SHRI. M.V. VISWANATHAN: JUDICIAL MEMBER
Complaint filed under Section 17 of the Consumer Protection Act, 1986 claiming compensation of Rs.15,49,512/- alleging negligence and deficiency in service on the part of the respondents 1 to 3 (opposite parties 1 to 3).
2. The case of the complainants is as follows:-
The first complainant is the husband and complainants 2 and 3 are the daughters of Mrs. Rosey Thomas. Domestic gas connection was given to the house of first complainant in the name of his wife Mrs. Rosey Thomas. The aforesaid gas connection was given by respondents 1 to 3 through the third respondent with Consumer No.7926. The Complainants and Mrs. Rosey Thomas were residing at Kadalikad in Muvattupuzha Taluk. The complainants and Mrs.Rosey Thomas were handling the gas connection with great care and all possible caution. The first respondent is the company engaged in manufacture and distribution of liquid petroleum gas. The second respondent is the person responsible for the affairs of the first respondent in Ernakulam District. The third respondent is the authorized distributor of the first respondent company from whom complainants availed the domestic gas connection and other accessories including stove, regulator, tubes etc. for the gas connection. There was gas explosion on 7.5.2001 and in the said accident Mrs. Rosey Thomas sustained 76 % severe burn injury. The first complainant also sustained burn injuries in the said accident. Mrs Rosey Thomas died on 8.5.2001 at about 3.20 PM while undergoing the treatment at Medical Trust Hospital. The aforesaid accident occurred due to the laches and negligence of respondents 1 to 3. They failed to render proper service and thereby there was deficiency in service on their part. As a result of the cooking gas explosion and fire, extensive damage was caused to the complainants house bearing No. MP 8/257 of Manjalloor Panchayath. The entire building and house hold fittings in the house were also damaged. Major portion of the building collapsed and the remaining portion is also damaged irreparably and will fall at any time. The damages were assessed through a retired Executive Engineer. He inspected the site after giving due notice to the respondents, but they failed to attend the inspection. The damage to the building has been assessed at Rs.882872/- The surveyor has also prepared a list of furniture and other house hold goods including gold ornaments worth Rs.10,000/-. The surveyor assessed the cost of the damaged articles at Rs.1,91640/-. Altogether, loss of Rs.1074512/- was caused to the complainants on account of the damage to the building, electrical works and house hold articles. Immediately after the explosion, officials of the respondents visited the premises. Due to the un timely death of Mrs Rosey Thomas, the complainants lost her companion and that the complainants are entitled to get Rs.2,50,000/- as compensation for the loss of companionship. The complainants have also suffered pain and sufferings and loss of love and affection. The complainants are entitled to get an amount of Rs.1,50,000/- under those heads. The first complainant spent Rs.75,000/- for medical treatment of the deceased and other auxiliary expenses. The first complainant made repeated demands to the respondents to disburse the compensation which is legally due to the complainants. He was also constrained to issue lawyer notice dated 28.6.01 demanding compensation. But, the respondents failed to disburse the compensation. They were dragging payment by raising untenable contentions. The 4th respondent is the Insurance company who has issued the policy in favour of the third respondent covering the risk. Thus, the complainants have claimed compensation of Rs.15,49,512/- from the respondents with costs.
3. Notice was served on respondents 1 to 4 and respondents 2 and 4 entered appearance through counsel of their choice. There was no representation for respondents 1 and 3.
4. The second respondent filed written version contending as follows:-
Complaint is not maintainable either in law or on facts. There is no consumer dispute between the complainant and the second opposite party. The provisions of Consumer Protection Act are not attracted in this case. The wife of the first complainant and mother of complainants 2 and 3 was using gas connection supplied by the third opposite party who is the distributor of opposite parties 1 and 2. The 4th opposite party is the Insurance Company of the third opposite party. The first opposite party is engaged in manufacturing and distribution of LPG, and the second opposite party is the Chief Area Manager of the first opposite party in Kerala division. There was an accident involving LPG at the house of the complainants on 7.5.01 at 10.45 pm in the accident Smt.Rosey Thomas suffered burn injuries and who later died on 8.5.01 at 3.20 PM at Medical Trust Hospital, Ernakulam. The allegation that the sole cause of the accident was the laches and negligence of the opposite parties 1 to 3 is totally false and hence denied. The further allegation that the opposite parties failed to render proper service is also denied. There was no negligence or laches on the part of the opposite parties 1 to 3. There was also no deficiency in service on their part. The gas cylinder and pressure regulator supplied by the opposite parties were in perfect condition and were supplied after subjecting them to thorough quality checking by using sophisticated machineries. The equipments are made out of quality materials approved by BIS and explosives department. The further allegation that the deceased was handing the gas connection with great care and all possible caution is false and hence denied. The investigation conducted by the second opposite party revealed that the hot plate in the kitchen was defective and its small burner did not burn on application of flame and LPG was leaking from the jet of the burner, that one end of the rubber tube connected to the hot plate was having a crack. It was clear that the cause of the accident might be LPG leakage through the defective hot plate or cracked rubber tube. The complainants had also admitted that the explosion caused when the deceased person put the electric switch on. The customer should have taken adequate caution to ensure that equipment in their possession was kept in good condition and safety procedures are followed to avert the accident. The pressure regulator was not kept in âoff position. The failure to close the PR knob after using the gas is negligence on the part of the consumer. As per Clause No.10 and 12 of the terms and conditions printed on the reverse side of the subscription voucher which is in the nature of contract between the Indian Oil Corporation and customer, the IOC is not liable for any loss or damage at the customers premises. The complainants have been using 2 LPG connection simultaneously in the same kitchen which is against the safety condition laid down by IOC and violation of the LPG (regulation of supply and distribution) order, 2000 Clause 3 (1) a. The allegation that the complainant sustained a loss of Rs.1074512/- towards the destruction of the house hold articles is not correct. The loss assessed by the surveyor appointed by the complainants is not correct. The second opposite party did not get any notice of visit of the surveyor. It is not specifically mentioned as to what heads complainants suffered such a huge loss. The opposite parties are not liable to compensate the complainants. The claims under the heads loss of companion ship, pain and sufferings, loss of love and affection and medical treatment are not sustainable. The second opposite party does not have any control over the hot plate and rubber tube. The manufacturers of the hot plate and rubber tube are not impleaded in this complaint and they are to be impleaded in this complaint. The complainants are not entitled to recover compensation of Rs.1549512/-. The gas cylinder and pressure regulator issued by Indian Oil Corporation do not suffer any defects and so the opposite parties are not liable to pay any compensation to the complainants. If at all the complainants are entitled to get any compensation, the same is to be realized from the 4th opposite party/Insurance Company. Thus, the second opposite party prayed for dismissal of the complaint with costs.
5. The 4th opposite party/Oriental Insurance Company Limited filed written version contending as follows:-
The 4th opposite party has issued multi perils policy for LP gas dealers to the third respondent covering the period from 12.5.2000 to 11.5.2001. The allegation that the
accident occurred due to the laches and negligence of respondents 1 to 3 is not correct. The accident occurred due to the negligence of the claimants and the deceased. There was leakage of gas from the gas cylinder and the deceased switch on the electric fan in the house to expel the smell of gas. In the said accident the gas cylinder did not explode. LPG was fully exhausted from the cylinder as the stove and the gas cylinder were not properly closed. The electric spark on the switch ignited the LPG. The 4th respondent has appointed RR Surveyors and adjustors to get the loss assessed. It has been observed that the cause of damage is purely due to the leaking of LPG from the cylinder. They assessed the loss to the deceased building at Rs.389292/- and the loss to the house hold equipment at Rs.1521/-. The damage to the furniture and other items has been assessed at Rs.9500/-. The assessment of loss by retired Executive Engineer is not correct and the said assessment is made without any basis. The retired Executive Engineer was appointed with malafide intention on the part of the complainants. The 4th respondent has no liability to pay any amount since the accident occurred due to the negligence of the complainant and the deceased. The policy issued is a legal liability policy. Since the accident occurred due to the negligence of the complainants and deceased the 4th respondent is not liable to pay any amount. The liability of the policy is limited to Rs.10 lakhs. There is no deficiency in service on the 4th respondent. This court has no jurisdiction to entertain the matter involved in the complaint. The parties are to be relegated to civil court for adjudication. The present complaint is filed as experimental one. Hence the 4th respondent prayed for dismissal of the complaint.
6. The points that arise for consideration are:-
1. Whether the case of the complainants that the cause explosion on 7.5.01 occurred due to the negligence and laches on the part of the respondents 1 to 3 can be upheld?
2. Whether the contention of the respondents 2 and 4 that the accident occurred due to the negligence of the complainants and deceased Mrs Rosey Thomas is sustainable?
3. Whether there was any deficiency in service on the part of the respondents 1 to 4?
4. What order as to reliefs and costs?
7. The evidence in this case consists of the oral testimony of the first complainant as PW1 and Exts A1 to A14 on the side of the complainants. From the side of the opposite parties, DW1 the licensed surveyor who submitted B1 survey report has been examined. The Deputy Manager, LPG, IOC sales has been examined as DW2. Ext. B2 copy of the accident report submitted by DW2 was also marked on the side of the opposite parties. The retired Superintending Engineer, PWD who was appointed as an expert to assess the loss to the damaged building has been examined as CW1 and the report submitted by him has been marked as C1. The first complainant and the second respondent have filed proof affidavits. The counsel for the complainants and the respondents 2 and 4 have also filed argument notes in support of their oral submissions.
8. POINTS 1 TO 3:-
There is no dispute that the first complainants wife and the mother of the complainants 2 and 3 namely Mrs. Rosey Thomas was having LP gas connection provided by respondents 1 to 3. Admittedly, the first respondent/Indian Oil Corporation is engaged in manufacturing and distribution of LP Gas and that the second respondent is the Area Manager of the first respondent/IOC and that the domestic LP gas connection was given to Mrs Rossy Thomas through the third respondent authorized distributor of the IOC LP Gas. Thus, Mrs Rosey Thomas was a consumer of the respondents 1 to 3 with Consumer NO.7926. Ext.A5 copy of the Consumer Card issued to Rosey Thomas would establish this fact. The fact that there occurred an accident in which cooking gas explosion happened in the house of the complainants on 7.5.2001 at about 10.30 PM is not in dispute. It is also admitted that in the aforesaid cooking gas explosion Mrs Rosey Thomas sustained severe burn injuries and subsequently she succumbed to the said injuries on 8.5.01 at about 3.20 P.M while she was undergoing treatment at Medical trust Hospital, Ernakulam. According to the complainants the aforesaid cooking gas explosion happened due to the laches and negligence of respondents 1 to 3. It is further alleged that the respondents 1 to 3 failed to render proper service and thereby occurred deficiency in service on their part. There can be no doubt that deceased Rosey Thomas availed domestic gas connection provided by respondents 1 to 3 and that the complainants 1 to 3 were also beneficiaries of the aforesaid cooking gas connection provided by respondents 1 to 3. Thus, there was consumer and service provider relation ship between the complainants and deceased Rosey Thomas on one part and the respondents 1 to 3 on the other part.
9. The complainants have alleged laches, negligence and deficiency in service on the part of the respondents in providing LPG service. It is not specified in the complaint as to what was the nature of the alleged deficiency in service on the part of the respondents 1 to 3. It is also not pleaded that what was the nature of the negligence and laches on the part of the respondents 1 to 3 in providing the service. It is pleaded vaguely that the cooking gas explosion occurred due to the laches and negligence on the part of the respondents 1 to 3. On the other hand, the respondents 1 to 3 through the second respondent contended that the gas explosion occurred or happened due to the negligence on the part of the consumer namely deceased Rosey Thomas. It is also denied the allegation regarding negligence and laches on the part of the respondents 1 to 3. It is contended in the written version filed by the second respondent in clear terms that there was no defect in the equipments supplied by the opposite parties. It is further specified that the gas cylinder and pressure regulator supplied by the respondents 1 and 2 through the third respondent were of perfect condition and those items were supplied after subjecting them to thorough quality checking by using sophisticated machineries and the equipments are made out of quality materials approved by BIS and explosives department. The aforesaid contention of the second respondent that the gas cylinder and the pressure regulator were of perfect condition have not been denied or disputed by the complainants. The first complainant in his proof affidavit or in his oral testimony has not denied the definite contention of the second respondent regarding the perfect condition of the gas cylinder and the pressure regulator.
10. The second respondent in his written version has categorically contended that the accident occurred due to the use of defective hot plate and damaged (cracked) rubber tube. It is also contended that the LP gas leakage occurred through the burner of the defective hot plate (stove). It is also contended that there was also the possibility of LP gas leakage through the cracked rubber tube which was connected to the hot plate (stove). It is further contended that on getting smell of the leaked LP gas, the consumer Mrs Rosey Thomas got panic and rushed to the kitchen and switched on the electric switch which resulted in catching fire to the leaked LP gas. Another pertinent contention taken by the second respondent is that the deceased failed to keep the knob of the pressure regulator in off position and thereby there was negligence on the part of the consumer. The second respondent was definite in his stand that the leakage of LP gas occurred only because of the failure to switch off the pressure regulator and also due to the defective condition of one of the burners of the hot plate (LP gas stove)
11. The second respondent has filed affidavit in this case. In the said affidavit, it is averred that he visited the spot of accident on getting information regarding the accident and he made an enquiry regarding the said accident. It is further stated that from enquiry it was learned that the deceased at about 22.45 hrs. on 7.5.01 felt the smell of LPG and went to the kitchen and turned on the switch. Due to the spark, the leaked LPG in the kitchen got ignited and there was a big explosion and as a result, the deceased was set ablaze and she succumbed to the injuries on 8.5.01. It is also averred in Para 4 of his affidavit that the LPG was found leaking from the Jet of the burner and that one end of the rubber tube connected to the hot plate had a crack. It is further stated that either the LPG leak from the defective hot plate or from the crack on the rubber tube. He has also stated about the LPG accident report submitted by him on the basis of site inspection.
12. The documentary evidence adduced from the side of the complainants would give an idea about the manner in which the cause explosion occurred on the night of 7.5.01. Ext.A1 is copy of the wound certificate cum discharge certificate issued from Medical Trust Hospital, Ernakulam. It is dated 8.5.01. In A1 wound certificate, history and alleged cause of injury is stated as follows:-
âWhile switching on fan near kitchen to expel leaked gas from stove, explosion took place and she got burned on 7.5.01 around 10.30 P.M at her house. Ext.A2 is certified copy of the post mortem certificate dated 9.5.01 issued by Civil Surgeon and District Police Surgeon, General Hospital, Ernakulam. This wound show that the body of deceased M/s Rosey Thomas was subjected for post mortem examination. A3 is copy of death certificate of Rosey Thomas. This would show that she died on 8.5.01 at Medical trust Hospital, Kochin 16. A4 is certified copy of the FIR registered by ASI of Police, Vazhakulam Police Station on 8.5.01. The aforesaid FIR was lodged based on the F.I. statement given by Gego son of George. The aforesaid Gego is the first complainants brothers son. In the aforesaid F.I. statement it has been stated that the aforesaid gas explosion occurred at about 10.45 P.M. on 7.5.01 and that the said accident occurred due to gas leakage. It is further stated that deceased Rosey Thomas was watching television along with her family members and while so she got smell of cooking gas and she went to the kitchen and switched on the electric switch and then there occurred the gas explosion. The first informant Gogo was residing in the immediate neighborhood of the complainants house. He took Rosey Thomas with serious burn injuries to Excel Hospital and there from the injured was taken to Medical Trust Hospital, Ernakulam.
13. A1 wound certificate and A4 FIR would reveal the fact that the gas explosion occurred when deceased Rosey Thomas switched on the electric switch in the kitchen. It is also come out in evidence that the deceased and along with her family members were watching TV on the night of 7.5.01 and while so, she felt there smell of cooking gas and thereby the deceased went to the kitchen and put on the electric switch of the fan with the intention to expel the leaked gas. There can be no doubt that the gas explosion occurred as and when the electric switch was turned to âon position. This situation would show that there was inadvertent mistake on the part of the deceased by switch on the electric switch. Otherwise, there would not have occurred such an untoward incident of gas explosion.
14. The A4 FIR is based on the first information statement given by Gego, the first complainants brothers son. The aforesaid FI statement would also make it clear that the first information was given by the said Gego based on the information he collected from his paternal uncle, the first complainant.
15. The aforesaid statement in the first information statement would show that the first informant Gego got the information about the incident from the eye witness, the first complainant. It would further show that the gas leakage occurred because of the failure to off the pressure regulator knob. This statement would strengthen the case of the second opposite party that there was negligence on the part of the complainants and deceased Rosey Thomas because of their failure to off or close the pressure regulator knob. It is the common knowledge that the gas consumers are expected to close the pressure knob after the use of the cooking gas, especially during night hours. It is to be noted that the facts and circumstances of the case would make it clear that if the knob of the pressure regulator was closed there was no possibility to have the LP gas leakage. It is to be noted at this juncture that the complainants have no case that the pressure regulator was defective or it was not working. It is further to be noted that the complainants were using the LP gas from the said cylinder with the pressure regulator and they had no complaint regarding the pressure regulator. Had there been any such complaint with respect to the working of the pressure regulator, definitely the complainants would have made a complaint to the third opposite party/dealer or the second opposite party, the authorized officer of the IOC regarding the defective nature of the pressure regulator. But, no such complaint was made to the opposite parties regarding the working of the pressure regulator. On the other hand, the aforesaid gas cylinder with the pressure regulator had been in use continuously. The available evidence would show that even on the very night of the untoward incident the cooking operations were conducted by deceased Rosey Thomas. Thus, it can be concluded that there was omission on the part of the complainants and the deceased to close the knob of the pressure regulator. It is only because of the aforesaid omission or failure which resulted in causing of leakage of LP gas during the night hours of 7.5.01.
16. The first complainant was examined as PW1. He admitted the fact that in the complaint it was not mentioned as to how the gas explosion occurred, but only stated that the accident occurred due to gas leakage. PW1 has not denied the suggestion that the first opposite party/Indian Oil Corporation has only supplied gas cylinder and pressure regulator. PW1 categorically admitted the fact that in the aforesaid accident, there was no bursting of the gas cylinder. PW1 has also admitted the fact that the LP gas stove and the rubber tube were not manufactured by IOC. The complainants have not produced any document to show that the LP gas stove and the rubber tube used for the said stove were manufactured or supplied by IOC. PW1 has also admitted that the gas stove and the rubber tune were not purchased from the second opposite party/ IOC. The case of PW1 is that he purchased the same from third opposite party/the dealer of IOC. But at the same time PW1 has admitted that the third opposite party/dealer was not authorized or the third opposite party cannot sell the articles, which are not manufactured by IOC. PW1 has also deposed that the third opposite party never sold the gas stove and rubber tube to the complainant by stating that those products are manufactured by the IOC. The aforesaid admission made by PW1 would show that if there occurred any defects in the gas stove or the rubber tube, the opposite parties 1 and 2 cannot be made liable or responsible.
17. PW1 has deposed in his cross examination that the regulator was closed and even there after the gas came out from the gas cylinder. But the aforesaid statement of PW1 is contradictory to the F.I statement incorporated in A4 FIR. So, the case of the PW1 that the pressure regulator was closed can be treated as an afterthought. It is to be noted that no such case for the complainants in their written complaint filed in this original petition. The second opposite party in the written version has categorically contended that there was failure on the part of the complainants and deceased Rosey Thomas to close the pressure regulator and the gas explosion occurred only because of the negligence on the part of the complainants and the deceased to close the knob of the pressure regulator. The first complainant in his proof affidavit has not denied the aforesaid contention taken by the second opposite party. There is no whisper in the proof affidavit regarding the closing of the pressure regulator by the complainants or deceased Rosey Thomas on the night of 7.5.01. In this circumstance, the aforesaid case of PW1 that the knob of the pressure regulator was closed cannot be believed or accepted. The available evidence and the circumstance would make it clear that there occurred failure to close the knob of the pressure regulator and because of the aforesaid omission or failure, the gas explosion occurred. Had the complainants and deceased Rosey Thomas alert enough to close the pressure regulator, the untoward incident would not have happened. This circumstance would make it clear that there was negligence on the part of the complainants and deceased Rosey Thomas.
18. PW1 has admitted the fact that his wife Rosey Thomas switched on the electric switch and immediately there occurred gas explosion. PW1 could not deny the suggestion that there was no possibility to have gas leakage, if the pressure regulator knob was in âoffâ position. PW1 in his cross examination admitted that the gas cylinder was in use and they got the filled gas cylinder 3 weeks prior to the incident. He also admitted that prior to the said incident, there was no occasion to have gas leakage. It is also admitted by PW1 that only the gas, which was leaked, got fire and there was no bursting of the LP gas cylinder. Thus, the evidence of PW1 would support the case of opposite parties 2 and 4 that there was negligence on the part of the complainants and deceased Rosey Thomas.
19. PW1 has categorically admitted the fact that DW2 Lal V Jose the Asst. Manager of IOC visited his house in connection with the enquiry regarding the gas explosion, which occurred on the night of 7.5.01. The aforesaid admission made by PW1 would make the suggestion made by the learned counsel for the complainants to DW2, that DW2 never visited the site of incident as unacceptable. It is to be noted that DW2 has deposed about the inspection conducted by him and submission of B2 report in Format A and Format B. The aforesaid report is dated 14.5.01. It is to be noted that B2 report was submitted by DW2 based on the information he collected from the persons living in the neighborhood and who came to the site at the time of his inspection.
20. The evidence of DW2 would also show that he inspected the gas stove, gas cylinder etc. which were placed in the premises of the accident spot. Thus, he had no first hand information about the accident. The evidence of DW2 would also make it clear that he did not make any thorough inspection of the building or the house hold articles which were damaged in the said gas explosion or fire accident. There is contradictory statement regarding the condition of the LPG installation found on the accident spot. According to DW2, he inspected the accident spot on 9.5.01 and at that time the entire LPG installation were found in tact. DW2 has categorically deposed that the gas cylinders, regulators, gas stoves were kept separately outside the damaged house. DW2 has also deposed that he could witness the working of those LPG installations. As per B2 report, the rubber tube was available for inspection and it is reported that the rubber tubing was found defective but not burned. It is further reported that the probable cause of the accident is due to LPG leaked from the hot plate or from the cracked rubber tube. It is also reported that one burner of the hot plate was defective, that the small burner of the hotplate did not burn on application of flame and that the LPG was found leaking from the defective burner, that one end of the rubber tube had a crack. On the other hand, DW1, the licensed surveyor who was deputed by the 4th opposite party/Insurance Company has categorically deposed that at the time of his inspection the regulator and the rubber tune of the LPG installation were found burned. It is to be noted that DW1 inspected the accident spot 4 days after the accident. So, the aforesaid testimony of DW1 would create a genuine doubt about the correctness of B2 report submitted by DW2, that he could examine the working of the LPG installation and that he could inspect the rubber tube used for the LP gas installation and he could notice a crack on the said rubber tube. This circumstance would create a genuine doubt about the correctness of the entries made in B2 report submitted by DW2.
21. The B2 report submitted by the second opposite party would show that there was crack on the rubber tube and the leakage of LP gas was due to the defective hot plate or due to the defective rubber tube used for the LP gas installation. PW1 has categorically deposed that he purchased the LP gas stove and the rubber tube from the third opposite party/the dealer of LP gas. It is true that the first opposite party/IOC had no sort of connection regarding the sale of LP gas stove or the rubber tube. There is also nothing on record to show that the LP gas stove or the rubber tube were manufactured by the first opposite party/Indian Oil corporation or that the first opposite party/Indian Oil Corporation appointed the third opposite party to effect sale of LP gas stove or rubber tube. The complainants have also no such case. PW1 has to some extent admitted the fact that the first opposite party/Indian Oil Corporation had no role or connection in the sale of the LP gas stove or the rubber tube. The third opposite party has not denied the case of the PW1 that the gas stove and the rubber tube were supplied by the third opposite party. The evidence of DW2, the authorized officer of the first opposite party/IOC would show that the rubber tube was defective. The third opposite party being the dealer and distributor of LP gas manufactured by the first opposite party was bound to make periodical inspection of the installation. The case of the second opposite party is that the rubber tube was pretty old and it was worn out. The case of the complainant that the rubber tube was replaced just 4 month prior to the incident cannot be believed. The possibility of the gas leakage through the rubber tube cannot be ruled out. The first opposite party being the manufacturer and supplier of LP gas has also got a duty to have the inspection of the installation at the site of its customers. They were bound to give necessary instructions to the customers. But, in this case there is nothing on record to show that the opposite party had effected the necessary inspection at the appropriate time. Had there been any such inspection made by the opposite parties including the third opposite party/distributor and dealer of the LP gas they could have very well instructed the customer to replace the defective hot plate (gas stove) and the defective and worn out rubber tube provided for the LPG installation.
22. The second opposite party has got a case that the complainants were having 2 LP gas connections in the very same house and both the installations were placed in one of the same kitchen. If that be so, one genuine question will emerge; Why the opposite parties supplied gas for 2 LP gas installations placed in one and the same kitchen? According to the second opposite party the placing of 2 LPG installations in one and the same kitchen is violation of the rules and regulations regarding issuance of LP gas connections. Had there been proper inspection of the LP gas installations by the opposite parties, they could have very well instructed the complainants and the deceased to follow the instructions strictly. Thus, there was negligence on the part of the opposite parties in making proper inspection of the LPG installations. The opposite parties failed to provide necessary and adequate service instructions to the complainants and deceased Rosey Thomas, the customer who availed the LP gas connection from the opposite parties. Thus, it can be concluded that the opposite parties more particularly the third opposite party dealer/ distributor of LP gas were negligent in the matter. The aforesaid negligence contributed in causing the untoward incident which occurred on the night of 7.5.01 resulting in causing extensive damage to the building owned by the first complainant and also in causing damage to the house fittings and house hold articles. It would also resulted in causing burned injuries to the first complainants wife Rosey Thomas and in causing her death due to the burn injuries. The first complainant had also sustained minor burn injuries in the said accident. The mere fact that the complainants and deceased Rosey Thomas had also contributed negligence in causing the accident cannot be taken as a ground to absolve the opposite parties from the liability to pay compensation to the complainants. This Commission is of the strong view that both the complainants and deceased Rosey Thomas and the opposite parties were negligent in causing the untoward incident, which happened on the night of 7.5.01. Considering the nature and gravity of negligence on the part of both parties, this Commission is pleased to apportion the liability on the complainants and the opposite parties in equal proportion.
23. The 4th opposite party/Insurance Company is bound to indemnify the third opposite party for the risk. The 4th opposite party has categorically admitted their liability to indemnify the third opposite party to the extent of Rs.10 lakhs. Hence we hold that the 4th opposite party/Insurance Company is liable to pay the compensation due to the complainants being the insurer of the third opposite party/insured. These points are answered accordingly.
24. POINT NO.4:-
There can be no doubt about the fact that in the gas explosion which happened on the night of 7.5.01 extensive damage was caused to the building owned by the first complainant. Immediately, after the said incident the complainants got the damage to the said building bearing Door No.257 in Ward No.8 of Manjalloor Panchayath assessed by retired Executive Engineer P. John Bosco. He submitted the inspection report dated 9.6.01. The aforesaid report has been produced in this case, but the same has not been marked. As per the said inspection report the inspection was conducted on 5.6.01. The aforesaid retired Ex. Engineer Kerala Municipal Service assessed the damage to the building at Rs.8,82,872/- including charges for electrical fittings, wirings, water supply works, sanitary works etc. He also assessed the loss to the household articles at Rs.1,91,640/-. The value of the household articles was assessed without deducting the depreciation value. He fixed the value of those items provided for brand new articles. Likewise, the damage to the building was also assessed without deducting depreciation value. The aforesaid damage was assessed for constructing new building. It is based on the report of the retired Executive Engineer Mr.P.John Bosco, the complainants have claimed the compensation. But the aforesaid report has not been proved.
25. The 4th opposite party/Insurance Company deputed licensed surveyor to assess the loss to the building and household equipments. The licensed surveyor namely, R.R surveyor and adjusters submitted the survey report dated 10.11.01 that survey report has been marked as Ext.B1 and the surveyor who submitted B1 report has been examined as DW1. The aforesaid survey was conducted on 1.5.01, 20.6.01, 30.8.01 and subsequent dates. The aforesaid surveyor has also taken the photographs of the affected building along with the negatives of the photographs. The surveyor has also reported that extensive damage has been caused to the said building due to the vibration resulted from the gas explosion. It is reported that due to the gas explosion resulting vibrations caused damage to the front portion of the said building. It is further reported that cracks developed on the walls of the said building due to the said vibrations. The aforesaid licensed surveyor was of the opinion that the said building needs reconstruction to avoid casualty in future. It is also reported that it is better to have the building reconstructed than repairing the same. According to the surveyor it will be beneficial to both the complainants and the opposite parties to get the damaged building reconstructed. Thus, the assessment was made on total loss basis. Thereby, the total cost of construction of a new residential building was estimated at Rs.8,82,872/-. The surveyor deducted 50% of the said amount by way of depreciation. He assessed the age of the building at 25 years and depreciation has been calculated at the rate of 2 % per year. Thereby, a total of Rs.4,41,436/- has been deducted by way of depreciation. From the net amount of Rs.4,41,436/- a sum of Rs.44,143.60 was deducted by way of salvage value. Thus, the total loss has been fixed at Rs.3,97,292.40. The surveyor assessed the loss under repair basis at Rs.4,30,546.93. The loss to the household articles has been taken as Rs.1521/- (repair charges) and a further sum of Rs.7650/- for repairing old refrigerator. The loss to the household equipments has been fixed at Rs.1521 + 7650 = 9171/-. The surveyor has also reported that some furniture items and other household articles were also damaged and the loss of those items has been fixed at Rs.9500/-. The total loss to the household articles has been assessed at 9500 + 9171 Rs. 18671/-. Thus, the total loss to the building and the household articles is fixed by the licensed surveyor at Rs.4,15,963.40 ( 397292.40 + 18671 = 415963.40).
26. The licensed surveyor who submitted B1 survey report has been examined as DW1. In his cross examination, he admitted the fact that 7 ceiling fans were damaged and out of the 7 fans, 4 fans were completely damaged and the remaining 3 were damaged partially. He also admitted that he is not an expert to say about the cost of a fan. Even though DW1 has deposed that he got those items verified and inspected by electrician there is no whisper in the report about the inspection by an electrician. The evidence of DW1 would make it clear that he has not properly assessed the damage caused to the household articles. The report itself would show that the household items were damaged. But the licensed surveyor failed to assess the loss to those items in a just and proper manner. But he assessed the loss to the household articles in a halfhearted manner without giving due importance to the damage actually caused to those items. So, the loss assessed by the licensed surveyor regarding the damage to the household articles cannot be accepted as such.
27. The loss to the building has been assessed at Rs.3,97,292.40. The aforesaid amount was obtained after deducting a sum of Rs.4,41,442/- by way of depreciation. Admittedly, the surveyor has not made any attempt to get the age of the building assessed properly. He has not perused the assessment register maintained by local authority namely, Manjalloor Panchayath. The aforesaid assessment register would disclose the actual age of the building. But, no such attempt was made by the licensed surveyor. But he assessed the age of the building as 25 years. The first complainant as PW1 has deposed that the said building was 15-20 year old. But the complainants have not produced any document to establish the age of their building. On the other hand, the expert commissioner appointed by this State Commission to assess the loss to the building and household articles was examined as CW1. According to CW1 said building was about 25 year old. It is to be noted that CW1 is a retired Superintending Engineer, PWD. He also deposed that for âC type building depreciation can be made at the rate of 2 % per annum. CW1 who submitted C1 report has also failed to get the age of the building assessed properly. He also did not peruse the assessment register maintained by the local authority. So, for the purpose of calculating depreciation, the age of the building can be taken as 20 years. If that be so, 40% of the total cost of construction of the building can be taken as the depreciation value. So, the amount that can be deducted by way of depreciation is Rs.3,53,148.80. The net amount would come to Rs.8,82,872 â Rs.3,53,148.80 = Rs.5,29,723.20. From the aforesaid amount of Rs.44,143.60 is to be deducted towards salvage value. So, the lost to the building can be taken as Rs.4,85,579.60.
28. The C1 report is silent about the damage caused to the household articles. C1 report would show that the complainant failed to produce the household articles for inspection. In C1 report, it is also stated that the surveyor of the Insurance Company had inspected the damaged articles and assessed the damages. We have already considered the loss assessed by the licensed surveyor including the loss to the household articles. It is held by this Commission that the aforesaid loss assessed by the surveyor cannot be accepted as such. The surveyor assessed the said loss at Rs.18671/-. But the report regarding the damage to the household articles would make it clear that the aforesaid loss assessed by the surveyor with respect to the damage to the household articles is very low. The complainants have claimed a sum of Rs.1,91,640/- as the loss to the household articles. The aforesaid claim is based on the report submitted by the retired Executive Engineer, Kerala Municipal Service Mr.P.John Bosco. But the aforesaid engineer has taken the value of the brand new household articles. He failed to note the age of the household articles. He also omitted to deduct depreciation. So, by deducting 50% by way of depreciation the loss to the household articles can be fixed at Rs.95,820/-. Thus, the total loss suffered by the complainants on account of the damage to the building and the household articles would come to (Rs.95,820 + 4,85,579.60) Rs.5,81,399.60.
29. The complainants have claimed a sum of Rs.2,50,000/- as compensation for loss of companionship. PW, the first complainant has deposed that his wife was aged 48 years at the time of her death on 8.5.01. There can be no doubt that the first complainant N.J.Thomas lost his wife and it was untimely. The complainants 2 and 3 being the unmarried daughters of the deceased also lost the company of their beloved mother.
30. The available evidence on record would show that Mrs.Rosey Thomas was doing the household affairs and she was attending the needs of the complainants. Thereby, the complainants lost the valued companionship and assistance of Mrs. Rosey Thomas. So, a sum of Rs.2,00,000/- (2 lakhs) can be treated as compensation under the head loss of companionship.
31. The complainants have also claimed Rs.1,50,000 /- under the head love and affection. No doubt that the 1st complainant lost love and affection of his wife and that the complainants 2 and 3 lost their beloved mother. So a sum of Rs.1.50,000/- under the head loss of love and affection can be treated as reasonable.
32. The complainants have also claimed Rs.75,000/- under the head medical expenses and other ancillary expenses. No doubt that Mrs.Rosey Thomas sustained serious burn injuries and immediately she was taken as to the local hospital at Muvattupuzha and after first aid she was taken to Medical Trust Hospital, Ernakulam. While she was undergoing treatment at Medical Trust Hospital she succumbed to the burn injuries on 8.5.01 at 3.20 pm. The first complainant met hospital expenses for the treatment of his wife Mrs Rosey Thomas at the local hospital and Medical Trust Hospital, Ernakulam. He had also spent other expenses in connection with transport and also towards funeral expenses. It is also to be noted that the first complainant has also suffered burn injuries in the said accident. Considering all these aspects a sum of Rs.50,000/- can be awarded under the head medical treatment expenses, funeral expenses and other ancillary expenses. Thus a total of Rs.4 lakhs is to be fixed as compensation on account of the death of Mrs Rosey Thomas.
33. The forgoing discussions and the findings would show that the total compensation would come to Rs.9,81,399.60. It is rounded to Rs.9,81,400/- We are already held that 50 % of the compensation amount is to be deducted for the contributory negligence on the part of the complainants and deceased Rosey Thomas. So, the actual compensation due to the complainants is fixed at Rs.4,90,699.80. It is rounded to 4,90,700/-. The opposite parties 1 to 3 are jointly and severely liable to pay the aforesaid compensation of Rs.4,90,700/- to the complainants 1 to 3 and the same will be apportioned among the complainants in equal proportion. The complainants are also entitled to get Rs.4000/- by way of cost of the proceedings. The 4th opposite party being the insurer is liable to indemnify the 3rd opposite party. So, the 4th opposite party is directed to pay the compensation of Rs.4,90,700/- to the complainants with cost of Rs.4000/-. The aforesaid compensation is to be paid to the complainants within one month from the date of receipt of copy of this order, failing which the said amount will carry interest at the rate of 9% per annum from the date of this order till the date of realization. These points are answered accordingly.
In the result, the complaint is allowed. The opposite parties 1 to 3 are jointly and severely liable to pay a total of Rs.4,90,700/- as compensation to the complainants with cost of Rs.4000/-. The 4th opposite party/Insurance Company being the insurer is liable to indemnify the 3rd opposite party and thereby the 4th opposite party is directed to pay the aforesaid compensation and cost to the complainants within one month from the date of receipt of copy of this judgment. Failing which the compensation amount will carry interest at the rate of 9% per annum from the date of this order till realization.