State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Puran Chand Lohani on 8 May, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 185 / 2011
National Insurance Company Limited
through its Manager, Regional Office
56, Rajpur Road
Dehradun
......Appellant / Opposite Party No. 2
Versus
1. Sh. Puran Chand Lohani S/o late Sh. Gobind Ballabh
R/o Paschimi Pokharkhali
Almora
......Respondent No. 1 / Complainant
2. Almora Gas Service
Kumaon Mandal Vikas Nigam, Oak Park
Nainital through its General Manager
3. Almora Gas Service
Almora
......Respondent Nos. 2 and 3 / Opposite Party Nos. 1 and 3
Sh. Rajiv Kakkar, Learned Counsel for the Appellant
Sh. Nishant Chaturvedi, Learned Counsel for Respondent No. 1
Sh. J.P. Kansal, Learned Counsel for Respondent Nos. 2 and 3
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Dated: 08/05/2015
ORDER
(Per: Justice B.C. Kandpal, President):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 23.08.2011 passed by the District Forum, Almora in consumer complaint No. 01 of 2010. By the order impugned, the District Forum has allowed the consumer complaint and directed the appellant and respondent Nos. 2 and 3 - opposite parties, to pay jointly and severally sum of Rs. 2,50,000/- to the respondent No. 1 - complainant on account of loss suffered by 2 him and Rs. 1,00,000/- towards mental agony together with interest @6% p.a. from 06.01.2010, the date of filing of the consumer complaint till the date of actual payment and also to pay Rs. 10,000/- towards litigation expenses.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant is the registered consumer of opposite party No. 3 - Almora Gas Service, Almora bearing consumer No. 11867. It was alleged that a gas cylinder was purchased by the complainant from the opposite party No. 3 and the same was installed in the kitchen of the complainant in the month of June, 2009. It was also alleged that on account of leakage of gas from the gas cylinder, fire broke out in the kitchen of the complainant's house on 25.06.2009, causing death of daughter of the complainant aged about 15 years'. It was further alleged that in the said fire, the household goods were also damaged. On 10.08.2009, the complainant wrote a letter to the opposite party No. 1 - Almora Gas Service, Kumaon Mandal Vikas Nigam, Nainital, thereby claiming compensation on account of the loss suffered by him in the mishap. The opposite party No. 1 wrote a letter to the opposite party No. 2 - National Insurance Company Limited for granting compensation in view of public liability clause in the insurance policy obtained by the gas agency, but the insurance company did not pay any heed. It was further alleged that inspite of sending the reminder, no amount was paid by the insurance company. Therefore, alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Almora.
3. The gas agency filed written statement before the District Forum and pleaded that no intimation of the incident was given by the complainant at the relevant time of occurrence; that no complaint was 3 lodged by the complainant with regard to the defect in the gas cylinder; that the said incident occurred on account of negligence on the part of the complainant; that the gas agency has taken the Liquified Petroleum Gas Dealers Combined Policy from National Insurance Company Limited for discharge of their public liability and that there is no deficiency in service on their part.
4. The insurance company also filed written statement before the District Forum and pleaded that there was no privity of contract between the complainant and the insurance company; that the insurance company has issued Liquified Petroleum Gas Dealers Combined Policy in favour of Almora Gas Service, Almora; that as per Section X(b)(ii) of the policy, the insurance company shall be liable in case the damage to the property is caused at any registered address of the customer only whilst the gas cylinder was being installed by the insured and or his employee; that the gas cylinder in question was being used by the complainant since last several days; that the claim is not covered under the policy and that there is no deficiency in service on their part.
5. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 23.08.2011 in the above terms. Aggrieved by the said order, the insurance company has filed the present appeal.
6. We have heard the learned counsel for the parties and have also perused the record.
7. Learned counsel for the appellant - insurance company submitted that there was no privity of contract between the complainant and the insurance company, as the Liquified Petroleum 4 Gas Dealers Combined Policy in question was obtained by Almora Gas Service, Almora and hence the insurance company can not be held liable in any manner for the loss occasioned to the complainant. Learned counsel also submitted that in view of Section X(b)(ii) of the insurance policy, the insurance company can be held liable under the "Public Liability" clause of the policy if the damage has been caused at any registered address of the customer only whilst the gas cylinder was being installed by the insured and or his employee and since in the consumer complaint, the complainant has himself stated in para 4 that in the month of June, 2009, he had installed the gas cylinder supplied to him and the fire broke out on 25.06.2009 on account of leakage of gas from the cylinder and hence the insurance company can not be held liable for the loss sustained by the complainant in the said incident. It was further submitted by the learned counsel for the appellant that the District Forum did not consider the above aspects of the matter and erred in allowing the consumer complaint per impugned order, which is not legally sustainable and is liable to be set aside and the appeal filed by the insurance company is fit to be allowed.
8. We find force in the submission raised by the learned counsel for the appellant - insurance company. The reason being that the complainant has taken different stand in the consumer complaint and in his affidavit dated 03.05.2010 filed by the complainant before the District Forum in his evidence. In para 4 of the consumer complaint, the complainant has stated that he had installed the gas cylinder in his kitchen in the month of June, 2009 and the fire broke out in his kitchen on 25.06.2009 on account of leakage of gas from the gas cylinder. In para 4 of his affidavit dated 03.05.2010, the complainant has averred that the fire broke out on 25.06.2009 at the time of installation of gas cylinder, which was purchased by him in the month 5 of June, 2009. It appears that the averment in the affidavit was made by the complainant after going through the defence taken by the insurance company in their written statement to the effect that the insurance company can only be held liable if the damage has been caused at any registered address of the customer only whilst the gas cylinder was being installed by the insured and or his employee. Even otherwise, the complainant has nowhere stated that the fire broke out while the gas cylinder was being installed by the insured or his employee.
9. Since in the consumer complaint, the complainant has himself stated that the gas cylinder was installed in the month of June, 2009 and the fire broke out in his kitchen on 25.06.2009 on account of leakage of gas from the gas cylinder and hence in view of Section X(b)(ii) of the insurance policy, the insurance company can not be held liable for the loss occasioned to the complainant in the incident in question. Learned counsel for the appellant - insurance company cited a decision of the Hon'ble National Commission in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. M/s Police Patil through its Partner Shiv Kumar; 2015 (1) CPR 108 (NC), wherein it has been held that the insurance claim can not be allowed beyond terms of policy. Learned counsel further cited another decision of the Hon'ble National Commission in the case of Vipan Mehra, Proprietor M/s V.M. Jewellers Vs. United India Insurance Co. Ltd.; 2015 (1) CPR 305 (NC), wherein it has been held that the insurance company can not be directed to settle claim beyond terms of policy. Learned counsel also cited one more decision of the Hon'ble National Commission in the case of National Insurance Co. Ltd. Vs. Aparna Kahar; 2014 (3) CPR 697 (NC), in which it was held that the claim can be allowed only as per terms and conditions of the policy.
610. This apart, as is stated above, the insurance policy in question was purchased by Almora Gas Service, Almora, who have denied the intimation of any such incident having been given to them. Even otherwise, in view of the above clause of the policy and there being no privity of contract between the complainant and the insurance company and the contradictory statement made by the complainant in the consumer complaint and in his affidavit, the complainant can not be held entitled to any compensation.
11. The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which can not legally be sustained and is liable to be set aside and the consumer complaint is liable to be dismissed. Consequently, the appeal is fit to be allowed.
12. For the reasons aforesaid, appeal is allowed. Order impugned dated 23.08.2011 passed by the District Forum is set aside and consumer complaint No. 01 of 2010 is dismissed. No order as to costs.
(D.K. TYAGI) (JUSTICE B.C. KANDPAL) K