SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 12 of Consumer Protection Act 1986 seeking to get an order directing opposite parties to pay Rs.3,35,000/- as compensation of damage caused by the complainant and Rs.5,00,000/- as compensation for the mental agony caused to the complainant and his family with cost of proceedings.
The facts of the case, in brief are that the complainant is a consumer of liquefied Petroleum Gas of Bharath Petroleum Corporation Ltd. The OP No.1 is the Managing Director of Bharath petroleum Corporation Ltd. and the OP No.2 is the agency of OP No.1 which provided LPG connection to the complainant. The OP 2 delivered a filled domestic gas cylinder to the complainant on 27/08/2017. The delivery boy of OP No.2, delivered the cylinder and had not made any check up and assurance that there is no deficiency of leakage to the cylinder. The complainant kept the cylinder unopenly in safe place in his house. That time another cylinder was in use. On 23/09/2017, while the complainant and his family were in Kanhangad, one of his neighbor informed over telephone that smoke is emitting from his house. At the same time they informed the matter to the fire and Rescue station, Thalassery also. Immediately after the information got, the station officer, R Shanith and his team rushed into the place and extinguished smoke and fire with the help of the neighbours and natives. After above incident, the complainant contacted the 2nd OP ie Lakshmi Agencies. Then the staffs of the agency came to the spots and taken away the burnt cylinder to their godown and no it is in the custody of the OP No.2 and he delivered another cylinder. Due to this accident, a lot of damages and loss were caused to this complainant. It is submitted that the accident taken place only due to the negligence from the part of the OPs. The OPs failed to take sufficient steps to ensure that the re-filled cylinder was delivered after much safely verification and wit utmost care. At the time of the delivery of the filled cylinder, it is the duty of the OP No.2 to open the seal and connect the cylinder with gas stove and assure that there was no leakage and to ensure the security measures. The OPs No.2 delivered the cylinder without removing the company seal or assuring that there is no leakage. Here there is default to the delivered cylinder. So there is deficiency in the service provided by the OPs. The complainant suffered a lot due to this incident and the OPs have the liability to compensate it. The complainant assessed the quantum of damage caused to him as Rs.3,53,000/-. Hence the complaint.
After receiving notices OPs 1 and 2 entered appearance and filed their versions OP No.1 contended that the complainant is a consumer of this OP vide consumer No.19729. It is submitted that the allegation in the complaint that the accident was the result of negligence and lack of care on the part of this OP is denied. It is pertinent to note that all cylinders and regulators provided by this OP are as per the specifications mandated in the Gas Cylinder Rules, 2004. All LPG cylinders and regulators are ISI marked by due certification of Bureau of Indian Standard (BIS) with regard to design, manufacture and testing. Therefore, the averment that the accident occurred due to fault or negligence of OP is denied. It is submitted that this OP has insurance to provide coverage in case of any accidents or other untoward incident. This OP has taken insurance from ICICI Lombard General Insurance and the same covers accidents occurring at customer premises and complainant’s residence. Therefore, ICICI Lombard General Insurance is a necessary party to these proceedings. The 2nd OP distributor also will be having insurance coverage and therefore, the Insurance company of the 2nd OP is also a necessary party to the proceedings. The allegation of negligence the part of this OP as alleged is only a baseless allegation made without any factual basis. In the distributorship agreement entered into by this Op with the distributors, it is clearly stated the said appointment of the distributors of BPCL is on Principal to Principal basis for sale of LPG etc., Therefore this OP holds no responsibility in case of cylinders supplied by the distributor the 2nd OP and there is no direct service between this OP and the complainant. There is no deficiency in service or unfair practice adopted by this OP and prayed for the dismissal of the complaint.
OP No.2 admitted that the complainant is a consumer of LPG vide consumer No19729 and a refilled LPG cy linder was delivered on 27/08/2017. Whereas the narration regarding cause of fire on 23/09/2017 is denied. It is also admitted that on getting information the Gas cylinder was retrieved by this OP and the same is kept in the godown for further action. Whereas, this OP is disputing the extent of damage and consequential damages alleged to have been caused to the complainant, due to the said calamity. It is admitted that on personal verification no such crack was found on the roof of the house as alleged, except the colour of smoke and fading of paint at some part of the wall. This OP has happened to notice a third refilled cylinder (of BPC) in the said house and hence the complainant is liable to explain why such a third cylinder found a place there, from where has he got it and to clarify as to whether the cylinder which caught fire is the one actual delivered by this OP. In case the cylinder delivered on 27/08/2017. By all probabilities the leaked cylinder must have been the other one which is not delivered by this OP. It is submitted that a lawyer notice dated 20/11/2017 was received in this regard and the same was duly replied. It is understood that a surveyor deputed by National Insurance company, the insurer concerned, has inspected the house and the damage in particular, caused in the mishap and has filed a report assessing the damages at s.36,900/-. The claim of Rs.3,53,000/- raised by the complainant is inconsistent and contradictory to his earlier claims. Hence, prayed for the dismissal of the complaint.
On the basis of the contentions of OPs 1 and 2, complainant has taken steps to implead the Insurance companies of OPs 1 and 2 and as such implead OP3 and 4 as per IAS 16/22 and 1/23 respectively. Due notices were issued to OPs 3 and 4. On receiving notices OPs 3 and 4 entered appearance through their panel Advocates and filed their version.
OP No.3 has stated that this OP was the insurer of OP 1 Bharath Petroleum corporation Ltd. covering the date 27/08/2017 connecting distribution of gas cylinders to M/s Lakshmi gas agency Thalssery. Maximum limit of policy for a single insistent is Rs.2,00,000/- subject to gravity of damage, fire etc. When a cylinder of BPCL is handed over to a dealer like 2nd OP, the content in the cylinder, regulator etc. are property of the dealer, the 2nd OP. The dealer has to protect themselves from any untoward incident. The 2nd OP has insured its dealership with M/s National Insurance Co. Ltd. for any peril like leakage etc. of the cylinder and that of the regulator. The said insurance company is also to be made parties for the proper adjudication of the case being the insurer of 2nd OP. Surveyor deputed by the 2nd OP has assessed damage evaluation all facts. It is informed that there were three gas cylinders in the premises of the complainant. One is unauthorized. He must prove which are the authenticated cylinders and which is the unauthenticated one. It is submitted that one cylinder is connected with the stove. If that is so no question of leakage of cylinders which were kept idle. He must prove that whether he omitted to switch of the connected cylinder to the stove when he was not in station. Lack of Police complaint, FIR etc. are fatal to the claim put forward by the complainant, which mandates for a claim after 26 days of untoward incident. There is no direct service between the 1st OP and the complainant. As such being the insurer of 12st OP, this OP is in no way liable to indemnify the 1st OP for the service rendered by the 2nd OP and its insurer M/s National Insurance Co. Ltd. Therefore it’s prayed to dismiss the claim against this OP with cost.
OP4 specifically denies the liability and relief sought in the complaint. This OP submits that neither the complainant nor the other OPs had furnished the insurance policy particulars said to have been issued by this OP to the 1st and 2nd OPs at the relevant time of the alleged incident. This OP submits that until and unless the complainant and the other OPs furnish the correct the complete insurance policy documents as on the date and time of the alleged incident said to have been occurred this OP cannot be held liable of any relief sought in the complaint. The OP No.2 M/s Lakshmi Gas Agencies, was insured with this OP under LPG Trader Combined Policy at the relevant time. It is submitted that this OP had issued a LPG Traders Combined Policy No.571100/48/16/2000000960 for the period 31/03/2017 to 30/03/2018 to M/s Lakshmi Gas Agencies, Kolassery, PO Kavumbhagam, Thalasssery, Kannur District Kerala 670649, But liability of this OP Insurance Co. is governed as per the terms and conditions of the policy, Exclusions, Exceptions and other clauses and stipulations contained in the policy. It is submitted that as per the policy the subject claim comes under section X of ‘Public Liability’. U/s X(b) (ii) of the Public Liability Policy the Insurer is not liable for the above claim of the complainant. The maximum liability U/s X – Public Liability Policy the insurer is liable only for a maximum of Rs.1,00,000/- as compensation for any One Act per year. Hence, prayed to dismiss the case with costs.
During the pendency of this complaint, complainant has taken steps to appoint an Advocate Commissioner to inspect the complainant’s premises where the alleged incident was happened with the help of an Expert Engineer, to prepare report and to assess the loss happened to the complainant due to the fire incident. As per the petition of complainant, an Advocate Commissioner and Mr. Sooraj M Engneer A – were appointed. After giving prior notices to complainant’s counsel and OPs 1 and 2, Advocate commissioner Advocate Sarath A inspected the schedule building with the assistance of the expert, and submitted reports.
At the evidence time, complainant has filed his proof affidavit and documents. He was examined as Pw1marked documents as Ext.A1 to A6 series and Exts. C1 and C2. Pw1 was subjected to cross-examination by OPs 1 to 4. On the side of complainant two more witnesses were examined. Advocate commissioner as Pw2 and Pw3 is a person having qualification ITI with draft man ship, who deposed that he had also accompanied with the expert at the time of inspection and the expert who conducted inspection Mr. Suraj M is no more. On the side of OPs, OP1 has not adduced oral evidence. Policy schedule produced marked as Ext. B1. 2nd OP filed chief-affidavit and was examined as Dw1. Dw1 was cross-examined by OPs 1,3,4 and complainant. Further the Insurance surveyor who inspected the premises and assessed loss happened was examined as Dw2 and marked Ext.B2. Survey Report. Dw2 was cross-examined by other Ops and complainant. After that OPs2,3 and 4 filed their argument notes. Complainant made oral arguments.
In the present complaint, there is no dispute that the complainant is a consumer of Bharat petroleum Corporation Ltd(OP1) and OP2 is the agency of OP No.1 which provided LPG connection to the complainant. Further OP No.2 delivered the disputed gas cylinder to the complainant on 07/08/2017 and there was an incident of fire happened to the cylinder on 23/09/2017 kept in the kitchen of the complainant’s house. Fire force came into the place on getting information and extinguished smoke and fire. Further the Fire force prepared a report about the loss happened to the house due to the incident. Further it is a fact that OP No.3 issued policy to OP No.1 and OP No.4 issued policy to OP No.2. Further both policies are in existences during the relevant period of incident. Further on getting information about the incident OP No.4 disputed a Surveyor and Loss Assessor to inspect the premises and thus prepared a report.
Complainant alleged that the incident has taken place only due to the negligence on the part of OPs. It is further alleged that OPs 1 and 2 fail to take sufficient steps to ensure that the refilled cylinder was delivered after much safely verification with utmost care. At the time of delivery of the filled cylinder, it is the duty of OP No.2 to open the seal and connect the cylinder with gas stove and assure that there was no leakage. Complainant alleged that OP No.2 failed to assure that there is no leakage. According to complainant, he suffered a lot due to the incident and assessed the quantum of damage caused as Rs.3,53,000/-. In order to arrive the damage, complainant has taken steps to appoint an Advocate commissioner and an expert commissioner. The reports submitted by Advocate commissioner and Expert commissioner are marked as Ext.C1 and C2 respectively. As per C1 and C2 the damage assessed and cost for its repair is Rs,2,84,431/-.
The said report is strongly opposed by OPs. There are two other reports connected with the incident with the incident happened in this case. The report prepared by Fire force and report prepared by the Insurance Surveyor and Loss Assessor deputed by OP NO.4 National Insurance Company Ltd., the insurer of OP No.2.
On perusal of Ext.C1 and C2, the commissioners inspected the site on 27/01/2018 ie after 4 months from the incident. The Advocate commissioner observed that on the south –western portion of the roof of the kitchen a piece of concrete has been broken. Further, noticed that the wall of the kitchen and the roof has been darkened due to smoke. The wooden rack kept in the kitchen has been seen damaged due to fire ablaze and he could see the remnants of the said wooden rack. Further noticed that the lower part of whirlpool Refrigerator (175Ltr) seen damaged due to fire ablaze. The wall fan in the said building is fully damaged on fire. The Teak woods belongs to the petitioner was totally damaged due to fire ablaze. Further , he has noticed that , the designed legs which is to be used for Cot is seen totally damaged due to fire and clothes of the petitioner and the family members were also damaged. Further notice d that the back door of the kitchen was seen damaged on fire. The glass of the window in the kitchen and ventilator was damaged. The utensils of the petitioner were damaged fully.
On perusal of Ext.C2 (Assessment made by Expert Commissioner, total amount arrived comes Rs.2,84,431/- out of which Rs.2,25,000/- is assessed for repairing roofing with steel pipe, Truss work and GI sheet roofing.
The Advocate commissioner in his report observed that a crack noticed on the middle portion of the roof of the kitchen and a piece of concrete has been broken on the south Western portion of the roof of the kitchen.
Further on verifying the report prepared by Fire Force, it is seen that the report was prepared by Station officer, Fire and Rescue station, Thalassery. From the report it is evident that the officer who inspected the site and engaged in the rescue work was Sri P Shanith, Station officer. They inspected the site within 10 minutes after getting information over phone call. The reason for the incident stated as ‘gas leak’. Damaged items listed are “crockery, Teak wood, Refrigerator Ceiling fan, Ceiling work, cub board (Teak) Two doors, Electric work. The Loss assessed as damage to building as Rs.29,000+ Furniture and utensils Rs.69,000/- ie Total Rs.98,000/-.
Further in the survey report prepared by the Insurance Surveyor and loss Assessor on 30/10/2017 just after one month of the incident, cause of loss explained as leakage of gas cylinder supplied by OP NO.2. The Gross assessed Loss shown as R.53,900/-. After depreciation of 50% in each damaged items as such as Refrigerator, fan, wooden cupboard, kitchen Utensils etc. as Rs.36,900/-.
The amount assessed to be lost in fire by three persons in the reports as stated above are different. Considering Ext.C2 and fire report, amount assessed except ceiling work are more or less same. It is to be noted that on 26/09/2017, the complainant sent a letter to the manager, Lakshmi Gas Agency (OP No.2) about compensation for property damage due to leak of LPG Cylinder in which, he has stated that “Altogether I have a property damage on an approximate estimate of Rs.98,000/- only”. Estimated value also explained in item wise in the said letter and attached the fire station report, which means complainant is accepting the said report. So the claim of Rs.3,53,000/- made by complainant on account of loss was disproportionate to actual loss and also is highly exaggerated one. OPs 3 and 4 submitted policy schedule, in Ext.B1 policy issued by ICICI Lombard to OP NO.1, it is stated in section “liability of law for compensation in respect of any accident resulting damage to property in connection with trade, business of the insured, such incident occurring at customer’s Registered premises”. So, as per the said condition OP No.3 is liable to indemnify the loss happened in this case. Further in Sec II © property damage: Maximum Rs. 2 lakh per event. In Ext.B2 policy issued by national Insurance Company OP 4 to OP NO.2, For public liability maximum limit is R.s 1 lakh per incident.
On considering the survey report, the depreciation calculated by the surveyor cannot be accepted and also the amount assessed for each item is also low Our opinion is that the report prepared by the fire station is a genuine one which was prepared just after the incident and also is an authenticated one and complainant is entitled to get that much amount towards loss occurred to him due to the incident.. Further from the reports it is evident that the incident happened due to the leakage of gas cylinder supplied by OPNO.2, which belongs to OP No.1. Complainant alleged that OP No.2 delivered the cylinder without removing the company seal or assuring that there is no leakage. So there is deficiency in service on the part of OP No.2. More over complainant informed OP NO.2 on 26/09/2017 just after two days about the incident, loss happed him along with fire report. Then OPNO.2 ought to have informed to their insurance company and also OPNO.1 to indemnify t o the loss happened to their customer. OP No.1 also should have take steps to get compensation to the complainant for the loss happened to him in the incident. So there is deficiency in service on the part f OPs 1 and 2 also.
In the result complaint is allowed in part. Opposite parties 3 and 4 are directed to pay Rs.98,000/- (Rs. 49,000/- each) to the complainant for the loss happened to the complainant from the incident. Opposite parties 1 to 4 are also directed to pay Rs.1,00,000/- (Rs.25,000 each) to the complainant towards compensation for the deficiency in service on their part. Opposite parties shall comply the order within one month from the date of receipt of the certified copy of this order. Failing which Rs.98,000/- will carry interest @9% per annum form the date of order till realization and Rs.1,00,000/- also carries interest @ 9% per annum from the date o order till realization. Complainant can execute the order by filing EA under provision of Consumer Protection Act 2019.
Exts.
A1- Copy of pass book
A2-Fire report
A3- Lawyer notice and postal receipt
A4- Acknowledment card
A5-Reply notice
A6- Photographs (7 in numbers)
C1- Advocate commissioner report
C2-Expert commission report
Pw1-Wilson Joseph-Complainant
Pw2-Sarith A- Witness of complainant
Pw3-Vijayan S Ashok-Witness of complainant
Dw1-P V Gopinath-OP2
Dw2- K P Raghvan –Insurance seveyor
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
