State Consumer Disputes Redressal Commission
Mrs. Karishma Maira Joenilla Dias, vs M/S. Naguesh Mahalaxmi Gas Service on 3 August, 2012
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANJIM, GOA Quorum : 1. Shri Jagdish Prabhudesai, Honble Member 2. Smt. Vidhya Gurav, Honble Member Consumer Complaint No. 3/2008 Mrs. Karishma Maira Joenilla Dias, r/o H. No. 369, San Francis Vaddo, St. Estevam, Ilhas, Goa. .... Complainant v/s. 1. M/s. Naguesh Mahalaxmi Gas Service through its proprietor, Marcela, Ponda Goa. 2. Hindustan Petroleum Corporation Ltd., through its Manager, having its office at Goa LPG Regional Office/LPG Bottling Plant, P.B. No. 150, Kundaim Industrial Estate, Kundaim, Ponda Goa. 3. National Insurance Company Ltd., 2nd Floor, Magiidada Mansion, Above Dena Bank, Ponda Goa. . Opposite Parties Ld. Adv. C. Shirodkar present for the Complainant. Ld. Adv. V. Braganza present for O.P. No. 1. Ld. Adv. S. Henriques present for O.P. No. 2. Ld. Adv. U. R. Timble present for O.P. No. 3. ORDER
Date: 03/08/2012 (Per Shri. Jagdish Prabhudesai, Member)
1. By this Order, we shall dispose off the complaint dated 13/04/2008 filed by the Complainant herein, as presented before this Commission on 14/05/2008 against the O.Ps herein under Section 12 of The Consumer Protection Act, 1986.
2. The case of the Complainant, when briefly stated, is as under:
i) It is alleged in the complaint that the Complainant is having a gas connection under new Consumer No. 601852 which was supplied to her by O.P. No. 1 being the distributor of the gas cylinders, on 16/04/2006 and the same was opened and put to use only on 10/05/2006.
ii) On 10/05/2006 the Complainant, while cooking in the kitchen, was also helping her husband Mr. Petwyn Dias in cleaning the kitchen cabinet wherein the gas cylinder is stored.
Whilst her husband, in the process of cleaning the cabinet, opened the gas cylinder, a blaze of fire came out from the cabinet which was ignited due to the gas that was accumulated by a leakage in the gas cylinder, resulting in serious injuries to the Complainant and her husband. The Complainant received severe burns on her hands and legs due to the said fire from the gas cylinder and her husband received severe burns on his person including his chest, hands etc. Both of them were shifted to Goa Medical College where her husband died on 16/05/2006 due to septicaemic shock caused by the fire blaze in the cylinder cabinet.
iii) The Complainant, accompanied by her mother-in-law, when approached the O.Ps with an oral request for compensation for the loss occurred due to their negligence in providing them with a faulty cylinder, received verbal assurance from the said O.Ps of paying the said compensation but in vain. Hence, the Complainants legal notice dated 23/08/2007 was replied by the O.Ps on 25/09/2007 and 05/10/2007 repudiating the claim.
iv) It is further alleged that the Complainants deceased husband was the sole bread earner in her family leaving behind her minor son and mother-in-law.
v) It is alleged that the aforesaid acts of the O.Ps, which amount to defect in good or deficiency-in-service within the meaning of The Consumer Protection Act, 1986, the Complainant has claimed the amount of Rs. 95 lacs (Rupees Ninety Five lacs) only as compensation. Based on the said cause of action, the Complainant has filed the present complaint with the prayer that the O.Ps be directed jointly and severally to pay to the Complainant, the compensation in the sum of Rs. 95 lacs with suitable interest together with the cost.
3. O.P. No. 1, on receiving the notice from this Commission, has filed the written version on terms as follows:
i) That this Court has no jurisdiction to entertain the present complaint, as the Complainant is not a Consumer.
ii) That the Complainant has suppressed material facts and that the complaint is barred by limitation.
O.P. No. 1 denied that the Complainant has a gas connection in her name and has alleged that there is no privity of contract between the Complainant and O.P. No. 1. It was denied that any cylinder of O.P. No. 1 was opened and put to use on 10/05/2006. It was denied that the Complainant, and for that matter, her husband, received severe burns and that they were taken to Goa Medical College for any treatment as alleged at paras 8, 9 and 10 of the complaint.
The said O.P. No. 1 has substantially denied all the allegations made by the Complainant in her complaint stating that a false and frivolous complaint is filed. It is alleged by O.P. No. 1 that the subscription voucher relied upon by the Complainant discloses gas connection in the name of a different person namely Mrs. Fatima Dias. The said Mrs. Fatima Dias has 2 different gas connections in her name, the other being from M/s. Olmer Gas Agencies, St. Inez, Panjim, Goa under Consumer No. 607236 since 1996 of the Hindustan Petroleum. This very act, on the part of the said Mrs. Fatima Dias is in itself unethical and illegal.
O.P. No. 1 alleged that the Fire Services Report dated 01/02/2008 produced by the Complainant is a false and fabricated one. O.P. No. 1 relied on the report dated 29/05/2006 obtained from The State Fire & Emergency Department of the Government of Goa, according to which, the supposed cause of the fire was not known.
The said O.P denied that the Complainant is entitled for any compensation. It was also denied that the cause of action arose on 25/09/2007 and 05/10/2007.
It is alleged that the Complainant has not produced the medical papers pertaining to the treatment. The death of the victim could be because of the maltreatment on the part of the doctors or negligence of the Complainant in treating the victim etc. Hence, the O.P. No. 1 prayed that the complaint be dismissed with cost.
4. O.P. No. 2 also filed their written version dated 19/08/2008 on the grounds as follows:
i) That there is no privity of contract between the Complainant and O.P. No. 2. So also, the relationship between O.P. No. 2 and O.P. No. 1 is on principal to principal basis and hence the present complaint is not maintainable.
ii) That the complaint is barred by law of limitation. O.P. No. 2 also relied on clause 18 and 19(a) of HP Gas LPG Dealership (Domestic and Commercial) Agreement with O.P. No. 2.
iii) That the notice dated 23/08/2007 was issued by the Complainant to O.P. No. 2 only to fabricate a cause of action, though, in fact the said O.P. replied it on 25/09/2007.
iv) It was further denied that any defective cylinder was supplied by O.P. No. 1 as alleged as all the cylinders are thoroughly checked for any defect before leaving the HP Sale Plant.
v) The O.P. No. 2 stated that it is inconceivable and irrational that a defective cylinder alleged to have been supplied on 16/04/2006 would have any gas left in it after a period of 25 days if the same is defective and leaking as alleged. The subsequent checks on cylinders reveal that cylinder alongwith its O-ring is intact and without any defect.
vi) That The State Fire & Emergency Department vide its report dated 29/05/2006, have categorically stated that the supposed cause of fire was not known.
vii) It is alleged that the Complainant has never approached O.P. No. 2 nor has the latter given any oral assurance to the Complainant.
5. National Insurance Company, Ponda Branch, Ponda, Goa was allowed to be impleaded as O.P. No. 3 on the application moved by O.P. No. 1. Though Advocate on record for O.P. No. 3 participated in the ongoing proceedings, O.P. No. 3 has not filed their written version as well as Affidavit-in-evidence but they have advanced their final arguments touching the merits of the case.
6. Affidavits-in-evidence are filed by the Complainant on 04/12/2009, by O.P. No. 1 on 30/03/2012 and by O.P. No. 2 on 23/04/2012. The Complainant has filed her Affidavit-in-reply in response to the questionnaire and has also been further cross-examined whilst in the witness-box. All the parties have filed their final written arguments and have also made oral submissions.
7. To substantiate her claim, the Complainant has brought on record the following documents:
i) HPCL Subscription Voucher bearing no. 4598109.
ii) Consumer Card bearing Consumer no. 601852.
iii) Memorandum of Autopsy dated 16-05-2006.
iv) Letter from HPCL dated 06-06-2006.
v) Accidental death summary dated 17-06-2006.
vi) Judgment of the Sub-Divisional Magistrate dated 15-06-2006.
vii) Death Certificate of her deceased husband.
viii) Legal Notice dated 23-08-2007 and reply of O.P. No. 1 dated 05-10-2007 and that of O.P. No. 2 dated 25-09-2007.
ix) Report of the State Fire & Emergency Services dated 01-02-2008.
8. We have carefully gone through the following documents as enclosed to the written versions by O.P. No. 1 and 2:
i) Insurance Policy,
ii) Fire Report dated 29-05-2006.
iii) Letter dated 14-8-2008 addressed to the Plant Manager, HPCL.
iv) Letter dated 22-8-2008 addressed to O.P. No. 1 by HPCL along with the Cylinder Test Report.
v) Specimen subscription voucher terms and conditions.
vi) Police report/ Statement of Fatima and Karishma.
vii) Annexure showing differences in report dated 29-5-2006 and 1-2-2008 along with the remarks on the same.
viii) Copy of the Fire Report dated 29-5-2006 issued by the Fire Department on 2-9-2008.
ix) List of safety and conservation programs and other steps taken by O.P. No. 1 towards safety.
In these circumstances, we are framing the following Issues with our immediate findings thereon:
I) Whether the Complainant proves that she is the Consumer as defined under the provisions of The Consumer Protection Act, 1986?
Our finding on this Issue is in the affirmative.
II) Whether the O.Ps prove that the Complainant be directed by this Commission to approach the Civil Court since the present dispute is of civil nature?
Our finding on this Issue is in the negative.
III) Whether the present Complaint be dismissed as being barred by limitation?
Our finding on this Issue is in the affirmative.
IV) Whether on merits of the case, the acts as alleged by the Complainant constitute defect in goods or deficiency-in-service on the part of the O.Ps herein as defined under The Consumer Protection Act, 1986 and entitle the Complainant to the reliefs claimed in the complaint?
Our finding on this Issue is in the negative.
Reasons for our findings on Issue No. I i.e. Whether the Complainant proves that she is the Consumer as defined under the provisions of The Consumer Protection Act, 1986?
(i) It is observed that O.P. No. 1 and O.P. No. 2 have raised in their pleadings and affidavitory evidence the preliminary objections as reflected in the aforesaid Issues. The defence of O.P. No. 1 is that the Complainant is not a Consumer since the Consumer No. 601852 is registered with O.P. No. 1 as belonging to Mrs. Fatima Dias. We are unable to accept the contention of O.P. No. 1 in this regard that merely because the gas connection is in the name of Mrs. Fatima Dias, who happens to be the mother-in-law of the Complainant and not in the name of the Complainant, the Complainant is not a Consumer. To our minds, the Complainant is very much the Consumer of which the Opposite Parties are the service providers within the meaning of section 2(i)(d)(ii) of The Consumer Protection Act, 1986 in as much as the Complainant is very much the user of the said gas cylinder and therefore the beneficiary of the services provided by O.P. No. 1. The fact that the same Mrs. Fatima Dias holds another gas connection under Consumer No. 607236 with Olmer Gas Agency, Panjim, since 1996 of The Hindustan Petroleum as admitted by the Complainant in the course of her cross-examination, is irrelevant for the purpose of deciding the issue whether the Complainant is the Consumer.
(ii) It is pertinent to note that when the point of limitation in this very case was raised as a preliminary objection, the same was upheld and the complaint was dismissed by this Commission, by majority, vide Order dated 13-10-2009.
Aggrieved by the said Order of this Commission, the revision petition was filed before Honble National Consumer Commission, New Delhi. The Honble National Commission, after citing the Full Bench decision of the Honble Supreme Court in Dr JJ Merchant and Ors v/s Shrinath Chaturvedi, (2002) 6 Supreme Court Cases 635 and another decision of the Apex Court in CCI Chambers Coop. Hsg Society Ltd., v/s Development Credit Bank Ltd., (2003) 7 Supreme Court Cases 233, dismissed the said revision petition with the direction to this Commission to proceed with the matter in accordance with the law vide Order dated 04-01-2010.
The Honble National Commission, vide the said Order, has decided the objection of the O.P. No. 1 that the Complainant is not the Consumer, in the following unequivocal terms:
Justice Deshpande, while concurring with the views of Smt. Sandra Vaz e Corriea has lucidly analysed the meaning of section 2(d) of The Consumer Protection Act and correctly held that the beneficiaries of the goods and services are also consumers. Complainant and her late husband were the beneficiaries of this LPG Gas, hence, they are the consumers under The Consumer Protection Act. Hence, we concur with the views held by the majority bench of the State Commission.
The contention of O.P. No. 1 that there is no privity of any contract between the Complainant and O.P. No. 1 is also unacceptable to us. An attempt is made to rely upon the case reported in 1997(6) SCC 383 in New India Assurance Co. Ltd. v/s. G. N. Sainani where the Supreme Court held that The Consumer protection Act is not a general law for all remedies. It is for the protection of the consumer as defined in the Act. The assignee having no existing insurable interest in the goods was not a beneficiary under the policy and therefore was not a Consumer. Hence, Complaint under CPA is not maintainable. With due respect, we hold that the aforesaid decision of the Supreme Court is not applicable to the facts and circumstances of this case as we are not talking about the assignee having no existing insurable interest in the goods in this case. The facts are as simple as that Mrs. Fatima Dias is the mother-in-law. The gas connection is standing in her name. The Complainant is the user of the same. The family was residing together when the fire incident took place. The Complainant is the beneficiary of the services provided by O.P. No. 1 and the beneficiary is covered under the definition of The Consumer Protection Act, 1986. We therefore hold that the Complainant is the Consumer as defined under the Act.
Reasons for our findings on Issue No. II i.e. Whether the O.Ps prove that the Complainant be directed by this Commission to approach the Civil Court since the present dispute is of civil nature?
(i) Our Issue No. II has also been another objection raised by O.P. No. 1 an O.P. No. 2 contending that the issues involved in this case give rise to a civil dispute and therefore the parties should be directed to approach the Civil Court. The O.P. No. 1 has relied on the decision of the Supreme Court in TRAI Foods Ltd. v/s. National Insurance Co. and Others 2004 (13) SCC 656, wherein the Supreme Court held that there is no doubt that having regard to the nature of the claim, the large amount of damages claimed and the extensive enquiry into the evidence which would be necessary in order to resolve the disputes between the parties that is not a matter to be decided summarily at all.
Ld. Adv for O.P. No. 1 has also taken us on this very aspect, through another case reported in 1998 NCJ (NC) 392 in New India Assurance Co. Ltd v/s. John Fernandes, wherein the National Commission has taken the view that when there is a dispute on the matters of fact as to the date and time of accident and the claim being fraudulently made, such questions can properly be determined only in civil suits after affording opportunities to the parties to substantiate their claims and versions as it is not possible to investigate such claims in summary jurisdiction of Consumer Forums.
(ii) With utmost respect to the aforesaid 2 decisions of the Apex Court and the National Commission, we are duty bound to hold that the facts and the circumstances of the cases before their Lordships in their above decisions were totally different and hence the ratio of the 2 decisions cannot be applied to the peculiar facts and circumstances of this case.
(iii) Firstly, it is nobodys case that the Complainant after having lost her husband in the said tragic incident of fire has played any fraud on any party in preferring the claim before any of the Opposite Parties or in filing the Complaint before this Commission with a hope to get justice.
(iv) Secondly, what matters in this case is the fact that all relevant documents have already been placed on record by all concerned parties in this case, the affidavitory evidence, answering the questionnaire on affidavit and further cross-examination of the Complainant whilst in the witness box followed by submission of final written arguments. It means that in the proceedings before this Commission, all issues under controversy can be determined in this very complaint without resorting to the alternative of directing the parties to refer their disputes to the Civil Court.
(v) Thirdly, and most importantly, considerable time has already lapsed since the filing of the Complaint before this Commission in the year 2008. Indeed, it would be a travesty of justice to advice the parties to approach the Civil Court after the lapse of four years. This Commission cannot and should not escape or run away from its duty to decide the dispute in accordance with provisions of law and principles of justice.
Reasons for our findings on Issue No. III i.e. Whether the present Complaint be dismissed as being barred by limitation?
We now advert to our third Issue that the present complaint is barred by limitation. We would like to deal at length with this objection since the submissions and counter submissions made by all the parties on the point of limitation will make all that difference while deciding the fate of this Complaint. In this regard, we make the following observations as evident from the record:
(i) The present Complaint is filed by the Complainant herein on 14/05/2008. The Gas Cylinder was allegedly supplied to her residence on 16/04/2006 by O.P. No. 1. The same was allegedly opened and put to use on 10/05/2006. The fire incident in the kitchen took place on 10/05/2006. The Complainants deceased husband succumbed to his injuries on 16/05/2006.
(ii) The case of the Complainant on the point of limitation is that her claim was repudiated by the O.Ps on 25/09/2007 and 05/10/2007 by their written replies to the legal notice of the Complainant dated 23/08/2007 and hence the Complainant contended that her Complaint is well within time. However, the O.P. No. 1, in the course of argument, has pointed out the glaring contradictions in the evidence of the Complainant when at page 1 of her cross-examination, she deposed that she has never instructed her lawyer to send any legal notice and that the legal notice in this case was not sent under her instructions.
(iii) The O.P. No. 1 has seriously argued before us that no cause of action of whatsoever nature in favour of the Complainant arose on 25/09/2007 and 05/10/2007 as alleged.
(iv) It was further contended that it is inconceivable that a defective cylinder alleged to have been supplied on 16/04/2006 would have shown any defect in the form of a leakage after a period of 25 days, assuming it was defective and leaking.
Assuming that the cause of action arose on the day when the cylinder was supplied, i.e. 16/04/2006, there is no averment in the Complaint that the Complaint is not within the period of limitation, nor there is any application for condonation of delay and hence on the face of it, the Complaint is barred by limitation prescribed under section 24A of The Consumer Protection Act, 1986.
(v) Undoubtedly, we do find some substance in this argument of O.P. No. 1. On evaluation of the evidence, we have no hesitation in rejecting the contention of the Complainant that the cause of action can be said to have arisen on the day of the repudiation of her claim i.e. on 25/09/2007 and 05/10/2007. The truth of the matter is that cause of action in the present case cannot even be said to have arisen when the Gas Cylinder was supplied to the Complainant on 16/04/2006. In our view, the cause of action cannot begin on the day when the gas cylinder is supplied but it certainly begins on the day when it is opened and its leakage is said to have started resulting into the accident. Therefore, the Gas Cylinder alleged to have been supplied on 16/04/2006 could have probably remained there for few more days or few more weeks unless the same was opened for consumption as was allegedly done in this case on 10/05/2006 and then the starting point of limitation from that date would gain its momentum if, due to the leakage or defect in the cylinder fire breaks injuring the Complainant and claiming the precious life of her husband. That incident took place on 10/05/2006. We therefore hold that the period of counting the limitation in terms of the cause of action ought to begin from 10/05/2006 which means that the present Complaint ought to have been filed on or before 10/05/2008 whereas the present Complaint is filed on 13/05/2008 as presented before this Forum on 14/05/2008.
(vi) Based on the aforesaid observations, our irresistible conclusion is that the cause of action in the present case has arisen, neither on the date when the Gas Cylinder was supplied to the Complainant i.e. on 13/04/2006 nor on the date when the deceased husband of the Complainant died i.e. on 16/05/2006, nor on 25/09/2007 and 05/10/2007 being the dates for the repudiation of the claim, but the cause of action has unequivocally and undoubtedly arisen on the day i.e. on 10/05/2006 when the gas cylinder was allegedly opened resulting into alleged fire incident in the kitchen-room of the Complainants flat. This means that O.P. No. 1 is on the right side of legality and rational thinking in submitting that the period of limitation for the Complainant ends on 10/05/2008 whereas the present complaint dated 13/05/2008 is presented before this Commission on 14/05/2008. This further means that on the point of limitation there is a definite delay of three days in filing this complaint. The Complainant has not filed any application for condonation of delay explaining the cause for the aforesaid delay of three days as is required under section 24A of The Consumer Protection Act, 1986.
(vii) Now, Section 24A of The Consumer Protection Act, 1986 prescribes the limitation period for admission of a complaint by the Consumer Fora thus:
24A. Limitation Period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
In this case, though the delay of about three days in filing the complaint before the Consumer Forum may otherwise appear to be curiously technical. This very aspect of technicality goes to the root of the jurisdiction of the Consumer Forum on the point of limitation and destroys the foundation of the complaint.
(viii) Sadly for the Complainant, there is no application for the condonation for delay as mandated by section 24A of the Act the regal of the law in this respect that follows from the aforesaid section of the Act is fortified by the judgment of the National Commission in Additional Director, Central Govt. Health Scheme and others (Petitioners) v/s. S. S. Ramchandran (Respondent), 2011 (2) CPR33 (NC) wherein the National Commission has mandated as follows:
Each days delay beyond prescribed period of limitation has to be explained satisfactorily by concerned applicant. The point for consideration was District Forum directed O.Ps to jointly and severally reimburse Rs. 12,153/- as to expenses and Rs. 5,000/- as compensation. There was delay of 120 days in filing revision petition. No dates mentioned while explaining delay. Period of delay sought to be condoned is also not known to the Petitioner. The application for condoning the delay is moved with general and vague explanation in a mechanical and routine manner. Revision petition was dismissed.
(ix) In the aforesaid decision there was atleast the application on record for condoning the delay which application was dismissed on merits. But, in the present complaint, the Complainant did not even think it just and expedient to move appropriate application for condoning the delay of three days in filing the present complaint. It is only a matter of the guess work in futility towards the end of the proceedings while writing this judgment as to what made the Complainant to take such a risk and presume that the Consumer Forum will ipso facto condone the delay. The aforesaid section 24A of the Act does not vest any inherent or intrinsic power to condone the delay without any application for condonation though the average delay is of even a single day.
Similarly in Ram Niranjan Gupta (Appellant) v/s. Bank of Baroda and Others 2010 (3) CPR 307, Rajasthan State Consumer Commission held as under:
In showing sufficient cause for condoning delay, party may be called upon to explain for whole of delay covered by period between last day prescribed for filing appeal and day on which appeal is filed. Delay in instant case could not be condoned. Proof of sufficient cause is a condition precedent for exercise of discretionary jurisdiction vested in State Commission.
Therefore, we are inclined to take a definite view that unexplained delay of three days, in the absence of application for condonation for delay, as required by The Consumer Protection Act, 1986 in filing the complaint renders this Complaint barred by limitation and on this ground alone this complaint deserves to be dismissed.
Reasons for our findings on Issue No. IV i.e. Whether on merits of the case, the acts as alleged by the Complainant constitute defect in goods or deficiency-in-service on the part of the O.Ps herein as defined under The Consumer Protection Act, 1986 and entitle the Complainant to the reliefs claimed in the complaint?
(i) Our reasons for the aforesaid finding on Issue No. 4 begin with the evaluation of evidence on merits of the case as to firstly the cause of fire and secondly, the defect in gas cylinder.
(ii) On the aspect of evidence as to the cause of fire, the Complainant has argued before us that the noting on the accidental death summary by P.I. V. P. Karpe, the then P.I. of Old Goa Police Station is very crucial in supporting the claim of the Complainant which noting reads thus: From the inquiry conducted, the leaked gas got ignited and the deceased sustained 25% burn injury and while undergoing treatment, expired and there is no foul play suspected into his death....
This report, according to the Complainant, substantiates the case of the Complainant that there was leakage of gas from the defective cylinder which resulted in the death of the Complainants husband.
(iii) The Complainant also has argued that the judgment of Sub-Divisional Magistrate dated 15/06/2006 strengthens the case of the Complainant when it ends with observation that I do hereby order that the death of the deceased Petwyn Caetano Dias, who died on 16/05/2006 at 12.40 pm at Goa is accidental death due to Septicaemic shock as result of infected surface flame burn and injuries.
(iv) It is pertinent to note that the Fire Report dated 29-05-2006 issued by the State Fire & Emergency Services Department i.e. document (ii) of O.P. No. 1 at Court File p e/78 opines as under:
On arrival at the place of incidence, it was observed that the LPG cylinder was brought out by the technician of HP Dealer before arrival of the duty crew and there was no fire in the residential house. Further inquiring it was learnt that 02 persons by name Shri. Petwyn Dias and Mrs. Karishma Dias, was sustained burn injuries was shifted to Goa Medical College Hospital, Bambolim, Goa. The Old Goa Fire Station duty crew also visited the incident spot with Water Tender-17 bearing reg. no. GDE-8265.
The property worth Rs. 1000/- was loss due to the fire and supposed cause of fire is not known.
(v) Whereas the Complainant has relied on the Fire Report issued by the same authority dated 01-02-2008, which report opines that supposed cause of fire is due to leakage of LPG coming in contact with LPG stove flames and contains the following observation:
On arrival at the place on incident, it was observed that the kitchen room of H-No. 369 at St. Estevam, Tiswadi, Goa, was involved in fire which was spreading very fast. Immediately, fire fighting operation was commenced and soon the fire was brought under control and extinguished completely thereafter with the help of special fire-fighting equipments.
(vi) In our considered opinion, these 2 reports from the same State Fire & Emergency Services, one dated 29-05-2006 and the other dated 01-02-2008, are totally contradictory in terms of the particulars of fire at the site in question and the cause of fire. We are in agreement with the submission made by the O.P.s herein that it was for the Complainant to explain these glaring contradictions in the two reports especially when both the reports come from the same Government Agency at two different points of time containing two different opinions in respect of the same incident. The Complainant has failed to do so.
(vii) On the other hand, O.P. No. 1, in their defence at page C/99, has attached the Schedule 1 pointing out the following discrepancies in the two reports dated 29-05-2006 and 01-02-2008 at paras 9, 10 and 11 thereof:
9. Ref to section VII ANY OTHER REMARKS Original report dated 29.05.2006 says Fire was put off, before the arrival of the crew Report relied by the Complainant dated 01.02.2008 says The fire was spreading very fast.
Immediately fire fighting operation was commenced & soon the fire was brought under control and extinguished completely thereafter with the help of special fire fighting equipments.
10. ref to section VII ANY OTHER REMARKS In the Original report dated 29.05.2006 Summary contains the names of the injured and also speaks about their shifting to GMC Bambolim.
In the Report relied by the complainant dated 01.02.2008 Summary does not contain the names of the injured and nothing about their shifting for any medical assistance.
11. ref to sec VII ANY OTHER REMARKS Original report dated 29.05.2006 says Supposed cause of fire is not known Report relied by the complainant dated 01.02.2008 says Nothing about supposed cause of fire.
Remarks on 9, 10 and 11 There is a complete change in this section. This entire section/remarks of the Report relied by the complainant differs from the original one in letter and spirit, and is far from the truth.
(viii) Hence, our finding on the aspect of the two reports of the Fire Department is that the affidavitory evidence of the Complainant has left her complaint in total darkness and confusion about the supposed cause of fire and true prevailing circumstances around when the incident took place, considering the fact that the two contradictory reports about the same incident issued by/obtained from the same authority at two different points of time, can hardly substantiate the case of the Complainant in the absence of convincing and cogent evidence explaining inter alia the contradictions and contra-distinctions apparent on the face of the two reports on record.
(ix) We now advert to the question whether the gas cylinder was defective? Touching the line of evidence, it is observed that at page C/357 of the record file, there is an Affidavit-in-reply of the Complainant in response to the questionnaire dated 16-04-2010 of the O.P. No. 1 inter alia admitting that the said fire report dated 01-02-2008 was issued to my mother-in-law, Mrs. Fatima Dias, in pursuance of her letter dated 22-01-2008 and that Neighbours by name Mohini and her husband Damodar attempted to put off the fire. However, it is observed on merits that the Complainant has not brought on record the affidavitory evidence of those persons who witnessed the said incident, nor do their names appear in the Panchnama Report. The Complainant has also not collaborated with convincing evidence that the faulty regulator was supplied to her by the O.P. No. 1 and her late husband had been frequently visiting the office of the O.P. No. 1 for a replacement.
(x) On the contrary, the evidence on record relied upon by O.P. No. 1 reveals that O.P. No. 1, vide their letter dated 14-08-2008 addressed to O.P. No. 2 requested the Plant Manager of O.P. No. 2 to submit the test report of the said cylinder involved in the fire incident at the residence of the Complainant. Accordingly, the Plant Manager of O.P. No. 2 submitted the test report on 22-08-2008 after testing the said cylinder at their LPG Bottling Plant. The said test report vide III-LEAK TEST contains the following observations:
Electronic leak detector : Cylinder has tested for valve leak and bung leak by On-line Electronic Leak detector and found no Leak.
O ring Testor : Cylinder has tested for O ring leak by On-line Electronic O ring tester and found no Leak.
Test Bath: Cylinder has taken through On-line water test bath to check body leak and found no leak.
RESULT: No leak observed from the body of cylinder, valve and valve bung.
Our finding therefore is that the aforesaid report of the Plant Manager of O.P. No. 2 has gone unchallenged and consequently we have to accept the inference that follows from it to the effect that the gas cylinder was not defective and that there was no leakage.
(xi) This apart, the Complainant has not successfully met with the argument advanced by O.P. No. 1 that while her mother-in-law Mrs. Fatima Dias is holding the two LPG connections of the same HPCL from the two different distributors, there is nothing on record to show that the second connection from M/s. Olmer Gas Agency, St. Inez, Panjim has been disconnected/terminated.
(xii) Also the fact remains that the Complainant had admitted in the process of cross-examination that the cylinder was connected much before the date of alleged incident and it was not connected on the day of alleged incident.
(xiii) It appears that the Complainant herself is in two minds as to whether there was a defect in goods or was there any deficiency-in-service on the part of the respective O.Ps.
In her pleadings as well as affidavatory evidence, she has not answered the counter defence of O.P. No. 1 and O.P. No. 2 that assuming without admitting that the cylinder was defective with leakage, then the cylinder would have exhausted in a couple of days and in any case would not have lasted for a period of 25 days as alleged by the Complainant.
At this stage, we ask for ourselves a very pertinent question as to why the Complainant has failed to produce on record the photographs showing the position of the kitchen-room, the kitchen cabinet and the gas cylinder in question etc, which could have helped the Complainant to substantiate her case and cause.
(xiv) We now turn to a very relevant decision cited by O.P. No. 1, in Abdulhusein Rajabali v/s. Akshar Gas Service, reported in (1994) 3 CPR 248, which decision, to our minds, can enable this Commission to dispose off the present compliant. This case, also known as Defective-Cylinder case comprises of the facts and the circumstances which are nearly similar or almost identical to the facts and circumstances in the present complaint.
In this case, the distributor had supplied a gas cylinder to the complainant at her house on May 16, 1992. It was alleged that when one of the complainants was preparing tea on June 10, 1992, there was fire and the gas cylinder burst and as a result the three-straid house together with furniture was completely destroyed. The Complainant approached the Commission claiming Rupees 10 lacs alleging deficiency-of-service on the part of O.Ps Nos. 1 and 2 in supplying the defective cylinder. The O.P. No. 2 explained in detail the precautions taken in filling in and supplying the gas cylinders and hence there was no leakage. The O.P. No. 2 took the defence that there is no possibility of defective cylinder being delivered since the refilled gas cylinder was depicted to the Complainant on May 16, 1992 and the alleged accident took place on June 10, 1992, after about 20 days.
The Commission, while accepting the defence of the O.Ps, held that in the complaint it is nowhere stated that the gas cylinder was not used between May 16 and June 10, 1992 and that it was connected with the gas stove only on June 10, 1992, the date on which the fire took place. If the cylinder was defective, it would not have been possible to use it without any problem from May 16 to June 10, 1992. In the light, the Commission found it difficult to hold that the cylinder was defective, as alleged by the Complainants. The Commission therefore dismissed the complaint with ending remarks Therefore, there is no deficiency-of-service on the part of any of the opponents. We feel sorry for the Complainants who have lost their house. With all the sympathies for them, we are unable to hold the Opponent liable for the loss suffered by them.
We apply the aforesaid decision to the facts in the present complaint and say The gas cylinder is not defective. We feel sorry for the Complainant who suffered the injuries and lost her husband due to the fire incident. With all the sympathies for her, we are unable to hold the O.Ps Nos. 1 and 2 liable for the loss suffered by her. In the light of our aforesaid observations and findings, we are inclined to hold that the O.P. No. 1 cannot be held liable at law in the present complaint and therefore this case deserves to be dismissed as against O.P. No. 1.
(xv) On the point of liability of O.P. No. 2, i.e. Hindustan Petroleum Corporation Limited, we accept the contention of O.P. No. 2 that they did their job fairly after the gas cylinder in question was referred to them by O.P. No. 1 for their report according to which the said cylinder with its O-ring was intact and without any defect. The said O.P. has rightly pointed out the contradictions in the Complainants cross-examination at page 1, line 22, wherein she deposed I say that around one month we could smell the leakage of LPG before the accident took place and the pipe was defective. I say that the regulator which was involved in the accident was received by Mr. Karve of O.P. No. 2. At page 3, line 5, she deposes I say that I do not know since when the cylinder involved was in use. I also do not know when the cylinder involved in the accident was fitted for operation for use. I also do not know how many cylinders are there in my house. At para 24 of her reply to the questionnaire, the Complainant deposes that There could be a possibility that O.P. No. 1 deliberately chose not to replace the defective regulator with an ulterior motive and design to cause fire hazard. It is unfortunate that this last part of her deposition should have come for the first time from the mouth of the Complainant at a very late stage and that too whilst in the witness box when it was never her case that there was any previous enmity or personal grudge between her and O.P. No.
1. (xvi) We go by the decision of The National Commission reported in Flame Gas Service, Bikaner and Others, Appellant v/s. Aklesh Kumar Bansal and Others, Respondents, 1(1995) CPJ 78 (NC). In this case, where the defective gas cylinder on blast caused serious injuries to some complainants and one of the complainants wife died, National Commission, on appeal, held that the distributor cannot be said to be an agent for the Corporation and the Corporation cannot be made liable for the negligent act of the distributor and hence the appeal of Indian Oil Corporation is liable to be accepted.
(xvii) In view of the above decision and our aforesaid observations, we do hereby record our finding that the present complaint filed against O.P. No. 2 has to be dismissed.
(xviii) As regards the liability of O.P. No. 3 herein which has been lately impleaded as a party at the intervention of O.P. No. 1, our finding is that, there are no allegations made against this O.P. by the Complainant and O.Ps No. 1 and 2. We are entirely in agreement with Ld. Adv. of O.P. No. 3 that there is no cause of action whatsoever that can be said to have accrued to the Complainant as against O.P. No. 3 and therefore we accept the contention of O.P. No. 3 that the Fire Policy produced on record does not cover the losses suffered by the Complainant herein under the alleged circumstances in as much as the said Policy covers only the direct losses suffered by the insured only at such places as Office building, godown and vehicles of the insured with maximum liability for a single accident to the tune of Rs. 10 lacs only.
Hence we are duty bound to dismiss this complaint as against O.P. No. 3.
(xix) Before we part with this judgment, we would like to add that since we are inclined to dismiss this complaint against all the O.Ps herein, the question of the alleged claim of the Complainant in terms of the unproved amount of compensation of Rs. 95 lacs as prayed for in the complaint does not arise.
In the result, we do hereby hold that the present complaint fails as it falls under its own weight for the reasons cited above. On the point of limitation and on merits of the case, the Complainant has failed to prove with cogent and convincing evidence any case against any of the O.Ps. The allegations in the complaint have remained allegations only and the same cannot take place of proof. We therefore pass the following:
ORDER It is hereby ordered that the present complaint dated 13/05/2008 as presented before this Commission on 14/05/2008 filed by the Complainant herein against the O.Ps herein is hereby dismissed with no order as to costs.
(Shri Jagdish Prabhudesai) Member (Smt. Vidhya Gurav) Member