State Consumer Disputes Redressal Commission
Smt.Sunita Singh & Ors. vs Ramchandra Gas Agency & Ors. on 9 December, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/08/45
1. Smt.Sunita Singh
2. Shri Amit singh
3. Shri Dipak Singh
All r/at 2, Keshav
Tumbade Chawl,
Koknipada, Sant
Kabeer Marg,
Dahisar (E),
Mumbai-400 068.
...........Complainant(s)
Versus
1. Ramchandra Gas
Agency
Shop No.6, Panorama Park, Opp.Omkar Hotel,
Shiv Vallabh Road,
Dahisar (E),
Mumbai-400 068.
2. Bharat Petroleum
Corporation Ltd.,
Bharat Bhavan, 4& 6 Currimbhoy Road,
Ballard Estate,
Mumbai-400 001.
3. Bajaj Allianz
General Insurance Co. Ltd.
952/954, Ground
Floor, Appasaheb Marathe Marg,
Beside Marathe Udyog
Bhavan,
Prabhadevi,
Mumbai-400 025.
4. National Insurance
Co. Ltd.
5th &
6th Floor, Royal Insurance,
14, J.N. Tata Road,
Churchgatge,
Mumbai - 400 020.
............Opponent(s)
BEFORE:
HON'ABLE MRS. Usha
S.Thakare PRESIDING MEMBER
HON'ABLE MR. Narendra Kawde MEMBER PRESENT:
Mrs.Anita Marathe, Advocate for the complainants.
Mr.Ajit Salvi, Advocate for opponent No.1.
Mr.A.V. Vishwanathan, Advocate for opponent No.2.
Mr.Pratap Chandra, Advocate for opponent No.3.
Mr.A.S. Vidyarthi, Advocate for opponent No.4.
-: ORDER :-
Per Mrs.Usha S. Thakare, Honble Presiding Judicial Member Complainant-Smt.Sunita Singh and her two sons have filed present consumer complaint under Section 12 of Consumer Protection Act, 1986 by alleging deficiency in service against the opponents.
2. Complainant No.1-Smt.Sunita Singh is widow of Anil Shrikrishna Singh.
Complainant Nos.2&3 are minor sons of deceased Anil singh. Opponent No.1-Ramchandra Gas Agency is the agent of opponent No.2-Bharat Petroleum Corporation Ltd. (BPCL in short) for supply of gas to the consumers.
Opponent No.1-Ramchandra Gas Agency is insured with opponent No.4-National Insurance Company Ltd. and opponent No.2-BPCL is insured with opponent No.3-Bajaj Allianz General Insurance Co. Ltd.
3. Complainant No.1-Smt.Sunita Singh is a consumer of domestic gas for cooking supplied by opponent No.2 through opponent No.1. Opponent No.1 is the agent of opponent No.2 for supply of gas to the consumers and is expected to provide service in supplying the gas cylinders, installing them at the place of consumers through their own mechanic and provide other ancillary services. Opponent No.2 is the principal supplier of the gas cylinders and manufacturer of gas and expected to provide gas cylinders in perfect condition free from any defect so as to avoid danger to the life and property of the consumers of the gas. Opponent Nos.3&4 are the Insurance Companies of opponent No.2 and opponent No.1 respectively. Cause for the complaint was arisen due to serious burns suffered by complainant No.1 and death of husband of complainant No.1-Anil Singh by burns caused by accidental burning of the gas let out by the mechanic of opponent No.1. The faulty gas cylinder supplied by opponent No.2 caused the accidental gas leakage and burning. Due to most negligent service provided by the opponents, the complainant No.1 and her family have suffered loss and sufferings due to untimely death of breadwinner of the family.
4. According to the complainants, complainant No.1 is a consumer of gas cylinder since February 2006 and is well conversant with the routine operation of gas cylinder. On 14/02/2007, complainant No.1-Smt.Sunita Singh after connecting the cylinder tried to light the gas stove but the gas did not burn, as no gas came out. She therefore, called her husband-Anil Singh to light the gas but he was also not successful. The Gas Dealer/opponent No.1 was immediately informed and he assured to send mechanic to attend the complaint. The mechanic of opponent No.1 arrived at about 10.30 hours of same day. He tried to light the gas burner (Segree) but the gas did not burn. He therefore tried to remove knob of the gas Segree but it could not be removed. Therefore, he removed the regulator from the cylinder and pressed the valve from top of the cylinder with screwdriver. Thereupon the gas immediately started oozing out from the valve of the cylinder. After much quantity of gas had oozed out, said mechanic replaced the regulator on the gas cylinder and asked Anil Singh to light the Segree. As soon as Anil Singh lighted the match-stick to light the Segree, the gas that had oozed out got lighted causing serious burn injuries to Anil Singh and complainant No.1-Smt.Sunita Singh.
The household articles and clothes were burnt in the fire. The mechanic also suffered burn injuries. Fire-brigade was called and Firemen extinguished the fire.
The injured persons were immediately taken to nearby Municipal Hospital on 14/02/2007. The injured persons were shifted to Om Sai Super Speciality Hospital at Sodawala Lane, Borivali in an Intensive Care Unit. Complainant No.1-Smt.Sunita Singh was discharged on 22/02/2007. She took her further treatment at Asha Nursing Home.
However, Anil Singh succumbed to injuries on 24/02/2007 at the same Hospital. After the accident, information was given to Police.
Statements of the injured persons were recorded. The Police registered crime against Mr.Gopal Vishnoi, mechanic of opponent No.1, on report of deceased, for negligently handling the repairs to the cylinder and causing consequent injuries to complainant No.1 and her husband-Anil Singh. Anil Singh, husband of complainant No.1 suffered 55% burns and ultimately died due to those injuries. Because of man-made accidental fire, complainant No.1 herself suffered burn injuries to the extent of 20% and she had to undergo extensive and costly medical treatment with prolonged physiotherapy. The complainants had to undergo physical as well as mental sufferings due to loss of breadwinner of the family. The accident was caused due to sheer negligence of mechanic of opponent No.1 and due to defective cylinder supplied by opponent No.2. Deceased-Anil Singh was working in diamond cutting industry as a skilled worker. His last employment was with M/s.Avani Gems at Dahisar (East). He died at the young age of 32 years. He used to earn `12,000 to `13,000/- per month and used to maintain his family. The complainants incurred heavy expenses for hospitalization and purchase of medicines. The complainants had claimed an amount of `22,84,448/-
towards compensation from the opponents.
The complainants added that opponent No.2 paid an amount of `1,51,516/- to the complainants by cheque along with covering letter dated 11/06/2007 when the complainant No.1 had been to the office of opponent No.2/BPCL. The complainant No.1 is an illiterate lady and she did not understand English and Marathi. She signed in Hindi without understanding the contents which were written in English.
She accepted the cheque, keeping alive her legal rights to claim full amount. By filing present complaint, complainants sought directions to opponents to pay an amount of `22,84,448/- to the complainant with interest @ 18% p.a. from 14/02/2007 till realization of amount and cost of litigation.
5. The opponent No.1 resisted the claim by filing written version on 07/08/2008 and denied the liability. It is admitted that opponent No.1 is a proprietor of Ramchandra Gas Agency and which is lawful agency and dealer concern of BPCL i.e. opponent No.2 which is an undertaking of Government of India. It is submitted that opponent No.2 is engaged in a business of production, distribution and channeling of various petroleum products through its franchises, agents and through their own Depots. Opponent No.1 has been nominated as agent for distribution of cooking gas both domestic and commercial to various consumers in area of operation, namely, Dahisar from last several years. Opponent No.1 in terms of agency contract, supplies cooking gas to various customers and also caters to their various miscellaneous complaints in the course of dealership business. Opponent No.1 undertakes supply of necessary accessories to its customers.
Opponent No.1 in the course of business engaged and employed skilled workmen to attend sundry complaints of consumers. Mr.Gopal Vishnoi is a skilled mechanic employed by opponent No.1 in the course of business for attending to miscellaneous consumer complaints.
During twelve years long dealership of opponent No.2, they have always strived to cater to their consumers interest promptly, efficiently and to the best of their abilities, skill and experience. Opponent No.1 has unblemished record. Opponent No.1 had insured the consumers with National Insurance Co. Ltd./opponent No.4.
6. It is further submitted that complainant No.1-Smt.Sunita Singh is a consumer for domestic gas and she is registered with opponent No.2 through opponent No.1. On 14/02/2007 there was a call from Anil Singh, husband of complainant No.1 regarding problem with flame of their gas segree. Opponent No.1 instructed mechanic Mr.Gopal Vishnoi with instructions to proceed to the house of the complainants so as to tackle their grievance. Mechanic Mr.Gopal Vishnoi proceeded to house of the complainants with his Tool Bag and necessary precautionary apparatus. Said mechanic is well conversant with the problems arising out of the gas connection. At the time of his departure, opponent No.1 had specifically instructed about possible problem involved and asked him to deal with care and caution.
Apparently, house of the complainant was already enveloped in the LPG gas coming out of the cylinder valve and in spite of best care and caution; gas caught fire on the application of match stick. In the ensuring fire and unfortunate mishap, complainant No.1, her husband Anil Singh and concerned mechanic Mr.Gopal Vishnoi sustained burn injuries.
Thereafter all the injured persons were rushed to the hospital, but unfortunately, Anil Singh succumbed to injuries when he was under
treatment. As soon as the incident was reported, the Fire-Brigade and Police Party attached to Dahisar Police Station arrived at scene. In the meantime, Police registered an offence against Mr.Gopal Vishnoi vide Crime No.40/2007 on the statement of Anil Singh and did investigation of crime. Police filed charge-sheet in the court of Metropolitan Magistrate at Borivali which is pending. Pursuant to the grievance made by complainant No.1-Smt.Sunita Singh, opponent No.2 had already issued a cheque for a sum of `1,51,516/-
towards settlement of accident claim preferred by the complainants. It was towards full and final settlement of the claim. Opponent No.1 as a dealer and agent of opponent No.2 has discharged his duties and responsibilities towards complainants with best of his experience, abilities and foresight. The occurrence of incident is purely due to an accident. Neither opponent No.1 nor his mechanic Mr.Gopal Vishnoi was responsible for the same. Unfortunate incident was an act of God. Opponent No.1 or his mechanic had no control over the same.
The negligent handling of gas cylinder by the complainant No.1 and her husband contributed to the unfortunate incident and hence, opponent No.1 cannot be fastened with the liability arising out of the accident. Allegations made by the complainants are false. Opponent No.1 being mere agent cannot be saddled with the liability of the accident. The complaint as such is not maintainable. The nature of work and earning of deceased was denied by opponent No.1. It is denied that complainants are entitled for amount of `22,84,448/-
with interest and submits that false and frivolous complaint is liable to be dismissed with costs.
7. Opponent No.2/BPCL filed written version on 07/08/2008 and opposed the complaint. It is submitted that alleged incident had taken place due to sheer negligence on the part of complainant No.1, their relations and mechanic of opponent No.1.
It is denied that there was deficiency in service on the part of opponent No.2. It is further submitted that opponent No.2 which is Government of Indias Enterprise, has framed rules, regulations, guidelines, instruction manual etc. in regard to distribution of LPG through their network of dealers/distributors. Opponent No.1 is a LPG distributor and is well aware of all the rules, regulations, guidelines, instruction manual. LPG filled cylinders from the Filling Plant of opponent No.2 were delivered through transport to the godown/premises of the LPG distributors.
LPG distributors were supposed to check LPG filled cylinders received by them in their godown/premises as to its leakage and satisfy themselves before delivering the same to the consumers. LPG distributor has to deliver the LPG filled cylinders through his deliverymen to the premises of the consumers and at the premises of the consumer, open the seal fixed on the cylinder covering by plastic cap and valve unit, remove the plastic cap, put the regulator of the consumer on that cylinder, fit in the same, open up the burner, light on the gas stove, request the consumer to look into the satisfactory working of the LPG unit. Opponent No.2 has supplied a sound SC Regulator to opponent No.1 who in turn supplied the sound SC Regulator to the complainants. There is no defect in the Regulator and therefore, there is no deficiency in service on the part of the opponent No.2. Opponent No.2 has directed all their LPG distributors including opponent No.1 to take mandatory insurance cover to meet certain accident contingencies.
Opponent No.2 had taken Insurance Policy with Bajaj Allianz General Insurance Co. Ltd. i.e. opponent No.3. LPG distributor is on a Principal to Principal Basis and not as an agent or on account of the Corporation.
Opponent No.2 had entered into an agreement with opponent No.1 on 08/05/2003 wherein clause No.17 of the agreement clearly states that LPG distributors are on principal to principal basis and not as an agent or on account of the Corporation. Said agreement also provides for an indemnity clause wherein the distributor will also indemnify BPCL as per clause No.18 of the agreement. After installation of LPG cylinder and regulator, it is the responsibility of the consumer to maintain the same in its proper form and content including the rubber tube connections and to have safety in the kitchen. The complainants have made exaggerated claim.
As per the Accident Investigation Report submitted by Deputy Manager (Sales) of opponent No.2, it is clearly stated that as on the day of accident, new cylinder was borrowed and fitted to the domestic installation etc. It is therefore, clear that the alleged accident is not in respect of LPG cylinder supplied by opponent No.1. Therefore, entire claim is devoid of merit. There is no deficiency in service on the part of opponent No.2 and therefore, opponent No.2 be discharged from the liability.
8. Opponent No.3 has opposed the complaint by filing written version on 24/07/2009 and denied the liability. It is submitted that complaint is not maintainable. It is admitted that opponent No.2/BPCL was insured at the relevant time by this opponent vide Public Liability Policy for LPG bearing Policy No.OG-03-1906-3301-00000005 for the period between 22/04/2006 to 21/04/2007. By said policy of insurance, opponent No.3 had undertaken to indemnify the insured i.e. opponent No.2 subject to terms, limitations, exceptions and conditions contained therein. Based on the terms and conditions, present complaint does not lie within jurisdiction of this Commission in as much as there was no deficiency in service rendered by this opponent to opponent No.2 or the complainants. Opponent No.3 had paid `1,51,516/- under Section II of the policy i.e. Personal Accident Cover to Third Party. Amount of `1 Lakh was paid towards compensation for death of Mr.Anil Singh. Amount of `51,516/- was paid towards medical expenses of Mrs.Sunita Singh. Above demand was made strictly in terms of policy as such this opponent is obliged to execute said policy of insurance strictly as per terms and conditions prescribed in a contract between opponent No.2 and opponent No.3.
In compliance of the said terms and conditions of the policy of insurance, opponent No.3 was required to indemnify opponent No.2 for cover only under Section II of the policy of insurance i.e. Personal Accident Cover and Medical Expenses Cover only.
The liability under the policy of insurance is a contractual liability and not a statutory liability.
That being the position, parties were bound by said contract only. Under these circumstances, opponent No.2 is not entitled to be indemnified for the amount claimed by the complainants under the insurance policy. As per general condition No.3 of the insurance policy, insured shall take all reasonable steps to safeguard the property insured against accident, loss or damage. In the present case, deceased, his wife and the mechanic suffered burn injuries when said mechanic had pressed the valve on top of the cylinder with screwdriver and at that time, large amount of gas was flown out and collected in the kitchen. The mechanic instructed Late Anil Singh to light the gas segree and the gas collected in the kitchen caught fire and unfortunate incident took place.
Said negligent act on the part of the mechanic attracted general condition No.3 of the policy. The insured had failed to exercise reasonable care laid down in the policy, opponent No.3 was not required to pay said liability under Section I of the policy of insurance. It is the liability of opponent No.2. Opponent No.3 had indemnified opponent No.2 as per Section I & II and this opponent was liable to pay only `1,51,516/-. Now this opponent is not liable to pay any amount under Section I of the policy.
The complaint is liable to be dismissed against it due to mis-joinder of party.
9. Opponent No.4/National Insurance Co.
Ltd. also denied liability by filing written version on 18/08/2009. Opponent No.4 submitted that complainants do not show any cause of action as the insurers have not committed any deficiency in service in relation to the complainants claim. The complainants are not entitled to file present complaint in this Forum/Commission to seek relief as this Forum/Commission is not the proper Forum/Commission. The claim of the complainants has been settled fully. The present claim under the complaint is not maintainable.
A consumer complaint will not lie against the Insurance Company. The only proper remedy in this case is by way of regular civil suit in a Civil Court. The matter warrants elaborate trial with examination of several witnesses in view of complexities of the case. The case is the subject matter of Civil Court.
10. It is further added that existence of any insurance with opponent No.1 does not mean that this opponent is liable to pay present claim. The primary liability is always on the opponent No.1.
This opponent submits that it is not liable to pay any damage, compensation, interest or cost to the complainants nor to opponent No.1 as there is no privity of contract between this opponent and complainants. Despite several reminders, opponent No.1 has failed and neglected to submit claim details and documents to Surveyor Mr.Sumant K. Daftary. Therefore, opponent No.4 is not liable to pay any amount under this complaint or even indemnification to opponent No.1. Admission of complainants of receiving amount from opponent No.2 to the tune of `1,51,516/- goes to establish that complaint is not maintainable. The complainants are not consumers as defined under Section 2(1)(d) of Consumer Protection Act, 1986. The complainants are not entitled to a sum of `15 Lakhs as recommended by the Surveyor.
Complaint is liable to be dismissed with costs.
11. The complainants have filed their rejoinder to the written version of opponent No.1 and opponent No.2 on 26/11/2008 and rejoinder to written version of opponent No.3 and opponent No.4 on 05/11/2009. Complainant No.1-smt.Sunita Singh led her evidence by filing affidavit.
Sushovan Das, Sr.Executive (Legal) of M/s.Bajaj Allianz General Insurance Company Ltd. Mumbai has filed his affidavit of evidence on behalf of opponent No.3. Mr.Mukesh Nandan Sahay has filed his affidavit of evidence on behalf of opponent No.4. Proprietor of opponent No.1, namely, Mr.Ramesh Ramchandra Keny led his evidence by filing affidavit on behalf of opponent No.1.
12. We have heard Learned Counsel Mrs.Anita Marathe for the complainant, Learned Counsel Mr.Ajit Salvi for opponent No.1, Learned Counsel Mr.A.V. Vishwanathan for opponent No.2, Learned Counsel Mr.Pratap Chandra for opponent No.3 and Learned Counsel Mr.A.S. Vidyarthi for opponent No.4.
13. Opponent No.1 is the proprietor of Ramchandra Gas Agency. Opponent No.1 is a dealership concern of Bharat Petroleum Corporation Ltd. (BPCL in short) which is in engaged in the business of production, distribution and channeling various petroleum products.
Opponent No.1 distributes cooking gas both domestic and commercial to the consumers in the area of Dahisar (East) from last several years. Complainant No.1-Smt.Sunita Singh is the consumer of domestic gas for cooking. She is registered as a consumer with opponent No.2 through opponent No.1.
Opponent No.1/Gas Agency is insured with opponent No.4/National Insurance Co. Ltd. and opponent No.2/BPCL is insured with opponent No.3/Bajaj Allianz General Insurance Co. Ltd. Customer Number of complainant No.1-Smt.Sunita Singh is 1013721.
Cash Memo issued by opponent No.1 is in the name of complainant No.1-Smt.Sunita Singh shows that she had taken gas connection from opponent No.1 on 01/02/2006 and paid amount of `1577.95. Her Subscription Voucher No.3014337537 was issued to her on 01/02/2006.
Relevant documents are filed on record. Complainant No.1-Smt.Sunita Singh is a customer of opponent No.1 which is not a fact in dispute.
14. The incident dated 14/02/2007 which was taken place at residential house of the complainant in connection with gas cylinder is not denied by any of the opponents. Evidence of complainant-Smt.Sunita Singh shows that on 14/02/2007 complainant No.1-Smt.Sunita Singh tried to light the gas segree after connecting the gas cylinder. But the gas did not burn, as no gas came out. She therefore, called her husband-Anil Singh to light the gas but he was also not successful. This fact was immediately informed to Gas Dealer/opponent No.1 and he assured to send mechanic to attend the complaint.
The mechanic of opponent No.1 arrived t about 10.30 hours of same day. He tried to light the gas burner (Segree) but the gas did not burn.
He therefore tried to remove knob of the gas Segree but it could not be removed. Therefore, he removed the regulator from the cylinder and pressed the valve from top of the cylinder with screwdriver. Thereupon the gas immediately started oozing out from the valve of the cylinder. After much quantity of gas had oozed out, said mechanic replaced the regulator on the gas cylinder and asked Anil Singh to light the Segree. As son as Anil Singh lighted the match-stick to light the Segree, the gas that had oozed out got lighted causing serious burn injuries to Anil Singh and complainant No.1-Smt.Sunita Singh.
The household articles and clothes were burnt in the fire. Fire-brigade was called and Firemen extinguished the fire. The injured persons were immediately taken to nearby Bhagwati Municipal Hospital on 14/02/2007. The injured persons were shifted to Om Sai Super Speciality Hospital at Sodawala Lane, Borivali in an Intensive Care Unit. Complainant No.1-Smt.Sunita Singh was discharged on 22/02/2007. She took her further treatment at Asha Nursing Home. Discharge Card of complainant No.1-Smt.Sunita Singh is on record in support of contention of complainant No.1-Smt.Sunita Singh.
15. Injured Anil Singh succumbed to his injuries on 24/02/2007. Death certificate, postmortem report and cause of death of Anil Singh are on record. Postmortem report speaks about cause of death. Medical Officer who carried out postmortem of dead body opined probable cause of death as Shock due to burns.
Observations in Para 17 of Postmortem Report clarified that decease Anil Singh sustained superficial to deep burns over the body. He had sustained 50-55% burns with signs of inflammation. Documents on record are not disputed by opponents so also the cause of death of Anil Singh is not disputed. It is established by the complainant No.1-Smt.Sunita Singh that her husband died in the accident which took place due to leakage of gas.
16. An attempt is made on behalf of the opponents to prove that complainant No.1-Smt.Sunita Singh herself changed the gas cylinder. Said gas cylinder was borrowed by complainant No.1-Smt.Sunita Singh. Accident took place due to negligence of complainant No.1-Smt.Sunita Singh and negligence of deceased Anil Singh. They contributed the negligence.
17. We do not find any substance in the arguments advanced on behalf of the opponents. After the incident, incident was informed to the Police. Police rushed to the hospital and recorded statement of injured Anil Singh. His statement was treated as first information report and on the basis of said report crime bearing No.40/2007 was registered on 14/02/2007 against Mechanic of opponent No.1 Mr.Gopal Vishnoi for the offence punishable under Section 338 & 427 of I.P.C. Injured Anil Singh died during medical treatment at the hospital on 24/02/2007. After due investigation, charge-sheet was filed against mechanic/accused Mr.Gopal Vishoni before the Court of Metropolitan Magistrate at Borivali, Mumbai.
18. Statement-cum-Dying Declaration of injured Anil Singh is a material document.
Injured Anil Singh narrated details of incident before the Police in first information report-cum-dying declaration. He made statement before Police on 14/02/2007 i.e. on the day of incident itself. He alleged that on 14/02/2007 at morning he was at his house. At about 9 a.m. he made phone call at the office of opponent No.1. He made complaint that gas segree is not burning. At about 10.30 a.m. of the same day, one person from Gas Agency/opponent No.1, namely, Mr.Gopal Vishnoi came to his house. Said person tried to burn gas segree, but it was not lighted. Therefore, mechanic Mr.Gopal Vishnoi tried to remove knob of the gas Segree.
It did not open. Thereafter, mechanic removed the regulator from the cylinder and pressed the valve from top of the cylinder with screwdriver.
Thereupon the gas immediately started oozing out from the valve of the cylinder. The mechanic himself fixed the regulator on the gas cylinder and asked Anil Singh to light the gas Segree. As soon as Anil Singh lighted the match-stick to light the Segree, the gas that had oozed out got lighted causing serious burn injuries to Anil Singh and complainant No.1-Smt.Sunita Singh. The mechanic also sustained burns. Neighbour of the complainants, namely, Nirnjan Sharma brought the injured to hospital for medical treatment. It is alleged by deceased Anil Singh that incident took place due to rash and negligent act of mechanic Mr.Gopal Vishnoi.
19. The incident took place at the house of the complainants which is not disputed.
It is the say of the opponents that the incident did not take place as narrated by the complainants in complaint or by the deceased in first information report. Now, it is for the opponent No.1 to explain in what way the incident of burning took place.
Admittedly, mechanic Mr.Gopal Vishnoi was on spot. He went on spot to check gas burner which was not lighting. He is best witness. He is employee of opponent No.1. Best witness though available with opponent No.1 is not examined by opponent No.1. Hence, it is necessary to draw an adverse inference against opponent No.1.
Registration of crime against mechanic Mr.Gopal Vishnoi for the offence punishable under Section 338 & 427 of I.P.C. is prima-facie evidence of negligence of mechanic Mr.Gopal Vishnoi. He has not rebutted the allegations raised against him by filing his own affidavit.
20. It is curious to know here that opponent No.1 had sent mechanic Mr.Gopal Vishnoi to meet out the complaint of the complainants in connection with the gas connection or gas burner. Opponent No.1 has submitted that Mr.Gopal Vishnoi was a skilled mechanic employed by opponent No.1 in the course of business for attending the miscellaneous consumer complaints. However, the complainants have raised question-mark about skill and ability of Mr.Gopal Vishnoi.
21. It has brought on record by way of documents that the mechanic Mr.Gopal Vishnoi went at house of the complainants and checked the gas burner.
He found that gas burner was not lighting. Therefore, he tried to open the knob of gas segree, but he was not successful.
Thereafter, he removed the regulator and pressed the valve from top of cylinder by means of screwdriver.
Thereupon, gas oozed out from cylinder. The so called expert mechanic fixed the regulator and asked victim Anil Singh to check the burner. Certainly, oozing of gas could not go unnoticed due its obnoxious smell.
Any prudent man is well aware that on igniting match stick, oozed gas would burn. A skilled mechanic was expected to tell victim Anil Singh and complainant No.1-Smt.Sunita Singh not to ignite the match stick, not to operate electricity on the other hand open doors and windows, let fresh air come inside. But instead of taking due precaution, said mechanic advised the victim to light the match stick. He did not prohibit Anil Singh from igniting match stick. The skilled mechanic of opponent No.1 did not exercise due care while repairing gas segree or while meeting out the complaint raised by customer. Certainly, the incident took place due to rashness or negligence of Mr.Gopal Vishnoi i.e. mechanic of opponent No.1.
22. While coming to this conclusion, we are guided by ruling laid down by Honble National Commission in the case of Flame Gas Service, Bikaner & Ors. V/s. Aklesh Kumar Bansal & Ors., I(1995) CPJ 78 (NC), in which it is held as under :-
Opponent No.1 supplied gas cylinder to complainant No.1. Complaint registered. Mechanic sent who was untrained.
Hampered with cylinder. Fire took place. Complainant No.1, wife, complaint No.4 and mechanic seriously burnt. Complainants wife succumbed to injuries. Commission held that mechanic was not expert and cylinder was defective. Deficiency in service on the part of opponents.
23. Opponent No.1 did not file on record any document in support of written version to show that mechanic Mr.Gopal Vishnoi has required qualification to meet with complaints of the customers in connection with gas cylinders, burners and gas connections.
24. The complainant, like a diligent customer, informed opponent No.1 about non-burning of burner. Opponents did not prove that complainant or her husband handled the burner or gas cylinder with negligence or carelessness. The mechanic of opponent No.1 utterly failed to take proper precaution and care. He pressed valve of the gas cylinder and allowed the gas to pass through the cylinder. There was mass leakage which could be observed by obnoxious smell of LPG gas which could not go unnoticed. It was not sound advice in such circumstances to ignite match stick.
The very fact that the entire house was engulfed with fire indicates that huge quantity of gas had already accumulated in the kitchen. The fire was not controllable. Hence, Fire-brigade was called and Firemen extinguished the fire.
Opponent No.1 is responsible for the act of his mechanic. Opponent No.1 did not appoint skilled mechanic. Opponent No.1 is duty bound to maintain adequate trained and competent staff to do installation and for connecting appliances to cylinder and to attend the work of repairing appliances and providing free technical services to the customers. Opponent No.1, his employed agent and sub-agent shall not repair or admit any cylinder or any part thereof which may be damaged or defective, but immediately forward such cylinder or pressure regulator as the case may be to opponent No.2. It is not the case of opponent No.1 that cylinder was defective or it has any mechanical fault. On the other hand, it appears that valve was pressed by mechanic by screwdriver which was not at all proper on his part.
25. Another objection raised on behalf of opponent No.2 is that complainant No.1-Smt.Sunita Singh had borrowed the cylinder. It was not the gas cylinder which was authentically bought from opponent No.1.
26. Opponent No.2 did investigation after getting information of the accident through Mr.Ashish Parulekar, Deputy Manager (Sales), Mumbai Territory. Deputy Manager Mr.Parulekar submitted detailed report in Format-A&B. He has given description of the accident. His report shows that on the day of accident, new cylinder was borrowed and fitted to the domestic installation. Smt.Sunita Singh was in the process of making tea, the flame was not lighting at the burner end. Mechanic Mr.Gopal Vishnoi was summoned. He came and tried to light the burner, flame still did not light at the burner end. Mechanic Mr.Vishoni then tried to check burner by removing knob, but he could not.
He then tried to light hotplate burner on striking match stick. There was sudden fire and persons in the room i.e. mechanic-Mr.Gopal Vishnoi, Mr.Anil Singh and Mrs.Sunita Singh were caught in fire. On seeing smoke the neighbours broke open the asbestos ceiling and poured water as there was no other access. All the three occupants of the room at the time of accident suffered burns. Mrs. and Mr.Singh were admitted to Bhagwati Hospital. Mechanic-Mr.Vishnoi was admitted to private nursing home. The investigator observed that hotplate, flexible tube, pressure regulator, valve were in usable condition.
27. It is to be noted here that opponent No.1 does not claim that cylinder was not taken away by the complainant from Gas Agency/opponent No.1.
Opponent No.1 never objected the complaint on that ground. Opponent No.2 failed to prove by the statement of person who was conversant with fact that complainant had bought gas cylinder from borrowing from someone else. Evidence adduced on behalf of opponent No.2 is not sufficient to establish and prove its contention. Complainant No.1-Smt.Sunita Singh is a bonafide customer of opponent No.1. This is clear from the documents filed on record by the complainants which are undisputed. After the incident, opponent No.2 paid an amount of `1,51,516/- to the complainants. The plea that gas cylinder was borrowed by the complainant No.1 from someone else is afterthought plea, that cannot be taken into consideration.
28. We find no hesitation to hold that accident took place due to negligent act of mechanic of opponent No.1 and as per vicarious liability opponent No.1 is liable for act of its servant. It is urged on behalf of opponent No.1 that Ramchandra Gas Agency was insured with opponent No.4. Opponent No.4 has accepted this fact in the written version as well as in the affidavit of evidence. Witness of opponent No.4, namely, Mr.Mukesh Nandan Sahay states on oath that there is no privity of contract between complainants and opponent No.4.
Opponent No.2 had paid an amount of `1,51,516/- to the complainants towards full liability and therefore, now claim of the complainants is not tenable.
29. Admittedly, there is a contract of indemnity between opponent No.1 and opponent No.4/Insurance Company. Opponent No.2 had paid an amount of `1,51,516/- to the complainants, but it cannot be said that said amount is sufficient towards satisfaction of the claim of complainants.
Deceased Anil Singh, husband of complainant No.1 died in the accident occurred due to negligence of mechanic of opponent No.1. The complainant No.1-Smt.Sunita Singh herself sustained burns. House of the complainants was burnt. The complainants have lost their breadwinner.
Complainant Nos.2&3 have lost their beloved father in their childhood. Complainant No.1-Smt.Sunita Singh is aged about 24 years. When the incident took place, complainant Nos.2&3 were minor. Complainant No.1-Smt.Sunita Singh is living life of widow in young age. Death of Karta of family cannot be compensated in terms of money i.e. with meager amount of `1,51,516/-.
30. It is true that complainant No.1-Smt.Sunita Singh had acknowledged receipt of amount of `1,51,516/-. Complainant No.1-Smt.Sunita Singh is fair enough to admit receipt of amount of `1,51,516/-. She has filed document to that effect with her complaint. Complainant No.1-Smt.Sunita Singh is an illiterate lady. Amount was paid to her by cheque. Covering letter sent to complainant No.1-Smt.Sunita Singh was in English.
She did not understand contents of covering letter dated 11/06/2007 which was in English. Later on she came to know in the discussion with others, consequences of receipt of cheque. She immediately informed to opponent No.2 that after giving cheque her signature was obtained. Said document was in English, she signed said document without understanding the contents. She informed that she had accepted the cheque by keeping her right alive to initiate legal action. The amount paid by opponent No.2 on the ground of humanity to complainant No.1 in pursuance of her request and at the most be deducted from the final claim.
31. Advocate Mr.Vidyarthi vehemently urged that liability of the Insurance Company to indemnify opponent No.1 is limited. It is upto the extent of `1,00,000/- (Rupees One Lakh only). Copy of Insurance Policy is on record. On the date of accident, said Insurance Policy was in force.
32. Opponent No.1 has filed Insurance Policy issued by opponent No.4. It is valid during 07/02/2007 to 06/02/2008.
Net premium was `15,045/-. It is LPG Gas Traders Combined Insurance Policy. Terms and conditions are attached with said policy. Section 10 of the policy speaks about liability to third party. It is as under :-
Section - X Liability to Third Parties The Company will indemnify the Insured (or in the event of the death of the Insured his legal representative) against all sums which the Insured shall become legally liable to pay in the event of
(a) accidental bodily injury to any person (not being either a member of the Insureds family or a person engaged in and upon the service of the Insured at the time of the occurrence giving rise to such injury nor a person claiming against the Insured under any Workmens Compensation Act)
(b) accidental damage to property (not being property belonging to or in the custody or under the control of the Insured or any person in the service of the Insured or upon which the Insured or any such person is or has been working if that damage results directly from such work) Happening during the period of Insurance specified in the Schedule in connection with the Trade/Business as described in the Schedule
(i) at any Insureds premises specified in the Schedule
(ii) at any registered address of the customers
(iii) whilst the Gas Cylinders are in transit The indemnity granted under this section is extended to cover the liability of the Insured arising out of the use of any cycle/cycle van covered under Section IX of this Policy and if described as covered in the Schedule hereto for the purpose of the Insureds trade and/or business as specified in the Schedule.
The maximum amount payable by the Company as compensation in respect of one occurrence or all occurrences of a series consequent on or attributable to one source or original cause shall not exceed the Sum Insured specified in the Schedule.
The Company will in addition pay all costs and expenses incurred with its written consent.
33. The terms and conditions make it clear that the opponent No.4/Insurance Company is liable to indemnify opponent No.1 in view of Section 10 of the policy as the valid insurance policy was in force.
34. It is vehemently urged on behalf of opponent Nos.2&3 that leakage of gas and burning of gas was due to fault of unskilled mechanic of opponent No.1. They are not liable to pay compensation as there was no mechanical defect in the cylinder supplied by opponent No.2.
35. The agreement between opponent No.1 and opponent No.2 is on record. It is lebelled as Bharatgas (Liquefied Petroleum Gas) Distributorship (Domestic & Commercial) Agreement. It was executed on 08/05/2003 between opponent No.2 and opponent No.1. In para 16, condition is incorporated as under :-
16. The Distributor shall at his own costs maintain adequate trained and competent staff, to do installation work and for connecting appliances to cylinders and/or refills and pressure regulators and to attend to the work of repairing appliances and providing free technical service to the customers in accordance with the general instructions given or laid down by the Corporation.
There is clear-cut warning that the Distributor, his employees, agents and sub-agents shall not repair or attempt to repair any cylinder and/or pressure regulator and/or any part thereof which may be damaged or defective or thought to be so, but shall immediately forward such cylinder and/or pressure regulator as the case may be to the Corporation for repairs. The Distributor shall be liable to the Corporation for the cost of repairs to cylinders and/or pressure regulators that are damaged whilst the same are in the custody of the Distributor and or of the customers in the said area.
36. We find substance in argument advanced on behalf of opponent No.2 and opponent No.3. Nothing is on record to hold that gas cylinder supplied by the opponent No.2 was faulty or it had any mechanical defect. The opponent No.1 completely ignored conditions in agreement.
37. Learned Counsel for opponent No.2 has drawn our attention to Clause 17 of agreement between opponent No.1 and opponent No.2 and urged that opponent No.1 is not agent of opponent No.2 but opponent No.1 is a distributor and in the complaint relationship between opponent No.1 and opponent No.2 is wrongly shown as that of Agent and Distributor.
38. While considering the liability of opponent No.2, clause 17 of the agreement is of much importance. Clause 17 runs as under :-
17. In all contracts or engagements entered into by the Distributor with the customers for sale of LPG and/or the sale and/or installation and/or repairs of appliances and/or connections thereof with LPG Cylinders (filled or empty) and/or refills and/or pressure regulators and/or attached equipment the Distributor shall act and shall always be deemed to have acted as a principal and not as an agent or on account of the Corporation, and the 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 or omission on the part of the Distributor, his servants, agents and workmen in regard to such installation, sale, distribution, connections, repairs or otherwise. The Distributor shall be bound to inform the customers in writing of this provision, through correspondence or at the time of enrolment of the customer.
39. It is clear from clause 18(b) that Corporation i.e. opponent No.2 shall under no circumstances be liable or responsible for any loss, injury, or damage to the Distributor or to the customers, their servants, employees and agents or any other person whomsoever arising on account of any transaction under this Agreement or as a result of the LPG cylinders of the said equipment being in any way defective or in unfit condition.
40. Clause 20 clarifies that the Distributor will at all times fully indemnify the Corporation from and against all losses, damages, claims, suits and otherwise arising from or in connection with injury to person or property, short deliveries or otherwise howsoever in connection with matters covered by the agreement. The agreement shows that relationship between opponent No.1 and opponent No.2 was one of principal to principal and not that of Master and Agent.
41. Honble National Commission in the case of Flame Gas Service, Bikaner & Ors. V/s. Aklesh Kumar Bansal & Ors., I(1995) CPJ 78 (NC), has observed that the fire occurred as the Distributor has engaged an untrained mechanic who tampered with the cylinder in a negligent manner and no safety precautions were observed by him. In such circumstances, the Corporation cannot be made liable to for the negligent act of the Distributor and therefore, the appeal of the Indian Oil Corporation is liable to be accepted.
42. Clause 17 of the agreement was interpreted by the Honble Apex Court in the case of Indian Oil Corporation V/s. Consumer Protection Council, Kerala & Anr., JT 1993 (6) SC 645 - and held that the relationship is one of principal to principal basis and distributor cannot be said to an agent for Corporation.
43. Relationship between manufacturer and gas agency by virtue of agreement is that of principal to principal basis and this being the position, liability cannot be imposed on opponent No.2 and opponent No.3. We arrive at the conclusion that opponent Nos.1&4 are liable to pay compensation to the complainants.
44. Anil Singh sustained burns in fire and died due to consequences during medical treatment. Complainant No.1-Smt.Sunita Singh also sustained burns. While ascertaining the amount of compensation in view of Section 14(1)(d) of Consumer Protection Act, 1986, age, nature of work and income of deceased Anil Singh will be important factors. The complainants have not filed any document on record to prove exact age of deceased Anil Singh at the time of accident by fire. In postmortem report, age of deceased Anil Singh was shown as 32 years, it may be approximate age of deceased. He might be between age group of 35 to 40.
45. According to the complainants, Late Anil Singh was working in diamond industry as diamond cutting skilled worker. His last employment was with Avani Gems at Dahisar, Mumbai.
Police papers show that at the relevant time deceased was not on job, but he was staying at house.
However, deceased Anil Singh before his unfortunate death in fire accident served with Avani Gems as a skilled worker on piece work basis. Proprietor of Avani Gems has issued a Certificate to that effect which is undated. It shows that deceased Anil Singh was earning average income of `12,000/-
to `13000/- per month. However, Proprietor of Avani Gems has not filed account of salary or remuneration paid to deceased Anil Singh in support of his income certificate.
The Proprietor might have shown income of deceased Anil Singh on higher side. But we cannot forget the fact that Anil Singh was a skilled worker. It is not difficult for a skilled worked to earn `7,000/- to `8,000/- per month. We will consider his income as `1 Lakh per annum. At the time of death he was hardly 35-40 years old. Life expectancy is upto 70 years. Complainant No.1-Smt.Sunita Singh has lost her husband in young age. Complainant Nos.2&3 lost their father. The complainants are entitled for compensation on account of pains and sufferings and loss of love and affection. Property of the complainants was burnt. Opponent No.2 out of humanity paid a meager amount of `1,51,516/- to the complainants towards compensation which is not at all sufficient. On account of loss of dependency, funeral expenses, loss of property, loss of love and affections and for pains and sufferings, the opponent Nos.1&4 are jointly and severally liable to pay an amount of `18 Lakhs to the complainants towards compensation for negligence of untrained and unskilled mechanic of opponent No.1 and for loss of property and injuries suffered by the complainants.
46. Valid contract of indemnify was in force between opponent No.1 and opponent No.4. Opponent No.4 by executing insurance policy in favour of opponent No.1 undertook to indemnify the opponent No.1. Liability of opponent No.1 and opponent No.4 is joint and several.
With this view, we pass the following order :-
-: ORDER :-
1.
Complaint is partly allowed.
2. Opponent Nos.1&4 are jointly and severally directed to pay a compensation of `18 Lakhs to the complainants with interest @ 6% p.a. from the date of filing of complaint till realization of amount.
3. Opponent Nos.1&4 are jointly and severally directed to pay `20,000/-
to the complainants towards costs of litigation and shall bear their own costs.
4. Order shall be complied within a period of 45 days from today.
5. Complaint stands dismissed as against opponent Nos.2&3.
6. Copies of the order be furnished to the parties.
Pronounced Dated 9th December 2013.
[HON'ABLE MRS. Usha S.Thakare] PRESIDING MEMBER [HON'ABLE MR. Narendra Kawde] MEMBER dd.