KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO.618/2011

                             JUDGMENT DATED:31.01.2012

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

1.      Deepa, D/o Late Vasudevan Nair,

Kittuveedu, Keezhvilla Village,

Cheruvallymukku, Chirayinkeezhu,

Thiruvananthapuram.

                                                                   : APPELLANTS

2.      Deepesh, S/o Late Vasudevan Nair,

          -do-   -do-

(By Adv:Sri.K.N.Justin)

          Vs.

1.      The Proprietor,

Thampuratty Gas Agency,

Kattumarukil, Chirayinkeezhu.P.O,

Thiruvanathapuram.

(By Adv:Sri.Vettoor S. Prakash)

: RESPONDENTS

2.      The Divisional Manager,

The Oriental Insurance Co. Ltd.,

Rohini Building, Thakaraparambu Road, TVPM.

(By Adv: Sri.G.S.Kalkura)

                                       JUDGMENT

JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT

The appellants are the complainants in CC.135/07 in the file of CDRF, Thiruvananthapuram.  The application to condone the delay in filing the complaint vide I.A.192/09 was dismissed and consequently the complaint was also dismissed.

2.      The complainants are the LRs/daughter and son of the deceased who sustained burn injuries on 17.5.04 when igniting the gas stove and died on 24.5.04.  The complaint was filed on 24.5.07 ie beyond the period of limitation stipulated in the statute.  It is after filing the complaint that the delay condonation petition was filed to condone the delay of 335 days. In the affidavit filed by the 2^nd complainant/son of the deceased in support of the application it is mentioned that soon after the incident the matter was reported to the 1^st opposite party/gas agency who assured that adequate compensation will be awarded after consulting with the parent department, M/s Indian Oil Corporation and Insurance Company.  Subsequently the 1^st opposite party asked them to produce a certificate from the Taluk office.  Accordingly the certificate dated was 24.09.2004 from the Taluk office was produced.  He used to make enquiries.  In the meantime the deponent met with an accident and was bed ridden for a couple of months.  He is the only male member of the family.  Hence the delay occurred.

3.      It is submitted by the counsel for the appellants that the above legal heirship certificate was produced and waited for the opposite parties to take a decision on the matter and subsequently lawyer notice dated:5.4.07 was issued.  In the reply notice on 28.4.07 the opposite parties have admitted that there is a valid insurance coverage with 2^nd opposite party/insurance company.  In the reply notice the allegation is with respect to the negligence on the part of the deceased.  The appellant has relied on the decision of the National Commission in West Bengal Agro Industries Corporation Vs. Sri.Bijoy Kumar Roy and Others in Revision Petition Nos.850-851/1996 dated, 5^th August 1999 wherein the delay on the ground of the assurances given by the dealer therein was found to be sufficient.

4.      In the instant case we find that the statement in the affidavit filed by the 2^nd complainant that he had submitted the legal heirship certificate as directed by the opposite party stands not disputed.  Of course the 2^nd complainant has not produced any objective evidence with respect to the accident sustained by him and treatment under gone.  The 2^nd complainant could have been directed to produce the same.  All the same we find that in view of the nature of the claim that a person has died on account of the alleged manufacturing defect of the gas cylinder etc and in view of the fact that a proper delay condonation petition has been filed and in view of the fact that the sworn affidavit of the 2^nd complainant that he had submitted the legal heirship certificate as directed by the 1^st opposite party and the first opposite party had assured to contact the manufacturer of the gas cylinder and the insurance company and pay the compensation we find that the Forum ought to have allowed the delay condonation application filed.

5.      In the circumstances the order of the Forum is set aside.  The appeal is allowed.  The matter is remitted back to the Forum for disposal on merits.  The matter stands posted before the Forum on 29.2.2012.

Office will forward the LCR along with a copy of this order to the Forum.

JUSTICE K.R. UDAYABHANU : PRESIDENT

VL.