National Consumer Disputes Redressal
Mrs. Madhuri Govilkar, Widow Of Late ... vs Hindustan Petroleum Corporation, ... on 3 October, 2006
Equivalent citations: IV(2006)CPJ338(NC)
ORDER
M.B. Shah, J. (President)
1. This complaint is made against M/s. Hindustan Petroleum Corporation (Opposite Party No. 1) and M/s.Pelicon Gas Agency (Opposite Party No. 2), alleging deficiency in service in supplying a defective LPG cylinder to the Complainants. It is contended that there was leakage of gas after refixing the regulator. The gas leakage was such that there was no peculiar smell which is conspicuous when the gas is being emitted or leaked. When the gas stove was sought to be lit by lighter by Shri Suresh Kumar Govilkar, husband of the Complainant No. 1, the emitted gas and the cylinder caught fire which spread all throughout resulting in the death of Shri Suresh Kumar Govilkarkar. Hence this complaint is filed by his wife, his son and his daughter, claiming a compensation of Rs. 25,62,500/-, and also award of interest on the amount from the date of the notice dated 31st October, 1995.
2. It is pointed out that Shri Suresh Kumar Govilkar was a consumer of LPG manufactured by the Opposite Party No. 1 and was registered with the dealer Respondent No. 2. The LPG cylinder for usage was supplied at the residence of the Complainants, namely, 204, Pocket-D, Mayur Vihar, Delhi. On 26.8.1995 the LPG cylinder which was in use was exhausted and Shri Suresh Kumar Govilkarkar replaced the empty cylinder with a spare cylinder which was supplied by Respondent No. 2 for a consideration on 12.8.1995 (which had been earlier booked on 3.8.1995). While the regulator was being fitted to the replaced cylinder Shri Govilkar and the Complainant No. 1 heard some sound which was greater than the usual sound. Thereafter, the regulator was fixed. It is also pointed out that at the relevant time there was no peculiar smell which is conspicuous when the gas is emitted or when there is leakage of gas. When Govilkar started lighting the gas for preparation of tea, there was fire and within no time the fire spread. Shri Govilkar caught fire and raised alarm was raised. Thereafter, fire was brought under control with the help of certain people. But, the cylinder was still burning in the kitchen. It is contended that the cylinder was found burning all around the periphery of the bottom lip of the regulator with a dense yellow flame of approximately 9 inches in length and this could be only because of the defect in the cylinder. Information was given to the Police and Shri Govilkar was taken to hospital where he expired on 30.8.1995.
3. It is contended that: (i) Shri Govilkar died as a result of fire caused by defective gas cylinder supplied on 12.8.1995; (ii) by letter dated 30.8.1995 Opposite Party No. 2 informed the National Insurance Company Ltd. (Opposite Party No. 3) that an accident had occurred and Shri Govilkar had suffered serious burn injuries. It was specifically stated in the said letter that LPG Cylinder caught fire and that insurance taken by the agency covers such an accident. Therefore, it was requested to process the said matter; (iii) Again, by letter dated 31.8.1995 the gas agency informed the Manager of the Insurance Company that due to accident on 26.8.1995 Shri Govilkar had expired on 31.8.1995. It was specifically stated therein that the said letter was written for information and that the insurance claim would be lodged shortly; (iv) on 31.8.1995 the Insurance Company informed the gas agency that the nature of the claim due to LPG accident was covered by the policy, and, requested the gas agency to appraise the Insurance Company of any such monetary claim being lodged with them. However, in the said letter it is mentioned: You are advised not to make any admission of compensation without our prior consent.
4. Thereafter, on 8.11.1986 the gas agency received a notice from the wife of Govilkar and that notice was also forwarded to the Insurance Company.
5. On 5.2.1996, the Insurance Company informed the gas agency that the matter was referred to higher office for compensation.
Submissions:
6. From the aforesaid facts it is contended that there is no dispute with regard to accidental burning of the cylinder and that the cylinder caught fire was also not disputed. It is further contended that Shri Govilkar had only replaced the regulator before lighting the gas and at that time unfortunate accident took place. At no point of time the Opposite Parties have stated that cylinder was not defective or was in proper order. Hence, on the basis of maxim res ipsa loquitur compensation should be awarded, as held by the Apex Court in Shyam Sunder and Ors. v. The State of Rajasthan .
7. For quantum, it is pointed out that Shri Govilkar was a highly qualified Engineer and was working as an Assistant Director in the office of the Director General, Civil Aviation, New Delhi and had worked at various places. He lost his life at the age of 47 years and at that time he was drawing salary of Rs. 10,500/- p.m. He was also on the approved list of the United Nations Voluntary and International Civil Aviation Organisation as Technical Expert and was accepting an assignment shortly. In a modest estimate he could have earned, at least, US $ 1 lakh or Rs. 35,00,000/- and in any case, US$20,000 p.a. from various assignments, after his retirement. It is prayed that compensation for a sum of Rs. 25,62,500/- be awarded.
Defence/Submissions of the Opposite Party No1:
(Hindustan Petroleum Corporation)
8. It is contended by the Opposite Party No. 1 that:
(i) Clause No. 17 of the dealership agreement clearly provides that the dealer shall act as principal and not as an agent and shall be responsible in respect of all contracts or engagements entered into by him with the customers for sale of LPG and/or matters therewith. The dealership agreement entered into between the Opposite Party Nos.1 and 2 is on principle to principle basis and hence the Opposite Party No. 2 is liable and responsible for his acts of omission and commission, if any, and that, therefore, no liability could be fastened on the Opposite Party No. 1. The Opposite Party No. 1, in support of its case, placed reliance on the judgement of the Supreme Court in the case of Indian Oil Corporation v. Consumer Protection Council, Kerala and Anr. and the judgment of this Commission in the case of Flame Gas Service, Bikaner and Ors. v. Aklesh Kumar Bansal and Ors. 1 (1995) CPJ 78 (NC);
(ii) the Opposite Party No. 2 had taken insurance policy from the National Insurance Co. Ltd. for the period 27.5.1995 to 26.5.1996 covering the entire process of distribution of LPG contained in cylinders and that the said insurance policy was in force on the date of the accident in question and that the liability, if any was that of the Insurance Co. alone. The Opposite Party No. 2 had informed the Insurance Co. about the said accident and the death of husband of the Complainant No. 1 vide letters dated 30.8.1995 and 31.8.1995 respectively;
(iii) if at all there had been any leakage from the gas cylinder, the entire kitchen would have been filled with LP Gas and the deceased would have smelt the LP Gas because LP Gas has a strong and special odor to distinguish or notice leakage of gas.
(iv) the gas cylinder was supplied by the gas agency on 12.8.1995 and no defect was observed and no complaint was made till 26.8.1995. Therefore, it shows that the cylinder was in sound and safe condition. It is pointed out that the Complainant No. 1 has admitted that she cautioned and stopped her husband, Shri Govilkar from replacing the cylinder on hearing some unusual sound when he was fixing the regulator. In such cases, clear instructions are given to the consumers of LPG that in case of doubt of leakage or defect in the cylinder or regulator, information should be given to Opposite Party No. 1 or the gas agency immediately and not to use the cylinder. Clause No. 5 of the subscription voucher states the consumers shall not attempt to repair the equipment or cause or permit anyone other than the corporation to do the same and shall permit the dealer to remove the equipment for repairs. Similar instructions have also been provided on the safety card and consumer card advising the consumer not to repair gas cylinder or the regulator. Despite the caution, the deceased, Govilkar, tried to repair and fixed the regulator. It was his fault, and, therefore, it cannot be held that the accident which occurred on 26.8.1995 was due to negligence or deficiency in service on the part of the Opposite Parties.
(v) In any case, it is the liability of the Insurance Company, as the gas agency has taken an insurance policy and that the gas agency has informed the Insurance Company accordingly. The relationship between Opposite Party No. 1 and the gas agency is that of principal to principal and not as an agent.
Defence/Submissions of the Opposite Party No. 2 (M/s. Pelican Gas Agency):
9. The stand taken by the Opposite Party No. 2 in its defence is more or less the same as that of the Opposite Party No. 1. The Opposite Party No. 2 has refuted the allegation of the Complainants t the cylinder was defective. It is the contention of the Opposite Party No. 2 that the deceased Govilkar had personally come to its office and godown and insisted for replacement of the empty cylinder saying that he had booked his demand on 3.8.95 and was expecting his running cylinder to be exhausted any time. Then, the deceased was allowed to take the LPG Cylinder. Before taking the delivery on 12.8.1995, he had checked the cylinder by removing the seal at the said godown, found it to be in perfect condition, and collected the cylinder. This fact is substantiated by charging only Rs. 91.30 from the deceased as against the home delivery cost of Rs. 93.80 by giving a discount of Rs. 2.50 towards the delivery charges. A photo copy of the receipt is produced on record.
10. It is contended by the Opposite Party No. 2 that the Complainant No. 1 has given inconsistent version with regard to the replacement of the gas cylinder and non-emission of peculiar smell of the gas.
Submissions of the Opposite Party No. 3(National Insurance Company Ltd.)
11. During the pendency of the complaint, at the request of the Complainants, the National Insurance Company was impleaded by this Commission vide order dated 28th January, 2003. It was contended by the Insurance Company that no relief has been claimed against it and rightly so as there is no privity of contract between the Complainants and the Insurance Company. The contract of insurance is between the Opposite Party No. 2 and the Insurance Company subject to the terms and conditions, exclusions and limits of liability as embodied in the policy of insurance.
Findings
12. From the facts stated above, there is no dispute that: (i) late Shri Govilkar was a consumer of LPG manufactured by Opposite Party No. 1 and was registered with the dealer (Opposite Party No. 2) of the Opposite Party No. 1; (ii) the LPG cylinder was supplied to the Complainants on 12.8.1995; (iii) on 26.8.1995, when the deceased Govilkar started lighting the gas for preparing tea, the moment the lighter was lit , there was a fire and within no time the fire started spreading. Govilkar was in the kitchen and he was caught by the fire. Subsequently he expired. The cylinder was burning all around the periphery of the bottom lip of the regulator with dense yellow flame of approximately nine inches in length. Govilkar expired on 30th August, 1995 in Lok Nayak Jaiprakash Narain Hospital.
13. From the aforesaid facts, it is contended that there cannot be any doubt with regard to the defect in the gas cylinder supplied to the deceased Govilkar.
14. Further, the Opposite Parties have not brought anything on record to establish that the gas cylinder was not defective in any other manner/respect or that the accident has not occurred the way in which it is contended by the Complainants.
15. From the facts stated above, it is apparent that no other inference other than that of negligence or supply of defective cylinder on the part of the Opposite Parties can be drawn. For this purpose, reliance rightly is placed on the principles of maxim res ipsa loquitur and the following discussion thereof in the case of Shyam Sunder and Ors. v. The State of Rajasthan :
14. Alternatively, in those instances where the defendant is unable to explain the accident, it is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm.
15. Res ipsa loquitur is an immensely important vehicle for importing strict liability into negligence cases. In practice, there are many cases where res ipsa loquitur is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular cause of the injury was not associated with negligence on his part. Industrial and traffic accidents and injuries caused by defective merchandise are so frequently of this type that the theoretical limitations of the maxim are quite overshadowed by its practical significance. Millner : Negligence in Modern Law 92.
16. Further the Complainants have established that the gas cylinder caught fire and this aspect is not disputed by the Opposite Parties. This establishes beyond doubt that the gas cylinder was defective.
17. However, on the basis of the say of the complainants, the Opposite Parties contended that at the time of replacement of the regulator, Complainant No. 1 heard some sound which was greater than the usual sound when the regulator is replaced. Therefore, it was the duty of the deceased Govilkar not to replace the regulator without calling some person from the office of the dealer i.e. the Opposite Party No. 2. In our view, there is nothing on record to suggest that the so-called unusual sound was alarming in such a way that a person like the deceased who was himself an engineer would think of calling a person from the office of the dealer for fixing a regulator of gas cylinder.
18. Secondly, it has been pointed out by the Complainants that there was no peculiar smell which was conspicuous in case of leakage of gas from the cylinder. In such a case, it cannot be said that the deceased Govilkar ought to have called for a person from the office of the dealer for verification of the gas cylinder.
19. In this case, there is no question of applying Clause No. 5 of the Subscription Voucher because Mr. Govilkar never attempted to repair the gas cylinder. He has merely refixed the regulator before lighting the gas and the unfortunate accident took place. Hence, the contention of the Opposite Parties with regard to application of Clause 5 of the Subscription Voucher is without any substance.
20. Further, the Opposite Party No. 2 Gas Agency has accepted the fact that there was accidental fire at the house of the customer and the customer has sustained serious burn injuries and the accident was covered under the Insurance policy. That letter dated 30th August, 1995 is produced on record.... The next day i.e. on 31st August, 1995, the Insurance Company was informed about the death of Govilkar.
21. Surprisingly, the Insurance Company informed the Gas Agency on 31st August, 1995 that we acknowledge the receipt of your letter dated 30/8/95 informing us the accidental details (26.8.95) . The above mishap would be covered under Section X Legal Liabilities of your LPG policy Thereafter, it is stated Also keep us informed about any Monetary Claims lodged on you. You are also advised not to make any admission of compensation without our prior consent.
22. In our view, this shows a typical negative approach on the part of the officers of the Insurance Company and such type of preparation of false defence increases the litigation in this country. In any case, such defence on the part of the Nationalised Insurance Company is totally unjustifiable.
23. Thereafter, the gas Agency informed the Insurance Company about the legal notice received by it. To that, the officers of the Insurance Company informed that the matter was referred to higher office and on hearing from them they would decide.
24. From the aforesaid discussion, it is apparent that the gas cylinder supplied by the Opposite Party No. 2 was defective, and, therefore, the Opposite Party No. 2 would be liable to compensate the Complainants for the loss suffered by them due to the death of Shri Govilkar, husband of Complainant No. 1 and father of the rest of the Complainants.
25. The next question is, weather the Opposite Party No. 1, M/s. Hindustan Petroleum Corporation would be liable to compensate the Complainant?
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 v. Premier Automobiles Ltd. and Anr. , the Apex Court, for the manufacturing defect, held the manufacture and dealer jointly and severally liable.
27. However, in view of the dealership agreement between Opposite Parties No. 1 and No. 2, the question would be weather the Complainants are entitled to recover it from Opposite Party No. 1?
28. Even if Complainants are not directly entitled to recover it from the Opposite Party No. 1, Opposite Party No. 2 is entitled to recover the same from the Opposite Party No. 1.
29. Further, the words defect and deficiency are given meaning under Section 2(1) (g) & (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 flames. 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.
31. Further, the learned Counsel for the Opposite Party No. 1 quoted the decision of the Apex Court in the case of Indian Oil Corporation v. Consumer Protection Council, Kerala and Anr. . In the said case, the allegation was against the dealer who committed various irregularities and in that set of circumstances, the Court observed that for the said irregularities and in view of the dealership agreement, the manufacturer would not be liable. That is not the case here.
Quantum:
32. In the present case, there is no dispute with regard to the income of the deceased. It is pointed out that his salary was Rs. 10,500/- per month. He was a highly qualified Engineer and was working as Assistant Director in the office of the Director General, Civil Aviation, New Delhi. He was also on the approved list of the United Nations Voluntary and International Civil Aviation Organization as a technical expert. If we take his yearly income, it would be Rs. 1,26,000/- (10,500 x 12). Presuming that he was spending 1/3rd for himself, his family was depending on his remaining 2/3rd income i.e. Rs. 84,000/-. Considering his age as 47 and his future prospects, and the remaining years of service, applying the multiplier of 12, the complainants are entitled to recover Rs. 10,08,000/- from the Opposite Party Nos.1 and 2. It would be open to the Opposite Party No. 2 to recover the sum assured from the Insurance Company-Opposite Party No. 3.
33. In the result, the Complaint is allowed. Opposite Party Nos. 1 and 2 are liable to pay the amount of Rs. 10,08,000/- jointly and severally with interest at the rate of 9% p.a. Opposite Party No. 1 and 2 are directed to pay the said amount within eight weeks from the date of the order. It would be open to the Opposite Party No. 2, M/s. Pelicon Gas Agency, to recover the sum assured from the Respondent No. 3, Insurance Company, with interest at the rate of 9% p.a. The Opposite Parties No. 1 and 2 are also directed to pay costs to the Complainants quantified at Rs. 5,000/-.