State Consumer Disputes Redressal Commission
Sanjeev Kumar Jhamb vs M/S Indian Oil Corporation Ltd. on 12 November, 2018
IN THE STATE COMMISSION: DELHI
(Constituted under Section 9 of the Consumer Protection Act, 1986)
Date of Decision: 12.11.2018
Complaint Case No.30/2004 & 31/2004
In the matter of: (CC NO. 30/2004)
1. Mr. Sanjeev Kumar Jhamb
s/o. Sh. Prem Prakash Jhamb
r/o. D-14 A/16, Model Town
Delhi-110009
2. Master Siddhant Jhamb
s/o. Sh. Sanjeev Kumar Jhamb
r/o. D-14 A/16, Model Town
Delhi-110009
3. Master Shubham Jhamb
s/o. Sh. Sanjeev Kumar Jhamb
r/o. D-14 A/16, Model Town
Delhi-110009
4. Sh. Prem Prakash Jhamb :
r/o. D-14 A/16, Model Town
Delhi-110009 Complainants
Versus
1. M/s Indian Oil Corporation Ltd.
World Trade Centre
Barakhamba Lane
New Delhi-110 001
2. M/s Alok Gas Agency
Shop NO.1, C-14,
Model Town, Delhi-110009
3. M/s Oriental Insurance Company Ltd. :
Oriental House
A-25/27, Asaf Ali Road,
New Delhi-110002 Opposite Party(s)
Page 1 of 19
In the matter of: (CC NO. 31/2004)
1. Smt. Kanta Jhamb :
w/o. Sh. Prem Prakash Jhamb
r/o. D-14 A/16, Model Town
Delhi-110009 Complainant
Versus
1. M/s Indian Oil Corporation Ltd.
World Trade Centre
Barakhamba Lane
New Delhi-110 001
2. M/s Alok Gas Agency
Shop NO.1, C-14,
Model Town, Delhi-110009
3. M/s Oriental Insurance Company Ltd. :
Oriental House
A-25/27, Asaf Ali Road,
New Delhi-110002 Opposite Party(s)
CORAM : N P KAUSHIK, Member (Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
Cases relied upon
1. K.G. Sathyanaryan vs. Bharat Petroleum Corporation Ltd. &
Ors., III (2006) CPJ 8 (NC).
2. Indian Oil Corporation vs. Consumer Protection Council,
Kerala and Anr., II (1994) CPJ 21 (SC)
3. Jitender Khimmshankar Trivedi and others vs. Kasam Daud
Kumbhar and others, 2015 (4) SCC 237
Page 2 of 19
N P KAUSHIK - MEMBER (JUDICIAL)
JUDGEMENT
1. This order shall dispose of two complaints bearing nos.
C-30/2004 & C-31/2004. In complaint No. 30/2004 titled as Sh. Sanjeev Kumar Jhamb vs. Indian Oil Corporation Ltd., Complainant No. 1 is the husband of the deceased Smt. Neena Jhamb. Complainants nos. 2 and 3 Master Sidhanth Jhamb and Master Shubham Jhamb are their sons. Complainant no. 4 Sh. Prem Prakash Jhamb is the father-in- law of deceased Smt. Neena Jhamb and father of the complainant no. 1 Sh. Sanjeev Jhamb. In complaint no. C- 31/2004 complainant Smt. Kanta Jhamb is the mother-in-law of the deceased Smt. Neena Jhamb.
2. All the abovesaid persons mentioned above were at the relevant time residing in house no. D-14A/16, Model Town, Delhi-110009, in a joint family. On 03.04.2003, Smt. Kanta Jhamb while doing the cooking work in her kitchen alongwith her daughter-in-law Smt. Neena Jhamb felt that the gas cylinder had been finished. Another gas cylinder which was Page 3 of 19 filled up and kept at some other place in the house was brought to the kitchen with a view to connect it to the oven. Smt. Kanta Jhamb removed the cap of the gas cylinder so brought. Suddenly gas started leaking from the cylinder. It was coming out in the form of shower of liquid gas. Both Smt. Kanta Jhamb and Smt. Neena Jhamb on realizing that the gas cylinder was leaking, attempted to leave the kitchen. As they started moving out a blast in the form of a ball of fire in air occurred. Glasses of the window of the kitchen were broken. The whole kitchen was on fire. Smt. Kanta Jhamb and Smt. Neena Jhamb were caught in the flames. They received severe burn injuries on their bodies. Smt. Kanta Jhamb received 65% burns whereas Smt. Neena Jhamb received 90% burns.
3. Smt. Kanta Jhamb and Smt. Neena Jhamb were rushed to Pentamid Hospital, Delhi. They were given first-aid there and thereafter shifted to Sunder Lal Hospital, Delhi. Condition of Smt. Kanta Jhamb improved and she was discharged from the hospital after 18 days. Unfortunately Smt. Neena Jhamb who had received 90% burns died in the hospital on 27.04.2003. Gas cylinder in question was supplied by the gas dealer M/s Page 4 of 19 Alok Gas Agency, 1-C, 14, Model Town, Delhi (in short OP2). Gas connection was in the name of Sh. Prem Prakash Jhamb and the gas cylinder belonged to M/s Indian Oil Corporation Ltd. (in short OP1). M/s Oriental Insurance Co. Ltd. (in short OP3) has been impleaded being the insurer of OP2 i.e. M/s Alok Gas Agency.
4. On the basis of the aforesaid allegations, complainants in complaint case no. 30/2004 claimed compensation on the death of Smt. Neena Jhamb as under:
No. Particulars Amount
1. Expenses incurred on the treatment of Rs.2,96,622.80
Smt. Neena Jhamb
2. Expenses incurred on 60 units of blood Rs.30,000.00
@Rs.500/- per unit
3. Loss of enjoyment of company of Smt. Rs.15,00,000.00
Neena Jhamb by complainant no.1
4. Loss of enjoyment of company of Rs.15,00,000.00
bringing up the children, i.e.
complainants no. 2 and 3
5. Mental agony, torture and financial Rs.25,00,000.00
loss because of death of Smt. Neena
Jhamb as she used to do all household
jobs and take the responsibility of
education of children etc.
Total Rs.58,26,622.80
Page 5 of 19
5. In complaint no. 31/2004, compensation sought by Smt. Neena Jhamb is as under:
No. Particulars Amount
1. Expenses incurred on the treatment in Rs.1,30,000.00
hospital
2. Expenses incurred on 10 units of blood Rs.5,000.00
@Rs.500/- per unit
3. Expenses incurred after the treatment Rs.2,00,000.00
in hospital till 31.03.2004
4. Expenses incurred for transportation Rs.1,00,000.00
for regular check-ups in the hospital till 31.03.2004
5. Expenses incurred on special diet till Rs.5,00,000.00 31.03.2004
6. Future expenses expected to be Rs.5,00,000.00 incurred from time to time on treatment, transport and special diet
7. Damage caused in the kitchen and in Rs.2,00,000.00 other portion of the house
8. Loss of business of Sh. Sanjeev Kumar Rs.12,00,000.00 Jhamb
9. Mental and psychological agony, and Rs.20,00,000.00 torture suffered due to the accident Total Rs.48,35,000.80
6. Contention of the complainants is that the leakage in the gas cylinder was due to the defect in tightening of the cylinder with the cap or otherwise. Complainants alleged 'deficiency in service' on the part of the gas manufacturer i.e. M/s Indian Oil Corporation Ltd. and the distributor M/s Alok Gas Agency. Page 6 of 19
7. Defence raised by the manufacturer i.e. M/s Indian Oil Corporation Ltd. (OP1) is that the distributor is responsible for taking delivery, supply, distribution and installation of the cylinder. It includes the mandatory checking at the time of providing LPG connection.
8. OP1 i.e. M/s Indian Oil Corporation Ltd. took a stand that in terms of the agreement entered into between them and the OP2 i.e. M/s Alok Gas Agency, the transaction is on a 'principle to principle basis'. It is the distributor who is responsible for the safety and security of the cylinder in its possession. Relevant clause is clause 17. OP1 further submitted that it has bottling plants all over the country for supply and distribution of LPG. The whole system is governed by rules and regulations. It keeps check on the bottling process, dealers and distributors. OP1 contended that the distributor should check the cylinder before taking out the same for delivery. Similarly the customer is required to check the cylinder while taking its delivery. It is mandatory to connect the cylinder with the hot plate or stove at the time of Page 7 of 19 delivery. Cylinder cannot be kept as reserve unless the customer checks its safety.
9. Next submission of OP1 is that the valve and 'O' ring are checked with 'Compact Valve Testing' whenever cylinders are brought for refilling. Weights of the cylinders are checked with electronic balance. Cylinders not meeting prescribed standards are sent back for change of valve or the ring. Cylinders with correct weight and aperture are sent for dispatch. Safety caps are properly put and cylinders are properly sealed. Record of every cylinder is kept and Statistical Quality Check (SQC) is done by Plant Officers. It is the job of the delivery man of the distributor to check the cylinder and the gas leakage at the customer's place. He has to break open the seal by way of removing plastic cap and connect the cylinder to the stove. Defective cylinders are required to be reverted back. It is due to the lack of awareness of the customers or the distributor that a cylinder catches fire. LPG Gas Manual provides that the customers as well as the distributors should ensure that 'O' ring (sealing rubber washer) is present. They are required to check for the leakage.
Page 8 of 19
10. Coming to the case in hand, OP1 submitted that the leakage of the gas took place due to mishandling and negligence of the customer. Gas could have easily let out through dissipation. It was not impossible to put a cap on the cylinder even if the gas was gushing out. Persons present at the time of accident did not handle the situation well and panicked thereby allowing the gas to accumulate. As a standard procedure source of ignition has to be taken off. Ignition can be done only when the cylinder is properly installed. Due to some negligent act of the customers in the present case there was ignition which caused fire.
11. No report of manufacturing defect or from CFSL has been filed. Post-mortem of the deceased was not done to ascertain the cause of death.
12. Defence raised by OP2 i.e. M/s Alok Gas Agency is that Smt. Neena Jhamb died in mysterious circumstances. It is not clear how Smt. Neena Jhamb suffered 90% burn injuries whereas Smt. Kanta Jhamb received only 65% of the burns. Page 9 of 19
13. Next submission of OP2 is that the photograph shows only the left hand of the complainant Smt. Kanta Jhamb as injured/ burned. In case she was bent downwards facing the cylinder mouth, injuries should have been elsewhere too. Victims were taken to a local nursing home and not to a competent hospital.
14. OP2 vehemently submitted that the complainant Sh. Sanjeev Jhamb in connivance with his mother Smt. Kanta Jhamb wanted to burn the victim Smt. Neena Jhamb only. Smt. Kanta Jhamb received injuries when she found it difficult to get out of flames.
15. Next submission of OP2 is that the cylinder in question kept lying unused for 14 days. It was delivered on 20.03.2003 whereas the incident took place on 03.04.2003. The gas BUTANE in the cylinder has a obnoxious smell. Its leakage should have alerted the inmates of the house. In case of simple leakage, gas is released from the cylinder and there is no question of increased pressure inside, leading to explosion. No complaint/ FIR was lodged with the police. It was a case where an attempt was made to burn the daughter-in-law. Smt. Kanta Jhamb escaped with minor injuries only. Page 10 of 19
16. OP2 stated that the cylinder in question is the product of OP1 and he was merely a distributor. He is not liable for the defect in the cylinder. OP1 ought have checked the leakage of the cylinder at the time of putting seal on it.
17. OP3 i.e. Oriental Insurance Co. Ltd. stated that OP2 had taken an indemnity policy for the period from 30.03.2003 to 29.03.2004. This policy covered building, EMT 4 Filter, stock of empty and filled-up cylinders. The policy was not taken to cover 'personal accident/ death of any customer. In the absence of the said policy cover, OP3 was not liable.
18. Parties placed on record their affidavits towards evidence. Written arguments too were filed. I have heard at length the arguments addressed by the Counsel for the complainants Sh. Mohinder Singh, Counsel for OP1 Sh. Dattatray Vyas, Counsel for OP2 Sh.Shiv Sehgal.
19. It is the admitted case of the parties that the incident took place on 03.04.2003 while Smt. Kanta Jhamb and Smt. Neena Jhamb were attempting to replace the empty cylinder with the Page 11 of 19 filled up one. The moment the plastic cover covering the valve was removed, gas started coming out rapidly. After sometime it caught fire and the accumulated gas had acquired the shape of a fire ball. It is not the case of the complainants that the body of the gas cylinder was defective. It was only at the point of valve and the lid that the complainants alleged 'deficiency in service' on the part of OP1 and OP2. Since the leakage took place at the time of removal of the plastic cap only, there was no question of the obnoxious smell of BUTANE having been perceived by any family member during the period when the cylinder was lying unused. In other words there was no complaint of leakage of gas prior to the date of incident. Manufacturing defect of the body of the cylinder as such is not alleged.
20. Complainants immediately reported the matter to the Department of Fire who reached the site and submitted their report. There was no attempt on the part of the complainants to conceal the incident. Plea thus raised by OP1 that the complainants should have obtained a report from the lab is of no avail as the defect was in the fixing of the valve and the lid thereon. In normal course after lifting of the plastic cover, the Page 12 of 19 valve closes the aperture, avoiding any type of leakage. It is only when some pressure is put by the regulator on the valve that a way for the gas to come out, is made.
21. Complainants have been able to discharge their initial burden that the valve and the lid upon it were not properly placed. Now the burden is shifted on the OPs to prove that opening of the lid in a particular manner not prescribed could cause the accident. A vague allegation that it was a case of mishandling is of no avail to the OPs.
22. Defence raised by OP2 that the complainants wanted to burn the deceased Smt. Neena Jhamb is totally devoid of merits as it is not supported by any material. Delhi Fire Service officials gave a finding that the incident took place due to leakage of the gas cylinder valve. Mother-in-law getting 65% burns and daughter-in-law getting 90% burns is sheer accident and OP2 has viewed the accident with coloured glasses.
23. OP1 and OP2 have tried to shift the blame on each other. OP1, the manufacturer simply took a stand that it was the responsibility of OP2 to ensure safety and security of the Page 13 of 19 cylinder. OP1 has heavily relied upon Clause 17 of the Agreement whereby the transaction between them was on 'principle to principle basis'. Similarly OP2 contends that the gas cylinder was the product of OP1 and he was merely a distributor. He used to deliver cylinders to the registered customers in a condition in which it used to receive from OP1. Hon'ble National Commission has set at rest the said controversy between the manufacturer and the distributor in the case of K.G. Sathyanaryan vs. Bharat Petroleum Corporation Ltd. & Ors., III (2006) CPJ 8 (NC). Relying upon the case of Indian Oil Corporation vs. Consumer Protection Council, Kerala and Anr., II (1994) CPJ 21 (SC), it was held that the agreement between the manufacturer and the distributor cannot take away the right of the consumer by unnecessary implications. Paras 39 and 41 of the judgement are relevant. The same are reproduced below:
"39. Notwithstanding Clause 17, if under authority of the Government Oil Company like Bharat Petroleum Corporation Ltd. any distributor is authorized, the distributor would be acting only under authority of the company and not independently. The observation in latter part of para 14 of the judgment in Indian Oil Corporation's case referred to hereinabove, compel us to hold that Hindustan Petroleum Corporation could not avoid its liability as principal notwithstanding the agreement between the two.Page 14 of 19
Supposing for the sake of argument Clause 17 prevails absolutely then it would not be in tune with Clause (a) of Sub-clause (1) of Clause 4 for it is the duty of HPL only to fill any cylinder with liquefied petroleum gas or transfer liquefied petroleum gas from one cylinder to another cylinder or from one container to another container unless authorized by the Chief Controller of Explosives. The distributor has no such right in view of the specific provision added to the sub-section which is confined to removal of the seal in presence of the consumer either for checking or installing of cylinder.
41. It would, thus, appear that though insofar as the liability between the Hindustan Petroleum and the Distributor is concerned, that may be governed by the agreement but it would not take away the right of the consumer by necessary implications. If the distributor is acting under authority of the Government's Oil Company then the Government Oil Company would not be able to absolve itself from the liability to pay compensation in such like matters on account of deficiency in service in not properly advising in terms of the agreement in case the trained staff does not perform their duty to check the gas connection and tube etc. and instruct about other safety measures. The B.P.C.L. would itself be vicariously liable to pay for compensation in deficiency in service, relief and Compensation."
24. In view of the legal position settled by the superior courts, defences raised by OP1 and OP2 do not help them. Since the manufacturer is vicariously liable and the OPs have failed to discharge the burden of any negligence on the part of the Page 15 of 19 complainants, I am of the considered opinion that the OP1 and OP2 are guilty of 'deficiency in service'.
25. Relief and quantum of compensation, claimed in both the complaints have separately been detailed above.
26. Now coming to the quantum of compensation in respect of the deceased Smt. Neena Jhamb (in complaint case no. 30/2004), Hon'ble Supreme Court in the case of Jitender Khimmshankar Trivedi and others vs. Kasam Daud Kumbhar and others, 2015 (4) SCC 237 held that while calculating the compensation under Section 168 A of Motor Vehicle Act-1988, services rendered by a homemaker have to be kept in view while calculating the loss of dependency. Section 163A of the Motor Vehicle Act-1988 provides for compensation on the structured formula basis. Income of the injured has been categorised as one-third (1/3rd) of the earnings of surviving spouse. In the present case the surviving spouse of Smt. Neena Jhamb is Mr. Sanjeev Kumar Jhamb. On affidavit he stated that he was earning Rs.22,000/- per month whereas the income tax return filed by him for the relevant period shows his income as not taxable. He Page 16 of 19 assessed the same at Rs.36,000/- p.a. (approx). There is a great contradiction in the statements made by Sh. Sanjeev Kumar Jhamb in this Commission and the one before the income tax authorities. This is unfortunate that the litigants show an exaggerated income while seeking compensation in motor accident cases or the cases like the present one and end to conceal it when it comes to payment of income tax. Be that as it may, without dwelling much on the contradictions, I am of the opinion that a notional income of Rs.5,000//- per month in case of the deceased Smt. Neena Jhamb would meet the ends of justice. Deducting one-third (1/3rd) (on personal expenses) out of the said income, the total loss of dependency would be Rs.40,008/- per annum i.e. Rs.5,000 - 1,666 X 12. Applying the multiplier of 14 (deceased being 40 years old), the amount works out to Rs.5,60,112/- (40008 x 14 = 560112). In this way the complainants claiming compensation on account of the death of Smt. Neena Jhamb are entitled to following amounts:
a. Compensation in terms of Section 163A Rs.5,60,112/- of Motor Vehicle Act-1988 b. Expenses incurred in the treatment in Rs.2,96,622/- the hospital c. Expenses on 60 units of blood @ Rs.30,000/-
Rs.500/- per unit
Page 17 of 19
d. Loss of Estate Rs.5,000/-
e. Funeral expenses Rs.5,000/-
f. Loss of consortium Rs.50,000/-
g. Loss of love and affection to the minor Rs.1,00,000/-
children
Total Rs.10,46,734/-
27. Compensation in respect of injured Smt. Kanta Jhamb (in complaint case no. 31/2004) is allowed as under:
a. Expenses incurred in the treatment in Rs.1,30,000/- the hospital b. Expenses on 10 units of blood @ Rs.5,000/-
Rs.500/- per unit
c. Conveyance Charges Rs.10,000/-
d. Special diet Rs.10,000/-
e. Damage caused to the kitchen Rs.20,000/-
Total Rs.1,75,000/-
28. Summing up the position explained above complainants in complaint no. 30/2004 are entitled to an amount of Rs.10,46,734/- alongwith interest @8% per annum from the date of institution of the complaint till its realization.
Complainants in complaint no. 31/2004 are entitled to an amount of Rs.1,75,000/- alongwith interest @8% per annum from the date of institution of the complaint till its realization. Page 18 of 19 The abovesaid amounts shall be paid by OP1 and OP2 jointly and severally to the complainants within a period of 30 days from today failing which the amounts shall carry interest @12% p.a.
29. Since insurance policy is admitted, I feel that the insurance company i.e. OP3 is liable to indemnify OP2 i.e. M/s. Alok Gas Agency.
30. Both the Complaints are accordingly disposed of. Files be consigned to records.
(N P KAUSHIK) MEMBER (JUDICIAL) (am) Page 19 of 19