District consumer Disputes Redressal Forum Dumka
Complaint Case No- 39/2011
Date of filing Date of Admission Date of Order
22.07.2011 23.07.2011 07.05.2018
Laxmi Kant Jha “ Lokesh” Son of late Samar Jha, resident of quarter Para No- 32, P.S.- Dumka (Town) Subdivision and District – Dumka, Pin 814101, Jharkhand
( Respresented by Shri Sunil Kumar Sharma ,Advocate)
…….….Complainant.
Versus
- Sri Rajendra Kumar Bhagat, Proprietor M/S.Kusum Gas Agency, Dumka
( Respresented by Shri Bikramaditya Pandey ,Advocate)
- National Insurance Company Ltd. Sun Shine Gali, Dumka
( Respresented by Shri Premjitlal ,Advocate)
- Senior Area Manager, Indian Oil Corparation, “INDANE” Area Office, at Pulser Plaza 2rd floor, Link Tank Road, Main Road,Ranchi-1 (One)
…………………….Opposite Parties.
BEFORE:-
PRESIDENT:- Shri Ram Naresh Mishra
MEMBER :- Smt. Dr. Babita Kumari Agrawal
O R D E R
The present complaint is filed by the complainant Laxmi Kant Jha “Lokesh” against the Opposite parties i.e. Rajendra Kumar Bhagat, Propriter M/S Kusum Gas Agency, Dumka. National Insurance Company, Ltd, Sun Shine Gali, Dumka, and Senior Area Manager, IOC,”Indane” Ranchi u/s -12 of the Consumer Protection Act,1986 for illegally and arbitrarily not making payment of the compensation occasioned due to incident of fire due to negligency and deficiency is service of the Opposite Parties. The complainant has claimed Principal loss due to burning of house hold articles worth Rs.-41,425/-, compensation for injury,mental agony etc. of Rs.75,000/-and cost of litigation Rs-2,000/- from the Opposite parties.
2. The brief facts of the case as emerged from the format of the complaint as well as the documents annexed therewith are as follows:-
That the complainant is the customer of Indian Oil Corporation .”Indane” gas Vide Subscription Voucher No.546062 dated 31.01.2005. He had taken gas connection from the Oppal Roshan Indane gas Service, Dumka which subsequently merged with M/S Kusum Gas Agency,Dumka owned by Rajendra Kumar Bhagat @ Raju babu.It is alleged that on 08.02.2011 at 6.30 A.M. while complainant was away from Dumka fire broke out in his house due to leakage of gas from the gas cylinder while it was being connected with the regulator. It is further alleged that the gas cylinder supplied to the complainant was not with washer and hence when connection made with regulator suddenly huge gas leaked in side the room and fire caught in the entire house. Due to said fire complainants entire house hold articles and other goods i.e. cylinder, regulator, sewing machine, mixy machine, coloured T.V.,D.T.H. antena, D.V.D., bicycle ,Rice, Pulses, flour and other items got damaged and burnt to ashes. It is also alleged that complainant wife sari caught fire at the time of accident but she some how managed to escape from fire. It is further stated that the eye witnesses helped to bring out burning gas cylinder outside the house and extinguished fire, however due to said fire near by bushes and trees also burnt.
The further case of the complainant is that he filed written application before Dumka (Town) P.S. about the accident of fire and on that basis SD Entry no.410/2011 dated 14.02.2011 was registered. On 17.02.2011 complainant filed an application to the O.P.no.1 i.e. Proprietor, Kusum Gas Agency for indemnifying loss sustained by him on account of gas leakage defect in gas cylinder supplied to him but it was not noticed by O.P.no.1 hence having no alternative filed this case for redressal of his Grievance before this forum on 22.07.2011.
3. Having received complaint filed by the complainant it was admitted and notices were issued upon O.P’s on 27.07.2011.After service of notice O.P.no.1appeared on 22.06.2012 and field written statement on 05.03.2018 O.P.no-2 appeared on 09.10.2014 and field written statement on 01.07.2015 but O.P.No-3 did not appear despite service notice even by publication in daily news paper hence case proceeded ex-parte against O.P.No-3.
4. The O.P.No-1 Proprietor of Kusum Gas Agency, Dumka in its written statement has admitted the accident of fire due gas leakage from cylinder and loss to the complainant ,however stated that after receiving complaint from the complainant he informed the accident to the National Insurance Company Ltd Dumka branch on 01.07.2011 and forwarded the application of the complainant along with enclosed documents for payment of compensation to him however asserted that the complainant did not produce any receipt of the articles/ Goods which were burnt in the accident of fire. It has also stated there was no loss of Property or loss of life as per the news item published in the news paper. This O.P. has further asserted that the gas agency show room and godown was insured with the National Insurance Company(O.P.N0-2) which also included insurance against Public liability and hence if any liability of loss and damages made out against this O.P. then Insurance company is liable to identify to the complainant and hence claimed that this answering O.P.is not liable for any loss or damages and hence this case may be dismissed against this O.P.
5. O.P.No.2 National Insurance Company Ltd in its written statement dated 01.07.2015 and rejoinder petition dated 26.04.2108 has taken preliminary objection such as non maintainability of the case and lack of cause of action however admitted that on 08.02.2011 at 6.30 a.m. a fatal accident took place in the residential house of the complainant but the accident was not informed to this O.P. hence could not depute any surveyor for the assessment loss as claimed by the complainant. This answering O.P initially claimed in W.S. dated 01.07.2015that O.P.no.1 had not taken any insurance covering risk of show room and godown ete. of the M/S Kusum gas agency hence not liable to make any payment to the complainant. However in its rejoinder petition dated 26.04.2018 stated that O.P.No.2(M/S Kusum Gas Agency)vide policy No.171005/48/10/2000000242 dated 21.08.2010 was insured from 21.08.2010 to 20.08.2011. It has also admitted that in the said policy goods of the agency including public liability to extent of Rs.1,00,00,000/-(One corer) was insured. But claimed that as in the said policy loss and damages caused to the customer due to gas leakage was not Specifically covered therefore this O.P. not liable for payment of any compensation to the complainant.
6. We have heard the argument of the parties and gone through the record along with the material and document annexed there in.
7. The respective parties have adduced oral as well as documentary evidence in support their cases. The complainant in support in its case have filed affidavited statemdnt of two witnesses, out of the them C.W.1 is Virendra Sah and C.W.2 Niraj Kumar Ghose, both are the eye witness to the accident.
Besides oral evidence complainant has adduced documentary evidence as follows :-
Ext-1. Photocopy of Letter M/S to Kusum Gas Agency, Dumka by complainant dated- 17.02.2011;
Ext-2. Photocopy of written application filed in Dumka (Town) P.S.,dated 14.02.2011 about the accident, which was registered as S.D. entry No.410/11dated -14.02.2011;
Ext-3. Photocopy of the new’s item published in daily new’s paper Hindustan and Prabhat Khabar dated 09.02.2011 about the fire incident
Ext-4. Photocopy of customers subscription voucher no.546062in the name of complainant.
Ext-5. Original Policy bond of M/S Kusum Gas agerncy, Dumka issued by National Insurance Company Ltd. for the period 21.02.2010 to 21.08.2011.
The complainant has also filed Photographs of the accident as follows:-
Material Ext-I. Photograph of burnt gas cylinder;
Material Ext.II. Burnt sari of the complainant’s wife;
Material Ext.III.to III/5 Photographs of the accident showing burnt house, burnt Plants and tress as well as burnt accident room.
On the other hand O.P.No.1 has field photocopy of letter dated 01.07.2011 sent to Branch Manager, National Insurance Company Ltd, Dumka about accident due to leakage of gas cylinder and for payment of compensation to the complainan as Ext.A.
Ext-B. is the photocopy of policy paper of M/S Kusum Gas Agency issued by National Insurance Company Ltd. for the period 21.08.2010 to 20.08.2011.
8. The only point for discussion is whether the complainant is
entitled to get the reliefs claim?
F I N D I N G S
9. The admitted position of the case is that complainant is the customer of the O.P.no-1 M/S Kusum Gas Agency, who is the dealer of I.O.C. INDANE gas vide S.V.No.03545 dated 31.01.2005. It is also admitted fact that on 08.02.2011 at 6.30 a.m. the gas cylinder while being connected with the regulator started leaking gas due to the defect in the gas cylinder as a result fire broke out in side the house of complainant causing damage of house hold articles.
O.P.No.1 the Proprietor M/S Kusum Gas Agency, Dumka in its written version admitted the incident of fire in the house of complainant due to leakage of gas cylinder causing loss to the articles but objected that the complainant has not provided any receipt of the goods/articles which were burnt in the accident. It has further objected that the complainant has filed cutting of news paper of the daily news paper which does not mentions about any loss to property or life, but asserted that his agency was insured hence if any liability made out against this O.P. then insurance Company is liable to indemnify the same.
On the other O.P.No.2 has claimed that the complainant did not inform about the accident of burning due to leakage of gas cylinder to this O.P. however he has informed to the Dumka (Town) P.S as a result loss could not be assessed by any surveyor.
C.W.1 Virendra Sah is in an eye witness to the accident, who in his affidivated statement has stated that the complainant is the coustomer of the Oppel gas agency-cum-Kusum gas agency and on 08.02.2011 at about 6.30 a.m. fire broke out in his official residence (Quarter no-32) due to leakage of gas cylinder. Due to fire complainants gas cylinder, regulator, sewing machine worth Rs.5000/-, Mixy machine worth rs.7000/- Colored T.V. 2” worth Rs.10,000/-,D.T.H antenna worth Rs.3000/-,D.V.D. worth Rs.3000/-, Bicycle worth Rs.3000/-,Rice 50 k.g. worth Rs.1500/-, Pulses weight 30 k.g, worth Rs.1500/-,flour 15 k.g. worth Rs.175/- and other house hold articles worth Rs.5000/- were burnt. He has also stated that the news item regarding accident of burning was published in Daily News Paper Prabhat Khabar and Hindustan on 09.02.2011.He has also stated that he was present at the scene of occurrence and helped in extinguishing fire. This witness has not been cross-examined by the opposite parties hence, his statement of oath has proved the complainants entire case.
C.W.2 Niraj Kumar Ghose in his affidavited statement has also supported the occurance the burning being the eye witness and has also supported the loss of articles of the complainant. He has also stated that he helped in extinguishing the fire which broke out in the house of the complainant. Thus, he too supported the entire case of the complainant.
Ext.3 is the photocopy of news item then published in daily news paper “ Prabhat Khabar” and “ Hindustan” on 09.02.2011 and from perusal of this news item that it appears fire broke out in the official residence of the complainant due to leakage of gas cylinder in which his wife narrowly escaped though fire caught in her sari. The complainant has filed burnt sari of his wife, which has been marked as material Ext-II. The complainant has also filed photographs of his burnt Indane gas cylinder as well as the photographs of his burnt house which have been marked as material exhibits Ext-I, material Ext-II and material exhibits III to III/5. These documents fully prove the accident of burning and loss to the properties of the complainant. Ext-2 is the written application about the accident of fire and loss caused due to leakage of defective gas cylinder to the officer Incharge Dumka town P.S dated 14.02.2011 and on the basis of which sanha entry vide S.D.entry 410/2011 dated 14.02.2011 was registered. Ext-1 is the information about the occurrence to the Proprietor M/S Kusum Gas Agency dated 17.02.2011. All these documents also support the entire case of the complainant.
10. On the other hand O.P.No-1 Proprietor of M/S Kusum Gas Agency has field Ext-A the letter sent to Branch Manager, National insurance company Ltd, Dumka about the accident due to leakage in gas cylinder on 08.02.2011 and loss of the articles and goods in the complainants house. These documents fully support the case of the complainant.
11. Thus on the basis of above oral and documentary evidence it is clearly proved that the complainant is the consumer of Indane Gas through M/S Kusum Gas Agency, Dumka and due to leakage in gas cylinder fire brok out in the official residence of the complainant resulting huge damage and loss to house hold articles and goods worth Rs.41,425/- there is no rebuttal about the amount of loss caused due to defect of gas cylinder from the side of the opposite parties and hence the amount of the loss as claimed by the complainant is take to be true.
It is admitted facts that M/S Kusum Gas Agency is insured with the O.P.No-2 i.e. national Insurance company vide policy No.171005/48/10/2000000242 for the period 21.08.2010 to 20.08.2011 and from perusal of this policy paper that is Ext-5 it is evident that M/S Kusum Gas Agency (O.P.No.1) was covered against six item including the public liability. The O.P.No-1 i.e. gas agency was insured of Rs.1 crore against public liability and this fact has been admitted the by the O.P.No-2. Therefor the Insurance Company is liable to indemnify the complainant.
12. The learned Counsel for the complainant in support his case relied upon the following rulings of the Hon’ble courts:-
1-Order daterd 05.12.2008 passed by the State Disputes Redressal Commission, Delhi in F.A. No. 2008/816 in a case of M/S Bharat Petroleum and others Vs Ashok Kumar and others.
2- Order passed in Revision petition No.4871/2008 by N.C.D.R. Commission New Delhi dated 29.01.2010.
In both the ruling Hon’ble courts have held if there was manufacturing defects of some kind or the other in the regulator or in the cylinder supplied by the distributer and manufacture of the company and the liability of the dealer stand established, so in view of the cover of Insurance, the Insurance Company would be liable to indemnify the dealer under the policy.
From the above facts of the case as well as the law’s it is clearly proved that M/S Kusum gas agency had insurance cover against public liability during the period of accident. The defect of the gas cylinder is proved.Therefore we are of the view that the manufacturer of the gas cylinder i.e. IOC INDANE whose dealer is M/S Kusum Gas Agency is liable for supplying defective gas cylinder which caused fire accident resulting in huge loss to the complainants Property.
13. Upon consideration of the aforesaid facts, circumstances, evidence and Principle of law settled by the Hon’ble courts, we find that the complainant is entitled to the compensation towards loss of goods and other articles worth Rs.41,425/-(Forty one thousand four hundred twenty five). Further considering facts find thatO.P.no.1 also liable to pay compensation of Rs.7,000/-and cost of litigation worth Rs.2000/-, We also find that non payment of the claim by the Parties amounted to negligence and deficiency in service and therefore Opposite Parties are liable for the relief claimed. However as the O.P.No.1 has taken insurance cover against Public liability, therefore O.P.no.2 is liable to pay the awarded amount.
It is therefore ,
O R D E R E D
That the complainant case be and the same is allowed on cnontest with cost against Opposite Party no.1 and 2 and exparte against O.P.N0-3. However, O.P.No-2 the Nationat Insurance Company, Ltd is directed to make payment a sum of Rs.41,425/- along with interest @ 10% p.a. from the date of accident dated is 08.02.2011 till its payment, further O.P.No.2 is further directed to make payment of Rs.7,000/-as a compensation towards injury and agony etc. and cost of litigation Rs.2000/-to the complainant.
The order must be complied within one month from the date of receipt from this order failing which necessary action as contemplated u/s-25&27 of the Consumer Protection Act. 1986 shall be initialed against O.P.No.2. The National Insurance Company Ltd.
The office is directed to furnished copy of this order to the parties or their advocates free of cost.
The case, thus stands decided, accordingly.
