State Consumer Disputes Redressal Commission
H.P. State Civil Supply Corporation Ltd ... vs Pyare Lal & Ors on 15 July, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ---- ORDER RESERVED ON 4.7.2011. DATE OF DECISION: 15.7.2011. In the matter of: FIRST APPEAL NO.83/2009. Indian Oil Corporation, SDA Complex, Kasumpti, Shimla-9 through its Law Officer. Appellant. Versus 1. Shri Pyare Lal son of Shri Kundan Lal, Resident of Village Pawali, P.O. and Tehsil Rohroo, District Shimla, H.P. 2. Shri Kundan Lal son of Shri Swaroopa Nand, Resident of Village Pawali, P.O. & Tehsil Rohroo, District Shimla, H.P. 3. H.P. State Civil Supply Corporation Ltd., SDA Complex, Kasumpti, Shimla-9 through its Divisional Manager. 4. The Incharge, H.P. State Civil Supplies Gas Depot, Rohroo, District Shimla, H.P. 5. M/S ICICI Lombard Company Ltd. S.C.O. 24-25, Sector 8-C, Chandigarh through its Area Manager (Insurance Company). Respondents. Present: Mr. R.S. Verma, Advocate, for the appellant. Mr. Peeyush Verma, Advocate, for respondents No. 1 & 2. Ms Bhavna Dutta, Advocate, for respondents No.3 & 4. None for respondent No.5. FIRST APPEAL NO. 84/2009. 1.H.P. State Civil Supply Corporation Ltd., SDA Complex, Kasumpti, Shimla-9 through its Divisional Manager. 2.The Incharge, H.P. State Civil Supplies Gas Depot, Rohroo, District Shimla, H.P. Appellants. Versus 1. Shri Pyare Lal son of Shri Kundan Lal, Resident of Village Pawali, P.O. and Tehsil Rohroo, District Shimla, H.P. 2. Shri Kundan Lal son of Shri Swaroopa Nand, Resident of Village Pawali, P.O. & Tehsil Rohroo, District Shimla, H.P. 3. Indian Oil Corporation, SDA Complex, Kasumpti, Shimla-9 through its Law Officer. 4. ICICI Lombard Company Ltd. S.C.O. 24-25, Sector 8-C, Chandigarh through its Area Manager. Present: Ms Bhavna Dutta, Advocate, for the appellants. Mr. Peeyush Verma, Advocate, for respondents No.1 & 2. Mr. R.S. Verma, Advocate, for respondent No.3. None for respondent No.4. FIRST APPEAL NO.88/2009. 1. Shri Pyare Lal son of Shri Kundan Lal, Resident of Village Pawali, P.O. and Tehsil Rohroo, District Shimla, H.P. 2. Shri Kundan Lal son of Shri Swaroopa Nand, Resident of Village Pawali, P.O. & Tehsil Rohroo, District Shimla, H.P. Appellants. Versus 1.H.P. State Civil Supply Corporation Ltd., SDA Complex, Kasumpti, Shimla-9 through its Divisional Manager. 2.The Incharge, H.P. State Civil Supplies Gas Depot, Rohroo, District Shimla, H.P. 3.Indian Oil Corporation, SDA Complex, Kasumpti, Shimla-9 through its Area Manager. 4.M/s ICICI Lombard Company Ltd. S.C.O. 24-25, Sector 8-C, Chandigarh through its Area Manager. Respondents. Present: Mr. Peeyush Verma, Advocate, for the appellants. Ms Bhavna Dutta, Advocate, for respondents No.1 & 2. Mr. R.S. Verma, Advocate, for respondent No.3. None for respondent No.4. Honble Mr. Chander Shekhar Sharma, Presiding Member. Honble Smt. Prem Chauhan, Member. ------------------------------------------------------------------------------------------------------------------------------------- O R D E R:
CHANDER SHEKHAR SHARMA, PRESIDING MEMBER.
1. All these appeals have arisen out of the order, dated 22.1.2009 passed by the District Forum, Shimla, in C.C. No. 82/2006, dated as such they are being disposed of by this common order.
Parties are being referred as per their description in complaint.
2. Appeal No.83/2009 and 84/2009 have been filed by the appellants against the aforesaid order whereby the complaint was allowed and O.P. Nos. 1 to 3 were held jointly and severally liable to pay damages to the tune of Rs.3,48,167/- to the complainant alongwith interest @ 9% per annum with effect from the date of filing of the complaint i.e.22.3.2006 till full payment is made. Litigation cost of Rs.2,500/- has also been levied to the O.P. Nos. 1 to 3 payable to the complainant.
3. Appeal No.88/2009 has been filed for enhancement of the damages awarded in the present case by the appellant. It also transpires from the record that the complaint against O.P. No.4, Insurance Company was dismissed being not maintainable.
4. Facts of the case as they emerge from the record in brief are that the complainant Pyare Lal who is the son of complainant No.2, Kundan Lal was a subscriber of LPG connection with O.P. No.2 since 28.1.1994. Further averments in the complaint are, that the complainant had booked gas cylinder with O.P. No.2 in October, 2005 which was to be supplied by them in the same month. It is also alleged that on 24.10.2005 at about 1.12.30 P.M. when the movement of the seal of the cylinder was removed by complainant No.1, it started leaking out with great force and speed and as a result thereof fire broke out in their house and complainant No.1 received grievous burn injuries in this fire incident and upper portion of the building of the complainants had sustained extensive damage due to the blast and as a result thereof furniture and other articles also gutted in fire. Thereafter, factum of blast and fire was reported to the Police. Since there was negligence on the part of O.P. No.1 & 2 who were suppliers of LPG cylinder and O.P. No.3 who is manufacturer of the gas cylinder in bulk, blast and resultant fire caused huge loss to the building and complainant No.1 had also sustained injuries on his person.
On account of this loss, damage and suffering caused to the complainants, complaint under Section 12 of the Consumer Protection Act, 1986 was filed for deficiency of service and unfair trade practice., wherein compensation amounting to Rs.6,50,000/- had been claimed alongwith interest @ 18% per annum with effect from 25.10.2005 till the date of payment alongwith damages to the tune of Rs.50,000/-.
5. O.Ps in the present case have contested and resisted the present complaint. O.P. No.1 &2 in their joint reply had taken stand regarding the status of the complainants as consumers and maintainability of the complaint on jurisdiction and on merits, it was alleged that complainant No.2 was a subscriber of L.P.G. cylinder with O.P. No.1 and the gas connection has been provided to him at its address, Sarupa Nand Building, Rohroo and not at Village Pawali where the complainant alleged to have subscribed to the supply of L.P.G. cylinder which is at a distance of 5 kms. from the aforesaid Sarupa Nand Building and the said cylinder has been unauthorizedly used by the complainant. As such, they are not liable to indemnify the complainants.
6. O.P. No.3 also did not accept the liability to indemnify the complainants because they are manufacturer of L.P.G cylinders in bulk which are supplied to O.P. Nos. 1 & 2 after proper checking in the plant and upon having obtained insurance cover from O.P. No.4 by the O.P. Nos. 1 & 2, in terms of clause 18 of the distributorship agreement, O.P. No.4 is liable to indemnify the loss to the complainants. However, O.P. No.4 in a separate reply has alleged that since there is no privity of contract between the complainants and O.P. No.4, as such there is no deficiency of service on their part and hence the complainant is not entitled for any damages in the present case and the complaint deserves to be dismissed.
7. Brief resume of evidence led by the parties in the present case in nutshell is that the complainant in support of his case has filed his own affidavit and placed reliance upon various documents, Annexures A.1 to A.12, which are;
Form No.45 relating to L.P.G connection of the complainant, dated 11.2.1994, copy of Rapat No.23, dated 24.10.2005 of P.S. Rohroo, newspaper cutting dated 25.10.2005 alongwith photo of the complainant and defective gas cylinder, copy of letter dated 24.10.2005 addressed to the Medical Officer, Civil Hospital, Rohroo by the S.H.O., copy of M.L.C. dated 24.10.2005, burn injury certificate issued in respect of Sh. Pyare Lal, complainant by the Medical Officer, C.H., Rohroo, Fire Certificate issued by Deputy Fire Officer, Fire Station, Rohroo, certificate relating to damage caused due to blasting of cylinder and consequent damage to the house etc. issued by the Gram Panchayat, Karalash, abstract of cost prepared for the damages alongwith site plan of reconstruction, copy of damage report of S.D.O.(Civil), Rohroo alongwith inventory of burnt articles and certificate of Patwari regarding damage on account of blasting of cylinder and consequent fire and various bills relating to purchase of medicines by Shri Pyare Lal, complainant from the Medical Stores have been placed on record.
8. O.P. Nos. 1 & 2 in support of their case have filed affidavit of Shri S.C. Negi, General Manager, Administration, H.P. State Civil Supplies Corporation and the Indian Oil Corporation has also filed affidavit of Shri G.D.S. Sodhi, Deputy Manager (Law), Indian Oil Corporation, Chandigarh and placed reliance upon various documents, Annexures R.3/A to R.3/B which are agreement executed between the Indian Oil Corporation and the State Civil Supplies Corporation, dated 8.5.2001 and copy of the Insurance policy of ICICI Lombard, respectively. O.P. No.4 has not led any evidence in support of its case. Their only plea was that there is no privity of contract between the complainant and the Insurance Company, as such they are not liable for the same as already stated above.
9. Rejoinder to the replies was also filed wherein the averments made in the complaint were reiterated.
10. We have heard learned Counsel for the parties at length and have also gone through the record of the case minutely.
11. Ms Bhavna Dutta , learned Counsel for the appellant argued that the order of the Forum below in holding the O.P. Nos. 1 & 2 jointly and severally liable for the damages is not legally sustainable. Learned Counsel for O.P. Nos. 1 & 2 argued that in the present case Civil Supplies Corporation and O.P. No.3 have been held jointly and severally liable to pay compensation to the complainants since no receipts relating to the supply of cylinder by Civil Supply Corporation to the complainant, Kundan Lal had been brought on record. Moreover, supply of cylinder was made by his client as per address given in the connection receipt, Annexure A.1, Sarupa Nand Building, whereas cylinder blasting incident has occurred at some other place, namely the village Pawali which is 5 kms away from the place of connection of L.P.G. given to the complainant by the appellants. As such, this is a case of unauthorized use of L.P.G. cylinder by the complainant and as such the Civil Supplies Corporation/his clients are not liable to pay any damages to the complainant in the present case and the complaint deserves to be dismissed. It was further pleaded that the blast of L.P.G. cylinder took place due to manufacturing defect, as such his clients are not liable to pay any compensation in the case and his further contention was that even report of the incident had not been made to the Civil Supplies Corporation and as such the complainant is not coming with clean hands and the order of the Fora below is not legally sustainable.
12. Mr. R.S. Verma, learned Counsel for the Indian Oil Corporation who is the appellant in Appeal No.83/2009 argued that the Indian Oil Corporation were wrongly held jointly and severally liable to pay the compensation in the present case and he has drawn our attention to Clause 17 of the agreement executed between his client and H.P. Civil Supplies Corporation.
13. Mr. Peeyush Verma, learned Counsel for the appellants in Appeal No.88/2009 argued that the compensation awarded by the Forum below is most inadequate and it deserves to be enhanced in the present case since the Forum below has not rightly appreciated the abstract cost prepared by the Engineer in this case by not adding 52% cost index over HPSR 1999 which was to the tune of Rs.1,55,047/- on the ground that there is no specific note of the Engineer concerned regarding the rates which were taken into consideration by him at the time of preparing the estimation of construction, Annexure A.10 and this reasoning assigned by the Forum below is not legally warranted and he also argued that even the Insurance Company cannot escape from its liability and the Forum below had wrongly come to the conclusion that the complaint against the Insurance Company is not maintainable.
He has relied upon the decision of the Honble National Commission in the case of Bharat Petroleum Corporation Ltd. Versus Dharam Pal, 2010 CTJ 1271 (CP) (NCDRC) , whereby both the appellant-Bharat Petroleum Corporation Ltd. as well as the dealer, Bharat Gas Service, were held liable for payment of compensation to those who suffered fatal burn injuries as a result of leakage of cooking gas from the cylinder and also to one who survived in the incident. He has further placed reliance on the decision of this Commission in First Appeal No.476/2007 and two other connected Appeals filed by United India Insurance Co. Ltd., H.P. State Civil Supplies corporation Ltd. And Indian Oil Corporation against the complainants/respondents, Shri Devinder Singh and Smt. Santosh Kumari, decided on 22.6.2009, whereby appeal of Insurance Company was allowed and that of H.P. State Civil Supplies corporation Ltd. and the Indian Oil Corporation were dismissed.
Mr. Verma also argued that in the present case, there is no force in the plea taken by the O.P. Nos.1 & 2 in their version that since no receipt/any document has been produced by the complainant for proving the fact of delivery of cylinder to the complainant No.2 as it has been admitted in para-3 of their reply by O.P. Nos. 1 & 2 that Sh. Kundan Lal was supplied cylinder on 29.9.2005 on his Rohroo address, as such in view of this admission there is no force in the aforesaid contention of the O.P. Nos. 1 & 2.
14. After hearing the learned Counsel for the parties and after going through the record of the case and minute examination of the evidence on record, we are of the considered view that there is no infirmity in the order of the Forum below whereby O.P. Nos. 1 to 3 were jointly and severally held liable for payment of damages to the tune of Rs.3,48,167/- alongwith interest and cost as already mentioned above.
15. Mr. R.S. Verma, learned Counsel for the Indian Oil Corporation in Appeal No.83/2009 laid stress on the point that the IOC is not liable in view of the clause 17 of the Agreement entered into between the Indian Oil Corporation and H.P. State Civil Supplies Corporation, Annexure R.3/A, which is reproduced below:-
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 of otherwise. The Distributor shall be bound to inform the customers in writing of the provision, through correspondence or at the time of enrolment of the customer.
He had also placed reliance on the judgment of the Honble Apex Court in the case of Indian Oil Corporation Versus Consumer Protection Council, Kerala and another, II (1994) CPJ 21 (SC). The principle laid down in the aforesaid decision of the Honble Apex Court is not disputed since in the present case the cylinder which was supplied that was not an unauthorized one but complainant No.2 was a regular customer registered with the IOC and this judgment is not applicable in the present case in view of the detailed facts narrated hereinabove. The IOC is a manufacturer of L.P.G. cylinders and they as a manufacturer are duty bound to see that manufactured cylinders are of proper specification and there is no latent or patent defect in the cylinders. No evidence to this effect has been placed by the IOC for proving this fact. As such, there is no illegality in fastening liability also upon the IOC as it cannot escape its liability by taking shelter under Col.17 of the agreement, reproduced above since there is ample evidence on record viz. report of the Fire officer, FIR, Certificate of Gram Panchayat, Medical certificate and various cash memo. and even the photos of Sh.
Pyare Lal which depict that he had been extensively burnt and there is inventory of articles which had been destroyed in the fire and from the evidence on record it is very clear that due to blast of cylinder and consequent spreading of flames Shri Pyare Lal had received extensive burn injuries and the house was destroyed in fire.
16. Main thrust of arguments of Ms Bhavna Dutta, learned Counsel for the appellants in Appeal No.84/2009 was on the point that in the present case no receipt pertaining to the supply of gas cylinder to complainant No.2 had been placed on record and Shri Pyare Lal was not their subscriber who had sustained injuries due to burns whereas complainant No.2 his father was their subscriber to whom LPG connection was provided and this LPG connection as per record was to be provided in the building known as Sarupa Nand Building, Rohroo, whereas the blast of cylinder has taken place in Village Pawali, which is at a distance of 5 kms. from Sarupa Nand Building. As such, since blast has taken place at a different place, as such the appellants are not liable to indemnify the complainants for any loss sustained in the fire incident. There is no force in these arguments advanced by the learned Counsel for the appellants Ms Bhavna Dutta since there is a clear admission of the appellants in para-3 of their reply to the complaint , relevant portion of their version at page 97 thereof is reproduced below:-
.However, to Sh. Kundan Lal, at his Rohroo address a cylinder was supplied on 29.9.05...
17. Since Sh. Kundal Lal is admittedly registered as a subscriber with the appellants, is father of Sh. Pyare Lal, complainant No.1 and there is fiduciary relationship between them and generally it is a common practice that between the relations if son needs cylinder, he can ask for it from his relation i.e. father, as such there is nothing wrong. If the cylinder was taken to Pawali by complainant No.1, and it is admitted case of the appellants that the cylinder was supplied to Sh. Kundan Lal on 29.5.2005 and there is overwhelming evidence on record to the effect that this cylinder had blasted in the house of Shri Pyare Lal at Pawali. As per affidavit of father and son i.e. both the complainants, when the seal of the cylinder was removed by complainant No.1, it started leaking out with great force and speed resulting in a blast and fire as a result thereof complainant No.1, Pyare Lal received grievous burn injuries in the fire incident and upper portion of the building of the complainants sustained extensive damage and other accessories/articles in the house were destroyed and there was a massive fire incident which was reported to the Police Station, Rohroo and report in this regard was also published in the newspapers and even the photographs Annexure A.4 depicts the burn injuries on the person of Shri Pyare Lal and this fact is duly corroborated by the Medical Examination report, Annexure A.6 and certificate issued by the Medical Officer, Rajkiya Chikitsalya, Rohroo, Annexure A.7 and the certificate, Annexure A.8 issued by the Fire Officer and by Gram Panchayat, Karalash, Annexure A.9.Even the abstract of cost and site plan, Annexure A.10 also clearly depicts that massive damage was caused to the building and detailed inventory which is at page-27 of the complaint file also depicts about the articles destroyed in the fire. Even the certificate which is at page 28 of the complaint file also corroborate the version of the complainants that as a result of blasting of cylinder fire had broken in the house and as a result thereof house was destroyed. Even the photograph of the cylinder which is at page-12 of the complaint file also corroborates the version of blasting and damage etc.
18. Since reliance has been placed by the Indian Oil Corporation on Annexure R.3/A, which is an agreement executed between the IOC and the H.P. State Civil Supplies Corporation, wherein under the heading, Distributor not to sell outside his territory, it is provided as under:-
(iv) The Distributor will during the continuance of this Agreement confine himself to effect the sale in the area of territory specified hereinabove but the Corporation shall be entitled without the consent of the Distributor to enlarge reduce, increase or modify such area of territory to such other place as may from time to time be authorized by the Corporation in writing.
And as such it was bounden duty of O.P. Nos. 1 & 2 to prove that the village of complainant is not covered under the specified area and cylinder could not be taken by the complainant to their village, Pawali which was not the specified place for sale of cylinder . No documentary evidence has been placed on record in this regard by the O.P. Nos. 1 & 2, therefore, for want of cogent documentary evidence which has not been produced on record by the O.P. Nos.1 & 2 to prove that village Pawali which is 5 kms. From Rohroo where the L.P.G connection had been provided was not covered for sale of LPG cylinders. As such, this plea is not having any force and deserves to be rejected and the Forum below has dealt exhaustively this point in its order and as such there is no infirmity in the order of the Forum below in holding jointly and severally O.P. Nos. 1 to 3 liable to pay damages to the complainants as awarded while allowing the complaint. There is also no force in the arguments of the learned Counsel for the appellants that the respondent-Corporation has not come with clean hands since no report of the incident was made to the appellants in the matter. Generally, report in such matters is made to the Police Station as well as to the Gram Panchayat which have been promptly made by the complainant in the present case which fact is evident from the Rapat No.23, dated 24.10.2005 of Police Station, Rohroo and on the same day an application for medication examination of the injured Shri Pyare Lal was made to the Medical Officer, Rohroo and medical certificate, Annexure A.7 also corroborates the grievous burn injuries on the person of Shri Pyare Lal and this fact is also corroborated from the Annexure A.8 and A.9 which are Certificates of Fire Officer as well as of Gram Panchayat and the certificate of Patwari, dated 19.1.2006 which clearly corroborates the complainants version that on 24.10.2005 gas cylinder was blasted in the house of Shri Pyare Lal.
Hence, this plea is devoid of any force and deserves to be rejected on this score alone. As such, if the Civil Supplies Corporation was not informed in the matter, it is of no consequence since it is admitted fact that incident of fire had occurred due to blasting of the cylinder.
19. Appeal No.88/2009 is filed by the appellants for enhancement of compensation.
Legal position laid down in the decisions relied upon by Mr. Verma as referred earlier paras is not disputed. Mr. Peeyush Verma, learned Counsel for the appellants has strenuously argued as already referred to in para No.13 that the compensation awarded in the present case is most inadequate as the Forum below had not rightly taken into consideration the estimate/abstract of cost, Annexure A.10 which is duly supported by the map since the Forum below has illegally substracted the amount of Rs.1,55,047/- from the cost to be incurred on the construction. Reason for adding this amount in the estimate/abstract was that in Annexure A.10 at the bottom it is written by the concerned Engineer, Add 52% cost Index over HPSR 1999 and thereafter the amount of Rs.1,55,047/- has been added in the cost. There was no infirmity in the order of the Forum below in disallowing this amount to the appellants in the present case as it appears from the estimate, Annexure A.10 which is prepared by the Assistant Engineer, HP PWD, Rohroo that it does not clearly depict the rates which were taken into consideration by the concerned Engineer at the time of preparing these estimates of the construction and without specific note of the concerned Engineer in this behalf on Annexure A.10, it was not possible for the Forum below to give increase of 52% over HPSR 1999. Moreover, affidavit of the said Engineer has also not been placed on record by the appellants. Compensation which has been awarded on account of bills of treatment of grievous injuries and burns in the cylinder blast which were supplied by the complainant, to the tune of Rs.20,000/- appears to be just and reasonable in view of the facts and circumstances of the case. Similarly, compensation which was awarded to the tune of Rs.30,000/- for destruction of different articles kept by the complainant in the damaged portion of the building also appears to be a reasonable compensation as per damage in view of the evidence on record and facts and circumstances of the case and as such there is no force in this appeal. There is no infirmity in the order of the Forum below in absolving the Insurance Company, O.P. No.5 in the appeal since there is no privity of contract between the complainant and the Insurance Company and as such complaint was not maintainable against the said O.P. and this finding of Forum below is legally justified. However, O.P. Nos. 2 & 3 can recover the awarded amount of compensation from the Insurance Company which is their internal matter.
20. No other point was urged.
In view of the aforesaid detailed discussion, Appeal Nos. 83/2009, 84/2009 and 88/2009 are dismissed and the order of the District Forum, Shimla, in C.C. No. 82/2006, dated 22.1.2009 is maintained.
There is no order as to costs.
All interim orders passed from time to time in Appeal No.84/2009 shall stand vacated forthwith.
Authenticated copy of this order be placed on the files of Appeal Nos. 84/2009 and 88/2009.
Copies of this order be sent to the parties free of cost as per rules.
Announced at Shimla On July 15, 2011.
( Chander Shekhar Sharma ) Presiding Member.
( Prem Chauhan ) Member