Flame Gas Servece Bikaner vs Aklesh Kumar Bansal

THIS judgment will dispose of First Appeals Nos. 520 and 575 both of 1992 as both cases arise out of the order dated May 8, 1993 passed by the State Consumer Disputes Redressal Commission, Rajasthan at Jaipur.

THE facts giving rise to these appeals are: that the present Respondent No. 1 in Appeal No. 520 of 1992 Shri Aklesh Kumar Bansal is the husband of Smt. Sunita Bansal, since deceased and Respondents Nos. 2 & 3 who are the minor sons of Respondent No. 1 and Sunita, deceased had filed a complaint against M/s. Flame Gas Service and one Shri Poonam Chand Rawat, who were Opposite Parties Nos. 1 & 2 in the complaint and now Appellants in First Appeal No. 520 of 1992. M/s. Indian Oil Corporation, who was arrayed as Opposite Party No. 3 in the said complaint is the Appellant in the other Appeal No. 575 of 1992. In Appeal No. 575 of 1992, M/s. Indian Oil Corporation Ltd. has made all the other parties as Respondents. The parties wi11 be referred to in these appeals as they were arrayed in the complaint. In the complaint, the complainant had alleged that they are Indane gas consumers having gas connection No. F -407. Opposite Party No. 1 had supplied to Complainant No. 1 a refilled gas cylinder on 18th Decenber, 1989 against payment. The mother of the complainant No. 1 wanted to lit the stove but as it did not lit. Complainant No.lwent to Opposite Party No. 1 at about 3.30 p.m. and got a complaint registered. Opposite Party No. 1 sent their mechanic, Shri Poonam chand (Opposite Party No. 2) at about 5.30 p.m. on the same day. It may be mentioned here that one Shri desh Raj Complainant No. 4 also came to the house of Complainant No. 1 because he was supplied a gas cylinder by Opposite Party No. 3. The complainants have alleged that the gas cylinder supplied to Complainant No. 4 was also defective so he went to the house of Complainant No. 1 to call the mechanic to check his gas cylinder also. The complainants have alleged that while repairing the gas cylinder supplied to Complainant No. 1, Opposite Party No. 2 began to press the nozzle of the cylinder with the help of a screw -driver due to which gas began to come out from the cylinder and spread in while of kitchen, gallery and rooms etc. Smt. Sunita Bansal, wife of Complainant No. 1 and Complainant No. 4 felt the gas smell. Smt. Sunita went inside the kitchen and asked the mechanic not to lit the match stick but Opposite Party No. 2 passed reluctant comment and said that he used to repair such defective gas cylinders every day. According to him, there was air in the cylinder which he was rejecting, and not the gas. After a gap of few minutes, he again pressed the cylinders nozzle for 7 -8 minutes and despite the protest of all the persons present there, Opposite Party No. 2 connected the regulator to the cylinder and lighted the stove to check. His hand did not reach the burner. Meanwhile the has which had spread caught fire in which Complainant No. 1, his wife Smt. Sunita, Complainant No. 4 Shri Deshraj and the mechanic -Shri Poonam chand all were seriously burnt. It is said that on hearing the noise, the neighbours came to the house of Complainant No. 1 and helped them to extinguish the fire. All the injured were taken to the hospital. However, out of these persons who had received burn injuries, on 14th February, 1990. Complainant No. 1 had to remain in the hospital for his treatment from 18th December, 1989 to 12th January, 1990 and remained on leave up to 31st January, 1990. Shri Deshraj, Complainant No. 4 remained in hospital from 18th December, 1989 to 6th January, 1990 and took long leave from his service. The statement of Shri Deshraj was recorded in the hospital on 19th December, 1989 and First Information Report was recorded. According to the Complainant, Complainant No. 4 is also a consumer of the gas supplier of M/s. Indian Oil Corporation Ltd. The Complainants prayed for and award of Rs. 8,85,000/ - as compensation, as detailed in the Complaint from Opposite Parties Nos. 1 to 3 jointly and severally together with interest @ 18% P.A. from the date of complaint till realization. The complaint was filed before the State Commission on 17th May, 1990. Separate versions of the case were filed on behalf M/s. Flame Gas Service (Opposite Party No. 1), Opposite Party No. 2 and Opposite Party No. 3 M/s. Flame Gas Service (Opposite Party No. 1) denied that the gas cylinder supplied was defective. According to it, the cylinder was connected by the delivery man and shown to the consumer with proper working and after that money was paid and duplicate Coucher was signed. It was denied that the mechanic repaired the cylinder or pressed the nozzle with the help of screw -driver or that the gas leaked after the mechanic started the job. According to this Opposite Party when the mechanic reached the house of Complainant No. 1 at around 5.30 p.m. the door of the house was closed, though the smelt the gas. Smt. Sunita Bansal came and opened the door. The mechanic told that the gas was leaking profusely and instructed her not to light the gas and not to switch on electrical switches. On being enquired regarding kitchen, Smt. Sunita took him to the kitchen and left the mechanic there and went to the adjoining room. The mechanic soon after he entered the kitchen immediately closed the nob of the regulator and both the nobs the burners and then inspected and checked the rubber tube. By that time Complainant No. 1 reached inside the kitchen. The mechanic told Mr. Bansal that the nob of the regulator and burners should not have been kept open. After this he instructed to open the doors and windows of the house which were closed due to winter season. The mechanic by that time had not started checking the burner but somebody who was in the adjoining room either lit the match or switched the electrical point, which caught fire with a blast. Smt. Sunita and Opposite Party No. 4 caught fire and started running out of the house. At that time some body entered the house and told the mechanic and Shri Bansal to go out of the house and lie down in the sand. Thereafter Opposite Party No. 4 found himself in the hospital. Percentage of the burns suffered by Smt. Sunita Bansal, Complainant No. 1, Complainant No. 4 and Opposite Party No. 2 were different. The other facts relating to service, salary etc. of Complainant No. ls wife Smt. Sunita were denied. Claim for compensation was refuted. Under the head of additional pleas, it was stated that the gas cylinder was delivered at the residence of the Complainant No. 1 on 18th December, 1989 at 9.30 a.m. and the consumer had used the gas practically during the whole day and then lodged complaint at 4.45 p.m. in the evening which was attended to by Opposite Party No. 2 at 5.30 p.m. on the same day. An objection was taken that the accident had occurred due to the fault of the deceased or any of the family members and not on account of the fault of the delivery man or of the mechanic. It was stated that Opposite Party No. 2, Shri Poonam chand, mechanic has been working for over two years wih Opposite Party No. 1 and has been attending number of complaints every day. It was denied that the mechanic had pressed the nozzle and allowed the gas to come out. The defense taken was that the burner did not work properly, may be due to some obstruction in the Pipe line. The nobs of the burner and the regulator were left open assuming that the gas was not reaching the burner and slowly it leaked out and the accident occurred for which Opposite Party No. 2 cannot be blamed at all. It was stated that Opposite Party No. 1 is fully covered by LPG Gas Traders Combined Policy No. 352301 /2200 0007 issued by the National Insurance Co. Ltd. for the period 31st August, 1989 to 30th August, 1990 and for all such eventualities the Insurance Co. had indemnified Opposite Party No. 1. Opposite Party No. 1 had vide its letter dated 19th December, 1989 informed the Manager of the Insurance Co. Bikaner about the occurrence. As such also the answering Opposite Party No. 1 is not liable to pay any compensation to the Complainants. Claim for compensation under various heads was also denied. An objection was taken that the Complainants should be directed to approach that Court of appropriate jurisdiction for fastening liability on account of negligence of Opposite Party No. 2.

OPPOSITE Party No. 3, i.e. Indian Oils Corporations version is also similar to the one filed by Opposite Party No. 1.

THE Complainant submitted 14 affidavits on 17th December, 1990. The Opposite Parties were directed to file their version within 15 days and the case was fixed for, arguments on 15th January, 1991. On 15.1.1991 affidavits of Shri Prakash Golecha and Shri Malsingh Tanwar were submitted. Thereafter, the case was adjourned for arguments on 16th February, 1991 and then to 14th April, 1991. On 30th May, 1991 time was sought by Mr. Kasliwals, Counsel for Opposite Parties. In the interest of justice time was granted and date for arguments was fixed on 16th July, 1991. The case was further adjourned on 16th July, 1991, 24th August -, 1991, 29th August, 1991 and 19th September, 1991. On the last mentioned date, the Counsel for the Opposite Parties submitted an application stating that while preparing the matter for arguments, the Opposite Parties realised that there are number of controversies with regard to the facts and since the matter can be decided only after negligence is proved for which it has become necessary to cross examine the witnesses and so the complainants may be directed to make available all the deponents for cross examination. On the objection of the complainants that application for cross examination was rejected on 19th September, 1991 and it was again listed for arguments on 20th October, 1991. Two affidavits were submitted on 21st October, 1991 with a prayer that they may be taken on record. The State Commission rejected this application on the objection of the Complainant and the arguments were heard on 30th October, 1991. The case of the Complainant No. 1 was supported by the complainant No. 4 and his wife Smt. Krishna Saxena who deposed that she went to the kitchen with Smt. Sunita Bansal. Shri K.C.Bansal who resides in the vicinity came on the spot and the mother of Complainant No. 1 narrated the whole story to him. When Shri Harbanslal Saluja reached his house, he was told how the fire had broken out at the residence of Complainant No. 1. In their afidavits Shri Prakash Bahadur Saxena and Shri Arun Kumar Baid have stated that they also went at the site and they were apprised how the fire was caused at the residence of the Complainant. So were the affidavits of Ramprakash Sharma, Jagjeet Singh, Balveer Singh, Narsing Lal, Shri K.K. Paliwal who had also gone to the house of the Complainant.

AS noticed earlier on behalf of the Opposite Parties Nos. 1 and 2 the affidavits of Shri Prakash Golecha and Shri Malsingh Tanwar were filed. Shri Prakash Golecha has deposed in his affidavit that he enquired about the whole incident after its occurrence because he had no knowledge. Shri Malsingh Tanwar has stated that he was the delivery man at that time and according to him he installed refilled gas cylinder and removed the empty one. After that he showed the stove burning to the Complainant No. 1.Thereafter he gave duplicate voucher to Complainant No. 1, who signed it and after taking the money he went away. According to Shri Malsingh Tanwar, he had supplied the correct cylinder and there was no defect in it.

AFTER considering the various affidavits, Rules 9(1) and (2) and 70 of the Gas Cylinder Rules, 1981, the State Commission placed reliance on the affidavits filed on behalf of the Complainant and held that the mechanic send by the dealer, i.e., Opposite Party No. 1 was not an expert mechanic. Under Rule 70 a competent person has to be in charge of operation. Such mechanic has to observe general precautions of safety. It was further held that, a report has to be send and an investigation has to be done under the rule but there was nothing on the file to show that any such report was made by the mechanic and therefore, without any supporting material the plea of the opposite parties cannot be accepted. It was further held that there was defect in the cylinder, 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 Complainant No. 1. After considering all the relevant facts, the State Commission awarded Rs. 2,85,000/ - to complainant No. 1 under the following heads: Pain and suffering of Complainant No. 1 Rs. 35,000/ - Loss of consortium etc. Rs. 50,000/ - Loss of expectation of life Rs. 2,00,000/ - Total Rs 2,85,000/ -

Complainant No. 4 was not awarded any compensation as it could not be said that he has suffered any injury or loss on account of the defective refilled gas cylinder supplied to him by the Opposite Party No. 1 or Opposite Party No. 3. All the three Opposite Parties were directed to pay the compensation to the complainants Nos. l to 3 and were made liable jointly and severally. It was further ordered that the said sum should be paid within one month from the date of the receipt of the order failing which Complainant Nos. 1 to 3 shall be entitled to recover the aforesaid amount with interest @12% p.a. from the date of the receipt of the order until realization from the Opposite Parties. Feeling aggrieved, the Distributor and his mechanic have filed Appeal No. 520 of 1992 while Indian Oil Corporation has filed Appeal No. 575 of 1992.

First we take Appeal No. 575 of 1992 as in that appeal only a short point is involved. It was argued on behalf of the appellant -Indian Oil Corporation that as per the transaction entered into between the Distributor and the Corporation, the Distributor shall act and shall always be deemed to have acted as a principal and not as an agent or on account of the Corporation. In support of its contention, reliance was placed on Clause 17 of the contract entered into between the Corporation and M/s. Flame Gas Service, Bikaner. That Clause reads as follows: ''17. In all contracts or engagements en -t ered into by the Distributor with the customers for sale of LPG and/or the sale and/or installation and/or repairs of appliances and/or connections thereof with LPG cylinders (filled or empty) and/or refills and/or pressure regulators and/or attached equipment the Distributor shall act and shall always be deemed to have acted as a principal and not as an agent or an account of the Corporation, and the Corporation shall not in any way be liable in any manner in respect of such contracts and/or engagements and/or in respect of any act or omission on the part of the Distributor, his servants, agents and workmen in regard to such installation, sale, distribution, connections, repairs or otherwise. The Distributor shall be bound to inform the customers in writing of this provision, through correspondence or at the time of enrollment of the customer''.

THAT Clause came for interpretation before the Supreme Court in case Indian Oil Corporation v. Consumer Protection. Council, Kerala & Anr. 1994 (4) CONSUMER 704 it was remarked: ''Thus, it is clear that relationship is one of principal to principal basis and the Distributor cannot be said to be an agent for the Corporation''.

IN the present case as discussed above, the finding of the State Commission is that the fire occurred as the Distributor had engaged an untrained mechanic who tampered with the cylinder in a negligent manner and no safety precautions were observed by him. In such circumstances, the Corporation cannot be made liable for the negligent act of the Distributor and therefore, the appeal of the Indian Oil Corporation is liable to be accepted. As far as the Appeal No. 520 of 1992 filed by M/s. Flame Gas Service is concerned, we do not find any merit in it. The State Commission, by an exhaustive order has believed the version of the Complainants and discarded the version of Opposite Parties Nos. 1 to 2. It is surprising to note that at the initial stages Shri Poonamchand, mechanic, though he suffered injuries did not make any report about the cause of fine that occurred in the house of the Complainant No. 1. In the initial stages, he also did not file any affidavit. At the fag end of the case, he tried to file an affidavit which was rejected by the state Commission.

WE have carefully gone through the judgment of the State Commission and do not find any infirmity in it. The case of the Opposite Party No. 1 that the cylinder was in fact supplied at 9.30 a.m. on 18th December, 1989 and was lying in the kitchen during that day and only in the evening there was some fault either in the burner or in the tube cannot be believed.

IT was of course argued on behalf of the appellants in appeal No. 520 that no opportunity was given for cross examination of the deponents who had filed their affidavits in support of the case of the Complainants. As noticed earlier, that request was made after the case has been adjourned many times for arguments. Cases under the Consumer Protection Act have to be disposed of within a time frame and within the minimum possible period. Party cannot be allowed to delay proceedings unreasonably. Therefore, this objection of the appellants has no force. An objection was also made about the amount awarded by the State Commission. We are of the opinion, that the compensation awarded by the State Commission is not on the higher side.

IN the light of above discussion, we dismiss the First Appeal No. 520 of 1992 with costs which we assess at Rs. 1,500/ - payable to Complainants No. 1 to 3. The amount of compensation awarded by the State Commission will be payable jointly and severally by Opposite Parties Nos. 1 and 2, i.e., appellants line Appeal No. 520 of 1992.

APPEAL No. 575 of 1992 is allowed but we make no order as to costs in that appeal. Appeal No. 575 of 1992 allowed without costs. Appeal No. 520 of 1992 dismissed without costs. -