National Consumer Disputes Redressal
Indian Oil Corporation Limited vs Rakesh Kumar Prajapati And Ors. on 6 May, 2008
Equivalent citations: 3(2008)CPJ19(NC)
ORDER
P.D. Shenoy, Member
1. In both the revision petitions, the complainant's case in a nutshell is as follows:
The complainant, Rakesh Kumar Prajapati, an auto rickshaw driver, got a gas connection, consumer No. 8867, from M/s. Smriti Indane Gas Agency which is insured with the United Insurance Company Limited (hereinafter called the Insurance Company). The complainant was issued regulator No. 314162 and cylinder No. 247434. On 28.11.2004 there was leakage from the cylinder/regulator and accordingly a complaint was made to Smriti Gas Agency. But the dealer did not take any action. There was a fire accident as a result of which Pratiksha, the two years-old daughter of the complainant, died due to burn injuries in the District Hospital, Sagar, and the complainant and his wife Smt. Mamta also received burn injuries. The complainant deposited the regulator and the cylinder, in burnt condition, with the agency/dealer (OP No. 1) and obtained a receipt thereof. A report of the said incident was also lodged by the complainant with the Police Chowki on 24.12.2004 and post-mortem of the deceased daughter of the complainant was conducted on 24.12.2004.
2. Despite several complaints to the dealer regarding the defect causing death and burn injuries the complainant received no response. Finally, the complainant gave a legal notice dated 21.2.2005 to OP No. 1 for compensation. At that time OP No. 1 allegedly deceived the complainant and got his signature on seizure memo and seized the above mentioned cylinder and regulator. The complainant contended to have incurred an expenditure of Rs. 80,000 on the treatment of his daughter and wife. As there was no response from the opposite parties, he filed a complaint with the District Forum Sagar, MP and prayed for compensation of Rs. 3,30,000 from the opposite parties.
3. OP No. 1, contested stating that the complainant had deposited regulator No. 709970 instead of regulator No. 314162 issued by the dealer; there was no defect in the nozzle of the seized cylinder, and, had the latter been at the place of the accident at the relevant time, it would have blasted after becoming hot, which was not the case of the complainant. The complainant, being a hawker with Jaidka Gas Service had knowledge of possible defects hi the cylinder and had the cylinder/regulator been defective, he would not have accepted them. However, the cylinder and regulator were given to him after testing and to his full satisfaction. Therefore, the complainant had filed the complaint on false grounds.
4. OP No. 2, Indian Oil Corporation, denied all the contentions, except the fact of the death of the daughter of the complainant and contended that the death did not take place due to any defect in the regulator or cylinder. It also contended that the regulator or the cylinder was not examined technically; and, treatment bills for Rs. 3,000 only were produced by the complainant.
5. OP No. 3, Insurance Company, denying that it had any knowledge of the facts of the complaint, contended that Rs. 80,000 was not spent on the treatment of the daughter of complainant and accordingly he was not entitled to get any compensation. Under the Insurance Policy of the agency (OP No. 1) the coverage of risk was for 4200 consumers and the consumer number of the complainant was 8867. Further no intimation of the accident was given to OP No. 3. Hence, it was not liable.
6. The District Forum came to the conclusion that no regulator was produced by OP No. 1 before the Forum to prove that the said regulator was different from the one supplied by OP No. 1. It was not disputed that the gas cylinder and regulator were supplied by OP No. 1 to the complainant. Secondly, if the serial number of the regulator was different from that of the one issued by OP No. 1, the latter should have been produced by the said OP before the District Forum to enable it to get it examined by an expert. This could not be done due to negligence of OP No. 1. The Forum also observed that the complainant had given a written complaint to OP No. 1 in respect of the defective cylinder and regulator but OP No. 1 did not take any action thereon. The complainant then sent a legal notice through his advocate on 23.2.2005 to OP No. 1 but still no action was taken by the latter. The death of the daughter of the complainant had been proved and the injuries caused to the complainant and his wife were also not disputed.
7. Keeping in view the finding reached by the District Forum that the complainant was a consumer; the death of the daughter of the complainant, and, the burn injuries were caused to the wife of the complainant, due to the negligence on the part of OP Nos. 1 and 2, and also keeping in vie w the fact that bill for only Rs. 3,000 toward s expenditure on medical treatment had been filed by the complainant, the District Forum directed OP Nos. 1 and 2 to pay the sum of Rs. 70,000 jointly or severally as compensation along with Rs. 10,000 towards expenses suffered. Cost of Rs. 1,000 was also imposed. The District Forum also held that as OP No. 3 had provided insurance coverage to OP No. 1 only for 4200 consumers and the registration number of the complainant was 8867, OP No. 3 could not be held to be responsible. Hence, the complaint in respect of OP No. 3 was dismissed.
8. Dissatisfied with the order of the District Forum, OP Nos. 1 and 2, i.e. the dealer, Smriti Indane, as well as the Regional Manager, Indian Oil Corporation, have filed appeals before the Madhya Pradesh State Consumer Disputes Redressal Commission. The State Commission held that:
We come to the conclusion that the reason for the occurrence of incident with the applicant was leakage of regulator and cylinder. Being a technical organization, the onus to prove the leakage in regulator and cylinder was on non-applicant Nos. 1 and 2 because non-applicant No. 2 could easily get this fact examined but he did not do so. Due to the defective regulator and cylinder, the fire took place and the daughter of applicant died in the fire and it caused irreparable loss for the applicant and certainly the same can't be compensated with the relief granted by the District Forum.
and accordingly dismissed the appeals with costs.
9. Aggrieved by the order of the State Commission, OP No. 1 Smriti Indane (dealer) and Regional Manager, Indian Oil Corporation (O.P. 2) have filed these revision petitions before us.
RP No. 539/2007 (filed by the dealer)
10. The petitioner has submitted an application for condonation of delay of almost four months in filing this revision petition. He has submitted that his mother was sick from October, 2006 to February, 2007. Hence, he could not come to Delhi as he had to look after his mother. With great difficulty he has been able to come to Delhi to prefer this revision petition. Accordingly, the delay in filing the revision petition is condoned.
11. Learned Counsel for the petitioner, dealer, Sh. S.K. Sharma submitted that Insurance Company is liable to reimburse the dealer and drew our attention to a specific clause of the Insurance Policy relating to Public Liability which reads as under:
Accidental damage to property (not being property of or belonging to or in the custody or under the control of the insured" or any person in the services of the insured or upon which the insured or any such person is or has been working if that damage results directly from such work) happening during the period of insurance specified in the schedule in connection with the Trade/Business as described in the schedule:
(i) At any Insured's premises specified in the schedule.
(ii) At any registered address of the customers only whilst being installed by the insured under his employees.
(iii) Whilst the gas cylinders are being carried by the insured and/or his employees. The maximum amount payable by the company as compensation including litigation expenses in respect of anyone claim or series of claims arising from one accident event and for all accident events during any one period of insurance shall not exceed Rs. 10,00,000 (Rupees ten lakh only).
12. He further quoted the following extracts from his revision petition:
Before the District Forum the Insurance Company has taken the stand that the company had insured 4200 customers and since the customer number of the complainant was 8867 he was not insured.
The Courts below failed to appreciate that there was no list demanded by the Insurance Company at any point of time of 4200 customers.
The important stipulation contained in the policy was that the Insurance Company would pay in respect of one event (death or injury) in one year.
As regards the issue of coverage of consumer No. 8867, after considering the evidence placed before it, the District Forum held that:
The consumer No. of the complainant is 8867. But the opposite party Nos. 1 and 2 have got insured only 4200 consumers. When the number of consumers of opposite party No. 1 had gone above 4200, then it was the responsibility of opposite party No. 1 that in the event of beyond the number of consumers already insured, should have insured the other consumers, but opposite party No. 1 did not insured the other consumers after the number of consumers had become more than double. It is also a deficiency by opposite party No. 1.
Opposite party No. 3 has insured only 4200 consumers. In this situation opposite party No. 3 is not said to be liable. In this respect, judgment of Bharati Jaat v. Devi Gas Services and Ors. 3.9.2005, C.P.J. 407 (M.P.) has been relied upon. As opposite party Nos. 1 and 2 did not pay any premium to the Insurance Company in respect of the complainant consumer, therefore, in this accident the opposite party No. 3 can't be said to be responsible.
Accordingly, District Forum dismissed the complaint against the Insurance Company.
The State Commission while dismissing the appeals filed by the dealer and the Indian Oil Corporation, held that "no evidence is placed before us to disbelieve the view held by the District Forum that more than 4,200 consumers were insured by the dealer." In this revision petition filed by the dealer against the Insurance Company we are not in a position to overrule the concurrent findings of the lower Fora based on the evidence analysed by them, as the policy endorsement for coverage of 12,000 customers produced by the petitioner is effective from 22.11.2005 i.e. after the date of the accident as against the original coverage of 4200 customers. Hence, this revision petition deserves to be dismissed.
RP No. 2379/2006 [by the I.O.C.]
13. The main plank of the argument of the learned Counsel for the petitioner, Indian Oil Corporation (I.O.C.) was that the Fora below have committed an error by fastening liability on the dealer and the manufacturer, i.e., Indian Oil Corporation (I.O.C.) jointly and severally whereas the liability should have been only of the dealer as the agreement between the IOC and the dealer is one of principal to principal. In our view, this contention does not hold water due to the stringent conditions imposed by the IOC on the dealer: (a) Indian Oil Corporation reserves the right at all times to direct sales of Indane to Central or State Governments and other public bodies and also appoint one or more additional distributors in the same territory; (b) dealer has to ensure minimum sales in the area or territory allotted; (c) the Corporation without notice can change the price of LPG Gas; (d) the LPG cylinders and any other equipment as determined by the Corporation shall at all time remain the property of the Corporation; (e) the Distributor shall not undertake to repair the equipment or cause the same to be repaired by any one except the Corporation or its authorized agents; (f) the Distributor shall provide adequate facilities duly licensed by Government or any other statutory authority for receiving and storing LPG cylinders; (g) during the agreement distributor shall not sell any other similar product; (h) the Distributor shall not commit any act or omit to do any act or thing whereby the Corporation's right in the trade mark and /or brand name of 'Indane' or any other trade-mark or brand-name of the Corporation is in any way jeopardized; (i) the Distributor shall at his own cost maintain adequate trained and competent staff to do installation work, etc. Further, it is not IOC's case that for violating any of its conditions it had terminated the agreement with the dealer at any time before the undisputed accident.
14. The learned Counsel also submits that the "State Commission, has held, without applying its mind that IOC is a technical organization and could have easily got the defects in the cylinder and regulator examined which it did not do. It is not disputed that IOC has a team of engineers and all the technical facilities with which it can easily get any cylinder or regulator examined to find out defects, if any. Indian Oil Corporation did not ask the dealer to get the regulator and cylinder examined by any expert.
15. In K.G. Sathyanarayan v. Bharat Petroleum Limited and Ors. III (2006) CPJ 8 (NC), this Commission has held:
According to Clause 16, the distributor shall, at his own cost maintain adequate trained and competent staff, to do installation work and for connecting appliances to cylinders and/or refills and pressure regulators and to attend to the work of repairing appliances and providing free technical services to the customers in accordance with the general instructions given or laid down by the Corporation. If the trained staff was kept for providing free technical service to the customers in accordance with the general instructions, the staff after noticing defect or low quality tube should have advised and could have refused even to supply the gas cylinder without changing connecting tube.
In view of the aforesaid facts and circumstances, it would be evident that by not insisting as changing the tube and installing gas cylinder despite defective tube, M/s. Rohan Gas Distributors failed to ensure a duty caste on them under the distributors agreement to give technical advice. Thus, the distributor failed to perform its duty to ensure safety of the consumer and, thus, lend assistance in creating an occasion for gas leak which resulted in the accident.
In the same judgment, this Commission has quoted Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order dated 26.4.2000, published in the Gazette, notification extraordinary, which Order makes it clear that the distributor/dealer would be acting only under the authority of the company and not independently. Hence, the petroleum company cannot avoid its liability, as principal notwithstanding the agreement with the dealer.
16. In view of the above judgment, it is clear that the dealer M/s. Smriti Indane and the Indian Oil Corporation are jointly and severally liable and in view of the above analysis, the Revision Petition No. 2379/2006 filed by the Regional Manager, Indian Oil Corporation Limited, Revision Petition No. 539/2007 filed by M/s. Smriti Indane are dismissed. Indian Oil Corporation and the dealer are jointly and severally liable to compensate the complainant. There shall be no order as to costs.