Dt.10.07.2015 JAGANNATH BAG, MEMBER The appeal No. FA/354/12 and the appeal No. FA/359/12 are taken up analogously as both of them arise out of one and the same order dated 28.05.2012 passed by the Ld. District Consumer Disputes Redressal Forum, Howrah, in complaint case No. HDF 32 of 2010, whereby the complaint was allowed on contest with costs against OP Nos.1and 2 &3 and dismissed without cost against OP No.4 and ex parte against the other OPs. The complaint case, in brief, was as follows: On 11.07.2009 Complainant No.2, being the wife of Complainant No.1, needed to change the gas cylinder which became empty. The gas cylinder No. 3559781 which was kept in the verandah was brought into the kitchen. As soon as the safety cap was opened, the gas substance started gushing out hugely with tremendous force and caused fire in touch with the burner of the oven which was extremely hot. She suffered severe burn injuries over her mouth ,body, legs and hands. The mother-in-law of the Complainant No.2 in her effort to help also got burnt . Both of them were rushed to Ulubaria Sub-divisional Hospital and then referred to SSKM Hospital, Kolkata . Complainant No.2 was discharged on 7th November with an advice for complete bed rest, but she was not fully cured. The Fire Brigade, being called in, extinguished the rising flame of the kitchen which was completely burnt. On 17.07.2009 a general diary was filed under No. 1397 with the Ulubaria P.S. Allegedly, the cylinder No. 3559781, Batch No.1-891 was lastly checked in October, 1999 i.e., about 10 years ago. It was the gross negligence on the part of OP No.1 who did not check the cylinder before delivery. OP Nos.2/3 also did not carry out checking of the cylinder. The delivery man also did not perform his duty to check the cylinder before delivery. As a result of negligence of all those OPs , the Complainant No.2 lost her normal life and looks like a ghost because of her ugly look following her burn injuries.On 19.08.2009 the Complainant sent a written representation to the Senior Area Manager , Indian Oil Corporation Ltd. One representative of the IOC Ltd., visited the Complainant’s place , but no action was taken. A written complaint was sent to M/s Pal Enterprises, stating the facts and claiming compensation , but nothing was heard from them. Written representations were sent to the Officer-in-Chage, Liluah P.S, as well as to the S.P. of Howrah on 23.11.2009. None of the OPs came forward with any financial assistance and the request of the Complainants for compensation went unheeded. The burn injuries of Complainant No.2 are 50% of her body and she has been advised plastic surgery. Keeping in view the cost of medical treatment already incurred and further expenses to be incurred , the compensation for mental agony , litigation cost etc. notwithstanding , the petition of complaint was filed praying for reliefs worth Rs. 19,75,000/-. The complaint has been contested by the OP No.1 and other OPs who in their respective written versions denied and disputed the material allegations brought up in the petition of complaint. The main contention of the OP No.1 was that the Complainant No.1 was supplied a gas cylinder on 09.06.2009, but the alleged accident took place on 11.07.2009 which was after lapse of 32 days from the date of the last refill supply made by the OP No.2. The Complainant No.1 had a single cylinder connection and no further cylinder was supplied after 09.06.2009. The Complainant’s allegation that the accident took place in the said cylinder was false. It was again asserted that as per accident investigation report submitted by the Filed Officer of the OP No.1 , the test date and the number were not legible due to the effect of fire on the said cylinder. It was denied that the delivery man (OP No.4 ) delivered the cylinder without checking the safety aspects of the cylinder. It was also contended that the G.D. entry was made 6 days after the accident and in the absence of contents of the said G.D.E not being disclosed in the complaint petition or supplied as annexure thereto, OP No.1 could not deal with the same. It has again been asserted that all cylinders of the OP No. 1 are tested for ensuring leakage detection through a comprehensive testing mechanism at the bottling plants of the OP No.1 before effecting supplies to the distributors for their onward supply to the customers. The delivery man of OP No.2 effected the pre-connection and post-connection checking of regulator and oven as usual and the Complainant duly signed and endorsed the refill slip to the effect that there was no leakage from the cylinder at the time of connection on 09.06.2009.Further, each cylinder being insured by OP No.1 against any accident at the premises of the customer and in the said complaint case the Insurance Company not being made a party, the complaint could not be proved. There was no local inspection which could establish the cause of accident. In such situation , the OP No.1 could not be held responsible for any deficiency in service. The complaint was liable to be dismissed. OP No. 2 and 3 also filed separate W.V.s and denied all material allegations asserting that the story of fire was the result of a suicidal attempt on the part of the Complainant No.2 . It has been submitted that any defect on the cap could be stopped by putting the cap again on the cylinder top. Further,the Insurance Company being a necessary party and the Complainant having neglected to implead the said party as an OP, the complaint could not be proved . OP No. 4 in his W.V. also submitted that the Complainant No.2 was satisfied about the safety and weight of the cylinder at the time of delivery. OP Nos. 5 , 6 and 9 did not take any step to contest the case and as such , the case was heard ex parte against them . OP Nos. 7 and 8 prayed for expunction of their names from the cause title. After having heard the pleadings of both parties and upon perusal of the materials on record, Ld. Forum below allowed the complaint with several observations . Ld. Forum below observed that the prayer of the Complainant for local inspection was rejected as that would cause delay of the proceedings. The allegation of the Complainants touched the callousness and faulty maintenance of cylinder for years together. The OPs never prayed for an Expert Commission to determine whether it was a suicidal bid by the Complainant No.2 or bursting of the cylinder of mechanical defect caused due to poor maintenance . Ld. Forum below observed that in most cases the family having single cylinder takes the surplus cylinder of their neighbors or relatives residing in the neighborhood in cases of emergency and return the one when it is delivered against their respective order. Ld. Forum below also observed that the OP No. 4 being the delivery man stated that he tested the cylinder fixing the regulator and found it OK, but he never delivered the item after scrutinizing the safety aspects of the offending cylinder as claimed by the Complainant No.2. Though the unfortunate accident of 11.07.2009 was duly informed to both OP Nos. 1 and 2 and though an enquiry by Vinit Kumar and Binod Kumar of the Indian Oil Corporation Ltd. was done, no report was forthcoming before the trial Forum. The conduct of the OPs raised strong suspicion that the cylinder had a defective socket and nozzle . It has also been observed that the fire accident from LPG cylinder has not been disputed as revealed from the report of the West Bengal Fire Service Occurrence Book . Had it been a suicidal bid , a Police case could have been framed against the Complainant No.2, namely, Smt. Shibani Adhikary . Ld. Forum below also observed that the LPG Cylinder , whether it was supplied on 09.06.09 by the OPs delivery man or taken from her father-in-law was not material fact as the cylinder belonged to the Indian Oil Corporation. The offending cylinder carries the number 3559781 with batch No. 1891, lastly checked in the month of October,1999. The cylinder was faulty and the same was supplied by OP No. 2 i.e., M/s . Pal Enterprise against the booking dated 02.06.2009 and the offending cylinder belonged to OP No. 1 . Accordingly, the OP Nos.1,2 & 3 were held responsible for deficiency in service and unfair trade practice. Coming to the question of compensation , Ld. Forum below held that the OPs indulged in dilly-dallying process in the matter of attending the grievance of the Complainants. Particularly, after taking into consideration , the medical documents , Ld. Forum below visualized the burn impression on the face and both hands of the Complainant No.2 and allowed a sum of Rs. 4,00,000/- (Rs. 2,00,000/-each from OP No.1 and OP Nos.2 & 3) , apart from payment of Rs. 5,00,000/- for plastic surgery from OP No.1 i.e., Indian Oil Corporation and further compensation of Rs. 4 lakh (Rs. 2,00,000/- each from OP Nos. 1 &3) for prolonged mental agony, pain and sufferings. OP Nos. 1 and 3 were also directed to pay Rs.15,000/- each as litigation costs. OP No.1 was further directed to deposit an amount of Rs.1 lakh to the Consumer Welfare Fund in addition to payment of Rs. 20,000/- as interim relief which would be deducted from the total amount as saddled upon the OP No.1. Being aggrieved by and dissatisfied with the order of the Ld . Forum below, the OP No.1 , namely the Indian Oil Corporation Ltd. as well as OP Nos. 2 and 3 being M/s Pal Enterprise and the Proprietor, M/s Pal Enterprise, respectively, have come up before this Commissions with appeal No. FA/359/12 and appeal No. FA/354/12, both praying for direction to set aside the impugned order. Ld. Advocate appearing for the Appellant in FA354/12, namely, M/s Pal Enterprise, and the Proprietor of M/s Pal Enterprise submitted that the Complainant was given a single cylinder connection and the statement of the Complainant that they were enjoying two cylinders supplied by the Appellant since 2000 is totally incorrect and motivated. The Respondent Nos. 1 and 2 / Complainants could not produce any document in support of their allegation that the cylinder supplied by the Appellant’s delivery man on 09.06.2009 caused the fire accident by which the Complainant No.2 allegedly suffered injuries. In fact, the Police were not informed of the accident before six days from the date of the alleged accident. The booking made by the Complainant for the gas cylinder was done on 02.06.2009 and the cylinder was supplied on 09.06.2009. According to the complaint petition , the accident took place on 11.07.2009 . It is not established how the gas cylinder in question was put to use after about one month from the date of delivery . The Complainants never produced any document before the Ld. Forum below as to the defect at the time of taking delivery of the gas cylinder. Ld. Forum below going beyond the facts, made out a third case and made the Appellant/OP No.2 responsible for the accident , though the Appellant being the distributor of IOC is in no way authorized to rectify any defect, if at all , in regard to the cylinder. Ld. Advocate appearing for the Appellant in appeal No. FA/359/12 and Respondent No.4 in appeal No.FA354/12 submitted that the supply of a gas cylinder to the Respondents / Complainants being made on 09.06.2009, more than a month prior to the alleged incident , the said cylinder could not be the same cylinder involved in the alleged accident. Ld. Forum below did not go for reasons of the fire as evident from their rejection of the prayer of the Complainants for local inspection into the matter. The onus of proving the allegations made in the complaint was on the Complainant themselves which they failed miserably. The OP No.1 being the Appellant in appeal No. FA/359/12 was wrongly held liable for any cylinder procured by the Complainants from an unauthorized source. In their amended petition of compliant , the Complainant stated that they had been using two cylinders, one being supplied by OP No.2 and the other by M/s Tapabrata Gas Supply in the name of the father of the Complainant No.1. But neither the said distributor nor the father of the Complainant NO.1 was impleaded in the said complaint case and the Ld. Forum below should have dismissed the complaint case for non-joinder of the said necessary parties. The cylinder which was attempted to be connected to the oven on 09.06.2009 by the Complainant No.2/Respondent No.2 was never proved by the Complainants to be the cylinder supplied by the Indian Oil Corporation Ltd., or for that matter, by M/s Pal Enterprise. Ld. Forum’s order was not at all based on evidence in regard to the supply of the purported defective gas cylinder . As such the said order deserves to be set aside. Ld. Advocate appearing for the Respondent Nos. 1 and 2/ Complainants submitted that the accident by the defective cylinder of the distributor i.e., the OP No. 2/3 being the Appellant in FA/354/12 was a fact and that has been reported to all concerned authorities, i.e., the local Police Station and the Distributor, as well as the IOC. The injury suffered by the Complainant No.2 is a recorded fact as she was admitted in the Sub-Divisional Hospital and subsequently in the SSKM Hospital . The costs of medical treatment and the compensation as prayed for have been found to be justified by the Ld. Forum below and as such, orders have been passed with direction upon both the Appellants in FA/354/12 and FA/359/12 for payment of compensation and costs . The order has been rightly passed . There is no question of setting aside the same. Decision with Reasons We have gone through the memorandum of appeal together with copies of the impugned order, the petition of complaint and other documents in support of medical treatment and the W.V.s filed before the Ld. Forum below by OPs., namely, the Indian Oil Corporation Ltd, M/s Pal Enterprise and the delivery man. The fact goes that there was an accidental fire caused by the gas cylinder on 11.07.2009 in the house of the Complainants and by that accident , the Complainant No.2 suffered injuries . She was hospitalized for several months and incurred medical expenses. It was the case of the Complainants before the Ld. Forum below that the bursting of the cylinder was due to defective maintenance of the cylinder. In this connection Ld. Forum below observed that it was the bounden duty of the OPs to pray for Expert Commission to ascertain the disputes over the cylinder leakage but the OPs did not press for any Expert Commission only to suppress their deficiency by canvassing the suicidal bid by the Complainant No.2. It has also been observed that had there been Expert Commission, the mystery of the leakage would have been unveiled . It is a fact that the actual cause of leakage of gas from the cylinder was not attempted to be ascertained by proper enquiry on behalf of the Indian Oil Corporation Ltd. OP Nos. 2 and 3, being the Appellant in FA/354/12, had little role in seeking any Expert Commission as they received the supply of cylinders from the IOC as their distributor. The Indian Oil Corporation being the OP No.1in the compliant case neglected in their duty to unearth the truth in the matter of two main aspects of the complaint. First, whether the gas cylinder bearing No. 3559781, batch No.1-891 was supplied by them through the distributor, be it M/s Paul Enterprise or M/s Tapabrata Gas Supply and secondly, whether the gas cylinder accident took place in the house of the Complainants on 11.07.2009 should have been properly investigated by the Indian Oil Corporation Ltd. as it was a serious allegation against them on the question of safety of the gas cylinder and compensation for damages caused by the alleged bursting of the gas cylinder. Particularly there being written representations by the Complainants in that regard and there being no initiative on the part of the OP No.1 i.e., the Indian Oil Corporation, an adverse inference crops up that they avoided such investigation which is tantamount to negligence and deficiency in their service. The plea of the IOC Ltd., that the identification particulars of the cylinder including the test date and number were not legible due to the effect of fire on the said cylinder is not tenable in so far as they failed to provide any evidence disowning the issue of the said cylinder in any manner. However, Ld. Forum’s order in holding both the OP No. 1 and OP Nos. 2 & 3 at par does not appear to be acceptable and in that view of the matter we are inclined to hold that the Appellant /OP Nos. 2 and 3 should not be made liable to pay any costs /compensation as awarded by the Ld. Forum below. The OP No. 1 i.e., the Appellant in FA 359/12 is solely responsible for the payment of cost of medical treatment / compensation awarded by the Ld. Forum below. The amounts of Rs.5,00,000/- as awarded by the Ld. Forum below or the payment of Rs.1,00,000/- to the West Bengal Consumer Welfare Fund for the benefit and welfare of the LPG consumers are found to be not backed by cogent grounds . Accordingly, the impugned order needs to be modified in allowing the appeal of the Appellant in FA/354/12, but not dispensing with the liability of the Appellant in appeal No. FA/359/12 in regard to payment of cost of medical treatment /compensation to the Respondents/ Complainants. Hence, Ordered That FA/354/12 be and the same is allowed by setting aside the impugned order so far as it relates to the Appellant / OP Nos. 2 & 3 . The Appellant in FA/359/12 being the Indian Oil Corporation Ltd. shall pay compensation of Rs.4,00,000/- to the Respondents/Complainants as cost of medical treatment of Respondent No. 2 / Complainant No.2 . A sum of Rs. 15,000/- shall also be paid by the Appellant in FA/359/12 in favour of the Respondent Nos. 1 and 2 /Complainants . Other parts of the impugned order shall be deemed to have been expunged. The said sum of Rs.4,15,000/- shall be paid by the Respondent No.4 in FA/354/12 / Appellant in FA/359/12 to the Respondents/ Complainants within a period of 40 days from the date of this order, failing which interest @ 9% p.a. shall accrue on the said amount from the date of this order. The impugned order is thus modified. This order shall be kept in the file of FA/354/12 and a copy of the same may be kept in the file of FA/359/12. |
