NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIFIRST APPEAL NO. No. FA/274/2009
(Against the Order dated 30/04/2009 in Complaint No. 18/2006 of the State Commission Punjab)
1. INDIAN OIL CORPORATION LTD.Through its Managing Director, Registered Office G-9, Ali Yavar Jung Marg, Bandra (East)Mumbai - 400 051
...........Appellant(s)
Vs.
1. PETER MASIH & ORS.S/o Sh. Lal Masih, Through Father Being Natural Guardian of the Minor, R/o House No. 15/10, Mahavir Jain Colony, Haibowal KalanLudhiana2. AMONE SON (MINOR)S/o Sh. Peter Masih, Throgh Father Being Natural Guardian of the Minor, R/o House No. 15/10, Mahavir Jain Colony, Haibowal KalanLudhiana3. MS. ANGEL DAUGHTER (MINOR)D/o Sh. Peter Masih, Through Father Being Natural Guardian of the Minor, R/o House No. 15/10, Mahavir Jain Colony, Haibwal KalanLudhiana4. M/S. AZAD GAS SERVICESThrough its Prop. Rajesh Nagar, Haibowal KalanLudhianaPunjab5. INSURANCE COMPANY LTD.Regional Office, SCO Nos. 332-334, Sector - 34-AChandigarh
...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE R.C. JAIN ,PRESIDING MEMBERHON'BLE MR. ANUPAM DASGUPTA ,MEMBER
For the Appellant :
NEMO
For the Respondent :
NEMO
Dated : 12 Apr 2010
ORDER
These appeals arise from an order dated 30.04.2009 passed by the Punjab State Consumer Disputes Redressal Commission (in short, the State Commission) in complaint No. 18 of 2006. The complaint was filed claiming compensation in respect of untimely deaths of Mrs. Ruth, wife and Ms. Afrin, daughter of complainant No. 1-Peter Masih, who died on 28.06.2005 at about 7.00 p.m. due to bursting of a LPG gas cylinder. It was alleged that the gas cylinder, which bursted, was manufactured and filled by opposite party No. 1-Indian Oil Corporation Limited and was supplied through its Distributor, namely, M/s Azad Gas Service. Alleging defect in the cylinder and its component, complaint was filed. Complaint was resisted by the Indian Oil Corporation but the distributor, namely, Azad Gas Service was proceeded ex parte as it was not represented before the State Commission. The defence of the Indian Oil Corporation Limited was that the last supply of cylinder, which was made through the distributor, was in the month of November, 2004 and since the accident took place towards the end of June, 2005, the cylinder, which had burst, was not supplied by its distributor and must be a spurious one. The State Commission, however, repelled the said defence plea and going by the evidence and material brought on record, found that the deficiency had been established on the part of opposite party No. 1-Indian Oil Corporation and the opposite party No. 2, the distributor. The State Commission partly allowed the complaint and awarded total compensation of Rs. 5 lakh i.e. Rs. 4 lakh for the death of Mrs. Ruth, wife of complainant No. 1 and Rs. 1 lakh for the death of his daughter, namely Afrin. Besides, the State Commission also awarded a compensation of Rs.50,000/- towards the loss caused to the household articles due to fire and damage on account of said blast. 2. It would appear that after the impugned order was passed, an application under Order 9 Rule 13 read with section 151 of Civil Procedure Code was filed on behalf of opposite party No. 1-M/s Azad Gas Service for setting aside the impugned order and for granting permission to contest the complaint, which was, however, declined by the State Commission having it no power to review its own order. 3. Aggrieved by the impugned order, Indian Oil Corporation Limited (original opposite party No. 2) has filed First Appeal No. 274 of 2008 while M/s Azad Gas Service has filed First Appeal No. 334 of 2009 praying for setting aside the finding and impugned order of the State Commission. The complainants, Peter Masih and others have also filed First Appeal No. 282 of 2009 seeking enhancement of the compensation so awarded by the State Commission. 4. We have heard Mr. Ajay Mahajan, learned counsel for the complainants-Peter Masih and others; Mr. M. M. Kalra, learned counsel representing the Indian Oil Corporation Limited-appellant in First Appeal No. 274 of 2009 and respondent in other two appeals; Mr. Pramod Kumar Upadhyay, learned counsel for M/s Azad Gas Service; Mr. Abhishek Kumar, learned counsel for National Insurance Company Limited and Mr. Navdeep Singh, learned counsel for newly added party, viz. New India Assurance Company Limited, which was arrayed as a party on the prayer made from the side of Indian Oil Corporation Ltd. 5. It is not disputed that the deceased, Ruth, wife of complainant No. 1, was a bona fide registered consumer of LPG gas connection issued by the Indian Oil Corporation Limited through its distributor, M/s Azad Gas Service. It is also not disputed that Mrs. Ruth and Ms. Arfin died on 28.6.2005 due to the bursting of the LPG cylinder and household effects of the complainants were damaged/destroyed in the said incident. However, the defence plea of the Indian Oil Corporation Limited was that the gas cylinder supplied in November, 2004, could not have run upto June, 2005 having regard to the number of persons in the family of the customer and the gap of about more than six months. On the basis of information, which might have been received by the Indian Oil Corporation Limited, the other plea was that the cylinder, which bursted on the evening of 28.6.2005, was not manufactured and supplied by the Indian Oil Corporation through its distributor, M/s Azad Gas Service. In any case, M/s Azad Gas Service, the distributor, was the best person to establish by means of its record on which date, the last supply of the cylinder was made. However, since the said opposite party remained ex parte and did not file any written version, its defence has not come on record. 6. Learned Counsel for M/s Azad Gas Service vehemently prayed for grant of one opportunity to defend the complaint based on the factual position and as per the available record with them. We are not going into the question as to whether and for what reason, the said opposite party could not defend the complaint but the fact remains that the complaint could not have been effectively adjudicated in absence of its defence plea. Moreover, it is noticed that in all such type of accidents, the Indian Oil Corporation Limited holds an in-house inquiry so as to find out the cause of such accident and pinpoint the responsibility. Mr. Kalra, learned counsel for Indian Oil Corporation Limited states that if any inquiry was made by Indian Oil Corporation Limited, its report would be filed if an opportunity is granted for the purpose. 7. Mr. Abhishek Kumar, learned counsel appearing for the National Insurance Company Limited states that the question in regard to liability of the National Insurance Company, has already been answered by the State Commission because the insurance policy bearing No. 121800/46/05/00078 (Traditional Business- Miscellaneous Public Liability Outside Market Agreement) taken by M/s Azad Gas Service covers only the premises of such dealer rather than any mishap where the customer or any employee or any other person dies or killed. An application was made on behalf of Indian Oil Corporation Limited seeking impleadment of New India Assurance Company Limited as one of the respondents because it was shown that Indian Oil Corporation Limited had taken a policy which covers the kind of peril, which had taken place in the case in hand. Mr. Navdeep Singh, learned counsel for the newly added party, namely, New India Assurance Company Limited, states that since this insurance company was not impleaded as a party and no relief was sought from it and was not granted any opportunity to defend the complaint or in any case, to contest the claim of the Indian Oil Corporation Limited for indemnification of the loss suffered by them, he also needs to file written defence version. 8. In view of the above facts and circumstances of the case and the developments which have taken place, we deem it expedient in the interest of justice to remand the matter back to the State Commission for retrial in accordance with law, after affording opportunity to M/s Azad Gas Service as also the newly added opposite party, New India Assurance Company Limited to file their written version in response to the complaint. 9. In the result, First Appeals No. 274 of 2009 and 334 of 2009 are hereby partly allowed and the findings and the impugned order of the State Commission are set aside and the complaint is remitted back to the State Commission for retrial, in accordance with law. Consequently, First Appeal No. 282 of 2009 has become infructuous and is disposed of as such. The appellant-M/s Azad Gas Service is granted one opportunity to file its written defence version before the State Commission subject to payment of Rs.5,000/- as cost to the complainants. We direct the parties to appear before the State Commission on 10.05.2010. New India Assurance Company Limited will also file its defence version on the same date. After the written versions are filed, the parties will be free to lead evidence/further evidence. We expect the State Commission to decide the complaint as expeditiously as practicable. 10. Under the order dated 18.08.2009 of this Commission, the Indian Oil Corporation Limited has deposited the entire awarded amount with the State Commission and we gave liberty to the complainant to withdraw the said amount subject to furnishing restitution security. The complainant No. 1 and his counsel state that the complainant has not able to withdraw the said amount as he was called upon by the State Commission to furnish bank guarantee though he was willing to which but could not furnish. In this regard, we may simply observe that vide order dated 18.8.2009, we had directed the State Commission to release the amount to the complainant on furnishing adequate security which did not necessarily imply that the State Commission should call for the bank guarantee for the same amount. Learned counsel for the complainants states that the complainant is in a position to furnish the collateral security for withdrawal of the said amount. Having regard to the facts and circumstances of the case, we direct that the said amount shall be released to the complainant No. 1, on furnishing adequate collateral security to the satisfaction of the State Commission. Amount deposited by the Indian Oil Corporation Limited will finally abide by the result of the complaint. The parties are directed to appear before the State Commission on 10.5.2010 for receiving further directions in the matter. On the request of learned counsel for the appellants in Appeals No. 274 of 2009 and 334 of 2009, we direct that the pre-requisite amount of Rs.35,000/- be refunded to these appellants. 9. The appeals stand disposed of in above terms.
......................JR.C. JAINPRESIDING MEMBER ......................ANUPAM DASGUPTAMEMBER
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