Complaint filed on: 05-04-2010
Disposed on: 16-03-2011
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.738/2010
DATED THIS THE 16th MARCH 2011
PRESENT
SRI.D.KRISHNAPPA., PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT. ANITA SHIVAKUMAR. K, MEMBER
Complainant: -
Sri.Shyamu Jadhav S/o. Sri.Maruthi,
Age: Major, R/at C/o. P.M.Srinivas,
No.165, 1st Main Road,
Ramakrishna Block, Thyagrajnagar,
Bangalore -28
V/s
Opposite parties: -
1. The Manager
Bharat Petroleum Corporation Ltd,
Dupara Trinity, 7th Phase,
17, MG Road, Bangalore-04
2. The Proprietor, Harsha Enterprises,
Distributor Bharath Gas,
Market Road, Sajjan Rao Circle,
VV Puram, Bangalore -04
3. The Manager,
The New India Assurance Ltd,
Vittal Malya Road,
Bangalore
4. The National Insurance Co. Ltd,
Regional office, No.4,
Subharam Complex,
M.G.Road, Bangalore -01
O R D E R
SRI. D.KRISHNAPPA., PRESIDENT.,
Brief facts of the complaint filed by the complainant against the opposite parties [herein after called as OPs] are, he is a consumer of domestic gas, has taken gas connection from 2nd OP. On 27-7-2009 at 7.30 p.m. his wife Smt.Savithri while cooking food found that the cylinder had empted and in order to replace with a filled gas cylinder, she pulled the white thread for removing cylinder cap. Then that cylinder burst out with huge noise and his brother’s wife sustained injury to her legs. Due to fear, his wife and his brother’s wife came out of the house and sought the help of neighbours. Then both the ladies with neighbours while extinguishing the fire two other sustained burns injuries. Then his wife and brother’s wife were admitted to the hospital for treatment and a complaint was given to the police on the next day. That his wife was pregnant at the time of incident suffered severe injuries and mental agony. That the fire incident happened because of the defect in the gas cylinder and due to negligence of the Ops. That due to the incident, several house hold articles were burnt and thereby referring to legal notice issued to the Ops claimed damages of Rs.4,56,450=00, Rs.50,000=00 towards medical expenditure, Rs.3,00,000=00 towards mental agony and to award cost of Rs.10,000=00.
2. OPs have appeared through their advocate and filed separate version, Ops No.1 and 2 have denied all the allegations of the complainant and also allegations of deficiency in their service. OP No.1 has contended that, he is a supplier of gas through the 2nd OP who is a distributor, they have further denying the incident have submitted for dismissal of the complaint.
3. OP No.3 an insurance company has contended that themselves and OP No.4 are two insurance companies and by virtue of the contribution clause incorporated in the policy, the liability has to be borne at 50% by each of them. It is contended that the policies were issued subject to terms and conditions of the policy. That OP No.2 has informed them about the incident after a lapse of 17 months, after the alleged incident which is in total violation of terms and conditions of the policy. This OP denying that the complainant is a consumer of the Bharat Petroleum Corporation Ltd, denied the allegation of bursting of cylinder and stated that the complainant and OP No.2 were negligent and are responsible for the incident and denying his liability has submitted for dismissal of the complaint.
4. OP No.4 has also contended that, OP No.1 who has taken a policy from them, had not brought to their knowledge about the incident including injury suffered by the family members. Therefore, contending that OP No.1 has failed to discharge his responsibility and denying the allegations of the complainant has also stated that liability should be borne by Ops No.3 and 4 not exceeding 50% each. This OP further contending that the allegation of the complainant that, there is defect in the gas cylinder and denying that, it had burst because of defect has prayed for dismissal of the complaint.
5. In the course of enquiry into the complaint, the complainant and the OPs have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant alongwith the complaint has produced copies of statements of one Smt.Shyamala, Smt.Savithri, Sri.Srinivas, Smt.Preethi, Sri.Shyamu as recorded by the police in the course of investigation, with a copy of the spot Mahazar drawn by the police with some bills for having purchased some medicine with a list of articles that alleged to have been damaged in the course of fire incident. OP No.4 has produced a copy of the terms and conditions of the policy and copies of certain letters addressed by OP No.2 to them. We have heard the counsel for both parties and perused the records.
6. On the above contentions following points for determination arise.
1) Whether the complainant proves that the gas cylinder had burst or the fire incident had taken place in his house because of the negligence or deficiency in the service of Ops No.1 and 2?
2) Whether he further proves that the Ops have caused deficiency in their service in not paying the compensation as claimed?
3) To what relief, the complainant is entitled to?
7. Our findings are as under:
Point no.1: In the Negative
Point no.2: In the Negative
Point no.3: See the final Order
REASONS
8. Answer on Points No.1 and 2: On careful analysis of the complainant allegations, affidavit evidence and copies of statement with the police documents produced, the complainant found to be not consistent with regard to the fact that lead to the incident and reality of the fire incident. Further the inconsistencies that are noticed from out of the above material placed before the forum, doubt arise with regard to the correctness of the theory of the incident, besides the fact that the complainant has failed to prove the roll of Ops No.1 and 2 or their negligence in either leakage of the gas cylinder or in its alleged burst. The complainant in the complaint has stated that his wife on 27-7-2009 at 7.30 p.m. while changing the filled gas cylinder by removing empty cylinder his wife heard burst sound by making huge noise and at that time his brother’s wife sustained injury to her legs. Here the complainant has not stated that, his wife Smt.Savithri also sustained any injury. But in para-4 of the complaint, he has stated as if his wife and his brother’s wife were admitted to the hospital for the treatment and they were treated but admittedly the complainant has not produced even a piece of paper to prove that his wife and his brother’s wife were treated by any doctor for any injury in connection with this incident. Besides this complainant has claimed that house hold items were damaged but has not given details of house hold articles damaged. As against this, in the statement given to the police on 27-7-2009 in the course of investigation into the incident, he has stated, when he enquired with his wife about the incident, she told him that the gas had leaked accidentally when she tried to remove the cap of the cylinder, his wife Smt.Savithri also in her statement given to the police has stated that gas leaked accidentally and in that incident, her sister-in-law sustained minor burn injury to her legs, but she has not stated to had sustained any injury or burn injury, because of this incident. We have a copy of the spot mahazar drawn by the police, in which the police have also observed while a gas cylinder was being replaced, there was accidental leakage of gas and because of that there was damage to the windows and doors. It is further alleged by the complainant that when neighbours came to the spot soonafter the fire spread, few of them also sustained burn injury. But the complainant has not given the names or details of the person who suffered injuries. However, in the course of enquiry, the complainant tried to suppliment that, one Smt.Shyamala, her sister-in-law, Kumari Leelavathi and her two childrens namely Sujay three years old, Shreyas six years old also sustained injury and they were admitted to the hospital. But the complainant has not, in the complaint stated that there neighbour had sustained injury because of the fire incident. Even in the statement of Smt.Shyamala given to the police do not go in confirminty with the other statements regarding the injury they sustained. Because when Smt.Savithri who was in the house at the time of incident had not sustained injury, how could two children and Smt.Shyamala who are the neighbours, who went near the house, where gas had leaked suffered injury is a mystery. The contention that the neighbours sustained injury while exhausting fire appears to be funny, because except that Smt.Shyamala and Leelavathi and other two persons who were kids could not have ventured to extinguish fire. Even then the complainant has not produced any documents in proof of treatment of any of these neighbours in connection with this injury caused due to fire incident. Therefore certain medical bills produced in proof of treatment to neighbours, in the absence of any documents establishing treatment to the burn injury cannot be relied upon that apart the complainant is required to prove whether the leakage of gas or burst of cylinder is because of any defect in the gas cylinder or because of any deficiency in the service of Ops No.1 and 2.
9. As stated above, the complainant has come up with different story like gas burst and gas leakage. The material placed before us, shown as if there was accidental gas leakage from the cylinder while opening its cap. Even then the complainant found to had not made any effort to ascertain from any investigation or with opinion of expert or from report of laboratory test to show that there was a defect in the gas cylinder or that leakage of gas was due to improper seal or use of defective cark or sealing. No materials or proof is placed before us to point to the deficiency of Ops No.1 and 2. No doubt, there was fire incident in the house of the complainant but we find no legal evidence to know the cause for fire, when such proof is not before us, then we cannot simply accept the allegation of the complainant and hold that Ops No.1 and 2 were negligent or deficient in their service and to fix liability on them jointly with Ops No.3 and 4. Therefore for want of proof to prove the negligence or deficiency in the service of Ops No.1 and 2, the complaint is liable to be dismissed. With the result, we answer points No.1 and 2 in the Negative and pass the following order:
ORDER
Complaint is dismissed. Parties to bear their own cost.
Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 16th March 2011.
Member Member President
