Shivam Gas Service vs CHANDRA KALI

THIS appeal has been filed under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the Act) against judgment and order dated 13.1.1998 passed by District Consumer Forum, Bareilly in Complaint Case No. 390 of 1994.

THE facts of the case are that the husband of the complainant, namely Ram Prasad @ Gaya Prasad had obtained domestic gas connection from the office of the appellant having Consumer No. 602529. The complainants husband had purchased a gas cylinder from the appellant on 30.3.1994 which was kept in the room and on 30.3.1994 at about 7.30 p.m. when the son of the complainant tried to burn the candle and put the match over it, all of a sudden it caught fire and the roof and the house of the complainant became damaged and the son and husband of the complainant received burn injury in the said incident. Further they were admitted in the hospital and the complaint was filed on the ground of deficiency in service on the part of respondents. Complainant prayed for a compensation of Rs. 4,08,000. In the written statement opposite party No. 1 stated that the District Forum has no jurisdiction to try and entertain the complaint as per the facts stated therein and the complainant is not entitled for any of the reliefs claimed. It was further alleged that the complainant is not the widow of Ram Prasad @ Gaya Prasad as Ram Prasad is distinct person and not the one person and, therefore, the maintainability of the complaint was also challenged. It was also stated that the agency of the opposite party No. 1/appellant is duly insured with the National Insurance Company and, therefore, the liability to pay any compensation is of the insurance company.

AFTER perusing the evidence on record and hearing submissions of the parties concerned, the District Forum passed the impugned order.

AGGRIEVED the opposite party No. 1 has come in appeal and has challenged the order passed by the District Forum. We have heard Mr. A.K.I. Ahmed, learned Counsel for the appellant and Mr. Isar Husain, learned Counsel for the respondent and have perused record as well as the affidavits and counter affidavits filed in the instant case.

IN support of the appeal, it was argued by the learned Counsel for the appellant that since the judgement in the instant case is the result of exercise of discretion based on bias, it is no judgment in the eye of law. It was also submitted that the President was on friendly terms and he took a loan of Rs. lac from the appellant for construction of his house at Lucknow and since on demand it was not repaid, the appellant had to suffer adverse consequence in the shape of this order. We are not in agreement with this argument for the reason that the plea of bias is not based on reliable material, such argument contrary is worthy of no credence and such allegation is devoid of any substance.

IT was then contended that the complainant is not a genuine person and she is not the widow of one of the deceased. From the evidence filed by the complainant it is clear that she has specifically stated in the complaint that her husbands name is Ram Prasad @ Gaya Prasad or Gaya Prasad @ Ram Prasad and it is he who died in the aforesaid accident. This statement is also in the shape of an affidavit. Besides affidavit of the complainant, there is the neighbour Chandra Pals affidavit. Over and above there is an affidavit of one Smt. Ganga Devi, who is the sister of wife of the deceased who has specifically stated that she is Nanad of the complainant and the complainant was married to her brother Ram Prasad @ Gaya Prasad. Even there is an evidence in the shape of a certificate issued by Sri Krishna Pal, UP Pradhan, certifying that Ram Prasad @ Gaya Prasad is one and the same person. Thus, the complainant has led satisfactory evidence in this regard to prove that she happens to be the widow of deceased Ram Prasad. In rebuttal the appellant has not led any conclusive evidence so as to sustain his claim and discredit the documentary evidence filed in this regard by the complainant. Thus, the contrary argument raised by Mr. Ahmed is of no avail. Mr. Ahmed then contended that the carrying on the business of supplying gas cylinders was comprehensively insured and the District Forum should not have ordered fixing individual responsibility on the appellant. We are not in possession with the terms and conditions of the insurance. Even no material has been furnished certifying that the loss occasioned to the defective gas cylinders was subject matter of indemnification by the National Insurance Company. Even if it is accepted, as argued, the appellant cannot escape his responsibility of payment. However, it is made clear that in case the loss occasioned on account of damage to gas cylinders was subject matter of insurance and the risk was covered, it will be the option of the appellant to recover the amount of compensation on the strength of the contract from National Insurance Company according to the procedure established by law.

IT was further argued by Mr. Ahmed that there is no material available on record to sustain a finding that the pin attached with the cylinder causing accident was defective. This argument in view of the own report of the appellant dated 8.4.1994 stands nullified. Report dated 8.4.1994 is addressed as Panchnama by the appellant which clearly shows that the gas cylinder, after the accident, was found empty at the spot and its upper portion was blackish, cylinders pin was pressed and suppressed, knob and nostle was a bit burnt and the pin was not working properly and there was no rubber tube. These observations speak a volume about the defect in the cylinder. Merely on certain variation in the dates of supply of the cylinder the complaint cannot be discarded. We concur with the findings of the learned District Forum that the cylinder in question which subsequently caused damage to the house, resulting into death of husband and son of the complainant, was defectively supplied and it is clear case of deficiency in service. The occurrence is gruesome and the carelessness is apparent.

THEN it was submitted by Mr. Ahmed that the compensation so awarded is very excessive. We too are of the same view. There is no material as to what was the valuation of the house when it was damaged and upto what extent it was damaged. There are also no evidences with regard to the quality and quantity of the same and cost of the house -hold items. We are left only to have a global assessment on these two counts. On these two scores we can award only upto Rs. 50,000. A sum of Rs. 50,000 has been granted towards loss of life and affection of husband and son and simultaneously Rs. 50,000 has been claimed for the loss of consortium. The complainant has stated that her husband was aged about 35 years although no age proof has been given. Accepting even it is true, on this score of loss of consortium, in our view, only Rs. 25,000 would have been appropriate to be awarded. Compensation for the loss of love and affection for son can be assessed to be Rs. 25,000. We assess in the absence of other supporting material that a sum of Rs. 1 lac would be sufficient to compensate for the loss of husband and child. Thus, the total compensation which should be awarded could be Rs. 2 lac. In the circumstances we are not inclined to grant 12% interest which can be substituted that in case the payment is not made within three months hence forth, the complainant would be entitled to charge interest at the rate of 9% per annum from the date of the complaint. ORDER The appeal is allowed in part. Complaint succeeds for Rs. 2 lacs payable within three months by the appellant and in case of non -payment within three months the complainant would be entitled to charge interest at the rate of 9% per annum from the date of complaint till the date of payment. As per discussion in the body of the judgment, it will be open for the appellant to take such steps as are legally available for getting the insurance money, should the insurance has been really done and was valid. In the circumstances parties are directed to bear their cost of proceedings. Appeal partly allowed.