SHUSHILA DEVI vs N K COOKING GAS AGENCY & ORS

The complainant / petitioner, who was an LPG consumer of Hindustan Petroleum Company Limited, purchased a refill of the LPG cylinder from respondent No.1 M/s. N.K. Cooking Gas Agency on 29.3.2000, paying a sum of Rs.158.40. The case of the petitioner / complainant is that when she lighted the gas stove at about 10.15 a.m. on the same date, a fire broke out, as a result of which her saree caught fire and a number of articles in her house were damaged. The claim lodged by the complainant for the reimbursement of the loss sustained by her however, was refused by the LPG dealer, oil marketing company namely Hindustan Petroleum Corporation Ltd. as well as the Oriental Insurance Company from which respondent No.1 is alleged to have taken an insurance policy. Being aggrieved, the complainant approached the concerned District Forum by way of a complaint, impleading the LPG distributor, Hindustan Petroleum as well as the Oriental Insurance Company as the opposite parties in the complaint.

The complaint was resisted by all the opposite parties. Respondent No.1, alleged in the reply filed before the District Forum that the cylinder containing LPG was supplied to the complainant after its seal was broken and it was tested to rule out any defect and therefore was in a perfect condition and without any defect when it was delivered to her. It was further stated in the said reply that the alleged defective cylinder was not made available to the LPG distributor and the incident of fire might have happened either in transit or due to improper operation and mishandling of the LPG cylinder at the time it was used in the house of the complainant. The Hindustan Petroleum Corporation Ltd. filed a reply, stating therein that in case of any damage or injury to any person or property, the LPG dealer, by virtue of a contract between him and the company, is liable to indemnify the company. It was also stated in the reply that the LPG dealer had taken a LPG Trader''s policy from Oriental Insurance Company, which provided for payment of compensation in a case of death, injury or damage to property caused by or arising from the installation of LPG cylinder in the premises of the customers or while such cylinders are carried to the premises of the customer for the purpose of installation. The insurance company also denied any liability to reimburse the complainant for the loss sustained by her.

The District Forum vide its order 02.11.2013 directed only the LPG dealer M/s. N.K. Cooking Gas Agency to pay a sum of Rs.1,38,500/- to the complainant, along with interest @ 9% per annum. The said dealer was also directed to pay Rs.2,000/- as compensation and Rs.500/- as the cost of the litigation to the complainant. It was held by the District Forum that the Gas dealer could claim the aforesaid amount from the insurance company.

Being aggrieved from the order passed by the District Forum, M/s. N.K. Cooking Gas Agency preferred an appeal before the concerned State Commission. The State Commission vide order dated 23.11.2015, set aside the order passed by the District Forum. Being aggrieved the complainant / petitioner is before this Commission by way of this revision petition.

The first question which arises for consideration in this case is as to whether there was any defect in the cylinder delivered to the complainant by the LPG dealer on 29.3.2000. There is absolutely no evidence of the said cylinder being defective. No technical evidence was produced by the complainant / petitioner before the District Forum to prove defect in the said cylinder. In fact, even the alleged defective cylinder was not produced before the District Forum with a request to send it for obtaining mechanical opinion as to whether it was defective or not. Since the complainant chose to take delivery of the cylinder from the LPG dealer and install it herself, the onus was upon her to prove that there was a defect in the cylinder supplied to her. Having not produced any such evidence, she failed to discharge the onus placed upon her. It was submitted by the learned counsel for the petitioner / complainant that since intimation of the incident had been given to the LPG dealer as well as the HPCL, the onus was upon them to send the cylinder for mechanical examination. I however, find no merit in the contention. The letter sent by the complainant to the petitioner on 07.4.2000, she did not even allege any defect in the cylinder while intimating the incident of fire to the said agency. No request was made in the aforesaid letter for a mechanical inspection of the LPG cylinder delivered to the complainant. At no stage the complainant sought to hand over the alleged defective gas cylinder to opposite party No.1 for the purpose of getting the same mechanically inspected. Therefore, I am unable to accept the contention that it was for LPG distributor to request the complainant to make the LPG cylinder available to it for the purpose of enabling it to send the same for mechanical inspection.

It has to be kept in mind that the complainant / petitioner chose to obtain delivery of the LPG cylinder from the dealer and install it herself, instead of asking the representative of the LPG dealer to install the same at her resident. She therefore, knowingly took the risk of handling the LPG cylinder of her own. The possibility of the fire having broken out on account of improper installation or operation of the LPG cylinder, cannot be all together ruled out in such circumstances and in fact is a distinct possibility. The aforesaid circumstance becomes important when viewed in the light of the fact that no attempt was made by the complainant to get the said LPG cylinder inspected by a technical expert. Therefore, I am in agreement with the State Commission that no case of the deficiency on the part of respondent No.1 M/s. N.K. Cooking Gas Agency in rendering services to the complainant / petitioner is made out.

As far as the liability of the insurer is concerned, the complainant did not challenge the order of the District Forum to the extent relief was granted to her only against the LPG dealer but was declined against the HPCL as well as the insurance company. Moreover, reference to the term of the insurance policy, as reproduced in the reply filed by HPCL clearly shows that the said policy required the insurer to reimburse only in a case where death or injury to a person or damage to the property was caused, either during transportation of the LPG cylinder or from the premises of the dealer to the premises of the consumer or during the process of installation by the representative of the LPG dealer. The said insurance policy did not cover damage to the property of the consumer, on account of fire breaking out at the time the consumer himself is installing the LPG cylinder in his house. Therefore, respondent No.1 cannot make payment to the complainant and then take reimbursement from the insurance company.

For the reasons stated hereinabove, I find no ground to interfere with the order passed by the State Commission. The revision petition is accordingly dismissed.