SRINIVASA ENTERPRISES vs Md Aneesuddin

COMMON order passed in both the appeals as both the appeals arise out of the same order passed by the District Forum -I, Hyderabad.

F .A. No. 849/2002 is filed by the opposite party No. 2 against the orders dated 23.10.2001 in C.D. 1149/1999. F.A. No. 359/2003 is filed by the opposite party No. 1 against the orders dated 23.10.2001 in C.D. No. 1149/2001 under Section 15 of the Consumer Protection Act, 1986. The facts leading to the filing of this appeal are set out as hereunder:

THE complainants father is having liquid petroleum gas connection which was sanctioned in the year 1997. After the death of his father the complainant has been using the said gas connection. On 31.8.1999 at about 6.35 p.m. gas has leaked out from the cylinder and the cylinder has got fire and bursted due to lack of washer to the cylinder. Immediately complainant brought the same to the notice of the authorised emergency mechanic of the opposite party No. 1. Due to heavy fire broke -out damages are caused to the household articles like (1) refrigerator, (2) grinders, (3) grinders (brown), (4) cooking range, (5) kitchen utensils, (6) cooker, (7) hot pots, (8), flasks, (9) water filter, (10) ceiling fan, and (11) electricity of the building. The complainant also gave complaint to the police who registered a case. The opposite party No. 1 is the manufacturer and the opposite party No. 2 is the dealer who supplied the gas cylinder to the complainant. The complainant made a claim of Rs. 39,000 towards value of the household articles and Rs. 8,000 towards colouring the doors and rooms and compensation of Rs. 1,50,000. As the opposite parties failed to settle the claim, the complainant approached the District Forum for appropriate relief.

THE opposite party No. 1 filed counter contending that the complainant taken delivery of filled cylinder on 20.8.1999. The accident alleged to have occurred on 31.8.1999. There was no leakage of the cylinder. The accident was not occurred due to the absence of rubber washer in the valve of the cylinder. There is no deficiency of service on the part of the opposite party No. 1 and the complaint is liable to be dismissed. The opposite party No. 2 filed counter contending that if there is any defect in the cylinder there would have been leakage from the date of delivery and the same would have been attended by the opposite party. The complainant used the cylinder for 12 days without any complaint/problem. The liquid petroleum gas is highly volatile and if there is any leakage or defect in the cylinder the same can be easily detected and further the gas cannot be retained in the cylinder for a period of 12 days in the event of leakage. There is no negligence and deficiency of service and the complaint is liable to be dismissed.

THE opposite party No. 3 an Insurance Company filed counter contending that the company will indemnify the insured for the event of the death of the insured and his legal representative against all sums, which the insured shall become legally liable to pay. The alleged accident did not take place during transit or in process of installation of refilled cylinder as such the opposite party is not liable to pay any amount. The complaint is liable to be dismissed.

BASING on the pleadings and Exs. A1 to A5 documents filed by the complainant and Exs. B1 to B5 filed by the opposite parties, the District Forum allowed the complaint against the opposite party Nos. 1 and 2 directing the opposite party Nos. 1 and 2 jointly and severally to pay Rs. 39,000 to the complainant along with compensation of Rs. 5,000 together with costs of Rs. 1,000 within one month from the date of the order. The complaint is dismissed against the opposite party No. 3. Aggrieved by that order the opposite party No. 1 filed F.A. No. 359/2003 and opposite party No. 2 F.A. No. 849/2003.

IT is argued that there was no defect at the time of delivery of the cylinder. If there is any leakage in the cylinder due to the absence of rubber washer, the opposite party No. 2 would have supplied another cylinder. He further contended that the complainant used the cylinder for 12 days that it would have been blasted on the day when it was used. It is argued for the opposite party No. 2 that third party insurance has been taken from opposite party No. 3 in order to save the consumer only the opposite party No. 3 Insurance Company is liable for any claim against the opposite party Nos. 1 and 2. It is argued for the opposite party No. 1 that the complainant failed to establish that LPG cylinder has no washer; the District Forum erred in relying on Ex. A1 report. The complainant failed to mention as to how the fire occurred and whether any cooking was taking place in the kitchen at the time of alleged fire. LPG cylinders are manufactured as per the quality stipulations of Indian Standard Code, IS:3196 Parts -I and III, in the state of the art technology machines under the supervision of the Bureau of Indian Standard officials and as per ISO 9002 and are also cleared by the Chief Controller of Explosives. There is a delay in lodging a complaint to the police. It is an after -thought to make pecuniary gains out of an accident. It is also argued for the opposite party No. 1 that dealer is liable to indemnify including third party claims arising from or in connection with any loss or injury to person or property in connection with any of the matters covered by the agreement. No warranty is given by the opposite party No. 1.

WE have gone through the entire record. Admittedly, the complainants father was given of LPG gas connection. The complainant has been availing that facility after the death of his father. The opposite party No. 2 is the dealer who supplies filled cylinder to the consumers, the service rendered by the opposite party is for consideration. Therefore, the complainant is a consumer. The dispute is a consumer dispute. It is established by the complainant that an accident took place on 31.8.1999 and the gas cylinder and regulator was burnt due to leakage of gas. Immediately after accident the complainant informed to the mechanic of opposite party No. 1. The contention of the opposite parties is that the accident occurred 12 days after the gas cylinder supplied by the opposite party No. 2 and, therefore, at the time of supply of cylinder there was no defect. Hence, the accident has not occurred on account of absence of rubber washer of the cylinder. In the counter opposite party No. 1 stated that the cylinder was delivered on 20.8.1999. There is no evidence that from 20.8.1999 the complainant has been using that cylinder. It is common knowledge for all the consumers that at the time of delivery a person appointed by the opposite party No. 2 would test the valve. No evidence placed by the opposite party No. 2 that the cylinder was tested in the presence of the complainant and it was delivered. The opposite party No. 2 did not file any affidavit of that person who actually delivered the cylinder to the complainant stating that he tested and the complainant satisfied. Sometimes cylinders were booked in advance and they will be used some day after its supply. Therefore, in the absence of any evidence it has been used from that day onwards, the contention of the opposite parties that complainant has been using it since 12 days is not tenable. The defect will be noticed only when there was a flame due to leakage of gas. It is established by the complainant that leakage of gas is due to absence of rubber washer. Ex. A1 is Emergency Cell Report dated 31.7.1999 wherein it is mentioned that there was no washer in S.C. type valve. A complaint was also given to the police Ex. A2 is the FIR registered by the P.S. Santoshnagar on 1.9.1999. The complainant also wrote Ex. A3 letter to the Managing Director, H.P. Gas, Secunderabad stating that on 30.8.1999 due to leakage of cylinder fire accident took place caused damage to the household articles. No investigation made by the opposite parties by appointing their own Surveyor. The complainant is cross -examined by the opposite party No. 2 wherein a suggestion is given to him that due to short circuit of electricity cylinder was bursted. No evidence is placed by the opposite party No. 2 to substantiate his contention. When the complainant alleges accident occurred on 30.8.1999 a suggestion given to the P.W. 1 in the cross -examination is that a cylinder was used on 20.8.1999 and the cylinder was bursted. There is no need to give false complaint on 30.8.1999 when the cylinder was bursted on 20.8.1999. It is established by the complainant that accident took place on 30.8.1999. The complainant also filed photographs, which show household articles were burnt in the fire accident. The opposite party relies on Ex. B1 and contended that absence of rubber washer is noticeable as soon as safety cap is removed and also it profusely leaks when the regulator is being fixed. Affidavit of Sri S.R. Subramaniyan who gave Ex. B1 is not filed. Due to fire accident articles were burnt is established by filing photos. If accident is not due to the leakage of gas it is for the opposite party to establish that fire accident took place not due to leakage of gas but due to some other cause. Ex. B1 and other documents go to show that accident occurred due to negligence in supply of defective gas cylinder. The opposite party No. 1 contends that opposite party No. 2 being a dealer indemnify in respect of the 3rd party claims and also indemnify the corporation and that it is for the opposite party No. 2 to obtain insurance policy and opposite party No. 1 is not liable to pay the damages caused to the complainant in the fire accident.

IN fact the opposite party No. 2 i.e., dealer obtained Ex. B5 insurance policy from opposite party No. 3. As per Section 3 Insurance Company will indemnify the insured in respect of loss or damage to gas cylinders/whether filed or empty by accident or robbery or holdup or theft whilst the same are in the hands of the insured and/or insureds authorised employees whilst in transit between the insureds premises and the customers premises provided that the liability of the company in respect of such loss or damage for any one accident is limited to Rs. 25,000 and in any one period of insurance is limited to Rs. 50,000 only. So the policy does not cover damage caused to the cylinder while in the custody of consumer. The Advocate for opposite party No. 3 referred a case in United India Insurance Co. Ltd. v. Jagdish Ram Sharma and Others, reported in III (1999) CPJ 292=1999 (3) CPR 16, wherein it was held that when damage did not occur during transit or in the process of installation, liability cannot be fastened on the Insurance Company. The opposite party No. 2 did not obtain policy to cover the damage caused in an accident occurred due to leakage of gas while in the custody of consumer. Hence, opposite party No. 3 is not liable to pay. The District Forum rightly dismissed the complaint against the opposite party No. 3. Gas cylinders will be filled up by opposite party No. 1, opposite party No. 2 will supply the same cylinder to the consumer. When the opposite party No. 1 contends it is for the dealer to indemnify the 3rd party and also the corporation, when the dealer failed to obtain any policy, the opposite party No. 1 can recover the amount from opposite party No. 2 but opposite party No. 1 cannot escape from the liability when the accident occurred due to supply of defective cylinder. There is deficiency of service on the part of the opposite party No. 2 in supplying cylinder without testing it to the complainant. Therefore, the District Forum rightly held that the opposite party Nos. 1 and 2 jointly liable to pay the damages awarded to the complainant. As the District Forum directed the opposite parties to pay the value of the property damaged, the complainant is not entitled for any compensation. Hence, the order of the District Forum modified the order awarding of compensation of Rs. 5,000 is set aside confirming the order of the District Forum insofar as the value of the property of Rs. 39,000 and the order of the District in other aspects is concerned.

IN the result both the appeals are allowed in part and order of the District Forum is modified directing the opposite party Nos. 1 and 2 to pay Rs. 39,000 to the complainant towards the value of the property and to pay costs of Rs. 1,000. The compensation of Rs. 5,000 awarded is set aside. Appeals partly allowed.