This complaint coming up before us for hearing on                      11-05-11 in the presence of Sri Ch. Venkata Rao, advocate for complainant and of Sri G.J.C. Babu, advocate for 1^st opposite party and of Sri N. R. Krishna, advocate for 2^nd opposite party,  upon perusing the material on record, after hearing both sides and having stood over till this day for consideration, this Forum made the following: 

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint U/S 12 of Consumer Protection Act, 1986 seeking Rs.1,20,000/- as damages to house hold articles on account of burst of gas cylinder and Rs.30,000/- towards mental agony.

2.  In brief the averments of the complaint are these:

        The 1^st opposite party is a distributor of HP gas in Bapatla town.  The 1^st opposite party insured his gas business with the 2^nd opposite party vide policy No.150981/46/07/22/00000007.    The complainant is a consumer of the 1^st opposite party having gas connection vide consumer No.715050.   On 28-04-08 fire accident occurred in the house of the complainant due to leakage of gas cylinder and faulty regulator.   During the said incident 30 bags of paddy, T.V., mixie, double cot, iron safe, valuable pattu sarees, silver articles, gold articles and other utensils worth of Rs.1,20,000/- took place.  AP Fire and emergency services put off the fire and issued a certificate.   MPTC, Narasayapalem, VRO, Narasayapalem and Panchayat Secretary, Gram Panchayat Narasayapalem ascertained the loss caused to complainant.   The 1^st opposite party after receiving representation from the complainant informed the 2^nd opposite party on 30-05-08 to send an authorized representative to examine and arrange the compensation.  The policy taken by the 1^st opposite party from the 2^nd opposite party covered the risk of customers including the complainant.    The 2^nd opposite party did not respond.   Due to fire accident the complainant faced mental agony.  The complainant filed PLC 3/09 against the opposite parties who did not respond.   The complaint therefore be allowed.

3.    The contention of the 1^st opposite party in brief is thus:

        The complainant had taken gas cylinder on 16-04-08 vide cash memo bearing NO.43359.   The complainant had used the gas for 13 days.   The gas in the cylinder might have been emptied on the day of accident.  The complainant failed to mention the nature of the house, extent of the house and safety measures taken for keeping paddy bags and other articles mentioned in the complaint.   The complainant failed to mention the weight of gold, silver, and nature of articles, number of sarees, name of T.V. and mixie.   The certificate issued by the Fire officer, A.P. Fire and Emergency Services, Bapatla did not disclose whether the house of the complainant had electricity connection and other details.  The 1^st opposite party is only a distributor of HP gas.  HP gas takes all precautionary measures and conduct different tests with advanced technology.   After completion of thorough test and passing through the tests then only HP gas sends cylinders to the distributors.  The complainant obtained gas cylinders on 02-03-09 and 28-03-09 and it revealed that his regulator is still in proper condition.   Filing of exhibits of Exs.A-1 to A-4 by the complainant falsified the fire accident.   The complainant is fully aware of the procedure and safety measures while using gas cylinders.  Fire accident to the house of the complainant can occur owing to the short circuit of electricity service connection, negligence of the complainant and its family members in handling the gas.    The complainant has to prove that the fire accident occurred due to leakage of gas cylinder and due to faulty regulator.   The complainant failed to mention the cost of each item separately totaling to Rs.1,20,000/-.   The documents filed by the complainant said to have been issued by the Panchayat Secretary are due to political affiliations.   The 1^st opposite party took all precautions to safeguard interests of consumer by taking an insurance policy.   The complainant took gas cylinder on 23-08-10.   The complainant is holding only one gas connection with the one regulator only.  When the complainant is holding one gas connection and one regulator which were gutted in the fire accident alleged to have been occurred on               28-04-08 he could not have taken the delivery of gas cylinder on              28-04-10.   Rest of the allegations contra mentioned in the petition are all false and are invented for the purpose of the complaint.  

4.   The contention of the 2^nd opposite party in brief is hereunder:

        The 2^nd opposite party after receiving the intimation from the 1^st opposite party immediately appointed Mr. G.V. Ramana Kumar as surveyor to conduct the survey.  The said surveyor estimated the loss of property at Rs.36,237/-.  As per clause 7 of the policy the 2^nd opposite party is liable in respect of the customers at their registered addresses only while being installed by the insured through his employees.   The incident occurred in the consumer’s house due to leakage of cylinder which was installed by the consumer or his family members.   The alleged incident is not covered under public liability coverage.   The 2^nd opposite party did not commit any deficiency of service and as such the 2^nd opposite party is not liable to pay any compensation.

5.   Exs.A-1 to A-11 on behalf of the complainant, Exs.B-1 and B-2 on behalf of OP1 and Ex.B-3 and B-4 on behalf of OP2 were marked.

6.   Now the points that arose for consideration in this complaint are:

1. Whether the complainant sustained damage to articles worth of Rs.1,20,000/- due to leakage of gas cylinder and faulty regulator?
2. Whether the opposite parties committed deficiency of service?
3. Whether the complainant is entitled to compensation as  claimed? 
4. To what relief?

7.   Undisputed facts in this complaint are:

1. The complainant is having HP gas connection from the 1^st opposite party vide consumer No.715050 (Ex.A-1&2).
2. The 1^st opposite party is a dealer of HP gas.  
3. The 1^st opposite party took insurance policy from the 2^nd opposite party “LPG dealers package policy” (Ex.B-3).
4. The complainant informed about the incident took place in his house to the 1^st opposite party (Ex.A-7).
5. The 1^st opposite party in its turn informed the same to the 2^nd opposite party (Ex.A-8).
6. The 1^st opposite party delivered gas cylinder to the complainant on 16-04-08 (Ex.A-4).
7. The complainant obtained gas cylinders on 11-07-08,              16-08-08, 02-03-09, 28-03-09 (Ex.A3).

8.   POINTS 1&2:-    Every accident of fire cannot be due to leakage of cylinder or faulty regulator.   Burden is therefore on the complainant not only to prove that fire accident took place in his house due to leakage of gas cylinder and faulty regulator and also the extent of damage as rightly contended by the opposite parties. 

9.   To prove that fire accident took place in his house the complainant relied on Ex.A-5 fire certificate and Ex.A-6 certificate issued by Panchayat Secretary.    Ex.A-5 certificate dated 18-05-08 was issued by Station Fire officer, AP fire and emergency services, Bapatla to the effect that a thatched house belonging to Kakarla Srinivas Rao s/o of Narayana native of Narasayapalem village gutted to fire on 28-04-08 at 18.45 hours., and the cause of fire is gas.   Ex.A-6 certificate (copy) dated 16-06-08 was issued by Panchayat Secretary, Gram Panchayat, Narasayapalem.   The relevant portion in Ex.A-6 is extracted below for better appreciation:

        “

10.   Ex.A-5 or A-6 did not quantify the damage though issued much later to the incident.   In Ex.A-7 letter dated 25-05-08 addressed to the 1^st opposite party the complainant quantified the damage at Rs.1,20,000/-.  

11.   Ex.A-4 revealed that a full cylinder of HP gas was delivered to the complainant on 16-04-2008.   The fire accident took place on            28-04-08.   The complainant gave intimation to the 1^st opposite party on 25-05-08 regarding fire accident (Ex.A-7).    The relevant portion in Ex.A-7 is extracted below for better appreciation:

“

12.   The averments of Ex.A-7 revealed that the complainant and his family members installed the regulator to the cylinder, which was taken delivery on 16-04-08.     The 1^st opposite party in its version as well as affidavit mentioned that the complainant was holding one gas connection and one regulator.   It is not the case of the complainant that he was having two cylinders under Ex.A-1.    The complainant failed to explain regarding usage of gas cylinder or otherwise during 16-04-08 – 28-04-08.   The complainant by giving intimation on              25-05-08 to the 1^st opposite party regarding the fire accident occurred on 28-04-08 denied an opportunity for the opponents to inspect and investigate the cause of action for the fire accident.  

13.   The complainant in his complaint totally estimated the loss at Rs.1,20,000/- but failed to mention the details of loss as rightly contended by the opposite parties.    Gold articles of the complainant were not involved in fire accident as seen from Ex.A-7.   The remnants of the gold and silver and pieces in a fire accident due to explosion of gas cylinders can be found in the form of ingots at least after fire accident as rightly contended by the opposite parties.     

14.   The complainant did not give any report to the police regarding fire accident.  The person who issued Ex.A-5 did not prepare any mediatornama.   The complainant thereby denied opportunity to the 1^st opposite party to inspect and investigate the cause of accident.  The 1^st opposite party questioned the genuineness of claim of the complainant as he filed Ex.A-1 to A-4.  Ex.A-1 is torn copy of certificate issued by gas agency.    Ex.A-2 is xerox copy of domestic gas consumer card.    Ex.A-4 is xerox copy of cash receipt dated            16-04-08 for supply of gas.  Ex.A-3 is cash receipts (4 in number) issued by the 1^st opposite party dated 23-02-08 among others.  In para 2 of Ex.A-7 the complainant mentioned

        “

15.     When the complainant lost 30 bags of grain, sarees, inclusive of silk sarees, silver articles, cash, cots, T.V. Mixie, cookers and house hold articles along with almirah, how he secured Exs.A-1 to A-4 has to be explained by the complainant himself.    Ex.A-7 did not disclose loss of gold articles of the complainant in fire accident.   

16.   The 1^st opposite party also questioned the complainant taking gas cylinders on 2-03-09 and 28-03-09 to show that the regulator is not defective.   The complainant during the course of arguments contended that the 1^st opposite party is supplying cylinders and regulator after fire accident.   The 1^st opposite party is not expected to supply gas when the gas cylinder and regulator supplied by it was involved in fire accident.   The 1^st opposite party supplying gas cylinder even after addressing Ex.A-8 letter to the 2^nd opposite party revealed his malafide intention.    Under those circumstances, the contention of the complainant about the 1^st opposite party accommodating in supplying gas cylinder after fire accident is having considerable force.  

17.   In this case no opportunity has been given by the complainant to inspect the scene of offence in view of Ex.A-7 dated 25-05-08.   The contention of the 2^nd opposite party is that it is not liable to pay compensation as fire accident took place when the inmates of the complainant have fixed the regulator to the cylinder.    The terms of contract govern the parties.  The complainant is not a party to Ex.B-3 policy.   Clause VII of Ex.B-3 reads as follows;

18.   “PUBLIC  LIABILITY:

        The company will indemnify the insured (or in the event of the death of the insured his legal representative) against all sums which the insured shall become legally liable to pay in the event of

1. Accident bodily injury to any person (not being either a member of the insured’s family or a person engaged in and upon the service of the insured at the time of occurrence giving rise to such injury nor a person claiming against the, insured under any workmen’s compensation act)
2. Accident damage to property (not being property of or belonging to or in the custody or under the control of the insured’ or any person in the services of the insured or upon which the insured or any such person is or has been working if that damage results directly from such work) happening during the period of insurance specified in the schedule in connection with the Trade/business as described in the schedule.
   1. At any insured’s premises specified in the schedule.
   2. At any registered address of the customers only whilst being installed by the insured under his employees.
   3. Whilst the gas cylinders are being carried by the insured and/or his employees the maximum amount payable by the company as compensation including litigation expenses in respect of anyone claim or series of claims arising from one accident event and for all accidents events during anyone period of insurance shall not exceed Rs.10,00,000/- (Rupees ten lakhs only)”. 

19.   In FA.1497/07 (the National Insurance Company Limited vs. Ganta Lakshmi and three others) the A.P.S.C.D.R.C., on 31-05-10 it was held:

        “A reading of the above would undoubtedly show that appellant is liable to pay towards accidental damage to the property when it is being installed by the insured or its employees.   The narration of the accident would show that OP2 had supplied the gas cylinder but he did not connect to the gas stove of the complainant.   It should have refused to supply the gas cylinder unless the complainant agrees to get the gas cylinder connected to the gas stove.   Since only on such contingency it was liable to pay compensation if any untoward thing happened”

20.   In New India Assurance Company Limited vs. Kaluraj Jasraj Vyas and others 2008 CTJ 731 (NCDRC) it was held

        “In our view, referring to the aforesaid terms of the clause, it is apparently vague.  However, it inter alia, specifically provides that the insurance company will indemnify the insured in respect of all sums which the insured is legally liable to pay as compensation in case of accidental damage to property-caused by or arising from the installation of gas filled liquefied petroleum gas cylinder in the premises of the insured’s customers”.

 21.  The 2^nd opposite party appointed Mr. G.V. Ramana Kumar to assess the loss who in turn gave survey report (Ex.B-3).   Ex.B-3 revealed that the occurrence of fire, damage and cause narrated by the insurer and the sufferer was genuine.   The surveyor appointed by the 2^nd opposite party estimated the damage at Rs.36,237/-.   The 2^nd opposite party cannot ignore Ex.B-3 when the cause of accident was genuine. 

22.   The complainant claimed damage of Rs.1,20,000/- to the house hold articles without mentioning details.    The complainant did not place any material before the Forum as to how he estimated it.   The complainant is guilty of the following latches: 

1. The complainants did not give report to the police soon after the incident. 
2. No panchnama was prepared at the time of accident either by the fire service persons or by VAO of that village.
3. The complainant informed about the accident to the 1^st opposite party on 25-05-08 and thereby denied the opportunity to the opposite parties to have factual information.
4. The complainant did not mention about the loss of the gold articles in Ex.A-7.
5. The complainant was able to secure Exs.A-1 to A-4 though the entire house was gutted to fire.

23.    The surveyor opined that the cause of accident and damage was genuine.  Relying on the decision reported in 2008 CTJ 731 (NCDRC) fastening liability on the 2^nd opposite party in our considered opinion will meet ends of justice.   Awarding the quantum of damage as mentioned in Ex.B-3 report of the surveyor in view of the above conduct of the complainant as discussed supra will meet ends of justice.  Awarding of interest from the date of surveyor’s report will meet ends of justice.    In view of afore mentioned discussion, this point is answered accordingly.  

24.  POINT No.3:-   Since the complainant himself fitted the regulator to the cylinder instead of getting it done through the supplier of the 1^st opposite party awarding compensation towards mental agony in our considered opinion is not just and proper.   Hence, this point is answered against the complainant.

25.   POINT No.4:-    In view of the above findings, the complaint is allowed partly as indicated below:

1. The 2^nd opposite party is directed to pay Rs.36,237/- (Rupees thirty six thousand two hundred and thirty seven only) together with interest @9% p.a., from 01-10-08 till payment.

1. The 2^nd opposite party is directed to pay Rs.1,000/- (Rupees one thousand only) towards costs.
2. The claim against the 1^st opposite party is dismissed in view of indemnity clause.
3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order.

Typed to my dictation by junior stenographer, corrected by me and pronounced in the open Forum, dated this the 20th day of May, 2011.       

            MEMBER                                                                            PRESIDENT

APPENDIX OF EVIDENCE

  DOCUMENTS MARKED

For Complainant:     

For 1^st opposite party:  

For 2nd opposite party:  

                                                                                           PRESIDENT