ADV. RAVI SUSHA, MEMBER.

            This complaint filed by the complainant for getting expenses of Rs.2,00,000/-, compensation  as Rs.1,00,000/- and for other reliefs.

          The averments in the complaint can be briefly summarized as follows:

          The complainant is a b.Sc. Computer Student..  The complainant and his family was residing at Cottage House, Opp.Zacco Hotel, Kadappakkada, Kollam.     In the year of 2004 the complainant  and his family shifted the present address.   On 1.11.2004 the 1^st opp.party serve one gas cylinder to the complainant  at his residence at Kulangarabhagom, Chavara.   On 3.11.2004 at about 8.30 p.m. the complainant connected the gas cylinder to their gas stove  Thereafter while he lightened the gas stove unexpectedly the fire spreaded over the kitchen and the  complainant’s  wife , son and one of his neighbour Rajan were sustained serious superficial thermal burns.     After the accident the complainant and others rushed to Upansana Hospital, Kollam.   Due to the serious of burns sustained all of them were referred to Medical College Hospital, Thiruivananthapuram.  The complainant sustained 30% superficial to deep thermal burns    The complainant was admitted on 3.11.2004 and discharge on 17.11.2004 and complainant’s treatment more than Rs.2,00,000/- had been spend.   The accident  caused to disablement and disfiguration to the complainant.    The accident happened solely due to the excessive leakage of gas through regulator of the gas cylinder  it is because of the manufacturing defect of the gas cylinder and regulator.    The opp.party served these defective utensils to the complainant.    On 16.12.2005 the complainant with his family caused to sent an advocate notice the opp.parties but the opp.parties did not pay the compensation to the complainant.   There is deficiency in service on the part of the opp.parties.  Hence the complainant approached  the opp.party for reliefs.

          The 1^st opp.party filed  a version contending, interalia, that the complaint is not maintainable either in law or on facts.  The 1^st opp.party is the authorized agent of the 2^nd opp.party.   As per the rules and regulations of the Indian Oil Corporation, a subscriber is not entitled to shift the gas connection to another place from the address registered with the gas agency.    On getting information  about the incident, the Deputy Manager of the Indian Oil Corporation visted the spot and made enquiry and prepared a LPG accident report.     On enquiry it was reliably learnt that on 3.11.2004 at about 8.15 p.m. the complainant tried to replace an empty cylinder with a filled cylinder.     The complainant was not able to fit the regulatory properly.   The neighbour Rajan fitted the regulator and kept the cylinder beneath the platform and when he lighted the burner the leaded LPG in the room also got fire and the complainant along with other family members suffered burn injury.  The allegation in para 3 of the complaint are all false and  hence denied.   The complainant and others were rushed to the Upasana Hospital and subsequently referred to Medical College Hospital  since the complainant suffered 70% superficial burns he was referred to KIMS Hospital, Thiruvananthapuram are all not known to the 1^st opp.party.   On 2.1.2004 and 25.11.2004 the complainant had taken cylinders from the opp.party as cash and carry basis  The 1^st opp.party  has not supplied gas cylinder to the complainant on 1.11.2004  The 1^st opp.party is producing customer history card of the complainant.     From the customer history  card, it can be seen that the complainant took the gas cylinder on 25.11.2004  and not on 1.11.2004.    The complainant had given a request dt. 7.6.2005 for taking necessary steps for allowing him to take gas from the Kuttivattom agency and informed that his address is changed from Kadappakada to Chavara  It is pertinent to note that the accident  took  place on 1.11.2004 at Chavara.  But the intimation regarding change of address was given on 7.6.2005.  The allegation in para 6 that the accident happened solely due to the excessive leakage of gas through regulator and gas cylinder and it is because of the manufacturing defect of the regulator and gas cylinder are all false and hence denied.     The 2^nd opp.party is using high quality cylinders and regulators.    There is no deficiency in  service on the part of the 1^st opp.party.  Hence the 1^st opp.party prays to dismiss the complaint.

        2^nd opp.party filed  a separate version contending that  on 3.11.2004 at about 8.15 p.m. the complainant tried to replace empty cylinder with filled cylinder the same could not be done because he could not fit the regulator properly as the O ring was anew one.    He approached his neighbour Sri. V. Rajan  it was told  that the contents of the cylinder is not gas.  It is to be made clear that the said Mr.  Rajan is not a trained mechanic and he is only a clerk.  Mr.R ajan applied pressure on the gas valve with some gadget which resulted in the release of gas inside the three side closed kitchen.    This was done to verify that the contents were LPG only Mr. Rajan fitted the regulator and the cylinder was kept beneath the platform of the kitchen.   This was only three feet away from the spot where he worked up with the cylinder thus by the time gas was filled in the three side closed kitchen.   The complainant lighted the burner of his hotplate having auto ignition knob which resulted in the alleged accident.     The opening of the auto ignition knob by the complainant was done without ensuring that the LPG vented in the kitchen has escaped out of the kitchen.  The cylinder, pressure regulator, rubber tube and hotplate are intact and usable.   There are no burn marks or soot in any of those items.  The accident was reported by the complainant only after  the lapse of a month.     In the circumstances it is very much clear that the incident occurred only due to the reckless and negligent acts from the part of the complainant and his family members   There is no deficiency in the service on the part of the 2^nd opp.party.  Hence the 2^nd opp.party prays to dismiss the complaint.

                                                                                                                                    The 3^rd opp.party filed a separate version contending as follows:  The complaint is not maintainable either in law or on facts. The 3^rd opp.party had issued a comprehensive insurance policy for miscellaneous accident cover to distributors, transporters and consumers for BPCL. IOCL and IBP and their associate companies.   Duly completed claim form along with report of attending doctor, the police report, Medical Bills and receipts in case claim is for medical expenses, Investigation report case papers conforming the treatment and disabilities, report/confirmation from the insured that the accident was occurred at the premises of bonafide consumer.  It is clearly mentioned in the schedule of the policy that the liability of the insurer in a claim is only in respect of any accident that occurred at the customers registered premises only.  This opp.party is totally unaware of the fact that whether the incident was occurred at the customers registered premises or not, so as to attract the coverage of 3^rd parties given under section II of the master policy, in the absence of any such documents such as copy of the consumer card at the relevant time duly stamped and signed by the 2^nd opp.party.   The opp.party whether the LPG Cylinder involved in the incident was supplied by the 1^st opp.party and the incident was occurred out of any deliberate, willful or negligent act on the part of the consumer or anyone else.   The claim advanced by the complainant towards the treatment and medical expenses are not admissible and the nature of burn injuries and the extent of disability claimed by the complainant are also not admissible and hence denied by this opp.party.  The complainant is deliberately put up an exorbitant claim without any basis which is not admissible  and payable as per the schedule of compensation payable on the basis of the policy condition.  There is no deficiency in service on the part of the opp.parties.   Hence the 3^rd opp.party prays to dismiss the complaint.

The points that would arise for c onsideration are:

1.     Whether there is deficiency in service on the part of the opp.parties

2.     Reliefs and costs

For the complainant PW.1 is examined.   Ext.P1 to P8 are marked.

For the opp.party DW.1 and 2 are examined.   Ext. D1 to D5 are marked.

Points:

          Complainant’s case is that he is a customer of opp.parties 1 and 2 from the year 1990.  In the year 2004 the complainant shifted his residence to Kulangara Bhagam, Chavara.  On 1.11.2004 the 1^st opp.party delivered a LPG cylinder to the complainant and on 3.11.2004 at about 8.30 P.M. when the complainant lighted the stove after connecting the cylinders fire spread over the entire kitchen with the  result that the complainant his father, mother  and his neighbor other sustained serious burning injuries.   The complainant having sustained 30% injuries.  He was under treatment from 3.11.2004 to 17.11.2004.   The accident occurred due to excessive gas leakage from the defective LPG cylinder and hence filed this complaint for getting compensation and treatment expenses.

          The main contentions  of opp.parties 1 and 2 are that the complainant was a customer of the 1^st opp.party.   The incident mentioned in the complaint  is not correct.   The incident was happened because the neighbor of the complainant’s father unauthorisedly released the LPG from the cylinder.  Moreover the cylinder involved in the accident was not taken from the 1^st opp.party.   The 1^st opp.party  had not supplied gas cylinder to the complainant on 1.11.2004 .   There is no deficiency in service on the part of the opp.parties 1 and 2  They pray for the dismissal of the complaint.  Here the 1^st question to be decided is as to  whether there is deficiency in service on the part of opp.parties 1 and 2.   There is n o dispute that the complainant is a customer of opp.parties 1 and 2 from the year 1990.  The dispute is with regard to the incident.   According to the complainant when his father  lighted the stove after connecting the cylinder which was delivered by the 1^st opp.party the fire spread over resulting serious burning injuries sustained to the complainant and others.   The opp.parties 1 and 2 explained the incident in a different manner as per report prepared by the Deputy Manager of the Indian Oil Corporation who visited the spot after one month.   According to him the neigh our of the complainant one  Rajan kept the cylinder in the middle of the room and applied pressure in the valve and released some quantity of gas inside the 3 side closed kitchen and than fitted the regulator.   When he lighted the burner the leaked LPG in the room also got fire and the complainant and others sustained burn injury.   For proving  the incident PW.1 and DW.1 were examined.  PW.1 categorically explained the incident according to the complaint.   Moreover his statement before the police ie. FIR Ext.P3 also corroborate the  evidence given by PW.1..  Opp.parties 1 and 2 could not prove their case by cross-examining PW.1.   The evidence of DW.1 and his report Ext. D1 cannot be safely relied on as DW.1 is none other than the Deputy Manager of the Indian Oil Corporation.  He is not an independent witness.  He is on interested witness of opp.parties 1 and 2.  He had visited the premises and  the report was prepared after 1 month of the incident.  His explanation regarding the incident is not corroborated with any other evidence.  Hence we are of the view that DW’s explanation regarding the incident and Ext. D1 cannot be taken into account.

          Opp.parties next contention is that they did not deliver the disputed cylinder to the complainant’ father.   According to opp.parties 1 and 2  in the year 2004 the complainant’s father  had taken cylinders from them only 2 times  ie on 2.1.2004 and 25.11.2004.  For proving that contention they produced customer history card Ext. D4.  On verifying Ext. D4 it is seen that  the complainant’s father  has taken gas cylinders from the opp.party with a time  of 23-25 days except 2004.   As per Ext. D4 in November the complainant’s father  has taken gas cylinder on 25.11.2004.   According to the complainant his father  has taken cylinder on 1.11.2004.  On perusal of Ext. D4 we can gather that the complainant’s contention is correct.   As Ext. D4 is with the custody of opp.party 1 and 2 there is  possibility for  suppression of  facts from their side.  On considering the evidence of PW.1 and DW.1 we are of the view that the disputed gas cylinder was supplied by opp.party 1 and the incident occurred due to the leakage of gas from it.   As the gas cylinder supplied by opp.party 1 is a defective one opp.party 1 and 2are negligent.  Hence the complainant’s is entitled to get relief.

          The next point to be decided is that whether opp.party 3 is liable to indemnify the 2^nd opp.party in this case.  3^rd opp.party admits that they have issued a comprehensive insurance policy in favour of the 2^nd opp.party for miscellaneous accident cover to distributors transporters and the customer for IOCL.   According to opp.party 3  the extent of compensation payable  under the said policy and the claim procedure are subject to the terms limitations exception exclusion and conditions contained in the master policy agreement.   As per the terms and condition in Ext. D6 policy the covering of the risk covered under the policy for the medical expenses incurred for  an admissible claim for the accident that occurred at the authorized customer registered premises.  In this case the incident was not occurred at the authorized customers registered premises.  Hence  3^rd opp.parties contention that they are not liable to pay any amount in connection with   the incident.  More over the 2^nd opp.party has not complied with the terms and condition of Ext. D6 policy as required under section 2 of the policy and therefore opp.party 3 is not liable to indemnify the complainant.  Here the 1^st question to be decided is that whether  the accident was occurred at the registered customers premises of the 1^st opp.party or not.  In cross examination of PW.1  he deposed that on 7.6.2005 his father had submitted application to 1^st opp.party requesting change of address.  In the complaint complainant admits that in the year 1993 he shifted his residential house to Uliyakovil, Asramam and at Chavara and in chief affidavit he has mentioned that the previous gas connection was availed in his cottage house adduces at Kadappakkada the registered premises.  In cross examination PW.1 admitted that the 1^st opp.party has given Ext. P2  customer card after getting his father’s regard letter dt. 7.6.2006.  Hence from the evidence the incident was occurred not at the registered customer premises of the 1^st opp.party.   So as per the conditions in the Ext. D6 the 3^rd opp.party has no liability to indemnify the 2^nd opp.party to extent of cover under the policy.   More over Ext. D7 series shows that 3^rd opp.party had sent letters to the 2^nd opp.party requesting to produce copy of customer card of the complainant investigation report of the opp.party 2, the original cash memo and other relevant document for considering the claim of the complainant.  But the 2^nd opp.party  never produced any such document before the 3^rd opp.party.  Here the opp.party 2 has no case that they had supp-lied necessary documents on the basis of Ext. D7 series.   As per policy condition this also amounts to violation committed by the 2^nd opp.party.  Hence from the evidence of opp.party 3 they are not liable to indemnify the 2^nd opp.party in this case since there is clear violation, policy condition.

          From Ext. P1 to P5 it is seen that the complainant has sustained 30% burns superficial from the incident.   Ext. P8 series is the Medical Bills.  On considering the entire evidence we are of the view that the complainant is  is entitled to get Rs.25,000/- as medical expenses and Rs. 1,00,000/- as compensation from the opp.parties 1 and 2

          In the result the complaint is allowed.  Opp.parties 1 and 2 are liable to pay Rs.1,25,000/- as compensation and medical expenses to the complainant.  Opp.parties 1 and 2 are further directed to pay Rs.1000/- as cost to the proceedings.

          Dated this the 27^th day of Februrary, 2010.

List of witnesses for the complainant

DW.1. – Rahul

List of documents for the complainant

P1. – Consumer card

P2. – Customer card Card

P3. – Copy of FIR

P4. – Scene mahazar

P5. – Would certificate

P6. – Discharge card

P7. – Medical certificate

P8. – Medical Bills

List of witnesses for the opp.parties

DW.1. N. Udayabhanu

DW.2. –Sherry Jacob

List of documents for the opp.parties

D1. – Terms and conditions of the policy

D2. – Copy of letter dated 7.6.05

D3. – Copy of letter dt. 4.7.06

D4. – Customer history card

D5. – Copy of reply notice