DAYANAND A.AVASARE vs BHARAT PETROLEUM CORPORATION LTD.

THIS complaint is unique in its nature and is arising out of an incident in which a house-wife lost her life in domestic gas fire. The unfortunate complainant is the husband of the deceased woman who lost her life on 8.4.1990 in the incident which is the subject matter of this complaint.

THE brief facts relating to the incident in question are that the complainant is an employee as a driver with the Indian Oil Corporation Ltd. He was living with his wife-Shobhana Avasare since deceased and son-Umesh in a flat at Vile-Parle. THE complainant was having a connection of 2 LPG for domestic use vide Consumer No. 2837 registered with M/s. Sheelvik Agencies, Juhu, Bombay manufactured by Bharat Petroleum Corporation Ltd. (Opposite Party No. 1). Thus, the complainant claims to be a consumer of LPG service of opposite parties 1 & 2. is alleged in the complaint that on 30.1.1990, Umesh, the son of complainant connected the gas pipe to the new cylinder manufactured by Opposite Party No. 1. THE wife of the complainant-Shobhana tried to start the burner of the gas stove but it could not be lighted and was getting extinguished every now and then. Ultimately, she requested her son-Umesh to requisition the services of the mechanic of Sheelvik Agencies (Opposite Party No. 2). In response to the call of Umesh, Mr. Hukumsing, the Mechanic in the employment of Opposite Party No. 2 arrived at the residence of the complainant. He tried to light the gas stove, but could not do so. After examining the gas cylinder and burner he opined that the LPG cylinder was excessively filled with gas. According to Mr. Hukumsing, the gas cylinder was containing excessive gas and therefore it is not getting lighted, Mr. Hukumsing removed the screw driver and pressed the pin of the LPG gas cylinder valve and ejected the excessive gas in the kitchen itself. When Shobhana questioned the ejectment of the excessive gas from the cylinder in the kitchen itself, he told her that it was necessary to do so in order to operate the gas stove. THE mechanic advised Shobhana to light the burner after few minutes. According to the complainant, when his wife lighted the stove after 10 to 15 minutes, suddenly fire broke out in which her clothes started burning. Mr. Umesh went to her rescue and he also received burn injuries. THE mechanic - Hukumsing also suffered burn injuries in the same incident. THEy were taken for burn treated in the K.E.M. Hospital. However, Shobhana expired on 30.1.90 due to burn injuries in the Jaslok Hospital. THE complainant had by a letter dated 9.3.90 complained to the Opposite Party No. 2 with a copy to Opposite Party No. 1 about the incident of fire due to the negligence on the party of Hukumsing in ejecting gas in kitchen and demanded interim relief for the medical treatment of his wife. THE said letter was received by Opposite Parties but no action has been taken. THE complainant did not receive any communication from Opposite Parties and, therefore, he lodged the present complaint claiming Rs. 9,50,000/- toward compensation on various counts. According to the complainant the incident occurred due to the faulty procedure and negligent service rendered by the mechanic of M/s. Sheelvik Agencies by ejecting the LPG gas in the kitchen itself without any care of safety precautions. THE complainant further alleged that the said mechanic was not duly trained in examining and correcting the complaints of the consumers of gas cylinders. In short, the complainant alleged that the goods so supplied by the Opposite Parties 1 and 2 to the complainant was "defective" and that there was "deficiency" in the service of the Opposite Parties. A notice u/Sec. 13 (2) of the Consumer Protection Act was sent to the Opposite Party along with the copy of the complaint. In response to that notice, the Opposite Parties submitted their written versions. The Opposite Party No. 1, Bharat Petroleum Corporation Ltd. in its affidavit dated 25.10.90 has objected to the jurisdiction of this Commission to enquire into the present complaint. It is further submitted that the allegation of the complainant as regards the gas cylinder is not substantiated except by the statement of the mechanic recorded by the police. The claim of the complainant claiming compensation is also opposed. It is, however, admitted by the Opposite Party No. 1 that the complainant has been a consumer of LPG for a period of nine years and that Mr. Hukumsing was a mechanic in the employment of the dealer-Opposite Party No. 2 at the material time and had gone to the flat of the complainant to attend to the complaint of complainant.

The Opposite Party No. 2 filed its written version on 26.12.90 denying the allegations of the complainant. It is signed by Mrs. Shiela Shivadasani, Proprieter of Sheelvik Agencies. In the written statement, it is admitted that Mr. Hukumsing had gone to the house of the complainant on instructions from Mr. Umesh Avasare on 30.1.90. It is also stated that the said mechanic released some air from the said gas cylinder to get rid of excess gas and then put back the regulator in position. It is further stated in the statement that since the excess gas did not get time to clear out, the gas got ignited and fire broke out. It is further stated that the gas cylinder have no gauges to indicate the gas pressure. However, the Opposite Party No. 2 denied that the services rendered by their mechanic was "deficient". It is to be noticed that on 6.2.91, Opposite Party No. 2 submitted additional written statement in which a different stand is taken. There is additional written statement to the effect that said mechanic Mr. Hukumsing was not acting on behalf of Opposite Party No. 2 as he had gone to the residence of the complainant in his private capacity and not in the discharge of his duties as an employee of Opposite Party No. 2. It is further alleged that the earlier written statement dated 26.12.90 was got signed by Opposite Party No. 3 and the contents thereof are not factually correct. It is, therefore, contended that the earlier written statement should be discarded as it was not according to the instructions of Opposite Party No. 2. It is further alleged that the mechanic did not attend to the complaint in respect of the LPG in question on instructions from Opposite Party No. 2. According to Opposite Party No. 2 unless the complaint is entered into their register kept for the purpose, the mechanic never used to go to attend the complaints from consumers.

THE Opposite Party No. 3, filed its written version dated 24.11.90 denying the claim of the complainant. According to the Opposite Party No. 3, there was no privity of contract or cause of action against them and, therefore, they are not liable to pay the compensation to the complainant. THE complainant filed written rejoinder pointing out the incorrect statement made by the Opposite Parties. Parties filed some documents. None of the parties led any oral evidence and relied on their respective versions, affidavits and documents. The complainant was heard through his Agent Mr. Shirish Deshpande. Opposite Party No. 1 was heard through Mr. D.D. Udeshi, Advocate. The Opposite Party No. 2 was heard through Mr. Iqbal Usuf, Advocate and Opposite Party No. 3 was heard through Mr. Chaddah, Advocate.

ON consideration of the allegations contained in the complaint and objections contained in written version of the Opposite Parties, the following points arise for our consideration:- (i) Whether the complainant was a consumer of LPG (Goods) manufactured by Bharat Petroleum Corporation and had hired the necessary service for consideration of Opposite Party No. 2 (ii) Whether the goods supplied was defective and service rendered was having any deficiency? (iii) Whether the incident in question dated 30.1.1990 occurred was as a result of defect in goods and negligence in the service and whether complainant suffered loss as alleged in the complaint? (iv) What order?

Undisputedly Bharat Petroleum Corporation Ltd. is the manufacturer of the LPG (cooking gas) which was supplied to the complainant through the Opposite Party No. 2. M/s. Sheelvik Agencies. It is also admitted by the Opposite Party No. 1 in its written version in Para 3 (a) and Opposite Party No. 2 in its written version in Para 1 that the complainant was a LPG consumer of Bharat Petroleum Corporation Ltd. having Consumer No. 2837 registered with BPCL Distributer-M/s. Sheelvik Agencies, Juhu, Bombay. The cylinder was supplied to the complainant for consideration. We, therefore, hold that the complainant was the consumer of the goods and necessary service in respect of LPG cylinder in question. The complainant, therfore, was a consumer of the material time and this complaint is maintainable before this Commission. The main point is whether the goods so supplied to complainant was having defect and the service was having any deficiency in its performance? The complainant has alleged in the complaint that the new gas cylinder which was attached to the gas stove on 30.1.90. was not being lighted properly and was getting extinguished every now and then. Therefore, the services of the mechanic from M/s. Sheelvik Agencies were requisitioned. Mr. Hukumsing, the Mechanic in the employment of M/s. Sheelvik Agencies after examining the cylinder and trying to light the gas stove opined that the gas cylinder in question was excessively filled in with gas. As against these allegations, there is simple denial by the Oppoite Parties. As regards the allegations of defective goods, the mateial and relevant evidence could be the evidence whether cylinder was overfilled with gas. Mr. Hukumsing, the Machanic was admittedly present and he sustained burn injuries in the fire. But the Opposite Parties never made any attempt either to examine Mr. Hukumsing as a witness or obtained his affidavit to disprove the allegations of the complainant. Mr. Hukumsing was in the employment of Opposite Party No. 2 and Opposite Party No. 2 must be nowing his residential address. Therefore, he could be made available to state whether the gas cylinder was containing excessive gas. But Opposite Parties never attempted to secure his presence to acquaint the Commission with real facts.

IN order to ascertain the weight of the gas we had directed to get the seized gas cylinder in question to be weighed by Bharat Petroleum Corporation''s Refinery at Mahul. The gas cylinder in question was seized by the Police as an article after the incident of fire. The Police Station Officer, Juhu was, therefore, directed to produce the said gas cylinder for purposes of ascertaining its weight The cylinder was accordingly weighed and the report dated 19.2.1991 has been placed on record. The report reads as under: -

ACCORDING to Shri Deshpande, the aforesaid report proves that the gas in cylinder was more than the permissible limit of 14.2 kg. It is further submitted that the mechanic Mr. Hukumsing let off the excessive gas from the cylinder for two minutes which must be more than one kg. ACCORDING to Shri Deshpande, it is thus proved that the cylinder was containing excessive gas. In our view, this circumstance cannot establish by precision that the contents of the gas in cylinder was more than 14.2 kg. We are therefore, left with the only circumstance to prove this fact and that is the statement made by Mr. Hukumsing after examining the gas cylinder. The statement of Mr. Hukumsing is relevant and admissible in evidence as alleged by complainant. Umesh was present at the time of incident when statement was made by Mr. Hukumsing. In point of time the statement made by Mr. Hukumsing was earliest. But it has not been controverted by any of the Opposite Parties. The assertion made by the complainant about what Mr. Hukumsing said, thus cannot be doubted. We have, therefore, no hesitation- to accept the fact that gas in cylinder in question was excessively filled. The Opposite Party No. 1 - Bharat Petroleum Corporation who is responsible for filling the LPG cylinder does not specifically deny the positive assertions made by the complainant The Opposite Party No. 1 was in a better position to place before this Commission the documentary proof to show the contents of cylinder to disprove the allegation of the complainant in this behalf by producing the relevant documents. But, unfortunately nothing has been done by the Bharat Petroleum Corporation to establish that the gas cylinder supplied to complainant was not a defective goods. It is useful to refer some rules relating to the use of gas. Rule 44 of the Gas Cylinder Rules, 1981 framed by the Central Government provide that full record of the cylinders examined and tested at any testing station shall be maintained giving the following particulars: - "44 Records of test - Full, record of cylinders examined and tested at any testing station shall be maintained giving the following particulars, namely:- (a) Name of the manufacturer and the owner of the cylinder. (b) Rotation number, (c) The specification to which the cylinder conforms, (d) Date of original hydrostatic/hydrostatic stretch test, (e) Test reports and certificates furnished by the manufacturer, if available, (f) Test pressure, (g) Maximum working pressure, (h) Water capacity, (i) Tare weight, (j) Variation if any, in the tare weight marked on the cylinder and actual tare weight, (k) Condition of cylinder shell, (l) Name of gas, (m) Type of valve fitted, and (n) Remarks, if any. The above particulars shall form the history card for each cylinder and all changes from time to time shall be indicated therein.

Perusal of the aforesaid Rule clearly shows that the manufacturer has to maintain the complete record of the testing of a cylinder. It is obligatory on the part of the manufacturer under the aforesaid. Rules to maintain the record of tests. The Bharat Petroleum Corporation did not place any such record before this Commission to show that the cylinder in question was not containing excessive gas. In addition to the above Rule, there is another Rule 9 which prescribes lebelling of cylinders. Rule 9 is reproduced below: - "Rule 9; Lebelling of cylinders - (1) Every cylinder shall be lebelled with the name of the gas and the name and address of the person by whom the cylinder was filled with gas. (2) A warning in the following terms shall be attached to every cylinder containing permanent or liquefiable gas, namely: - "Warning" Gas Cylinder Rules, 1981 (i) Do not change the colour of this cylinder. (ii) This cylinder should not be filled with any gas other than the one it now contains. (iii) No flammable material should be stored in the immediate vicinity of this cylinder or in the same room in which it is kept. (iv) No oil or similar lubricant should be used on the valves or other fittings of this cylinder. (v) Please look for the next date of test, which is marked on a metal ring inserted between the valve and the neck of the cylinder, and if this date is over, do not accept the cylinder."

From the aforesaid Rule, it is clear that the cylinder shall be lebelled with the name of the gas and the name and address of the person by whom the cylinder was filled with gas. The Bharat Petroleum Corporation, therefore, from their records could tender the affidavit of a person who filled the cylinder in question with gas. The Bharat Petroleum Corporation having the necessary record in their possession have not taken care to place it before this Commission. Under these circumstances, we have no other alternative but to accept the statement of Mr. Hukumsing made at the relevant time, as regards the fact that cylinder was excessively filled. The fact that the gas was ejected by Mr. Hukumsing in the kitchen room is stated in the Para 2 of the first written statement of Opposite Party No. 2 dated 26.12.90. It is clearly stated that the mechanic released some air from the said gas cylinder to get rid of the excess gas clearly supports the allegations of the complainant. The Opposite Party No. 2 by filing additional written statement dated 6.2.1991 tried to wriggle out of the earlier admission by stating that the earlier statement dated 26.12.90 was prepared by Shri Chaddah, Advocate without any advice cannot be accepted. The additional written statement is an after-thought statement to suppress the truth which has come on record earlier. We were shocked to know that the Opposite Party No. 2 in order to suppress the truth, tried to repudiate its earlier statement filed before us by throwing blame on the learned Counsel Shri Chaddah. This attempt made by Opposite Party No. 2 to throw the blame on the learned Advocate is not only reprehensible but an act to mislead the Commission by making false contradictory and untrue statement There is another piece of evidence on record to nail the lies of the Opposite Parties. There is investigation report of Bharat Petroleum Corporation Ltd. dated 12.3.90 addressed to the Chief Controller of Explosives. In that report, the description of the accident in question is stated. The relevant extract is reproduced below : - "An accident took place at the residence of Mr. D.A. Avasare on 30.1.90 at 12.40. p.m. The party is having a double bottle connection. When the cylinder in use got exhausted, the lady connected the second cylinder in the morning and found that the stove was not burning properly. Instead of registering a complaint with the distributer, the mechanic was called from through the neighbouring shop-keeper. In the process of checking the installation, the mechanic pressed the valve pin of the cylinder, thus releasing some LPG."

The aforesaid report, is required to be submitted in case of accident under Rules 74 and 75 in Page 9 of the Gas Cylinder Rules, 1981. From the aforesaid discussion, we are satisfied that the allegation of the complainant that the gas cylinder in question was excessively filled in and, therefore, it was defective goods. It is thus proved that defective goods was manufactured and supplied to the consumer. The cylinder in question was defective inasmuch as it contained excessive gas above the permissible limit. It was required to be ejected by the mechanic for its proper use and in that process, the accident took place. Thus we hold that the complainant as a consumer was supplied a defective goods by the Opposite Parties Nos. 1 and 2 without following the proper checks for the safety measures which resulted in loss of life of Shobhana and injury to Umesh.

WE now turn to the aspect of deficiency in service. It is a common knowledge that in case of any problem in the working of the use of gas the Dealer is required to attend to the complaints of consumer. It is also expected that a dealer has to maintain a trained mechanic to deal with the said complaint whenever, there is a call from any consumer of the LPG connection. Under Gas Cylinder Rules, 1981, Rule 70 provides that a competent person has to be incharge of operaton. Thus taking into consideration the general precautions of safety, a trained mechanic from Gas Dealer has to attend to the complaints of the consumers. Admittedly, in this case, the mechanic Mr. Hukumsing was engaged by Opposite Party No. 2 to attend the complaints of consumers. The alleged that the mechanic Mr. Hukumsing was not trained and adopted faulty procedure while ejecting the excessive gas in the kitchen room of the complainant which resulted in the fire. According to the complainant, the mechanic acted in the negligent manner without following the proper safety precautions. It is contended by Mr. Deshpande that when the mechanic Mr. Hukamsing found that the gas cylinder was containing excessive gas, and it was necessary to release the excessive gas, the gas cylinder should have been taken either in the. Workshop of the dealer or in the open space with a view to avoid likelihood of fire. It is, therefore, submitted that the action of the mechanic in ejecting the excessive gas in the kitchen itself shows the negligence in rendering the service. It also indicates clear violation of standard safety precautions. Rule 15 of Gas Cylinder Rules, 1981 provides precautions. In case there is leak of gas and the rectification cannot be done then, the cylinder shall be removed to an open space where it is least danger to light it properly. According to Shri Deshpande, the mechanic of the Opposite Party No. 2 should have taken the cylinder in question either in the workshop of the dealer or in the open space to release the excessive gas. WE have already found from the records that Mr. Hukumsing did release the excessive gas. The weighment report of the gas cylinder dated 19.2.91. indicates one kg. less gas than the standard weight of 14.2 kg. Thus, it is abundantly clear that the mechanic released a large quantity of gas in the kitchen of the complainant in a negligent manner without observing safety precautions. WE are informed that the kitchen room of the complainant is 8''x 10'' with one window and one door. The gas is heavier than the air and, therefore, it could not exhaust from the small kitchen room completely and when Shobhana Avasare lighted the burner, she was engulfed in the fire and lost her life. There could be no occurrence of fire had the safety precaution to release the gas in open adhered to. Considering the entire circumstances, we have to hold that the mechanic Mr. Hukumsing acted negligently in rendering service to the complainant. No safety precautions were observed by the said mechanic. WE also hold that the complainant has proved his allegations that there was deficiency in the service of the Opposite Parties Nos. 1 and 2 inasmuch as, there was no observance of safety precautions while releasing the excessive gas from the cylinder. Moreover, Mr. Hukumsing does not appear to be trained mechanic. According to the Opposite Parties, Smt. Shobhana Avasare was negligent in lighting the gas stove without waiting for the gas to disperse outside the kitchen room and that caused the accident. In order to support this submission, Shri Chaddah, the learned Advocate who appeared on behalf of the Opposite Party No. 3 submitted that in the dying declaration recorded by the police, said Shobhana Avasare had stated that without waiting to spread away the gas, she lighted the gas stove and, therefore, the Opposite Parties are not responsible for the accident in question. According to the Opposite Parties, the negligence if any has to be attributed to Shobhana Avasare and not to the mechanic Mr. Hukumsing. This argument cannot be accepted for two reasons. First, we cannot take into account the alleged dying declaration of Shobhana Avasare has not been properly proved according to the requirement of law. A zerox copy from the police record of the alleged dying declaration is placed on record. The requirement of law is that the dying declaration has to be proved legally. In the instant case, a zerox copy of the alleged dying declaration cannot be accepted as proved document. No legal evidence is tendered on record to prove the alleged dying declaration made by Shobhana Avasare. Consequently, we cannot consider the contents of the alleged dying declaration. The Opposite Parties did not examine the witness who has recorded the alleged dying declaration. Thus the dying declaration cannot be taken into consideration to attribute negligence on the part of Shobhana Avasare.

THE relevant factor in deciding the Consumer Dispute, we have to consider whether the goods so supplied was defective and there was deficiency in the service rendered by the Opposite Parties. Since we have already held that the gas cylinder in qustion was defective and there was deficiency in the service of the Opposite Parties, and also that there was negligence on the part of the mechanic to render the service to the complainant, we have to hold that the complainant has proved his allegations. When the gas contained in the cylinder was obviously dangerous to life, the mechanic should have taken the safety precautions. In our view, it is the responsibility of the manufacturer to provide the domestic gas to the consumer with due care and precautions and the service be rendered keeping in view the safety precautions provided under the Rules. THE manufacturer has to keep in mind the likelihood of any accident while using the LPG cylinder and anticipating such contingency to take necessary precautions while rendering the services to the consumer. In any case in our view, the service rendered to the complainant was deficient, which has resulted into accident in the present case. Under these circumstances, the argument of the Opposite Parties that Shobhana was negligent in the use of the gas connection looses its relevance. The relevant factor in this case is not the negligence of Shobhana Avasare but the negligence of the manufacturer in supplying defective goods to a consumer which has been proved to contain excessive gas which could not be lighted. The fact that the filled-in gas cylinder in question was defective has been stated by the mechanic Mr. Hukumsing, emplyee of Opposite Party No. 1. The Opposite Parties submitted that Mr. Hukumsing was an expert mechanic and was working for a considerable time and, therefore, had necessary experience of gas cylinders. In our view, therefore, the opinion expressed by Mr. Hukumsing that the gas cylinder could not be lighted as it was excessively filled in, clinches the issue that the goods supplied in the instant case was defective and the service was deficient. In view of the aforesaid finding we hold that the incident dated 3.1.90 occurred as a result of negligence of service of Opposite Parties Nos. 1 and 2 and also as a result of defective goods. As consequence of the negligence on the part of the Opposite Parties, the complainant is entitled to the compensation for the loss and injury suffered by him. The complainant has claimed the total compensation of Rs. 9,50,000/- on various counts. The complainant has claimed Rs. 1,82,702.70/- as compensation on account of the medical treatment given by him to wife Shobhana. In support of this claim, the complainant has placed on record a bill from Jaslok Hospital and Research Centere, Bombay dated 12.4.90. The Bill is amounting to Rs. 1,82,702.70 ps. in respect of the treatment given to Shobhana Avasare for bum injuries.

THE complainant has produced another Bill from some Hospital dated 10.3.90 amounting to Rs. 28,7600.10 ps. for burn treatment given to Umesh Avasare. THEre is another certificate from the said Hospital dated 23.4.90 certifying the amount of Rs. 18,760/- paid towards nursing charges. THE aforesaid three bills are not disputed by the Opposite Parties. THE Opposite Parties opposed the aforesaid claim of Rs. 2,30,222.80 ps. on two grounds: (i) the first ground to opposite the aforesaid bill is that the complainant being the employee of the Indian Oil Corporation got the reimbursement. It is true that the Indian Oil Corporation has reimbursed the bill of Jaslok Hospital in respect of the treatment given to deceased Shobhana Avasare. But the complainant has placed on record two letters from the Indian Oil Corporation showing that part of the claim of the bills was rejected and the recovery was ordered to be paid from the salary to be paid to the complainant. First letter dated 24.3.90 show that the bill for Rs. 10,300/- was not admitted by the Indian Oil Corporation for the reasons stated in the said letter and the acoount was subsequently recovered from the complainant''s salary. Another letter dated 25.4.90 shows that Rs. 16,750/- were ordered to be recovered from complainant''s salary. THE complainant has demonstrated by filing the documents on record that the amount mentioned in those two letters was not reimbursed by the Indian Oil Corporation. Thus, amount of Rs. 27.050/- was being recovered from the salary of the complainant. THE objection of the Opposite Parties in respect of the amount of Rs. 27,050/-, therefore, cannot be accepted since the same amount is saddled on complainant. In our view, therefore, the complainant is entitled to claim all the medical expenses made by him for treatment of his wife Shobhana Avasare and son Dayanand (Umesh). We have clearly found that the amount of Rs. 18,760/- was paid towards the nursing charges and the amount of Rs. 27,050/- was paid for treatment of Umesh by the complainant and, therefore, he is entitled to receive that amount towards medical expenses, from the Opposite Parties amounting to Rs. 45,810/-. In fact the complainant is entitied to receive entire medical expenses for the treatment of his wife Shobhana and son Umesh appearing at Sr. Nos. 1, 2 and 3 of his statement of compensation of the claim appended with the complainant. Since the Indian Oil Corporation has reimbursed the medical expenses of Rs. the complainant is not entitled to that amount. THE medical expenses which are reimbursed by the Indian Oil Corporation thus cannot be again claimed by the complainant

AS regards the Item No. 4 in the statement for Rs. 800/- there is no evidence about the purchase of the medicines and, therefore, the claim of the complainant is rejected. Similarly, Item Nos. 5 and 6 of statement of compensation cannot be accepted as they do not constitute the expenses for medical treatment As regards the Item No. 7, about the conveyance expenses for going to the hospital frequently during the period of hospitalisation, we find that it is natural for the complainant to undertake several trips in the hospital for attending on his wife and son in the hospital and therefore, we are inclined to grant the amount of Rs. 2,100/- as compensation towards conveyance expenses.

As regards the Item No. 8, claiming Rs. 6750/- on account of the leave of absence is concerned, the complainant is not entitled to that amount since it cannot be said to be pecuniary loss inasmuch as it was his bounden duty to attend on his wife/son but he could have done his duty as well as attended on his wife without being on leave.

THE complainant has claimed Rs. 55,500/- as compensation towards the permanent burn marks on the body of Umesh. We are of the view that the complainant is not entitled to claim for permanent burn marks on the body. No case is made out that as a result of burn marks the normal working of Umesh is affected. As regards the Item No. 10, the complainant has claimed Rs. 6,50,000/- towards the death of his wife Shobhana. Shri Shirish Deshpande, appearing for the complainant has very seriously contended that the complainant is entitled to the aforesaid compensation as the complainant had lost his consortium. According to Shri Deshpande, deceased Shobhana was attending household duties and also looking after the house affairs and due to her death, the compalinant will have to hire the services for doing cooking and doing household work and therefore, it is a permanent loss to him. It is also contended that loss of consortium is proved and complainant deserves compensation for loss of consortium. It is settled law that for the loss of consortium the husband is entitled for pecuniary compensation.We find that the compalinant''s house and home life has been shattered by the incident in question. The complainants is the head of the family and is responsible to maintain his house.The loss on account of consortium has been well-known and, therefore, the complainant in the instant case deserves the compensation on this count. That takes us to the calculation of amount of compensation. Complainant has claimed Rs. 6,50,000/-. According to Shri Deshpande, Shobhana at the time of her death was 46 years old and would have survived for 75 years and could be capable to look after home affairs of complainant. Now the complainant has to engage a maid servant and cook and hence the claim is justified. In our view, the compalinant may be required to spend about Rs. 800/- to Rs. 900/- per month after the death of Shobhana. Considering the life expectancy of 75 years the amount of Rs. 2,50,000/- would be the just compensation payable to complainant for loss of consortium.

THE last Item in the statement of compensation at Sr. No. 11 is of Rs. 367/- for meeting expenses for making the complaint. In the complaint, the complainant has claimed only Rs. 300/- as the cost of this petition which we accept, as reasonable. The Opposite Parties also raised some legal objections while opposing the claim of complainant. Mr Udeshi, the learned Advocate appearing for Bharat Petroleum Corporation contended that it is not relevant in this case as to whether Bharat Petroleum Corporation has faulted in supplying defective goods but this Commission has no jurisdiction to grant compensation on account of the incident in question According to Shri Udeshi, this Commission is not competent under the Consumer Protection Act to grant compensation to a third party if it suffers a loss as a result of fire in using the LPG cylinder. The next limb of his argument is that the complainant''s son-Umesh was major at the time of incident and, therefore, the complainant is not entitled to claim any compensation for injuries suffered by Mr. Umesh. He also argued that Mr. Umesh has not approached this Commission as a consumer. In view of our findings in the preceding paragraphs that the complainant was a consumer and defective goods was supplied to him, this commission has the necessary jurisdiction to decide his complaint relating to goods and service. It is immaterial whether Mr. Umesh was major at the time of incident, under the Scheme of the Consumer Protection Act, the definition of "consumer" appearing in Section 2(d)(ii) means any potential user of energy who hires any such services for a consideration which includes any beneficiary of such services. Admittedly the complainant has hired the services of the Opposite Parties land 2 for the supply of LPG gas for consideration. It is also undisputed that Mr. Umesh was residing in the same flat where the complainant was residing. They had a common kitchen. Therefore, it is obvious that Mr. Umesh was the beneficiary of the services of LPG. It therefore, follows that Mr. Umesh was the beneficiary of the services - LPG as a consumer alongwith complainant. It is established that Mr. Umesh also suffered loss due to the deficiency in the service of the Opposite Parties. It is not necessary for Mr. Umesh to file a separate complaint as his cause has been prosecuted alongwith the cause of his wife Shobhana. The definition of "service" in Section 2(o) under the Consumer Protoection Act, includes the service in respect of "Other Energy". Under the modern scientific concept of energy, we find that the energy is derived through variety of sources and LPG is one of the source of energy. In the present case, the Opposite Parties land 2 admittedly were engaged in the manufacture and distribution of LPG cylinder supplied to complainant, for consideration. The complainant admittedly being, the consumer of the service of energy viz, the LPG, is competent to approach this Commisssion for demanding the compensation for loss suffered due to the negligence of the Opposite Parties in rendering service. In our view, therefore, this Commission has jurisdiction to decide this consumer dispute. Lastly, Shri Udeshi submitted that the Dealer M/s Sheelvik Agencies did not act deligently while rendering the services to the complainant and, therefore, the Dealer and M/s United India Insurance Company are liable for the grant of compensation. While accepting the arguments of Shri Udeshi, we cannot absolve Bharat Petroleum Corporation for its responsibility of having manufactured and supplied defective goods to complainant. In our view, the Bharat Petroleum Corporation is a "manufacturer" is given in Section 2(j) of the Consumer Protection Act. The manufacturer means a person who makes or manufacturers any goods or parts thereof. Admittedtly, the LPG cylinder in question was manufactured by the Bharat Petroleum Corporation and, therefore, is liable to compensate complainant who has suffered a loss due to the defect in the goods. Mr. Eqbal Usuf, the learned Advocate for the Dealer M/s Sheelvik Agencies submitted that the Mechanic-Mr. Hukumsing did not act in the discharge of his duties as an employee of the Sheelvik Agencies at the material time. According to Mr. Eqbal Usuf, the Agency maintains the Register in which the calls from the consumers are registered. After the calls are received then the mechanic is sent to attend the complaint of the consumer. It is further submitted that the Mechanic goes to the premises of the consumer and renders necessary service to the consumers. According to Mr. Eqbal Usuf, the Mechanic Mr. Hukumsing having not followed the aforesaid procedure cannot be said to have acted on behalf of Dealer. The argument is fallacious inasmuch as relationship of Mr. Hukumsing with M/s Sheelvik Agencies as an employee remains unaffected Mr. Hukumsing acted in the discharge of his usual duties.

WE asked Mr. Iqbal Yusuf as to whether M/s Sheelvik Agencies lodged the claim for compensation in respect of the incident in question with the Insurance Company, the Opposite Party No. 3. Surprisingly, for us Mr. Iqbal Yusuf had no reply on this point and never addressed this Commission as regards the insurance claim in respect of the incident in question.

MR. R.D. Chaddha, Advocate appearing for United India Insurance Company, .Opposite Party No. 3 submitted that the claim for compensation for the incident in question was rejected as MRs. Shobhana Avasare was responsible for the fire in question. According to Shri Chaddha, deceased Shobhana Avasare was negligent in her act of lighting the burner of the gas stove when the gas was released by MR. Hukumsing. We have already held that the cylinder as goods; itself was defective and the negligence has been proved not on the part of Shobhana Avasare, but on the part of MR. Hukumsing, the mechanic. Under these circumstances, the arguments of MR. Chaddha is meaningless. Interesting and important circumstance has come to our notice in this complaint which is of vital importance in the interest of consumers. According to Dealer M/s Sheelvik Agencies, every Dealer of Bharat Petroleum Corporation is required to obtain an insurance policy to cover the loss due to accident, covering third party risk. According to M/s Sheelvik Agencies, obtaining of such an insurance policy is a condition precedent for the grant of Dealership of M/s Bharat Petroleum Corporation. It is further submitted that there is an agreement between the Dealer and M/s Bharat Petroleum Corporation and under which the dealer has to pay for the premiums of an insurance policy covering a third party risk. It is further submitted that MR. Hukumsing Rajput was a trained Mechanic. It is, therefore, argued that since MR. Hukumsing had gone to the complainant of his own and in his private capacity his client is not liable for negligence while rendering the service to the consumer. This argument of Iqbal Yusuf is not of any consequence. It is important to note that the complainant on 9.3.90 had written a letter to M/s Sheelvik Agencies claiming the compensation for the death of his wife and interium relief. In his letter the complainant has clearly stated that Mr. Hukumsing, the Mechanic of the Sheelvik Agencies has visited his house in his official capacity as an employee of Sheelvik Agencies to discharge official duty; but because of his careless and negligent handling of the LPG cylinder, the accident has taken place. The said letter was received by M/s Sheelvik Agencies on 13.3.90 and zerox copy of having acknowledged the said letter of Sheelvik Agencies by Shivadasani for Sheelvik Agencies is placed on record. Till the filing of complaint, M/s Sheelvik Agencies never controverted the allegations contained in that letter much less, never denied that Mr. Hukumsing was not acting in the capacity as an employee of M/s Sheelvik Agencies. Moreover, in the first written statement of M/s Sheelvik Agencies dated 26.1.90, which is also signed by Mrs. Shivadasani never whispered that Mr. Hukumsing was not acting in the discharge of his duties. In view of the above circumstances, we are not prepared to accept the argument of Mr. Iqbal Yusuf that Mr. Hukumsing Rajput was not acting in the discharge of his duties at the material time. It is further submitted that the insurance policy known as "Liquid Petroleum Gas Traders Policy" was obtained by Opposite Party No. 2 from Opposite Party No. 3. The said policy covers the risk upto Rs. 20 lacs every year. The policy indemnifies the loss of property and human lives upto the limit of Rs. 20 lacs. The printed standard form of such a policy is placed on record. The original policy was not shown to this Commission. The Paragraph 12 of the policy defines the terms and conditions of such a policy. Section (vi) under the "Head Public Liability and Employers Liability" defines that the Insurance Company indemnifies the insured in respect of the accidental death or bodily injury to any person other than the person under the insurance service and of ....caused by or assigned from the installation of gas filled LPG cylinder...The nature of the policy clearly provides that the Insurance Company covers the risk of third party under the policy. Admittedly such an insurance policy was in force on the date of incident we fail to understand when the complainant lodged his claim to M/s Sheelvik Agencies by sending a letter dated 9.3.90, the Opposite Party Nos. 2 and 3 never tried to settle it. These facts clearly indicate the negligence on the part of the Insurance Company as well as the insured M/s Sheelvik Agencies to settle the claim of complaint as a third party. Shri Shirish Deshpande, an Activist of Mumbai Grahak Panchayat with his usual endeavour to render studies assistance to this commission in the matters of complaints from consumers has painstakingly obtained a litterateur fitted "LPG News of India".

On Page 17 of the aforesaid literature at Column 7.2 and 7.3. Significant revelations are printed. For the sake of information we reproduce that Paragraph below: - "7.2; We are happy to note that after two decades of our struggle with the Insurance Companies, the Oil Industry has come to our rescue. Our nationalised GIC and its subsidiaries have simply followed the erstwhile yorkshire Insurance Co. clauses, which indemnified the principals and thus Oil Companies kept quiet ignoring the harmful ''legal liability'' clause, which completely blocked the process of compensation to the victims. In the last three decades, LPG industry has paid about 20 crores rupees without any benefit to the victims. Neither the consumer, nor the Oil Company benefited, while the distributor was paying all along through the nose on an average Rs. 3000/- per annum. 7.3 Interest on this 20 Crore ''Corpus'' would have been sufficient to take care of the victim consumers. Barring few, many sympathetic claims are lying all over the country due to the ''legal liablity'' clause. IOC in Southern Region in association with BPC, HPC and our Association have initiated meanigful dialogues with the management of the United India Insurance Company."

A reading of above information indicated that the LPG industry paid about Rs. 20 Crores towards the premiums to the Insurance Company to cover the third party and other risks of the victims involved in accidents by LPG. On an average a distributor or the agent supplying the LPG has to contribute Rs. 3000/- p.a. It is further revealed that the interests of Rs. 20 Crores could have been sufficient to take care of the victims in the case of gas accidents. It is also stated that many claims are lying all over the country due to this legal liability clause. The insurance is the only protective clothing to the dealers to face in the event of the claim from the victims of LPG accidents. In the present case such an insurance policy with adequate provisions was in existence. Despite the insurance policy covering the third party risk and the claim being made by the consumer dated 9.3.90, both Opposite Parties No. 2 - the Dealer, and the Insurance Company, the Opposite Party No. 3 were grossly negligent in examining and settling the claim of the consumer. No convincing answer is coming from the Opposite Party No. 3 as to why the claim from the Opposite Party No. 3 as to why the claim has not been settled so far. Shri Chaddha, the learned Advocate only stated that the claim is rejected since deceased Shobhana Avasare was responsible for the accident. No written communication to this effect has been so far conveyed to the complainant or to the dealer. The only inference which can be gathered from the circumstances of this case is that the Opposite Party No. 3-Insurance Company was utterly negligent in settling insurance claim in this case. The Principle of "third party" is well established in cases of accidents. Third party means other than the contracting party. No doubt, the words, ''third parties'' have not been defined in the Act, or in the Rules. We have, therefore, no hesitation to hold that deceased Shobhana Avasare and Mr. Umesh Avasare are the "third party" who are indemnified by the insurance policy in question. The accident in question accurred during the subsistance of the insurance policy obtained by Opposite Party No. 2. The purpose for insisting on the insurance policy to be obtained by the dealer is obvious. If any "third party" claims compensation on account of the loss of life or property as a result if accident, due to the use of LPG there should be sufficient cover to satisfy the claim arising out of such accident. The claim may not be as the dealer may not be in a position claim. Therefore, the insurance policy is a method to satisfy such claims. It is for this son that the insurance policy is insisted upon whereby he insurer undertakes to indemnify the insured in case of any such loss sustained by him while making payment to the consumers involved in LPG accidents. In view of the legal situation we are of the view that since the complainant has lodged the claim with the dealer, it was the duty of the dealer to pursue the claim of the complainant with the Insurance Company to settle the claim. The apathy shown by the dealer and the Insurance Company in the instant case is unpardonable.

IN the case of Umedilal Aggarwal v. United INdia Assurance Co. Ltd. and vice versa in F.A. Nos. 3 and 4 of 1989, decided on 28.7.1989, the National Commission, New Delhi had held that "whenever there is a default or negligence in regard to such settlement of an insurance claim, that will constitute deficiency in the service on the part of the INsurance Company. The complainant is the beneficiary of the claim flowing from the insurance policy in this case.

Taking into consideration the totality of the circumstances in this complaint in our view, the complainant has proved his allegations, consequently he is entitled to claim compensation since it is established that he has sustained loss due to the negligence in the service of opposite parties as well as due to the defect in the goods namely the LPG. We, therefore, pass the following order :- ORDER The opposite parties are jointly & severally directed to pay to the complainant the following amounts: - (I) To the complainant: (1) Rs. 27,050/- : Towards the hospital charges for the treatment of Shobhana Avasare and Mr. Umesh Avasare. (2) Rs. 18,760/- : Towards charges for sister. (3) Rs. 2,100/- : Towards the conveyance expenses. (4) Rs. 2,50,000/- : Towards loss of consortium due to the death of Shobhana. (5) Rs. 300/- : Towards the incidential expenses of the complainant. Rs. 2,99,210/- We would also like to award Rs. 255/- towards cost to Mumbai Grahak Panchayat who pursued the cause of complainant through its representative Shri Shirish Deshpande to be paid by the Opposite Parry.

THUS we direct that the complaint be paid Rs. 2,99,210/- and Rs. 2,500/- to Mumbai Grahak Panchayat within three months from the date of this order. If within the aforesaid period, the amount is not paid by the Opposite Party, it shall carry interest at the rate of 19% p.a. till realisation. Claimed compensation.