DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 458/2016
Date of Institution : 02.03.2016
Date of Decision : 06.06.2017
Karnail Singh son of Bhag Singh resident of Bajakhana Road, Opposite Ahluwalia Filling Station, Barnala, District Barnala. …Complainant
Versus
1. The Manager, PUNSUP Gas Agency, Ram Bag Road, Barnala.
2. Indian Oil Corporation, Ali Yavar Yung Road, Bandra (East) Mumbai, PIN-400051 through its Managing Director.
3. M/s New India Assurance Co. Ltd., Branch Barnala, Street No. 6, Kucha College Road, Barnala, Tehsil and District Barnala.
4. M/s United India Insurance Co. Ltd., Divisional Office N o. 17, 226, Canada Building, 1st Floor, Dr. D.N. Road, Fort Mumbai-400021.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Balraj Tapa counsel for the complainant.
Sh. Dhiraj Kumar counsel for opposite party No. 1.
Sh. Anuj Mohan counsel for opposite party No. 2.
Sh. Vinay Kumar Jindal counsel for opposite party No. 3.
Opposite party No. 4 exparte.
Quorum.-
1. Shri S.K. Goel : President
2. Ms. Vandna Sidhu : Member
3. Shri Tejinder Singh Bhangu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant Karnail Singh son of Bhag Singh has filed the present complaint under Section 12 of the Consumer Protection Act (In short the Act) against The Manager PUNSUP Gas Agency Barnala opposite party No. 1, Indian Oil Corporation, Mumbai opposite party No. 2, New India Assurance Company Limited, Barnala opposite party No. 3 and United India Insurance Company Limited opposite party No. 4.
2. The facts of the present complaint as pleaded by the complainant are that on 23.1.2016 Charanjit Kaur daughter in law of the complainant was working in the kitchen. All of a sudden the gas cylinder stopped supply of gas and on checking it was found that the gas cylinder was empty. Thereafter, the said Charanjit Kaur brought gas cylinder from the neighbour namely Harbhajan Singh. Then she started connecting the same with the gas stove. It is alleged that all of a sudden gas started leaking and pin meant for controlling the gas supply from the cylinder was missing and due to this reason gas automatically started oozing out of the same. When she tried to control the gas, after striking the luminous electric bulb it caught fire due to which Charanjit Kaur received various injuries. It is further alleged that washing machine and other household articles and furniture caught fire. Fire brigade was called and fire fighting staff controlled the fire. Charanjit kaur was admitted in Civil Hospital Barnala. The matter was then reported to the police and police visited the hospital and recorded statement of Charanjit Kaur. However the police instead of taking action recorded a Rapat No. 11 dated 23.1.2016 in the Roznamcha as a routine formality.
3. It is further alleged that due to the said accident Charanjit Kaur suffered serious injuries and a sum of Rs. 50,000/- has been incurred on her treatment. Household articles worth Rs. 5,00,000/- were destroyed. Damage was also caused to the walls of the house. It is further alleged that the said incident took place due to the wrong acts of the opposite parties. Had the cylinder been properly checked before delivery the incident would not have been occurred. Hence the present complaint is filed seeking the following reliefs.-
1) The opposite parties may be directed to pay the amount of Rs. 50,000/- as treatment expenses of Charanjit Kaur.
2) To pay Rs. 5,00,000/- as price of damaged household articles.
3) To pay Rs. 2,00,000/- for damage to walls of the house.
4) To pay Rs. 2,40,000/- as compensation for harassment.
5) To pay Rs. 10,000/- as litigation expenses.
6) To pay interest on the total amount of Rs. 10,00,000/- at the rate of 18% per annum from 23.1.2016 till realization.
7) Any other relief which this Forum deems fit.
4. Upon notice of this complaint, the opposite party No. 1 filed a separate written version taking legal objections on the ground of maintainability, no cause of action, no locus standi, it involves intricate questions of law and therefore the remedy is to file a civil suit not a consumer case, bad for non joinder and mis joinder of necessary parties, no jurisdiction and estoppel.
5. On merits, it is pleaded that the complainant is not a consumer of the opposite party No. 1. Alleged accidental cylinder was not produced before this Forum. Even no forensic report regarding the incident was produced by the complainant. Even, they denied any accident qua the gas cylinder and prayed for the dismissal of the complaint.
6. The opposite party No. 2 also filed a separate written version taking legal objections on the ground of maintainability, locus standi, bad for non joinder and mis joinder of necessary parties and that the complainant is not a consumer.
7. On merits, they have denied any such accident. They further stated that there is no privity of contract between them. It is further submitted that the complainant has no locus standi to file the present complaint as he is not a consumer within the meaning of Section 2 (d) of the Consumer Protection Act. They have denied any loss as well as any such incident and finally prayed for the dismissal of the complaint.
8. The opposite party No. 3 also filed a separate written version taking legal objections on the grounds of maintainability, jurisdiction, locus standi and complainant is not a consumer.
9. On merits, it is submitted that the complainant has concocted a false story. In fact the opposite party No. 1 is insured with them vide multi perils for LPG Dealer policy bearing No. 36130148141300000013 which is valid fro 30.1.2015 to 29.1.2016. The policy taken by opposite party No. 1 covered only the cylinders lying in the Godown and premises of the opposite party No. 1. In the present case the incident alleged by the complainant was not occurred in the premises of the opposite party No. 1, so the claim of the complainant does not fall within the ambit of insurance policy. They have further denied any loss to the complainant and any loss to the property as alleged. They have denied other allegations of the complainant and prayed for the dismissal of the complaint.
10. The opposite party No. 4 not appeared before this Forum despite service, so the opposite party No. 4 was proceeded against exparte.
11. In order to prove his case, the complainant has tendered into evidence his own affidavit Ex.CW-1, photographs Ex.C-1 to Ex.C-7, copy of policy Ex.C-8, copy of public liability policy Ex.C-9, copy of domestic and commercial agreement with IOC Ex.C-10, legal notice Ex.C-11. Postal receipt Ex.C-12, copy of rapat No. 11 Ex.C-13, cutting of paper Ex.C-14, copy of sale deed Ex.C-15, copy of map Ex.C-16, copy of gas consumer number Ex.C-17, copy of OPD Ex.C-18, copy of prescription slip Ex.C-19, copy of mason bill Ex.C-20, copy of consumer number Harbhajan Singh Ex.C-21, copy of estimate Ex.C-22, copy of invoice of washing machine Ex.C-23, affidavit of Charanjit Kaur Ex.C-24, affidavit of Harbhajan Singh Ex.C-25 and closed the evidence.
12. To rebut the case of the complainant, opposite partt No. 1 tendered in evidence affidavit of Amritpal Singh Ex.OP-1/1 and closed the evidence. Opposite party No. 2 tendered in evidence affidavit of BR Rang Deputy Manager Ex.OP-1.2/1 and closed the evidence. Opposite party No. 3 tendered in evidence affidavit of Mewa Singh Senior DM Ex.OP-3/1, copy of policy Ex.OP-3/2, copy of terms and conditions of policy Ex.OP-3/3 and closed the evidence.
13. We have heard the learned counsel for the parties and have gone through the record.
14. The first objection by the learned counsel for the opposite party is that the complainant Karnail Singh is not the consumer of the opposite party. It was contended that the complainant himself alleged that his daughter in law namely Charanjit Kaur brought the cylinder in question from the neighbour Harbhajan Singh and thus neither the cylinder in question was issued and delivered to the complainant by the opposite party nor the cylinder was used by the complainant himself. Thus it is contended that the complainant has no cause of action and locus standi to file the present complaint and by stretch of any imagination he is not the consumer of the opposite party.
15. On the other hand, the learned counsel for the complainant contended that the said Charanjit Kaur is the daughter in law of the complainant Karnail Singh and she suffered injuries due to the defective gas cylinder and being victim through her father in law Karnail Singh is entitled to maintain this complaint.
16. After hearing the learned counsel for the parties and going through the record placed on the file,we are of the opinion that the complainant is not the consumer of the opposite parties. Firstly, it is relevant to refer the affidavit of Harbhajan Singh Ex.CW-25 wherein he has stated that he is the holder of LPG Connection No. 18047 of opposite parties and he further stated that the gas cylinder was borrowed by Charanjit Kaur his neighbour from his wife Jaswinder Kaur. Further, copy of pass book and receipt Ex.C-21 shows that the gas cylinder issued in favour of Harbhajan Singh and he is the consumer of the opposite parties.
17. It is relevant to refer Section 2 (d) of the Consumer Protection Act which reads as.-
“(d) “consumer” means any person who.-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purposes).”
18. Perusal of the record shows that the complainant Karnail Singh has neither hired the services of the opposite party for consideration nor he is the holder of the LPG gas connection. It is also not the case of the complainant that he had paid the price of the said gas cylinder to the opposite party. Even by stretch of any imagination the complainant Karnail Singh cannot be held beneficiary of the services hired by his daughter in law from her neighbour Harbhajan Singh.
19. As a result of the above discussion, we are of the opinion that the present complainant is not covered within the definition of 'consumer' as referred to above.
20. Even otherwise the onus to prove that the gas cylinder was defective was upon the complainant. In the DDR Ex.C-13 lodged by Charanjit Kaur to the police clearly shows that it is stated by the said Charanjit Kaur that there was no fault of anybody and further stated that they do not want to take any action against anyone and the said incident was occurred all of a sudden and due to leakage of gas cylinder and she does not want any action against anybody.
21. The complainant has also not placed on record any expert/ technical report to indicate that the cylinder in question was defective and due to that the incident had occurred.
22. In II (2016) CPJ-450 (NC) titled Shushila Devi Versus N.K. Cooking Gas Agency and Others it was observed by the Hon'ble National Commission in Para No. 6 which reads as.-
“6. It has to be kept in mind that the complainant/petitioner chose to obtain delivery of the LPG Cylinder from the dealer and install in herself, instead of asking the representative of the LPG dealer to install the same at her resident. She therefore, knowingly took the risk of handling the LPG Cylinder of her own. The possibility of the fire having broken out on account of improper installation or operation of the LPG Cylinder, cannot be all together rules out in such circumstances and in fact is a distinct possibility. The aforesaid circumstance becomes important when viewed in the light of the fact that no attempt was made by the complainant to get the said LPG Cylinder inspected by a technical expert. Therefore, I am in agreement with the State Commission that no case of the deficiency on the part of respondent No. 1 M/s NK Cooking Gas Agency in rendering services to the complainant/petitioner is made out.”
23. In the absence of any cogent and reliable evidence the complainant has failed to prove the deficiency in service on the part of the opposite parties and therefore the complaint is dismissed. However, the complainant is at liberty to seek remedy in any other competent Court as per law if he so advised. No order as to costs or compensation. Copy of this order be supplied to the parties free of costs. The file be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
6th Day of June 2017
(S.K. Goel)
President
(Vandna Sidhu)
Member
(Tejinder Singh Bhangu)
Member
