Ld. Advocate continued to submit that right from the bottling plant, the cylinders for delivery are tested at different phases.  There is, therefore, a zero possibility of existence of any defect in the delivered cylinders.  It was, as contended, most unlikely that there should be any manufacturing defect in the cylinder in the given circumstances. 

          With the above submission, the Ld. Advocate prayed for the appeal to be dismissed setting aside the impugned judgment and order.

          The Ld. Advocate appearing on behalf of the Respondent/O.P. No. 3, per contra, submitted that the Appellant/Complainant had not followed the basic guidelines ensuring safety while connecting the cylinder with the burner.  As stated, a kerosene stove was being used in the kitchen for cooking at the relevant point of time.  The Appellant/Complainant, as contended, invited the risk of the fire incident making effort to connect the gas cylinder with the burner when a lighted stove was in operation in the kitchen.

          As continued, the LPG gas cylinders are delivered after ensuring that the cylinders are leak proof.  The subject cylinder, after being delivered and before making effort to connect with the burner, remained under custody of the Appellant/Complainant for at least seven days.  As submitted, had there been any defect in valve or leakage, it was most unlikely that the said leakage would remain unnoticed for the said period.  Since there was no complaint of leakage, presumably, there was no leakage in the cylinder at all.

          The Ld. Advocate continued to submit that the mother-in-law of the Appellant/Complainant, as appeared from the relevant papers available with the records, died of Broncho asthma and not from the burning injury.  So the question of payment of compensation did not arise at all.  Moreover, as he continued, there was no direction upon the Respondent/O.P. No. 3 in the impugned order, rather, the complaint was dismissed on contest against the Respondent/O.P. No. 3.  The Ld. Advocate, with his above submission, prayed for the Appeal to be dismissed.

          Perused the papers on record and considered the submissions of Learned Advocates appearing on behalf of all sides.

          In an effort to establish the Appellant/Complainant’s indifference towards observance of safety guidelines for operating a very delicate and sensitive equipment like cylinder containing highly inflammable LPG, the Learned Advocate put forward a fact of existence of a lighted kerosene in the kitchen at the time when the subject cylinder was being fitted with the burner—and allegation which was admitted by the Appellant/Complainant in the complaint.  The record appeared to be devoid of any report from the Police.  There was no report from any investigating agency other than the Fire Director which was critical about the cylinder’s defect but was having no reference about the existence of lighted stove in the kitchen, as alleged.

          The injury report of both the victims indicated that there was only 20% burn in respect of both the victims, running pages 69 and 70 of the case record, against the Appellant/Complainant’s claim at the time of submission of 100% burn in respect of the deceased mother-in-law.  Moreover, running page 72 made it clear that the mother-in-law of the Appellant/Complainant died of broncho asthma which had no proximity with the burn injury.  In the light of the above, we hold that the burning injury should not be treated as the proximate cause of death.

          The w.v. of the Respondent/O.P. No. 2, running page 38, para 22 indicated that M/s. United India Insurance Co. Ltd. with which the Agreement was entered into by the Respondents/O.P. Nos. 1 and 2 Company, was moved by the Respondent/O.P. No. 2 and the matter was still pending with the said Insurance Company.  Unfortunately, we have no record corroborating the fact that the Insurance Company was ever informed about the incident by the Respondent No. 2, nor do we have any corroborating papers supporting Insurance Company’s taking appropriate action towards enquiring into the subject incident.  In fact, the record appeared to be silent about any kind of initiative taken by the Insurance Company which raises doubt about the Respondents/O.Ps’ claim about informing the Insurance Company about the incident.  Further, if it was a fact that they had informed the incident to the Insurance Company, their lack of persuasion towards the issue’s earliest settlement was eminent from their own admission towards pendency of the claim at the Insurance Company’s end.

          It is again an unfortunate affair that the Insurance Company, even it had, for argument’s sake, any lapse on its part, had hardly any possibility to be brought under any direction because of the fact that the Complainant did not implead it as a party to the complaint.

          The Respondent/O.P. No. 3 did not appear to be having any lapse as the cylinder’s having any leakage was not detected at the time of delivery, nor it was detected subsequently for some days since the date of delivery of the same when the cylinder was under the custody of the Appellant/Complainant.

          The report of the Department of Fire Services was found to be having reasons for non-acceptance as the cylinder, subsequent to the happening of the incident, was tested by the Department of Fire Services before submitting the said report.  We find reasons in Respondent/O.P. No. 3’s suspicion that the cylinder which was in possession of the Appellant/Complainant after the subject accidental fire for a subsequent period of time had every likelihood to be damaged or distorted to the extent required to make the enquiring authority convinced about the cylinder’s having the defect, as alleged.

          We found, at the same time, reasons to believe that chance was there that the inflammable LPG might come in contact with the flame of the burning stove to cause fire. There is almost no chance for the accidental fire to be broken out unless there is leakage of LPG from the cylinder irrespective of the fact that the stove was in operation in the kitchen. Such leakage of gas appeared, prima-facie, to have been taken place at the time of fitting the cylinder with the gas burner. Sudden jump of regulator from the cylinder valve, as referred to at para 17 of running page 37 and as corroborated by the department of fire services in its report causing leakage of gas, cannot be totally ruled out in the given situation. Therefore, taking cognizance of the admitted existence of the lighted stove in the kitchen, we are led to assume that the said violation of safety rules out of ignorance is not the sole reason for the fire to be taken place. The Respondent/OP No.1 cannot escape its liability for the apprehended leakage of gas due to the cylinder defects in the valve.

            Further, the discharge certificates, running pages 69 and 70, were speaking about 20% injury of the victims and the cause of death of the deceased, as it was evident from the running page 72, was broncho asthma.  Fact remained, although the death was not for the proximate cause of burning, the injury’s impact on the cause of death cannot be totally ruled out in consideration of the periodic proximity of the death with the subject incident.

          As regards police report, the record envisages a copy of the FIR and an endorsement of the O.C., Police Station on the body of the same for conducting an enquiry into the incident.  The record reveals a conspicuous absence of any police report as such.         

          She made a further mistake by not impleading the Insurance Company doing on behalf of the Respondents/O.P. Nos. 1 and 2 by virtue of the Insurance Agreement executed between them.

          The Respondents/O.P. Nos. 1 and 2, however, cannot escape from the charge of not extending to the Appellant/Complainant the due insurance coverage through the Insurance Company with which they were having the Agreement.  They claimed to have communicated to the Insurance Co. about the incident.  The case record, however, was devoid of any document of such communication.  It is also not clear whether the Respondents/O.P. Nos. 1 and 2 at all made any communication or persuasion for engagement of surveyor to ascertain the veracity of the incident and to assess as well the loss sustained by the Appellant/Complainant which is anything but an action securing the consumer’s interest.

          Above being the circumstances, we have no way to differ from the findings of the Ld. District Forum.  We, however, do not agree with that part of the impugned order whether the penal interest for depositing the same on realization to the Consumer Welfare Fund.

          We further do not agree to allow the compensation to be paid for the deceased to the husband of the Complainant only without ascertaining the legal heirs of the deceased and intend to modify the impugned judgment and order accordingly.

          Hence, ordered that the Appeal be and the same is allowed in part on contest against the Respondent/O.P. Nos. 1 and 2 and dismissed against the Respondent/O.P. No. 3.  The O.P. Nos. 1 and 2 are directed to pay Rs.25,000/- to the Appellant/Complainant and Rs.1,75,000/- to the legal heirs of the deceased mother-in-law of the Appellant/Complainant as compensation, i.e., total amount of Rs.2,00,000/- with simple interest @ 9% per annum till final payment.  The said Respondents/O.P. Nos. 1 and 2 are further directed to pay Rs.10,000/- as litigation cost to the Appellant/Complainant.

          The entire order has to be carried out within 45 days from the date of the instant judgment and order, failing which, a further simple interest @ 9% per annum on the compensation amount of Rs.2,00,000/- shall accrue from the date of default till the entire amount is fully realized.  No order as to cost.  The impugned judgment and order stands modified accordingly.

          Both the instant Appeal and the Appeal under No. A/654/2016 stand disposed of accordingly.