State Consumer Disputes Redressal Commission
Ravinder Pal vs Sunrise Bharat Gas on 1 August, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.896 of 2016
Date of Institution : 29.11.2016
Order Reserved on: 27.07.2017
Date of Decision : 01.08.2017
1. Ravinder Pal, aged 45 years S/o Baldev Raj S/o Jaggu Mal;
2. Manisha, minor aged 16 years,
3. Anmol, minor aged 14 years,
4. Amitoj, minor aged 11 years,
All D/o Ravinder Pal, through their father Ravinder Pal as their
natural guardian;
All residents of Village Balouch Kera alias Farid Kera (near
Gurdwara Sahib) Tehsil Malout, District Sri Muktsar Sahib.
...........Appellants/Complainants
Versus
1. Sunrise Bharat Gas Gramin Vitrak Sangria Road, Seeto Guno,
Tehsil Abohar, District Fazilka, through its
Proprietor/Partner/Authorized signatory;
2. Bharat Petroleum Corporation Ltd. having its registered office
at Bharat Petroleum Corporation Ltd., Bharat Bhawan, 4 & 6
Currimbhoy Road, Post Box No.688, Ballard Estate, Mumbai
4000011 through its authorized signatory;
3. National Insurance Company Limited, Main Bazar Malout,
District Sri Muktsar Sahib through its Branch
Manager/Divisional Manager.
.....Respondents/opposite parties
4. Vinod Kumar S/o Baldev Raj S/o Jaggu Mal R/o Village
Balouch Kera alias Farid Kera (near Gurdwara Sahib) Tehsil
Malout, District Sri Muktsar Sahib. (connection holder of the
gas connection bearing no.66913075 having card serial
no.15919169.
.....Proforma respondent
First Appeal against order dated
25.10.2016 passed by the District
Consumer Disputes Redressal Forum,
Sri Muktsar Sahib.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member First Appeal No.896 of 2016 2 Present:-
For the appellants : Sh. A.K. Sharma, Advocate For respondent no.1 : Sh. Kamaldeep Singh Sidhu,Advocate For respondent no.2 : Ms. Charu Sharma, Advocate For respondent no.3. : Sh. B.S. Taunque, Advocate For respondent no.4 : Ex-parte ............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellants is to order dated 25.10.2016 of District Consumer Disputes Redressal Forum Sri Muktsar Sahib (in short the 'District Forum'), dismissing the complaint of the appellants. Respondent nos.1-3 of this appeal are the opposite party nos.1-3 in the complaint before the District Forum and respondent no.4 of this appeal is complainant no.5 therein and appellants of this appeal are complainant nos.1-4 therein and they be referred as such herein after for the sake of convenience.
2. The complainants instituted complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant no.1 alongwith his wife and children has been residing in a joint family with his other real brother namely Vinod Kumar and his family members are joint in their mess, kitchen, food and residence since their birth. It was further averred that with mutual consent of whole family members, the brother of complainant no.1 namely Vinod Kumar complainant no.5 got issued one gas connection bearing No.66913075 having card serial No.15919169 in his name. OP no.1 issued the gas connection to complainant no.5 after spot/kitchen inspection, as per rules of the OPs. As per the law and rules, it is a common tendency of OP No.1, First Appeal No.896 of 2016 3 used to get insurance of the cylinders etc. issued by it to its consumers, itself from the insurance company against any damage, loss or any burn of cylinder, mis-happening etc., while using the cylinders of the company by its consumers and above OP used to charge the amount of the insurance from the consumers at the time of issuing such connections to them and even the gas pipes, regulators and other related equipments etc. are being insured under such insurance, in order to save its customers from any loss or mis- happening at any time arising out of the use of the cylinders. On 23.10.2015 at about 4.00 AM, the wife of complainant no.1 namely Gurpreet Kaur went into the kitchen of her house for preparing tea. When she switched on the bulb of the kitchen, suddenly there was explosion of fire in the kitchen due to leakage of gas in the kitchen and resultantly the body of wife of the complainant no.1 was badly burnt in that fire. On raising noise by her to save her from fire, the complainants nos.1 & 5 and other family members rushed towards the kitchen, but the wife of the complainant was badly burnt. Thereafter, the complainant and his family members came to know that the fire has occurred due to the leakage of the gas in the kitchen. Wife of the complainant was taken to Juneja Hospital, Malout for her medical treatment and she was further referred to Adesh Hospital and Research Centre, Sir Muktsar Sahib, where she died due to her 80% burn injuries, as per the medical record dated 24.10.2015. The matter was duly informed to the police and one rapat No.13 dated 23.10.2015 was entered at Police Station Bhai First Appeal No.896 of 2016 4 Kera, PS Lambi about this mishap. The above said fire has occurred due to the leakage of gas in the kitchen, which is great negligence, deficiency in service on the part of the OPs nos.1 & 2 in issuing defective gas cylinders or its defective equipments to the complainant. The complainants pleaded deficiency in service on the part of opposite parties. The complainants prayed for adequate compensation in the complaint of Rs.18,00,000/- for death of wife of complainant no.1, Rs.1,00,000/- for mental harassment and Rs.20,000/- as costs of litigation.
3. Upon notice, opposite party no.1 appeared and filed written reply. It was averred in preliminary objections that OP issued the gas connection only to Vinod Kumar and in the alleged accident, Vinod Kumar and his family did not suffer any burn injuries or loss and gas connection was not issued in name of complainant nos.1 to 4, nor they and deceased Gurpreet Kaur were issued any gas connection by OP no.1. It was denied that complainant no.1 with his family has been residing with Vinod Kumar complainant no.5 and his family members. As per record, the cylinder was refilled and delivered on 19.10.2015 at the home of Vinod Kumar, but alleged occurrence took place on 23.10.2015, if there was any leakage of gas and defect in the cylinder, then the incident might have taken place earlier. On merits, it was averred that Vinod Kumar and any other person did not give any information to the OP nos.1 & 2 about explosion. The OP no.1 insured its gas agency and policy No.401006/48/15/ 2000000086 was issued, which was valid from First Appeal No.896 of 2016 5 25.06.2015 to midnight 24.06.2016. No alleged accident took place, as alleged with the gas connection issued by the OP no.1. The complainant party did not get any gas cylinder, regulator, gas pipes, chullah etc. tested from any expert and OP no.1 is not liable for any amount of claim and damages. It controverted the other allegations of the complainants and prayed for dismissal of the complaint with costs.
4. OP no.2 appeared and filed separate written reply pleading that it is concocted story of complainants with the sole purpose to link the family of Vinod Kumar complainant no.5 with Ravinder Pal complainant no.1 and his family with a malafide intention to get wrongful claim against the alleged gas fire. However, the issuance of gas connection No.66913075 with card serial No.15919169 having been issued in the name of Vinod Kumar and it does not make Ravinder Kumar or his family as the consumer of the said gas connection. OP nos.1 & 2 are not liable to pay any claim amount and damages, as claimed in the complaint. OP no.2 prayed for dismissal of the complaint
5. OP no.3 insurance company filed its separate written reply averring that that the policy for LPG Traders Combined Policy, vide policy No.401006/48/15/2000000086 has been issued for the period 25.06.2015 to 24.06.2016 for a total sum of Rs.37,30,000/- in the name of OP no.1, but the alleged loss of the complainant did not fall under the purview of policy issued by OP no.3, as the alleged loss of the complainant fell under the product liability for which no First Appeal No.896 of 2016 6 premium has been charged by the OP and the liability, if any, to pay the compensation to the complaints would be that of the OPs No.1 & 2, being planters of the LPG gas cylinders.
6. The complainants tendered in evidence affidavits and copies of documents Ex.C-1 to C-15 and closed the evidence. OP no.1 tendered in evidence affidavit Ex.OP1/1 and insurance policy cover note Ex.OP1/2 and closed the evidence. OP no.3 tendered in evidence affidavit of Sh.Pardeep Narula, Branch Manager, Ex.OP3/1, photocopy of proposal form filled by OP No.1 Ex.OP3/2, photocopy of policy terms and conditions Ex.OP3/3, photocopy of policy Ex.OP3/4 and closed evidence on behalf of OP No.3. On conclusion of evidence and arguments, the District Forum dismissed the complaint of the complainants. Aggrieved by above order, the complainants now appellants have directed this appeal against the same.
7. We have heard the learned counsel for the parties and have also examined the record of the case. Firstly, we deal with this controversy as to whether complainant is the consumer of OPs, as defined in Section 2(1)(d) of Consumer Protection Act or not. The District Forum recorded this finding that complainant is not consumer, in as much as, the gas connection is not recorded in his name and it is in the name of one Vinod Kumar complainant no.5. The finding of the District is negative against the complainant, as consumer. This is the first point to be adjudicated as to whether complainant no.1 is consumer within the parameters of law defined First Appeal No.896 of 2016 7 in the Act or not. Consumer has been defined in Section 2(1)(d) of CP Act, 1986 as under:
"(d) "consumer" means any person who,--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) 12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose];
Explanation- For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment."
It is, thus, evident from perusal of this provision of law that any person who buys goods for consideration, which has been paid or promised or partly paid and partly promised, or under any system of deferred payment of any such services shall be consumer. It is First Appeal No.896 of 2016 8 further clear from this proposition of law (supra) that even consumer includes any user of such goods other than the person who hires or avails of the services for consideration paid or promised or partly promised or deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such services for any commercial purpose. This significant component of the definition comprised in Section 2(1)(d) of the Act has been lost sight off by the District Forum in holding the complainant no.1 as not consumer. The complainant no.1 is none else, but the real brother of Vinod Kumar complainant no.5, in whose name the gas connection is registered with OPs in this case. There is specific pleadings in the complaint by the complainant that he alongwith his wife and children are joint with their real brother Vinod Kumar, the gas connection holder in this case both in mess and residence. The complainant further pleaded that he is bread-earner of the whole joint family and defrays the expenses of gas cylinder to OPs from time to time. He has alleged himself to be beneficiary of the gas connection. Affidavit of complainant Ravinder Pal is Ex.C-1 on the record specifically stating on oath that he and his family is joint in residence and mess with his real brother Vinod Kumar and his family and Vinod Kumar, his real brother is the gas connection holder in this case. There is one certificate issued by Sarpanch Rupinder of Village Rasulpur Koran Ex.C-4 on the record to the effect that complainant and his family are joint in residence and mess with Vinod Kumar and his family. This First Appeal No.896 of 2016 9 certificate has been issued by Sarpanch of the Village by taking responsibility in this regard. Even DDR has been lodged by Gurdeep Kaur wife of Vinod Kumar about this case of gas explosion. Affidavit of Vinod Kumar, gas connection holder is Ex.C-13 on the record. He has testified in his affidavit that Ravinder Pal his real brother and his family and the family of this witness lives jointly in the same house with common kitchen. He has stated that complainant is the user of the gas connection with his express approval. The affidavit of Vinod Kumar, gas connection holder Ex.C-13 has gone a long way in establishing that complainant Ravinder Pal is the user of gas connection in the name of his real brother Vinod Kumar with express approval of Vinod Kumar. Affidavit of Gulab Singh is Ex.C-14 on the record to the effect that complainant Ravinder Pal and Vinod Kumar, gas connection holder are real brothers and are jointly residing in the same house with common kitchen. The statement of Gurdeep Kaur recorded by police is Ex.C-15 on the record about this matter. In rebuttal of this evidence, OPs tendred in evidence affidavit of Manish Ex.OP-1/1 and affidavit of Pardeep Nirula, Branch Manager of OP no.3 to the effect that complainant is not consumer of OP because gas connection is not registered in his name.
8. The above evidence, as referred to herein above, has established it that complainant Ravinder Pal with his family is joint in residence and mess with his real brother Vinod Kumar, the gas connection holder. It is plain from Section 2(1)(d) of the C.P. Act that consumer includes any user of such goods other than the person, First Appeal No.896 of 2016 10 who buys such goods for consideration, when such use is made with the express approval of such person. Herein from above affidavit of Vinod Kumar, gas connection holder on the file (supra), it is evident that Ravinder Pal is his real borther, who is joint with him both in residence and mess. He has been using the gas connection with his express approval. The finding of the District Forum to the contrary is not sustainable in our view, as per express provision of Section 2(1)(d) of the Act (supra). Even user of such goods other than the person, who buys such goods is consumer, when such use is made with the approval of such person. Herein, we find that complainant and his family are joint in residence and mess with gas connection holder Vinod Kumar, being real brother and complainant no.1 and his family has been using the gas connection with the approval of gas connection holder Vinod Kumar and complainant no.1 would be the consumer, as defined in the above provision of the Act. We, thus, hold that complainant no.1 is consumer and finding to the contrary recorded by the District Forum is not sustainable and is reversed in this appeal.
9. The District Forum even recorded the finding on merits holding that complainants are not entitled to any compensation in this case. We proceed to decide the merits of the case as well, once complainant no.1 has been found to be consumer. Death of wife of complainant no.1 took place in the gas/cylinder explosion. This fact overwhelmly is proved on the record, vide affidavit of Ravinder Pal complainant, affidavit of Vinod Kumar, gas connection holder First Appeal No.896 of 2016 11 Ex.C-13 and vide affidavit of Gulab Singh Ex.C-14 on the record. Police report regarding death of Gurpreet Kaur was lodged by Gurdeep Kaur being her real sister and wife of Vinod Kumar, gas connection holder, vide C-11 on the file. Post mortem of dead body of Gurpreet Kaur deceased was conducted vide Ex.C-12 on the record. The post mortem report has proved it on the record that Gurpreet Kaur died due to 80% burn injuries, which are ante-mortem in nature and sufficient to cause of death in ordinary course of nature. Post mortem report Ex.C-12 has proved death of Gurpreet Kaur wife of complainant no.1, being real sister in law of gas connection holder Vinod Kumar on account of gas explosion. Police report Ex.C-11 is on the record. From above referred evidence on the record of both the sides, we record this finding that death of Gurpreet Kaur wife of complainant Ravinder Pal occurred on account of explosion of gas in this case. There is no evidence on the record of any negligence on the part of Gurpreet Kaur since deceased in handling the gas cylinder by her maladroitly. OPs failed to substantiate this point on the record. Even there is no spot inspection report by OPs to prove their point of extenuation in this case. There is no expert evidence by OPs that the gas cylinder was in fine condition, thereby ruling out any explosion. Gurpreet Kaur deceased was 38 years of age at the time of her death as recorded in post mortem report Ex.C-12. Ex.OP-1/2 is the insurance policy in the name of Sunrise Bharat Gas Gramin Vitrak OP. The sum assured for fire in the policy is recorded as Rs.13,00,000/-. This First Appeal No.896 of 2016 12 policy was validly operative for the period from 25.06.2015 to 24.06.2016. The death of Gurpreet Kaur is the direct result of explosion of gas, which prima facie points out to negligence of OPs in properly sealing or other defects in the gas cylinder. The principle of resipsa loquitor duly applies in this case. Since, Gurpreet Kaur was of the age of 38 years at the time of her demise and considering the totality of the circumstances, we are of this view that lump sum compensation amount of compensation of Rs.5,00,000/- would be adequate and reasonable one in this case. The complainants are also awarded the amount of Rs.25,000/- as cost of litigation too boot. The liability of OP nos.1 and 2 shall be joint and several to pay the amount of compensation as held above to the complainants.
10. As a result of our above discussion, the order of the District Forum is set aside and appeal is accepted resulting in acceptance of the complaint by directing OP nos.1 and 2 to pay lump sum amount of compensation of Rs.5,00,000/- to complainant nos.1 to 4 in equal basis for untimely death of Gurpreet Kaur due to gas explosion and further amount of Rs.25,000/- as costs of litigation payable to complainants in equal shares is also awarded. OP nos.1 and 2 shall make the payment within 45 days from the date of receipt of certified copy of the order, failing which it will carry interest @9% per annum from the date of order till actual payment. Complainants no.1 to 4 shall be entitled to the amount of compensation on equal shares inclusive cost of litigation. The share of minor complainants nos.2, 3 and 4 be deposited in their fixed deposit receipts in some First Appeal No.896 of 2016 13 Nationalized Bank by District Forum till they attained the age of majority.
11. Arguments in this appeal were heard on 27.07.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER August 01, 2017 MM