IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

            Saturday,  the 30^th   day of  July, 2022.

                              Filed on: 16.03.2020

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt.P.R Sholy, B.A.L, LLB (Member)
3.                                                         

                                           CC/No.78/2020

                                                         Between

Complainants:-                                          Opposite parties:-

1. Sri.Shibu. C.,                                           1.        M/s.Nenco Gas Service,

    S/o.Chellappan,                                            Mannancherry P.O.,

    Pokkalayil,                                                   Alappuzha-688538.

   Avalookkunnu P.O.,                                     (Rep by its Manager)               

   South Aryad, Alappuzha – 688 006.

                                                                2.     H.P.Gass, LPG  RO,

2. Smt.Rejimol,                                               HPCL,  Seaport Airport Road,

    W/o Shibu,                                                 Irumpanam, Ernakulam-682 309

• do  -            -  do -                             (Rep.by its  Regional Manager)                                                                  

(Rep  by Adv.Sri.V.Pramod)               3.        Addl.3. Manager,

                                                          ICICI Lombard General Insrurance

                                                           Co.Ltd., 401& 402, 4^th Floor

                                                          Interface 11, New linking Road,

                                                           Malad West, Mumbai- 400 064.

                                                           (Addl.3^rd O.P.impleded as per order in

                                                             I.A.No.235/21 Dt.24.9.2021)

                                                          (O.P1 rep by Adv. Sri.G.Harikumar,

                                                          O.P2 rep by Advs.M/s.Menon & Pai and

                                                          Addl.O.P.3 rep.by adv.Sri.C.Muraleedharan)

                                    OR D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

 Complaint filed u/s 12 of the Consumer Protection Act, 1986

1. Material averments briefly stated are as follows:-

Complainants are husband and wife and they are residing at Pokkalayil house  Avalookkunnu.P.O, South Aryad.  They are the beneficiaries of Kerala Govt. Life Mission Housing Scheme. For the purposes of reconstructing  their old house complainants  shifted their residence and house hold articles and other materials to the rented building  on the north western property. On 5/11/2018 1^st complainant had taken house no. 215 /XIV of Aryad South Grama panchayath owned by one Ramani by executing rent deed agreeing  to pay an amount of Rs.1,500/- as rent.

2.       1^st complainant is working in a private company and the 2^nd complainant is working in a coir society at Kommady, Alappuzha. Complainant and their two children were living in the said house  and by 9.AM every morning  the  Children go to school and rest  go to work and  they would return to home at about 5 ‘0 clock in the evening.

3.       2^nd opposite party is HP gas providing LPG gas connection for its customers through 1^st opposite party agency.  2^nd complainant had taken a house hold  LPG connection of 2^nd opposite party from the  1^st opposite party gas agency. Opposite parties 1 and 2 provide LPG cylinder with regulator and gas stove with its connection tube for the use of the complainant for the house hold purposes. While shifting their residents to the rented house very near to the property of the complainants LPG cylinder along with  stove and accessories were shifted to rented house. 

4.       2^nd complainant is the consumer of the opposite parties 1 and 2. For taking the said connection complainant had remitted  an amount of Rs.5,500/- with the 1^st opposite party as directed by the 2^nd opposite party.

5.       On 29/1/2019 at about 3.45PM while the complainants were at  the work site  they got information that their rented house was on fire from the  defective gas cylinder. Immediately they rushed  to the spot and tried to extinguish the fire but the entire house was damaged. The fire came out from the defective gas cylinder. Entire house hold articles like TV, phone, fan, gas stove and cylinder, fridge, music player, pumpset etc. were gutted.   Complainants had kept liquid cash of Rs.2lakhs in their Almirah for meeting the expenses for construction of their house. But it also got fire.  Complainant had sustained  a loss of Rs.4,07,510/-  for the household articles and  they had spend Rs.1 lakh for the  re-construction of the rented house.  Opposite parties are liable to compensate the said loss sustained to the complainants due to the fire from their defective gas cylinder, stove and its connection equipments.

6.       Complainants had reported the matter to the Alappuzha North Police  and it was recorded in the GD dtd.  29/1/2019. Kerala Fire and Rescue Service also prepared  a report regarding the  occurrence of fire.

7.       Complainants had reported the above accident to the opposite  parties and their valuator came to the spot and a detailed report was prepared.  As per the  direction of the letter dtd. 27/3/2019 issued from the  LPG claims, complainants had  sent translated list of damaged articles, fire report and other details to the opposite parties.  Even now they did not pay any amount.   By selling a defective product falsely representing and making the complainant  believing the same as a good one, opposite parties have committed unfair trade practice, negligence and deficiency of service. Complainants sustained heavy financial loss and mental agony and other irreparable  injuries and hardships.  Complainants are claiming an amount  of Rs.5 lakhs along with interest from the opposite parties. As per order in IA . 232/2021 dtd. 24/9/2021 the  Manager, ICICI Lombard  General Insurance Co. Ltd. was impleaded as additional 3^rd opposite party

8.       1^st opposite party filed a version mainly contenting as follows:-

 This opposite party is not a necessary party to the complainant..  This opposite party is only a provider of gas connection under the 2^nd opposite party.  Entire consumers  under the 2^nd opposite party and their service connections are legally insured by the 2^nd opposite party with  the ICICI Lombard General Insurance company ltd. Mumbai. Thus the 2^nd opposite party  is holding a valid policy under the above insurer for all the  claims arising out of and during the user of gas connection. 

9.       This opposite party had provided service connection to the 2^nd complainant. The description of house hold articles are false.  The gas stove and gas cylinder provided to the 2^nd complainant were strong and uncompromising quality.   The gas cylinder  should have been exploded due to  the  fire broke out  at the house.  No gas cylinder which is kept idle shall explode  all of  a sudden.   It is alleged that  the fire was broke out  in the afternoon at 3.40.PM.  The  fire should have been broke out at the house due to some other reasons such as electrical short circuit etc.  Allegation that Rs. 2 lakhs in cash was kept inside the house and it was lost due to fire  is false and imaginary.   Complainant had never sustained loss of Rs. 4,07,510/- for the house hold articles.  Complainants are not entitled to  recover Rs. 5 lakhs from this opposite party and hence the complaint maybe dismissed with cost.

10.     2^nd opposite party filed a version mainly contenting as follows:-

 The complaint is based on vague and baseless assumptions of the complainant.  The complaint is not  maintainable and  there is no act amounting  to  negligence, deficiency of service or unfair trade practice.   This complaint  ought to be rejected for non joinder of necessary parties.  HPCL had insured all LPG complainants under  a policy  through M/s ICICI Lombard General Insurance.  The process of verifying the claim and  releasing compensation amount to the complainant is done by the Insurance agency.  Therefore,  the insurance agency is a necessary party.   Complainant had failed to demonstrate as to what  services were offered and / or provided, as well as this opposite  party is service provider under the act. 

11.     Authorized distributors are appointed on principal to principal basis and the  gas cylinders are sold on Principal to Principal basis to distributors across the country. The  averment that the complainants are the beneficiaries of Kerala Govt. Life Mission Housing Scheme and for the purpose of reconstructing their old house, they shifted to a rented building  and on  5/11/2018  complainants had taken a house for 1,500/- as rent  is not known to this opposite party.

12.     The connection is taken in the address “Pokkalayil, Avalookkunnu.P.O, Mannanchery.P.O, Alappey.  The averment that while shifting their residence   LPG  cylinder along with stove and  accessories were shifted to the rented house is not known to this opposite party.   The subscription voucher issued to the customers contained the specific clause that the  consumer shall not remove the equipment  to any address other than that shown in the subscription voucher without obtaining the prior written permission of the corporations dealer.   In this case 2^nd complainant  have not informed  this  opposite party regarding any shifting of the gas cylinder and therefore the cylinder has been shifted  without  the permission of this opposite party, then it  amounts to violation of the subscription policy.   The averments  that  complainants had kept liquid cash of Rs. 2 lakh in their almirah and it was totally damaged  is incorrect, baseless and hence denied.  The averment that the complainant sustained a loss of Rs. 4,07,510/- and they have spend Rs.1 lakh for reconstruction is also incorrect.  Complainants are  not entitled to realize any amount from this opposite party and hence the complaint may be dismissed with cost.

 13.    Additional 3^rd opposite party filed a version mainly contenting as follows:-

 There is  absolutely no deficiency in service on the part of this opposite party. The claim of the complainant was entertained, surveyor deputed and  perused the documents and as per the  report of the surveyor the fire occurred due to external sources and not  due to LPG leakage. Hence the claim was repudiated.  Since there is no question of any deficiency in service the complaint is not maintainable.   This opposite party issued a policy to the HPCL for the period from 2/5/2018 to 1/5/2019 for the injury or damage  in accordance with the law  of the country awarded by the court of law in connection with accident  arising and related to leakage of LPG. As per Sec. 11(c) Property damage maximum Rs. 2lakh per event at authorized customer’s registered premises.  In this case the  fire occurred not in the registered premises of the customer.  The surveyor  met the complainant and as per  the statement of the complainants they were not  present in the   premises at the time of fire and there were two gas cylinders  at the time that  one of IOC and another one of HPCL.  The HPCL cylinder was received on 18/12/2018 and was being used from 27/1/2018 without any issue and noticed any type of leakage of smell of gas noted any time.    As per the  report of the HPCL officer the cylinders were subjected to external fire or heat.  Hence this  opposite party repudiated the claim. 

14.     The amount claimed is exorbitant and without any basis. The  fire report of Fire Force is only an average of Rs.1,50,000/-.   There is no merit and bonafides in the complaint and  hence the complaint may be dismissed with compensatory cost.

15.     On the above pleadings following points were raised for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties as alleged in the complaint?

2.  Whether the  complainants are entitled to realize an amount of Rs. 5 lakhs along with interest from the opposite parties as prayed for?

3. Reliefs and costs.?

16.     Evidence in this case consists of the oral evidence of PW1 to 5 and Ext.A1 to  A8 from the side of the complainants and the oral evidence of RW1  and 2 and Exts.B1 to B9 from the side of the opposite parties.

17.     Points No. 1 and 2:

PW1  is the  2^nd complainant. She filed an affidavit in tune with the complaint and marked Ext.A1 to A7.

18.     PW2  filed an affidavit stating that  she is a neighbor of the complainants. During January 2019 at about 3.30.PM  there was smell of gas leakage and on enquiry it was revealed that the smell is coming from the house of the complainants.  Thereafter there was smoke and fire.  She informed the matter to PW1 over phone.   The fire occurred due to leakage of gas cylinder.

19.     PW3 filed an affidavit stating that  he is familiar with the complainants. Since a house was allotted under the life mission project in the name of Rejimol, they shifted   their residence.  Rejimol had collected an amount of Rs. 2lakhs   as loan from him.   It was given on 27/1/2019 for doing the  initial work of the house.  In the fire occurred in the  house the entire amount was burned.

20.     PW4 is working as  Sub Inspector of Police at Alappuzha North Police Station.   He  produced the GD entry dtd. 29/1/2019 and it is marked as Ext.A8. The rentered house of PW1  caught fire. Since there was no casualty  crime was not registered.

21.     PW5 was working as Station Officer at Fire and Rescue office.  On getting information they had reached the complainants house on 29/1/2019 Ext.A2 report was prepared by him.   He could not say whether the fire occurred due to gas cylinder explosion.  

22.     RW1  is the proprietor of 1^st opposite party. He filed an affidavit in tune with the version.

23.     RW2  is the authorized representative of 2^nd opposite party. He filed an affidavit in tune with the version and marked Ext.B1 to B4. Ext.B5 to B9 were marked from the side of 2^nd opposite party.

24.     PW1, the 2^nd  complainant  had availed  a LPG connection from the 2^nd opposite party M/s Hindusthan Petroleum  Co. Ltd. through the 1^st opposite party M/s Nenco Gas Service , Mannanchery.   Complainant were allotted a house under the Life Mission Scheme by the Govt. of Kerala and on account of the same they had temporarily shifted  their residence to the adjacent house which was taken on rent.  The gas connection was also shifted to the new residence.  On account of employment complainants were out of the house and their children had gone to the school. On 21/1/2019 at about 3.45.PM a fire occurred  at the house. The matter was immediately informed to PW2 over phone and she came there. The entire house was gutted and the articles including cash worth Rs.2 lakhs stored in an almirah were lost. The matter was informed to the police and the fire force.  According to PW1, the 2^nd complainant they  lost articles  worth more than  5 lakhs including cash.   Though the matter was informed to the 2^nd opposite party  through the 1^st opposite party, after assessing the incident and survey the claim was repudiated. Hence the complaint is filed for realizing an amount of Rs.5lakhs along with interest. 1^st opposite party filed a version admitting the issuance of LPG connection.  However according to them the insurance company is a necessary party since all the consumers are insured with M/s ICICI Lombard General Insurance Co. Ltd.  According to them the incident has not occurred as narrated in the complaint and it may occur only due to pressure from outside.   Hence according to them the complaint is only to be dismissed.   2^nd opposite party filed a detailed version  denying the allegations in the complaint.  They also denied the allegation  that the fire occurred from the LPG cylinder.  On the basis of contention raised in the version filed by 1^st opposite party the insurance company was impleaded  as additional 3^rd opposite party.  They admitted that M/s HPCL had  taken a policy  for the period from 2/5/2018 to 1/5/2019. However the maximum  amount which can be allotted for property damage is only Rs. 2 lakhs. They  also denied the accident as alleged in the complaint.  2^nd complainant got examined as PW1 and marked Ext.A1 to A7.   Four witnesses were examined as PW2 to 5  and  Ext.A8 was also marked.  1^st opposite party was examined as RW1 and the Area Sales Manager of the 2^nd opposite party was examined as RW2 and Ext.B1 to B4 were marked.  Ext.B5 to B9 were also  marked.

25.     Relying upon the  oral  evidence of PW1 to 5 coupled with Ext.A1 to A8 documents the learned counsel appearing for the complainant pointed out that the complaint is proved as per  law and so the complainants are entitled to get the compensation as claimed. Per contra the contentions raised by opposite parties 1 to 3 are twofold. First it was contented that without permission of the  1^st opposite party the connection was shifted from the original residence to a nearby residence and so there was shifting of premises where the connection was given.  Secondly it was contented that the accident was not occurred as  alleged in the complaint.  Relying upon the evidence of RW2 it was pointed out that at the time of accident  nobody was in the house.  For explosion of a gas cylinder  there should be external  rise in the temperature,  which is called Boiling Liquid Expanding Vapour Explosion (BLEVE).  Since there is no evidence on record to show that there was  explosion from the gas cylinder, complainants are not entitled for any compensation.

26.     The first contention raised is that there was shifting of residence  without informing to the 1^st opposite party.  Admittedly the connection was given to the residence of the complainants  which is known as Pokkalayil House.   According to PW1 they shifted their residence since a new house were allotted to them under the Life Mission Scheme of the  Govt. of Kerala. Ext.A7 is a certificate issued by the Secretary Aryad Grama Panchayath showing that a new house was allotted to PW1 under the Life Housing Scheme and it was completed during July 2020. Ext.A5  is a rent deed executed by 1^st complainant with one Ramani on 5/11/2018. It will show that  they  had shifted  their residence on account of construction in their property.  It has come out in evidence that the cylinder was delivered just one week before the incident. Ext.A5 shows that they had shifted the residence on 5/11/2018. The explosion took place on 29/1/2019. Since the cylinder was issued about one week prior to the incident, it  can be seen that 1^st opposite party and their delivery boys were aware about the shifting of residence and the new cylinder was delivered at their new residence.  PW2 stated that shifting of residence was informed to the 1^st opposite party. However she could not produce any document to prove the same.  Since new cylinder was delivered at the rented house the contention of opposite parties that the shifting of residence was without their consent and knowledge  appears to be not correct.

27.     Secondly it was contented that the gas cylinder will not explode as such and there should be some external pressure.   Admittedly the house was locked and he complainants had gone for work. Their children had gone to school. PW2 is the neighbour of the complainant. Her evidence will show that she is residing just 6 meters away from the  place of occurrence.  According to her  at about 3.30 PM on the date of occurrence there was smell of gas and she   watched the premises and found that the smell is coming from the house of PW1.  The matter was immediately informed to PW1 and she reached within 10 minutes. It was  also informed to the fire force. Within 10 minutes an explosion occurred and entire  house was gutted.   PW4  was Sub Inspector  of North Police Station Alappuzha. Ext.A8 is the GD entry showing that an explosion took place  at the house of the complainants,  on 29/1/2019. Since there was no casualty crime was not registered. PW5 was the fire officer of Alappuzha fire station. His  evidence also shows that on 29/1/2019 a fire occurrence occurred at the house of complainants and Ext.A2  report was prepared.   As per Ext.A2 report the loss assessed is about 2 ,50,000/-.  Ext.A6 photo graph also shows that the entire house and the  articles  there in were gutted.  So from the evidence on record it is crystal clear that the fire occurred at the house of  complainants and the  entire articles were lost.

28.     According to opposite parties fire can only occur from an external source and  leakage of gas will not amount of explosion.  From the  side of additional 3^rd opposite party Ext.B5 to B8 were marked.  Ext.B5 to B8 were marked subject to proof. Ext.B6 is  LPG accident report which is seen prepared by one Mr. Dheeraj Murali.  Ext.B6 is the LPG accident report  seen prepared by one Mr. Gopakumar Balakrishnan.  Ext.B7 is a final survey report seen prepared by one Mr. Yogesh Gandhi.  Ext.B8 is the repudiation letter dtd. 21/9/2021. According to complainants Ext.B8 repudiation letter was not communicated to them. Ext.B5,B6 and B7 are marked  subject to proof.  The persons who prepared Ext.B5, B6 and B7 were not examined for the best  reason known to the additional 3^rd opposite party.   As held by the Hon’ble High Court in M/s PRS Hosptial Killipalam, Thiruvananthapuram Vs.P Anil Kumar (2020 0 Supreme (Ker) 883)

By the mere marking of a document, it does not become admissible in evidence.  Further, the marking of a document and being admissible in evidence, will still not render the contents of a document as proved.  When a document, admissible in evidence, is marked, still to be relied upon by the courts, its contents will have to be proved.  For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it.  It is thereafter the last stage ie, evaluation takes place.  Evaluation of the document is a judicial exercise.  Unless all these stages are done, a court of law cannot rely upon any document produced or marked before it.

29.     Since the persons who prepared Ext.B5 to B7 were not examined it cannot be taken into evidence. So though opposite parties contented that the explosion cannot take place without external pressure there is no evidence on record to prove the same. However the fact that there was gas leakage immediately before the explosion is proved by the  evidence of PW1 and 2.  The evidence of PW5 fire officer will show that at the premises there was remnants of    gas cylinder. Since immediately before the explosion  there was  smell of gas leakage it can be concluded that the fire occurred due to leakage of gas and so opposite parties are liable to compensate the  complainants for the loss. 

30.     According to PW1 an amount of Rs. 2lakh which was borrowed from PW3 was kept in the house and it was also lost in the fire. But there is no evidence on record except the  testimony of PW3 to prove the same. According to PW3 records are available from where he got the amount but for  the best reason known to him he has not produced the same.  So the contention that Rs.2 lakhs  borrowed from PW3 was also lost in the fire cannot be taken into account without  satisfactory evidence. However from Ext.A2 fire occurrence report it can be seen that articles worth Rs.2,50,000/- were lost.   Ext.B4 is the policy schedule issued by the  additional 3^rd opposite party. From Ext.B4 it is seen that as per Sec.2(c)  for property damage  the maximum amount allowable is Rs.2 lakh per event at authorized customers registered premises.  We have already found that though the  fire occurred at the adjacent property complainant  has to shift their residence on account of the  new construction in their registered premises. Since the LPG cylinder was delivered at the house were the fire occurred  it can be considered at the registered premises of the customer.   As per Ext.B4 policy complainants are entitled for an amount of Rs.2 lakhs.  As held by the Hon’ble Supreme Court in OM Prakash  Vs. Reliance General Insurance and Anr. on 4/10/2017   in Civil Appeal No. 15611 of 2017.

  “Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy –holders in the insurance industry.   It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction.  This laudable object should not be forgotten while considering the claims made under the Act.”

 Hence these points are found accordingly. 

31.     Point No. 3:-

In the result, complaint is allowed in part.

a) PW1, the 2^nd complainant  is allowed to  realize an amount of Rs.2,00,000(Rupees Two lakhs only) along with interest @ of 9% per annum from 21/9/2021 (Ext.B8 repudiation) till realization  from additional 3^rd opposite party.

b) Complainants are allowed to realize an amount ofRs.3000/- as cost from the opposite parties.

The order shall be complied within one month from the date of receipt of this order

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 30^th    day of July, 2022.                                        

                                                       Sd/- Sri.S.SanthoshKumar(President)

               Sd/-Smt.C.K.Lekhamma (Member)

Appendix:-Evidence of the complainant:-

PW1                         -     Rejimol ( 2^nd Complainant)

PW2                        -     Akshara  (Friend of  complainants)

PW3                        -     Vikraman (    -  do  -)

PW4                        -     Nidhin Roy, S.I.,Alappuzha North Police Station)

PW5                        -     M.A.Johnichan (Station Officer, Fire & Rescue)

Ext.A1                      -    Letter to the Tahsildar from the S.I.of Police Alappuzha North.       

Ext.A2                     -     Report of the Station Officer, Fire Force Kerala

Ext.A3                      -     e-mail letter from Proclaim Insurance Surveyors  and Loss   

                                       Assessors Pvt. Ltd. to Nenco Gas Service.

Ext.A4                      -     Letter to the Tahsildar from the S.I.of Police Alappuzha North 

Ext.A5                     -     Rent Agreement

Ext.A6                     -     Photograph

Ext.A7                     -     Certificate issued by the Secretary, Aryad Grama Panchayat.

Ext.A8                     -     Copy of G.D.of  Alappuzha Northpolice station

Evidence of the opposite parties:-                   

RW1                         -     P.D.Ramesh, Proprietor, Nenco Gas Services

RW2                         -     Sanal Kumar M.A.(, Authorised Representative of O.P2)

Ext.B1                      -     Certificate issued to Sanal Kumara M.A. by the Deputy

                                        General Manager  Kochi,  LPG RO.

Ext.B2                      -      e-mail message from Manager Marketing & CSC Kochi LPG RO        

Ext.B3                      -     Consumer Information Portal

Ext.B4                      -     Copy of Policy and conditions.

Ext.B5                      -     Copy of LPG Accident Report – Format A

Ext.B6                      -     Copy of LPG Accident Report – Format B

Ext.B7                      -     Final Survey Report

Ext.B8                       -    Letter of Repudiation

Ext.B9(by consent) -    Agreement.

//True Copy ///

To       

            Complainant/Oppo. party/S.F.

                                                                                                                           By Order

                                                                                                                    Assistant Registrar

Typed by:- Br/-

Compared by:-