National Consumer Disputes Redressal
United India Insurance Co. Ltd. vs Gowramma & Ors. on 7 January, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3253 OF 2007 (From the order dated 08.06.2007 in First Appeal No. 1595/2005 of Karnataka State Consumer Disputes Redressal Commission) The United India Insurance Co. Ltd. Divisional Office No. 2, No. 1134, Prince of Wales Road, Chamarajapuram, Mysore ... Petitioner Versus 1. Gowramma w/o (L) Shivanna 2. Lakshmamma w/o (L) Puttaswaamy K 3. Savithramma w/o Radhakrishna 4. Ramakrishana alias Moganna s/o (L) S.K. Thimmegowda (since deceased through LRs.) 1. Shivamma 2. Kumari R Swetha 3. R. Venkatesh 4. Shavan Kumar 5. Bharathi w/o M.H. Prakash All r/o Bandipalya Village Kasaba Hobli Mysore 6. M/s. Shiva Gas Service by the Proprietor, Indane Distributors for Mysore South, 10th Cross Corner, Vidyaranyapura, Mysore 7. The Chief Manager Indian Oil Corporation LPG Division, Unity Building, Bangalore. Respondent(s)
BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. A.K. De, Advocate Mr. Rajesh Dewedi, Advocate For Respondent1 to 5 Not admitted For Respondent No. 6 Ex-parte For Respondent No. 7 Mr. Shinoj K. Narayanan, Advocate PRONOUNCED ON : 7th JANUARY 2014 O R D E R PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 08.06.2007, passed by the Karnataka State Consumer Disputes Redressal Commission (for short the State Commission) in FA No. 1595/2005, Smt. Gowramma versus M/s. Shiva Gas Service & Ors., vide which while allowing the appeal, the order dated 24.08.2005, passed by District Consumer Disputes Redressal Forum, Mysore, dismissing the consumer complaint CD 5705 dated 24.08.2005, dismissing the said complaint, was set aside.
2. Brief facts of the case, as stated in the complaint filed by Smt. Gowramma and others are that the father of the complainants, Shri B.K. Thimmegowda had taken a LPG gas connection for his domestic use from OP No. 1 M/s. Shiva Gas Service under customer no. 10663. He used to obtain LPG cylinders regularly and the last cylinder was obtained on 27.11.99 from OP No. 1. However, on 7.12.99 when Sh. Thimmegowda and his wife returned to their home at 4:30 pm, they felt some foul smell and opened doors and windows of the house, but at that very moment, the gas cylinder exploded, causing severe injuries to both husband and wife, i.e., the parents of the complainants and also caused heavy damage to the building and other moveable properties. Both the parents died on 10.12.99 because of injuries sustained by them, due to gas explosion on 07.12.99. As per the complainants, the loss caused to the building was `5,15,540/- and loss to immoveable property was estimated to be `2 lakh. The complainants, alleging deficiency in service on the part of the OP, demanded compensation for the death of their parents and also for the loss caused to moveable and immoveable properties.
Initially, the complainants filed 3 different complaints before the District Forum, claiming damages of `4.95 lakh in each case. The pecuniary jurisdiction of the District Forum at that time was upto `5 lakh only.
The District Forum, however, returned the complaints to the complainants for presentation before the State Commission. The complainants then filed complaint No.55/2002 before the State Commission which was disposed of by them vide order dated 18.11.2004, wherein it was directed that OP No. 1 should furnish information to the insurance company OP No. 3 within two months of that order and OP No. 3 should consider their claim and if the claim was repudiated, the complainants were permitted to avail any other remedy. A claim amounting to `17,20,540/- was lodged with the OPs. On their failure to settle the claim, the consumer complaint in question, was filed. The District Forum after hearing the parties dismissed the claim saying that the gas cylinder in question, was installed on 27.11.99 and it was continuously used for a period of 10 days before the explosion occurred. There was, therefore, no possibility of sudden development of defect in the gas cylinder or the regulator. Further, these materials were neither seized by the Police, nor a case was registered against the OPs, under section 338 or 304 (A) of the I.P.C. An appeal was filed against this order before the State Commission and the same was allowed by the State Commission vide impugned order and it was stated as follows:-
Appeal is allowed.
Impugned order is set aside.
Complaint filed by the complainants is allowed in part. Therefore, OPs 1 & 2 are liable to pay compensation of Rs.2,00,000/- in favour of the complainants within two months from today.
Since there is an insurance coverage the amount so directed to be paid by OPs 1 & 2 as directed above is to be paid by the Insurance Company to the complainants within two months from today.
The parties are directed to bear their own costs.
It is against this order that the present petition has been made.
3. At the time of hearing before this Commission on 3.10.2007, notice was ordered to be issued to respondent no. 6 & 7 only, i.e., Shiva Gas Service and the Chief Manager, Indian Oil Corporation.
No notice was ordered to be issued to respondent no. 1 to 5, who are the complainants. On 12.12.2007, this Commission admitted the revision petition filed by the insurance company qua the respondent no. 6 & 7 only and dismissed the revision petition against respondent no. 1 to 5. It is clear, therefore, that so far as payment of compensation to the complainants is concerned, the issue needs to be settled between the Insurance Company, the Gas Agency and the Indian Oil Corporation. On subsequent hearings, the gas agency was ordered to be proceeded against exparte as they did not appear despite service.
4. At the time of hearing before us on 3.12.2013, it was contended on behalf of the petitioner Insurance Company that respondent no. 7 Indian Oil Corporation or the Gas Agency had not challenged the order passed by the State Commission vide which compensation was ordered to be given to the complainants. It is clear, therefore, that in so far as the complainants are concerned, the compensation has to be given to them. The only point to be decided in the present case is whether the payment of compensation is to be made by the Indian Oil Corporation and Gas Agency or the Insurance Company is liable in any manner under the terms and conditions of the Policy to make such payment. Learned counsel has drawn our attention to the copy of the insurance policy on record, stating that under the public liability clause of the Insurance Company, such matter was not covered and hence, the Insurance Company was not liable to make payment to the complainants. He further stated that as observed by the learned District Forum, clause 7 of the Policy makes it very clear that the Insurance Company agreed to indemnify the loss suffered by a third party, only when the accident was caused at the premises of OP No. 1, i.e., Gas Agency or the registered address of the customer only while the Cylinder being installed by the insured and/or his employee or when the accident takes place when the gas cylinder is being carried by OP No. 1 or by his employee for installation to the house of consumer. In the instant case, the said cylinder was installed on 27.11.99, but the explosion had occurred after a period of 10 days, i.e., on 07.12.99. It was clear, therefore, that the explosion did not occur when the cylinder was being installed. The State Commission did not give any reasons to observe that the payment in question, is to be reimbursed by the Insurance Company to OP no. 1 & 2. The complaint was, therefore, liable to be accepted and the said order modified to say that only OP No. 1 & 2 should make the payment.
5. Learned counsel for the respondent Indian Oil Corporation, when asked to explain, under which clause, the Insurance Company was liable to pay compensation in the matter, could not offer any satisfactory explanation.
6. The learned counsel for the Insurance Company stated that as per Order dated 3.10.2007, passed by this Commission, during the pendency of the present revision petition, the Insurance Company was required to deposit the amount awarded by the State Commission within a period of four weeks from the Order. It was stated in that Order that it would be open to the complainant to withdraw the same by furnishing adequate security.
7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. As already stated, this petition has been admitted to examine and settle the issue, whether the payment to the complainant is to be made by the Insurance Company or the gas agency or the Indian Oil Corporation. It is made out from the material before us and the arguments advanced by the parties that under the terms and conditions of the Insurance Policy in question, it is not obligatory on the part of the petitioner Insurance Company to make the payment to the complainants, as the said cylinder was not in the process of being installed. It is evident therefore that OP No. 1 & 2 are jointly and severally liable to pay the amount of compensation as awarded by the State Commission to the complainants.
8. The revision petition is, therefore, allowed and the impugned order is modified to say that OP No. 1 & 2, i.e., M/s. Shiva Gas Service and the Indian Oil Corporation, shall be liable jointly and severally, to pay compensation of `2 lakh to the complainants. However, since the payment has already been made to the complainants, the Insurance Company shall be at liberty to recover the said amount from the OP No. 1 & 2. There shall be no order as to costs.
Sd/-
(K.S. CHAUDHARI J.) PRESIDING MEMBER Sd/-
(DR. B.C. GUPTA) MEMBER RS/