R.S. Sharma, President:
1. This appeal is directed against the order dated 18.10.2013, passed by the District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"), in Complaint Case No.199/2012. By the impugned order, the learned District Forum, has partly allowed the complaint of the respondent Nos.1 and 2 / complainants and directed the OPs to pay a sum of Rs.3,50,000/- jointly and severally to the respondent Nos.1 and 2/ complainants as compensation, along with interest @ 6% p.a. from the date of filing of the complaint i.e. 12.06.2012 till date of payment. The District Forum, has further directed the OPs to pay a sum of Rs.50,000/- as compensation for mental agony and Rs.2,000/- as Advocate Fees and cost of litigation to the complainants.
2. Brief facts of the case, as stated in the complaint filed by the respondent Nos.1 and 2/complainants before the District Forum are : that the respondent Nos.1 and 2 / complainants had taken a LPG gas connection for their domestic use from respondent No.3/O.P.No.1/M/s Laxmi Gas Agency. The respondent Nos.1 and 2/complainants used to obtain LPG cylinders regularly from respondent No.3/O.P.No.1. However on 03.03.2011 when the complainants opened Nozzle Pin Cap for use of new refilled gas cylinder, on account of defective Nozzle Pin, the gas was leakaging speedily and was contacted to the agarbatti and the fire was spread in the room due to which electricity wire caught fire and the light was off. The incident was reported to Fire Brigade as well as Police Station, Purani Basti, Raipur. Respondent Nos.1 and 2/ complainants averred that the appellant/O.P.No.3 is insurer of respondent No.3/O.P.No.1/M/s Laxmi Gas AGency and the Insurance Policy (Multi Perils) (L.P.G. Dealers) No.450300/46/10/22/0000116 was in subsistence for the period from 29.01.2011 to 28.01.2012. Due to distribution of defective cylinder by the respondent No.3/O.P.No.1/M/s Laxmi Gas Agency to the respondent Nos.1 and 2/complainants, the incident of fire took place in the residence of the respondent Nos.1 and 2/complainants and due to incident furniture, fixtures, electrical appliances and domestic utensils were damaged and respondent Nos.1 and 2/complainant suffered loss of near about Rs.4,25,000/-, for which respondent No.3/O.P.No.1/M/s Laxmi Gas Agency, as well as its manufacturer respondent No.4/O.P.No.2/Bharat Petroleum Company Limited and its insurer the appellant/O.P.No.3/Insurance Company, are jointly and severally liable to pay the compensation to the respondent Nos.1 and 2 / complainants. The respondent Nos.1 and 2/ complainants had sent notice through advocate to the OPs but till today the OPs have not paid any compensation to them. Therefore, respondent Nos.1 and 2/ complainants filed consumer complaint before the District Forum seeking total compensation of Rs.4,25,000/- along with interest 10% p.a.
3. The respondent No.3/O.P.No.1/M/s Laxmi Gas Agency filed its written statement before the District Forum and denied the allegations leveled by the respondent Nos.1 and 2/complainants in the complaint against it. The respondent No.3/O.P.No.1 averred that the O.P.No.1 was provided a lot of cylinders, which were refilled carefully and properly in the automatic plant/refilling plant. The employee of respondent No.3/O.P.No.1 provided the cylinder in sealed condition after following the instructions. In the defective cylinder refilling of gas was not possible. At the time of use of the cylinder, the customer had not followed the necessary instructions and had not taken sufficient precautions, hence the incident took place. Before occurrence of the alleged incident, the respondent Nos.1 and 2/complainants had not made any complaint regarding defective cylinder, from which it is proved that the cylinder, was not defective. The respondent No.3/O.P.No.1 averred that the appellant/O.P.No.3/Insurance Company, is liable for payment of compensation to the respondent Nos.1 and 2/complainants and prayed for dismissal of the complaint filed by the respondent Nos.1 and 2/complainants.
4. Respondent No.4/O.P.No.2/Bharat Petroleum Company Limited filed its written statement before the District Forum and denied the allegations leveled by the respondent Nos.1 and 2/complainants in the complaint. The respondent No.4/O.P.No.2 averred that the complaint is liable to be dismissed on the ground of mis-joinder of party. The respondent No.3/O.P.No.1 and respondent No.4/O.P.No.2 had not distributed the defective cylinder and the incident was not occurred due to supply of defective cylinder. The respondent Nos.1 and 2/complainants are not entitled for any compensation. The respondent Nos.1 and 2/complainants do not come in the category of œconsumer? and therefore, the dispute, does not come within purview of œconsumer dispute?. The respondent Nos.1 and 2/complainants and other family members have filed five consumer complaints before the District Forum in respect of incident, which is contrary to law and is not maintainable and is liable to be dismissed. The respondent No.4/O.P.No.2 further averred that the incident was not occurred due to deficiency in service, but it was occurred due to mis-handling or misuse of the cylinder, therefore, the respondent No.4/O.P.No.2 is not liable. Complaint is liable to be dismissed.
5. The appellant/O.P.No.3 New India Assurance Company Limited, filed its written version before the District Forum and averred that according to Section 10 of the policy, the liability of the appellant/O.P.No.3, is only to the tune of Rs.15,000/- per customer. The appellant/O.P.No.3, is not liable for payment of the compensation, which was demanded by the respondent Nos.1 and 2/ complainants. The appellant/O.P.No.3 further averred that the respondent Nos.1 and 2 /complainants had not submitted claim form, therefore, the complaint is liable to be dismissed.
6. After having considered the material placed before it by the parties, learned District Forum, awarded compensation to the respondent Nos.1 and 2/complainants, as mentioned in para 1 of this order.
7. Shri P.K. Paul, learned counsel appearing for the appellant/O.P.No.3/Insurance Company argued that according to the respondent Nos.1 and 2/complainants, the cylinder was defective and due to defective cylinder, the incident took place and the defective cylinder is not within the purview of insurance policy and according to the respondent Nos.1 and 2/complainants, the cylinder was installed by respondent No.3/O.P.No1 and respondent No.4/O.P.No.2. If any incident was occurred due to mistake and negligence of the customer, then the appellant/O.P.No.3/Insurance Company, is not liable for payment of compensation. According to copy of the insurance policy under the Public Liability Clause of the Insurance Policy, the instant matter was not covered, hence the appellant/Insurance Company, is not liable to make payment of the compensation to the respondent Nos.1 and 2/complainants. He further argued that it is not permissible for Court to substitute terms of contract itself, under garb of construing terms incorporated in agreement of insurance and insurance policy is contract of faith and both the parties are bound by the terms and conditions of the insurance policy, therefore, in the instant case, the appellant/Insurance Company, is not liable to indemnify the respondent Nos.1 and 2/complainants. The impugned order passed by the District Forum, is liable to be set aside. He further argued that the contract was between the respondent No.3/O.P.No.1/Laxmi Gas Agency and the appellant/Insurance Company. There was no contract between the complainants and the Insurance Company and as the insurance policy was taken by the O.P.No.1/Laxmi Gas Agency, therefore, the appellant/Insurance Company, is not liable for payment of compensation to the respondent Nos.1 and 2/complainants. He placed reliance on The United India Insurance Co. Ltd. vs. Gowramma and Ors. 2014 (1) CPR 191 (NC); United India Insurance Co. Ltd. vs. M/s. Harchand Rai Chandan Lal, 2005 (1) CPR 64 (SC), Deokar Exports Pvt. Ltd. vs. New India Assurance Company Ltd., I (2009) CPJ 6 (SC); Export Credit Guarantee Corpn. of India Ltd. vs. M/s Garg Sons International, 2013 (4) CPR 373 (SC); and New India Assurance Co. Ltd. vs. Shikha Bhatia and Anr. I (2013) CPJ 42 (NC).
8. Shri Sanjay Kumar Shukla, learned counsel appearing for the respondent Nos.1 and 2/complainants supported the impugned order. He placed reliance on K.G. Sathyanarayan and Ors. vs. Bharat Petroleum Corporation Ltd. and Ors. III (2006) CPJ 8 (NC).
9. Shri C.S. Pandey, learned counsel appearing for the respondent No.3/O.P.No.1 argued that the incident took place due to negligence of the deceased or injured persons. He further argued that respondent No.3/O.P.No.1 obtained the insurance policy from the appellant/Insurance Company, therefore, the appellant/Insurance Company, is liable to indemnify the respondent Nos.1 and 2/complainants. The incident was took place due to misuse of the cylinder and negligence of the respondent Nos.1 and 2/complainants and respondent No.3/O.P.No.1/Laxmi Gas Agency, is only a distributor and respondent No.4/O.P.No.2 is manufacturer and cylinder was refilled by the respondent No.4/O.P.No.2, therefore, if any damage caused to the customers, then the appellant/O.P.No.3/Insurance Company and respondent No.4/O.P.No.2/Bharat Petroleum Company Ltd., are liable for indemnifying the respondent Nos.1 and 2/complainants.
10. Shri S.S. Shukla, learned counsel appearing for respondent No.4/O.P.No.2 argued that the impugned order passed by the District Forum is erroneous and only the appellant/O.P.No.3/Insurance Company, is liable to indemnify the respondent Nos.1 and 2/complainants.
11. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
12. The respondent No.1 and 2/complainants filed documents before the District Forum i.e. subscription vouchers of Bharat Petroleum Corporation Ltd., cash memo, Refill Delivery Voucher Cum Cash Memo, Home Delivery/Cash memo issued by Laxmi Gas Agency, application dated 05.09.2011 written by Bhagwati Prasad Garhewal to the Senior Superintendent of Police, District Raipur (C.G.) regarding providing certified copy of the post mortem report, registered notice dated 13.05.2011 sent by Ramesh Kumar Shrivastava to M/s Laxmi Gas Agency, Raipur and M/s Bharat Gas Company, Raipur,, Multi Perils (LPG Dealers) Package Insurance Policy with terms and conditions of the policy, advertisement bill No.322 dated 24.03.2011, list of items, newspaper cutting, bills issued by Paras Sales Corporation, Raipur, bills issued by Aditya Mobile Shop, Raipur, bill dated 15.03.2010 issued by Dewangan Painter, bills issued by Gohil Electricals, Raipur.
13. The appellant/O.P.No.3/Insurance Company also filed documents before the District Forum i.e. Multi Perils (LPG Dealers) Package Insurance Policy with terms and conditions.
14. It is not disputed that the respondent Nos.1 and 2/complainants had obtained gas connection from respondent No.3/O.P.No.1/M/s Laxmi Gas Agency and respondent No.4/O.P.No.2 Bharat Petroleum Company Limited is manufacturer. It is also not disputed the M/s Laxmi Gas Agency has obtained Traditional Business /Miscellaneous/Multi Perils (LPG Dealers) Package Insurance Policy Number 450300/46/10/22/00000116 and the policy was effective for the period from 29.01.2011 to 28.01.2012.
15. According to the respondent Nos.1 and 2/complainants on 03.03.2011 due to finishing of gas, new cylinder was installed by them and when Nozzle Pin Cap was opened, the cylinder caught fire and the gas was spread all over the room and fire also contacted electric wire and electricity supply was off. Due to incident furniture, fixtures, electrical appliances and domestic utensils were damaged and respondent Nos.1 and 2/complainant suffered loss of near about Rs.4,25,000/-, for which respondent No.3/O.P.No.1/M/s Laxmi Gas Agency, as well as its manufacturer respondent No.4/O.P.No.2/Bharat Petroleum Company Limited and its insurer the appellant/O.P.No.3/Insurance Company, are jointly and severally liable to pay the compensation to the respondent Nos.1 and 2 / complainants.
16. In the Multi Perils Insurance For Liquefied Petroleum Gas Dealers Policy, it is mentioned that :-
| Section | Premium Rate (Rs. % 0) | Risk Covered | Max. Sum Insured. |
| VII. | Public Liability [Rs.3% or AOY Limit + Rs.0.10% on Turnover] | "Indemnity against legal liability in respect of claims by the Public for bodily injury and property damage during installation of Gas cylinders or whilst they are carried for installation at the customer's residence and at Insured's premises." | Rs.10,00,000/- per eventRs. 40,00,000/- per policy period. |
| X. | P.A. Benefit to customers[Rs.300/- per 1,000 customers or Rs.30/- per 1,000 cylinder] | Death or permanent disablement benefit to any customer or member of his family or any other person in the premises arising out of accident L.P.G. Cylinders. | Rs.15,000/- per customer as per P.A. Scale. |
œ7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. As already stated, this petition has been admitted to examine and settle the issue, whether the payment to the complainant is to be made by the Insurance Company or the gas agency or the Indian Oil Corporation. It is made out from the material before us and the arguments advanced by the parties that under the terms and conditions of the Insurance Policy in question, it is not obligatory on the part of the petitioner Insurance Company to make the payment to the complainants, as the said cylinder was not in the process of being installed. It is evident therefore that O.P.No.1 and 2 are jointly and severally liable to pay the amount of compensation as awarded by the State Commission to the complainants.?
8. The revision petition is, therefore, allowed and the impugned order is modified to say that OP No.1 and 2, i.e. M/s Shiva Gas Service and the Indian Oil Corporation, shall be liable jointly and severally, to pay compensation of 2 lakh to the complainants. However, since the payment has already been made to the complainants, the Insurance Company shall be at liberty to recover the said amount from OP No.1 and 2. There shall be no order as to costs.?
18. In the case of K.G. Sathyanarayan vs. Bharat Petroleum Corporation Ltd. and Ors., (Supra), Hon'ble National Commission observed thus :
"29. M/s. Rohan Gas Distributor had takes miscellaneous accidental policies and according to the policy cover note filed Section VII provided for public liability to the following extent :
"The Company will indemnify the insured in respect of all sums which the insured is legally liable to pay as compensation and litigation expenses incurred by the insured with the company's written consent in respect of accidental death or bodily injury to any person other than a person under the insured's service and insured's family and/or accidental damage to property caused during installation of gas cylinders by the insured or by his employee or by his authorized agent at the premises of insured's customers or whilst such cylinders from the insured's premises or in the course of being carried for installation in the premises of the insured's customers or whilst such empty cylinders are in the course of being carried from the premises of insured's customers to the insured's premises and also whilst lying at the insured's premises specified in the schedule not exceeding in all for the compensation and litigation expenses the limit of Rs.10,00,000 (Rupees One lakh) for any one accident or a series of accidents arising from any one event and Rs.25,00,000 (as stated in the schedule) for all accidents during any one period of insurance.
(Emphasis Supplied
39. Notwithstanding Clause 17, if under authority of the Government Oil Company like Bharat Petroleum Corporation Ltd. any distributor is authorized, the distributor would be acting only under authority of the company and not independently. The observation in latter part of para 14 of the judgment in Indian Oil Corporation's case referred to hereinabove, compel us to hold that Hindustan Petroleum Corporation could not avoid its liability as principal notwithstanding the agreement between the two. Supposing for the sake of argument Clause 17 prevails absolutely then it would not be in tune with Clause (a) of Sub-clause (1) of Clause 4 for it is the duty of HPL only to fill any cylinder with liquefied petroleum gas or transfer liquefied petroleum gas from one cylinder to another cylinder or from one container to another container unless authorized by the Chief Controller of Explosives. The distributor has no such right in view of the specific provision added to the sub-section which is confined to removal of the seal in presence of the consumer either for checking or installing of cylinder.
41. It would, thus, appear that though insofar as the liability between the Hindustan Petroleum and the Distributor is concerned, that may be governed by the agreement but it would not take away the right of the consumer by necessary implications. If the distributor is acting under authority of the Government's Oil Company then the Government Oil Company would not be able to absolve itself from the liability to pay compensation in such like matters on account of deficiency in service in not properly advising in terms of the agreement in case the trained staff does not perform their duty to check the gas connection and tube etc. and instruct about other safety measures. The B.P.C.L. would itself be vicariously liable to pay for compensation in deficiency in service."
19. Hon'ble Supreme Court in the case of M/s Export Credit Guarantee Corporation of India Ltd. (Supra) has observed thus :-
"9. The insured cannot claim anything more than what is covered by the insurance policy.
"The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely."
20. Hon'ble Supreme Court in the case of Deokar Exports Pvt. Ltd. (Supra) has observed thus :-
"11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal, in which event three would have been no contract. The second was to accept either expressly or impliedly, the counter proposal of the respondent (that is respondent's acceptance with modification) which would result in a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party.?
21. We have examined the material placed before the District Forum on record.
22. It appears that the gas of first cylinder was finished and the respondent Nos.1 and 2/complainants themselves were changing cylinder and during process of changing the incident took place. It also appears that installation of the cylinder was not done by the employee of the respondent No.3/O.P.No.1/M/s Laxmi Gas Agency and the respondent Nos.1 and 2/complainants themselves were changing the cylinder.
23. Looking to the insurance policy, it is not obligatory on the part of the appellant/Insurance Company to make the payment to the respondent Nos.1 and 2/complainants as said cylinder was not in the process of being installed. It is evident that the cylinder was obtained by the respondent Nos.1 and 2/complainants from respondent No.3/O.P.No.1/Laxmi Gas Agency and when the gas of first cylinder was finished and the respondent Nos.1 and 2/complainant themselves changed the cylinder and during process of change of cylinder, the incident took place. Therefore, the appellant/Insurance Company is not liable for payment of compensation to the complainant, but it is evident that respondent No.3/O.P.No.1/M/s Laxmi Gas Agency is distributor and the respondent Nos.1 and 2/complainants obtained cylinder from respondent No.3/O.P.No.1/M/s Laxmi Gas Agency and respondent No.4/O.P.No.2/Bharat Petroleum Company Limited is manufacturer therefore the respondent No.3/O.P.No.1/M/s Laxmi Gas Agency and respondent No.4/O.P.No.2/Bharat Petroleum Company Limited are liable for payment of compensation to the complainants as awarded by the District Forum to the complainants.
24. Therefore, we allow the appeal filed by the appellant/O.P.No.3/Insurance Company and exonerate the appellant/O.P.No.3/Insurance Company from the liability of making payment of the compensation to the respondent Nos.1 and 2/complainants, as directed by the District Forum. The impugned order passed by the District Forum, is modified to say that respondent No.3/O.P.No.1/M/s Laxmi Gas Agency and respondent No.4/O.P.No.2/Bharat Petroleum Company Limited, shall be liable jointly and severally, to pay the compensation, as awarded by the District Forum in favour of the respondent Nos.1 and 2/complainants. No order as to the cost of this appeal.