Indian Oil Corporation Ltd. vs SHIV SHANKAR

THESE are three connected appeals arising out of order dated 3.11.2003 passed by the District Forum, Dehradun whereby the complaint of the complainant for recovery of Rs. 44,000/- (Rupees forty-four thousand) for loss of household goods and also for compensation and cost of litigation and expenses of medicines was allowed.

THE complainant, Sh. Shiv Shankar has filed an Appeal No. 916/2003, Sh. Shiv Shankar v. Manager, Sub-Area Gas Service, for the enhancement of compensation on the ground that the compensation as awarded by the learned Forum is inadequate. Indian Oil Corporation has filed Appeal No. 912/2003, Indian Oil Corporation Ltd. v. Sh. Shiv Shankar, for quashing the order alleging that there is no deficiency in service on their part and the Manager, Sub-area Gas Service has filed Appeal No. 917/2003, Manager, Sub-area Gas Service v. Sh. Shiv Shankar, for setting aside the order of the learned Forum. Since in all the appeals, common questions of law and facts are involved, therefore, all these appeals are taken together for disposal. Copy of the judgment shall be placed in the records of all the appeals. The brief facts of the case are that the complainant is admittedly a consumer of LPG connection, which is supplied by opposite party No. 1, Dehradun Sub-area Gas Service, who is the deal. Opposite party No. 2, Indian Oil Corporation Ltd. is the company, which supplies the cylinders to the dealers for further supply to the customers. It is alleged that the complainant took a refilled gas cylinder on 10.3.1995. On 18.3.1995, when the gas cylinder, which was being used became empty, the gas cylinder purchased on 10.3.1995 was installed but as soon as the burner was tried to be burnt, it got fire. On 20.3.1995, the matter was reported to the opposite party No. 1. It is alleged that defective gas cylinder was supplied. It is further said that due to this fire, entire household articles of the complainant were burnt. The complainant has given a list of articles, so burnt. He has claimed a sum of Rs. 44,550/- (Rupees forty-four thousand five hundred fifty) for the loss of articles, Rs. 20,000/- (Rupees twenty thousand) for mental pain and agony, Rs. 1,50,000/- (Rupees one lac fifty thousand) for disfiguration of applicant No. 1 and Rs. 1,50,000/- (Rupees one lac fifty thousand) for disfiguration of applicant No. 2, Rs. 5,000/- (Rupees five thousand) as cost of litigation and Rs. 20,000/- (Rupees twenty thousand) as expenses of medicines.

The opposite party No. 1 filed a telegraphic written statement and gave parawise reply. It is alleged that para 1 of the complaint is not relevant. Regarding para 2, supply of gas connection is admitted. Regarding para 3, sale of refilled gas cylinder on 10.3.1995 is admitted. Regarding para 4, it is said that it is not relevant to issue. In para 4 of the complaint, it is pleaded inter alia that since the complainant Sh. Shiv Shankar burnt match and lit the burner, it caught fire from burner and regulator and below that. It is said that this para is not relevant. It means that it is not denied. It means that it is admitted. In para 5 of the complaint, it is alleged that defective cylinder was given. This para is said to be false and it is alleged that all cylinders issued to the consumer are checked by concerned consumer is presence of gas agency staff. It is not said about the specific gas cylinder. Nothing has been said about this particular gas cylinder. In para 6 of the complaint, it is alleged that the complainant tried to extinguish the fire by putting water, sand, etc. but the cylinder started rotating on the ground and went in other rooms and burst. Reply to para 6 is not valid. What does it mean is not clear? It shall be deemed to have been admitted. The learned Counsel for the Gas Agency wanted to argue that such a cylinder could not rotate or dance. This argument is meaningless in view of this pleading. In para 7 of the complaint, it is alleged that the entire household articles were burnt and complainant Nos. 1 and 2 were signed and they became disfigured. Complainant No. 2 became serious and he was admitted in Doon Hospital, Dehradun on 18.3.1995. In reply to para 7, it is said to be no comment. This is not denied. In para 8, the complainant has alleged that he lodged F.I.R. on 19.3.1995 and informed the company''s the Manager, Sub-area Gas Service about the accident on 20.3.1995. This para is said to be factual. It means no denial. The learned Counsel for the Gas Agency, Sh. Atul Virmani argued that the opposite party No. 1 got information of the accident after about 8 or 10 days from the opposite party No. 1. In the teeth of this denial, this argument has got no basis. In para 9, it is further alleged that the gas cylinder was checked by the consumer on 10.3.1995. In the last para, however it is alleged that there is no deficiency in service on the part of the opposite party No. 1.

NOW coming to the written statement of Indian Oil Corporation Ltd. opposite party No. 2, allegations of paras 1, 2, and 3 of the complaint are admitted. Regarding Board it is said that as per the investigation report, the complainant replaced the empty cylinder with refilled one kept at his residence. The complainant had taken the refilled cylinder on 10.3.1995. It further admitted that the complainant lit the match-stick to light the gas stove and it caught fire. In the written statement of the opposite party No. 1, it is alleged that the consumer lifted the refilled on 10.3.1995. As per written statement of opposite party No. 2, the son and daughter of the complainant had gone to the godown for taking the refill cylinder on 10.3.1995. They had checked the valve leak, etc. but to our utter surprise till date, it has not been disclosed either in the written statement or in the investigation report of Sh. Manish Grover, what is the name of that son and daughter, although the learned Counsel for the opposite party No. 1 was very much curious regarding the identity of complainant No. 2 and he argued that there is no son of the complainant No. 1 like Ajeet Singh and Vijay Singh. Still Sh. Manish Grover has admitted that the son of the complainant was injured. In his report, he has written about two sons and one daughter. NOWhere it is said which son checked the gas cylinder. The entire written statement of the Indian Oil Corporation Ltd. is based on the report of Sh Manish Grover and to be precise enough, this is the same Manish Grover who has filed the written statement on behalf of the company. Sh. Manish Grover has filed the written statement on behalf of opposite party No. 2. He is, therefore, a party to the case. He has filed the investigation report he is, therefore, an investigator. We have not seen any law on earth that the investigator can also act on behalf of the party. To the contrary, every investigator should be an independent one and his status is that of a Judge, who judges the entire facts and circumstances and gives his judicial, independent and correct information about the factual position. We cannot appreciate that Sh. Manish Grover is a party to the case as well as an investigator.

SINCE Sh. Manish Grover is a party as well as investigator, we shall first discuss his report itself. He visited the spot on 20.3.1995 and he has recorded in his report that consumer states that he did not smell the gas. He has written that this case is not acceptable since leakage has to take place in case of accident. If the leakage would have been from before, i.e., on 10.3.1995 itself, the entire gas could have been exhausted or there could have been fire earlier but this is admitted fact that the fire did not take place till the match was put to the burner. It appears that it is after installation, leakage started and, therefore, the fire took place and this is why in para 6 of the report, he has specifically written that accident occurred while installing refill by the consumer. Sh. Manish Grover was very much specific and fair enough in describing the accident and he in his report wrote that on 18.3.1995 at about 2000 hours, consumer Sh. Shiv Shankar was in the process of replacing his empty cylinder with the filled one. Consumer replaced the PR on the filled cylinder and after switching ''ON'' lit a matchstick and as he was about to light the stove, the gas cylinder caught fire. Thereafter precautions, which took place, have been narrated. This is the specific finding of Sh. Manish Grover and nobody can go against it. We are not technical experts and the argument of the learned Counsel for the opposite party No. 1, Sh. Atul Virmani was that there should have been expert evidence to judge whether there was any defect in the refilled cylinder or not? We fully agree to his argument but the question is who should have laid evidence on this point. According to Sh. Atul Virmani, the duty was of the complainant to prove that cylinder was defective but in our view the duty was of the opposite party to lead the expert evidence. The poor consumer can only use the cylinder. It is not said that he was incompetent to use. It is further not said that he for the first time tried to instal. It is not said by either of the parties from when the complainant was a consumer. It is not said that any unauthorized person was installing the cylinder. Therefore, the only option left with the consumer after the accident was to inform the company and it was for the company to have done whatsoever was desired to be done. The company did not sleep over the matter. It appointed Sh. Manish Grover to visit the site immediately and he found that everything was burnt. It is not said that for technical examination, the complainant refused to co-operate with the investigator but everything was before investigator. Nobody prohibited Sh. Manish Grover to take or lift anything from the spot for the purpose of technical investigation. The complainant could not have done any technical investigation but there was every facility with the opposite parties to get the technical examination done of the plate, regulator or any other thing, if they desired but they did not do so. In our view, it is not proper for the opposite parties to throw the burden of technical or expert evidence on the complainant. The learned Counsel for the opposite parties argued at length and tried to find fault with every piece of paper but in the teeth of above discussions, detailed reply to all those arguments is not at all necessary as written in the grounds of appeal. There is nothing except the report of Sh. Manish Grover who denied the deficiency in service of the opposite parties which incidentally goes to prove the case of the complainant a long way.

THE learned Counsel for the appellant referred the ruling reported in I (1998) CPJ 521, Arora Gas Service v. Mrs. Bobby Ahuja and Others, where there was allegation of leakage in the gas cylinder. It is alleged that the complainant was unable to prove its version and the complaint was dismissed. In this ruling, there was definite finding that the cylinder remained in the possession of the complainant for 4 days and if they did not properly fix the pressure regulator or otherwise allowed the gas to pass through the burner or the tube before igniting the match-stick, no fault can be found with the opposite party. In this ruling, it was held that it was Darshan Lal who took the process of fixing pressure regulator on the cylinder and if at that time, there was mass leakage, it could be observed as LPG gas emits and obnoxious smell, which could not go unnoticed. In this particular case, it is said that the consumer has not noticed the obnoxious smell as stated by him. THE statement has not been recorded. Secondly, there is absolutely no allegation of any mass leakage in this case. It is when the burner was burnt, from the burner it went up to the regulator of the cylinder and everything was burnt. In this ruling, it was held that there was negligence on the part of the complainant to ignite the gas stove. We are surprised that in this particular case, there is absolutely no pleading of the opposite party that there was any negligence on the part of the complainant to ignite the gas. Neither there is any finding to this effect by Sh. Manish Grover who has visited the spot. Another ruling reported in (2002) 1 CLD 16 (SCDRC - Guj.), Prafulchandra P. Kantawala v. Jacob Gas Agency, was referred. In this ruling story of gas leakage was not acceptable but surprising in this case, Sh. Manish Grover has given the same story which has been given by the complainant and in this ruling there was a report of Forensic Science Laboratory which disclosed that gas cylinder did not contain any manufacturing defect. This report was obtained by non else than the company who has referred the matter for forensic report. In this particular case as said above Sh. Manish Grover has visited the spot, he has seen everything, he did not try to take anything for examination or forensic examination. THE ruling reported in 1993 (1) CPR page 477, B.G. Bhaskar v. M/s. Karthik Gas Agencies and Others, was referred. In this ruling, the regulator and connected tube, etc. were not produced for examination but in this particular case, everything was before the investigator who visited the spot. THEre is absolutely no allegation that he was not allowed to take anything. Similar is the position with the ruling reported in I (1995) CPJ 53 (NC)=1995 (1) CCC 37 (NS), Indian Oil Corporation v. T.C. Rajappa and Others, wherein there was no evidence of leakage from the cylinder. THE electricity caught fire and it also affected the gas cylinder. It was held that there was no evidence that the fire was due to the leadage of the gas cylinder. THE ruling as referred above do not help the dealer and its principal, the facts being quite different.

THE learned Counsel for the opposite party No. 1 argued as if the opposite party No. 1 has nothing to do with the opposite party No. 2 and it was only giving the refilled cylinder supplied by the opposite party No. 2, therefore, opposite party No. 1 was not negligent. He forgot that opposite party No. 1 is dealer, while opposite party No. 2 is supplier and the main company, therefore, the opposite party No. 1 is an agent of the opposite party No. 2. THE liability of the principal and agent is vicarious. THE principal is liable for every act of the agent except his personal criminal acts. THE agent cannot plead against the principal that if there is any dispute inter-se between the principal and agent, that shall not be resolved by these Forums to give relief to the complainant. THE entire argument of Sh. Atul Virmani was against the admissions made by the principal. THE principal admitted that the son of the complainant was injured. He argued that identity is not established. THE principal admitted that the cylinder rolled and went from one room to another and caused extensive damage to the articles of the house but he argued that a cylinder couldn''t rotate in the manner as alleged. Since the liability of the opposite parties is joint and several under the principle of vicarious liability, therefore, the learned Forum has rightly passed orders against both the opposite parties jointly. Coming to the quantum of damages. It was argued that the complainant has claimed a sum of Rs. 44,550/- (Rupees forty-four thousand five hundred fifty) for the loss of household articles and the entire amount has been allowed. This plea of burning of the entire articles has not been particularly denied by the opposite parties. In para 10 of the complaint, the loss has been given. In the written statement, the opposite party has alleged in reply to para 10, false, not agreed to. It is not said that there was absolutely no loss to the complainant. In its written statement, the opposite party No. 2 has specifically written, "since the fire has taken place and customer has suffered loss of household which is apart from injuries to father and son, our distributors are mandatorily having third party insurance for their godown. Such claim should be lodged with the Insurance Company who is liable to pay for damages after their investigation. As far as Indian Oil Corporation is concerned it is not responsible." According to the opposite party No. 2, loss of household articles of the customer is admitted. Injuries to the father and son are admitted and it was advised that the claim should be paid to the complainant and the opposite party No. 1 should get the amount from the Insurance Company. The complainant has filed affidavit in support of his allegations. There is no counter affidavit on behalf of the opposite party No. 2. One affidavit of Sh. Deepak Singh has been filed on behalf of opposite party No. 1 but nothing has been said regarding the actual loss to the complainant. The fire brigade has also visited the spot. They are also entitled to assess the loss and they have assessed the loss to the tune of Rs. 70,000/- (Rupees seventy thousand). Regarding the other losses of the complainant and enhancement of the claim, we are surprised that there is absolutely no evidence of any disfiguration. There is absolutely no evidence of any injury rather some since is admitted but what is the length and density of that injury, that has not been given. The actual amount of treatment has not been given. It is said that the son of the complainant was admitted in Doon Hospital, Dehradun. No paper of Doon Hospital has been produced. Therefore, merely by claiming a sum of Rs. 3,00,000/- (Rupees three lacs), Rs. 1,50,000/- (Rupees one lac fifty thousand) for self and Rs. 1,50,000/- (Rupees one lac fifty thousand) for the son, the claimant will not get it. The amount awarded by the learned Forum is adequate. The Forum has rightly allowed the cost of litigation. The net result is that we do not find any force in all the appeals and all the appeals and all the appeals are accordingly to be dismissed. Neither the amount of compensation is to be enhanced nor it is to be quashed. ORDER Appeal No. 912/2003, Indian Oil Corporation Ltd. v. Sh. Shiv Shankar, Appeal No. 916/2003, Sh. Shiv Shankar v. Manager, Sub-area Gas Service and Appeal No. 917/2003, Manager, Sub-area Gas Service v. Sh. Shiv Shankar, are hereby dismissed. Cost of all the appeals shall be easy. Appeal dismissed.