IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of August 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.83/2018 (Filed on 30/04/2018)
Complainant : Aiju.M. Lukose @ Luka Luka S/o Luka, Maniangattu House, Kalloorkulam P.O,
Kottayam – 685503.
(By Advs: Binoy Abraham &
Neethu P.B)
Vs.
Opposite parties : 1. Priyadarsini Indane Service,
Illimoola Junction,
Ayarkunnam P.O,
Kottayam – 686 564.
(By Adv: Anish Ramakrishnan)
2. Indian Oil Corporation Limited,
Kerala State Office,
Panampally Avenue,
Panampally Nagar P.O,
Kochi – 682 036.
(By Advs: Zakhier Huzzain &
A. Sunitha)
3. ICICI Lombard General Insurance
Company Limited,
Ist Floor, Trade Centre,
Shasthri Road,
Kottayam – 686 001.
(By Adv: Agi Joseph)
4. Oriental Insurance Company Limited,
Branch Office, No.I,
White House, First Floor,
Opposite Akshaya Hospital,
Kadavanthara P.O,
Ernakulam – 682 020.
(By Adv: P.C. Chacko)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under Section 12 of the Consumer Protection Act 1986.
Crux of the complaint is as follows:
The complainant is a consumer of the first and second opposite parties. The complainant is having a domestic gas connection with Consumer No.8628 with the second opposite party. The first opposite party is the distributor of the second opposite party who is delivering the gas cylinder to the complainant and also in charge of the maintenance of the connection. The third opposite party is the insurer of the second opposite party. The complainant along with his family resides in the house situated in the property having an extent of one hectare 22.026 Ares in Akalakunnam village. On 6/02/2017 at about 7:00 p.m. the wife of the complainant placed rice and water in the gas stove and ignited the gas and left the kitchen to watch TV. While the complainant and his wife heard a noise and felt smell of smoke from the kitchen. They rushed to the kitchen and noticed a fire at the place where the gas cylinder was kept. The Fire was spread and gas cylinder was bursted into two pieces and the entire house building and all the articles kept there got damaged and lost. The Fire force unit from Pala came to the spot and made control of the fire, but the building and all the household articles and other valuable things kept in the house were totally lost due to the fire. Gold ornaments and agricultural products such as pepper, rubber and coffee kept in the house were also fully lost due to fire. 40 sovereigns of gold ornaments worth Rs.8 lakhs, electrical equipments, kitchen utensils, furniture items and other household articles worth Rs.1 lakh, 500 kilogram of pepper worth Rs.2 lakhs, 500 kg of coffee worth Rs.35,000/- and 35.30 kilograms of rubber sheet worth Rs.4,000/- were destroyed. All together the complainant suffered loss of Rs.30 lakhs.
The Pallickathodu Police registered a crime as Crime No.121/17 in respect of the accident under Section 306(1)(c)(FA) of PSO. As per the report prepared by the Station Officer, Fire and Rescue Station, Pala the damages to the tune of Rs.30 lakhs was caused to the complainant due to the fire. The Village Officer of the Akalakunnam Village has also prepared a report showing the details of the damages caused to the complainant to the tune of Rs.27 lakhs. The Oversear of the Kozhuvanal Gram Panchayath prepared a detailed estimate of the damages caused to the residential building of the complainant alone, assessed as Rs.30 lakhs.
It is alleged that the fire was broke out due to the leakage of gas from the gas cylinder. It is further submitted in the complaint that though the complainant had a wooden choola in the kitchen, that was not used for cooking. It is further alleged that it is the duty of the first and second opposite parties to have periodical check-up of the regulator, gas cylinder and the other connected apparatus and rectify the defect if any is noticed. After the installation of the gas connection the first and second opposite parties never inspected the LPG connection of the complainant and checked the fittings. Due to the defect of the regulator or the cylinder the leakage of gas happened, which resulted in the fire and bursting of the gas cylinder. According to the complainant, if the first and second opposite parties made a periodical inspection of the LPG equipment and rectified the defects if any in time, the accident would not have taken place. Thus, the accident happened solely due to the negligence on the part of the first and second opposite parties. Therefore, there is a deficiency of service on the part of the first and second opposite parties and the complainant is entitled to compensate from the opposite parties for the loss suffered by him due to the deficiency in service on the part of the opposite parties. The complainant lodged a claim before the first and second opposite parties but the same was not settled. The third opposite party the insurer of the second opposite party offered a meagre sum of Rs.2 lakhs as compensation to the complainant. The non-payment of adequate compensation by the opposite parties to the complainant amounts to deficiency in service on the part of the opposite parties. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to pay a compensation of Rs.20 lakhs to the complainant with 12% interest per annum.
After the admission of the complaint, notices were duly served to the opposite parties. Additional 4th opposite party was impleaded vide order in IA 82/19. All the opposite parties appeared before the Commission and filed separate versions.
Version of the first opposite party is as follows:
The amount shown in the complaint as estimated loss is imaginary one hence it is false. The Police, Station Officer of Fire Force and Village Officer prepared the reports and assessed the loss without any bonfides and based on hearsay evidence. The first opposite party periodically checked the regulator, gas cylinder, and other equipments. The gas cylinder and the regulator had no defects at the time of accident. There is no negligence or deficiency in service on the part of the first opposite party. It is submitted in the version that the first opposite party is insured with the Oriental Insurance Company.
Version of the second opposite party is as follows:
All the Petroleum companies together took a public liability covering for a period from 2/05/2017 to 1/05/2018 with the third opposite party. The insurance company is liable to indemnity any loss if any caused to the complainant. As per the terms of the policy for loss of property the liability is limited to Rs.2,00,000/- and the complainant refused to accept the same.
The allegation that the accident had occurred due to the defect of the gas cylinder or regulator and thereby leakage of gas occurred is false. The refilled cylinder was delivered to the customer after all safety checks such as valve leak and O ring condition in the valve. The allegation that the second opposite party never inspected the LPG connection of the complainant and the fitting is false.
The design and fabrication of LPG cylinders exceeding five liter water capacity is governed by BIS specification IS 3196(Part 1). They are inspected and certified by BIS inspector strictly in conformity to the applicable standards after which they are approved by the petroleum explosives and safety organization. Besides this part of inspection before certification the cylinders were hydrostatically tested to the pressure limits of 25.00 kg/cm2. After the fitment of the valve the cylinders are pneumatically tested to the pressure of 12 Kgf/cm2. So, the cylinders are sufficiently tested for quality at the manufacturing stage itself. The filled cylinders with the correct weight were also checked for valve leak and valve joint leak and the cylinders with leakage of more than 0.5 gms/hr are segregated for evacuation. The segregation of defective cylinders is effected by electronic detectors and O ring leaked detectors at the filling loop so that non-conforming cylinders are conformed at various stages of its protection.
In this case the accident had occurred due to the negligent handling of the gas cylinder by the wife of the complainant. The statement that the complainant sustained the damages to the tune of Rs.30,00,000/- is false. The loss and damages as alleged in the complaint is not correct. The valuation of the articles and agricultural products as shown are so exorbitant. There is no deficiency in service or unfair trade practice from the side of the second opposite party.
Third opposite party filed version contending as follows:
The liability of the insurance company is only as per the terms and conditions and exception of the policy. The allegation that the estimated loss is Rs.30 lakhs due to the fire is false. Claim of the loss of 40 sovereign of gold ornaments, TV, fridge, mixer grinder, iron box, fans, wooden coats in three numbers, Almarah, table in four numbers, sofa set, kitchen utensils, furniture item, crockeries and other household articles worth Rs.1,00,000/-, 500 kg of pepper, 500 kg of coffee, 30 kg Rubber sheets are false. The accident was caused due to the negligence of the complainant and improper use of the cylinder by the complainant. The estimates shown in the FIS and FIR and in the report of the Fire Officer are on the basis of guess work. As per the terms and conditions of the insurance policy, the insurance company is liable to pay a maximum of Rs.2,00,000/- per event for property damage. The third opposite party offered the said amount, but the complainant has not given the receipt for the same. Hence, the amount cannot be disbursed to the complainant. There is no deficiency of service on the part of the third opposite party.
Crux of the version of the fourth opposite party is as follows:
The alleged incident if at all occurred was only due to the callous negligence of the complainant or his family members in handling the wooden choola, gas stove and its connected gadgets in the kitchen. There is every chance that the fire broke out from the wooden choola in the kitchen. They have not taken any care and caution in handling the gas stove and the connected equipments. If at all any damage was caused, it requires detailed evidence and thus the complainant ought to have preferred to file a suit before the regular court. It is submitted in the version that the complainant admitted that his wife gave ignition to the gas fire and left the kitchen for watching TV and thereafter they felt smell of smoke from the kitchen. It is also admitted in the complaint that the gas cylinder burst due to the fire occurred in the kitchen. How the fire occurred is not at all explained in the complaint. No fire occurred at the place where the gas cylinder or other gas equipment were kept as alleged.
The allegation that the entire house building and all articles kept their got damaged and lost in the fire are false. The averment that the complainant estimated loss of Rs.30 lakhs is false. The estimates shown in the FIS and FIR and in the report of the Fire Officer are on the basis of guess work.
There is no negligence whatsoever in the installation and the periodical service of the gas connection and other equipments by the first and second opposite parties. The fire did not break out from the leakage of gas. The fourth opposite party issued a policy in the name of the first opposite party for the period from 4/05/2016 to 3/05/2017. As per policy the public liability is limited to the tune of Rs.10 lakhs only provided the damage caused by or arising from the installation of gas filled liquefied petroleum gas cylinder in the premises of the complainant. The said liability under the policy is subject to the terms and conditions of the policy. Since the first opposite party availed another policy with the third opposite party, he is not entitled for the benefit of the policy with the fourth opposite party if at all any. There is no deficiency in service on the part of the fourth opposite party and the complainant is not entitled for Rs.20 lakhs from the 4th opposite party.
Evidence of this case consists of deposition of PW1 and Exhibits A1 to A12 from the side of the complainant. Syama. S, who is the Assistant Manager of the fourth opposite party filed proof affidavit in lieu of chief examination and marked Exhibits B1 and B1(a) from the side of the fourth opposite party. Witnesses of the second opposite party examined as DWs 1 to 3 and B2 is marked from the side of the second opposite party. Documents produced by the first opposite party and third opposite party are marked as Exhibits B3 to B5.
On evaluation of complaint, version and evidence on record we would like to consider the following points:
(1)Whether the complainant had succeeded to prove deficiency in service and unfair trade practice on the side of the opposite parties ?
(2). If so, what are the reliefs and costs?
POINTS 1 & 2 :-
The specific case of the complainant is that on 6/02/2017 at about 7:00 p.m. the wife of the complainant placed rice and water in the gas stove and ignited the gas and left the kitchen to watch TV. While the complainant and his wife heard a noise and felt smell of smoke from the kitchen, they rushed to the kitchen and noticed fire at the place where the gas cylinder was kept. The fire was spread and gas cylinder was burst into two pieces and the entire house building and all the articles kept there got damaged and lost in the fire. All together the complainant suffered loss of Rs.30 lakhs. Exhibit A1 is the gas connection book which was issued by the first opposite party. On perusal of Exhibits A1 and A2 we can see that the complainant availed a domestic gas connection of the second opposite party vide Consumer No.8628 from the first opposite party who is the dealer of the second opposite party.
On intimation given to the Pallickathodu Police Station Crime No.121/17 was registered. Exhibit A5 is the certified copy of the FIR in Crime No. 121/17. DW2 who was the Sub Inspector of Kidangoor Police Station during 2017 deposed before the Commission that he had conducted the investigation in Crime No.121/17 and filed final report. He deposed before the Commission that he had availed the assistance of police Scientific Assistant. It is deposed by DW2 during the cross examination that the Scientific Assistant in her report reported that fire accident was occurred due to the explosion of gas cylinder.
The complaint was resisted by the second opposite party stating that all the cylinders are checked to conform to the various safety norms, which are required statutorily by BIS specification IS 3196 (part-1) in conformity to the applicable standards after they are approved by the Petroleum Explosive and Safety Organization. Before certification the cylinders are hydrostatically tested to the pressure limits of 25. Kg/cm2 and after the fitment of valve the cylinders are pneumatically tested to pressure of 12Kgf/cm2. The filled cylinders with correct weight are also checked for valve leak and valve joint leak. At this stage, the valve and the ‘O’ Ring are checked through electronic detectors and O ring leak detectors. The accident had occurred due to the negligent handling of the gas cylinder by the wife of the complainant.
The Scientific Assistant who examined the scene of occurrence and issued Exhibit B2 report is examined as DW3. She deposed before the Commission that she had examined the scene of occurrence and collected samples from there for lab examination as per the request of the police. According to her on evaluating the signs and symptoms from the scene it can be understood that the fire was occurred due to the explosion of the gas cylinder. She deposed before the Commission that gas cylinder was found broken in two pieces and the larger piece having 3/4 length and smaller piece along with nossil. According to her such type of cylinder damage could have been in the gas cylinder explosion. She further deposed that the damages caused due to fire accident are clearly stated in Exhibit B2 report and damages were more prominent inside the kitchen, so that it can be assured that the kitchen is the seat of fire.
In the version the second opposite party has vaguely contended that due to the negligent handling of the gas cylinder by the wife of the complainant caused fire and consequent explosion. But there is absolutely no indication from the available evidence regarding such a cause.
National Consumer Disputes Redressal Commission in M/s. Alok Gas Agency Vs. Sanjeev Kumar Jhamb & 5 ors (first Appeal No. 111 of 2019) decided on 31/05/2019 has held under:
“23. On a pointed query from the Bench as to whether the dealer communicated the incident to IOCL and had taken any steps for conducting an enquiry into the matter, was answered in the negative. It was stated that there was no such procedure. Learned Counsel appearing for the dealer argued that as a dealer he is not in the knowledge as to whether the valve/seal was faulty or not. It is pertinent to note that even after the death of Late Smt. Nina Jhamb and 75% burns of Smt. Kanta Jhamb admittedly no enquiry was conducted by IOCL seeking reasons for the leakage of LPG cylinder, which, the Fire Department has also reported was the cause. Section 13(1)(C) of the Consumer Protection Act specifies as hereunder: -
“13(1)(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum”.
24. It is relevant and significant to mention that no steps were taken by IOCL under Section 13(1)(C). The perusal of the material on record shows that no such application was filed or any attempt was made by IOCL to ascertain the reasons for the leakage and further if there was any defect in the cylinder. At the cost of repetition, no enquiry was conducted or any report was filed. This stand taken by IOCL is deprecated. The finding of this Commission in Hindustan Petroleum Corporation Ltd. Vs. Vijayanagar Gas Agencies (supra) has attained finality and the facts and circumstances of the current case evidences that the IOCL is liable to compensate for the defective cylinder which caused the fire accident.
25. We find it a fit case to place reliance on the Marketing Discipline Guidelines, 2014 – For LPG Distributorship issued by IOCL, Bharat Petroleum and Hindustan Petroleum. The relevant portion is reproduced as hereunder: -
1.4 QUALITY / QUANTITY CONTROL MEASURES
a) Presently, for a ‘Household’ [‘Household’ as defined in
the Liquefied Petroleum Gas (Regulation of Supply and
Distribution) Order, 2000 as amended on 10 September’
2009 or as notified from time to time] domestic consumers
would be provided at subsidized rate upto 11 cylinders of
14.2 Kg in 2013-14 and upto 12 cylinders of 14.2 Kg in
2014-15 or the number of cylinders as notified from time to
time. Any cylinders beyond 11 in 2013-14 & 12 in 2014-15
or the number as notified from time to time will be given at
non-subsidized domestic rate. Non-Domestic Exempted
Category (NDEC) customers are also treated as domestic
LPG customers and allowed the supply of LPG at subsidized
rates till the cap as is applicable to domestic LPG customers.
b) 100% cylinders should be visually inspected for dents and
cuts on the body of cylinders and such damaged cylinders
should be segregated and returned to bottling plant.
Similarly, the cylinders which are due for Statutory Testing
should also be segregated and returned to the Bottling Plant.
c) All the cylinders taken out for delivery should be checked
for correctness of net weight on the platform type weighing
scale prescribed in the Legal Metrology (Packaged
Commodities) Rules, 2011 as amended from time to time.
Cylinders that have net weight beyond permissible limit
prescribed in the Legal Metrology (Packaged Commodities)
Rules, 2011 as amended from time to time should be
segregated and returned to concerned Bottling Plant.
d) Cylinder with correct net weight only should be taken out
for delivery to the customers.
e) While delivering the filled LPG cylinder to the customer,
distributor staff should verify the address of the customer.
In each and every case, the delivery man of the distributor
should carry weighing equipment and deliver the cylinder
after demonstrating weight to the customer or his
representative.
f) Distributor to ensure that in each and every case, the
delivery man carries weighing equipment and the cylinder is
delivered to the customer after demonstrating weight in
his/her presence.
g) The delivery man should also show the seal on the
cylinder and open the seal of the cylinder with permission
of customer to check the valve leakage and ‘O’ ring leakage.
h) The delivery man should take permission of customer to
demonstrate the soundness of cylinder by connecting it
with the Gas stove.
i) The delivery man should ensure to make proper entries of
all the relevant information in the Domestic Gas Consumer
Card (DGCC) regarding the refill supplies made to the
respective customers.
j) Cash Memos should carry the message “Get cylinder
checked for weight and leakage at the time of delivery”
and till such time the cash memos do not carry the above
message, distributor to ensure that the above message is
prominently stamped on the customer’s copy of cash memos.
k) Cylinder with any defect should be brought back to the
godown. Only sound cylinders should be delivered to the
customers.
l) Distributor to maintain record of defective cylinders
returned from customer. Distributors should return these
cylinders to concerned LPG Bottling Plants after
certification by the respective OMC Officer.
m) Delivery boy should convey and deliver any message /
instruction to the customer relating to LPG marketing as
intimated from time to time.
1.5 OBSERVANCE OF STATUTORY AND OTHER REGULATIONS
i) All statutory rules and regulations in connection with
storage and sale of petroleum products must be followed
and implemented.
ii) To observe rules and regulations of the Department of
Explosives.
iii) Distributor will not buy, sell or exchange domestic
Pressure Regulators / LPG Cylinders / petroleum products
with any other Distributor or anybody other than the
principal Oil Company unless authorized by the concerned
Oil Company in writing.
iv) Distributor to maintain files wherein all Inspection
Reports, correspondence received from Oil Company
from time to time, copies of invoices etc., are available
at the distributorship for ready reference.
26. In the light of the afore-stated Marketing Discipline Guidelines 2014 – For LPG Distributorship, we hold that the dealer has supplied the defective gas cylinder and cannot shirk his responsibility by contending that the complainant should be more vigilant and ensure that the cylinder has the company seal and safety cap is fixed perfectly. In fact, the guidelines specify that the cylinder should be checked by the dealer thoroughly prior to delivery. Hence, the contention of the Learned Counsel for the dealer that only IOCL is liable, cannot be sustained.
27. For all the afore-noted reasons we hold both the IOCL and the dealer liable. As regarding the submission that it is a principal-to-principal basis and, therefore, IOCL should not be made liable for the acts of the dealer, we hold that as the material on record evidences that the blast was caused by a manufacturing defect in the cylinder, IOCL is principally liable. Needless to add, there is no documentary evidence brought on record that there was any remote contributory negligence on behalf of the consumer. Being the manufacturer, the onus shifts to IOCL to conduct an enquiry and report on the defect, if any or cause of the blast, which has not been done and, therefore, the submission of IOCL that there was no report of manufacturing defect, cannot be accepted.”
National Consumer Disputes Redressal Commission in Mrs. Madhuri Govilkar, Widow Of ... Vs. Hindustan Petroleum ... on 3 October, 2006 (IV (2006) CPJ 338 NC) held that
”26. In the present case, once we arrive at the conclusion that the gas cylinder was having manufacturing defect, the manufacturer is liable and this does not require any further consideration. In the case of Jose Philip Mampillil Vs. Premier Automobiles Ltd. and Anr., the Apex Court, for the manufacturing defect, held the manufacture and dealer jointly and severally liable.
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29. Further, the words defect and deficiency are given meaning under Section 2(1) (g)and (f) respectively under the Consumer Protection Act, 1986. If there is imperfection or shortcoming in the quality, which is required to be maintained, it would be defective goods and there would be deficiency in service. The relevant clauses (f) and (g) of Sub-section (1) of Section 2 are as under:
(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;
(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;
30. In the present case, after lighting the gas, the cylinder was found burning all around in the periphery of the bottom lip of the regulator with a dense yellow flame. This would certainly be a manufacturing defect. Hence, there is apparent deficiency in manufacturing of the LPG cylinder. It was not only imperfect but shortcoming in the quality which is required to be maintained for the safety of the consumers.”
Based on the available evidence and above discussion we hold that the fire accident was occurred due to the default happened at the time of manufacturing of the gas cylinder by the second opposite party and they are liable to compensate the damages sustained in the fire accident.
DW1 who is the Assistant Engineer of Kooroppada Grama Panchayath deposed before the Commission that she had issued Exhibit A9. In A9 report she reported that the building has been constructed by laterite masonry, partly R.C.C. roof and partly M.P. tiled roof and A.C. sheet and the total plinth area of the building was 145.47 square meter. In Exhibit A9, PW1 reported that the building was fully damaged and not usable for residential purpose.
Exhibit A6 is the occurrence report prepared by the Fire Station Officer, Pala in connection with the accident. In Exhibit A6 it is reported that due to the incident the house was fully damaged and house hold articles and utensils like, TV, fridge, furniture and rubber sheet, coffee, and pepper which were kept in the house were also damaged and the complainant had sustained a loss of Rs.30,00,000/-. Exhibit A7 is the enquiry report prepared by the Akalakunnam Village Officer to forward the application of the complainant for the reliefs from the Chief Minister’s Disaster Relief Fund. In Exhibit A7(a) the Village Officer reported that the damages to the house as Rs.20,00,000/- and the damages caused to the utensils and house hold articles to the tune of Rs.5 lakhs and the damages sustained by the complainant due to the loss of coffee, rubber and pepper as Rs.2,00,000/-. The Village Officer did not report the damages due to the loss of gold ornaments. Therefore, it is evident that the complainant has sustained damages for an amount of Rs.27,00,000/- due to the fire accident.
The third opposite party admitted that the second opposite party has availed a public liability insurance policy from the third opposite party for the period from 02/05/2013 to 01/05/2014. But as per B5 policy the limit of liability in respect of third-party property damage whilst the accident occurred in the registered customers premises is limited to Rs.2,00,000/- per event and nothing more. The third opposite party vide Exhibit A11 offered the said amount to the complainant and the complainant refused to accept the said amount and informed the same to the third opposite party through Exhibit A12 letter. The insurance company is not bound to pay any amount than the sum assured to the complainant. Therefore, we hold that there is no deficiency in service on the part of the third opposite party.
The fourth opposite party admits that they have issued Exhibit B1 policy in the name of the first opposite party for the period from 4/05/2016 to 3/05/2017 and as per the policy the public liability is limited to Rs.10,00,000/. As per clause VIA of Ext.B1(a) policy condition, damages caused by or arising from the installation of gas filled liquefied petroleum gas cylinder whilst the accident occurred at the customer’s premises is covered. But as per the clause “description of the property covered under policy the public liability, the maximum payable is Rs.10,00,000/-“. We already found that the second opposite party did not take any steps to prove that the accident was not occurred due to any defect in the gas cylinder. Similarly, though the fourth opposite party also contended that the fire accident occurred due to the negligence of the wife of the complainant but they did not adduce any evidence to prove the same. They even did not appoint a surveyor to assess the nature and quantum of the loss sustained to the complainant. Without making any attempt to find the cause of fire and to assess the nature and quantum of damages they vaguely put forward a contention that there is negligence on complainant’s wife. Therefore, we hold that act of the fourth opposite party in not allowing insured amount for the damages to the complainant which was undertook by them vide Exhibit B1 contract of insurance amount to inadequacy, imperfection in service which is to be maintained by a service provider of insurance and amounts to define in service on part of the fourth opposite party.
Though the insurance is availed from the third and fourth opposite parties, second opposite party being the manufacturer of the gas cylinder would have been liable to pay the compensation to the damages sustained by the complainant. B1 and B2 are contract of insurance between the first opposite party and the fourth opposite party and the second and third opposite parties shift this liability to the insurance companies, but only to the extent it is provided by the contract and nothing more. As per the relevant clause in Ext.B1 the liability of the fourth opposite party is limited to Rs.10,00,000/- and as per Exhibit B5 the liability of the third opposite party is limited to Rs.2,00,000/-. The liability to pay the balance amount of compensation is on second opposite party. It is proved by Exhibit A11 that the third opposite party offered Rs.2 lakhs to the complainant as the insured sum. Thus, we hold that there is no deficiency in service on the part of the third opposite party. However, the complainant is entitled to the same amount being the beneficiary of the Exhibit B5 policy.
In the result, the we find deficiency in service on the part of second and fourth opposite parties.
(1) We hereby direct the third opposite party to pay Rs. 2,00,000/- (Rupees Two Lakhs only) to the complainant within 30 days from the date receipt of copy of this order.
(2) We hereby direct the fourth opposite party to pay Rs.10,00,000/- (Rupees Ten Lakhs only) to the complainant with 9% interest per annum from 30/04/2018 i.e., the date on which this complaint is filed till realization.
(3) We hereby direct the second opposite party to pay Rs.8,00,000/- (Rupees Eight Lakhs only) to the complainant with 9% interest from 30/04/2018 i.e., the date on which the complaint is filed till realization.
Pronounced in the Open Commission on this the 24th day of August, 2023
Sri.Manulal.V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Witness from the side of the Complainant:
PW1 - Aiju.M.Lukose
Witness from the side of Opposite Parties :
DW1 - Radhamoni K.N
DW2 - Jose V.C
DW3 - Aswathy.T.Das
Exhibits from the side of the Complainant :
A1 - Copy of Gas Connection Book with Consumer No.2628
A2 - Copy of gas connection paper issued by the 2nd opposite
party
A3 - Copy of Land Tax Receipt dated 29/11/2017
A3(a) - Copy of Land Tax receipt dated 17/02/2018
A4 - Copy of Cash receipt dated 30/12/2016 issued by
the Secretary, Akalakunnam Grama Panchayath
A5 - Copy of FIR in Crime No.121/2017 of Pallickathodu
Police Station
A6 - Copy of Fire Report No.55/17 dated 06/02/2017
of Station Officer, Fire Force, Pala
A7 &) - Copy of Enquiry Report dated 29/03/2017 prepared
A7(a) by Village Officer, Akalakunnam to forward the
application of the complainant for the reliefs from
the Chief Minister’s Disaster Relief Fund
A8 - Copy of Plan & Estimate of the damaged house of
the complainant prepared by the Oversear,
Kozhuvanal Grama Panchayath
A9 - Copy of Certificate dated 20/02/2017 issued by
the Assistant Engineer, Akalakunnam Grama Panchayath
A10 - Advertisement showing the picture of the damaged house
of complainant in the Malayala Manorama dated 08/02/2017
A11 - Copy of Discharge Voucher dated 08/05/2017 issued
by the 3rd opposite party
A12 - Copy of letter dated 19/05/2017 issued by the complainant
to the 3rd opposite party
Exhibits from the side of Opposite parties :
B1 - Policy issued by the 4th opposite party to the
1st opposite party
B1(a) - Copy of Policy Conditions
B2 - Copy of case diary of Crime No.121/2017 before the
Pallickathodu Police Station
B3 - Copy of Affidavit filed by the complainant to the
2nd opposite party
B4 - Copy of complainant’s letter dated 08/02/2017
Addressed to the 1st opposite party
B5 - Copy of Policy Schedule issued by the 3rd opposite party
By Order,
Sd/-
Assistant Registrar
