Landmark judgements

(NC )DHIRAJ RAJESH HUKMATANI & ANR.—Appellants versus AHMEDABAD CO-OPERATIVE STORES LTD. & ORS.—Respondents GAS CASE

I (2018) CPJ 620 (NC)

NATIONAL CONSUMER DISPUTES

REDRESSAL COMMISSION, NEW DELHI

Hon’ble Mr. Justice D.K. Jain, President & Mrs. M. Shreesha, Member

DHIRAJ RAJESH HUKMATANI & ANR.—Appellants

versus

AHMEDABAD CO-OPERATIVE STORES LTD. & ORS.—Respondents

and

INDIAN OIL CORPORATION LTD.—Appellants

versus

DHIRAJ RAJESH HUKMATANI & ORS.—Respondents

and

AHMEDABAD CO-OPERATIVE DEPARTMENTAL STORES LTD.—Appellant

versus

DHIRAJ RAJESH HUKMATANI & ANR.—Respondents

and

UNITED INDIA INSURANCE CO. LTD.—Appellant

versus

DHIRAJ RAJESH HUKMATANI & ORS.—Respondents

First Appeal Nos. 85, 154, 225, 259 of 2011 against Order dated 30.12.2010 in Complaint No. 5 of 2007 of Gujarat State Consumer Disputes Redressal Commission—Decided on 18.1.2018

Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(ii) — LPG Cylinder — Defective — Gas leakage — Fire accident — Two young lives (both below age of 40 years) have been lost and two minor children suffered grievous burn injuries requiring constant treatment, perhaps plastic surgery as well — Compensation sought — Deficiency in service — State Commission partly allowed complaint — Hence appeal — No dispute about eruption of fire on account of presence of gas in kitchen, which was allegedly because of leakage from gas cylinder — It was for Manufacturer or Dealer to ascertain and prove cause of leakage of gas — No effort in this behalf was made by either of them, except for a bald statement by Manufacturer that a Field Officer was asked to investigate into cause of fire — Manufacturer of a product is best judge to identify whether product suffers from any kind of defect — Conduct of Manufacturer (IOC) is reprehensive, inasmuch as, instead of getting at very root of incident by investigating its cause in order to prevent such incidents in future, and voluntarily providing financial help to two orphans and at least graciously accepting award of compensation by Fora below, it has chosen to raise all possible technical objections to maintainability of complaint and drag two minor complainants up-to this stage — State Commission has awarded a lump sum compensation of 25,00,000 in favour of complainants and against Manufacturer and Distributor, making them liable jointly and severally — Further compensation of 5,00,000 to them would meet ends of justice.

[Paras 18, 19, 21]

Result : Appeals disposed of.

Case referred:

A. Raghavamma and Another v. A. Chenchamma and Another, 1963 (SLT SOFT) 139(Relied)

[Para 17]

Counsel for the Parties:

For the Appellant : Mr. Jaspal Singh, Advocate.

For Ahmedabad Coop. Stores : Mr. K.P. Toms, Advocate.

For Indian Oil Corporation : Ms. Komal Mundhra and Mr. Saurabh Agrawal, Advocates.

For United India Insurance : Mr. A.K. Raina, Advocate.

For the Respondents : Mr. Jaspal Singh, Advocate.

For Ahmedabad Coop. Stores : Mr. K.P. Toms, Advocate.

For Indian Oil Corporation : Ms. Komal Mundhra and Mr. Saurabh Agrawal, Advocates.

For the Indian Insurance : Mr. A.K. Raina, Advocate.

ORDER

1. Delay in filing of First Appeal Nos. 154/2011, 225/2011 and 259/2011 is condoned.

2. This batch of four First Appeals, under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), preferred by two minor complainants, through their Guardian, and different Opposite Parties in the Complaint under the Act, is directed against the order dated 30.12.2010, passed by the Gujarat State Consumer Disputes Redressal Commission at Ahmedabad (for short “the State Commission”) in Complaint Case No. 5 of 2007. By the impugned order, the State Commission has partly allowed the Complaint, and directed Opposite PartyNos. 1 and 2, viz. Ahmedabad Cooperative Departmental Stores Ltd. and Indian Oil Corporation Ltd. respectively, to jointly and severally pay to the Complainants a sum of 25,00,000 as compensation, along with interest @ 9% from the date of filing of the Complaint till realization. Further, while granting liberty to Indian Oil Corporation Ltd. to enforce the indemnity, if any, as per the insurance policy issued by Opposite Party No. 3, i.e. United India Insurance Co. Ltd., the said Insurance Company was held liable to pay to the Complainants a total amount of 10,00,000 . The State Commission has also directed the Opposite Parties to pay to the Complainants a sum of 5,000 as litigation expenses. The awarded amount was directed to be deposited in the State Commission and the orders for disbursement of the said amount were to be made subsequently depending on the needs and interest of the minor Complainants.

3. Since all the four Appeals, between the same parties, involve common issues, and arise out of the same order, these are being disposed of by this common order. However, for the sake of convenience, First Appeal No. 85 of 2011 is treated as the lead case and the parties, i.e. the Complainants, OP No. 1-Ahmedabad Cooperative Departmental Stores Ltd., OP No. 2 – Indian Oil Corporation Ltd. and OP No. 3 – United India Insurance Co., would be referred to hereinafter as the Complainants, the Distributor, the Manufacturer and the Insurance Company respectively.

4. Succinctly put, the facts, giving rise to the filing of the Appeals, as culled out from the Complaint, are as follows:

Two minor children, a boy and a girl, the Complainants, were residing with their parents, Rajesh Hiranand Hukmatani (aged 37 years) and Ms. Suman Rajesh Hukmatani (aged 28 years) at H/15, Shri Krushnanagari Coop. Housing Society Ltd., Opp. Vejalpur Bus Stop, Ahmedabad. While the father of the children was earning approximately 13,000 per month, their mother, a self-employed person, was earning approximately 2,000 per month from embroidery and handicraft work. The children were studying in I and III Standards respectively in Don Bosko School. The family was using an LPG connection No. 13225, attached to the Distributor. Vide Bill No. 100401, dated 2.2.2005, a refilled cylinder was supplied at their residence. The said cylinder being defective, gas was leaking out of it, due to which, on 2.3.2005, at about 700 hours, when the mother of the Complainants tried to ignite the burner, a fire broke out, which engulfed the entire premises. The incident was widely reported in the press on 5.3.2005. All the four members of the family, i.e. the mother, the father and the two minor children, respectively sustained 57%, 61%, 40% and 40% deep burn injuries. The incident caused extensive damage to the property/premises. Both the parents of the children succumbed to their injuries on 3.3.2005 and 21.4.2005 respectively. On the date of filing of the Complaint, both the children were receiving medical treatment and surgical procedures almost every month. According to the Complainants, on account of the incident, not only they lost their parents at tender age, they also suffered physical torture as their bodies are disfigured, and they have no financial support to meet their bare minimum needs. On 26.10.2005, a notice came to be issued on behalf of the Complainants to the Opposite Parties, claiming compensation, on account of the blast caused by the said leaking cylinder, supplied by them. Their repeated efforts to get compensation from the Opposite Parties did not evoke any positive response from either of the afore-stated Opposite Parties. In the said background, alleging negligence and deficiency in service on the part of the Opposite Parties in supplying a defective gas cylinder, the afore-noted Complaint came to be filed before the State Commission, wherein the minor Complainants had prayed for a direction to the Opposite Parties to jointly and severally pay to them a total compensation of 83,00,000 (i.e. 45,00,000 as compensation for the death of the parents, 16,00,000 each towards physical torture and disfigurement of their body, and 6,00,000 as loss to the property), along with interest @ 12% p.a. from the date of the accident, i.e. 2.3.2005, till realization.

5. Upon notice, all the Opposite Parties contested the Complaint by filing their respective Written Versions.

6. The Distributor pleaded that it was working as an Agent for and on behalf of the Manufacturer for delivery of LPG cylinders, supplied by the Manufacturer (Indian Oil Corporation Ltd.) for delivery to its limited customers in the allocated area; it was insured with the aforesaid Insurance Company and, therefore, the said Insurance Company was a necessary party; the gas connection in question was in the name of one Hiranand Danda, who was not residing at the place where the incident took place, and, thus, the present Complaint, filed by the Guardian of the minor Complainants, was not filed by a proper person; the cylinder was supplied on 2.2.2005 and the accident had taken place on 2.3.2005, i.e. after one month from the date of supply of the cylinder; on signing of the delivery receipt, the seal of the cylinder was opened and there was no leakage in the cylinder; since the cylinder was issued one month prior to the incident, in the absence of report from FSL by the Complainants, it could not be said that the cylinder was defective; according to the Panchnama, three cylinders were found at the premises whereas against the connection in question only two cylinders were issued and, therefore, it was a case of unauthorized user of gas cylinders by the consumer; as per the said Panchnama, the three cylinders found at the spot were lying intact and hence it could not be said that there was leakage from the cylinder; and the stated income of the deceased parents of the Complainants was not supported with any document.

7. On behalf of the Manufacturer, the Complaint was contested on diverse grounds, including on the ground that the same involved complicated questions of law and facts, for which proper evidence and examination of witnesses was required; the Manufacturer is required to obtain public liability insurance policy, which it had taken from National Insurance Company Ltd. and the said policy was valid between the period 22.4.2004 and 21.4.2005; before supplying the cylinders to its customers, a number of precautions are taken, which, inter alia, include mixing a special type of smell to check the leakage; manufacturing of cylinders/regulators as per the standards of Bureau of Indian Standards; rigorous quality control checks, such as water bath test, valve leak test, sealing, etc. of each and every cylinder before and after the same are subjected for refilling of gas by automatic/mechanical processes; ensuring that gas is never refilled in any defective cylinder; transportation of cylinders to the distribution points through authorized transporters; after delivery to the Distributor, the cylinders are again checked by the Distributor and the officers of the Manufacturer carry inspections; during such inspections if any cylinder is found unfit, the same is replaced; the Distributor is required to appoint delivery boys only after they are trained and their suitability is assessed by the Manufacturer; and the responsibility of the Manufacturer comes to an end after delivery of the cylinders at the premises of the Distributor, after which the Distributor has to take all care and precautions as per the instructions issued by the Manufacturer from time-to-time. In support of its plea that relationship between the Distributor and the Oil Company is on principal-to-principal basis, while relying upon a number of cases of the Hon’ble Supreme Court and Consumer Fora, it was averred that since the Distributor is not its Agent, it could not be held responsible for any claim, loss and damages occurring to the third party. It was pleaded that in the absence of any expert evidence on record to prove leakage of cylinder, it could not be assumed that the cylinder was defective. As regards the allegation of gas leakage after delivery of the cylinders to the customers, in order to spread awareness among the consumers at large, various steps are taken at the time of installation and from time to time through TV, radio, seminars, etc. Emergency Cell Services, with the contact numbers, which services are available to the consumers round the clock. It was also averred that the Complainants had not produced any documentary evidence showing the income of the deceased persons; as per Bill No. 100401 dated 2.2.2005, the LPG connection in question was in the name of one Hira G. Danda and, therefore, the Complainants’ family was unauthorizedly using the cylinders; had the cylinder been defective, it could have been ascertained at the time of delivery of the same and no such complaint having been made by the deceased, the Complainants had filed a false complaint, which was liable to be dismissed.

8. Being the Insurer of the Distributor, the Insurance Company while adopting the stand taken on behalf of the Distributor and pressing into service all possible technical objections, pleaded in its Written Version to the effect that the Complaint involved complicated and disputed questions of law and facts, which could not be adjudicated upon under the summary procedure as contemplated in the Act; since the Complainants did not suffer from any deficiency as required under Section 2(1)(g) of the Act, inasmuch as there was no fault, imperfection, shortcoming or inadequacy in processing the claim in the Complaint on its part, the Complaint was liable to be dismissed; the Distributor had taken insurance policy from it which was valid between the period 8.5.2004 and 7.5.2005; its liability under the said policy was to the extent of 10,00,000, aggregating during the year, for any one accident; since the gas connection was in the name of Hiranand G. Danda and it was being used by the Complainants’ family at some other place, there was no privity of contract between the Complainants on the one hand and the Distributor and the Insurance Company on the other; and since the income of the deceased was not proved by any documentary evidence, the claim was repudiated as “No Claim”, for want of documents/papers, including FSL report.

9. Upon appraisal of the evidence adduced by the parties before it as well as on appreciation of a number of judicial precedents on the point, cited by the parties, the State Commission found merit in the submissions made on behalf of the Complainants and consequently, as noted above, while partly allowing the Complaint, issued the afore-noted directions to the Opposite Parties, observing thus:

“15. While summing up the facts of the case it is proved that the accident had taken place due to cylinder blast at H-15, Shri Krishnanagar Society (Flats) Vejalpur, Ahmedabad where deceased Rajeshbhai was residing with his father Hiranand G. Dauda @ Hukmatani along with his wife Sumanben and two school going children i.e. the present complainants. It is also proved that the blast had taken place due to defective cylinder as a result of which Rajeshbhai and Sumanben had expired and the present complainants had been burnt severely disfiguring their face, hands, legs, etc. The complainants are still under treatment. The complainants were compelled to abandon their education. They have lost their both parents. The user of the cylinder in question was legal and authorized. There is no onus on the minor complainants to prove manufacturing defect in the cylinder by the report of an expert. The IOC has many experts and they could have very well done so if so desired. This is very serious case. In our view consolidated compensation to the extent of Rupees twenty five lacs can be awarded. The liability of opponent Nos. 1 and 2 will be joint and several. The liability of the opponent No. 3 will be limited to the extent of Rupees ten lacs for any one incident as per the insurance policy. The opponent No. 2 is also covered by the policy of National Insurance Co. Ltd. (which is not a party) to the extent of twenty five lacs per event. The Opponent No. 2 is at liberty to enforce the indemnity if any as per the insurance policy against the concerned insurance policy.”

(Emphasis supplied)

10. Hence, the present Appeals. While the Complainants have filed First Appeal No. 85/2011 for enhancement of compensation, the Manufacturer, the Distributor and the Insurance Company have filed First Appeal Nos. 154/2011, 225/2011 and 259/2011 respectively for setting aside of the impugned order. It may be noted at this juncture itself that the Insurance Company has already discharged the liability fastened on it by the impugned order and technically, its Appeal is otherwise rendered infructuous.

11. On 19.4.2017, when the Appeals came up for final hearing, the Indian Oil Corporation and the Distributor of the cylinder were asked to furnish, on affidavits, information on the following points:

“(1)

Whether the Distributor was aware of the accident/incident, subject matter of the Complaint?

(2)

If so, when?

(3)

Did the Distributor inform Indian Oil Corporation about the said accident? If so, when?

(4)

Whether any inquiry into the cause of the accident was got conducted either by the Distributor or the Manu-facturer?

(5)

The source of the factual information stated/highlighted in the Written Versions filed on behalf of the said Appellants?

(6)

Whether the Surveyor, appointed by United India Insurance Co. Ltd., had sought any information/document from the Dealer or the Manufacturer and whether the same was supplied to him or not?”

12. In furtherance thereof, in its affidavit dated 24.7.2017, the Indian Oil Corporation has stated thus:

“4. That the present Affidavit is being filed on behalf of the Appellant Company, in compliance with the direction(s)/order(s) passed by this Hon’ble Commission, vide its order 19.4.2017, and in response to the same, it is submitted that the Appellant Company became aware of the incident in question, dated 2.3.2005, on the date of the incident/accident itself, upon being informed by the distributor of the gas cylinder, the Respondent No. 3 herein.

5. That an enquiry was carried out by the Appellant Company through the Field Officer employed with Appellant Company, to investigate into the real cause of the accident, which took place on 2.3.2005, at the house of the Respondent No. 1. That it is also imperative to draw the attention of the Hon’ble Commission to the fact that the Surveyor appointed by the Insurance Company did not seek any information of document from the Appellant Company as regards the accident which occurred on 2.3.2005, and therefore, there was no occasion to supply the same, at any point.

6. That it is also relevant to state here that the information stated in the pleadings and submissions made by the Appellant, before this Hon’ble Commission, is on the basis of the official records, available at the office of the Appellant Company, which has been obtained from information given by the distributor, enquiry conducted by the Field Officer, etc.”

13. The point-wise reply by the Distributor reads as follows:

“1.

In reply to question No. 1 I the undersigned say that the incident/accident took place and that and where not informed immediately by the customer/complainant.

2.

In reply to question No. 2 I say that we were informed above accident/incident after about 3 days.

3.

In reply to question No. 3 I say that we as a distributor, immediately informed to M/s. Indian Oil Corp. Ltd.

4.

In reply to question No. 4 I say that as a distributor, we have not conducted any enquiry and we have no information about any inquiry is at all conducted by M/s. Indian Oil Corporation Ltd.

5.

In reply of question No. 5 I state that all the relevant information what so ever have been filed in our written statement before state commission Gujarat.

6.

In reply to question No. 6 I say the question is pertaining to the Insurance Co. but as per information given to the distributor the United Indian Insurance Co. has appointed surveyor and as per our knowledge insurance surveyor was appointed only for primary visit @ site of loss to assess the physical damage of the property if any. surveyor did not ask for any information or document from us as dealer.”

14. From the afore-extracted replies by the Manufacturer (IOC) and the Distributor, it clearly emerges that: (i) the Manufacturer was informed about the accident/incident by the Distributor immediately on receiving the information about it; (ii) the Distributor neither conducted any enquiry into the accident nor was it informed about any inquiry by the Manufacturer; (iii) the Insurance Company had appointed a Surveyor only to assess the damage to the property and he did not ask for any information or documents from the Distributor; and (iv) having learnt about the accident from the Distributor, the Manufacturer got conducted from its Field Officer, investigation into the real cause of the accident.

15. Since in its affidavit, it is stated by the Manufacturer that the afore-stated information was being furnished on the basis of the official records, available at its office, which had been obtained from the information given by the Distributor and the enquiry conducted by its Field Officer, and the real cause of accident was not forthcoming in the said two affidavits, Learned Counsel appearing for the Indian Oil Corporation (Manufacturer) was asked to produce a copy of the report stated to have been submitted by its Field Officer. Learned Counsel has expressed his inability to produce the same on the ground that the case being very old, the same is not traceable. We are constrained to observe that having stated on affidavit that the investigation into the cause of the accident was got conducted from its Field Officer, the non-filing of his report during the course of adjudication on the Complaint before the State Commission and its non-production before us on the afore-stated ground, leads to an irresistible inference that either no such investigation was got conducted by the Indian Oil Corporation or the findings in the report are against it. Even assuming for the sake of argument that because of lapse of time the report of the Field Officer is not available, we really wonder how in the affidavit filed by the Chief Manager of the Indian Oil Corporation on 24.7.2017, it is reiterated that investigation into the cause of accident was got conducted. Evidently, either of the two stated stands is false to the knowledge of the Deponent. At this stage, we say no more on this point.

16. In the light of the afore-stated factual scenario, the question arising for consideration is whether the State Commission has committed any illegality in arriving at the conclusion that the onus to prove the existence of any defect in the cylinder or the regulator, and cause of the leakage of gas, was on the Manufacturer and not on the Complainants?

17. It is trite that ordinarily the burden of proving the fact rests on the party who asserts the affirmative issues and not on the party who denies it. Nevertheless, there is a distinction between the phrase ‘burden of proof’ and ‘onus of proof’. Burden of proof lies on the person who has to prove a fact and it never shifts, whereas the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence (see: A. Raghavamma and Another v. A. Chenchamma and Another, 1963 (SLT SOFT) 139=AIR 1964 SC 136) . Regard being had to the fact that the rigours of the Evidence Act, 1872 and the Code of Civil Procedure, 1908 are not applicable to the proceedings before the Consumer Fora, a quasi-judicial body, in our view, if a complainant is able to create a reasonable degree of probability that there was deficiency in service on the part of the supplier of goods or services, or the defect in such services, the onus shifts on the Opposite Party to discharge the onus to prove its denial, particularly when the complainant does not have the wherewithal to prove the alleged defect or the deficiency.

18. In the instant case, there being no dispute about eruption of the fire on account of presence of gas in the kitchen, which was allegedly because of leakage from the gas cylinder, it was for the Manufacturer or the Dealer to ascertain and prove the cause of leakage of the gas. Admittedly, no effort in this behalf was made by either of them, except for a bald statement by the Manufacturer that a Field Officer was asked to investigate into the cause of fire.

19. What really pains us is the conduct and the insensitive attitude of country’s one of the biggest monopolistic Public Sector Undertakings, viz. Indian Oil Corporation, which having been apprised of the accident by its Distributor did not take the incident, in which two young human lives perished and two adolescents not only got severe disfiguring burns, were rendered orphans as well, seriously. Although it has all through been asserted that a Field Officer was appointed to investigate into the cause of death but his findings in the report, if any, were never disclosed, either in the Written Version or before us, despite specific directions. It needs little emphasis that a manufacturer of a product is the best Judge to identify whether the product suffers from any kind of defect. We are constrained to observe that on facts at hand, the conduct of the Manufacturer (IOC) is reprehensive, inasmuch as, instead of getting at the very root of the incident by investigating its cause in order to prevent such incidents in future, and voluntarily providing financial help to the two orphans and at least graciously accepting the award of compensation by the Fora below, it has chosen to raise all possible technical objections to the maintainability of the Complaint and drag the two minor Complainants up-to this stage. We say no more.

20. In view of the afore-going, we do not find any material illegality in the conclusions arrived at by the State Commission on the question of deficiency in service on the part of the Manufacturer as well as the Distributor of the gas cylinder, who also did not make any attempt to ascertain the cause of the accident. Accordingly, we affirm the decision of the State Commission on this aspect and dismiss the Appeals preferred by both of them.

21. Having arrived at the said conclusion, we take up the Appeal filed by the Complainants seeking enhancement of the compensation. As noted above, the State Commission has awarded a lump sum compensation of 25,00,000 in favour of the Complainants and against the Manufacturer and the Distributor, making them liable jointly and severally. Though every human life is precious and it is impossible to evaluate its money value, but regard being had to the facts of the instant case, where two young lives (both below the age of 40 years) have been lost and two minor children have suffered grievous burn injuries requiring constant treatment, perhaps plastic surgery as well, we are of the view that the afore-stated compensation awarded to them deserves to be enhanced. In our opinion, award of further compensation of 5,00,000 to them would meet the ends of justice. All other directions in the impugned order are maintained. However, we direct that the total amount of compensation of 30,00,000 (Rupees Thirty Lakh), along with the interest as awarded by the Fora below, after accounting for the amount, if any, already deposited, shall be deposited by the Indian Oil Corporation in the State Commission, within four weeks of the date of receipt of a copy of this order. If the Complainants have not yet attained majority, the entire amount shall be put in two long term Fixed Deposit Receipts in a scheduled Bank, with quarterly interest pay-out, in equal proportion and shall be got encashed by the two Complainants on attaining the age of majority. The quarterly interest shall be withdrawn and paid to the two Complainants. We clarify that it will be open to the State Commission to direct release of any amount out of the Fixed Deposit Receipts, on being satisfied with the requirement of funds by either of the Complainants.

22. In the final result, First Appeal No. 85/2011 is partly allowed and First Appeal Nos. 154/2011, 225/2011 and 259/2011 are dismissed, leaving the parties to bear their own costs.

23. The statutory deposits made by the Manufacturer, the Distributor and the Insurance Company at the time of filing of their respective Appeals shall also be released to the Complainants.

Appeals disposed of.

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