State Consumer Disputes Redressal Commission
Uttam Atarthy And Ors vs Indian Oil Corporation Limited on 20 January, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- 35/O/2002 DATE OF FILING : 16.05.2002 DATE OF FINAL ORDER: 20.01.2011 COMPLAINANTS : i) Uttam Atarthy, S/o Bimal Kumar Atarthy, Bindu Bhawan, Ramkrishna Pally, Gurudwara Road, P.S. - Durgapur-13, District- Burdwan. ii) Smt. Archana Atarthy, W/o Late Gautam Kumar Atarthy, Bindu Bhawan, Ramkrishna Pally, Gurudwara Road, P.S. - Durgapur-13, District- - Burdwan. iii) Smt. Parna Atarthy, W/o Uttam Atarthy, Bindu Bhawan, Ramkrishna Pally, Gurudwara Road, P.S. - Durgapur-13, District- Burdwan. iv) Gaurav Kumar Atarthy, S/o Late Gautam Kumar Atarthy, Being represented by his natural guardian mother, Smt. Archana Atarthy, Bindu Bhawan, Ramkrishna Pally, Gurudwara Road, P.S. - Durgapur-13, District- Burdwan. v) Ritam Atarthy, Minor Son of Late Gautam Kumar Atarthy, Represented by his natural guardian mother, Smt. Archana Atarthy, Bindu Bhawan, Ramkrishna Pally, Gurudwara Road, P.S. - Durgapur, District- Burdwan. vi) Sohan Atarthy, Minor Son of Uttam Atarthy, Being represented by his natural guardian father, Uttam Atarthym, Bindu Bhawan, Ramkrishnapally, Gurudwara Road, P.S.- Durgapur-13, District- Burdwan. vii) Rakhi Bhadani, W/o Surendra Bhadani, C/o Uttam Atarthy, Bindu Bhawan,Ramkrishna Pally, Gurudwara Road, P.S. - Durgapur, District- Burdwan. viii) Puja Kumari, Minor deceased daughter of Surendor Bhadani, Being represented by her father Surendra Bhadani, Surendor Bhadani and Rakhi Bhadani are residing C/O, Uttam Atarthy at Bindu Bhawan, Ramkrishna Pally, Gurudwara Road, P.S. - Durgapur, District- Burdwan. OPPOSITE PARTIES : i) Indian Oil Corporation Limited, Service through its Secretary, G-9, Ali Yavar Jang Marg, Bandra ( East), Mumbai- 400 051. ii) General Manager, Indian Oil Corporation, Eastern Region, 2, Gariahat Road (South), Calcutta- 700 068. iii) Deputy General Manager, Indian Oil Corporation, Eastern Region , 2, Gariahat Road, Calcutta- 700 068. iv) Area Manager, Indian Oil Corporation, City Centre, Durgapur-16, P.S- Durgapur, District- Burdwan. iv) A) Manager, Indane Bottling Plant, Indian Oil Corporation , Lenin Sarani, P.S.- Coke Oven, Durgapur, District- Burdwan. v) Sri Arup Mondal, Proprietor of Kitchen Mate L.P.G . Gas Distributor, B- Zone, Durgapur-5, P.S- Durgapur, District- Burdwan. BEFORE HONBLE JUSTICE : Mr. Prabir Kumar Samanta, President. HONBLE MEMBER : Smt. Silpi Majumder. HONBLE MEMBER : Sri Shankar Coari. FOR THE COMPLAINANTS : Sri. Ajay Debnath, Advocate. FOR THE OPPOSITE PARTIES : (OP-1-4) Sri. Manabendra Singh Yadav, Advocate. (OP-5) Sri. Barun. Prosad, Advocate. Silpi Majumder, Member
This complaint has been preferred by the Complainants against the OPs alleging defective goods supplied by the Indian Oil Corporation through its dealer claimed to the extent of Rs.16,80,000/- towards compensation from the OPs.
The brief fact of the case of this complaint is that Complainant no 1, 3, & 6 are the residents of the given address and Complainants 7 and 8 are the dependents of the Complainants no-1 also resided at the same premises at the material point of time. The elder brother of the Complainant namely Goutam Kumar Atarthy, since deceased and his family members i.e. Complainants nos- 2, 4,& 5 were staying at the said address along with the Complainant no-1. The Indian Oil Corporation deals in the business of sell of liquid petroleum gas commonly known as cooking gas through its own net work of distributor/ agent. In 1984 the Complainant no 1 got allotment and thereby became a consumer of LPG supplied by the IOC upon payment of all requisite charges under consumer no- 9264 and at that point of time he was attached to the then local distributor of the IOC namely S.K. Trading , Benachity, Durgapur. The Complainant no-1 got allotment of double cylinder in the year 1991 from the IOC under the self same distributor. But subsequently, the said distributorship was cancelled and the consumers were diverted to the other distributors namely the OP no 5 herein. The Complainant no 1 became attached to the OP no 5 who upon perusal of the relevant documents gave him a booking slip books. The OP-5 initially distributed gas cylinder to the intending consumers of the Complainants locality twice in a week. On prescribed days truck loaded with gas cylinder were placed near the chamber of commerce building and the customer could get delivery on the spot payment to the OP no 5 or his agent. Subsequently, it was advertised through local cable net work that there would be several extension counter for distribution of LPG of IOC. The Complainant had his nearest extension counter of Kitchen Mate was at Gurudawara Road. During the Complainants attachment with the OP no-5Kitchen Mate only on a few occasions the booking slips had to be used, otherwise it had all along been casual affairs to deposit empty cylinder and to get filled up cylinder upon payment of the entire consideration money on spot without any necessity of prior booking. No cash memo was also issued by the OP no-5 and / or his agent against receipt of cost of gas filled up cylinder. The distribution net work as described herein above was running openly with displaying signboard through extension counters and in this respect advertisement was given through the cable net work and it was well within the knowledge of all concerned including the officers of IOC. On 23.03.2001 in the morning the Complainant -1 got delivery of one refilled gas cylinder through the above mentioned distribution system upon payment of requisite charges. The serial no of the cylinder was 490452T, Batch no-9812. At about 8 a.m. in the said morning the Complainant no-5 in order to connect the said cylinder with the gas oven through the relevant pipe removed the lid of the gas cylinder. But surprisingly as soon as the outer lid of safety cock of the said cylinder was removed, huge quantity of gas started coming out from the cylinder in a zet. The Complainant nos-5 screamed out of fear and being attracted by such screamed almost every person present in the house in that particular moment rushed to the kitchen. The Complainant ones elder brother, his sons, their dependent along with her fourteen months old daughter in her lap came to the kitchen. The Complaints wife was already there. Gas was still coming out from the nozzle and the Complainants no ones elder brother somehow managed to replace the external lead and thereby leakage of gas was somehow checked. The elder brother came out from the kitchen after replacing the lead and attempted to close the door of the kitchen. At that point of time a huge quantity of gas already came out and somehow it was ignited and took a shape of a big ball of fire. Such fire destroyed the kitchen door with big blasting and moved toward the open windows and due to such fire the family members got burn injury.
The local people thereafter rushed to the spot and all burnt persons were immediately shifted to the Durgapur main hospital. The person had no sense to say anything at that particular point of time. The local people simply guessed what could had happened and on that basis reported the cause of injury to the hospital authority/ doctor. In Durgapur hospital there was no special arrangement to treat the burnt peasant and for better and specialized treatment the six injured peasants (elder brother of the Complainant no 1, Complainants no. 3,5,6,7 and the Complainant no sevens daughter) were shifted to Kolklata in separate ambulances accompanied with the doctor and attendant in a night at 26.03.2001. Three of them namely the elder brother of the Complainant no 1, Sawan Atarthy and Ritam Atarthy were admitted in the SSKM hospital and other three were admitted in Medical College and Hospital . Thereafter Goutam Atarthy, the elder brother of the Complainant no-1 and minor Puja Complainant no 1 (viii) expired on 10.04.2001 and 04.04.2001 at SSKM Hospital and Medical College hospital respectively. As it was inconvenient to attempt the patients in two different hospitals the surviving patient lying admitted in Kolkata Medical College and Hospital was transferred to SSKM hospital. The Surviving patients namely Sriparna Atarthy, Ritam Atarthy, Soham Atarthy, Rakhi Vadani took time for recovery and ultimately there were discharged from SSKM hospital, however the care and treatment is still continuing. On the fateful date i.e. 23.03.2001 Gourav Kumar Atarthy, son of Goutam Kr Atarthy reported the incident to Durgapur police station where in Durgapur Police Station made a G.D. Entry being no. 1183, dated 23.03.2001. On 26.03.2001 representation was made to the G.M., IOC eastern region. It was also made by Gourave Kr Atarthy that he had committed a mistake in recording the serial no and batch no of the relevant gas cylinder as 490432 and 2812 instead and in place of 490452 and 2412. Such mistake had carried over to a few other representation and documents also. In connection with the said G.D. entry police has ceased the said cylinder on 23.03.2001 from the kitchen room of the Complainant such ceaser has subsequently tag with the Durgapur P.S case no 185/2001 u/s 287 /339/304A /405 /4009/120 of IPC . In connection with the said Durgapur P.S case the said gas cylinder was examined by the foreign sick science laboratory and Dr. D. Marjit of the said laboratory has opined that the nozzle valve of the said cylinder was defective for which LPG gas came out under heavy pressure.
From the said facts and circumstances it is evident that the OPs failed to keep the quality and standard of their goods which is required to be kept in a container of highly inflammable LPG and there had been fault and in perfection therein. The Complianant-1 is a consumer of LPG against valid payment of due consideration money and for the said defect in the product to live met with an immature death and also the Complainant no-1 had to incur huge expenses towards medical treatment. The details of the expenses incurred by the Complainant are given in the schedule. Therefore, according to the Complainant the OPs are liable either jointly or severally to compensate the Complainants. It is stated that the Complainant no-1 has made all the expenses from his own fund and upon taking personal loans from his friends and well wishers. Apart from the said expenses the Complainant no-1 himself and every other Complainants have suffered tremendous mental pressure and agony along with personal sufferings as a direct consequence of said defective cylinder and so they are entitled to be compensated. The deceased Goutam Kr Atarthy was an employee Durgapur Projects Ltd and his salary was Rs.6,000/- p.m. he had his wife and the son dependent upon him who do not have any other source of income and at the time of death Goutam was aged about only 46 years. He had still 14 years of service left. Due to his death his wife and his son have suffered irreparable loss.
The said cylinder was examined by the team of expert from foreign sick science laboratory, kolkata and after the said examination the Assistant Director, Forensic Science Laboratory, Government of West Bengal passed a report declaring that the said cylinder was defective stating inter alia or examination of the cylinder it was found that nozzle valve of the question cylinder was defective and LPG came out uniformed of zet under heavy pressure from the mouth of said cylinder which caused fire. It is stated by the Complainants that the OPs had not followed the guideline of the Bureau of Indian Standard in respect of the gas cylinder and its defective nozzle valve and for this reasons they are reasonable for the unfortunate reasons happened in the case of the Complainants. The OPs were negligent to examine or test of the said gas cylinder and without having any proper examination of the same the cylinder was marketed and the Complainants became the unfortunate victims due to the negligent attitude of the OPs. Due to such deficiency in service and defective goods the Complainants filed this complaint against the OPs as the Ops did not pay any heed to pay compensation as well as the cost of the expenses as borne out for the unfortunate incident occurred due to defective nozzle valve of the LPG gas cylinder of the OPs. Filing this complaint the Complainants have prayed for direction upon the OPs to pay compensation due to such inaction to the Complainants.
The petition of complaint has been resisted by the OP nos I to IV (A) by filing written objection wherein all the allegations has been denied by the said OPs. It is stated in the W.O. that the Complainant no-1 got LPG gas connection in the year 1984 from IOC through M/s S.K. Trading, Benachity who was the then LPG distributor for that area but subsequently gas cylinder was served through M/s Kitchen MetOP no-5. The Kitchen Met used to distribute LPG refill cylinder from the chamber of commerce building. The distributor also made home delivery of refill gas cylinder on request of the consumers. There was no provision of giving advertisement through cable net work that there would be several extension counters for distribution of LPG cylinders and these cylinders were also sold against proper cash memo issued by the distributors Refill booking to the Indane consumers have never been discontinued by any distributor and the refilled cylinders were delivered at there respective residents against proper booking. It is stated by the OPs that extension counters were opened only to facilitate refill booking/home delivery for the consumers but no advertisement was given for extension counters through any media including local cable net work. The OPs denied that the distributors sold the disputed gas cylinder without any cash memo as the sell of filled LPG gas cylinder against cash memo is mandatory. The OPs cannot take any responsibility if the consumers procrured any gas cylinder otherwise than from the authorized dealer and without any cash memo from them. The OPs have further denied that the disputed gas cylinder was purchased from distribution centre of the OP no-5. The OPs have denied that the accident occurred due to any negligence of the OPs or due to supply of defective cylinder as alleged. The distributor of OP no 1 got in touched with the fire brigade service who after inspection of the site reported that there was no damage to any property and the LPG equipments were in sound condition. According to the OPs the allegation made in the complaint petition must be proved by producing cogent documents but in the complaint petition no cogent document has been annexed by the Complainants in support of their allegation and hence, the complaint petition should not be allowed and pray for dismissal of the complaint with cost.
The OP no 5 filed separate written version against the petition of complaint wherein it is stated that the complaint petition is liable to be dismissed on the ground that all the Complainants instituted this case jointly without obtaining any permission from this Commission as per Section 12 (1)(c ) of the Consumer Protection Act 1986. It has been contended by the OP 5 that all the Complainants are not consumers of the OP-5 and as there was no such consumer relationship with the Complainants except Complainant no-1 the Complaint should be dismissed in respect of the other Complainants and is not maintainable also. The answering OP no 5 did not commit any deficiency in-service and the Complainants did not make out any specific allegation against the OP no-1 and thus the OP-5 has prayed for expunge its name from the Complaint petition. The OP no 5 has mentioned that it had no knowledge about the relationship of the Complainant no 1 to 8 with it and whether they were residing in the said premises at the material point of time and thus the Complainants are to prove their allegations through documentary evidence. The OP no 5 has submitted that Complainant no-1 being a consumer of IOC, the OP-5 issued one booking slip for booking of each and every gas cylinder as per demand. This OP used to allot and distribute gas cylinders as per availability and demand of its customer and as per their requisition, but the OP -5 has denied the facts that on prescribed days truck load of gas cylinders were placed near the chamber of commerce building and any customer could get delivery on spot payment through the OP no 5 or its agent. The OP -5 has further denied that advertisement was given through local cable channel that there would be several extension counter for distribution of LPG of IOC and as the Complainant no-1 had his nearest extension counter of Kitchen Met at Gurudawara road, the Complainant got the delivery of his LPG from that counter . It has been further denied that the Complainant-1 used to deposit empty cylinder and get filed up cylinder upon payment of entire consideration money on spot without any necessity to prior booking and no cash memo was also issued by the OP -5 or its agent against receipt of cost of gas cylinder. Hence, the allegations made by the Complainants that the OP no 5 was running its business openly with the signboard by displaying extension counters and giving advertisement through local cable network has no legs to stand upon. According to the OP no 5 the allegations made by the Complainants in the petition of complaint is totally misconceived and the Complainants have failed to prove their allegations by adducing cogent documents, the petition of complaint is liable to be dismissed against OP no 5 with cost and moreover as no specific allegation has been made against the OP no 5 by the Complainants in the complaint the Complainants are not entitled to get any amount towards compensation from it.
The Complainants as well as the OPs filed evidence on affidavit, cross examinations was made, and both parties filed their respective brief notes of arguments.
On careful perusal of the entire records and several documents and hearing the arguments as advanced by the parties it is seen by us at the very outset that the instant complainant has been filed by eight consumers. The OP-5 has alleged that the Complainants did not get any permission from this Commission at the time of filing of this complaint as per specific direction of the consumer protection Act. We have noticed that as per section 12 (1) (c) of the Consumer Protection Act one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested. In the case in hand we have noticed that no such formal permission has been taken from this Commission at the time of filing of this complaint and admittedly the Complainants filed this petition of complaint against the OP-5 having the same interest. So it is clear that the Complainants have violated the specific direction as made in the consumer protection Act, 1986. Admittedly the Complainant no-1 is the consumer of the OP no I to IV (A)Indian Oil Corporation in respect of receipt of filled up gas cylinders aginst payment of consideration money on prior booking. The OP no 5 is a dealer of IOC from where the Complainant no-1 used to get the LPG gas cylinder upon prior booking. It is also an admitted fact while the Complainant-1 became the consumer of IOC in 1984 at that time he was attached to the local distributor of the IOC namely S.K. Trading, Benachaty, Durgapur and his consumer number was 9264 . It is also an admitted fact that in 1991 he got the facility of double cylinder from the IOC under the self same distributor as well as self same consumer number but subsequently due to some reasons the distributorship of the said distributor was cancelled by IOC and the consumers of S.K. Trading distributor were transferred to the distributorship of the OP no 5-M/s Kitchen met and the Complainant no-1 became attached with the OP no 5 for getting LPG gas cylinder. The case of the Complainant is that due to defective gas cylinder supplied by IOC through OP no 5 an accident occurred on 23.03.2001 and due to such accident most of the family members got burn injury and due to such injury two family members ultimately died and others got discharge after prolonged treatment. In this treatment complainant no-1 incurred huge expenses and for this reason he claimed compensation from the OPs due to loss of two lives as well as cost of the medical treatment as incurred in respect of the other injured patients but as the OPs refused to pay any compensation, the Complainants have approached before this Commission praying for direction upon the OPs to pay compensation to the Complainants due to defective goods supplied by IOC through OP no 5. In this respect we are to say that admittedly two family members of the Complainant no-1 died due to burn injury. In the petition of complaint it is stated by the Complainants that the elder brother of the Complainant no-1 late Goutam Kumar Atarthy died due to burn injury at the age of 46 years, who was an employee of Durgapur Projects Ltd and his salary was of Rs.6,000/- per month at the material point of time, but the Complainants have failed to adduce any such documents in support of their contentions. It is stated in page -5 para IV of the complaint petition that on 23.03.2001 the Complainants got one cylinder serial no 490452-T, batch no- 9812 in the morning. At about 8 A.M. the Complainant no-5 in order to connect the said cylinder with the gas oven through the relevant pipe removed the lid of the gas cylinder, but surprisingly as soon as the outer lid or safety cock of the said gas cylinder was removed, huge quantity of gas started coming out from the cylinder in a zet. In this context we are to say that where the Complainant no-1 demanded that all the Complainants were residing at the said address at the material point of time, it is curious to us that the minor son of late Goutam Kumar Atarthy was sent to the Kitchen to connect the said cylinder with the gas over through the relevant pipe such story cannot be believable to any prudent person while the senior persons were present in the said residence at that point of time which has been revealed from the description of the complaint petition that in para-IV of page-5 of the complaint petition wherein it is stated that the Complaint no-5 screamed out of fear and being attracted by such scream almost every person present in the house in that particular moment rushed to the kitchen. In our daily life no prudent person used to engage any minor to connect the gas cylinder with the gas pipe in the kitchen. Therefore, such story has no legs to stand upon.
In page-6 para-vi of the complaint petition it is stated that all burnt persons were immediately taken to Durgapur Main Hospital ..as there was no special arrangement to treat the burnt cases, for better and specialized treatment all the six injured patients were shifted to Kolkata. In this respect we have noticed from the documents as annexed by the Complainants along with their evidence on affidavit that the complaint no-1 took discharged from the said Durgapur Hospital on his own risk without doctors permission and there is no evidence that no specialists in the specific field was in the said Hospital to provide treatment towards the burnt patients. Next, the Complainants have failed to file any document that the alleged cylinder was taken from the OP no 5 upon payment of consideration money. Therefore, it is not possible for us to say that the OP no 5 delivered the said cylinder in question to the Complainant no-1. The Complainants have admitted that booking slip was issued by the OP no-5 while he transferred from S.K. Trading to M/s Kitchen Met, but the said cylinder was not purchased against any booking slip through prior booing and the Complainants have also failed to submit any money receipt in respect of such purchase of LPG gas cylinder from the OP no 5. It is stated by the Complainants that at that material point of time the OP-5 distributed gas cylinder to the intending consumers twice in a week and truck load of gas cylinder were placed near the chamber of commerce building and any customer could get delivery on spot payment to the OP no 5 or his agent. Subsequently, advertisement was given through electronic media that there would be several extensions counter for distribution of LPG of IOC and accordingly the Complainant no-1 got the said alleged cylinder on spot payment without making any prior booking. In this respect the Complainants have failed to adduce any order of the IOC or the Kitchen Met that for the time being or due to some local problem the gas cylinder would be delivered through extension counter and it would be delivered on spot payment without prior booking. Without such notice it cannot be accepted that without booking properly the OP -5 sold the gas cylinder openly through extension counter. Admittedly such selling of LPG gas cylinders of IOC in the open market without any booking is an example of unfair trade practice, but in the instant case the Complainants have failed to show us any cogent evidence in support of their allegation that the OP-5 was selling LPG gas cylinders of IOC to the intending consumers on spot payments without any prior booking. But it is an admitted fact the Complainant no-1 is a consumer of Indian Oil Corporation under Consumer number of 9264. The serial number of the alleged cylinder which he purchased was 490452-T, batch no 9812 and it is well settled that the said cylinder was the property of Indian Oil Corporation and admittedly, the gas was started coming out from the cylinder in a zet in huge quantity and fire broke out and due to such fire some family members of the Complainant no-1 got burnt injury and subsequently, two of them died. From the report given by the Assistant Director, Forensic Science Laboratory , Government of West Bengal, it is evident that on examination of the cylinder it was found that nozzle valve of the questioned cylinder was defective and LPG came out inform of zet under heavy pressure from the cylinder mouth which caused fire. Based on such expert report it can be said that as the said cylinder is the property of the IOC, the IOC is liable to pay compensation due to such unfortunate incident even two family members of the Complainant no-1 died. In respect of payment of compensation the OP no 5 has no role as firstly, there is no specific allegation made by the Complainants in the petition for complaint in respect of deficiency in-service or defective goods and secondly, no evidence has been adduced by the Complainants that the said cylinder was delivered by the OP no 5 to the Complainant no 1 against any prior booking and payment of consideration money. For the sake of argument if we hold that the Complainant no 1 purchased the said cylinder from the open market through an unfair means i.e. without prior booking and may be against more consideration money, in such case also the IOC cannot bypass its responsibility as the IOC is indulging such unfair business in the open market making scarcity in proper channel. We direct the IOC not to sell any gas cylinder in the open market without proper booking adopting unfair means and such unfair trade practice should be stopped immediately. In the instant case the IOC cannot avoid its liability as the Complainant no- 1 purchased the said cylinder in question from the market on spot payment without proper booking and not through the distributor but as the cylinder is the property of the IOC the IOC is liable to pay compensation to the Complainants due to such unfortunate incident and the expert report has revealed that due to defective cylinder fire broke out at the residence of the Complainants.
Going by the foregoing discussion hence, it is ordered, that the OP nos- I to IV(A) shall pay a sum of Rs.2,00,000/- to the Complainants as compensation and the said OPs (I-IVA) shall pay litigation cost of Rs.10,000/- to the Complainants. The said OPs are further directed to pay the above mentioned cost and compensation to the Complainants within 60 days from the date of this order, failing which the said sum shall carry interest @ 10% p.a. for the default period. The complaint be allowed with cost against the OP no 1 to IVA on contest and dismissed against the OP no 5 on contest.
Silpi Majumder Shankar Coari Justice Prabir Kumar Samanta (Member) (Member) (President)