State Consumer Disputes Redressal Commission
Harish Arya vs Ahmedabad Co Op Development Stores on 30 December, 2010
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION GUJ STATE, AH1\/LEDABAD. Complaint No.5 of 2007 1. Master Dhiraj Rjajesh Hukmatani 2. Kum.Sona Rajesh Hukmatani Through their Guardian Harish Omprakash Arya B/402 Regency Tower Near Management Enclave Vastrapur Ahmedabad. .... .. Complainants Versus 1. Ahmedabad fCo.OperatiVe Department Stores Ltd._, Having its office at Apna Bazar, Multistoried Building Lal Darwaja Ahmedabad 380 001. 2. Indian Oil Corporation Having its office at Sikhar Tower Mithakhali Six Roads Naranpura Ahmedabad 380 009. 3. The United India Insurance Company Ltd., D.O 3, Union Co.Op. Insurance Building Ashram Road, Ahmedabad 380 014. Opponents BEFORE: Justice R..P. Dholakia, President Shri. S.A. Makhija, Member7
proves this fact. The letter dated 16.5.2005 received from opponent No.1 is also important. Affidavit of father of the deceased Rajesbhai shows that his father had adopted new surname 'Hukurnatani' instead of 'Dauda'. Only because there were three cylinders shown in police panchnama, it cannot be said that the cylinder in question was unauthorized. Late Rajeshbhai son of I-Iiranand Dauda was a beneficiary of his father's gas service. He was a. layman so far the technical aspect of the gas--cylinder is concerned. If he had known that the cylinder was defective, he would have returned the same immediately. The accident had occurred owing to a defective cylinder supplied by opponent No.1. The dealer and distributor are jointly and severally liable. The opponent No.3 is liable as insurer of the public. liability of the opponent no.1 and 2. Rest of the say of the opponent is however in denial.
. As far as legal position is concerned, negligence means the failure to observe for protection of another person that degree of care, precaution and vigilance, which the circumstances jointly demand whereby such other person suffers injury. The test of negligence lies in default to exercise the ordinary' care and caution which is expected of a prudent person in the circumstances of a given case. The duty to exercise such a care and caution including reasonable use of facilities of body and intelligence to observe and appreciate danger or threatened danger is on the person who is bound by duty to exercise such care and caution i.e. the concerned opponent, If the opponent fails to do so and such failure is the proximate cause of injury or death, such opponent would be guilty of negligence. In the case of is negligence, the doctrine of RES IPSA LOQUITOR is very often applied. The literal meaning of this doctrine is that 'the incident speak for itself'. Normally it is for the complainants to establish negligence, but in some cases the considerable hardship would be caused to the complainant as the truth is not known to him but is solely within the knowledge of the opponent. Such hardship is sought to be mitigated. by applying the principle of Res Ipsa Loquitor. In such case once the complainant establishes that the uncalled for injury or death had taken place and the surrounding circumstances under which it has happened are apparent, this doctrine applies. In other words, it means that unnecessary injury or death by its very nature be more consistent with its being caused by negligence for which opponent or respondent is more responsible than other factors. In such a case, the very fact that unnecessary injury or death had taken place is prima facie evidence of negligence. Then the burden is on the respondent to explain and show that it occurred without any default of his own. This doctrine however does not apply when the cause of the injury or death is known. But where no particular cause can be assigned for the incidence of unwarranted injury or demise of a human being this doctrine can be invoked and in that case the burden will shift on the respondent to rebut the presumption arising on account of the application of the doctrine.
s. In short negligence means failure to observe for protection of another person that decree of care, precaution and vigilance which the given circumstances justly demanded whereby such persons suffer injury.
The test of negligence lies in default to exercise the ordinary care and caution which is expected of a prudent person in the circumstances of' the given case. Winfield has defined negligence as a t<_3r_t_ which is the breach of a legal duty to take cares which results in damage undesired by the defendant to the plaintiff. The breach of duty has been defined by Hon'b1e Supreme Court in very simple language in the case of Poonam Verma Vs Aswani Patel I (1996) CPJ at page 1 as under:
"The breach of duty may be occasioned either by not doing something which a reasonable man under a given set of circumstances would do or by doing some act which a reasonable prudent man would not do".
i. In the event of damage, injuries or death on account of LPG cylinder blast iHon"ble National Commission has inter alia laid down in the case of K.G. Sathya Vs Bharat Petroleum Corporation Limited reported in III (2000) CPJ at page 8 that in terms of agreement the distributor is required to provide free technical service to the customers in accordance with the general instructions and that by not insisting on changing the tube and installing gas cylinder despite defective tube, the distributor failed to ensure the duty cast on them. If the failure to perform the duty by the distributor or their men results in cylinder blast in that case the distributor and the Petroleum Corporation are jointly and severally liable. The insurance company can also be held liable if the risk is covered. This legal position has been re- affirmed by Hon'ble National Commission in the case of Hindustan Petroleum Corporation Ltd., Vs Shareya Enterprise 111 17 the report of an expert. The IOC has many experts and they could have Very well done so if so desired. This is very serious case. In our View consolidated compensation to the extent of Rupees Twenty five lacs can be awarded. The liability of opponent No.1 and 2 will be joint and several. The liability of the opponent No.3 will be limited to the extent of Rupees Ten Lacs for any one incident as per the insurance policy. The opponent No.2 is also covered by the policy of!' Insurance Co. Ltd,, (which is not a party) to the extent of twenty five lacs per event. The Opponent No.2 is at liberty to enforce the indemnity if any as per the insurance policy against the concerned insurance company.
16.Before parting with the case, we have to consider the case law' cited by the opponents. First is the case of New India Assurance Co. Ltd., Vs Mala reported in II (2007) CPJ 80 (N .C) wherein the doctrine of res ipsa loquitur was not made applicable since it was a case of gradual gas leakage. Hon'ble National Commission came to this conclusion on the basis of the report of the investigation officer appointed by Bharat Petroleum Corporation Ltd. In this case the IOC has not appointed any such investigation officer to give an expert opinion. The rational of this authority is i not applicable to the facts of this case. Second citation is the case of R. Raja Navya Vs. H.P.C Ltd., I (2.007) CPJ 505 wherein Audhra Pradesh Commission held that in case of defect in the cylinder the manufacturer i.e. H.P.C Ltd.,. was responsible and not the distributor. This View being contrary to that of Hon'ble National Commission in the case of D. Shankar Vs Gopi 10 (2006) CPJ 314 .C). The case of Saraswath Vs Ram Agencies 11 (2007) CPJ 264 was also case of leakage of LPG gas and consequent huge blast in cylinder. The cylinder and rubber tube were not examined by persons who had gone to supply the cylinder nor the customers were educated regarding use of cylinders. On this set of facts, Karnataka State Commissions held that this was in violation of Government of India instructions to all manufactures and distributors of LPG and as such it was a deficiency in service. In the case of New India Assurance Co. Ltd., Vs Kaluraj Jasraj Vyas I (2008) CPJ 444 .C), it was held by the National Commission that if the accident took place due to defective cylinder and regulator, the dealer and HPCL were jointly and severally liable and if the insurance cover is taken, Insurance Company would also be liable. In a recent case of Bharat Petroleum Corporation Ltd. Vs Baby Preeti III (2010) CPJ 377 (NC) I-Ion'ble Apex Commission has laid down that it was incumbent upon appellants i.e. Bharat Petroleum Corporation and its dealer to have technical examination of cylinder and failure to do so will make an adverse inference drawn against them. In this case the National Commission had negatived the contention of the appellants that as per clause 11 of subscription agreement mandates observance of certain precautionary measurers. Clause 11 of subscription agreement between the parties certain 'DOS' and 'DONTIS' While accepting the delivery of the cylinder and its use. Case of D Sanker Vs Gopi Agencies iv (2010) 73 (N.C) is the last word of Hon'ble National Commission. According to the Apex Consumer Commission, if the complainant was a bonafide customer 11 and complainant's case was Valid, the first compensation should be awarded in the case of fire because of leakage of gas. It has been further held that adjudication of consumer complaints in summary proceedings is based on preponderance of probabilities and not on application of rigorous provisions of Evidence Act enjoining proof beyond doubt.
10.As far as the facts of this case are concerned the following facts and circumstance are admitted or at least not disputed by the opponents.
(i)
(ii) That there was fire out-break on account of gas leakage in the flat of Late Shri Raj eshbhai Hinanand Hukmatani at H-15 Shri Krishnanagar Co.op. Housing Society Ltd. In this fire parents of complainants received deep serious burns and they were admitted in the V.S Hospital, Ahmedabad. Rajesh Hiranand 'had sustained burns to the extent of 61%, Sumanben Rajesh 57% and the complainants Master Dhiraj and Kumari Sena to the extent of 40% each. Surnanben Rajeshbhai succumbed to the bums on 3.3.2005 and Rajeshbhai on 21.4.2005 while they were under treatment in the VS. Hospitals.
That the LPG gas service is given by the opponent No.1 in the name of Hirananad G. Dauda at the given address i.e. H-15, Shri Krishnagari Co.Op. Housing Ltd., (Flats).
12(iii) That the opponent No.1 is covered by public liability Insurance Policy issued by Opponent No.3. The opponent N02 is also holding public responsibility insurance policy No.251l()O/46/04/9500013 issued by N ewmal . .
Insurance Co. Ltd., covering risk of 100 crores per year, 25 lacs per event, 10 'lacs per person covering entire country including that of a customer all over India.
11.. The controversies between the parties, legal as well as factual are as under:
(1) That the gas supply service was in the name of Hiranand Dauda and Rajesh Hiranand was not the consumer of the opponent No.1. This was therefore a case of unauthorized use of gas cylinder.
(2) That the complaint is not rnaintainable as the complaint is field by one Harish Qmprakash Arya as next friend of the minors kids and Shri Arya is appointed only as guardian of the person of the minors and not that of their properties. (3) That the opponent No.2 is not liable as opponent No.1 is not their agent and that the agreement 'between the opponent No.1 and 2 is on the basis of principal to principal.
13 (4) That the opponent No.3 is not liable under the insurance policy as there was unauthorized use of the cylinder.
11.As far as the first controversy is concerned admittedly the service No.13225 was in the name of Shri Hiranand G Dauda at the address H-15 Shri Krishna Nagari Society, Vejalpur, Ahmedabad where the accident had taken place. It is shown on record that Shri Hiranand G. Dauda had changed his surname from 'Dauda' to 'I-Iukmatani'. Thus Shri Hiranand was known as Hiranand G Dauda alias Hukmatani. It is also made out that Shri Rajesh Hiranand was his son, who was residing with him along with his wife and kids at the given address. Hiranand was not uncle of Rajeshbhai as alleged. The opponents have not produced any evidence to show that Rajeshbhai was Hiranand"s nephew and Hiranand was residing somewhere else. A reference may be made here to an important fact that the cylinders were being supplied by first opponent at the address i.e. l5/H Shri Krishnanagar Society, Vejalpur, Ahmedabad which is also a registered address of Hiranand with the opponent No.1. Shri Hiranand G. Dauda alias I-Iukmantani was residing at the address with his son Rajeshbhai and his family. Otherwise also Rajeshbhai being son of the registered consumer and residing with him was beneficiary of the gas supply in question, At page 130 of the original case file there is certificate of police Inspector, Vejalpur, Ahrnedabad wherein it is stated that the cause of death of Rajeshbhai was due to fire which took place on account of burst of gas cylinder and such fact of accidental death l2.Second controversy is in 14 have been confirmed in the investigation. As per report of Shri Jayesh H Shah dated 15.12.2005 the surveyor of insurers the cause of fire as per police panchnama was leakage of gas. However, the surveyor has expressed grievance that opponent No.1 has not produced 'FSL report or IOC reportfthe minor kids could not be blamed. The opponents had sufficient resources and man power to collect the relevant material. It is therefore proved on the basis of the preponderance of probabilities that the user of the gas connection Late Shri. Rajeshbhai was not unauthorized and the accident had taken place because of cylinder burst as disclosed form police investigation. IOC is opponent No.2 in this case. They have not submitted any report prepared by OIC expert. This fact makes a serious in--r9_a_d_ in the case of the opponents in regard to cause of accident.
regard to maintainability of the d by one Harish -Omprakash Arya of person of the minors (not that of complaint as complaint is file who is appointed as guardian e Family Court, Ahmedabad. The produced at Exh.4/1 at page 10. At their properties ) by th certificate of Family Court is the outset it is required to be stated here that this complaint does not relate to the properties if any of deceased Rajeshbhai or Sumanben. This is complaint for compensation payable to the minors in view of the unfortunate incident. The compensation is yet to be decided by this Commission, which can give necessary directions to safe guard the interest of minors. The objection raised by the «opponents therefore is not tenable. In our view a l5 guardian appointed for the person of the minors can file a complaint for compensation etc. as a next friend. Such hyper technicalities have no place in consumer proceedings.
13.Third point is as to whether the opponent IOC is liable for the acts and omissions of first opponent on the plea that the agreement between them is on the basis of principal to principal. Admittedly as per say of the dealer i.e. opponent no.1 the dealer had been acting as an agent of IOC. Moreover, if the IOC was not liable as alleged what was need for the Corporation to take the public responsibility insurance for 100 crores rupees. IOC is a Government instrumentality. It cannot be allowed to get away from its responsibility on the technical grounds. The IOC and its distributors are dealing in very dangerous commodity and as such their public responsibility cannot be avoided by their any inter se agreement. As already discussed in recent cases Hon'ble National Commission has 'held the IOC and their distributor liable jointly and severally in case of leakage of gasps or a cylinder blast. We, therefore, cannot subscribe to the contention of IOC in regard to its liability.
14.As far as the liability of opponent no.3 i.e. the insurers is concerned they are liable to the extent of the risk covered by their policy produced at page 176-177 as the users of the cylinder in question was legal. The opponent NO.3 has repudiated the claim by their letter dated 1.8.2007 after filing of the complaint on the ground that the necessary documents have not been supplied by .16 the first opponent. The insurers had appointed Shri Jayesh H Shah as Surveyor who had visited the place of accident at H--15 Krishnanagar Flats on 8.3.2005 and 15.3.2005. He had found the door closed. It was very natural since all most all inmates of the house had died or were being treated for burns in VS. Hospital. Surveyor had made inquiries from wife of one Shri Vinod Solanki of (31-13. The name of the lady is not given. Surveyor claims to have taken photographs of closed house and reported nil damages to the house. While the facts as stated in police panchnama, investigation report etc. are otherwise. On plain reading of the report itself a casual approach adopted by the ea" . . .
surveyor is<obv1ously be seen.
15i.While summing up the facts of the case it is proved that the accident had taken place due to cylinder blast at H-15, Shri Krishnanagar Society (Flats) Vejalpur, Ahmedabad where deceased Rajeshbhai was residing with his father Hiranand G Dauda alias Hukmatani along with his wife Surnanben and two' school going children i.e. the present complainants. It is. also proved that the blast had taken place due to defective cylinder as a result of which Reajeshbhai and Sumanben had expired and the present complainants had been burnt severely disfiguring their face, hands, legs etc. The complainants are still under treatment. The complainants were compelled to abandon their education. They have lost their both parents. The user of the cylinder in question was legal and authorized. There is no onus on the minor complainants to prove manufacturing defect in the cylinder by ORDER: (By Shri. S.A. Makhija, Member) Ms. D 5 gr l4Q;:,.Advo.cate for Mr.A.R.Gupata & Associates for Complainants No.1 & 2 Mr. Milan Dudhiya ld. advocate for the Opponent No.1 Mr. S.B. Patwar, ld, advocate for the opponent No.2 Mr. Ashwin P. Rawal, ld. advocate for the Opponent No.3
1. This complaint is filed under the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act' for the sake of brevity).
2. The short facts of the complainants' case are that the complainant No.1 and 2 are minors being represented by their guardian and next friend. The cornplainants were residing with their parents Late Shri Raj esh Hiranand I-Iukmatani and Late Smt. Suman Rajesh Hukmatani at H-IS Shri Krushnanagari Co.Op. Housing Society Ltd., Vejalpur, Ahrnedabad. Shri Rajesh Hiranand was earning Rs. 13,000/- per month from the business of ernbroidery and ihandicraft, Smt. Surnan Rajesh was also earning about Rs.2000/-- per month. The complainants minors Master Dhiraj and Kumari Sona were 'being educated in one of the premium educational institute namely Don Bosko School. The opponent No.1 is the dealer and supplier of LPG Cylinders for opponent No.2 --- the Indian Oil Corporation. Late Rajesh Hiranand i.e. the complainants' father was holding LPG service No.13225 of the first opponent. Shri Rajesh Hiranand cornp1ainant's father had placed order for L.P.G cylinder vide order No.556 with the opponent No.1, which has supplied the cylinder per bill No,100401 dated 2.2.2005 at 3 the given address. The cylinder supplied by the first opponent was defective and there was leakage of the gas from the said cylinder. On 2.3.2005 at about 07.00 hours when Smt. Suman Raj esh tried to ignite the burner, an uncontrolled fire engulfed the premises as a result of which Shri Rajesh, Smt. Suntan and the minor complainants had sustained deep burns varying from 40% to 61%. They were admitted the burns ward of V.S. Hospital. Smt. Suman Rajesh had sustained 57% burns and she succumbed to injuries on 3.3.2005 at around 17.50 hours. Rajesh I-Iiranand had 61% burns succumbed to injuries on 21.4.2005. The complainants had sustained 40% burns each and they are still under treatment. Complainant's faces, hands etc. are disfigured and they have under gone several surgeries. They have practically abandoned the studies. Apart from expenses they have under gone great trauma, mental pressure, harassment s they have lost their both parents. The complainants had served a legal notice on the opponents but the same has been neither replied nor complied. Hence, this complaint has been filed for redressal.
The opponent No.1 has appeared and filed its reply dated 2.07.2007 with Exh.13 inter alia stating that the gas cylinders were being supplied by this opponent at the address of accident but the cylinders are supplied by opponent No.2 actually and first opponent simply delivers the cylinders so supplied as agent of the opponent No.2. The service was in the name of Hiranand Dauda and as such the present complaint was not maintainable. Said Hiranand Dauda was not residing at the place of incident, hence there is a case of un--authorized use of the -cylinder. The cylinder was supplied on 2.2.2005 and the 4 incident had taken place on 2.3.2005 i.e. after almost one month from the date of supply of the cylinder. The said cylinder was in order at the time of delivery. The person taking delivery has certified that the cylinder was delivered after the seal was opened and the weight was measured. There was no leakage in the cylinder. In absence of FSL report it cannot be said that the cylinder Was defective. As seen from the panchnama there were total three cylinders in the premises. The consumer had earlier booked only one cylinder on 15.09.1971 and one extra cylinder bottle was demanded on 11.07.1991. Thus, only two cylinders were issued to Hiranand Dauda. This is therefore a case of unauthorized use 'by the consumer. The injuries have not been sustained nor deaths have taken place owing to negligence of the dealer. Rest of the say of the opponent. no.1 however is in denial.
The opponent no.2 has filed their reply dated 12.06.2007 at Exh.12 inter alia stating that the present complaint is rnisconceived and is not maintainable at law. 'Present complaint involves complicated questions of law and facts and as such the complainants should be relegated to the Civil Court. The opponent No.2 i.e. I.O.C takes sufficient precaution before the cylinders are supplied to the customers. The precautions taken by IOC are detailed in para 3(a) to 3(_g). The IOC enters into contract with various distributors. According to which the distributors are required to take out adequate and proper insurance from a reputed Insurance Company against all risk including any third party risk to person, property, fire, explosion risk etc. The dealer is required to appoint trained delivery boys.
Specialized training to delivery staff is given by IOC and such training is supplemented by refresher courses also. The training to the delivery staff is specified in para-5 of the reply. The cylinders are stored by the dealer under gas cylinder Rules as stated in para-6. The cylinder is never delivered without seal and safety caps from the plant to the distributor as well as to the customers. The responsibility of IOC comes to an end as soon as the cylinders are delivered at the dealers go-down. The contractual relationship between dealer is on principal to principal basis. To avoid escape of gas from cylinders after they are delivered to the consumer, IOC takes measures to keep informed the consumers at large. At the time of first installation IOC issues card having sufficient guidelines to the consumers. Instruction card covers all the safety aspects required to be known by the consumer. IOC also educates the consumer by advertisements in TV and Radio. Emergency services are also made available by Emergency Cell. There is no negligence on the part of 10C. Rest of the say of the opponent No.2 is however in denial.
. The opponent NO.3 the insurers have filed their reply dated 8.3.2008 inter-alia stating that the complaint is not maintainable. Complaints should be relegated to Civil Court as there are complicated questions of law and facts. There is no deficiency of service on the part of the insures. The insurance policy however in favour of the opponent NO.1 is admitted, but it was to the extent of anyone accident Rs.10,00,.0'0O/- aggregating during the year. The risk is not covered as alleged in the complaint. The cylinder was in the name of Shri I-liranand G Dauda bearing service No.l3s225 and the said cylinder was used by his nephew at some other place. There is no privity of contract between 6 complainants and opponent No.1. The manufacturing defect if any in the cylinder can be proved by an expert alone. FSL report if any is not produced. Hiranand Dauda had booked the cylinder on 2.2.2005 and the blast' has taken place on 2.3.2005 and between these 30 days. opponent No.1. had not received any complaint of any defect in the cylinder. The amount claimed is exaggerated. Rest of the say of the insurers however is in denial.
Complainants have filed their rejoinder dated 21.8.2007 at Exh.l6 inter alia stating that the system of opponent No.1 and 2 may be good but in every system there are exceptions. No system is perfect and there are probabilities of defect in every system. In past also various incidents on account of defective cylinders have taken place. It is why the opponents have taken public liability insurance. It is not necessary that the de:fective cylinders will leak as soon as it is used. There may not be a fixed pattern as to how a defective cylinder will react. The procedure arrangements, propaganda, education etc. as stated by the opponents itself suggests that the use of their product is fraught with risks. It is established by police investigations that the accident had taken place as a result of defective cylinder. All the rules and regulations for supply of gas cylinders are made by the opponent No.2 and all its distributors have to follow the same. The distributors and dealers hold out to the public as agents of the opponent No.2 and as such they are liable jointly and severally. The cylinder in question i.e. customer NO.l3225 was taken in the name of the father of the deceased Rajeshbhai namely Hiralal alias Hiranand Girdharilal iHu.kumtani. The receipt dated 11.7.1991 issued by the opponent No.1