Tripura

StateCommission

C.C 01/2013

Nantu ranjan Banik - Complainant(s)

Versus

Uttam Kumar das & 2 others - Opp.Party(s)

J.Saha,D.Rakshit

05 Oct 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

COMPLAINT CASE No.C.C-01/2013

 

Nantu Ranjan Banik,

S/O, Ltd. B.C.Banik,

Of Jolaibari, South Tripura.

                  ….    ….    ….    ….    Complainant.

                   Vs

1. Sri Uttam Kumar Nandi,

Distributor Name-Santi Gas Service

(Distributor Code : 05300507)

U.S.Road, Santirbazar, South Tripura.

 

2. The Dy. Manager,

Indian Oil Corporation Ltd.

Kunjaban Road, Agartala,

Pin-799001. P.S-East Agartala, Dist. West Tripura.

 

3. General Manager,

Indian Oil Corporation Ltd.

Bamunia Maidan, Gauhati, Assam

•  

 

4. IFFCO-TOKIO General Insurance Co.Ltd.,

Registered office at 5^th floor, 182 ASRA Building,

Water field Road, Bandra (W), Mumbai-400050.

 

5. The Oriental Insurance Co.Ltd.,

Udaipur Branch, represented by its Branch Manager

Branch office of jawhar Road, Dist-Gomati, R.K.Pur.

              ….    ….    ….    ….    Opposite Parties.

 

PRESENT :

               HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

 

              MR.NARAYAN CH. SHARMA,

          MEMBER

            STATE COMMISSION.

For the complainant              : Mr.J.Saha,Adv. & Mr.D.Rakshit,Adv.

For the respondent No.1        : Mr.A.Debnath,Adv.

For the respondent No.2 & 3  : Mr.A.Lodh,Adv. & A.debnath,Adv.

For the respondent No.4        : Mr.P.Goutam,Adv.

For the respondent No.5        : Mr.P.K.debnath,Adv.

                                           

Date of Hearing           : 12.02.2015, 01.04.2015, 06.04.2015,06.06.2015,                                    

                                    07.07.2015, 11.08.2015,07.09.2015. 

Date of delivery of Judgment  :

J U D G M E N T

S.Baidya,J,

            This complaint petition filed on 22.01.2013 by the complainant-Nantu Ranjan Banik claiming compensation of Rs.36,17,428/- on various counts arising out of an accident due to supply of faulty LPG cylinder.     

2. The case of the complainant as narrated in the complaint petition, in brief, is that the complainant is a resident of Jolaibari, South Tripura and also an user of Domestic Gas cylinder having a Domestic Gas Consumer Card Serial No.3675, S.V. No.012767 under the distributor M/S Santi Gas Service, Santirbazar, South Tripura. It is also alleged that the petitioner received one LPG cylinder on 11.01.2011 from the distributor Santi Gas Service and on 24.01.2011 at about 1.00 p.m. in the noon, the petitioner’s son Jayanta Kr. Banik went on to open the white cap from the top of the LPG cylinder with a view to fix the regulator and no sooner had he pulled the thread attached to the white cap to open the top of the cylinder, then the pieces of white cap were blown off and directly hit into the right eye of Jayanta and gas was coming out from the cylinder with tremendous hissing sound and hearing it, the wife of the petitioner rushed to the kitchen and removed Jayanta. It is also alleged that the hearing the noise inside the house, the neighbours came and threw away the leaking gas cylinder in a vacant place to avert further accident and damage and gradually the gas was emptied and diffused into the atmosphere.                                                   
3. It is also alleged that soon after the said accident Jayanta was taken to a local doctor at Jolaibari where he got treatment by the doctor who advised the petitioner to make immediate consultation with an eye specialist since the right eye of Jayanta was seriously damaged and it needed proper treatment without any delay, otherwise Jayanta might have lost vision of his right eye.
4. It is also alleged that having no eye specialist in and around Jolaibari, the petitioner brought his son Jayanta to Agartala for treatment under doctor Gouri Sankar Chakraborty, an eye specialist who after prescribing some medicines referred Jayanta to Sri Sankar Deva Nethralaya, Guwahati immediately and being advised the petitioner took his son to Guwahati on 25.01.2011 for getting immediate treatment at Sri Sankar Deva Nethralaya to save the injured eye of his son who was admitted in the said hospital on the same day and necessary surgery was done in his injured eye on the same date and discharged as well followed by post operational check up on 26.01.2011 and 31.01.2011 and being advised the petitioner returned to Tripura taking his son Jayanta with a suggestion to review the condition of eye after two weeks locally referring to Dr.G.S.Chakraborty.
5. It is also alleged that the petitioner made a G.D.Entry with the Baikhora Police Station, Santirbazar, South Tripura on 06.02.2011 narrating the whole incident and also brought the matter of incident to the knowledge of the concerned LPG distributor, Santi Gas Service by a letter dated 06.02.2011 with a request to bring the matter to the knowledge of the IOC Ltd., but after lapse of five months the concerned distributor sent a letter dated 28.07.2011 to the petitioner apprising that the IOC and the distributor as well have no liability whatsoever regarding the LPG cylinder accident which took place on 24.01.2011 at his house.
6. It is also alleged that after coming back to Jolaibari the petitioner’s son remained under constant medical treatment and the second operation in the right eye of jayanta was done in Sri Sankar Deva Nethralaya on 06.05.2011. It is also alleged that in spite of such treatment, Jayanta sustained loss of vision and as a result, his study has been hampered and not only so, he could not make good result as per his expectation and also the expectation of his teachers. It is also alleged that the District Disability Board of South Tripura after examining Jayanta issued a certificate of disabled person declaring him suffering from 30% visual loss. It is also alleged that on account of such LPG cylinder accident Jayanta could not get opportunity to get himself admitted in any Govt. Aided Technical Institution for which he had to suffer mental agony and depression resulting to the hampering of his smooth study in higher education and hence, the complainant being the father of Jayanta lodged the complaint before this Commission claiming compensation of Rs.36,17,428/- on account of (i) expenditure on treatment, transportation, lodging etc. at Rs.1,17,428/-, (ii) continuous treatment and further operation of concerned eyes at superspeciality hospital at Rs.10,00,000/-, (iii) future professional loss of Rs.20,00,000/-, (iv) mental agony sustained Rs.5,00,000/- against the IOC Ltd. and the distributor of LPG cylinder namely Santi Gas Service being liable jointly or severally due to the supply of faulty LPG cylinder to the complainant for which the said accident occurred in the house of the complainant injuring right eye of his son Jayanta Banik.
7. The O.P. No.1 Uttam Kumar Nandi, distributor, M/S Santi Gas Service contested the claim of the complainant by filing a written objection denying the claim of the complainant alleging inter alia that there was pre-delivery check up of the LPG cylinder while the complainant took delivery of the same from the custody of the O.P. No.1 and during checking there was no problem at the opening of the cap and the coming out of gas from cylinder was normal and the said check up of the LPG cylinder of the complainant was done in front of other consumers. It is also alleged in the written objection that the alleged of medical treatment of Jayanta Banik, the son of the complainant had no connection with the LPG cylinder supplied to the complainant. It is also alleged that the O.P. No.1 never supplied any faulty LPG cylinder to the complainant. Had there been any defect or fault in the cylinder, then it could be detected at the time of pre-delivery check up which was mandatory as per IOC guidelines. It is also alleged that the complainant after the alleged incident did not come to replace the said faulty cylinder and also did not lodge any complaint in the distributor complaint book and more over, the complainant utilized the said cylinder till it was emptied. It is also alleged that the O.P. No.1 has been running his business as distributor to distribute LPG filled in cylinders to the consumers of the IOC Ltd. It is also alleged that the O.P. No.1 is not the manufacturer of the gas cylinder and as such, the LPG cylinder was supplied by the IOC upon which the O.P. No.1 had no control. It is also alleged that the Santi Gas Service was insured with the Oriental Insurance Co.Ltd. at the relevant time and if any award is made against the O.P. No.1, the same would be paid by the said Oriental Insurance Co.Ltd. and hence, the O.P. No.1 has prayed for dismissal of the complaint against him.
8. The O.P. Nos. 2 and 3 namely the Deputy Manager of IOC Ltd. and the IOC Ltd. jointly contested the claim of the complainant by filing a written statement on 06.08.2013 denying the claim of the complainant alleging inter alia that the alleged injury in the right eye of the son of the complainant and the matter of medical treatment have no connection with the LPG cylinder supplied to the complainant by the O.P. No.1. It is also alleged that there was pre-delivery check up of the LPG cylinder while the complainant took delivery of the same from the custody of the O.P. No.1 and the said pre-delivery check up of the LPG cylinder was done in presence of other consumers and during checking there was no problem at the opening of the cap and the coming out of gas from the cylinder was normal. It is also alleged that the story narrated in the complaint is an absurdity and there might be some other causes behind the injury of the complainant’s son for which the O.P. Nos. 2 and 3 cannot have any liability to pay compensation. It is also alleged that in the event of any accident the District Authority like, Sub-divisional magistrate and the District Magistrate are to be informed about the accident, but the complainant did nothing in this regard rendering the complaint non-maintainable in law. It is also alleged that the IOC Ltd. being the manufacturer of LPG cylinders was insured with the IFFCO TOKIO General Insurance Co.Ltd. and the IOC had the valid insurance coverage for the period commencing from 22.04.2010 to 21.04.2011 and it is also a Public Liability Policy for LPG having policy No.41013839 and if any compensation is awarded, the liability to pay such compensation is on the said Insurance Company i.e. IFFCO TOKIO General Insurance Co.Ltd. and as such, the IFFCO TOKIO General Insurance Co.Ltd. is a necessary party in the complaint and hence, the O.P. Nos.2 and 3 filed the written objection praying for dismissal of the complaint against them.  
9. It transpires from the record that on prayer of the O.P. No.1 and as per application filed by the complainant, the O.P. No.5, the Oriental Insurance Co.Ltd. has been impleaded in the complaint by way of amendment. It further appears that on prayer of the O.P. Nos. 2 and 3 and as per application of the complainant, the O.P. No.4, the IFFCO TOKIO General Insurance Co.Ltd. has been impleaded in the complaint by way of another amendment.
10. The O.P. No.4, IFFCO TOKIO General Insurance Co.Ltd. contested the claim of the complainant by filing written objection/statement on 01.08.2014 denying the claim of the complainant alleging inter alia that the insurance policy in question was issued by the O.P. No.4 in favour of the O.P. Nos.2 and 3 and as there was no privity of contract between the complainant and the O.P. No.4, the complainant has had no cause of action against the O.P. No.4. It is also stated that the liability of the O.P. No.4 is subject to the terms and conditions of the insurance policy issued in favour of the O.P. Nos. 2 and 3. It is also alleged that the sole contention of the complaint petition is for supply of faulty LPG cylinder by the O.P. Nos. 2 and 3 with which the O.P. No.4 has had no connection and as such, the O.P. No.4 is not liable to pay any compensation to the complainant, because the policy does not cover non-compliance of any statutory provision and non-fulfilment of maintenance or proper quality control. It is also alleged that the O.P. No.4 indemnifies the insured i.e. O.P. Nos. 2 and 3 only, if there is any incident/accident in the insured’s premises i.e. premises of IOC Ltd. as per terms and conditions of the policy and as such, the O.P. No.4 is not at all liable to pay any compensation to the complainant for the latches on the part of the O.P. Nos. 2 and 3. It is also alleged that there is no deficiency in service on the part of the O.P. No.4 and as such, having no deficiency in service and cause of action, the complaint petition is liable to be dismissed against the O.P. No.4.
11. The O.P. No.5, Oriental Insurance Co.Ltd. contested the claim of the complainant by filing a written objection denying the claim of the complainant alleging inter alia that M/S Santi Gas Service was insured with the O.P. No.5 vide LPG Package Policy w.e.f. 20.01.2011 to 19.01.2012 for the sum assured of Rs.10,50,000/- only towards property shop-cum-godown of the insured, O.P. No.1 and the policy is subject to warranties and clauses and the O.P. No.5, the Oriental Insurance Co.Ltd. has no liability beyond the permissible limit of the said policy. It is also alleged that there was no deficiency in service, contractual obligations and any negligence on the part of the O.P. No.5 and thus, the O.P. No.5 has no liability in the instant case to indemnify the insured i.e. O.P. No.1 under the said policy and hence, the O.P. No.5 submitted written objection denying it’s any liability to pay compensation to the complainant.
12. It transpires from the record that the complainant has examined in total five witnesses including himself as P.W.1. On the other hand, one Saikat Sarkar has been examined as D.W.1 for the O.P. No.4, the O.P. No.1 Uttam Kumar Nandi, Distributor of M/S Santi Gas Service has been examined as D.W.2 for himself, one Goutam Bhowmik, Sr. Assistant of Oriental Insurance Co.Ltd. has been examined as D.W.3 for the O.P. No.5 and one Tripti Choraria, Field Officer,IOC has been examined as D.W.4 for the O.P. Nos. 2 and 3.
13. Documents filed from the side of the complainant have been marked as exhibit 1 to 14 for the complainant.
14. On the other hand, certified true copy of the policy bearing No.41013839 stood in the name of IOC Ltd. issued by the IFFCO TOKIO General Insurance Co.Ltd. has been marked as Ext. A for the O.P. No.4. The insurance policy of O.P. No.1 issued by the O.P. No.5 which has been marked as Ext.B, is found for the coverage of next year and not for the relevant period. Although the certified true copy of the concerned insurance policy of the O.P. No.1 issued by the O.P. No.5 for the relevant period has been filed by the O.P. No.5, but on our verbal asking the learned lawyer for the O.P. No.1 has produced the original policy for the relevant period subsequently which speaks about the insurance coverage period commencing from 20.01.2011 to 19.01.2012.
15. The learned counsel for the O.P. No.4, in addition to his verbal submission in course of argument, submitted a written argument, copy of which has been served upon the learned counsels of other parties. The Ld. counsel for the O.P. No.4 has relied on the decisions of two case-laws reported in (2011)1 Supreme Court cases 343 and 2009 AIR SCW 493.                                

Points for consideration.

16.     The points for consideration are (1) whether the IOC Ltd. through its distributor, O.P. No.1 M/S Santi Gas Service supplied alleged faulty LPG cylinder to the complainant Nantu Ranjan Banik  and (2) whether the IOC Ltd. was negligent and deficient in service by way of supplying alleged faulty LPG cylinder to the complainant and (3) whether the distributor M/S Santi Gas Service was negligent and deficient in delivering to the complainant alleged faulty LPG cylinder supplied by the IOC Ltd. and (4) whether Jayanta Banik, the son of the complainant suffered any injury and loss of vision in his right eye due to the alleged LPG cylinder accident and (5) whether the petitioner is entitled to get compensation as alleged in the complaint petition and if so, what would be the quantum of compensation and from whom?       

                        Decision with Reasons.

17. All the five points are taken up together for the sake of convenience, brevity and to avoid repetitions.

          At the very outset, we like to mention that the complainant has filed the complaint petition in this State Commission under Section 12 of the Consumer Protection Act, 1956. According to Section 12 of the C.P.Act, 1986, a complaint petition can be lodged under that Section before the concerned District Forum, but a complaint petition can be lodged before the State Commission only under Section 17 of the said Act. So, it is found that there occurred quoting of wrong Section and year of the Act in the complaint. It is settled principle of law that mere wrong quoting a Section and the year of the Act in the application does not render the same non-maintainable in law, if the said application regarding its content is found maintainable legally. So, the complaint petition as typed wrongly under Section 12 of the Consumer Protection Act, 1956 shall be read as under Section 17 of the Consumer Protection Act, 1986. 

18. Going through the pleadings of the parties, the evidences both oral and documentary, the argument advanced by the learned counsels for the parties and the written argument along with two reported case-laws submitted by the learned counsel for the O.P. No.4, IFFCO TOKIO General Insurance Co.Ltd., we find certain admitted facts. Admittedly, the complainant Nantu Ranjan Banik is a consumer of LPG connection having a domestic gas consumer card No. 3675 S.V. No. 012767 of IOC under the distributor M/S Santi Gas Service represented by Uttam Kumar Nandi. It is also admitted fact that M/S Santi Gas Service is located at U.S.Road, Santir Bazar, South Tripura whereas the complainant is a resident of Jolaibari, P.S.Baikhora, South Tripura. It is also admitted fact that the complainant never came to the distributor counter at Santirbazar personally to take delivery of LPG cylinder from the godown of the O.P. No.1. It is also admitted fact that the LPG cylinder was delivered through the carrier of the O.P. No.1. It is also admitted fact that M/S Santi Gas Service was insured with the O.P. No.5, the Oriental Insurance Co.Ltd. for the period from 20.01.2011 to 19.01.2012. It is also admitted fact that the business of the O.P. Nos. 2 and 3 was also insured with the O.P. No.4, IFFCO TOKIO General Insurance Co.Ltd. for the period from 22.04.2010 to 21.04.2011.    
19. It is the specific case of the complainant that the LPG cylinder in question was supplied to the complainant by the O.P. No.1 on 11.01.2011 against the refill order placed on 23.12.2010. It is also the specific case of the complainant that on 24.01.2011 at about 1.00 p.m. in the noon the petitioner’s son Sri Jayanta Banik went on to open the white cap from the top of the cylinder with a view to fix the regulator and no sooner had he pulled the thread attached to the white cap to open the top of the cylinder, then pieces of white cap were blown off and directly hit into the right eye of Jayanta and the gas was coming out from the cylinder with tremendous hissing sound. It is also the case of the complainant that whenever it is required to change the cylinder, Jayanta, the complainant’s son used to perform the same as he was quite habituated to open the cap of cylinder as per approved normal practice and that time also he tried to open the cap of the LPG cylinder accordingly.   
20. Going through the evidences and the cases of the parties, it transpires that at the time of alleged accident Jayanta Banik, the son of the complainant was alone in the kitchen of their house. It also transpires that on that very moment the mother of Jayanta, Radha Hazari (P.W.3) was in other room of the house. So, it is found that Jayanta (P.W.2) alone is the witness of his said accident. It also transpires that the complainant Nantu Ranjan Banik (P.W.1), Keshab Chandra Baidya (P.W.4) and Smt. Sima Biswas(Sarkar) (P.W.5) came to the house of the complainant immediately after the said accident on hearing hue and cry coming out from the house of the complainant.   
21. Admittedly, none of the opposite parties has got any personal knowledge regarding the happening of the alleged accident in the kitchen of the house of the complainant in which, according to the complainant, P.W.2 Jayanta Banik sustained injury in his right eye. The alleged accident took place on 24.01.2011 at about 1.00 p.m. while P.W.2 Jayanta aged 18 years at the relevant time and a student of higher secondary education went on to open the white cap from the top of the LPG cylinder supplied on 11.01.2012 by the distributor, Santi Gas service (O.P.No.1) with a view to fix the regulator in changing the LPG cylinder. The P.W.2 also stated that no sooner had he pulled the thread attached to the white cap to open the top of cylinder, then pieces of white cap were blown off and directly hit into his right eye and the gas was also coming out from the said cylinder with tremendous hissing sound and in a blink of an eye there was an alarm in the house and his mother (P.W.3) rushed to the kitchen and removed him. He also stated that hearing the noise inside the house neighbours came and threw away the leaking gas cylinder in a vacant place to avert further accident and damage as well and gradually the gas was emptied and defused into the atmosphere. Therefore, It is palpable that at the very moment of alleged accident Jayanta (P.W.2) was alone inside the kitchen and there was no other witness to see as to how the said accident took place. On the other hand, the cases of the O.Ps are the total denial of the happening of the said accident. In that case, the onus lies upon the complainant to prove the happening of the said LPG cylinder accident inside the kitchen of his house.     
22. P.W.2 in his cross-examination has asserted that as soon as he pulled the nylon thread attached to the cap, he heard a sound and within a fraction of second something hit his eye, but he could not understand as to what that object was and thereafter, he became almost senseless. In this regard, it is the specific case of the complainant that whenever it is required to change the cylinder, his son Jayanta used to perform the same as he was quite habituated to open the cap of the cylinder as per approved normal practice. On the other hand, it is the case of the O.Ps that Jayanta Banik was not sufficiently grown up boy to handle the gas cylinder. It transpires from the record that at the relevant time Jayanta was aged 18 years and he was due to appear in the higher secondary examination. The complainant as P.W.1 stated in his cross-examination that he has been using gas cylinder for the last 15/16 years. P.W.3 who is the mother of Jayanta stated in her deposition that whenever, it is required to change the cylinder, her son Jayanta used to perform the same as he was quite habituated to open the cap of the cylinder as per approved normal practice. Going through the cross-examination of P.W.3, we find that the O.Ps never suggested to P.W.3 to the effect that Jayanta was not sufficiently grown up boy to handle the gas cylinder. Considering the depositions of the witnesses and the facts and circumstances, we are of the view that now-a-days a boy of 18 years and a student of higher secondary education cannot be said to be an incompetent and incapable person of handling the gas cylinder. A boy of 18 years in a family can easily handle the gas cylinder for fixing the regulator on the top of the gas cylinder after pulling and removing the white cap therefrom. So, the version of the opposite parties that Jayanta was not a sufficiently grown up boy to handle the LPG cylinder is not acceptable. 
23. Learned counsel for the O.P. Nos. 2 and 3 referring to the cross-examination of the complainant as P.W.1 submitted that admittedly, the P.W. No.1 was not present in the house at the time of said LPG cylinder accident. He also submitted that on receiving the call, P.W.1 came back to the house and taking a cap from another empty cylinder put it on the mouth of that cylinder and took it back to his house from outside and after that P.W.1 informed local delivery-man who came to his house in the evening and did something in that cylinder and thereafter he used that cylinder in his house, although at that time the quantity of gas inside the cylinder was very few. Ld. Counsel also submitted that as per complaint petition, the concerned LPG cylinder was emptied and diffused into the atmosphere, but the complainant has made a false allegation in this regard in the complaint. We find from the medical prescription of Dr.G.S.Chakraborty dated 24.01.2011 that this Eye Specialist attended Jayanta Banik in his Agartala chamber at 6.00 p.m. It takes about 2/3 hours time to reach Agartala from Jolaibari. It means that in the evening complainant was not present in his house as he came to Agartala taking his injured son Jayanta. On perusal of the depositions of other P.W.s, we find that the deposition of P.W.1 in his cross-examination regarding putting of another white cap of other empty cylinder on the top of the concerned LPG cylinder and use of the said cylinder thereafter is found an isolated statement, being not appearing in the complaint petition as well as in the depositions of any other witness examined in this case. Be that as it may, it does not falsify the happening of the said LPG cylinder accident in the kitchen of the house of the complainant.    
24. It is in the evidence that after the said accident Jayanta was taken by his father and others to a local doctor at Jolaibari who advised to take Jayanta to an eye specialist in Agartala and accordingly, on the same date Jayanta was taken to Agartala and he was medically examined by a doctor G.S.Chakraborty, an Eye Specialist who referred him to Sri Shankar Deva Nethralaya in Guwahati and accordingly, on an emergency basis the father of Jayanta took him to Guwahati by making an arrangement of air tickets with a view to save the eye of his son. Regarding the removal of Jayanta to the local doctor at Jolaibari from his house, the same has been corroborated by neighbours P.W.4 and P.W.5 also. So, the happening of the accident of LPG cylinder and the sustaining of injury by Jayanta in his right eye and the subsequent conduct of the father of Jayanta concerning medical treatment of Jayanta have amply proved that Jayanta Banik, son of the complainant sustained injury on 24.01.2011 at about 1.00 p.m. in the kitchen of their house due to LPG cylinder accident.     
25. It appears from the depositions of the witnesses and as also the case of the complainant that when Jayanta pulled the thread attached to the white cap pulled on the top of the LPG cylinder, the said white cap was broken into pieces and the pieces were blown off and hit his right eye. It is not the complainant’s case of burst out of LPG cylinder. It is unusual to think that the white cap of the LPG cylinder under no circumstances can be broken into pieces. Due to the long user the white cap may be broken into pieces and as soon as the thread attached to the white cap is pulled the broken pieces of the white cap might be blown off and hit the puller Jayanta while he was pulling the thread leaning towards the gas cylinder. From the circumstances, we find such thing happened in the case of Jayanta at the relevant time and date.
26. It is the case of the O.P. No.1 and also the case of the O.P. Nos. 2 and 3 that there was a pre-delivery check up of the LPG cylinders while making delivery of the same to the consumers. It is also the case of the O.Ps that before delivery of the LPG cylinder in question to the complainant, there was a pre-delivery check up of the LPG cylinder in question. Let us see how far this version of the said O.Ps. can be accepted as believable story. In the first instance, it can be said without any hesitation that the said O.Ps never examined any other consumer for establishing that really a pre-delivery check up of the concerned LPG cylinder was done by the O.P. No.1 in presence of other consumers while making delivery of the said cylinder to the complainant through the delivery man. P.W.1 Uttam Kumar Nandi who is a partner of M/S Santi Gas Service admitted in his cross-examination that he is not an expert for making pre-delivery check up of the LPG cylinder. He also admitted that he did not mention the name of any person engaged in the matter of pre-delivery checking up. He also admitted that he did not file any paper regarding the alleged pre-delivery check up of the cylinder in question before its delivery to the consumer/complainant. In this regard, the D.W.1 stated in his cross-examination that the cylinder was delivered through carrier of the complainant, whereas the complainant as P.W.1 asserted in his cross-examination that the deliveryman is the person of gas distributor (O.P.1) and the name of the deliveryman is Alok Ghosh through whom the complainant takes delivery of the gas cylinder regularly. It is true that an outsider-carrier cannot take the custody of the LPG cylinders of the different consumers from the gas distributor. This carrying of LPG cylinders from the gas distributor to the different consumers can be made only by the carrier or the deliveryman of the gas distributor. In that circumstance, we are of the view that the deliveryman/carrier is the person of the O.P. No.1 and not of the complainant. Admittedly, the complainant did not take the delivery of the LPG cylinder personally from the O.P. No.1, rather it is admitted position that the complainant received the LPG cylinder in question from the deliveryman of the O.P. No.1 on 11.01.2011. It is also admitted position that the godown and office of the O.P. No.1 are located at Santirbazar. So, the O.P. No.1 had the opportunity to examine the concerned deliveryman for proving that there was a pre-delivery check up of the cylinder in question before delivery of the same to the complainant. Not a single scrap of paper is forthcoming from the side of the O.P. No.1 for proving that really there was any pre-delivery check up of the cylinder in question before its delivery to the complainant. Having no iota of evidence, we are of the view that actually there was no pre-delivery check up of the LPG cylinder in question before delivery of the same to the complainant. So, it cannot be said under any stretch of imagination that the LPG cylinder in question was OKay at the time of delivery of the same to the complainant by the deliveryman of the O.P. No.1.
27. Various medical prescriptions and documents have made it clear that immediately after the said accident Jayanta was first attended by a local doctor at Jolaibari and thereafter, he was attended by an Eye Specialist Dr.G.S.Chakraborty in Agartala and thereafter as referred by him, Jayanta was taken to Sri Shankar Deva Nethralaya where his medical treatment including operations in respect of his right eye was done. There is no scope to disbelieve the medical treatment papers from any corner. From those medical papers, it has been proved that Jayanta (P.W.2) lost his vision of right eye to some extent and subsequently, the District Disability Board of South Tripura after examining him declared that Jayanta suffered from 30% visual loss and accordingly, the said Board issued a certificate on 18.06.2012 (Ext.A). From the said certificate, it also transpires that Jayanta suffered 30% partial permanent impairment (PPI) in his right eye. Therefore, it has been well proved that due to the said LPG cylinder accident P.W.2 Jayanta Banik lost his visual power to the extent of 30% in his right eye.
28. The alleged pre-delivery check up of the LPG cylinder in question before delivery from the side of the O.P. No.1 has not been proved. Admittedly, the LPG cylinder is manufactured by the IOC Ltd., It is also admitted position that the gas distributor (O.P.No.1) distributes the cylinders to the consumers of IOC Ltd. after receiving the cylinders from IOC Ltd.. It is also admitted fact that the business of the O.P. No.1 was insured with the Oriental Insurance Co.Ltd. (O.P. No.5). It is also admitted fact that the said accident took place within the insurance coverage period. It transpires that shop-cum-godown, and the gas cylinders in transit from the godown of the distributor to the door of the house of the consumers only are covered by the policy of the O.P. No.1. The alleged accident did not take place either in the shop-cum-godown of the O.P. No.1 or in course of transit. The LPG cylinder accident took place in the kitchen of the house of the complainant. So, the policy of the O.P. No.1 does not cover the kitchen of the house of the complainant where the LPG cylinder accident took place.
29. Admittedly, the business of the IOC Ltd. (O.P. Nos. 2 and 3) was insured with the O.P. No.4 IFFCO TOKIO General Insurance Co.Ltd. at the relevant time and date. It is also admitted fact that the O.P. Nos. 2 and 3 had valid insurance coverage with the O.P. No.4 for the period commencing from 22.04.2010 to 21.04.2011. So, it is found that the said LPG accident in the kitchen of the complainant took place within the insurance coverage period of the insurance policy of O.P. Nos. 2 and 3 issued by the IFFCO TOKIO General Insurance Co.Ltd. It is also admitted fact that on prayer of the IOC and on the basis of the application of the complainant, the IFFCO TOKIO General Insurance Co.Ltd. has been made as O.P. No.4 to this case. The O.P. No.4 wants to wash out its hands from any liability occasioned due to the conduct of the IOC Ltd. alleging that as per allegations made in the complaint petition, the IOC supplied faulty LPG cylinder and regarding the supply of faulty gas cylinder, the O.P. No.4 is in no way responsible and as such there arises no cause of action against the O.P. No.4. It is also the case of the O.P. No.4 that O.P. No.4 is not liable to pay any compensation to the complainant because the policy does not cover non-compliance of any statutory provision and non-fulfilment of maintenance or proper quality control. It is also stated in the written objection filed by the O.P. No.4 that the O.P. No.4 is legally bound to indemnify the insured i.e. the O.P. Nos.2 and 3 only, if there happened any accident/incident in the insured’s premises i.e. the premises of the IOC Ltd. as per terms and conditions of the policy. The O.P. No.4 is not at all liable to pay compensation to the complainant for the latches on the part of the O.P. No.2 and 3 for supplying faulty gas cylinder as per allegations made by the complainant. Further case of the O.P. No.4 is that the Jayanta Banik, the son of the complainant did not take due care and caution in handling the gas cylinder and for his own negligent, the alleged accident occurred and as such for the negligence of the son of the complainant, the O.P. No.4 is not at all liable to pay any compensation.
30. Learned counsel for the O.P Nos. 2 and 3, IOC Ltd. submitted that the alleged accident took place on 24.01.2011 and although it was mandatory on the part of the complainant to inform about the LPG cylinder accident to the District Authority like, the Sub-divisional Magistrate and the District Magistrate immediately after the said accident, but the complainant did nothing in this regard and as such the claim of the complainant is legally barred for non-compliance of the mandatory and statutory provision of law. On the other hand, learned counsel for the O.P. No.4 submitted that as per condition of the Insurance Policy (Ext.A), it is mandatory on the part of the insured i.e. IOC Ltd. to inform the O.P. No.4, the insurer within 14 days of the date of incident, but the IOC Ltd. did not comply with that condition and as such the O.P. No.4 is not legally liable to indemnify the IOC Ltd., insured.
31. Going through the Ext.A we find that as per terms and conditions, the IOC Ltd. shall deliver to the Insurance Company the information, damages and claim within 14 days of the date on which the event shall have come to his knowledge. From the complaint petition and the evidences it transpires that the LPG cylinder accident took place on 24.01.2011 on which the complainant was compelled to go Agartala taking his injured son Jayanta to an Eye Specialist and on his advice the complainant taking his son went to Sri ShankarDeva Nethralaya, Guwahati, Assam for medical treatment including the operations of his son and he returned to Agartala on 31.01.2011. We also find that the complainant lodged a G.D.Entry with Baikhora P.S. on 06.02.2011 and also informed the O.P. No.1 on 06.02.2011 and the O.P. No.1 as D.W.2 admitted the same in his cross-examination. Considering the engagement of complainant in the matter of medical treatment of his son, it is found that the O.P. No.1 who is the Distributor of the IOC Ltd., got information about the LPG cylinder accident within a reasonable time. Whether the IOC Ltd. did anything to comply the condition within 14 days as per insurance policy issued by the O.P. No.4, it has got no direct nexus regarding the liability and the claim of the complainant. The insurance policy (Ext.A) is binding by and between the O.P. Nos. 2 and 3 on the one hand and the O.P. No.4 on the other. The complainant is in no way connected concerning the terms and conditions of the insurance policy (Ext.A) issued by the O.P. No.4 in favour of the IOC Ltd. (O.P. Nos. 2 and 3). So, the submissions made by the learned counsels for the IOC Ltd. and the O.P. No.4 in this regard are not acceptable in the eye of law.  

32.   It has also been mentioned that Jayanta Banik, the son of the complainant being aged 18 years and a student due to appear in the higher secondary examination was a sufficiently grown up boy to handle the LPG cylinder. It has also been mentioned that Jayanta was habituated to handle LPG cylinder in their house for fixing the regulator at the time of changing the cylinder. So, it cannot be attributed that Jayanta did not take due care and caution in handling the gas cylinder on the relevant time and date in the kitchen of their house. There is also no iota of evidence to prove that the said LPG cylinder accident took place due to any negligence on the part of said Jayanta Banik.

33. The D.W.4 Smt. Tripti Choraria examined for the IOC specifically stated in her examination-in-chief that the pre-delivery check up of the LPG cylinder was mandatory as per IOC’s guidelines to be followed by the O.P. No.1 before supplying the LPG cylinder to the consumer/complainant. It has not been proved that actually any pre-delivery check up was made from the side of the O.P. No.1 in respect of the LPG cylinder supplied to the complainant on 11.01.2011. That being the position, it cannot be held that the cylinder in question was in okay before or at the time of delivery of the same to the complainant.
34. Admittedly, the O.P. No.1 is the distributor of the LPG cylinders to the consumers including the complainant of the IOC. In this regard, the D.W.1 (O.P. No.1) in his deposition categorically stated that being the distributor, he distributes the LPG cylinders to the consumers of the IOC. That being the position, it can be held without any hesitation that the O.P. No.1 is nothing, but an agent of the O.P. Nos. 2 and 3, IOC Ltd. It is settled principle of law that the principal is responsible for the negligence of his agent. It has not been proved that any pre-delivery check up of the cylinder in question was done from the side of the O.P. No.1. It is nothing, but a negligent and deficient act on the part of the O.P. No.1 towards the complainant. That being the position, the IOC Ltd. being the principal is vicariously responsible for the negligent and deficient act of its agent, the O.P. No.1 because had the LPG cylinder in question been checked up before delivery of the same to the complainant through deliveryman by the O.P. No.1, the fault/defect in the cylinder in question would have been detected before its delivery to the complainant and in that case, such accident would not occur to the son of the complainant on the relevant time and date. Be that as it may, it has been amply proved from the evidences and the facts and circumstances of the case that the LPG cylinder in question so supplied by the IOC Ltd. through its distributor/agent, the O.P. No.1 was faulty one and due to the supplying of such faulty LPG cylinder to the complainant, the said accident occurred and as a result, Jayanta Banik, the son of the complainant suffered 30% loss of vision in his right eye. So, the IOC cannot avoid its liability for supplying such defective LPG cylinder to the complainant on 11.01.2011 through deliveryman of the O.P. No.1.
35. Admittedly, the business of the IOC Ltd. was insured with the O.P. No.4, IFFCO TOKIO General Insurance Co.Ltd. It is also admitted fact that there were some terms and conditions on the basis of which the O.P. No.4 issued the Public Liability Policy for LPG bearing policy No.41013839 for the period from 22.04.2010 to 21.04.2011 in favour of the IOC Ltd. Going through the insurance policy (Ext.A) we find that the kitchen of the complainant in his house was covered by the said policy. So, the O.P. No.4 being the insurer of the IOC Ltd. legally bound to indemnify the insured i.e. IOC Ltd.
36. It has been proved that the IOC supplied faulty LPG cylinder to the complainant through its distributor, O.P. No.1 who delivered the same through his deliveryman. It has also been established that the IOC, O.P. No.2 and 3 was negligent and deficient in service by way of providing faulty LPG cylinder to the complainant through its agent-distributor, O.P. No.1. It has also been established that the O.P. No.1 who is the agent-distributor of the IOC supplied the faulty LPG cylinder to the complainant through his deliveryman without making any pre-delivery check up of the concerned LPG cylinder and thereby, the O.P. No.1 is found negligent and deficient in service in not supplying checked up LPG cylinder to the complainant for which the said LPG cylinder accident took place in the kitchen of the complainant and as a result, the son of the complainant, Jayanta Banik sustained 30% visual loss in his right eye. It has already been mentioned that the IOC being the principal is vicariously liable for the negligent and deficient act of its agent-distributor, the O.P. No.1. So, the complainant is entitled to get compensation for sustaining loss of vision by his son Jayanta Banik due to the said LPG cylinder accident.
37. Now, the question arises what should be the quantum of compensation in the present facts and circumstances of the case. We have perused the principles of law laid down by the Hon’ble Apex Court reported in (2011)1 Supreme Court Cases 343 and 2009 AIR 493. There is no dispute regarding the proposition of law enunciated by the Hon’ble Apex Court. The case law being 2009 AIR SCW 493 speaks for just compensation. The other case law discloses that the Tribunal should not mechanically apply percentage of permanent physical disability as percentage of economic loss or loss of earning capacity. Following the above principles of law, we are also inclined to assess the amount of compensation in this case from a reasonable stand point. It transpires from the documents filed from the side of the complainant that the complainant filed two air tickets in the name of the complainant and his son Jayanta Banik separately, although another ticket jointly in the name of complainant and his son of the same date i.e. on 02.05.2011 has been filed. It also transpires that the complainant filed one medical prescription stood in the name of the mother of Jayanta. Admittedly, Jayanta was a student of higher secondary education at the relevant time and he was fully dependant of his father, the complainant. It also transpires that the complainant under compelling circumstances had to take his son Jayanta to Agartala as well as to Guwahati for medical treatment. So, the expenditures incurred by the complainant for medical expenses of Jayanta, the transportations and the lodging purpose are liable to be compensated. On calculation, it is found that the complainant incurred an expenditure of Rs.51,517/- in this regard.
38. Admittedly, Jayanta being the student of higher secondary education at the relevant time had no income. In that case, we can proceed taking the notional income of Jayanta Banik as provided under second schedule of Section 163A of the M.V.Act, 1988. As per said schedule, the notional income per annum of a non-earning person is Rs.15,000/-. It has been established that Jayanta suffered 30% loss of vision in his right eye due to the said LPG cylinder accident. So, taking the percentage of disability to the extent of Rs.30% as assessed by the District Disability Board of South Tripura, the loss of future earning per annum comes to Rs. 4500/- (30% of notional income of Rs.15,000/- per annum). As per second schedule of Section 163A of the M.V.Act, 1988, the multiplier is 16 as Jayanta was then aged 18 years. By multiplying the loss, it comes to Rs.72,000/- (Rs.4500/- X 16) as loss of future earnings.
39. From the documents filed by the complainant, it transpires that Jayanta was last attended by Dr.Bata Krishna Paul, an Eye Specialist on 06.08.2013. There is no other iota of evidence to show that Jayanta was under continuous medical treatment even after 06.08.2013. It transpires that the complainant has prayed for a compensation for Rs.10,00,000/- on account of continuous treatment and further operation concerning eye at Superspeciality hospital. The complainant filed no document to show that further operation in respect of the right eye of Jayanta is at all necessary in future and as such, we are unable to award any amount on account of continuous treatment and further operation of the eye.
40. It transpires that the complainant has claimed Rs.20,00,000/- for future  professional loss of Jayanta. It has come to our notice that just now Jayanta has passed B.Tech from an Engineering Institute in Punjub. Till now, he is not in any profession for earning. So, there is no strait- jacket formula to award any amount as compensation on this count. As Jayanta has acquired the technical degree in B.Tech, there is every possibility of his joining in any engineering service, may be in private or Govt. organizations. In view of the above position, we are of the view that awarding of an amount to Rs.40,000/- on this count is found reasonable and justifiable one.
41. It further transpires that the complainant has claimed Rs.5,00,000/- on account of mental agony so sustained due to the said LPG cylinder accident. No doubt, the result shows that Jayanta Banik is/was a meritorious student. It also transpires that Jayanta secured first division with letter marks in three papers in Secondary Examination, out of these two letter marks are in Work Education and Environment Education (EE). It also transpires that Jayanta in the Secondary Examination secured a letter mark in Life Science. Whereas Jayanta in Higher Secondary Examination secured first division with two letter marks in Physics and Chemistry. Apparently, it shows that the result of Jayanta in High Secondary Examination was not affected due to the said accident. But the fact remains that from 24.01.2011 Jayanta was under tremendous mental pressure and agony concerning his study and also in respect of his incoming Higher Secondary Examination. He had to move from Jolaibari to Agartala and therefrom to Guwahati in connection with his medical treatment for more than once. Who can say that he would not do more good result in his higher secondary examination, if such accident would not occur to him. In that circumstance, it is not unlikely to think that the smooth study of Jayanta was hampered due to the said accident. Considering this circumstances, we are of the considered view that awarding of a compensation of Rs.50,000/- on this count is found reasonable and justifiable one. So, it is found that the complainant is legally entitled to get an amount of Rs.2,13,517/- (Rs.51,517/- + Rs.72,000/- + Rs.40,000/- + Rs.50,000/-) as compensation.
42. It has been well established that the O.P. Nos. 2 and 3 i.e. IOC Ltd. were at fault. So, the complainant is entitled to get the said amount of Rs.2,13,517/- as compensation along with Rs.5,000/- as cost of litigation from the IOC, O.P. Nos. 2 and 3, and the O.P. No.4, IFFCO TOKIO General Insurance Co.Ltd. being the insurer of IOC Ltd. as per terms and conditions of the insurance policy is legally bound to indemnify the O.P. Nos. 2 and 3 i.e. IOC. The O.P. Nos. 2 and 3 and the O.P. No.4 are jointly and severally liable to pay to the complainant the said amount of compensation of Rs.2,13,517/- along with cost of Rs.5000/- as litigation expenses. All points are, accordingly, disposed of.
43. In the result, the complaint petition filed before the State Commission under the Consumer Protection Act, 1986 by the complainant is allowed in part. The O.P. Nos. 2 and 3 and the O.P. No.4 are jointly and severally liable to pay compensation of Rs.2,13,517/- along with litigation cost of Rs.5000/- to the complainant within a period of six weeks from the date of judgment, failing which the amount payable would carry interest @ 9% p.a. till the payment is made.
44. The O.P. No.4 IFFCO TOKIO General Insurance Co.Ltd. being the insurer of IOC Ltd. is directed to indemnify the said amount by way of making payment of compensation amount along with the cost of litigation amount to the complainant on behalf of the O.P. Nos. 2 and 3, IOC Ltd. within the time and in the manner mentioned above.                            

 

 

 

      MEMBER                                MEMBER                            PRESIDENT

             State Commission                    State Commission                 State Commission

                    Tripura                                      Tripura                                   Tripura