For the Complainant -Smt. Suparna Bhattacharyya, Advocate
For the OP 1 & 2 - Sri Aditya Sen, Advocate
For the OP 4 & 5 -Sri Sankar Mukhopadhyay, Advocate
FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application u/s.12 of the C.P. Act, 1986. The fact of the case, in brief, is that wife of the complainant Madhuri Biswas got serious burn injury on 02.08.2014 at her residence at NA – 35, Arjunpur (North), Kolkata – 700059 at about 9 p.m. while entered into the kitchen of her residence while turn the gas knob to enhance the flame since it was burning in seam. By doing so, all of a sudden a huge flame burst out from under the gas table and gas cylinder and out of that said Madhuri Biswas suffered about 50% burn injury. She was immediately brought to Calcutta National Medical College and Hospital, Park Circus, Kolkata – 14 on the same day i.e. 02.08.2014 and thereafter she was shifted to Desun Hospital and Heart Institute, Kolkata – 700107 on the next day i.e. 03.8.2014 and was treated over up to 20.08.2014. Indu Biswas being the sister of the complainant also got burn injury to the extent of 30% who was at the back side of Madhuri Biswas at that point of time and she also was brought to the Calcutta National Medical College and Hospital on 02.08.2014 and treated over up to 09.8.2014. On preliminary searching it was revealed that it was due to gas leakage from the gas cylinder. Complaint was lodged to the Baguiati P.S. on 17.8.2014. A survey was conducted by the OP 3 and as per the survey report dated 03.9.2014 the reason is round ring like washer which was not in correct position for gas regulation and the gas leakage from the unsafe regulation .As per the report Madhuri Biswas got 50% Burn Injury and sister of the complainant was injured seriously. For the treatment of his wife the complainant spent Rs.6,29,357/- at Desun Hospital and spent Rs.20,000/- for prior and post treatment cost apart from Desun Hospital and Rs.40,000/- as incidental costs. Similarly Rs.28,827/- was spent by the complainant for the treatment and post treatment of his sister. The complainant sent letters to the OPs on 20.8.2014 and 16.10.2014 . OP 3 vide his reply dated 16.10.2014 informed the complainant that the matter has been escalated to the concerned authorities and requested the complainant to follow up with them accordingly. The complainant thereafter submitted all original bills in connection with the claim to the OP 3 as per the demand of the OPs on 15.5.2015 which was duly acknowledged by OP 3 with their seal and signature. The complainant waited on good faith for a substantial period of time and finally sent legal notice dated 06.06.2016 to the OPs which were duly received by them. OP 1 thereafter responded the said legal notice vide reply dated 21.9.2016 by a letter addressed to the United Insurance Company Limited mentioning that they had already taken up the matter with the United India Insurance Company vide their letter dated 03.6.2015 wherein they had submitted all documents to the Insurance Company to process the claim. Thereafter OP 3 vide their letter dated 14.10.2017 asked the complainant to submit all the original documents to the OP 2. The complainant then being shocked and surprised by the action of the Ops again sent another legal notice dated 28.10.2017 narrated the facts to the OP No.2 & 3 that all original documents had already been deposited to the OP 3 on 15.5.2015. The said legal notices were duly received by OP Nos. 2 & 3 but till date no steps have been taken by the OPs in the matter of settlement of the claim. Under the above circumstances the complainant has no other option but to knock the doors of this forum for justice.
The OP Nos 1 & 2 have contested the case by filing W/V contending interalia that the allegations against them are absolutely false and baseless. They have expressed every doubts against the alleged incident of burn injury on 02.08.2014 due to leakage of gas from the gas cylinder. As per submission, the complainant has failed to establish the reason for the incident/accident either it is out of negligence of the complainant’s family or due to fault in the gas cylinder. It is also neither supported by the police report nor supported by any other report. The accident took place on 02.08.2014 and information is given to the distributor on 21.08.2014. On inspection by the officers of the answering OPs it was found that there was no tress of fire on L.P.G. equipments and all LPG equipments were in good working conditions and therefore possibility of accident due to leakage could not be established. Conclusion was also drawn to the effect that wife of the complainant left the burner of the stove at low seam while cooking rice and went up to the roof for 10 – 15 minutes. By this time water blisters over flown and fail down on the burner. As a consequence, the flame of the burner turned off while LPG continued leaking from the burner. When the user came down and suddenly clicked without knowing the quantum of LPG accumulated and that caused a flash of fire engulfing the user into fire. OP Nos. 1 & 2 specifically denied that the complainant have deposited the original final bills of Desun Hospital and original pharmacy bills from medical stores relating to the medicine of his wife and sister and original outpatient receipts. It is also further denied that original documents have been deposited to the OP 3 along with letter dated 15.5.2015. There is no self contradiction on the part of OP Nos 1 & 2. Whatever documents were received from the complainant were forwarded to the Insurance Company vide letter dated 03.6.2015. On receipt of the legal notice dated 06.9.2016 a reminder was issued to the Insurance company by the OP Nos. 1 & 2 vide letter dated 21.9.2016 for early settlement of the claim. Insurance Company over telephone asked the OP Nos.1 & 2 to submit all original documents related to the said claim. Accordingly OP Nos. 1 & 2 advised the distributor M/S Paul H.P. Gas Company to ask the consumer to submit all original bills and in turn, the distributor vide letter dated 14.10.2017 requested the consumer to submit all original bills. Thereafter a letter dated 27.11.2017 was issued to the Advocate of the consumer requesting him to advise his client to deposit all original bills but till date the complainant did not submit the original bills. It is also mentioned in the W/V that the wife of the complainant is an employee of United Commercial Bank, Nager Bazar Branch, Kolkata and there is every possibility of submitting those original documents to some other authorities for settlement of other insurance claim. More over, they have confirmed that there was no latches and negligence on their part. The cylinder at the time of delivery was checked in presence of family members of the complainant and there was no complaint lodged by the complainant to the Gas Company afterwards in respect of defective cylinder being supplied to them.. Therefore claim of the complainant is baseless and has no leg to stand.
OP No. 3 vide their submission on affidavit dated 17.5.2018 has stated that the incident took place on 02.08.2014 which was reported to police on 17.08.2014 after 15 days and long thereafter the incident was reported to the dealer. On the basis of information a surveyor was sent who gave a report on 03.09.2014. They further have stated that they have informed the authority about the alleged accident and requested the complainant to pursue with them. By a letter dated 14.10.2017 OP 3 requested the complainant to submit all documents in original to HPCL, Customer Care, 6, Church Lane 2nd floor, Kolkata – 700001 as relevant documents in original were not submitted before OP 3 at any point of time. Since the OP 3 is in no way responsible for making any compensation to the complainant the Op 3 may be exonerated from the present case in the interest of justice. They have also stated that by a letter dated 15.05.2015 the complainant requested the Administrative Officer, United India Insurance Company Ltd., Mumbai to take necessary steps in the matter as the OP 3, the dealer has nothing to do in the matter.
OP No. 4 & 5 by their written Version strongly denied the allegations leveled against them. At the very outset OP No. 4 & 5 have submitted that there is no privity of contract between the complainant and the United India Insurance Company Ltd. As such he is not a consumer as per C.P.Act, 1986. 50% burn injury of the wife of the complainant is denied by them. The accident occurred on the date, time and place mentioned above is due to turn of gas stove then forthwith all of a sudden a huge flame burst out from under the gas Table and not from the Gas Cylinder. More over the complainant did not inform either to the local police station or HPCL within reasonable time for which OPs herein did not get opportunity to investigate the matter. They have further stated that the accident took place on 02.08.2014 at about 9 p.m. and the information given to the local P.S. on 17.8.2014 and local gas distributor on 20.08.2014 and HPCL on 16.10.2014. Such delay of given information to the concerned authority put huge question mark to the behavior of the complainant which presume that the story presented before this Learned Court is an after thought proceeding. They have also submitted that the fire broke out from the bottom of the gas stove which may be due to poor maintenance /mishandling of gas regulation knob of the gas stove .The Insurance Company submits that the contract of Insurance vide Policy No. 021700/46/14/37/00000041 issued to HPCL and other Gas Companies is governed by certain terms and conditions and exclusions. As per exclusion clause No.3 “ The Policy does not cover liability arising out of deliberate, willful or intentional non compliance of any statutory provision and non fulfillment of maintenance or proper quality control.” As per clause No. 4 I of the said policy “ The insure shall give immediate notice to the nearest office with a copy to the Policy issuing office of the insurance company as well as lodge forthwith a complain with the Police. Then insure shall delivered to the company within 14 days of the date on which the event shall have come to his knowledge…………….” As per terms and conditions of the policy the maximum coverage of medical expenses is Rs.1,00,000/- per person only. OP No.4 & 5 vide their submission has stated that till date they have not received any original documents either from the complainant or from the HPCL for processing the claim.
Points for Determination
In the light of the above pleadings, the following points have necessarily come up for determination.
1) Whether there are deficiencies of service on the part of the OPs.
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 4:-
All the points are taken up together for the sake of convenience and brevity in discussion.
Both parties have tendered their Evidence supported by affidavit. They have filed replies to the questionnaire set forth by their adversaries. They have also filed their BNAs.
We have travelled over all the documents placed on record.
Facts remain that Smt. Madhuri Biswas wife of the complainant met with an accident of fire injury on 02.08.2014 at about 9.00 p.m. in her residence arising out of alleged gas leakage from the gas cylinder. As per survey report of a private agency Cunningham Lindsey dated 03.9.2014 Smt. Biswas had 50% burn injury and Smt. Indu Biswas , sister of the complainant also got injured due to that accident. Reason for the accident as per the report was that “ The round ring like washer which was not in correct position for gas regulation. Gas leakage from the unsafe regulation and the kitchen door was closed.” But as per the investigation report of the OP No. 1 & 2 under Form B dated 26.8.2014 signed by S.P. Mishra , Senior Regional Manager, Kolkata LPG RO the possible cause of accident was “ As there was no traces of fire on LPG equipment & all LPG equipment were in good working condition hence the possibility of accidents due to faulty equipments could not be established. Also from other observations it could be derived that the spouse of the consumer left the burner of the stove at low seam while cooking rice & went up on the roof for 10 – 15 minutes. Meanwhile water blisters overflown the utensils & fell down on the burner. By virtue of this the flame of the burner turned off while LPG continued leakage from the burner. When the user came down, she suddenly clicked the lighter without knowing the quantum of LPG accumulated and that caused a flash of fire engulfing the user into fire”. From the two reports it is established that gas leakage was there in the kitchen and the door of the kitchen was closed. As per complaint petition the gas stove was kept in seam mode before the accident which indicates that the entire gas supply system was working properly when Smt. Madhuri Biswas was present in the kitchen. Accident took place on 02.8.2014 and intimation of accident was made known to the Distributor on 20.8.2014. Now if we look into the prayer of the complainant it is found that he has prayed for a decree of Rs.6,49,357/- against the treatment cost of his wife, Rs.40,000/- against incidental expenses and also Rs.13827/- for treatment cost of his sister along with incidental cost of Rs.15,000/- . He has also prayed for Rs.5,00,000/- against compensation and harassment with litigation cost of Rs.25,000/- i.e. the total claim is Rs.12,43,184/-. Now let us examine the efforts of the complainant for getting the claim. He informed the local P.S. on 17.08.2014 and local gas distributor on 20.08.2014. Thereafter he sent letter and FIR copy to the OP No.1 by speed post on 20.08.2014. Reminder letter was also sent to the OP No. 1 by speed post on 16.10.2014. OP No.3 received the reminder on 16.10.2014. OP No.3 vide their letter dated 16.10.2014 replied that the matter has been escalated to the appropriate department and requested the complainant to follow up with them. Thereafter the complainant submitted documents alleged to be original to the Administrative Officer, United India Insurance Company, Mumbai through M/S Paul H.P. Gas Company ( OP No.3 ) vide a hand written letter dated nil which appears to have been received by the said Gas Company on 15.05.2015. The OP No. 1 vide letter dated 03.06.2015 forwarded the papers to the United India Insurance Co. Ltd. in connection with the subject claim including Xerox copy of Medical Bills of Ms.Madhuri Biswas & Ms. Indu Biswas under Serial No. 3 . On receipt of the legal notice dated 06.06.2016 from the complainant the OP 1 (HPCL, Mumbai) responded vide letter dated 21.9.2016 addressed to the United India Insurance Company requesting them to refer their letter dated 03.06.2015 addressed to them wherein they had submitted all relevant documents as required by them to process the claim. This letter dated 03.06.2015 as mentioned above is a very important document to adjudicate the matter. After the said legal notice, HPCL was advised to submit all original Medical Bills for settlement of the claim . Accordingly the H.P.Gas Company (OP 3) issued letter dated 14.10.2017 to the complainant to submit all relevant documents in ORIGINAL within 07 days otherwise the subject claim would be terminated by the HPCL. Again another legal notice was issued by the complainant on 28.10.2017 to the H.P.Gas Company ( OP 3 ) and HPCL Kolkata ( OP 2 ) putting stress that his client has submitted all original documents to OP 3 on 15.5.2015 and to proceed with the said accident claim by placing the original documents before the appropriate authority. The said legal notice was replied by HPCL Kolkata vide letter dated 27.11.2017 by pointing out that neither the dealer nor they have received any medical bills in original from his client and once again requested to advise his client to submit the original medical bills within 10 from the date of receipt of the letter to enable them to proceed further. It is an established fact that the Insurance company is having no contract of insurance with the complainant and the contract of insurance is with the HPCL and other gas companies where the complainant is a mere beneficiary. The terms of the said contract of insurance in between Insurance Company and Gas Companies is binding on both the parties including the beneficiaries. As per the subject Policy No. 021700/46/14/37/00000041 the original Medical Bills including hospitalization details of Madhuri Biswas and Indu Biswas were called for from the Insured HPCL which were not received by the Insurance Company for which the claim is pending. Now let us scrutinize the alleged hand written letter of the complainant dated nil received at the end of OP 3 on 15.05.2015. After careful scrutiny we have also not found any trace of submission of all Original Medical Bills of Madhuri Biswas and Indu Biswas. The very language of the letter “ Regarding the original bill including hospitalization,details of Madhuri Biswas and Indu Biswas it is for your kind information that all the available documents collected at different times is enclose h/w. “ does not confirm or justify the submission of original documents. It is very much difficult to believe that by this letter all original Medical Bills of both the persons were submitted to the OP 3 on 15.05.2015. He has tried to establish his submission of all original document in the above manner which however is no way acceptable to us. The Forum is further more is convinced about the said truth by the letter of OP 1 dated 03.06.2015 addressed to the Insurance Company at Mumbai through which they have sent the documents including the document under Serial No. 3 i.e. “Xerox copy of Medical Bills of Ms.Madhuri Biswas & Ms. Indu Biswas. “ As such, the statutory requirement of submission of all original Medical Bills of Madhuri Biswas and Indu Biswas including hospitalization details of Smt. Madhuri Biswas at Desun Hospital have not been complied with. In this context it is not unworthy to mention that the original bills might have been submitted to some other Insurance Company as alleged by the OPs. in their submission for much better reimbursement as the victim Smt. Madhuri Biswas is an employee of a Nationalized Bank where much better mediclaim facilities are avaiable. We are also very surprised to see that the discharge certificate of Madhuri Biswas from Desun Hospital has not been
submitted . As such the extent of burn injury of Madhuri Biswas could not be ascertained without the valid discharge certificate. But in case of Indu Biswas the extent of burn injury was 10% as ascertained from the discharge certicate of Calcutta National Medical College & Hospital dated 09.05.2014.
Considering the above facts and circumstances we are of the considered view that the complainant has failed to establish his case against the OPs.
In the result, the complaint case fails.
Hence,
Ordered
That the complaint case be and the same is dismissed on contest against the OPs without any costs.
