SHRI. M.V. VISWANATHAN JUDICIAL MEMBER
The appellant was the complainant and respondents 1 to 3 were the opposite parties 1 to 3 respectively in OP.282/04 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency in service on the part of the opposite parties in rendering service to the complainant being consumer of LP cooking gas. It was alleged that the complainant suffered damage in the gas explosion which occurred due to leakage of gas from the cylinder and the said gas explosion occurred due to the deficiency in service on the part of the opposite parties 1 and 2 in maintaining the gas installation at the premises of the complainant and also in supplying defective cylinder LP gas to the complainant. The third opposite party being the insurer of the first opposite party Gas Agency failed to pay compensation to the complainant. Thus, the complainant claimed a sum of Rs.3 lakhs by way of compensation.
2. The opposite parties entered appearance and filed separate written version. The first opposite party denied deficiency in service in supplying the LP gas to the complainant. It was contended that the complainant failed to adhere to the safety norms and requirements while using LPG; that the complainant was using a very old rubber tube for connecting the regulator to the gas stove and that portion of the tube had tear on it; that the Forensic Expert did not find any defect on the regulator or cylinder; that the cylinder was supplied after proper checking and there was no leakage for the cylinder at the time of its delivery. Thus, the first opposite party/United Gas Agency prayed for dismissal of the complaint.
3. The second opposite party Area Manager Indian Oil Corporation filed written version denying the alleged deficiency in service. It was contended that the non-closure of the gas stove was one of the reasons for gas leakage; that the case of the complainant that gas stove was closed after cooking cannot be accepted; that the gas explosion occurred not due to any reason attributable to the opposite parties 1 and 2; that the accident was not due to the faulty equipment; that the cylinders are checked before delivery. There was no deficiency in service on the part of the second opposite party.
4. The third opposite party M/s Oriental Insurance Company Ltd. filed written version admitting that the first opposite party had taken LPG dealers indemnity policy and it was subject to terms and conditions. It was further contended that the report of the Scientific Assistant shows that the regulator was in âon position and the rubber tube was very old and that the gas was found leaking through the valve of the cylinder and near to the gas stove there was a stabilizer and electric switch of the fridge. It was further contended that the complainant was negligent in maintaining and using the gas stove properly and the accident of explosion occurred due to the negligence of the complainant. Thus, the third opposite party prayed for dismissal of the complaint filed against them.
5. Before the Forum below, the Power of Attorney Holder of the complainant was examined as PW1. The Proprietor of the first opposite party United Gas Agency was examined as DW1 and the Assistant Area Manager of Indian Oil Corporation (second opposite party) was examined as DW2. Exts. A1 to A 9 and B1 to B4 documents were marked on the side of the parties to the said complaint. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 9th February 2005 dismissing the complaint in OP.282/04. Hence the present appeal.
6. When this appeal was taken up for final hearing, there was no representation for respondents 1 to 3. We heard the learned counsel for the appellant/complainant. He submitted his arguments based on the grounds urged in the memorandum of the present appeal and argued for the position that the gas explosion occurred due to the deficiency in service on the part of the opposite parties 1 and 2 in maintaining the gas cylinder properly and also in supplying the gas cylinder by following the safety requirements. Thus, the appellant/complainant prayed for setting aside the impugned order passed by the Forum below and to allow the complaint in OP.282/04.
7. The points that arise for consideration are:-
1. Whether the appellant/complainant has succeeded in establishing the negligence on the part of the opposite parties as alleged in the complaint in OP.282/04 on the file of CDRF, Ernakulam?
2. Whether the Forum below can be justified in finding that the complainant failed to prove the allegations leveled against the opposite parties and thereby dismissing the complaint in OP.282/04?
3. What order as to reliefs and costs?
8. Point Nos. 1 to 3: Admittedly, appellant/complainant is a consumer of LP cooking gas and that the first respondent/opposite party was the distributor of the LP gas to the complainant and that the second opposite party is the manufacturer of LP gas supplied through the first opposite party/United Gas Agency. There is also no dispute that the third opposite party/Oriental Insurance Company had issued Insurance Policy in the name of the first opposite party/United Gas Agency under the LPG dealers indemnity policy. There is also no dispute that there occurred gas explosion at the complainants premises where the LP cooking gas was supplied by the first opposite party/United Gas Agency. The aforesaid gas explosion occurred on 21-01-04, and in the said gas explosion the house of the complainant was damaged to some extent and thereby the complainant suffered damages.
9. The case of the appellant/complainant is that the aforesaid gas explosion occurred due to the negligence and deficiency in service on the part of the opposite parties 1 and 2 in maintaining the gas cylinders and also in supplying the filled gas cylinder to the complainant. Ext.A2 is the Indane customer subscription voucher issued by the second respondent/second opposite party Indian Oil Corporation Ltd for availing the LP gas connection by the appellant/complainant. A2 document would show that the appellant/complainant is a subscriber of the LP cooking gas under the second opposite party/Indian Oil Corporation. Ext.A3 is copy of FIR lodged by the Fort Cochin Police as FIR No.9 dated 21/1/04 under the caption fire occurrence. The FI statement was given by PW1 Nihas, the son of the appellant/complainant. The First Information Statement would show that the explosion occurred on 21/1/04 and the said gas explosion occurred on account of the leakage of LP cooking gas from the gas cylinder installed in the house owned by the appellant/complainant. It would also show that at the time of the said gas explosion, nobody was in the house, as the family members had gone to attend funeral ceremony at a place known as Poochakkal. It would further show that the First Informant Nihas and his brother Sajeeth left the house early in the morning and he got the information about the gas explosion over phone. It is further stated in the first information statement that on 21.1.04 morning the first informant Nihas and his brother Sajeeth had some cooking in their kitchen and thereafter they closed the gas stove. It is also stated that there was gas leakage from the gas cylinder and LPG as exploded and that the family of the first informant suffered loss of Rs.1 lakh.
10. The First Informant Nihas was examined before the Forum below as PW1. Ext.A4 is copy of the fire report submitted by the Assistant Divisional Officer, Fire Rescue Services, Ernakulam. A4 Fire Report would show that the Fire Fighting party attended the Fire Incident at 7.25 AM on 21.1.04. In A4 Report of the Fire incident is shown as Gas Explosion. As per the Fire Report, the damage to the building and the articles has been assessed at Rs.3 lakhs. A4 Fire Report would also make it clear that there occurred a gas explosion in the house of the appellant/complainant. Ext.A5 is copy of the list of household articles which sustained damage in the gas explosion. A5 list is signed by the appellant/complainant. As per A5 list, the cost of the damaged household articles would come to Rs.20,988/-. Ext.A6 is copy of the estimate for effecting repair to the residential building which sustained damage in the said gas explosion. The total cost of repair has been assessed at Rs.1,93,266/-. Ext.A7 is copy of the letter dated 20.3.04, issued by the appellant/complainant to the respondents/opposite parties demanding compensation of Rs.3 lakhs. Ext.A8 and A9 postal receipts and acknowledgement card would show issuance of A7 letter.
11. From the side of the complainant his son was examined as PW1 (First Informant). He also filed proof affidavit in lieu of examination in chief. In cross examination PW1 has deposed that the gas explosion occurred due to LP cooking gas leakage from the cylinder. PW1 has categorically deposed that the said cylinder was supplied 2 days back and there was nothing wrong with the gas cylinder for the said 2 days. His evidence would show that the gas explosion occurred due to leakage of gas from the cylinder and the said explosion occurred in the morning of 21.1.04. PW1 has categorically deposed that himself and his brother used the gas for cooking in the morning of 21.1.04 and after use they closed the gas stove. It is pertinent to note at this juncture that PW1 has no case that they closed the regulator fitted to the gas cylinder. It is also to be noted that there is no case for the complainant in the written complaint that the regulator was closed after use of the gas in the morning of 21.1.04. In A7 letter also it is only stated that after cooking in the morning of 21.1.04 they closed the gas stove. There is no whisper inA7 letter or in the written complaint in OP.282/04 about the closing of the regulator attached to the gas cylinder. It is to be noted that the failure on the part of the appellant/complainant and his family members in closing the regulator attached to the gas cylinder would amount to negligence.
12. There can be no doubt about the fact that the consumer of gas and the family members of the consumer are bound to close the regulator after use of the gas. The failure in closing the regulator of the cylinder would amount to negligence on the part of the consumer. It is to be noted that PW1 and his brother handled the gas installation at their house. The evidence of PW1 would give an indication that their mother (wife of the complainant) was handling the gas stove and its regulator. The possibility for PW1 and his brother in not closing the regulator on account of their lack of experience cannot be ruled out.
13. The evidence of PW1 would also show that the rubber tube connecting the gas stove to the gas regulator was old. It is deposed by PW1 that the rubber tube was purchased 8 months back. But there is nothing on record to show that the rubber tube was purchased 8 months back. Ext. B1 and B2 reports would show that the rubber tube was an old one and it was having tear on it. It is also come out in evidence that the rubber tube was having a covering with spiral spring and the use of such spiral spring would also cause hindrance in getting clear vision of the rubber tube. Even if there was any damage to the rubber tube that could not be clearly seen because of this spiral spring. So, the appellant/complainant was also negligent in not replacing the old rubber tube by a new one.
14. There is nothing on record to show that there was anything wrong with the gas cylinder and the regulator attached to it. It is further to be noted that the appellant/complainant has not adduced any expert evidence to prove his case that the gas cylinder and the regulator attached to the same were having defects. Ext.B2 report would show hat there was no defect to the gas cylinder and the gas regulator.
15. PW1 has also got a case that he got information from his mother about the smell of cooking gas after the installation of the new cylinder 2 days back. But the appellant/complainant and his family members were least bothered about the said smell of cooking gas. This circumstance would show that the appellant/complainant (consumer) and his family members neglected the smell of cooking gas and that they continued the use of cooking gas even after getting such a smell of the cooking gas. This would also show that the appellant/complainant and his family members were negligent in using the cooking gas for cooking purpose. Had there been diligence and vigilance in using the cooking gas there would not have such an untoward incident of gas explosion. Thus, the evidence of PW1 and the surrounding circumstances would give an indication that there was negligence on the part of the consumer and his family members in using LP cooking gas.
16. The first opposite party, the proprietor of M/s. United Gas Agency who was the supplier of gas to the complainant was examined as DW1. He admitted the fact that the gas cylinder and regulator are the properties of the second opposite party/Indian Oil Corporation, the manufacturer of the gas. It is admitted by DW1 there is washer provided for every gas cylinder and any damage to the rubber washer of the cylinder would cause gas leak. It is true that DW1 denied the suggestion that there was defect in the cylinder. DW1 has also deposed that the first opposite party/dealer of the LP cooking gas conducted checking before effecting delivery of the gas cylinder. But there is no supporting material to show that such pre-delivery check up was done at the instance of the opposite parties 1 and 2.
17. The first opposite party/dealer of LPG has admitted in his version that the rubber tube connecting the gas stove with the regulator was having hole and tear and that due to the deterioration in the tube caused leakage of gas. The first opposite party has also relied on B1 scene examination Report and B2 LPG accident report. Ext.B1 scene examination was submitted by Mr.M.K.Ajithkumar, Scientific Assistant, District Mobile Lab, District Police Office, Kottayam and the said report is submitted on 30.1.04. A perusal of B1 scene examination report would show that the said report was submitted based on examination of the scene of occurrence on 21.1.04. It is reported in B1 scene examination report about the existence of gas stove on the eastern side of the kitchen slab and the said stove was connected to the regulator with a rubber tube and that the gas stove was in âoff position and the regulator in âon position. It is also reported that the Scientific Assistant could understand that the gas stove and the regulator were in the same position at the time of the incident. It is categorically reported in B1 report that the rubber tube was found to be very old one and having small teared portion near the stove end of the rubber tube. The Scientific Assistant had also occasion to verify the gas cylinder which was found at the southern side of the courtyard of the house, at the time of his examination. It is reported that the cylinder was found to be intact and that the gas was found leaking through the valve of the cylinder. There was 10.4 kg. of gas remaining inside the said letter. The Scientific Assistant opined that the leak of the domestic gas through the old rubber tube might have caused the gas explosion since the regulator of the cylinder was in âon position and that the ignition occurred by the spark from the automatic electric switch of the thermostatically controlled fridge. So, B1 report would give an indication that the gas leakage occurred through the old rubber tube which was having tear on its stove end and that the gas leakage occurred on account of keeping the regulator in âon position.
18. Ext.B2 is the report submitted by K.J.Thomas, A.MPLG (Asst.Manager LPG). The aforesaid LPG accident report is submitted in Format âA and Format âB. As per LPG accident report, the said accident occurred on 21.1.04 at 7.30 AM. A perusal of B2 LPG accident report would make it clear that the rubber tube used for connecting the gas stove to the regulator was more than 2 year old and that the said rubber tube was replaced 2 years back. It would also show that there were cracks in the said rubber tube. The aforesaid B2 report would also make it clear that no instruction card was kept in the kitchen. It would further show that the gas installation at the premises of the consumer was not checked by the distributors mechanic. The approximate period when the installation was checked is kept blank. Thus, B2 report would make it clear that the first opposite party, the distributor of LP gas was negligent in checking the gas installation at the premises of the consumer. The aforesaid query and the answer to the same would make it clear that there was a duty cast upon the first opposite party/dealer of the gas to check the gas installation at the premises of the consumer. It is true that it is reported that the installation was check by the delivery man for gas leakage. But there is nothing on record to show that such a check up was made by the delivery man. There is also no whisper about the person who delivered the gas cylinder and installed the gas cylinder to the gas installation at the premises of the complainant/consumer. It is further reported in B2 LPG accident report that the gas leakage occurred through the old rubber tube which was having cracks and the source of ignition was either from the fridge or from the stabilizer placed in the kitchen where the gas installation was kept. It is specifically reported that the regulator was found in âon condition and that it is because of the failure to close the regulator the gas leak occurred resulting in the gas explosion.
19. In B2 report remedial action has been suggested. The remedial action is enumerated as 1 to 3. It reads as follows:-
1. Mandatory checks of customers are conducted by distributors to eliminate unsafe condition at customer premise, educate customers on safety and for inspection of rubber tubes, etc.
2. Issue of safety leaflets to the customers and periodical advertisement in the media to BIS standard rubber tubes and safe practice.
3. Educate customers with the need to keep PR in off condition.
20. The aforesaid suggestions would give an indication that there occurred failure on the part of the first opposite party/distributor to make periodical inspection of the gas installation at the premises of the complainant/consumer and that the complainant/customer was not made aware of the safety norms to be followed while using LP gas and that safety leaflets were not supplied to the complainant/customer. Thus, B2 LPG accident report would give clear indication that the first opposite party/dealer was also negligent in following the guidelines in supplying LPG cylinders to the customers including the complainant. Had there been regular and periodical check up of the gas installation at the premises of the complainant there would not have such a gas leakage through the old rubber tube. The first opposite party/dealer could have very well instructed the complainant/customer to get the old rubber tube replaced. It is to be noted that there had the option for the first opposite party/dealer of the LP gas not to supply the gas cylinder unless and until the old and cracked rubber tube is replaced. But no such method was adopted by the first opposite party/dealer of the LP gas who supplied the LP gas cylinder to the complainant/customer.
21. The materials on record would also make it clear that the second opposite party/Indian Oil Corporation, the manufacturer of the LP gas failed to make periodical inspection to see that the instructions are followed by the first opposite party distributor/dealer of LP gas to maintain the safety measures. Had there been regular inspection by the officials of Indian Oil Corporation to see as to whether the first opposite party/dealer of LP gas is following the safety norms there would not have such use of old rubber tube to connect the gas stove with the gas regulator. Thus, it can be concluded that the first and second opposite parties were also negligent to some extent.
22. Admittedly, third opposite party M/s Oriental Insurance Company Ltd, is the insurer of the policy insuring the first opposite party dealer of the gas. It is admitted by the third opposite party/Insurance Company that the first opposite party/dealer of LPG had taken LPG dealers indemnity policy. It is true that the third opposite party/Insurance Company has also taken the contention that the said policy was issued subject to the terms and conditions of the policy. But the opposite parties 1 to 3 have not produced the aforesaid LPG dealers indemnity policy issued by the third opposite party in the name of the first opposite party. So, the third opposite party is liable to indemnify the first opposite party/dealer of LP gas.
23. The third opposite party has also taken the contention that the Scientific Assistant who inspected the scene of occurrence found leaking of gas through the valve of the cylinder. It is true that such a report is given by the Scientific Assistant in his B1 report. This would give an indication that there was something wrong with the gas cylinder. It is to be noted that there cannot be leak of LP gas from the gas cylinder if the cylinder was not connected with the regulator. It is to be noted that at the time when the Scientific Assistant inspected the scene of occurrence, the gas cylinder with 10.4 kgs of LP gas was kept in the courtyard. The said cylinder was not connected to the stove or to the regulator. In the ordinary course, there could not be any leaking of gas through the valve of the cylinder. This circustance would give a strong indication that there was something wrong with the valve of the LPG cylinder. If that be so, the opposite parties 1 and 2 were also negligent in supplying a defective gas cylinder to the complainant/customer. Thus, in all respects, the third opposite party/Insurance Company is liable to indemnify the first opposite party, the insured under the LPG dealers indemnity policy.
24. Ext.B4 is the letter dated 16.11.04 issued by the third opposite party/Oriental Insurance Company Ltd. from its registered office at New Delhi. Ext.B4 letter dated 16.11.04 issued by the third opposite party would show that a sum of Rs.10,000/- was paid by way of full and final settlement of the Insurance claim with respect to the LPG Fire Accident Claim made by the complainant Mr.K.K.Gafoor. This B4 document would not show that Rs.10,000/- was paid as an ex-gratia payment. There is nothing on record to support the case of the opposite parties that Rs.10,000/- was paid to the complainant by way of ex-gratia payment. On the other hand, B4 letter would show that the said payment was made by way of full and final settlement of the claim made by the complainant Mr.K.K.Gafoor. The aforesaid payment would give a clear indication that the third opposite party was liable to indemnify the first opposite party and thereby the third opposite party is also bound to pay compensation to the complainant for the negligence and deficiency in service on the part of the first opposite party/dealer of LP gas.
25. The forgoing discussions and the finding thereon would make it clear that there was negligence on the part of the appellant/complainant and respondents 1 and 2 (opposite parties 1 and 2) in causing the gas explosion at the premises of the complainant. Thus, both the complainant and the opposite parties 1 and 2 contributed negligence in causing the gas explosion which occurred on 21.1.04 at the premises of the complainant/consumer. It is only because of the contributory negligence on the part of the complainant and opposite parties 1 and 2 resulted in the untoward incident of gas explosion which occurred on 21.1.04. Considering the comparative negligence on the part of the complainant and opposite parties 1 and 2 it can be concluded that the negligence on the part of the complainant was 50%. Thus, the complainant and opposite parties 1 and 2 equally contributed negligence for causing the gas explosion at the premises of the complainant. Therefore, the opposite parties 1 and 2 are liable to compensate the complainant for the loss suffered by him by paying 50% of the total compensation. The third opposite party being the insurer of the first opposite party is liable to indemnify the first opposite party. It is made clear that the opposite parties 1 and 2 are jointly and severely liable to pay 50% of the total compensation due to the complainant and the third opposite party/insurer will indemnify the first opposite party by paying the compensation amount due to the complainant.
26. The complainant has claimed a total of Rs.3 lakhs by way of compensation. PW1, the power of attorney holder and the son of the complainant has deposed about the damage caused to the building owned by the complainant and also the damage to the household articles. PW1 in his cross examination has deposed that documents produced from the side of the complainant would show that a total loss of Rs.2,67,314/- has been suffered by the complainant. Ext.A5 is photocopy of the list of household articles damaged in the said gas explosion. The total cost of the household articles is shown as Rs.20,988/-. It is to be noted that the salvage value of these household items is not given in A5 document. A6 copy of the estimate for repair work of the residential building would show that a sum of Rs.1,93,266/- is required for repairing the damaged residential building. But, the person who prepared the aforesaid estimate has not been examined in this case. The other documents attached to the said list would also give an indication that for repairing the furniture and household items, the complainant has incurred expenses. But, the estimates have not been proved by examining the person who issued the same. So, the claim for compensation of Rs.3 lakhs has not been established by the complainant.
27. Ext.A4 Fire Report would show that a sum of Rs.2 lakhs has been assessed by way of damages to the residential building and sum of Rs.1 lakh as damages to the household articles. But, no details are given about the aforesaid assessment of loss made by the Fire Officer. It is further stated that the aforesaid data cannot be taken as accurate. Ext.A3 is the first information statement was given by PW1. In the said first information statement the loss has been stated as Rs.1 lakh. Considering all these aspects, this Commission is of the view that the complainant suffered total loss of Rs.1 lakh on account of the gas explosion which occurred on 21.1.04 at the premises of the complainant. Out of the aforesaid Rs.1 lakh, the opposite parties 1 and 2 are jointly and severely liable to pay Rs.50,000/- to the complainant and that the third opposite party being the insurer is liable to indemnify the first opposite party by paying the said amount of Rs.50,000/- to the complainant. Thus, the opposite parties 1 to 3 are jointly and severely liable to pay the compensation of Rs.50,000/- due to the complainant. These points are answered accordingly.
In the result, the appeal is allowed partly. The impugned order dated 9th February 2005 passed by the CDRF, Ernakulam in OP.282/04 is set aside. The complaint in the said OP. 282/04 is allowed partly and thereby the opposite parties 1 to 3 are made jointly and severely liable to pay compensation of Rs.50,000/-to the complainant. The aforesaid amount is to be paid to the complainant within one month from the date of receipt of copy of this judgment, failing which the said amount of Rs.50,000/- will carry interest at the rate of 9% per annum from the date of the complaint in OP. 282/04. The amount if any paid to the complainant can be adjusted towards the compensation amount of Rs.50,000/- due to the complainant. The respondents/opposite parties are also liable to pay cost of Rs.2000/- to the complainant.