State Consumer Disputes Redressal Commission
The Divisional Manager vs Mubeen Taj on 9 August, 2012
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
BANGALORE
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE.
DATED THIS THE 8th DAY OF AUGUST 2012
PRESENT
THE HONBLE MR.JUSTICE K.RAMANNA : PRESIDENT
SMT.RAMA ANANTH : MEMBER
Appeal Nos.3780/2009, 235/2010 & 4022/2010
Appeal No.3780/2009
The Divisional Manager
The Oriental Insurance Company Ltd.,
Divisional Office,
S.S.Complex, Subhash
Square,
Hassan 573 201, By Regional Office,
The Oriental Insurance Company Ltd.,
No.44/45, 4th Floor,
Leo Shopping Complex,
Residency Road, Bangalore
560 025.
Represented by its Regional Manager.
(By Shri/Smt
P.B.Raju )
1. Mubeen Taj
W/o.late.Mahboob Pasha,
aged 35 years.
2. Shabeena
Tassinima, D/o. Mahboob
Pasha,
3. Master Mohammad
Billal,
S/o.Mahboob
Pasha, aged 3 years.
[2nd and 3rd
complainants being
minors,
represented by their mother
the 1st
complainant, as natural
guardian].
All are
residing at Ward No.12,
Janata House,
Channarayapatna.
.
4. Proprietor,
H.P.Gas
Sri.Vinayaka
Gas Agency,
Rameshwara
Extension,
Near New Bus
Sand,
Channarayapatna.
(By Shri/Smt B. Chetan for R-1 to 3 & S. Raju for R-4)
Appeal No.
235/2010
1. Mubintaz,
W/o.late.Mehaboob Pasha
aged abou 36
years.
2. Shabina
Thasinima
D/o.late.Mehaboob Pasha,
aged bout 9
years.
3. Mohamad Bilal
S/o.late.Mehaboob Pasha,
aged bout 4
years.
since appellant
No.2 & 3 are minors
they are rep.by
their natural guardian
mother being
the appellant No.1 in this
appeal.
All the
appellants are residing at
Ward No.12,
Janatha House,
Channarayapatna
Taluk,
Hassan District.
(By Shri/Smt
B.Chethan)
1. The Manager
H.P.Gas,
Sri.Vinayaka
Gas Agencies,
Rameshwara
Extension,
Near New bus
stand.
Channarayapatna
Taluk,
Hassan District.
2. The Divisional
Manager
The Oriental
Insurance Co. Ltd.,
S.S.Complex,
subhash Square,
Hassan 573 201.
(By Shri/Smt. B. Raju for R-1 & P.B.Raju for R-II)
Appeal No.4022/2010
Shivananjegowda, major,
Proprietor, H.P.Gas,
Sri.Vinayaka Gas Agency,
Rameswara Extension,
Near New Bus-stand,
Channarayapatna, Hassan District.
(By Shri/Smt
S.Raju & Associates)
1. Mubeen Taz
Aged about 36
years,
W/o.late.
Mehaboob Pasha.
2. Shabeena
Tassinima,
3. Mohammed Billal,
Aged 4 years,
S/o.late.Mehaboob Pasha.
Resp. 2 and 3
being minors,
they are Rep.
by their mother and
natural
guardian, Smt.Mubeen taj i.e.
rep. No.1.
All are r/at
Ward No12,
Janatha House,
Channarayapatna,
Hassan Disrict.
4. The Divisional
Manager,
The Oriental
Insurance Co. Ltd.,
Divisional
Office, S.S.Complex,
Subhash Square,
Hassan 573 001.
(By Shri/Smt
B.Chethan for R-1 to 3 & P.B. Raju for R-4)
Opposite Party 2 before the DF
.Appellant/s
-Versus-
R-1 to 3 are Complainants & R-2 is OP 1 before
the DF
.Respondent/s
Complainants before the DF
.Appellant/s
-Versus-
Opposite Parties before the DF
.Appellant/s
Opposite Party 1 before the DF
.Appellant/s
R-1 to 3 are Complainants & R-2 is OP 1 before
the DF
.Respondent/s
O R D E R
HONBLE JUSTICE MR.K. RAMANNA : PRESIDENT
1. These three appeals have arisen out of the same order passed by the DF, Hassan in Complaint No.6/2009 dated 24.09.2009 whereby the complaint filed by the appellants/complainants in Appeal No. 235/2010 came to be allowed in part directing the appellants in Appeal Nos. 3780/2009 and 4022/2010 to pay a sum Rs. 4,04,000/- within two months, failing which the said amount carries interest at 10% p.a till the date of payment. Further OP 2 is directed to pay a sum of Rs. 1,000/- towards litigation expenses.
2. Appeal No. 3780/2009 s filed by OP 2, the Oriental Insurance Co., Ltd., whereas the Appeal No. 4022/2010 is filed by OP 1, the proprietor of M/s Vinayaka Gas Agencies to set aside the order passed by the DF and Appeal No. 235/2010 is filed by the complainants seeking enhancement of the compensation on various grounds.
3. Since all these appeals arisen out of one and the same order passed by the DF, in order to avoid repetition of facts and law, they are taken up together, heard and being disposed of by this common order.
4. In appeal No. 4022/2010, the appellant has filed an application under Section 5 of the Limitation Act to condone the delay of 330 days caused in filing the appeal supported by an affidavit of Sri. Shivananjegowda, the proprietor of H.P.Gas, Sri. Vinayaka Gas Agency, Channarayapatna, Hassan District, contending that he had contested the mater before the DF. The DF without appreciating the material evidence on record allowed the complaint in part by an order dated 24.09.2009. Against the said order the 4th respondent preferred an appeal in Appeal No. 3780/2009, wherein he has been impleaded as 4th respondent.
After receiving the notice in the said appeal, he filed detailed objections in the month of May-2010.
While preparing the objections in Appeal No. 3780/2009, his counsel advised him to challenge the impugned order and directed him to get the documents related to UDR, FIR No. 17/2008 and also the insurance policy and other documents. Therefore, he went to his native place and applied for the said document in order to file the appeal. Even after collecting the certified copy of the impugned order and other police papers he could not contact his advocate as he was suffering from Chickoon Gunya from 15.07.2010 to 20.09.2010. He was taking treatment for the said period and hence he could not contact and instruct his advocate. Therefore, there is a delay. The delay in filing the appeal is not an intentional one, but due to bonafide reasons.
He has got good grounds to succeed in his appeal. If the delay is not condoned, he will be put to irreparable loss and injustice.
5. In appeal No. 3870/2010, the appellant has filed an application under Section 5 of the Limitation Act to condone the delay of 6 days caused in filing the appeal supported by an affidavit of its officer whereas there is a delay of 86 days in filing the Appeal No. 235/2010 by the complainant for which an application under Section 5 of the Limitation Act came to be filed supported by an affidavit of Smt. Mubintaz, W/o Mehaboob Pasha, the appellant No.1 explaining the delay.
6. In pursuance of the notice issued to the respondents in all these three appeals, they appeared through their respective counsel. The respondent in Appeal No. 3780/2009 and 4022/2010 appeared and resisted the appeal contending that the order under challenge passed by the DF is in accordance with law but, the quantification made by the DF in awarding compensation is not in accordance with law. Therefore, prayed to allow Appeal No. 235/2010 by modifying the order.
7. The respondents in Appeal No. 235/2010 appeared and resisted the appeal contending that the order under challenge passed by the DF is totally perverse, incorrect and without appreciation of the evidence. Therefore, prays for dismissal of the appeal.
8. We have heard the arguments of the learned counsel for both the parties in all these appeals and perused the records.
9. The point for determination in these appeals is that whether:
a) The appellants in all these appeals have shown sufficient and reasonable grounds to condone the delay caused in preferring the appeals?
b) The appellants in Appeal No. 3780/2009 and 4022/2010 prove that the order under challenge is perverse and incorrect?
c) The appellant in Appeal No. 235/2010 proves that the compensation awarded by the DF is incorrect; If so, what order?
10. Point No.1:- First of all it is the duty of the appellants that they should prefer appeals against the orders of the DF within 30 days from the date of passing the impugned order. If there is a delay in preferring the appeals, they should explain each days delay by giving sufficient and reasonable grounds which prevented them in not filing the appeals within the statutory period of limitation. In appeal No. 4022/2010, the appellant has filed an application under Section 5 of the Limitation Act to condone the delay of 330 days caused in filing the appeal supported by an affidavit of Sri. Shivananjegowda, the Proprietor of H.P.Gas, Sri. Vinayaka Gas Agency, Channarayapatna, Hassan District who is the service provider of the appellant in Appeal No. 235/2010 by supplying the LPG Gas Cylinder that is for domestic purpose. The plain reading of the affidavit filed in support of the I.A discloses that the appellant is knew about passing of the impugned order but contends that without proper appreciation of the evidence allowed the complaint filed by the appellant in Appeal No. 235/2010 by an order dated 24.09.2009. Against the said order the 4th respondent preferred an appeal in Appeal No. 3780/2009, wherein he has been impleaded as 4th respondent. After receiving the notice in the said appeal, he filed a detailed objection in the month of May-2010. While preparing the objections in Appeal No. 3780/2009, his counsel advised him to challenge the impugned order and directed him to get the documents related to UDR, FIR No. 17/2008 and also the insurance policy and other documents. Therefore, he went to his native place and applied for the said document in order to file the appeal. The appellant being a business man is expected to know the result of the complaint filed against him by the complainant before the DF and in turn he has contested the matter and ought to have been enquired from his advocate.
Affidavit filed in support of I.A does not disclose that he has made such attempt to know about the result about the complaint filed against him. According to the appellant after securing the documents he fell ill on account of Chikoon Gunya and could not furnish the documents to his advocate. There is no proof to show that she was suffering from Chikoon Gunya. If she had really suffering from Chikoon Gunya he ought to have submitted the medical certificate. In the absence of which, we hold that the appellant utterly failed to show sufficient and reasonable grounds to condone the abnormal delay of 330 days in preferring the appeal who is expected to explain each days delay caused in preferring the appeal. Advocate for the respondent vehemently argued that, there are no factual or legal points involved in this case and the delay has not been explained properly. In this behalf a reference may be made to a decision rendered by the Honble National Commission reported in Collector, Land Acquisition Vs. Katiji AIR 1987 SC 1953. The reason assigned by the appellant in our opinion is vague which cannot be accepted.
Hence, I.A. No.I deserves to be dismissed and we record Point No.1 in negative.
11. There is a delay of 6 days in preferring the Appeal No. 3780/2009. We have carefully gone through the affidavit filed in support of I.A. Considering the facts and circumstances of the case the delay caused is only 6 days which is negligible and in our opinion, the delay is bonafide one. Hence, I.A.I filed by the appellant is hereby allowed and the delay is condoned.
12. There is a delay of 86 days in preferring the Appeal No. 235/2010 by the complainant. The affidavit filed by the appellant states that, they have not preferred the appeal within the stipulated period of limitation. In view of the fact that the deponent who is the complainant No.1 is a Pardanashin lady and the deceased Mahaboob Pasha was the only earning member of their family and after his death there was great financial difficulties in their family and for the treatment of deceased Mahaboob Pasha they have spent huge amount by borrowing money from others. Therefore, she could not contact her advocate immediately after passing the impugned order. Considering the fact that the appellant is a Pardanashin lady so also other parents who are the dependents and taking into consideration the death of the sole earning member of the family she might not have contact her advocate.
Later she came to know that the compensation awarded is on the higher side. Therefore, the explanation offered by the deponent in our opinion is just and reasonable and bonafide. Hence, I.A. filed to condone the delay of 86 days is allowed by condoning the delay.
13. Point No. 2 & 3:- It is an undisputed fact that the deceased Mehaboob Pasha the husband of the appellant No.1 in Appeal No. 235/2010 was a consumer under the appellant in Appeal No. 4022/2010 that is Vinayaka Gas Agency, who was the supplier of LPG Gas cylinders, in an usual course supplied the gas cylinder to the house of the deceased on 20.08.2008. Since there was some smell emanating from the cylinder, the deceased immediately complained to the respondent No.1 to take remedial steps but, first respondent did not respond in spite of his repeated reminders.
Therefore, on 21.08.2008 around 11-00 PM when the deceased trying to lit the kerosene pump stove to boil the water suddenly caught fire which caused him severe injuries and his cousin.
Immediately both of them were shifted to the hospital but, Mehaboob Pasha who sustained severe burns succumbed to the injuries on 25.08.2008 while undergoing treatment. The complainant has spent more than Rs.1,50,000/- towards treatment of the deceased Mehaboob Pasha.
14. It is further case of the complainants that after the incident they have complained to the jurisdictional police and a case came to be registered, charge sheet was also filed. The accident occurred due to the negligent and irresponsible act of the OP/H.P. Gas that is M/s Vinayaka Gas Agency. Even though they have made a complaint, they did not turn up and rectified the leakage. Therefore, they filed a complaint.
15. The deceased Mehaboob Pasha is a consumer under the OP 1. He has taken LPG Domestic Cylinder Gas Connection in the month of May-2006. OP 1 has taken a contention that there is no relationship of whatsoever in between the deceased Mehaboob Pasha and the complainants. To prove the same, the complainants have produced Geneological tree which shows that complainant No.1 is the wife and complainants 2 and 3 are the children aged about 8 years and 5 months respectively which is not in dispute.
Records indicate that the complainants as well as the deceased were the tenants of PW-2 Devaraj S/o Ramegowda of Channarayapatna. The complainant No.1 has taken a Mangalore tiled house from Devaraj on lease basis and her husband was working in the welding shop. Prior to 24.08.2008 complainant No.1 had been to her parental house for delivery of second baby to Sakaleshpur and at that time her husband deceased Mehaboob Pasha and one Muneer that is his sisters son were staying in the said house. On 21.08.2008 at about 11-00 PM after returning from the place of work in order to take a hot water the deceased put on the kerosene pump stove which was nearby the gas cylinder and on account of the leakage of gas it was started burning.
Therefore, both of them tried to put off the regulator of that cylinder and it was caught fire. Consequently, both of them sustained severe burn injuries.
Thereafter injured were shifted to Government Hospital, Channarayapatna and they have advised to take him to Mangala Hospital at Hassan and accordingly they shifted to Mangala Hospital. While undergoing treatment in that hospital, both of them died as an inpatient.
According to PW-1 after coming to know about the burn injuries on account of leakage of the gas from the cylinder, she rushed to the Government Hospital, Channarayapatna where she was taking care of her husband but, some how did not survive and died. Therefore, she filed a complaint with the police. On the basis of the complaint of the complainant No. 1, inquest was held over the dead body under Section 174 of Cr.P.C., statement of the related witnesses as well as the other witnesses were recorded, body was subjected to the PM examination. The cause of death of Mr. Mehaboob Pasha was due to septicemia as a result of burn injuries sustained. The evidence PW-1 has corroborated by the PW-2 the owner of the house about the death of late Mehaboob Pasha and his knees. The OPs are seriously disputed about the relationship of the complainants with the deceased. So after the death of Mehaboob Pasha the LPG Cylinder was transferred in the name of complainant No.1. Therefore, the DF has rightly recorded its findings and the complainants are none other than the wife and children and they are the legal heirs and dependents of the deceased Mehaboob Pasha.
16. Of course, the learned counsel for the appellant in Appeal No. 3780/2009 contended that since the complicated questions of facts and law involved, it is for the civil court to decide the matter after adducing oral and documentary evidence. To that effect the DF referred the decision relied on by the learned counsel for OP 1 reported in Law of Consumer Protection in India wherein it has been held that;
(g) Gas blast resulting into death Where the complaint was based upon the Gas blast resulting into the death of the husband of complainant. The OPs have resisted the complaint on various grounds, including the liability of the opposite party, right from the point of delivery of the cylinder, as also the authority of the deceased to operate the cylinder, and on the other points. Clearly, therefore, that case involved number of disputed questions of facts which could not be decided upon affidavits and required leading of not only oral and documentary evidence, but also the evidence of expert witness. It was, therefore, just and proper to relegate the parties to Civil Court, if they so desired and to dispose of the complaint without entering into the merits of the case.
17. In view of the recent decision rendered by the Honble National Commission that the DF is not expected to shirk its responsibility by holding that since the complicated questions of facts and law are involved, it is better to refer the matter to the Civil Court for adjudication. In view of the fact that the DF is headed by the District Judge who was put in more than 25 to 30 years of service are capable of deciding the cases which are involving the complicated questions of facts and law and by referring both oral and documentary evidence and the ratio laid down by this Commission way back in 2006 cannot be made applicable to the facts of the case on hand. The documentary evidence of complaint filed before the jurisdictional police on 25.08.2008 and UDR, statement of witnesses clearly indicates that Mehaboob Pasha and Muneer died on account of burns due to leakage of gas. According to the complainants the cylinder was supplied by OP 1 on the previous day. In view of the fact that on 21.08.2008 at about 11-00 PM both the deceased were returned to their house and lit the kerosene stove to boil the water in order to take bath and at that time they noticed some flames. Immediately they tried to switch off the cylinder, consequently they sustained injuries. There is no dispute with regard to the death of Mehaboob Pasha due to burns.
Therefore, it cannot be said that the deceased and his niece have not properly operated and switched off the regulator on the previous day. However considering the oral and documentary evidence, we hold that the DF has rightly recorded its findings that there is a deficiency of service on the part of the OPs.
With regard to the quantum of compensation is concerned, the DF has taken the age of the deceased as well as his earnings and rightly taken a loss of dependency at Rs. 2,000/- per month after taking 1/3 amount for his personal expenses and quantified the compensation at Rs. 24,000/- p.a by applying multiplier 16 and rightly awarded compensation of Rs. 3,84,000/- towards loss of income, Rs. 10,000/- towards funeral expenses and other in all to the tune of Rs. 4,04,000/-. Since the complainants have not produced the income certificate to show that her husband was getting the income of more than Rs. 3,000/- per month. In the absence of which we are not inclined to accept the contention taken by the complainants that the compensation awarded in their favour by the DF is inadequate and insufficient and which is meager cannot be accepted. Therefore, in our considered opinion, we dont notice any perverse or incorrect findings recorded by the DF in passing the impugned order. Accordingly, we pass the following:
O R D E R All the appeals are dismissed. The order passed by the DF, Hassan in complaint No. 6/2009 dated 24.09.2009 is confirmed.
As far as these appeals are concerned, no order as to costs.
The amount deposited by the appellant in Appeal No. 3780/2009 shall be transferred to the DF to pay the same to the complainants/respondents after due notice to them.
Copy of the original of this order shall be kept in Appeal No. 3780/2009 a copy of it shall be placed in the rest of the files.
PRESIDENT MEMBER Rhr*