DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.
CC.No.498 of 01-10-2012
Decided on 29-04-2013
Karam Singh aged about 56 years S/o Banta Singh R/o Qr. No.2, Gurdwara Haji Rattan, Bathinda.
........Complainant
Versus
1.Indian Oil Corporation Ltd. Plot No.6, State Office, Sector 19-B, Madhya Marg, Chandigarh, through its General Manager.
2.Divisional Retail Sales Manager, Indian Oil Corporation Ltd, Phoos Mandi, Bathinda.
3.Sales Officer, Indane Gas, Model Town, Bathinda
4.M/s Narain Gas Service, Booth No.39, Model Town, Phase I, Bathinda, through Manager, Auth Signatory Kartar Singh.
5.New India Assurance Co.Ltd. Mall Godown Road, Kotkapura, through its Branch Manager or Divisional Manager.
6.National Insurance Co. Ltd., corporate regional office, Royal Insurance Building 2nd floor, 14 Jamshedji Tata Road, Church gate, Mumbai, through its Regional Manager.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President.
Sh.Amarjeet Paul, Member.
Smt.Sukhwinder Kaur, Member.
Present:-
For the Complainant: Sh.B.S Bhullar, counsel for complainant.
For Opposite parties: Sh.Abhey Singla, counsel for opposite party Nos.1 to 3.
Sh.B.B Bansal, counsel for opposite party No.4.
Sh.Vinod Garg, counsel for opposite party No.5.
Sh.Sanjay Goyal, counsel for opposite party No.6.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant is holding Indane domestic gas connection bearing No.702 with authorized dealer, the opposite party No.4 vide SV No.8034908 dated 24.10.1998 and is using the same for the domestic purpose for cooking as per the guidelines/instructions and requirements of the opposite parties issued from time to time. The opposite party No.1 deals in sale of liquefied petroleum gas for the domestic and commercial purposes under the trade name of Indane throughout India and has offices at Bathinda and dealers/distributors and assured safety of the cylinders. The complainant has received the supply of the refill gas cylinder from the opposite party No.4, on 17.6.2012 the said gas cylinder was fitted to the hot gas plate in his house in the evening at about 6:00 pm, the complainant's wife and his three daughters were present in the house, they found the gas leakage out of the cylinder. The complainant's daughter Rupinder Kaur, with a view to save the fridge and other appliances, plugged off the fridge in the kitchen. But in the meantime, the leakage of the gas caught fire and engulfed the entire kitchen and Rupinder Kaur received burn injuries upto 95%, she was rushed to Civil Hospital, Bathinda then to Adesh Hospital, Bhucho and thereafter she was referred to CMC Ludhiana on 21.6.2012 but she died due to the said burn injuries. The amount of Rs.1 lac has been spent on her treatment. Rohit @ Gori and Sukhvir Singh neighbours who came to the help of Rupinder Kaur were having burn injuries due to the leakage of the gas and have also died. Some articles of the complainant were destroyed in the fire causing loss upto Rs.50,000/-. The complainant's daughter Rupinder Kaur was B.A, M.A, doing B.Ed and tuition work and earning Rs.15,000/- per month and was a very bright future ahead who was 28 years of age and was expected to live 50 more years and to have a higher Government service, thus the complainant is entitled to get the compensation of Rs.5 lacs on account of the death of his daughter due to the negligence, carelessness of the opposite parties. The complainant time and again requested the opposite parties and has got served a legal notice dated 22.8.2012. The opposite party No.4 has given the false, frivolous reply and the opposite parties have refused to concede to the requests of the complainant. Hence the complainant has filed the present complaint to seek the directions to the opposite party No.1 to pay the compensation to the tune of Rs.6.50 lacs alongwith interest; to produce the entire record of the case and pay the cost of Rs.22,500/-.
2. Notice was sent to the opposite parties. The opposite party Nos.1 to 3 after appearing before this Forum have filed their joint written statement and pleaded that there is no privity of the contract between the complainant and the opposite party Nos.1 to 3. The entire transaction was done between the distributor i.e. the opposite party No.4 and the Corporation, the distributor shall act and shall always be deemed to have acted as principal and not as an agent or on account of the Corporation. Clause 17 of the contract entered into between the Corporation and the distributor. To support their version the opposite party Nos.1 to 3 have relied upon the various authorities. The opposite party Nos.1 to 3 admitted that the refill of the gas cylinder was delivered to the consumer No.702 i.e. the complainant on 28.5.2012 as per history card. The alleged accident was not reported to anyone i.e. distributor, field officer, IOC etc. by the complainant. As per the photographs of the gas cylinder, pipe and kitchen, it prima facie seems that the accident did take place due to the leakage of the gas cylinder since there is no signs of burn on the cylinder and the pipe. The Field Officer of the opposite party Nos.1 to 3 was informed about the mishap by some third person i.e. one Mr.Madan Lal on phone on 28.7.2012 and he visited the house of the complainant and took the photograph of the cylinder. The DDR No.28 dated 18.6.2012 in Roznamcha Thana Kotwali, Bathinda was registered. The accident is natural and by-chance and there is no fault of anyone. The accident occurred due to the short circuit while removing the plug of the refrigerator/fridge.
3. The opposite party No.4 after appearing before this Forum has filed its separate written statement and pleaded that the complainant has concealed the material facts and documents from this Forum as well as the opposite party No.4 as he forged/self made the entries regarding the booking of the refill on 26.5.2012 and delivery of the same on 12.6.2012. The refill has been supplied to the complainant on 28.5.2012 against the booking of 17.5.2012. Since the previous booking was made on 17.5.2012 and the refill supplied on 28.5.2012, there is no question of booking on 26.5.2012 and delivery on 12.6.2012 as per the rules. The complainant has manipulated the entries regarding the booking on 26.5.2012 and delivery on 12.6.2012. The opposite party No.4 has no liability as the refill/gas cylinder in question has not been supplied by it. However, if this Forum comes to the conclusion that the said cylinder/refill has been supplied by the opposite party No.4 or it is liable to pay any amount, in that case the liability to pay the said amount is of the opposite party No.5 with whom the opposite party No.4 had got the insurance against the public liability vide cover note No.532748 from 19.7.2011 to 18.7.2012. Rupinder Kaur daughter of the complainant had violated the instructions of the opposite parties, according to which whenever some smell or leakage is felt by the customer no attempt should be made to on or off any switch at all. The opposite party No.4 denied that the amount of Rs.1 lac was spent on the treatment of Rupinder Kaur and the value of the destroyed articles was Rs.50,000/-.
4. The opposite party No.5 after appearing before this Forum has filed its separate written statement and pleaded that the alleged loss is not covered under the terms and conditions of the policy as only accidental damage to property caused by or arising from the installation of the gas filled LPG cylinder in the premises of the customer of insured is covered as per the alleged policy. In the present case the loss has not occurred during any installation of the LPG cylinder rather the loss has occurred much after the installation. The alleged accident has not taken place due to any leakage of the cylinder. Neither any notice has been given nor any claim has been lodged with the opposite party No.5 as per the terms and conditions and limitation provided under the policy. There is no privity of the contract between the complainant and the opposite party No.5. The opposite party No.4 denied the supply of the gas cylinder in question to the complainant and pleaded that he has forged the entries regarding the booking and supply of the cylinder in question thus the opposite party No.5 is not liable to pay the compensation. The opposite party No.4 has violated the instructions of the opposite parties by the complainant as such no claim is payable. The articles worth Rs.50,000/- has not been destroyed in the fire. The opposite party No.5 denied that the deceased Rupinder Kaur was doing tuition work or earning Rs.15,000/- per month.
5. The opposite party No.6 after appearing before this Forum has filed its separate written statement and pleaded that the opposite party No.4 in its reply has denied the supply of the refilled gas cylinder to the complainant and further pleaded that the complainant has forged the entries regarding the booking and supply of the gas cylinder in question as such the opposite party No.6 is not liable to pay any claim to him. As per the terms of the policy only accidental damage to the property caused by or arising from the installation of the gas filled LPG cylinder in the premises of the customer of insured is covered as per the alleged policy. In the present case the loss has not occurred during the installation of the LPG cylinder rather the loss has occurred due to the negligence of the complainant himself i.e. leakage of cylinder. The complainant was duty bound to keep the cylinder close when not in use and replace the pipe, if the same is defective. Had the complainant took these precautions, the accident could have been avoided. The opposite party No.6 is not liable to pay any claim arising out of the negligence of the complainant himself. The complainant or the insured never informed the opposite party No.6 regarding the accident anytime, although as per the terms of the policy, the insured was bound to inform the opposite party No.6 immediately about the accident as well as lodging of the complaint with the police. The insured the opposite party Nos.1 to 4 were required to send the detailed statement in writing of the loss or the damage, with an estimate of the intrinsic value of the property lost and the amount of the damage sustained within 14 days of such incident. But neither any intimation of the accident was given to the opposite party No.6 nor any FIR was lodged with the police. No survey of the alleged loss was ever got conducted by the complainant or insured from the opposite party No.6 or from the approved surveyor. Any unauthorized assessment of the loss made by any unauthorized person is not binding on the opposite party No.6, only the authorized surveyor can assess the loss. As per the policy, the liability of the insurance company for property damage is maximum Rs.1 lac and after deduction of the excess clause, the amount payable in one case is maximum to the tune of Rs.90,000/-, subject to the production of the inspection report by the opposite party No.1, which has not yet been received. The opposite party No.4 has taken the LPG Dealers Package Policy from the opposite party No.5 and contribution from both the policies will be applicable. As the complainant as well as the insured have violated the terms & conditions of the policy as such the opposite party No.6 is not liable to pay any amount to the complainant.
6. The parties have led their evidence in support of their respective pleadings.
7. Arguments heard. The record alongwith written submissions submitted by the parties perused.
8. The opposite party No.4 has submitted that the cylinder due to which the incident has been caused was not supplied by it to the complainant. The complainant had forged/self made the entries regarding the booking of the refill on 26.5.2012 whereas the delivery of the same was given on 12.6.2012. The refill has been supplied to the complainant on 28.5.2012 against the booking of 17.5.2012. Since the previous booking was made on 17.5.2012 and the refill supplied on 28.5.2012, there is no question of booking on 26.5.2012 and delivery on 12.6.2012 as per the rules. Rupinder Kaur daughter of the complainant had violated the instructions of the opposite parties wherein it has been specifically provided that whenever some smell or leakage is felt by the customer no attempt should be made to on or off any switch at all.
9. The opposite party Nos.1 to 3 have no privity of the contract between the complainant and the opposite party Nos.1 to 3. The entire transaction was done between the distributor i.e. the opposite party No.4 and the Corporation, the distributor acts as principal and not as an agent. The opposite party Nos.1 to 3 admitted that the refill of the gas cylinder was delivered to the consumer No.702 i.e. the complainant on 28.5.2012 as per their record. The alleged accident was not reported to anyone i.e. distributor, field officer, IOC etc. by the complainant. The photographs of the gas cylinder, pipe and kitchen does not show that the accident took place due to the leakage of the gas cylinder since there is no signs of burn on the cylinder and the pipe. The Field Officer of the opposite party Nos.1 to 3 was informed about the mishap by some third person i.e. one Mr.Madan Lal on phone on 28.7.2012 and he visited the house of the complainant and took the photograph of the cylinder. The DDR No.28 dated 18.6.2012 was registered. The accident is natural and by-chance and there is no fault of anyone. The accident occurred due to the short circuit while removing the plug of the refrigerator/fridge.
10. The opposite parties admitted that the gas connection No.702 is in the name of the complainant but denied the supply of the said refill cylinder to the complainant. On 17.6.2012 the said gas cylinder was fitted to the hot gas plate in his house at about 6:00 pm in the evening, the complainant's wife and his three daughters were present in the house, they found the gas leakage out of the cylinder. The complainant's daughter Rupinder Kaur, with a view to save the fridge and other appliances, plugged off the fridge in the kitchen. But in the meantime, the leakage of the gas caught fire and engulfed the entire kitchen and Rupinder Kaur suffered 95% burn injuries, she was rushed to Civil Hospital, Bathinda then to Adesh Hospital, Bhucho and thereafter she was referred to CMC Ludhiana on 21.6.2012 but she died due to the said burn injuries. The amount of Rs.1 lac has been spent on her treatment. Rohit @ Gori and Sukhvir Singh neighbours who came for the help of Rupinder Kaur have also suffered burn injuries due to the leakage of the gas and died. Some articles of the complainant worth Rs.50,000/- were destroyed in the fire.
11. The averment of the opposite party No.4 is that the said gas cylinder has not been supplied to the complainant by it and the entries regarding the booking of the refill on 26.5.2012 and delivery of the same on 12.6.2012 in the pass book are forged/self made. To prove their version the opposite parties have not placed on file any cogent and convincing evidence. Even if for argument sake it is believed that the opposite party No.4 has supplied the refill on 28.5.2012 the complainant has attached the same to the gas-stove on 17.6.2012. Thus it is not the case of the opposite parties that the gas cylinder taken in refill should be installed on the same day or within some particular days. Moreover they have placed on file Ex.R6 details of the entries of the cylinders supplied to the complainant but this is a computer generated statement and can be prepared at any time, this document does not bear the stamp or signature of any of the signatory of the opposite party No.4. Hence cannot be relied upon. The opposite parties have also not placed on file any affidavit of their employee who was deputed to deliver the refill cylinder to the complainant. The opposite party Nos.1 to 3 have admitted in their reply that the said cylinder was of their company but the responsibility of issuing the refill cylinder is of the opposite party No.4. The refill cylinder was defective if it would have attached or installed earlier the incident may have taken place earlier.
12. In Ex.C4 i.e. DDR dated 18.6.2012 it has been specifically mentioned that as there were leakage in the refill of the gas cylinder, the daughter of the complainant Rupinder Kaur in order to switch off the plug of the refrigerator/fridge to avoid any loss, received the burn injuries upto 95% on her person. She was taken to Adesh Hospital, Bhucho and thereafter referred to CMC Ludhiana on 21.6.2012 where she succumbed to the injuries. From Ex.C7 it is clear that the complainant's daughter has died due to the burn injuries on 21.6.2012 at 10:15 pm at CMC hospital, Ludhiana. The opposite party No.4 has nowhere mentioned that the complainant has taken the supply of the gas cylinder from some other gas agency or some other place. Moreover the opposite party Nos.1 to 3 have admitted the supply of the gas cylinder to the complainant on 28.5.2012.
13. The opposite party No.4 has not placed on record any evidence that the gas-stove, pipe or regulator have ever been checked by it in the house of the complainant regularly which are mandatory on the part of the opposite party No.4 as per the agreement between the opposite party Nos.1 to 3 and opposite party No.4. The opposite party No.4 has denied the supply of refill cylinder on dated 28.5.2013. Mere denial on the part of the opposite party No.4 does not prove that there is no liability of the opposite party No.4. The opposite party Nos.1 to 3 admitted the complainant is having gas connection in his name. The refill cylinders are supplied by the distributor i.e. opposite party No.4. As per Ex.R10 Agreement Clause No.17, the relationship between the opposite party Nos.1 and 4 is of principal to principal basis. The relevant portion of Clause 17 is reproduced:-
“In all contracts or engagements entered into by the Distributor with the customers for sale of LPG and/or the sale and/or installation and/or repairs of appliances and/or connections thereof with LPG Cylinders (filled or empty) and/or refills and/or pressure regulators and/or attached equipment, the Distributor shall act and shall always be deemed to have acted as a principal and not as an agent or on account of the Corporation, and the Corporation shall not in any way be liable in any manner in respect of such contracts and/or engagements and/or in respect of any act or omission on the part of the Distributor, his servants, agents and workmen in regard to such installation, sale, distributor, connections, repairs of otherwise. The Distributor shall be bound to inform the customers in writing of the provision, through correspondence or at the time of enrolment of the customer.”
Thus in our opinion since the relationship between the dealer and IOC is one of the principal to principal basis and not as a principal to agent, there is no privity of contract between the IOC and consumer and therefore the complaint filed by the complainant against IOC is not maintainable.
The support can be sought by the precedent laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Indian Oil Corporation Ltd. Vs. M/s Hansmukhbhai M. Patel & Ors, IV (2012) CPJ 289 (NC) wherein it was held:-
“Consumer Protection Act, 1986, Sections 2(1)(f), 2(1)(g), 14(1)(d), 21(a)(ii)-LPG Gas Connection-Fire took place-Death due to burn injuries-Defective gas cylinder alleged-Alleged deficiency in service-State Commission allowed complaint-Hence appeal-Relationship between dealer and IOC is one of the principal to principal basis and not as a principal to agent-There is no privity of contract between IOC and consumer-Complaint not maintainable-Impugned order set aside.”
The Hon'ble National Commission in the above mentioned case has relied upon law laid down by Hon'ble Supreme Court in case titled M/s Flame Gas Services and Ors. Vs. Aklesh Kumar Bansal & Others, 1 (1995) CPJ 78(NC)=CPR 1995 Vol (1) 318 and Indian Oil Corporation Vs. Consumer Protection Counsil and Another, (1994) 1 SCC 397.
14. As discussed above this forum is of the considered view that Ms.Rupinder Kaur aged about 27-28 years succumbed to the injuries received from the leakage of the cylinder that caught fire. The complainant is the consumer of the opposite party No.4 and he is getting the supply of the gas cylinder from the opposite party No.4, hence the opposite party No.4 is liable to compensate the loss of the life of the young educated girl who died unnatural death due to the leakage of the gas cylinder. No doubt the life of a person cannot be compensated with any amount. Thus some amount of compensation be awarded to the complainant. The complainant has not placed on file any estimate of the damaged household articles. Thus it would meet the ends of justice if some amount on this account also be awarded to the complainant.
15. Thus respectfully following the view taken by the Hon'ble Surpreme Court in Flame Gas Services case (Supra); IOC Vs. Consumer Protection Counsil and Another, (Supra) and IOC Vs. Hansmukhbar M. Patel & Others, CPJ 289 (NC) (Oct) 2012 we are of the considered view that there is deficiency in service on the part of the opposite party No.4. Hence this complaint is accepted with Rs.5000/- as cost and Rs.2 lac as compensation against the opposite party No.4 and dismissed qua the opposite party Nos.1 to 3, 5 and 6. The opposite party No.4 can get the reimburse of the claim from the opposite party No.5.
16. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.
17. In case of non-compliance the compensation Rs. @ 2 lacs amount will carry interest @ 9% per annum till realization.
18. A copy of this order be sent to the parties concerned free of cost and the file be consigned to the record.
Pronounced (Vikramjit Kaur Soni)
29-04-2013 President
(Amarjeet Paul)
Member
(Sukhwinder Kaur)
Member
