ADV. RAVI SUSHA, MEMBER.

            The first complainant is the mother, the 2^nd complainant is the wife and third complainant is the only daughter of late K.B. Sudeesan and they are the sole legal heirs of him.  Since the 3^rd complainant is a minor she is duly represented by the 2^nd complainant, her mother and natural guardian.  Besides those complainants the deceased K.B. Sudeesan have no other legal heirs.   The first opp.party is the distributor of Indane Brand Liquid Petroleum Gas filled in Gas Cylinders for the domestic and non domestic consumers at Chadayamangalam and Kadakkal area.   The 2^nd opp.party M/s. Indian Oil Corporation is manufacturing and filling the gas cylinder and supplying the same through their agencies one among them is the first opp.party.    The 3^rd  opp.party is the Insurance Company with whom the first opp.party obtained valid policy covering the entire risk of her customers and hence the third opp.party is liable to be indemnify the first opp.party is case of claim agent the first opp.party.   The son of the first complainant, husband of the 2^nd and father of the third complainant Sudeesan was a mechanic worked at Gulf for the last 15 years, by availing annual leave he arrived here and involved in a fire accident on 18..4..2008 inside his kitchen due to leakage of the gas regulator and he succumbed to his injuries on 27..4..2008 at Medical College Hospital, Thiruvananthapuram,   He is the sole bread winner of the family consisting his aged mother, wife and only child.  The 2^nd complainant availed the connection  on 1..3..2005 as per customer No.10149, SV No.575043 and she paid an amount of Rs.1700/- as the deposit for the cylinder and Rs.100/- as the deposit for the regulator.    On 18..4..2008 at about 8.30 a.m. when the 2^nd complainant after cooking tried to close the knob of the regulator as directed by the first and 2^nd opp.party which manufactured and sup-plied by the 2^nd opp.party through the first opp.party, it broke in to two pieces and cooking gas began to leak out of the cylinder.  Immediately the 2^nd complainant escaped from the kitchen with the third complainant.   Thereafter the husband of the 2^nd complainant entered into the kitchen so as to open all the windows in the kitchen to prevent the fire and explosion due to the explosion of the regulator and the leakage of the cylinder, but unfortunately while he was inside the kitchen the cylinder exploded, he sustained severe burn injuries and succumbed to the injuries at Medical College Hospital, ?Thiruvananthapuram.   The husband  of the  2^nd complainant K.B. Sudeesan died on 27..4..2008 at 10.30 p.m. at  Medical College Hospital, Thiruvananthapuram due to 80% burn injuries.  He was 42   years of age at the time of death  .  Moreover almost all the furniture and other valuable things inside the house also damaged due to fire.    The incident occurred solely due to the manufacturing defect of the gas regulator supplied by the first opp.party and manufactured by the 2^nd opp.party.  The gas regulator and cylinder supplied by the first and 2^nd opp.parties was very  was very old and unsafe to use.  The same was supplied without assuring the safety measure that has to be legally followed.   By providing unsafe gas cylinder and regulator, the first and 2^nd opp.parties have committed culpable negligence which will amount to deficiency in service. The 2^nd complainant is the consumer of the first and 2^nd opp.parties and the 3^rd opp.party is the insurer of 1^st opp.party all the opp.parties are liable to compensate the complainants jointly and severally due to their deficiency in service.  Since the first opp.party have an active and valid policy with the 3^rd opp.party, the 3^rd opp.party insurance company is liable to indemnify the first opp.party and hence to pay the amount to the petitioners.

          The first opp.party is the authorized distributor of Indane LPG Cylinders manufactured and supplied by the 2^nd opp.party.  The first opp.party availed an insurance coverage from the 3rd opp.party as per policy No.760904/46/07/22/ooooo218 having policy period from 00..00 hrs.  On 30..12..2007 to midnight of 29..12..2008.   All the averments and claims in the deceased and about his death in the alleged fire accident is to be proved by the complainants with strict documentary evidences. The averments that the accident occurred solely due to the manufacturing defect of the Gas Regulator, that it provided without assuring the safety of the same and it was very old and unsafe to use are against facts and hence denied.   The cylinder provided by the first opp.party to the complainants is the one manufactured by following all  the safety measures prescribed by the authorities and it is tested by the 2^nd opp.party and thereafter it was entrusted to first opp.party to give to their customers.  Likewise the allegation that the first and 2^nd opp.party by providing unsafe gas cylinder and regulator committed culpable negligence is also against facts and hence denied.  The 3^2nd opp.party  has taken valid insurance policy with the third opp.party.   Since  the first opp.party has valid policy with the 3^rd opp.party, the 3^rd opp.party  is liable to indemnify the first opp.party if the Hon’ble forum ordered any amount to the complainant.

The 1^st opp.party is the authorized agent of the 2^nd opp.party.   The 2^nd complainant had availed a gas connection from the 1^st opp.party.  It is true that the fire accident took place on 18..4..2008 at about 8.30 a.m. in a newly constructed house at B.S. Bhavanam, Kottappuram, Kadakkal.   After the incident was reported on 30..4..2008 the Deputy Manager of the 1^st opp.party had paid a visit, conducted an enquiry and prepared a LPG accident report. It was observed that prior to the accident the 2^nd complainant Smt. Beena was cooking in the kitchen,  After preparing the  food at 8.30 a.m. she closed the burner knob and she suddenly heard a loud voice.   She saw the Pressure Regulator is spitted horizontally and the LPG leaked out with full pressure.   Bewildered with the noise and the LPG leak and smell, she went out of the kitchen carrying the 2^nd children standing around her in the kitchen.   The LPG was profusely leaking from the Pressure Regulator and the entire house was engulfed with the LP gas.  By that time, the neighbors and one of her relatives rushed to the kitchen and one among them closed the knob of the Pressure Regulator and removed the cylinder out of the kitchen.  The opp.party had already filed version.  The case was posted for evidence of the complainant on 3.11.2009.   This opp.party had already filed vbersion in this case without mentioning a crucial and material point.  In fact the said mistake took place while taking the copy from the computer.   The said copy was set in the computer in a legal paper format.  However when the copy was taken by the operator it came in A.4 size format.  This defect crept in due to the mistake of the computer operator.   There is no laches or deliberate mistake on the part of this opp.party.  The said point may be added and incorporated in the version or else, it will cause irreparable loss and injury to the opp.party.  The injured Mr.Sudheesan was rushed to the local hospital and then to the Medical College, Thiruvananthapuram.   Subsequently he died on 27..4..2008 at 10.30  ie. After 10 days of the incident.   The neighbors tried to put down the fire by throwing sand which was stored there for construction purpose.   Three window glasses were broken, the cots partially burnt and beds and clothes were burnt.  Fire Brigades were informed and by the time they reached the spot, the fire was put out.  The cause of fie can be attributed to leakage of LPG from the spited Pressure Regulator.   The reveted ported of the pressure regulator was separated and from there the LPG  cam out  profusely.  In order to disperse the LPG settled in the bed room, the deceased person switched on the fan and due to the ignition in the switch, the fire occurred.   The deceased person was an NRI and was on leave.  The customer’s unsafe and negligent act due to ignorance was the basic reason for the occurrence  of fie.  The fire could have been avoided, had the deceased person not switched on the fan.  Hence neither any deficiency in service nor negligence can be attributed to the opp.party.

          3^rd opp.party filed a separate version contenting that, it is true that this opp.party have issued a policy of insurance [multi perils [LPG dealers] package insurance] in favour of the 1^st opp.party and that the same was valid for the period 30..12..2007 to 29..12..2008.  But the policy does not cover “any liability of the proposes which arises as a result of an accident in the insured’s customer’s premises whilst the cylinders are stored or in use or being installed by anybody other than the insured or his employees or his agents”.  Admittedly, the accident in question arose in the insured’s customers premises whilst the cylinders were in use, which risk is not covered by the policy in question. There has been no deficiency of service on the part of this opp.party.   The mere fact of existence of a policy does not impose any liability on this opp.party.   There has been no negligence on the part of any of the opp.parties particularly the 3d opp.party.   The averments in the original petition as also evidences go to show that Sri. Sudeesan sustained burns due to his own negligence and deliberate attempts under the circumstances, complainants are not entitled to get any compensation or take any benefits under the policy.

Points that would arise for consideration are:

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

2.                           Reliefs and costs.

For the complainant PW.1 was examined and marked Exts. P1 to P7

For the opp.party DW.1 and DW.2 were  examined and marked Ext. D1.

THE POINTS:

          There is no dispute that at the time of accident the 1^st opp.party had a valid insurance policy with the 3^rd opp.party.   The grievance of the complainants  is that though they submitted claim with the supporting documents the 3^rd opp.party did not allow their claim.

DW.1 was examined from the side of 2^nd opp.party and Ext. D1 the LPG report was marked.   Ext. D1 was prepared by DW.1. In Ext. D1 under the head ANALYSIS DW.1 submitted that “Pressure Regulator supplied by M/s. Hari Engineering was with some manufacturing defect.   The pressure regulator could not hold the pressure of LPG.  Hence the  revetting of the PR got separated which  resulted in heavy leakage of LPG.”  Here there is no dispute that the cylinder and pressure regulator are the property of 2^nd opp.party.   DW.2 in his reports Ext. D1 under the head ‘causes’ he submitted that immediate closing of the regulator would have arrested further leakages”.  But in the same report and in the version the first and 2^nd opp.parties admitted that the pressure regulator broke into two pieces.   So the finding of the DW.1 that the immediate closing of the regulator would have arrested further leakage is without any basis.  Hence from the available evidence and from the exhibits, it is clear that the pressure regulator manufactured and supplied  by the 2^nd opp.party is a defective one.  The 2^nd opp.parties main contention is that in order to disburse the LPG settled in the bed room, the deceased person switched on the fan and due to the ignition in the switch, the fire occurred.  Moreover the fire could have been avoided, if the deceased person not switched on the fan.   The 2^nd opp.party failed to prove the said contention by examining any eye witness or through documentary evidence.  Hence the said story of 2^nd opp.party cannot be accepted.

3^rd opp.party admits that they have issued a policy of insurance in favour of the first opp.party.   According to them the policy does not cover any liability of the proposes which arises as a result of an accident in the insured’s customer’s premises whilst the cylinders are stored or in use or being installed by anybody other than the insured or his employees or his agent.”  Opp.party 3 contented that in this case the accident in question arose in the insured’s customers promises whilst the cylinders were in use, which list is not covered by the policy in question.  Though there is such a condition in Ext. D3 policy conditions, the complainant’s family and the deceased were  unaware of  such a condition.   The opp.party 3 does not have a case that such conditions were known to the deceased and the complainant’s family.On considering the facts, the opp.party 3 cannot escape from their liability to indemnify the insured’s customers.  Here the complainant proved the accident by producing Ext. P1 to P7.   There is no dispute that the regulator and cylinder was supplied by  the 1^st opp.party and the said properties are belonged  to the 2^nd opp.party.

          On considering the entire evidence [oral and documentary] we are of the view that there is culpable negligence on the part of opp.parties 1 and 2.

The next point to b e decided is which opp.party has to pay compensation to the complainant.   During cross-examination DW.2 deposed that Insurance Policy issuesN¿p-¶-Xn-\pv   dealer sâbpw         customer sâbpw    security bv¡p th­n-bm-Wpv   customer   sâ   security  bv¡pwIqSn                 insurance    FSp-¡-W-sa-¶Xv    Ah-cpsS      option     BWpv     A§s\ FSp-¡-W-sa-¶v]-d-ªnp«p-­pv      .  But the 3^rd opp.party failed to prove the said deposition.  In Ext. P3 policy condition there is no such condition mentioned.  In the version submitted 3^rd opp.party has admitted coverage.  All the documents have been filed in the present case.  On considering the entire evidence we find that the 3^rd opp.party is not at all justified in dishonoring the liability.   According  to the complainant the deceased  ie the husband of the 2^nd complainant was a mechanic worker at Gulf for the

 last 15 years and an annual leave he arrived here and involved in

the accident.  He is survived by the aged mother, wife and one minor daughter.  He  was aged 43.  He was the sole bread winner of the family.  In the circumstances it is ordered that the 3^rd opp.party is liable to indemnify the 1^st opp.party.   The complainants will be entitled for the amount of  compensation as well as interest at the rate of 9% from the date of complaint.

In the result the complaint is allowed.   3^rd opp.party is directed to pay Rs.5,00,000/- to the complainants with 9% interest from the date of complaint.   The 3^rd opp.party is also directed to pay Rs.5000/- as cost to the proceedings.   The 3^rd opp.party has to comply with the order within one month  from the date of receipt of this order failing which the complainants will be entitled for  interest at the rate of 12% from the date of this order.

Dated this the 11^th day of May, 2012.

I n d e x

List of witnesses for the complainant

PW.1. – Beena

List of documents for the complainant

P1. – Copy of connection book

P2. – Birth certificate

P3. – Copy of FIR and FIS

P4. – Postmortem certificate

P5. - Death certificate

P6. – Copy of Ration card

P7. – Certificate issued by Village Officer, Kadakkal.

List of witnesses for the opp.party

DW.1. – B.S. Pillai

DW.2. – P. Jayaraman

List of documents for the opp.parties

D1. – LPG Accident Report

D2. – Policy

D3. – Terms and conditions