Date of Filing : 08.12.2009
Date of Order : 18.08.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER
DISPUTES REDRESSAL FORUM,
SESHADRIPURAM, BANGALORE – 560 020
Dated 18th AUGUST 2011
PRESENT
Sri. S.S. NAGARALE, B.A., LL.B. (SPL) …. President
Smt. D. LEELAVATHI, M.A., LL.B. …. Member
Sri. BALAKRISHNA V. MASALI, B.A., LL.B.(SPL) …. Member
COMPLAINT NO. 2881 / 2009
Sri. Sabir Pasha,
S/o. Yusuf Sherief,
Aged about 24 years,
R/o. Sonnappa Garden,
Modi Main Road, D.J. Halli,
Bangalore – 560 045. ……. Complainant
V/s.
1. The General Manager,
Hindustan Petroleum Corporation,
No.3 & 4, Near K.R. Puram Railway Station,
Whitefield Road, Mahadevapura,
Bangalore – 560 048.
2. M/s. Vinay Enterprises,
No. 4/50A, V.S.T. Road,
Lingarajapuram, Thomas Town Post,
Bangalore – 560 084.
3. The Divisional Manager,
M/s. New India Assurance Co. Ltd.,
Tiffanias Annex, Vittal Mallya Road,
Bangalore.
4. The National Insurance Co. Ltd.,
RO, No. 4, Subharam Complex,
M.G. Road,
Bangalore – 560 001. …… Opposite Parties
ORDER
(By the President Sri. S.S. Nagarale)
This Complaint is filed by the Complainant u/s. 12 of the Consumer Protection Act, 1986.
Brief facts of the case are that Complainant is a consumer of HP Gas single Cylinder under OP2 and has taken the facility of HP Gas for his domestic purpose. On 19.06.2009 he brought Gas Cylinder from OP2. After taking delivery of the Cylinder at about 11.00 AM, while he was connecting to the Gas Stove, Cylinder got burst due to which Complainant sustained cent percent burn injuries and his house was completely got burnt. Immediately Complainant was shifted to Hospital. He was in-patient from 19.06.2009 to 01.07.2009 and till today he is under treatment as out-patient. Complainant is cent percent disabled and looking ugly. His entire life is battered & shattered. Complainant has spent Rs.6.00 Lakhs towards treatment, medicine, conveyance etc. and he requires Rs.4.00 Lakhs for future treatment. He cannot do any work to earn his livelihood and he has to depend upon others for his livelihood in future. Complainant was a mason by profession and he was earning Rs.6,000/- per month and now he cannot do work in future. The root cause for the incident is due to the gas came out from the Cylinder at high pressure due to pin leakage. Due to negligence of OP1 unfortunate incident took place. There is negligence in filling the Gas Cylinder by OP1 so also on the part of OP2 in delivering the Cylinder. OPs 1 & 2 are jointly & severally liable to pay damages to the Complainant. Complainant further submitted that after the incident on 19.06.2009, his father lodged the Complaint before the D.J. Halli Police, Bangalore and Police have registered a case against OPs 1 & 2 punishable u/s. 285 & 337 of IPC. OP1 has sent one of their investigators to the house of the Complainant and after investigation he submitted the report stating that due to pin leakage Gas came out and recommended for pre-delivery inspection by the delivery boys to be intensified. Delivering the Gas Cylinders which are highly hazardous to the customers in a negligent manner amounts to deficiency of service. OP2 has taken insurance coverage from OP3. Complainant has issued legal noticed to the OPs demanding payment of compensation, but OPs have not paid the compensation nor replied to the said notice. Therefore, Complainant prayed that OPs be directed to pay Rs.19.00 Lakhs as compensation.
2. OP1 has filed its version stating that empty Cylinders are filled with LPG using highly sophisticated state of art technology like electronic filling machines. The filled LPG Cylinders are subjected to thorough check using electronic leak detectors and check weighing machine. Further, random checks are carried out by the Officers at the bottling Plant before despatching to Distributors. Distributors are advised to check the Cylinders at the customer’s premises after breaking the seal and opening the safety cap. In the instant case, LPG connection stands in the name of Yusuf Sherief who is the father of the Complainant. On 19.06.2009, customer has taken Cylinder from the storage point of Distributor and thus Distributor or delivery boys could not check the Cylinder at the customer’s premises. It is submitted that the incident has occurred due to faulty handling of the equipment by the Complainant. While connecting the Regulator to the Cylinder, the Complainant has forcibly pressed the valve pin in a wrong direction which resulted in leakage of Gas. The Complainant carried the Cylinder out of the house. At the main door of the house, there is an Electric Meter. When the escaping gas came into contact with the electricity, it got ignited and thus resulted injury to the Complainant. After the incident, all the Equipments were sent to laboratory. The LERC has conducted thorough investigation of the Equipment of the customer. In the report, it is mentioned that valve pin was stuck when the valve was received. The same was released and tests were conducted. There was no manufacturing or other defect in the Equipment. Immediately after the accident, Officer of the OP2 Smt. Remya Verma has visited the spot and conducted inspection and prepared the report. OP2 is a Distributor of M/s. HP Gas Ltd., who distributes filled LPG Cylinder to the customers. No liability can be fastened on the Hindustan Petroleum Corporation Ltd. There is no vicarious liability as the business between the 1st & 2nd OP is carried on principal to principal basis. Hence, OP1 prayed to dismiss the Complaint.
3. OP2 has also filed separate version stating that it is OP1 i.e., owner of the Gas Cylinder and its various components. OP1 is solely responsible for its repair & maintenance. There is no negligence on the part of OP2. OP2 submitted in Para-8 of the version that it is also true to state that due to flames entire house was destroyed with all the fixtures and the damage was around Rs.1,50,000/-. OP2 did not tamper with Gas Cylinder from the time it arrived from OP1 till the time customer took delivery of the same. OP1 sent investigator to the house of the Complainant and submitted the report. Complainant is guilty of contributory negligence. OP2 is not liable to pay compensation to the Complainant. OP2 submitted that the essence of the dealership agreement is one of principal–agent and business is being carried on principal to principal basis is false. Distributor is for all the practical business purposes acts in the capacity of an Agent of OP1 and does not deal with it in a principal to principal manner as contended by OP1. Compensation claimed by the Complainant is unreasonable & exorbitant. OP2 prayed to dismiss the Complaint.
4. OP3 New India Assurance Co. has filed version stating that under the Policy they shall indemnity the insured only at ratable proportion of liability not exceeding 50%. OP3 is not aware that on 19.06.2009 Complainant has brought Gas Cylinder from OP2 for domestic purpose. OP2 being authorized H.P. Gas dealer is not supposed to deliver the Gas Cylinder to a customer and permit him to connect it to a Stove on his own instead of utilizing the services of the trained deliveryman and connect the Cylinder after due and thorough check at the premises of the customer. OP2 violated the terms & conditions of the Policy. It is denied that the Complainant had spent Rs.6.00 Lakhs towards treatment, medicines etc. It is denied that Complainant cannot do any active work. It is true that OP3 had issued Multi Peril (LP) Package Insurance Policy in the name of OP2. OP3 has not issued any policy of insurance in the name of the Complainant or his father. Compensation claimed is exorbitant & astronomical and totally disproportionate to the cause of accident.
5. OP4 National Insurance Company has filed separate version admitting that Policy was issued in favour of the Indian Oil Corporation Limited, Bharath Petroleum Corporation Ltd. & Hindustan Petroleum Ltd. Complainant is not supposed to take delivery of the Gas Cylinder from the dealer by himself. Complaint is not maintainable against OP4. OP4 has not issued any Policy in respect of the Complainant or his father. OP4 is not liable to pay any compensation to the Complainant. Complainant claimed highly exorbitant, excessive, arbitrary, unreasonable compensation. There is no relationship between the Complainant and OP4 as customer and service provider for which no consideration was paid by the Complainant to OP4. Therefore, OP4 prayed to dismiss the Complaint.
6. Complainant has filed his affidavit evidence and produced the documents. OPs 2 to 4 have also filed affidavit evidence and documents. I have gone through the pleadings, evidence & documents very carefully. Arguments are heard.
7. Points for consideration are as under:
(1) Whether the Complainant has proved deficiency of service on the part of OPs 1 & 2.
(2) Whether the Complainant has proved that he has suffered physical injuries due to explosion of Gas Cylinder in his house on 19.06.2009?
(3) Whether the Complainant is entitled for compensation? If so, what would be the quantum of compensation ?
(4) What order & relief?
8. It is the admitted case of the parties that Complainant’s father Yusuf Sherief is a consumer of LPG Gas Cylinder. LPG connection stands in the name of Complainant’s father. OP2 is a Company i.e., Hindustan Petroleum Corporation and OP2 is dealer of HP Gas Distributors. It is the case of the Complainant that on 19.06.2009 he took LPG Gas Cylinder from OP2 for his domestic purpose. While he was connecting the Gas Cylinder to the Gas Stove, there was a leakage of Gas and explosion took place and in that unfortunate incident Complainant suffered burn injuries and his house was also burnt. Complainant was shifted to Hospital for treatment. He was in-patient from 19.06.2009 to 01.07.2009 and thereafter till today he is under treatment as out-patient. Complainant has produced copy of FIR registered by the D.J. Halli Police for the offence punishable u/s. 285 & 337 of IPC against HP Gas Company and Vinay Enterprises i.e., OPs 1 & 2. Complainant’s father has lodged the Complaint to the Police informing the incident, copy of which has been produced. Complainant has produced Wound Certificate of Fortis Hospital. The Wound Certificate also discloses that Complainant was admitted to Hospital on 19.06.2009 for treatment of burn injuries due to Cylinder blast (LPG). Doctors have noted that injuries are grievous in nature. Complainant got issued legal notice to the OP, copy of which has been produced. OP1 has produced Accident Analysis Reports of LPG Equipment Research Centre at Documents Nos. 1 to 5 and also produced LPG Accident Report at Document No. 6 from Page Nos. 12 to 17. The Chief Regional Manager, Bangalore, in his LPG Accident Report has described the accident as follows:
Causes: Due to the pin leakage the gas started coming out. But the customer in an effort to bring it outside the residence by closing the cylinder with hands, it fell down near to the electricity meter which was running. Thus got fire.
Analysis: The customer is having HP Gas Connection (Single Cylinder). The cylinder refill was delivered to the customer on the same day. When they opened the cylinder, the gas came out with high pressure due to pin leakage. The customer held the bunk of the cylinder with hands and tried to lift the cylinder outside the main doorstep. On the left side of the main door but within the compound, the electrical power meter was installed. The electric meter was working at that time. When the high-pressure gas coming out of the cylinder hits the electric power meter, there was short circuit in the electric installation resulting into fire on the high pressure-leaking cylinder. By the time neighbors came and extinguished the burning cylinder by throwing the mud and water on the cylinder. Sabir Bacha, the customer’s son was badly burned in the lower limbs and upper limbs. The customer is under treatment at the Fortis Hospital, 1st Main, Seshadripuram, Bangalore. He was put in ICU. The wife of the Customer, Abida Begum is having very mild injury and is treated by the local doctor.
9. By the documents produced by both the parties, it is very clear that there was LPG Gas Cylinder accident on 19.06.2009 in the house of the Complainant and in that accident Complainant sustained severe burn injuries both to his lower & upper limbs and in that accident customer’s wife Abida Begum was also got injured. Police after investigation of the matter had also submitted charge sheet, copy of which is produced. Accident Analysis Report dtd. 22.06.2009 was submitted and it was investigated by Remya Verma.K., Sales Officer, Bangalore North. LPG Accident Report dtd. 23.06.2009 was also submitted by Krishnamurthy.D.N., Chief Regional Manager, Bangalore. By the documentary evidence & reports, it has been conclusively proved that on 19.06.2009 LPG Gas Cylinder accident took place in the house of the Complainant and the Complainant has sustained very serious burn injuries in the said accident. OP1 has clearly stated that Distributors are advised to check Cylinders at the customer’s premises after breaking the seal and opening the safety cap. This will ensure that there are no defective Cylinders delivered to the customers. It is also admitted by the OPs that on 19.06.2009 customer has taken Cylinder from the storage point of the Distributor, thus Distributor or delivery boy could not check the Cylinder at the customer’s premises. This is entirely against the instructions. Therefore, there was negligence on the part of the OPs 1 & 2. OP1 has to take responsibility of the default or negligence of OP2 being a principal. Any act or omission on the part of Agent is binding on the principal. OP1 is manufacturer of the LPG Gas Cylinders and OP2 is dealer / distributor. For this unfortunate incident, both OPs 1 & 2 shall have to be held responsible. The Accident Analysis Report clearly establishes that when the Cylinder opened, Gas came out with high pressure due to pin leakage. This itself goes to establish that there was deficiency in service on the part of Ops 1 & 2. OPs 1 & 2 had not taken safety measures. Admittedly, delivery boy or distributor could not check the Cylinder at the customer’s premises. This is a gross & culpable negligence on the part of the OPs 1 & 2. OPs 1 & 2 shall have to take responsibility of the unfortunate incident which resulted in severe burn injuries to the Complainant who is the son of consumer / customer.
10. Now the point for consideration is what would be the quantum of compensation that could be awarded. Complainant has claimed Rs.19.00 Lakhs as compensation in his Complaint. According to the Complainant, he has spent about Rs.6.00 Lakhs towards treatment & medicines etc. and he still requires Rs.4.00 Lakhs for future treatment. The Complainant submits that his life has completely shattered as he is not in a position to work for his livelihood. He was a mason by profession and was earning Rs.6,000/- per month and he cannot do work since he has suffered cent percent burn injuries and he is in disabled condition. He has also submitted that his house was also destroyed / burnt due to flames and suffered damage to the extent of Rs.1,50,000/-. Complainant has produced Wound Certificate of Forti Hospital. As per this Certificate, Doctors have opined that second degree deep burn involving both upper limbs circumferentially, both the foot and lower limbs are also suffered due to burn injury and injuries are grievance in nature. Complainant has produced Discharge Bill of Forti Hospital, medical cash bills & vouchers and also Doctor’s prescriptions. The total sum of medical Bills as calculated by the Complainant comes to Rs.2,72,499/-. Complainant has produced photographs to show that he has suffered severe burn injuries. On looking to the photographs produced by the Complainant, the condition of the Complainant is really horrible. The burn injury suffered by the Complainant is very much visible and serious in nature. Complainant has also produced photographs of his house which is also damaged / burnt in the accident. Complainant is coming from poor family. Complainant is a manual worker doing masonry work and due to burn injuries suffered by him, now he cannot work as earlier to the accident. He has to suffer throughout his life. He has to depend on others for his livelihood. Complainant has not only suffered physical injuries, but also suffered mental agony & trauma and shock due to accident. Under these circumstances, taking into consideration of suffering and the injuries suffered by the Complainant, it would be just, fair & reasonable to award global compensation of Rs.8.00 Lakhs. Having coming to this conclusion, now the point for consideration that who will be responsible to pay the compensation.
11. Complainant has produced judgement of Hon’ble National Commission, New Delhi, in First Appeal No. 156/2005 decided on 03.12.2009 between New India Assurance Co. Ltd. v/s. T.Srinivasan & others, wherein it has been held that there was no privity of contract between the insurance company and the complainant. Privity of contract was between the insurance company and the dealer. Therefore, complainant could not be asked the OP to compensate loss caused to him. Insurance Companies are not responsible for payment of compensation. Further it was held that the Hindustan Petroleum Corporation as well as dealer / distributor were held to be responsible for payment of compensation to the Complainant. Complainant has produced another judgement of Hon’ble National Commission reported in 2010 CPJ 73 (NC) between D. Shankar v/s. Gopi Agencies & others wherein it has awarded a consolidated sum of Rs.5.00 Lakhs on all counts to the Complainant. Accordingly, Gas Distributor / Agency was ordered to pay compensation to the Complainant.
12. Therefore, taking into consideration of the judgement of the Hon’ble National Commission and also the Hon’ble Supreme Court, Insurance Companies OPs 3 & 4 in this case cannot be held responsible to pay compensation to the Complainant since there was no privity of contract between the Complainant and the Insurance Companies. There is joint & several liability on the part of OPs 1 & 2 to pay the compensation to the Complainant. OPs 1 & 2 are entitled to put up claim with the OPs 3 & 4 as per the policy terms & conditions and whatever the amount payable under the Policy, OPs 1 & 2 shall get the amount from OPs 3 & 4. Taking into consideration all the facts & circumstances of the case and the documents, we are of the opinion that it is a fit case to grant consolidated / global compensation of Rs.8.00 Lakhs to the Complainant. In the result, I proceed to pass the following:
ORDER
Complaint is allowed. OPs 1 & 2 are jointly & severally directed to pay compensation of Rs.8,00,000/- (Rupees Eight Lakhs Only) to the Complainant within 60 days from the date of this Order failing which they shall pay interest @ 8% P.A. from the date of this Order till the date of payment / realization.
Complainant is also entitled for Rs.2,000/- as costs of the present proceedings from OPs 1 & 2.
Complaint against OPs 3 & 4 stands dismissed.
Send copy of this Order to both the parties free of cost immediately.
Pronounced in the Open Forum on this 18th day of August 2011.
Order accordingly
PRESIDENT
We concur the above findings
MEMBER MEMBER
SSS
