Kerala High Court
William Jose vs Rafeeq on 30 October, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939
RFA.NO. 203 OF 2003 (C)
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AGAINST THE JUDGMENT IN O.S. NO.229 OF 1998 OF
THE I ADDITIONAL SUB COURT, ERNAKULAM DATED 30-10-2002
APPELLANT(S)/DEFENDANTS 1 TO 4 IN O.S. NO.229 OF 1998:
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1. WILLIAM JOSE, AGED 35 YEARS,
S/O.LATE P.V. JOSEPH, PARAMBALOTH HOUSE,
PANAMPILLY NAGAR P.O., ERNAKULAM
COCHIN - 682 035.
2. THRESSIAMMA JOSE, AGED 62 YEARS,
W/O.LATE P.V. JOSEPH, PARAMBALOTH HOUSE,
PANAMPILLY NAGAR P.O., ERNAKULAM
COCHIN - 682 035.
3. LISSY JOSE, AGED 34 YEARS,
D/O.LATE P.V. JOSEPH, PARAMBALOTH HOUSE,
PANAMPILLY NAGAR P.O., ERNAKULAM
COCHIN - 682 035.
4. LEEN JOSE, AGED 32 YEARS,
S/O.LATE P.V. JOSEPH, PARAMBALOTH HOUSE,
PANAMPILLY NAGAR P.O., ERNAKULAM
COCHIN - 682 035.
BY SENIOR ADVOCATE SHRI T.SETHUMADHAVAN
BY ADVS.SRI.K.C.CHARLES
SRI.G.RAJAGOPAL
SRI.THOMAS M.JACOB
RESPONDENT(S)/PLAINTIFF & DEFENDANTS 5 TO 7 IN O.S.NO.229/98:
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1. RAFEEQ, AGED ABOUT 25 YEARS,
S/O.MOIDEEN KOYA K.C., RIZANA MANZIL,
VYTTILA, ERNAKULAM.
2. BHARATH PETROLEUM CORPORATION LTD.,
REPRESENTED BY ITS SENIOR DIVISION MANAGER,
COCHIN DIVISION, ERNAKULAM, COCHIN - 682 014.
3. M/S.CINI AGENCIES, XXXV/2001,
RAVIPURAM ROAD, ERNAKULAM, KOCHI - 682 016.
RFA.NO. 203 OF 2003
4. THE NATIONAL INSURANCE COMPANY LTD.,
REPRESENTED BY ITS BRANCH MANAGER, 27/XVI,
MARKET JUNCTION, THRIPPUNITHURA.
R. BY ADV. B. DEEPAK (AMICUS CURIAE)
R2 BY ADV. SRI.N.N.SUGUNAPALAN
R1 BY ADV. SRI.P.CHANDRASEKHAR
R,R4 BY ADV. SRI.ELIZABETH VARKEY
R,R4 BY ADV. SRI.K.J.SAJI ISAAC
R2 BY ADV. SRI.S.SUJIN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 22.05.2017 ALONG WITH R.F.A. NOS.72 AND 259 OF 2003, THE
COURT ON 21.06.2017 DELIVERED THE FOLLOWING:
V.CHITAMBARESH
&
SATHISH NINAN, JJ.
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R.F.A. No.203 of 2003
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Dated this the day of June, 2017
J U D G M E N T
SATHISH NINAN, J.
These connected appeals arise from a decree for damages. Relief of damages is claimed consequent on the incident that occurred in the restaurant of which the predecessor-in-interest of the appellants was the owner.
A gas cylinder explosion occurred on 27.02.1995 at about 5.40 p.m. in the "Mini Coffee House" near South Railway Station, Ernakulam. The restaurant belonged to one P.V. Joseph. The injured in the accident are the plaintiffs in the suits. The Bharath Petroleum Corporation Limited, their distributing agency by name M/s.Cini Gas Agencies and their Insurance Company are also arrayed as defendants in the suit. Allegation of the plaintiffs is that the accident occurred consequent R.F.A. Nos.203 of 2003, etc. -: 2 :- to the negligence on the part of the owner of the restaurant and his employees and that they are liable to pay damages.
The accident is not in dispute. According to the owner of the restaurant there was some defects for the gas cylinders which resulted in the bursting of the cylinders and he is not responsible for the accident.
The court below found negligence at the hands of the owner of the restaurant and his employees and accordingly awarded damages. The challenge in these appeals is as against fixing of liability on the owner of the restaurant. The owner would contend that he had taken all reasonable precautions and that the accident occurred due the defects in the gas cylinders supplied by the BPCL and their agency. Primarily the question that arises is regarding the alleged negligence on the part of the owner of the restaurant and his employees. From the evidence it is clear that the restaurant had two kitchen; one on the eastern side R.F.A. Nos.203 of 2003, etc. -: 3 :- and the other on the southern side of the restaurant. The blast occurred in the kitchen on the eastern side. It has also come out in evidence that the gas cylinder was connected to the burner by means of a flexible rubber tube. These facts cannot be disputed on the basis of Ext.A10 copy of FIR registered in Crime No.67 of 1995 of the Ernakulam South Police Station, Ext.A8 Scene Mahazar, Ext.B15 Seizure Mahazar and Ext.B15 inventory, all prepared by the Sub Inspector of Police in connection with the crime. DW3 is the cook at whose hands the explosion took place. From his evidence it is clear that there was two hot burner spots in the eastern kitchen. After connecting a new cylinder to a burner, for lighting the burner he took a piece of paper, ignated it and about to light the burner to which the new cylinder was fitted whereupon fire spread out from the cylinder. Exhibit B14 is the fire accident report prepared by the BPCL. Therein the accident is described thus:
R.F.A. Nos.203 of 2003, etc. -: 4 :- "At about 17.40 hours, one of their cook, Mr.Kunjumon lighted a piece of paper from another burner inside the kitchen and was in the process of lighting the canteen burner attached to the Indane domestic cylinder through an IOC DPR and the burner got melted and LPG gushing out of the rubber tube caught fire. The rubber tube got disconnected from the burner and fell hanging on to the side of IOC cylinder and in the process, started heating the cylinder. This intense heat caused bulging f the cylinder which, in turn, resulted in a small tear in the body of the cylinder. The LPG gushing out of this slit caught fire and started heating a full unused 19 KG cylinder kept adjacent to this cylinder."
They have concluded that it was the negligence on the part of the cook which caused burning of the rubber tube and the consequential accident. There is no material to arrive at a different conclusion regarding the nature of the incident.
Learned Senior Counsel appearing for the appellants/owners of the restaurant would contend that there is lack of evidence to find negligence on their part, that there is lack of evidence to show the BPCL and its distributor had complied with all the requirements prescribed under the Gas Cylinders Rules, 1981 and the allied Rules and R.F.A. Nos.203 of 2003, etc. -: 5 :- Regulations. According to him there are various statutory requirements to be fulfilled and the duties cast on the BPCL and its distributor to be complied with in respect of gas cylinders and its supply. There is lack of evidence to prove that the requirement of relevant statutes and Rules have been complied with. Therefore, according to him the burden cast on the BPCL and its distributor has not been discharged and that they may not be made liable for damages. Learned Senior Counsel would also referred to Ext.B10 insurance policy in the name of the distributor to contend that the liability is to be cast upon the Insurance Company by virtue of the indemnity given by them.
From the evidence on record, it could not be disputed that the restaurant in question was provided with a commercial gas connection at the relevant time. So also, it cannot be disputed that there were two kitchen for the restaurant; one on the eastern side and the other on the southern side and that the accident took place in the eastern R.F.A. Nos.203 of 2003, etc. -: 6 :- side. It is also in evidence that the gas cylinder was connected to the burner by using a flexible rubber tube. The eastern kitchen where the explosion took place was a small room without any ventilation and that more than one gas cylinder were kept together in that room.
Rule 2 of the Gas Cylinders Rules, 1981 defines 'installation' as any premises wherein any place has been specifically prepared for the manufacture (filling) or storage of compressed gas cylinder. The Indian Standard Code of Practice for Liquefied Petroleum Gas for short, "the Code of Practice", Liquefied Petroleum Gas Manual, Liquefied Petroleum Gas Regulation and Supply distribution Order, 1993 (for short, "the 1993 Order"), etc., are the relevant statutes governing the storage and supply of liquefied petroleum gas. The Code of Practice clauses 4, 5 and 7 provide for location of the gas cylinder in respect of stationary installation, its piping, fitting, etc. It also provides for the nature of the materials R.F.A. Nos.203 of 2003, etc. -: 7 :- used for piping, tubing and fittings. Clause 4(iv) provides that the cylinders are to be connected to the regulators through semi flexible connectors and copper tubing is supposed to be used. Rule 4 of the 1993 Order provides for storage of liquefied petroleum gas in cool, dry, ventilated and accessible place away from boilers, open flames, steam pipes or any potential use of heat.
As per the relevant statutes, a commercial connection has far more restrictions from that of a domestic connection. Cylinders are not to be kept inside the kitchen. Gas is provided to the kitchen through LPG pipes. Rubber tubes are not to be used. A bunk is provided for keeping the cylinders. Here the connection was provided to the kitchen on the southern side whereas the gas cylinder was found and explosion took place on the eastern kitchen which was not the place where the supply for provided for. Gas connection was not provided through metal tube as was required. In terms of Rule 3(a) of the 1993 Order, there could R.F.A. Nos.203 of 2003, etc. -: 8 :- not be domestic as well as commercial installations at the same premises. However, it is evident that both these installations were there at the premises in question. On evidence, it is revealed that the gas cylinders were kept in the eastern kitchen which did not have any proper ventilation. As pointed out supra, the gas cylinders are to be kept in a specified manifold. The same was violated and was brought to the eastern kitchen. Clause 4.1.11 of the Code of Practice provides for installations to be made where they may not be overheated or close to steam pipes or boilers. Rule 3(a) of the 1993 Order prohibits possession of more than one connection of liquefied petroleum gas granted under the public distribution system. Evidence of Dws1, 3 and 5 along with Ext.A8 and A14 would reveal that the above said provisions have been violated. All these would reveal that there has been negligent user of liquefied petroleum gas by the owner of the restaurant. The finding of negligence by the court below on the part the owner is not liable to be R.F.A. Nos.203 of 2003, etc. -: 9 :- interfered with.
Learned Senior Counsel referring to the statutory provisions referred to supra would contend that the distributor has violated the various duties cast upon it regarding the maintenance of the liquefied petroleum gas system. The Code of Practice relating to commercial and industrial cylinder installations provides for periodic inspection to be done by the supplier of gas regarding the installation of piping and wiring. The LPG Manual also provides for regular check up by the distributors at the customer's premises. It also provides that the distributor or the sub distributor must ensure the flexible tubing, wholes, etc., installed on the customer's premises is inspected every time refilled cylinder is delivered and that it should be changed if it is not found in satisfactory condition. It further imposes a duty on the refill delivery man who at frequent intervals visits the premises to note the condition of the equipments, appliances, tubing, R.F.A. Nos.203 of 2003, etc. -: 10 :- etc., and in case it is found to be in defect or not in order report the same to the distributor or customer. Therefore, as noticed above, the duty cast on the distributor has been violated. Gas cylinder was used in an unauthorised premises. A rubber tube was used to connect the cylinder, the cylinder was kept in a closed room without ventilation, it was being used along with another domestic connection which was not permitted. If the distributor through its employees had made necessary inspections as was required under law as noticed above, the accident could have been avoided. The duty of the distributor cannot be overlooked. The court below has declined to grant relief against the distributor, on the primary finding that the accident was caused due to the negligence on the part of the owner. As is evident from the discussion made above, the accident has occurred not solely due to the negligence on the part of the owner but occurred also due to the non- performance of the duties cast on the distributor R.F.A. Nos.203 of 2003, etc. -: 11 :- and its employees. Therefore, it is found that the distributor, M/s.Cini Gas Agencies is also liable for the damages that occurred consequent on the accident in question.
When the liability of the distributor is found, Ext.B10 insurance policy assumes significance. Exhibit B10 is a L.P. Gas traders' combined policy issued by the National Insurance Company Ltd. It relates to the period from 28.11.1994 to 27.11.1995 which covers the period in which the accident occurred. Section 10 of the policy deals with the liability of the 3rd parties. The relevant clauses are extracted hereunder:
"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 Insured's family or a person engaged in and upon the service of the Insured at the time of the occurrence giving rise to R.F.A. Nos.203 of 2003, etc. -: 12 :- such injury nor a person claiming against the Insured under any Workmen's Compensation Act).
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(ii) at any registered address of the customers."
Though the learned counsel appearing for the Insurance Company would contend that the accident and the consequent damage to third parties does not have any connection to the insurance trade, stock, business, as found supra, the accident has occurred consequent on the violation of the duty cast on the part of the distributor also, in relation to its trade/business. Therefore, they are not entitled to riggle out from their liability as undertaken in Ext.B10. Since the distributor is also found liable for the plaint claim, the Insurance Company under terms of Ext.B10 policy is liable to indemnify the distributor.
Though the plaintiffs have not challenged that part of the decree which negatived grant of relief against the distributor and Insurance Company, the main stress of the submissions made by the learned R.F.A. Nos.203 of 2003, etc. -: 13 :- Senior Counsel was relating to the liability of the Insurance Company. We feel that this is a fit case where Order XLI Rule 33 of the Code of Civil Procedure is to be invoked and the decree be modified to do justice.
There is no challenge as against the quantum of damages awarded. We feel that the quantum awarded is only just and proper considering the injury suffered.
In the result, the appeals are allowed modifying the judgment and decree passed by the court below. It is held that the LPG distributor, M/s.Cini Gas Agencies which is the 6th defendant in O.S. No.671 of 1999, O.S. No.229 of 1998, O.S. No.119 of 2000 and the 2nd defendant in O.S.No.211 of 1998 is also liable for the amount as decreed by the court below. The National Insurance Company Limited who is the insurer is bound to indemnify M/s.Cini Gas Agencies.
Since the owner of the restaurant and M/s.Cini Gas Agencies are found equally liable for the R.F.A. Nos.203 of 2003, etc. -: 14 :- accident that occurred, they are directed to make payment in the ratio of 50:50. Hence they are directed to deposit their share of the amount as decreed by the court below.
V. CHITAMBARESH, JUDGE.
SATHISH NINAN, JUDGE.
vsv