State Consumer Disputes Redressal Commission
Unitted India Insurance Co.Ltd And ... vs Parkash Singh on 1 January, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.530 of 2018
Date of Institution : 20.09.2018
Date of Reserve : 07.12.2018
Date of Decision : 01.01.2019
1. United India Insurance Company Ltd. through its Deputy
Manager (Legal), Regional Office, SCO 123-24, Sector 17-B,
Chandigarh.
2. United India Insurance Co. Ltd., Divisional Office No.17, 226,
Canada Building, 1st Floor, Dr. D.N. Road, Fort, Mumbai-
400001, through its Senior Divisional Manager.
....Appellants/Opposite Party No.3
Versus
1. Parkash Singh son of Gajjan Singh, aged 65 years, Mobile
No.64654-12861;
2. Manjeet Singh son of Parkash Singh;
3. Gurwinderjit Singh son;
4. Parabjot Singh son;
5. Kirandeep Kaur daughter of Shri Manjeet Singh.
all residents of Village Odhra, Tehsil Dasuya, District
Hoshiarpur.
....Respondents/complainants
6. M/s H.P.Gas Dasuya Gas Service, Gurunanak Nagar, Dasuya,
Hoshiarpur, through its Proprietor.
7. M/s H.P.Gas, Corporate Head Quarter Office Petroleum House
17, Jemshedji Tata Road, Mumbai-400020.
....Respondents/opposite parties No.1 & 2
First Appeal against the order dated
02.08.2018 of the District Consumer
Disputes Redressal Forum, Hoshiarpur.
First Appeal No 530 of 2018 2
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Present:-
For the appellants : Sh.B.S.Taunque, Advocate
For respondents No.1-5 : Sh.Arnav Sood, Advocate
For respondent No.6 : Sh.Sahil Abhi, Advocate
For respondent No.7 : Sh.Venu Gopal, Advocate
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The instant appeal has been filed by the
appellants/opposite party No.3 against the order dated 02.08.2018 passed by District Consumer Disputes Redressal Forum, Hoshiarpur (in short, 'District Forum'), whereby the complaint filed by the complainants/respondents, under Section 12 of the Consumer Protection Act, 1986 (in short "C.P. Act") was partly accepted and directed the opposite party No.3 to pay the compensation to the complainants No.2 to 5 to the tune of Rs.8,00,000/- along with interest at the rate of 12% per annum from the date of repudiation letter i.e. 24.07.2017 till realization. Opposite party No.3 was further directed to pay litigation expenses of Rs.10,000/-. It was further directed to comply the order within 30 days from the date of receipt of the certified copy of the order.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. Brief facts, as averred in the complaint, are that complainant No.1 was having LPG Connection bearing Consumer First Appeal No 530 of 2018 3 No.518320. Complainant No.2 is son of complainant No.1 and complainants No.3 to 5 are grand children of complainant No.1. He was living with his wife, son, daughter in law (deceased) and grand children. The complainant No.1 was regular consumer of the opposite party. On booking of gas cylinder, the same was issued to him on 29.05.2015. The daughter-in-law of complainant No.1 used to work in the kitchen. On 12.06.2015, she changed the empty cylinder before half an hour of the incident and when she again went to the kitchen for preparing food and switched on the gas suddenly due to blast in the gas cylinder the clothes of deceased Kawalpreet Kaur caught fire and she fell on the floor. Complainant No.1 helped her to extinguish the fire and taken her to the hospital. The accident occurred due to supply of defective refilled gas cylinder and when she pressed the nob of changed gas cylinder burner, then there was a blast and cylinder caught the fire and the daughter-in-law of complainant No.1 came into the contact of fire. It was the duty of the manufacturer and dealer to provide the domestic gas to the consumer with due care and precaution and services be rendered keeping in view the precautions provided under the rules. Complainant No.3 to 5 are children of daughter-in- law of complainant No.1 and were fully dependent upon her, whereas complainant No.2 being husband of the deceased has lost his consortium. The statement of the deceased was also recorded under Section 164 Cr.P.C. by Sh. Amardeep Singh, Learned J.M.I.C., Jalandhar on 13.06.2015 and she expired on 18.06.2015. First Appeal No 530 of 2018 4 A sum of Rs.1,00,000/- was spent on her treatment. Earlier, a Consumer Complaint bearing No.131 of 2015 was filed before the District Forum, which was decided on 01.09.2016 with a direction to the opposite party to settle the claim of the complainant within two months from the date of receiving of certified copy of order. Thereafter, the complainant delivered all the documents which were demanded by the opposite parties. Those documents were also filed before the District Forum in the earlier complaint, but the opposite parties gave excuses of non-supply of certain documents. Opposite party No.3 also brought on record the repudiation letter dated 24.07.2017, which was never received by the complainants within the time fixed by the Forum. On 27.07.2017, the Execution application was disposed of. In its letter, opposite party accepted the receiving of various documents, like original claim form, LPG accident report A and B, certified copy of death certificate, police diary, photocopies of medical bills, whereas they repudiated the claim on the ground of non-supply of original or certified death certificate, original or certified post mortem report and photo ID proof of the deceased. It was averred that death certificate was already on record of previous complaint, whereas post mortem of the deceased was not conducted and ID proof was also on the record. A certificate was issued by Pasricha Hospital and Maternity Home, Jalandhar City, wherein doctor has mentioned that deceased Kawalpreet Kaur was admitted in their hospital on 12.06.2015 with major burns and she expired on 18.06.2015. The First Appeal No 530 of 2018 5 repudiation of claim was illegal, unjustified and on the basis of lame excuses. Claiming the act and conduct of the opposite parties to be amounting to deficiency in service and unfair trade practice on their part, the complainant filed the complaint before the District Forum, seeking following directions to the opposite parties:
i) to pay Rs.10,00,000/- as compensation along with interest; and
ii) to pay costs of this litigation.
iii) It was further prayed that any other relief, to which the complainants are found entitled, be also awarded.
Defence of the Opposite Parties
4. Upon notice, opposite parties No.1 to 3 appeared and filed their separate replies to the complaint.
5. Opposite party No.1, in its reply, took preliminary objections that the complaint is not maintainable and the complainants are not entitled to any compensation from the opposite parties. The answering opposite party has no liability whatsoever for any loss suffered by the complainant due to his own act and conduct. No incident was ever reported to the answering opposite party and, as such, there is no liability of the answering opposite party. The complainant never reported any incident to the answering opposite party, but only a notice from the District Forum was received by opposite party No.1 on 23.08.2015. Immediately thereafter, opposite party No.1 informed opposite party No.2 about the incident and Sr. Sales Officer of opposite party No.2, Sri Sanjay First Appeal No 530 of 2018 6 Pandey, rushed to the site with the distributor/proprietor. The detailed investigation regarding the incident was carried out, which was later on submitted to various authorities. The investigation reports indicated towards the possible cause of accident as negligence in using LPG. It was further pleaded that there was no legal liability on the part of the answering opposite party, as there is no negligence or fault on its part. Opposite party No.2 has insured all its registered domestic LPG consumers towards loses due to LPG accident at registered premises. The Photostat copy of the United India Insurance Policy taken by the answering opposite party from 08.11.2014 to 07.11.2015 and further policy purchased by the opposite party having Policy No.0217002715P10332273 valid from 02.05.2015 to 01.05.2016 are on record. Opposite party No.2 sent a letter dated 25.08.2015 to M/s United India Insurance Company Limited, Jalandhar Road, near Phagwara Chowk, Hoshiarpur. Thereafter, the answering opposite party sent reminders dated 28.08.2015 and 28.10.2015 to the complainants, through registered post, requesting them to give written intimation regarding said accident, along with claim form (by duly authorized person, Government approved estimator), so that it can proceed for settlement of the claim of the complainants with the Insurance Company. However, the complainants did not give any intimation regarding the claim to opposite party No.1. The cylinder was manufactured in the year 2012 and the date of next testing is due in the year 2022, hence there was no question of supplying First Appeal No 530 of 2018 7 defective cylinder. Moreover, the cylinder, in question, was checked for the correct weight and connected in the presence of the complainant and the equipment was tested for leakage to the complainant's satisfaction before delivery and acknowledgment of the complainant has been obtained. The matter in dispute is of complicated nature and requires detailed evidence, which could not be decided by the District Forum. On merits, it was admitted that the complainant is having LPG connection No.518320, but it was denied that the incident occurred due to defective cylinder. All other allegations as made in the complaint were denied and it was prayed that the complaint be dismissed being without merit.
6. Opposite party No.2 in its reply took preliminary objections that opposite party No.2 is a Government Company under Section 617 of the Companies Act and being a legal corporate entity, it runs and operates through its employees and officers. The answering opposite party is engaged in the manufacturing, production, sale and distribution of petroleum products namely LPG, petrol, diesel, lubricants etc., through a network of dealers and distributors appointed by the Corporation and accordingly, opposite party No.1 is a dealer/distributor of opposite party No.2 and the relationship between answering opposite party and the LPG distributors is on 'principal to principal' basis and as per dealership agreement dated 28.10.2014, the dealer shall act and shall always be deemed to have acted as a principal and not as an agent of opposite party No.2. The First Appeal No 530 of 2018 8 Corporation shall not in any way be liable in any manner in respect of such contracts and/or engagements and/or in respect of any act of omission on the part of the dealer, his servants, agents and workmen etc., and hence, it was submitted that there was no deficiency of service attributable on the part of opposite party No.2 and opposite party No.2 is not liable in any manner to compensate the complainants. Therefore, the complaint being without any merit was liable to be dismissed. It was further alleged that the customer never reported the matter about the accident and it came to its notice through opposite party No.1 on 23.08.2015. The cylinder was manufactured in the year 2012 and the next testing was due in the year 2022, so there was no question of supplying a defective cylinder. It had also been stated by opposite party No.1 that cylinder was properly checked for quality and leakage before delivery and acknowledgment of consumer was obtained. On merits, it was admitted that the complainant is a consumer of LPG connection bearing No.518320. Similar other pleas regarding occurrence of accident at the premises of the complainant, as pleaded by opposite party No.1, were reiterated. It was further pleaded that no postmortem report was supplied and in the absence of the same, the cause of death cannot be ascertained. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed with costs.
7. Opposite party No.3 in its reply took preliminary objections that the claim of the complainants had already been First Appeal No 530 of 2018 9 repudiated by the answering opposite party-Insurance Company prior to the filing of the complaint, vide letter dated 24.07.2017. Therefore, there is no deficiency in service or unfair trade practice on its part. The alleged accident occurred on 12.06.2015 and no intimation was given immediately after the alleged accident, as a result of which no spot survey could be conducted by the Insurance Company. Thus, the complaint was not maintainable. The District Forum had no jurisdiction to try the complaint as complaint was having intricate questions of law and facts and lengthy cross- examination was required to be conducted and, therefore, the matter was liable to be referred to the Civil Court. Filing of previous complaint bearing Complaint No.131 of 2015 was admitted, but it was pleaded that as per the specific direction of the District Forum, the complainants failed to submit the required documents i.e. Postmortem report showing the cause of death etc. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed with costs.
Findings of the District Forum
8. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel appearing on their behalf, partly accepted the complaint against opposite party No.3, vide impugned order. Hence, this appeal by the appellants/opposite party No.3 First Appeal No 530 of 2018 10 Contentions of the Parties
9. We have heard learned counsel for the parties and have carefully gone through the records of the case.
10. Learned counsel for the appellants/opposite party No.3 argued that the District Forum has passed the impugned order without properly appreciating the evidence on record. The District Forum has also not gone through the report of the Investigator wherein it was disclosed by Sh. Sanjay Pandey that after connecting the refill to the stove, Smt. Kawalpreet Kaur had again started preparing dinner and in the mid of preparation, she went to watch the television and left the kitchen unattended. In the meantime, flame was extinguished due to pouring of liquid from cooking vessel kept on hot plate and leakage had taken place from the burner. When after 30 minutes she returned back to the kitchen and found the burner in off-position, she ignited the burner again, as a result of which accumulated LPG got ignition source and led to the accident, which proves that the negligence was on the part of daughter-in-law of complainant No.1. However, the District Forum has completely ignored the finding of the Investigator dated 28.08.2015. Moreover, the complainants had not informed about the accident to the Distributor or Corporation immediately after the occurrence. As per the terms and conditions of the policy, the insured (HP Gas Corp. Mumbai), in compliance with the General Condition No.1, was required to give written notice and communication to the Company regarding the accident, which First Appeal No 530 of 2018 11 occurred on 12.06.2015. The District Forum also failed to properly peruse the repudiation letter, which was addressed to opposite party No.2, and not to the complainants, which resulted in miscarriage of justice. The District Forum has gravely erred by not applying its mind to the factual situation that the documents, which were not supplied by the opposite party No.2, were part and parcel of the claim settlement procedure and in the absence of those documents, the Insurance Company was compelled to close the claim file. Therefore, the claim was rightly repudiated by opposite party No.3 and there is no deficiency in service on the part of opposite party No.3 and the impugned order is liable to be set aside.
11. Per contra, learned counsel for respondents No.1 to 5 /complainants that the order passed by the District Forum is a well reasoned order after verifying all the facts and circumstances and evidence produced before the District Forum. Despite providing all the documents, the appellants/opposite party No.3 had repudiated the claim in an illegal and arbitrary manner. Moreover, the appellants/opposite party No.3 had failed to comply with the order of the District Forum. The opposite parties were given due intimation about the incident. The accident was occurred only on account of the defective cylinder supplied to the complainants. Therefore, the appeal filed by the appellants/opposite party No.3 is not maintainable and deserves to be dismissed with heavy costs. First Appeal No 530 of 2018 12
12. Learned counsel for respondent No.6/opposite party No.1 argued that the order passed by the District Forum is a well reasoned order in the eyes of law. It has already been held by the District Forum that there is no deficiency or unfair trade practice on its part. Therefore, the appeal filed against respondent No.6/opposite party No.1 be dismissed.
13. Learned counsel for respondent No.7/opposite party No.2 has raised the similar contentions and prayed for dismissal of the appeal qua respondent No.7/opposite party No.2. Consideration of Contentions
14. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
15. Admittedly, Sh. Parkash Singh, complainant No.1, father of complainant No.2 and grand-father of complainants No.3 to 5, was having domestic LPG connection vide Consumer No.518320, which was issued by opposite party No.1 as per Passbook Mark C-22. The complainants got re-fill of cylinder on 29.05.2015, as per entry contained in this Passbook. It is also an admitted fact that the gas cylinder caught fire on 12.06.2015, while Smt. Kawalpreet Kaur, daughter-in-law of complainant No.1 was cooking food in the kitchen, as a result of which she received grievous burn injuries. She was taken to Pasricha Hospital & Meternity Home, Jalandhar and she expired due to major burn injuries on 18.06.2015, as per Certificate Ex.C-3. Death of Smt. Kawalpreet Kaur is also proved from Death Certificate, Ex.C-4. First Appeal No 530 of 2018 13 Incident of bursting of gas cylinder due to catching fire is also contained in the Daily Station/General Diary of Police Station, Mark C-5, as per which statement of the deceased Kawalpreet Kaur was recorded under Section 164 Cr. P.C. by Sh. Amardeep Singh, J.M.I.C. Jalandhar (D) to the effect that when she was cooking the food in the kitchen, suddenly there was a loud burst and her clothes caught fire and she fell down on the ground and her father- in-law pulled her out of the kitchen in order to save her. Mark C-9 to Mark C-21 are the copies of medical bills regarding expenses incurred on her treatment in the hospital.
16. The defence of the opposite parties is that there was no defect in the gas cylinder and the incident of fire occurred, due to negligence of the deceased while using the LPG gas cylinder, as she left the LPG unattended for half an hour after replacing the empty cylinder. The opposite parties got the matter investigated through Sh. Sanjay Pandey, Senior Sales Officer, Hoshiarpur LPG S.A, who submitted his report dated 28.08.2015, Mark OP2/4. Date and place of accident was confirmed in this report. It is mentioned in this report that as per the consumer, after replacing the empty cylinder, Smt. Kawalpreet Kaur went to see TV programme and after 30 minutes, she returned back to the kitchen and as soon as she turned on the knob of auto ignited stove, the accumulated LPG got the source of fire and hot place, cylinder and entire kitchen were engulfed by fire and she got sever burn injuries. However, we find that no such statement of the consumer was recorded by the First Appeal No 530 of 2018 14 investigator to prove that the deceased went to see TV programme after replacing the empty gas cylinder. It is nowhere mentioned in the investigation report that there was no defect in the cylinder supplied to the consumer on 29.05.2015. It is mentioned in the report that there was one window in the kitchen for ventilation and, as such, the plea of the opposite parties that gas accumulated in the kitchen due to mishandling by the deceased is not acceptable, because there was proper ventilation and window in the kitchen, which was open at the relevant time and thus the gas automatically passed through the said window. The opposite parties further pleaded that the cylinder, in question, was manufactured in the year 2012 and the next date of testing was due in the year 2022, but we find that no test report of the cylinder, which was supplied to the complainant on 29.05.2015, has been placed on record to prove that the same was free from any kind of defect. The opposite parties have not led any cogent and convincing evidence to prove that the gas cylinder caught fire due to the negligence of the deceased. They also failed to lead cogent and convincing evidence to prove that the cylinder supplied by opposite party No.1 to the complainant was free from any type of defect. Simply mentioning the same in the reply or report does not take place of authentic proof in this regard. Thus, the inference has been rightly drawn by the District Forum that the cylinder burst on account of some mechanical or technical defect therein. As per Section-II of the Public Liability Policy for Oil Industries, Ex.OP-3/4, if any person First Appeal No 530 of 2018 15 shall sustain bodily injury solely and directly caused by accidental violent external and visible means arising from usage of LPG cylinder during the policy period as defined in Schedule, resulting in death or disablement, the Company shall be liable to pay compensation to the Insured persons named in the schedule or his/her assignee/his/her legal personal representative.
17. In Bharat Petroleum Corporation Ltd. & Anr. Vs. Ashok Kumar III (2010) CPJ 377 (NC), two persons died and one got severe burn injuries due to leakage of gas and catching of fire by the cylinder. It was objected by the opposite party that certain precautions were not taken. It was observed by the Hon'ble National Commission that even if the said precautions were not meticulously followed while changing the cylinder, even then the opposite party would not be exonerated from its liability. In another case Madhuri Govilka & Ors. Vs. Hindustan Petroleum Corporation & Anr. IV (2006) CPJ 338 (NC), the accident occurred after re-fixing the regulator and it was held by the Hon'ble National Commission that it amounted to manufacturing defect and inference of negligence on the part of the opposite parties can be drawn under the doctrine of res ipsa loquitor.
18. So far as the plea of the opposite parties that the complainants never reported the incident of fire to them, is concerned, it is relevant to mention that earlier the complainants had also filed Consumer Complaint No.131 of 2015 before the District Forum, in which the opposite parties admitted that if the First Appeal No 530 of 2018 16 documents were submitted by the complainants, then they were ready to settle the claim. Accordingly, the said complaint was disposed of, with direction to the opposite parties to settle the claim of the complainants within a period of two months therefrom. Later on, the complainants filed Execution Application No.08 of 2017, which was dismissed regarding the point of delay in settlement of the claim, holding that there was no delay on the part of the opposite parties in this regard. Thereafter, fresh complaint (complaint involved in this appeal) was filed by the complainants on the above referred grounds. The opposite parties raised the objection that the complainants failed to supply postmortem report to prove the cause of death. As already discussed above, the cause of death of the deceased due to major burn injuries has been duly reported by Pasricha Hospital in Certificate, Ex.C-3 and Daily Station/General Diary, Mark C-5. Moreover, it was held by this Commission in "Parkash Kaur & others v. ICICI Lombard General Insurance Company & another" 2009(1) CLT 74, which was a case of death due to snake bite, that the claim cannot be repudiated simply on the ground that the post mortem report or police report is not proved despite the fact that the snake bite or accident is proved by other evidence. Similarly, this Commission in "Manager, Health Administrator Team, Bajaj Allianz General Insurance Co. Limited v. Ravinder Kaur & Ors." 2012 (1) CPC 100 held that where the insured died due to inhaling of insecticide First Appeal No 530 of 2018 17 the claim cannot be repudiated on the ground that the FIR was not filed and that the post mortem examination was not conducted.
19. The District Forum also rightly relied upon the judgment of this Commission reported as Life Insurance Corporation of India v. Smt. Nidhi Sahi 2005 (1) CPC 533, in which it was held that in the absence of FIR or Postmortem report, the factum of death in a particular way can be proved by producing other evidence. Similarly, in National Insurance Company Limited v. Rita Devi 2006 (II) CPC 599 (Haryana), it was held that non- production of Postmortem report cannot be made a ground for repudiation of the claim.
20. This Commission further in First Appeal No.71 of 2017 (Reliance Life Insurance Company Limited v. Surjeet Singh) decided on 20.09.2017, while relying upon the above noted authorities, held that the non-production of Postmortem report or FIR cannot be made basis for repudiation/denial of the insurance claim.
21. It is relevant to mention that opposite parties No.1 & 2 were duly insured with opposite party No.3-Insurance Company for the period 08.11.2014 to 07.11.2015, vide Insurance Policy, Ex.OP-1/2, for a sum assured of ₹11,25,000/-. The accident of fire occurred on 12.06.2015 and, thus, the same was duly covered under this Insurance Policy. The District Forum has rightly fastened the liability of paying the compensation on opposite party No.3- Insurance Company, being the insurer of opposite parties No.1 & 2. First Appeal No 530 of 2018 18 There is no ground to interfere with the impugned order and the same is legal and valid.
22. In view of our above discussion, the appeal filed by the appellants is dismissed and the impugned order is upheld. 23 The appellants had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The complainants may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER January 01, 2019 (Gurmeet S)