RANGE GOWDA vs HINDUSTAN PETROLEUM CORPORATION

THE complainants and one late Sri B.K. Raju are the children of late Venkatarangaiah @ Kempaiah and his wife Smt. Nanjamma. One late Smt. Vijayamma is the wife of late Sri B.K. Raju. Late Sri B.K. Raju who is the brother of the complainants along with his wife late Smt. Vijayamma, two minor daughters, namely Netravathi and Mamatha and his mother Smt. Nanjamma were residing in House bearing No. 23, 3rd Main Road, 2nd Cross, Kalyan Nagar, Bangalore. THE said Sri B.K. Raju obtained a Cooking Gas Connection from opposite party (for short, the "O.P.") No. 2, who is an agent of O.P. No. 1, which is the manufacturer of Gas Cylinders for domestic purpose. Due to leakage of the gas from the Cylinder, on 15.3.1999 when Smt. Vijayamma lit the fire-wood stove in the bath room by pouring kerosene, there was an explosion and fire spread to the entire house due to which all the above said persons were injured. In the said fire accident, the entire articles kept in the house, such as refrigerator, television, fans, cots, beds and utensils were burnt. THE said accident was reported to the Police. Subsequently, the persons who were injured died on different dates due to the said accident. THE case of the complainants is that there is a "deficiency in service" on the part of the O.Ps. in supplying the gas cylinder and its accessories which includes rubber tube and stove, which resulted in leakage of gas and consequently caused damage and injury to the persons and property and, therefore, they are entitled to claim compensation of Rs. 19,50,000 from the O.Ps.

O.P. No. 1 has filed its version relying upon the report of the LPG Equipment Research Centre and contended that the cylinders, pressure regulator and the S.C. Valves were in good condition and that the leakage of gas, if any, was due to the failure of the rubber tube and, therefore, O.P. No. 1 is not liable to pay any compensation as claimed by the complainants. The further contention raised by O.P. No. 1 is that the complaint is not maintainable, as the complainants are not "consumers" within the meaning of the Consumer Protection Act, 1986 (for short, the "Act"). O.P. No. 2 has filed its objections and admitted that late Sri B.K. Raju was a consumer of L.P.G. under O.P. No. 1 but it has denied the leakage of gas from the cylinder. It is stated that late Smt. Vijayamma who is the wife of late Sri B.K. Raju lit the fire-wood stove in the bathroom by pouring kerosene as a result of which the fire was spread and that was the cause for the damage to the persons and the property. O.P. No. 2 has further denied that the rubber tube involved in the accident had not been purchased from O.P. No. 2 and, therefore, they are not liable for any loss or damage suffered by the complainants.

Both the complainants and the O.Ps. have filed their versions and affidavits and also filed documents, which are marked as exhibits in this case.

ON the above said pleadings, the following points arise for consideration: (1) Whether the complaint filed by the complainants is maintain-able under the Act? (2) Whether the complainants are entitled for compensation establishing the fact of deficiency in service on the part of the O.Ps.? (3) To what relief the complainants are entitloed?

Point No. 1 : The complainants are the brothers and sisters of late Sri B.K. Raju, who was a consumer of LPG having obtained a Gas Connection from O.P. No. 2 for domestic purpose by purchasing stove, rubber tube and other accessories. O.P. No. 1 is the manufacturer of the gas cylinders. According to the O.Ps., the complainants who are claiming to be the legal representatives are not "Consumers" so as to maintain a complaint under the Act. In support of this contention, the complainants relied upon the decision of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (for short, the "Tamil Nadu Commission") in the case of Mrs. Hemlatha Saptharishi and Others v. Indian Oil Corporation Limited and Others, reported in III (1998) CPJ 533.

THE Tamil Nadu Commission, no doubt, in the above said decision has taken the view that in view of Section 12 of the Act, legal representatives of a deceased consumer cannot maintain a complaint under the Act. Section 2(b) of the Act defines the word "complainant". THE Union of India by the Consumer Protection (Amendment) Act, 2002 has inserted Sub-section (5) of Section 2(b) of the Act, which reads thus : "(v) in the case of death of a consumer, his legal heir or representative." In view of this amendment, the legal representative of a deceased consumer is a complainant as defined under the Act. The learned Counsel appearing for the O.Ps. submitted that since the said amendment came into force subsequent to the accident, which took place on 15.3.1999, and as the said Amendment is prospective in nature, the complainants who are claiming to be the legal representatives of the deceased consumer cannot be considered as complainants so as to maintain a complaint under the Act. No doubt, the Tamil Nadu Commission has taken the aforesaid view. But the National Commission in the case of M/s. Cosmopolitan Hospital and Another v. Smt. Vasantha P. Nair and Others, reported in I (1992) CPJ 302 (NC)=1992 (1) CPR 820, has held that the legal representatives of a deceased consumer are competent to maintain a complaint. This decision of the National Commission is prior to the Amendment Act of 2002. In view of the decision of the National Commission it was not open for the Tamil Nadu Commission to take a different view, since the law declared by the National Commission is binding on all the Forums constituted under the Act.

IN our view, even before the Amendment Act of 2002 came into force, the complainants being the legal representatives of the deceased consumer are entitled to maintain the complaint in the event if they are deprived of the benefit or damage caused to the property belonging to the deceased consumer, consequent on the death of the consumer.

SECTION 2(11) of the Code of Civil Procedure, 1908 defines the word "Legal Representative" as follows : "Legal Representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;"

From a reading of the above said definition, it is clear that a person who in law represents the estate of a deceased person is considered as a legal representative and, therefore, the legal representative can sue or be sued in law if he is deprived of the estate of the deceased and for the loss he has incurred consequent on the death of the deceased. Under the Fatal Accidents Act, in respect of any loss suffered consequent on the death of a person, a dependent is entitled to sue or be sued in a Court of Law. In the instant case, the complainants are the dependents and also are the legal representatives of the deceased Sri Raju, his wife, children and his mother. Further, as per the definition of the word "Consumer" even a Voluntary Consumer Association registered under the Companies Act or under any other law is considered as a consumer. If an organisation is conferred with a right to sue for and on behalf of others, there is no reason why the legal representatives who are entitled to succeed to the estate of the deceased cannot be considered as complainants so as to maintain the complaint under the Act. The complainants have produced a Succession Certificate issued by the Civil Court under which the complainants are considered as the persons entitled to succeed to the estate of the deceased complainants. The complainants have also produced a Survivors'' Certificate issued by the Tahsildar of Magadi Taluk declaring that the complainants are the legal representatives of the deceased complainants. The Act is a piece of beneficial legislation intended to protect the exploited consumers by the other parties and also to prevent such exploitation by the traders or the persons who have undertaken to render service for consideration. If that is so, we have to take note of the amendment to the Act introduced by the Amendment Act of 2002 and also we cannot ignore the said amendment which came into force during the pendency of these proceedings, so as to see that the Legal Representatives of the person who are subjected to exploitation are not deprived of the relief to which they are entitled in law. Therefore, even assuming that the Amendment Act of 2002 is prospective, still even in the absence of such Amendment, we are of the view that under the General Law the complainants are entitled to maintain an action under the Act. Hence, we are of the considered view that the complaint filed by the complainants is maintainable.

Point No. 2 : The learned Counsel appearing for the complainants submitted that cause of action arose to the complainants by purchasing the gas contained in the cylinder along with the stove, rubber tube and other accessories from O.P. No. 2. O.P. No. 2 in its version has denied the purchase of rubber tube from it. Immediately after the accident, O.P. No. 1 referred the matter for investigation and to submit a report to the L.P.G. The L.P.G. submitted its report and the said report has been produced in this case. The report, inter alia, states as follows: ".......Smt. Vijayamma wife of B.K. Raju has taken the gas connection under the "Tatkal" Scheme on 26.5.1997 from our LPG Distributor M/s. Krishnan Gas Agency, BDA Complex, Vijayanagar, Bangalore-72 with a Consumer No. 611828. She has been provided with two cylinders, regulator and a rubber tube. From the above data, it is noticed that the rubber tube is very old and has expired its shelf life."

From the said report it is seen that O.P. No. 2 has supplied two cylinders, one regulator and one rubber tube under the "Tatkal" Scheme on 26.5.1997. The accident took place on 15.3.1999, i.e., almost after 1 year and 10 months. The learned Counsel for the O.Ps. submitted that before providing the gas connection, the O.Ps. are required to provide a Regulator and a rubber tube with specified Trade Mark and ISI Mark along with a cylinder. From this it is seen that O.P. No. 1 has a control over O.P. No. 2 in the matter of providing gas connections. If O.P. No. 2 fails to supply the articles of a specified trade mark or ''ISI'' mark, then there would be a "Deficiency in Service" on the part of the O.Ps. It is not in dispute that O.P. No. 2 is the Agent of O.P. No. 1. Subsequent to the report obtained by O.P. No. 1, it is seen the matter was referred to the LPG Equipment Research Centre. The report has been marked as Exhibit ''R-1''. Para 4 of the said report relates to rubber tube, which reads thus: "Manufacturer''s identification, manufacturing date and ISI marking are not available." As per the report referred to above, the gas connection was provided on 26.5.1997 along with the rubber tube. The rubber tube as per the report does not contain ''ISI'' mark. That means O.P. No. 2 has supplied a sub-standard Rubber tube to the complainants. Further, since the purchase was about 1 year and 10 months old as on the date of the accident, it cannot be said that the rubber tube was found to be deteriorated due to aging, in the absence of any evidence adduced by the O.Ps. regarding the life of the rubber tube. Under the heading "Rubber Tube", it has been stated in the report as follows: "It has developed severe cracks at the nozzle end of the hot plate. As reported in the "LPG Accident Report" dated 17.3.1999, the leakage is possible due to the cracks in the rubber tube." The nozzle end is fixed on the top of the cylinder. The said nozzle has been provided for passing gas from the cylinder to the stove through a rubber tube. If the nozzle at the end of the hot plate develops cracks, necessarily nozzle being a part of cylinder, the cylinder itself is defective. The Rubber Tube as stated earlier is supplied by O.P. No. 2. The said rubber tube did not contain an ''ISI'' mark. Hence it is clear that O.P. No. 2 has not followed the directions issued by O.P. No. 1 in supplying the accessories. Ultimately, the leakage is due to the cracks at the nozzle end and also due to the cracks in the rubber tube. Had the O.Ps. supplied the rubber tube of required standard and had checked the nozzle end, there would not have been any damage to the persons and the property. Further, in order to prove that the accident occurred only due to the cracks in the rubber tube, the O.Ps. have not filed any affidavits of the authors of the reports. From all these facts, we are of the view that there is a "deficiency in service" on the part of the O.Ps. in not supplying the proper cylinder and its accessories, which resulted in causing damage to the persons and the property.

THE learned Counsel appearing for O.P. No. 2 submitted that the spreading of the fire in the house was due to the negligence in lighting the fire wood stove by pouring kerosene by Smt. Vijayamma that too after having smelt the smell of gas and, therefore, the complainants are not entitled for compensation. Late Sri Raju was working as a Class IV servant. His wife Smt. Vijayamma, in all probability, was an illiterate lady and she did not have any worldly knowledge. THE O.Ps. have also not produced any evidence to show that they have instructed the consumer regarding the manner of use of the gas. Further, if there was no leakage of gas from the cylinder, there could not have been any scope for spreading of fire in the house, assuming that Smt. Vijayamma lit the firewood stove in order to boil water. All consequences happened due to the leakage of gas from the cylinder. THErefore, it is not possible to accept the contention of the learned Counsel appearing for O.P. No. 2 that the O.Ps. are not liable to pay compensation on the ground of negligence, if any, stated to have been contributed by Smt. Vijayamma, who also died due to the accident. Hence, the O.Ps. are jointly and severally liable to pay damages to the complainants. From the averments in the complaint it is seen that late Sri B.K. Raju, his wife, his three children and his mother died due to the fire accident referred to above. In support of this, the complainants have produced the Death Certificates of the persons who died in the said accident along with the complaint, which are marked as Exhibits CW-1 to CW-5. The complainants have also produced certain photographs to show the extent of damage caused to the articles kept in the house. The fact of death of five persons and the damage caused to the articles kept in the house is not seriously disputed by the O.Ps. Taking into consideration the fact that the fire accident resulted in taking away the life of five persons and has caused severe damage to the articles kept in the house, we are of the view that awarding a sum of Rs. 5,00,000 as compensation to the complainants would meet the ends of justice.

ACCORDINGLY, we pass the following order: (1) The complaint is allowed in part. (2) The O.Ps. are directed to pay jointly and severally Rs. 5,00,000 as compensation to the complainants within two months from today. (3) In the event if the O.Ps. fail to pay the amount to the complainants as directed above, the O.Ps. are liable to pay interest at 12% per annum on the amount of Rs. 5,00,000 from the date of the complaint till realization. (4) The O.Ps. are also directed to pay Rs. 5,000 to the complainants towards costs of these proceedings.

Complaint partly allowed.