SHIVANI SHEKHAR PARELKAR vs Bharat Petroleum Corporation Ltd

THE complainant approached this Commission in this consumer dispute alleging sale of a defective Gas Cylinder by the opposite parties 1 and 2 as well as deficiency in the service of all the three opposite parties.

THE brief facts of this complaint are as under:- Admittedly the complainant has been a consumer of LPG Gas Services, having Consumer No. AW-17728 rendered by 1st opposite party-Bharat Petroleum Corporation through their local dealer, the 2nd opposite party. Quick Gas Service. Admittedly on 6,11.1991 at about 6.45 a.m. there was accident at the residence of the complainant on account of the LPG Gas and in that accident complainant''s husband Shekhar, aged about 45 and complainant''s only son Gautam aged 12 years suffered burn injuries and subsequently died at Nanavati Hospital, Bombay. Complainant also suffered burn injuries. The complainant alleged in this complaint that the services of the opposite parties 1 and 2 were grossly deficient and negligent.

The incident occurred at about 6.45 a.m. when Shekhar got up in the morning at 6.45 a.m. and went in the kitchen to light the cooking range with an electric lighter. Since the lighter was not properly working, Shekhar used the match box. The moment, the match stick was ignited suddenly there was a flash fire and he was engulfed with the flames. He screamed and rushed to the bed-room. At that moment he heard the loud explosion. As a result of explosion a glass pane of window broke. The fire spread in that bed room where Mrs. Paralkar and her son Gautam were coming out after hearing the explosion. They were also caught in the flames and suffered the burn injuries. Then the neighbourers rush at the site and the injured were taken to the Hospital Nanavati at Vile Parle. In the meantime, the fire brigade was summoned, who attended the spot of accident. The incident was also reported to Oshiwara Police Station at 8.20 a.m. The police conducted investigation and made spot panchanama. The statements of the witnesses were recorded by police. However, on 8.11.91, Shekhar died. On 11.11.91 Gautam died due to burn injuries. On the aforesaid premises the complainant alleged that the Gas Cylinder supplied by second opposite party on the previous day evening was defective inasmuch as it was leaking and as a result of leakage the incident in question occurred. According to complainant the manufacture of the bottling of the cylinder supplied to complainant on 5.11.91 was defective having leakage through regulator. Since it was a mal functioning. The complainant alleged that she suffered injuries on her fingers due to fire and she lost her husband and the only son in the accident of fire due to the accident of Gas Cylinder. The complainant, therefore, claimed Rs. 12,00,000/- towards the compensation on account of the death of her husband, Rs. 4,00,000/- on account of the death of her son Gautam. She also claimed Rs. 3,00,000/- for the injuries suffer to her and Rs. 10,000/- towards the costs.

THE opposite parties filed their written version separately, and denied the allegations as regards the defects of LPG Cylinder and the regulator; and also denied their liability about the payment of compensation. According to the opposite parties, the complainant''s husband Shekhar did not take due precaution before the lighting the gas. THE main defence of the opposite parties Nos. 1 and 2 is that the complainant had two gas connections. One from HPCL and another from BPCL and was having only one rubber tube attached to the cylinder and the stove. It is the case of opposite parties Nos. 1 and 2 that HPCL and BPCL is supplied different types of tubes to the consumers. If only one tube is used for the two gas cylinders, then there is a likelihood of leakage of gas and, therefore, the negligence if any is referrable to the complainant''s husband and not to the opposite parties. THErefore, the following question arise for our consideration:- Whether the services of the opposite parties were deficient in any manner ? The complainants were represented initially by Shri Shirish Deshpande and thereafter by Shri Patki. The opposite party was represented by Shri Palkhivala, Advocate and O.P. 2 was represented by Shri Iqbal Yusuf, Advocate. O.P. No. 3 was represented by Shri Chaphekar, Advocate. Both the parties filed their documents. The arguments of the learned Advocates appearing for the parties were elaborately heard.

THERE are certain admitted facts. The complainant was having a gas connection of the LPG manufactured by Bharat Petroleum Corporation through Quick Gas Service. Second opposite party is the Distributer. It is also admitted fact that the fresh Gas Cylinder was already delivered to the complainant no which was installed on 5.11.91 in the evening. It is also an admitted fact that there was incident of fire in complainant''s house and as a result of that complainant''s husband Shekhar died and her son Gautam also died due to the burn injuries. It is also an admitted fact that fire brigade attended the incident of fire and the incident was reported to the police of Oshivara Police Station and it was investigated through the police. It is also admitted that 3rd opposite party, New India Assurance Company has provided insurance cover to O.P. No. 2. It is also admitted fact that the cylinder in question along with its accessories viz. the rubber tube were seized by the police and are still in the possession of the police. The entire dispute revolves around the question whether the accident is referrable to the defective Gas Cylinder and the rubber tube attached to the Gas Cylinder and the cooking stove. In para 11 of the complaint, the complainant alleged that opposite parties Nos. 1 and 2 supplied defective cylinder or the regulator or both because of which the gas escaped and caused the unfortunate accident. The incidence of fire is not in dispute. The complainant further alleged in para 12 of the complaint that the gas leaked through the regulator. It is therefore averred that the gas escaped due to leakage either through the regulator or through the mal-functioning of the assembly of the cylinder. In any case, the cause of fire is the leakage of gas through the cylinder stored in the complainant''s house. This allegation of the complainant finds support from the investigation of the police. The incident was reported to police on 6.11.1991. A copy of the Station Diary from Oshivara Police Station is placed on record at Ex. ''A''. It is clearly mentioned therein that on 6.11.91, in building "Safalya", there was an explosion of gas and three people were injured. It is also stated that the accident took place because of the leakage of gas. It is also mentioned in the document that from the place of incident, two gas cylinders tube and half burnt clothes were seized by the police. After the investigation, the conclusion of the investigation by the police is that the incident occurred because of the gas leakage. There is also on record statement of Shekhar Dattatraya recorded before his death. In his statement Shekhar has stated that the accident was caused due to leakage of gas. There is also a spot panchanama at Ex. A (3) in which there is a mention of seizer of two gas cylinders regulator and rubber tube and the half burnt clothes. There is also at Ex. G, a report from Bombay Fire Brigade dated 21.2.92 in which the suspected cause of fire is leaking of L.P. Gas of Bharat Petroleum from the regulator is mentioned. Further the allegations of complaint are supported by the evidence on record from the affidavit of complainant Shivani dated 5.7.1993. She also clearly stated that the accident occurred due to the leakage of the gas. She also stated that on the previous evening of the date of accident i.e., on 5.11.1991, the BPCL Cylinder supplied by Quick Gas Service was attached with the rubber tube to the gas stove. Thus she has stated that she was also having HPCL, LPG connection which was exhausted on 5.11.91 and, therefore, BPCL cylinder was put to use on the date of incident. The fact that BPCL cylinder was supplied to the complainant by second opponent is not in dispute. It is, therefore, conclusively proved that the incident occurred due to the leakage of gas from the Cylinder supplied by BPCL either through the Cylinder or due to leakage through the rubber tube. The Opposite Parties 1 and 2 adopted identical defence. If is the defence of opposite parties 1 and 2 that rubber tubes of different diameters are required to be used for BPCL Cylinders and HPCL Cylinders. The dia-meter of the hole in the tube is different in the rubber tubes made for these two Gas Cylinders. Apart from the lengthy arguments on this point, we were also shown the demonstration in front of the Commission premises in the open. It is, therefore, strenuously argued by Yusuf Iqbal, the learned Advocate appearing for O.P. No. 2 that the complainant might have used the tube meant for HPCL which is of a short diameter in hole than the BPCL rubber tube and, therefore, the gas must have escaped and therefore it is the negligence in the use of the rubber tube by the complainant and negligence cannot be attributed to the manufacturer or the dealer of the BPCL Gas. The argument appears to be attractive. However, it is merely an argument. The rubber tube was seized by the police and is still in the possession of the police as is clear from the record. However, no efforts were made by the opposite parties to call that rubber tube from the police for demonstration. We do not know whether the tube seized by the police was the tube which was used and whether the same tube has a short dia-meter than the one which is used for BPCL rubber tube. One has to take into consideration that there was a blast and the tube must have been mutilated damaged to some extent in the blast. Therefore, unless the rubber tube is shown to have a short dia-meter which is alleged to be used by the complainant, the ingeneous arguments by the learned Advocate for the opposite party does not hold any water. We further find that when a specific defence has been adopted by the opposite parties, they invited the burden to prove its defence and the reasonable doubt as regards the rubber tube should have been removed. No efforts are made at all by the opposite parties to substantiate its defence as regards the rubber tube.

THERE is yet another circumstance which militates against the opposite parties. It is admitted in written version by O.P. 2 that the regulator of complainant was replaced after the incident of accident. According to complainant old regulator was defective. THEREfore, during the course of the proceedings of this complaint, an application was made by complainant for a direction to the Opp. Parties 1 & 2 to keep the record of pressure regulator and other parts issued to the different consumers from their shop. It was also prayed that the register dated 30.1.92 having Code No. 1, 2 and 3 be produced before the Commission on 11.3.94. However, no compliance was made by the opposite party. Neither such registers were placed before this Commission nor the copy was placed on record. The complainant, therefore, filed another application under Rule 10 of the Consumer Protection Rules, 1987 of the Central Government to seize those documents and to produce them before this Commission during the case through the Authorised Officer. Accordingly, this Commission had directed the Police Station of D.N. Nagar, Andheri to make entry and search of the premises of the O.P. No. 2 to seize the register in which the entries are made when the pressure regulators are replaced and other items supplied to the consumers. It was also directed that the copy of the concerned entry dated 30.1.1992 be placed before this Commission for perusal. This Commission felt it necessary to verify the claim of complainant as regards the supply of accessories and hence the provisions under Rule 10 were invoked since Opposite Party No. 2 failed to place on record the relevant documents despite notice to do so. Shri Shirish Deshpande who was representing the complainant accompanied the local police to the business premises of Opposite Party No. 2 at the time of search, the employee of O.P. 2 admitted before the police the existence of the said register. But it was not made available to police for seizure and consequently, It could not be produced. Shri Deshpande filed an affidavit in support of his finding at the time of seizer. It is, therefore, clear that O.P. 2 avoided to make that register available. From these circumstances, it is evident that the opposite party No. 2 any-how wanted to suppress the material evidence. From the chain of circumstances, it is very apparent that despite the repeated directions from this Commission and despite the direction to search the premises of opposite party No. 2, the register of issue of regulators and other accessories in possession of opposite party No. 2 were not produced for the perusal of this Commission. Thus, the Opp. Party 2 failed to prove their contention about the rubber tube having different diameters and also intentionally suppressed the truth about he issue of accessories to complainant. Thus, there is enough material on record to show that the opposite parties Nos. 1 and 2 tried their level best to suppress the truth. Since those documents are in custody of opposite party No. 2 the failure on the part of the O.P. No. 2 to produce it we have to draw the adverse inference against the O.P. No. 2 for the suppression of material facts from this Commission with ulterior motive.

NO appreciable evidence has been put before this Commission by opposite parties NOs. 1 and 2 to demolish the fact that accident of fire has nothing to do with the Gas Cylinder in question. On the contrary, there is a wealth of material on record to indicate that the accident occurred due to the leakage of gas through regulator of Gas Cylinder and as a result of explosion, the husband and the only son of complainant died causing burn injuries to her also. On behalf of the O.P. 1 and 2 identical defence was raised before this Commission. It is contended by the opposite parties that the complaint is vexatious and there is no cause of action to file the complaint. The complaint is certainly not vexatious since it is undisputedly a fact that the complainant has been the consumer of gas service of O.P. Nos. 1 and 2. The complainant alleged a defect in the cylinder and the regulator as a result of which two lives were lost and the complainant also suffered burn injuries on her body. Thus, there is a cause of action for the complainant to file this complaint on the allegations of deficiencies in service and sale of defective goods complainant alleged loss and injury as a result of defective sale of goods. The Gas Cylinder is a goods sold to complainant manufactured by O.P. No. 1 through O.P. No. 2.

Another contention raised by the opposite party is that there is complicated questions of law and facts and, therefore, the matter should be referred to the Civil Court. In our view, this submission is not correct inasmuch as there is no complicated question of fact since the manufacturer of the Gas Cylinder and the availing its services by complainant is an admitted fact by O.P. Nos. 1 and 2. The next technical question is about the limitation. It is alleged that the complaint is barred by limitation. The late of accident is 6.11.91 and the complaint was filed on 5.7.1993. It is less than three years period from the cause of action. We fail to understand as to how the complaint is barred by limitation. Thus, in our view, there is no substance in this contention of the opposite parties. The opposite parties also tried to explain that the gas has a particular odour and stated that Shekhar should have saddled to have smelt the odour of the gas before lighting. It is also contended that adequate instructions are given to the consumers to avoid accidents from cooking gas. Therefore, the submission of the opposite parties 1 and 2 is that the complainant has failed to prove her allegations and the complaint be dismissed.

O.P. No. 3 is the Insurance Company who issued insurance cover to the O.P. No. 2. According to the 0.P. No. 3, there was no privity of contract between the complainant and O.P. No. 3 and, therefore, O.P. No. 3 is not liable for payment of compensation. It is also submitted by O.P. No. 3 that no risk was covered under the Insurance Policy in question as regards the damage caused in accident in question. O.P. No. 3 denied that O.P. 2 were ever negligent. It is found from the record that the 3rd O.P. paid a total amount of Rs. 33,750/- to the complainant towards no fault claim. The break up of the claim is Rs. 15000/- each for the death of Shekhar and Gautam and Rs. 3,750/- to complainant having suffered burn injuries. We fail to understand when the 3rd opposite party made the aforesaid payment to the complainant it does not lie in its mouth to say that the insurance cover policy do not cover the incident in question.

WE find that the allegations made by the complainant are satisfactorily proved and it is further proved that the accident in question was caused due to the defective sale of cylinder and regulator to the complainant. The loss caused to the complainant of her husband and the only child is also proved. The complainant also suffered injuries on her body. Under these circumstances there is only one inference i.e., the accident arose due to the leakage of gas either through the cylinder from the defective nozzle area or through the defective regulator. When there is undisputed evidence on record to show that the accident occurred due to the leakage of gas the irresistible conclusion is that the gas escaped either of the aforesaid two places. If the defence of O.P. 1 and 2 is accepted that there was no leakage either in the cylinder or the regulator, there was no reason for the gas to accumulate in the flat of the complainant so as to cause the explosion. The incident of damage caused due to the explosion which engulfed the entire flat in fire the suggestive of the fact that sufficient amount of quantity of gas must have been accumulated during the night. In that case, the gas must have escaped from the aforesaid two places identified by us. It is, therefore, obvious that unless the Gas Cylinder or the regulator is defective, there could not be any route for the gas to come out of the Cylinder. Therefore, the facts and circumstances which led to the accident is referrable to the O.P. Nos. 1 and 2 for defective bottling of gas and also the defective Cylinder and also due to the defective regulator. Thus, the opposite party Nos. 1 and 2 stand clearly implicated in the act of deficiency in the service and defective sale of Gas Cylinder or regulator to the complainant. The loss caused to the complainant is apparent and, therefore, the complainant is entitled to claim the compensation for the loss and injury suffered by her on account of the incident in question. In the case of Mrs. Neha Parilika v. Bharat Petroleum Corporation (Complaint No. 114/92 dt. 23.6.93) this Commission under similar facts had to draw adverse inference against the BPCL for not producing the documents which were required for the just decision of the case. In that case also, the insurance cover was provided by the Insurance Company to the local dealer. In fact, the opposite Party No. 3, the Insurance Company is liable to settle the claim of O.P. No. 2 arising out of the incident in question and the O.P. 2 can very well compensate the complainant out of the claim amount. However, in the instant case, we find that the Opposite Party No. 3. Insurance Company for unjustifiable reasons is completely identifying the cause of O.P. No. 2. Although there is no contractual relationship between the complainant and the O.P. No. 3, it has been impleaded in case, the complainant succeeds and the O.P. No! 2 is required to pay the compensation to complainant. In fact, it is the duty of the O.P. No. 2 to persue the claim out of the incident in question with the O.P. No. 3. But it is very apparent from the pleadings that all the opposite parties are acting in collusion to deny the legitimate claim of complainant. It fact, it is none of the duty of the O.P. No. 3 to take up the cause of O.P. No. 2. Yet, we find that O.P. No. 3 opposed the complainant''s claim as if O.P. No. 3 is principally liable for the deficiency in this case. We also find that O.P. No. 2 all the while tried to suppress the material evidence from this Commission. We are, therefore; satisfied that the complainant has proved her allegations and deserves the award of compensation for the loss and injury. The complainant has claimed Rs. 4,00,000/- on account of the death of her husband Shekhar in the accident. The complainant is rendered as widow in the incident and lost her consortium. She also lost her male child who could be the support to the complainant in her later life.

FOR the aforesaid reasons, in our view, it would meet the ends of justice if the complainant is awarded Rs. 5,00,000/- on account of the death of her husband Shekhar as against her claim of Rs. 12,00,000/-. We further award Rs. 2,00,000/- for the death of Gautam the only son as against the claim of Rs. 4,00,000/-. So far as the claim of complainant for her own injuries of Rs. 3,00,000/-, we would like to award her Rs. 50,000/- for the injuries suffered by her in the accident. Thus we award the total amount of Rs. 7,50,000/- out of which Rs. 33,750/- should be deducted towards the receipt of payment of no fault claim already paid by Opposite Party No. 3. Hence, we pass the following order:- ORDER

THE complaint is allowed. THE O.P. Nos. 1 & 2 shall jointly and severally pay the total amount of Rs. 7,50,000/- (minus) - Rs. 33,750/- = Rs. 7,16,250/- towards the compensation within 30 days from the receipt of this order failing which the aforesaid amount shall carry interest at the rate of 18% p.a. till realisation. THE complainant be also paid Rs. 1000/- towards the costs. Complaint allowed with costs.