Haryana

Ambala

CC/350/2011

SURINDER KAUR - Complainant(s)

Versus

BHARAT PETROLEUM CORPORATION - Opp.Party(s)

T.S TEJI

28 Aug 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

             Complaint Case No.:   350 of 2011

Date of Institution    :    03.11.2011

Date of Decision       :   28.08.2015

1.       Surinder Kaur wife of Sh. Mohinder Singh

2.       Mohinder Singh son of Sh. Charan Singh

          Both residents of Durga Nagar, Ambala City.                                                                                   

                                                                                                                               ……Complainants

                                                                                           Versus

1.       Manager-cum-Incharge Bharat Petroleum Corporation Limited Village Alamgir (Lalru) Near Derabassi, District Mohali, (Punjab).

2.       Proprietor of M/s Bhagwati Gas Service, Bharat Petroleum Corporation  Ltd. Agency, Ambala City, store at Jandli ( Ambala).

3.       National Insurance Company Limited, Corporate Regional Office, Royal Insurance Building, 2^nd Floor, 12 JRD Tata Road, Mumbai.

4.       National Insurance Company Limited, through its Branch Manager, Branch Office, Ambala.

                                                                                        ……Opposite Parties

Complaint Under Section 12 of the Consumer Protection Act.

CORAM:    SH. A.K. SARDANA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

Present:       Sh. T.S. Teji, Adv. counsel for complainant.

                   Sh. K.C. Jain, Adv. counsel for OP No.1.

                   Sh. S.M. Sharma, Adv. counsel for OP No.2.

                   Sh. Mohinder Bindal, Adv. counsel for OPs No.3 & 4.

ORDER.

                   Present complaint under section 12 of the Consumer Protection Act, 1986  (hereinafter in short called as ‘the Act’)  has been filed by the complainants alleging therein that the complainant No.1 is having a domestic gas connection of the OP company in her name since long time. On 08.06.2011, the complainant No.2 who is husband of complainant no.1 gone to purchase a filled gas cylinder from the distributor Bhagwati Gas
Agency having its store at village Jandli. At the time of taking delivery of the gas cylinder, complainant No.2 objected that the cylinder is leaking but the officials  of the agency assured that it is only smell of  stored gas cylinders at Depot and there is no problem in the cylinder.  The cylinder was neither weighed by the store keeper nor tested its nosel.  When complainant No.2 brought the gas cylinder at his house, his daughters who were in the kitchen opened the cover of the cylinder and tried to affix the regulator into the cylinder, they found that the cylinder was defective having no proper nosel  resulting into leakage of gas.  So, the fire immediately burnt due to leakage and both the daughters namely Manjit Kaur and Ranjit Kaur catch up by the fire causing serious burn injuries and to extinguish  the fire, the elder daguther  as well as  complainant No.2 also received the burns on their hands. Thereafter, the  daughters of complainants shifted to Govt. Hospital at Sector 32, Chandigarh where both of them died due to the burn injuries and postmortem was conducted accordingly at Sector 32, GMCH, Chandigarh. It has been further submitted by the complainants that local police of Ambala Sadar took the signatures of complainant No.2 on plain paper and did not read over the statement to complainant No.2 rather  recorded the same on its own vide DD No.26(A) dated 08.06.2011.  It has been further  submitted by the complainants that OP No.1 issued defective gas cylinder to OP No.2 without checking the same as the said gas cylinder was filled up at village Alamgir and OP No.2 i.e. Distributor of OP No.1 further supplied the same  without making the necessary checking of the defective cylinder though it was the duty of OP No.2 to check up the gas cylinder before handing over it to the consumers. So, it is an admittedly deficiency in service on the part of both the Ops.  It has been further submitted that daughter of complainants namely Manjeet Kaur died at the age of 22 years and she was doing the work of Beauty Parlour as well as sewing cloths and was earning Rs.5000/- per month and after deducting 1/3 of the earning and by applying multiplier of 20 years, compensation amount comes to Rs.8,00,160/- as per assessment of the complainants.   It has been further submitted that team of the officials of Ops No.1 & 2 visited the place of occurrence and got signed of complainants on plain papers and assured for providing compensation but they have neither paid any compensation nor adhering to the genuine request of the complainants.  As such, the complainants prayed for acceptance of the complaint and issuing directions to the Ops/respondents to make payment of compensation/damages to the tune of Rs.12 lacs alongwith interest & costs of litigation etc.

2.                Upon notice, Ops appeared through counsel and filed their replies.  OP No.1 urged that OP company is fully insured with  National Insurance Co. Ltd. i.e. Ops No.3 & 4 vide its “Special Contingency Insurance  Policy” effective from 02.05.2011 to 01.05.2012. Hence, if any amount of compensation is granted to the complainants, then the same is to be indemnified by the insurance company. It has been denied that they have supplied defective/underweight gas cylinder to the complainants, however, each and every cylinder is checked at the time of delivery in the godown which fact is also confirmed by Sh. Mohinder Singh, complainant No.2. It has been further urged that the daughters of complainants failed to affix the regulator properly on the gas cylinder  and lit the hotplate without confirming whether the regulator was proper affixed or not which in turn has caused the fire resulting into serious burns to them.  Moreover, it is pertinent to mention here that the consumer had a single bottle connection meaning thereby that the consumer possesses only one gas cylinder. The empty gas cylinder in question bearing No.2667, due to which the alleged mishap took place, was also exchanged by the complainants on 16.11.2011 with a refilled gas cylinder bearing No.12567 as per cash receipt memo No.5090 dated 16.11.2011 issued by the Bhagwati Gas Service-OP No.2 which proves on record that there was no problem or defect in the cylinder in question otherwise  the consumer could not have used it for five months after the said accident.  During inspection of the premises of complainant, investigating team of OPs found a fully melted non-standard rubber tube and the DPR that was issued to the consumer for the purpose of usage was found lying intact and unconnected in the corner of the kitchen. The said DPR did not have any sort of burn marks or had not developed any defect, which is not possible in the circumstances of the said accident. According to the investigation team, the probable cause of fire in the kitchen is due to knocking off, of non-standard PVC rubber tube from the regulator end; And the leakage remained unattended to.  There was accumulation of LPG in the kitchen resulting in formation of Air-vapour explosive mixture in the kitchen. Flash fire took place during the attempt to light the hotplate by one of the daughter of complainants. Hence, the allegation of the complainant that the cylinder was defective and was not having proper nosel is absolutely false and incorrect.  It has been further urged that  the accident of fire dated 08.06.2011 was reported to the agency only on 16.06.2011 and immediately thereafter the investigating team comprising of Mr. Chirag Minocha, A.M. LPG Sales,Ambala and Mr. Rajinder Pachori, Dy. Manager LPG Operations-Lalru Plant visited the concerned premises on 16.06.2011 but they were not allowed to inspect the premises on the pretext of rituals of the deceased daughters and the inspection was made available on 21.06.2011  and the copy of DDR No.26-A dated 08.06.2011 was made available on 23.06.2011. It is pertinent to mention here that  the complainants reported to the police in the said DDR that  nobody is responsible for the said accident of fire. Similarly, the District Medical Officer, Ambala observed that it was not a case of MLC (Medico-Legal) rather it was a burn case for which no other person is responsible and prayed for dismissal of the complaint with costs.

                   OP No.2 filed written statement on the same lines as that of OP No.1 and prayed for dismissal of the complaint with costs.

                   Ops No.3 & 4 filed their written statement raising preliminary objections qua non-maintainability of complaint, concealment of material facts and the present case has been filed only to gain compensation unlawfully.   On merits, it has been submitted that the said domestic connection was issued subject to certain terms & conditions and specific restrictions that  the said consumer will use only the specified and quality appliances and accessories and was also agreed as per terms   that the Ops No.1 & 2 will not be liable in any manner against any loss or damage caused to any person or property as a result of installation.  It is denied that  the cylinder  was defective in any manner. The complainant even signed the receipt about receiving the cylinder in sound condition. It has been submitted that version given by the complainants to the Police and even as per inquiry/investigation being conducted by the OP No.1, no fault or disorder was found in the gas cylinder but the incident in question was found and proved to have been occurred solely and only due to negligence on the part of deceased and also due to using the non-specified and below quality gas tube as such the police closed the case. Rest of the contents of complaint have been denied and prayed for dismissal of the complaint with costs.

3.                In order to prove their case, complainant Surinder Kaur tendered  her affidavit as Annexure CX alongwith documents as Annexures C-1 to C-5 and closed her evidence whereas on the other hand, counsel for OP No.1 tendered Affidavit  of C.V. Ravi Kumar, Territory Coordinator of OP No.1 as Annexure RW1/A alongwith documents as Annexures RW1/1 to RW1/10 and closed the evidence. Counsel for OP No.2 tendered affidavit of Jagir Singh, proprietor of OP No.2 gas agency as Annexure RW2/A alongwith documents as Annexures RW2/1 to RW2/7 and closed the evidence.  Counsel for Ops No.3 & 4 tendered in evidence Affidavit of Sh.S.Sharma, Assistant Manager of Ops No.3 & 4 as Annexure RW3/A and closed their evidence.

4.                We have heard learned counsel for the parties and gone through the records  & documents placed on file by the parties very minutely. Counsel for the complainants argued that complainant No.1 is the consumer of Ops No.1 & 2 whereas the complainant No.2 is the beneficiary.  He further argued that there is admittedly deficiency in service on the part of the Ops since they supplied defective cylinder to the complainants.  He placed reliance on Section 2(1)(f) & 2(1)(g) of Consumer Protection Act which reads as under:-

2(1)(f) “Defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or [under any contract, express or implied, or] as is claimed by the trader in any manner whatsoever in relation to any goods;

2(1)(g) “Deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to  be maintained by or under any law for the time being in force or  has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

                   Counsel for the complainants further argued that the nozel of the cylinder  supplied by the OP No.2 (Distributor of OP  No.1) was defective and due to this, the gas cylinder started leakage  resulting into catching of fire in the kitchen of complainants when  the daughters of the complainants No.1 & 2  lit the hotplate causing into burn injuries to them and subsequently two daughters of the complainants died   in the Govt. hospital at Chandigarh and this loss is irreparable which cannot be compensated even by way of damages. Besides it, the complainant’s counsel also submitted  plethora  of case laws regarding deficiency/negligence of the  oil companies  while  supplying defective cylinder  to the  complainants /consumers reported in 2005(1)CPJ Pg.104 Indian Oil Corporation Ltd. Vs. Shiv Shankar (Uttranchal State Commission), 2007(1)CLT Pg. 225 Madhuri Govilkar & Ors Vs. Hindustan Petroleum Corporation and others (NC), 2008(2),CLT Pg.545  Indian Oil Corporation Ltd. Vs. Rakesh Kumar Prajapati & Ors (NC), 2011(1)CLT  Pg. 166 D. Shankar Vs. Gopi Agencies & Ors. (NC) & 2012 (1) CLT Pg. 484  Peter  Masih  & Ors Vs. M/s Azad Gas Service through its Proprietor & Ors. (Punjab State Commission).

                   On the other hand, counsel for Ops No.1 & 2 argued that there is  neither any deficiency in service nor any negligence on the part of Ops as alleged by the complainants  rather the accident  happened due to negligence and inept  handling of the instruments i.e. gas cylinder  and regulator etc. by daughters of the complainants as a result of which LPG accumulated in the kitchen of the complainants resulting into formation of air varpour explosive  mixture causing  fire during an attempt of lit the hotplate by one of the daughter of consumer.  Counsel for the Ops further argued that the investigation team of the officers of Ops visited the premises of  complainants and found that  the daughters of complainant failed to affix regulator properly on the gas cylinder and the cause of the fire in the kitchen was due to knocking of, of non-standard PVC rubber tube from the regulator end and thus the leakage remained unattended to causing catching of fire by the gas cylinder. Further the complainant failed to bring on file any evidence/expert report wherefrom  it is proved that the cylinder so supplied by the Ops No.1 & 2 to the complainant No.2 on 08.06.2011 was defective one hence, there is no any negligence on the part of Ops.

                   Counsel for  OP No.3 also argued on the point of quantum that the complainants have not annexed any document qua working of their daughter as Beauty Parlour  as well as doing the work of sewing clothes as alleged in the complaint, as such, her income be assessed @ Rs.3000/- per month as labourer and also submitted case laws pertaining  to petitions under Motor Vehicle Act reported in PLR (2015-2) Pg. 359 Jitendra Khimshankar Trivedi & Ors Vs Kasam Daud Kumbhar (SC),  PLR (2015-1) Pg. 53 Parmod Kumar & another Vs. Kuldeep Singh & Ors. (P&H), 2013 ACJ Pg. 378 Gurpal Singh Vs. S.S.Nehra & Others (P&H) & PLR (2013-4) Pg.290 Chander Pati Vs. Jitender Kumar & Ors.

5.                At the very outset, from the facts stated above, it is not in dispute that the complainant No.1 is a registered consumer of LPG manufactured by OP No.1 and distributed /supplied by OP No.2 who is dealer/distributor of OP No.1.  Further  it is also not in dispute that the complainant No.1 is having LPG Gas Connection No.9087 issued by OP No.2 i.e. Bhagwati Gas Agency, Ambala City  at the behest of OP No.1  company in April 2000 and the LPG cylinder in question was also supplied to the complainant No.2 i.e. husband of complainant No.1 on 08.06.2011.  Further it is also not in dispute that when the daughters of complainants No.1 & 2 tried to affix the regulator after opening the cover/dot of the gas cylinder in question in the kitchen, the Gas leaked causing catching of fire in the kitchen resulting into burn injuries to the daughters as well as husband of complainant No.1 as mentioned in the report (Annexure RW1/9) placed on file by OP No.1 and detailed as under:-

PERSONS INVOLVED IN ACCIDENT:		N.A.
Name	Sex/Age	Relation	Extent of burn/injury causality
Ms. Manjeet Kaur	Female-22	Daughter of connection holder	Burn injuries to the extent of 80%. Dead.
Ms. Ranjeet Kaur	Female-24	Daughter of connection holder	Burn injuries to the extent of 49%. Dead.
Ms.Paramjeet Kaur	Female-26	Daughter of connection holder	Burn injuries to the extent of 20%.
Mr. Mahender Singh	Male-63	Husband of connection holder	Burn injuries to the extent of 10%.

 

Subsequently, two daughters of complainants No.1 & 2 namely Ranjeet Kaur who was  married to Gurdev Singh (complainant No.3) and Manjeet Kaur who was unmarried died due to burn injuries at Govt. Medical College Hospital, Sector 32 Chandigarh as evident from PMR (Annexure C-2) & death certificate (Annexure C-3). 

 6.               Now the main question arises for consideration before the Forum is that “Whether the cylinder supplied by OP No.2 which was manufactured/refilled  by OP No.1 i.e. B.P. C.L. was defective one  or the accident occurred due to the negligence & inept  handling of the instruments by the said daughters of   the complainants as alleged by Ops No.1 & 2?”

                   To resolve the aforesaid controversy, it is an admitted fact on record that the accident/incident in question took place due to leakage of Gas from the Nozle/Valve of the Gas cylinder supplied by OP No.2 at the behest of OP No.1  to the complainants but Ops No.1 & 2 are trying to shift their burden on the complainants by blaming that “1- the probable cause of fire in the kitchen is due to knocking off, of non-standard PVC rubber tube from the Regulator end;  And the leakage remained unattended to. There was accumulation of LPG in the kitchen resulting   in formation of air-vapour explosive mixture in the kitchen.  Flash fire took place during the attempt to lit the hotplate by one of the daughters of  the Consumer, 2- the daughters of complainants failed to affix the regulator properly on the gas cylinder resulting into leakage of gas in the kitchen”.  To prove the said probability, Ops No.1 & 2 have not placed on record any evidence/expert report except the two undated Reports (Annexure RW1/8 & RW1/9 tendered by OP No.1 or RW2/3 & RW2/4 tendered by OP No.2) allegedly prepared by officers of Op No.1  i.e. one Chirag Minocha (A.M., LPG Sales) & other Rajendera Pachori ( Deputy Manager, LPG Operations)      on 21.06.2011 i.e. after a gap of 13 days but no any affidavit of these officers have been placed on record to prove the fact that on which date & time and in whose presence, they inspected the registered premises of complainants and on what basis they have reported that “ the probable cause of fire in the kitchen is due to knocking off, of non-standard  PVC rubber tube from  the  regulator end and leakage remained unattended resulting into formation of Air Vapour explosive mixture in the kitchen or the Regulator was not properly affixed on the gas cylinder in question”.  Further in the alleged reports (though not proved) these officers have reported  under the clause 5 of ‘Annexure RW1/8’:-

Distributor and His Staff:-

          Whether the installation was             -        Several attempts were made

checked by  distributor’s Mechanic.           To  switch over Suraksha

and allow for mandatory Inspection.  The customer showed adamancy  all the time.

 

                   But Ops No.1 & 2 have failed to tender affidavit of any Mechanic/employee of the distributor i.e. Op No.2 who approached the complainants for mandatory inspection and complainant/consumer refused to do so.  Besides it, the stand taken by the Ops No.1 & 2 that their officers namely Sh.Chirag Minocha, the then Assistant Manager LPG (sales) and Sh. Rajinder Pachori, the then Deputy Manager, LPG (Operations) Lalru Plant visited the premises of the complainant and investigated the reasons of accident on 21.06.2011  is  apparently false from the very face of it since in the alleged report Annexure RW1/9 tendered by OP No.1 under the Clause (REMEDIAL ACTION) at Sub-Clause-B, they have  reported that:

                        Any claim lodged by                         :           Claim case filed in District

                        consumer/third party on                               Consumer Forum, which

                        corporation/distributor and                         is listed for 04.01.2012.

                        action taken thereof.                                     Intimated the insurance

company immediately after the  receipt of information of accident by us.  Now following up with National Insurance Company Limited.

 

                   Meaning thereby that the alleged report has been prepared by the above mentioned officers after receipt of summons  of the complaint in question from District Consumer Forum which  has been preferred by the complainant on 03.11.2011  wherein notice to Ops  was issued for 04.01.2012 and therefore the version of the Ops No.1 & 2 that their officers investigated the accident in question at the premises of the complainant No.1 on 21.06.2011 and prepared report there is not sustainable  as it is clear from the above, the same has been prepared by the officers of OP No.1 after  receipt of summons  of the complaint i.e. after 03.11.2011 only to save their skin.  In this way, the version put-forth by Ops No.1 & 2 is not tenable and thus Ops No.1 & 2 have failed to place on record any evidence that the accident/incident in question took place due to mishandling or negligence on the part of daughters of the complainants, though the burden to prove the same was upon the OP’s No.1 & 2 being technical organization as observed  by Punjab State Consumer Disputes  Redressal Commission, Chandigarh in one similar case titled as Peter Masih & Ors Vs. M/s Azad Gas Services & others in CC No.18 of 2006 reported in 2012 (1) CLT-284.

                   In these circumstances where the OP is unable to explain the accident, the  Maxim ‘res ipsa loquitur’ is applicable as observed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Madhuri Govilkar & Ors Vs. HPCL & Others reported in  2007(1)CLT Page 225.  So, we have no hesitation in holding that the reason of occurring of accident/incident on 08.06.2011 in the kitchen of complainants causing death of 2 daughters of complainants  No.1 & 2 was supply of defective cylinder by Ops No.1 & 2 which is an irreparable loss and certainly cannot be compensated with the relief granted by the District Forum.

7.                Now the next question arises for consideration before the Forum is that “To what amount of compensation, the complainants are entitled on account of death of their daughter Manjeet Kaur?”

                   In para No.7 of the complaint, complainants have submitted that  their daughter Manjeet Kaur was 22 years old and was doing the work of beauty parlour and sewing clothes at village Durga Nagar, Ambala City and was earning Rs.5000/- per month. Therefore, the complainants are entitled for the compensation  to the tune of Rs.8,00,160/- alongwith interest  @ 12% per annum and penalty as well as costs of litigation etc. from the Ops. Further to reach at the calculation of Rs.8,00,160/-, the complainants have pleaded that after deducting  1/3  of the earning at her own by the deceased and applying the multiplier of 20 years, the compensation is worked out as under:-

Rs.3334/- (2/3 of Rs.5000/-) x 12 months x 20 years= Rs.8,00,160/-.

                             But as per our view, it is on the higher side and thus we though assess  the earning of deceased Manjeet Kaur @ Rs.5000/- P.M. (i.e. @ Rs.200/- per day for 25 days leaving 5 days holidays in a month) but after deducting 1/3 of the earning at  her own expenses and applying the multiplier of 18 years being young lady of 22 years old, compensation payable to the complainants is worked out as under:-

Rs.3334/- P.M.(2/3 of Rs.5000/-) x 12 months x 18 years

= Rs.7,20,144/- or say Rs.7,20,000/-.

                   Further, the case laws submitted by OP No.3 under the provisions of M.V. Act are not applicable to the facts & circumstances of the present case.

                        Accordingly, we allow the present complaint and direct the Ops to comply with the following directions jointly & severally within thirty days from the communication of this order:-

1. To pay  a sum of Rs.7,20,000/-to the complainants in equal shares alongwith simple interest @ 10% per annum (being senior citizen) from the date of institution of complaint to till its realization.

(b)       To pay Rs.11,000/- as costs for unwanted litigation including the advocate’s fee etc.

                   Further the award in question/directions issued above must be complied with by the OPs within the stipulated period failing which all the awarded amounts  shall further attract simple interest @ 12% per annum for the period of default. It is further  made clear that the Ops No.3 & 4 i.e. National Insurance Co. Ltd. shall indemnify the claim/award in question to the extent  of their liability  i.e. upto Rs.10.00 lacs as per policy and remaining amount of award, if any,  shall be borne by the Ops No.1 & 2 jointly and severally. So, the complaint is decided in above terms. Copies of this order be sent to the parties concerned, free of costs. File be consigned to the record room after due compliance. 

 

 Announced:28.08.2015                                                         

                                                                                                                   Sd/-

                                                                                                         (A.K.SARDANA)

                                                                                                            PRESIDENT

                                                                                                                Sd/-

                                                                                                         ( PUSHPENDER KUMAR)

                                                                                                                   MEMBER