At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
By, THE THE HONOURABLE MR. JUSTICE S.S. SATHEESACHANDRAN
By, PRESIDENT & THE HONOURABLE MRS. A. BEENA KUMARI
For the Appellant: M/s. Menon & Pai, Advocate. For the Respondents: Aravind Ghosh, K.G. Mohandas Pai, Varkala B. Ravikumar, Advocates.
S.S. Satheesachandran : President
The 2nd opposite party in C.C. No. 99/2013 on the file of Consumer Disputes Redressal Forum, Alappuzha has filed this appeal challenging the Order the forum directing it to pay a sum of Rs. 2,00,000/- with compensation of Rs. 3,000/- and cost of Rs. 1,000/- to the complainant. The forum below also held that the 2nd opposite party had the right to recover from the 3rd opposite party the money ordered to be paid since that opposite party had indemnified the loss or damage caused to the 2nd opposite party under the policy issued. Complainant as a subscriber of the domestic gas connection with the 2nd opposite party filed the complaint alleging that in a fire accident involving the gas cylinder installed in his house he suffered extensive damage to his house and valuable materials stored therein. According to him the fire accident took place due to leakage of gas from the cylinder valve and that was on account of deficiency in service and lack of care in maintaining safety measures by 2nd opposite party. 1st and 2nd opposite party, distributor of the 2nd opposite party and the manufacturer of the cylinder, alone contested the proceedings filing their respective version disputing the claim of the complainant. 3rd opposite party insurer, after receiving notice, remained absent and did not file any version. Opposite parties 1 & 2 resisted the claim contending that there was no manufacturing defect in the gas cylinder and the accident arose on account of negligence of complainant in making use of the cylinder rashly and recklessly.
2. On the side of complainant he was examined as PW1 and A1 to A5 were exhibited. For the opposite parties two witnesses RW1 and RW2 and B1 & B2 were exhibited. Appreciating the materials produced the lower forum found merit in the case of the complainant and accepting his case that the leakage of the cylinder arose by the negligence of the manufacturer and that led to the fire accident directed that opposite party to pay Rs. 2,00,000/- with 9% interest with compensation of Rs. 3000/- and cost of Rs. 1,000/- . 3rd opposite party insurer who had indemnified the 2nd opposite party under the policy issued covering the risk involved in the gas cylinders distributed by that opposite party, was directed to refund the sum on payment to the 2nd opposite party.
3. We heard the counsel on both sides and perused the records. Learned counsel appearing for the insurance company, 3rd respondent in the appeal contended that there is no evidence on the part of complainant to substantiate the loss incurred in the fire accident. According to the counsel there was no convincing evidence to establish the case of the complainant that negligence on the part of the 1st or 2nd opposite party caused the accident. Challenges canvassed as such above by the insurance company we find have no significance since they did not contest before the lower forum filing version explaining how the fire accident involving gas cylinder took place. Insurance company has also not filed any appeal against the order whereunder the forum has held that it has to indemnify the 2nd respondent with respect to payment to complainant in view of the policy issued and covering the risk involved in the use of gas cylinders produced by the 2nd opposite party. However, we find there is some fault in fixing compensation as the quantum of compensation awarded by the forum is not supported by any clinching evidence. Though it is a summary trial when compensation is awarded forum has to fix just and reasonable compensation. In Ext. A1 FIR a sum of Rs. 2,00,000/- has been mentioned as the loss based on which the lower forum ordered for payment of compensation of Rs. 2,00,000/- to the complainant. Ext. A2 report of the Fire Station shows that the loss was assessed at Rs. 1,00,000/-. Complainant had a case that valuable materials stored in the house including document of title were destroyed in fire. Even accepting his version as such on the facts and circumstances presented in the case, while affirming the order of the lower forum that the fire accident arose from the leakage of gas cylinder and there was deficiency in service in not maintaining proper safety by the 2nd opposite party the distributor, the quantum of compensation awarded has to be modified and limited to Rs. 1,00,000/-. Ext. A5 newspaper report produced by the complainant would show that complainant had kept in a box Rs. 30,000/- collected from a financial institution and that too was lost in fire. No material was produced to show that he has made such transaction during the relevant period. Evidently some exaggerations have been made by the complainant to claim more amount as compensation from the opposite party. We are of the view that the reasonable just and fair compensation complainant is entitled to receive is only Rs. 1,00,000/- and accordingly compensation awarded by the lower forum is modified and limited to that sum. The lower forum has awarded interest on compensation at 9% from the date of accident. Interest has to be awarded only from the date of filing of the comp
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laint and not from the date of accident and it is modified accordingly. 4. Modifying the order of the lower forum 2nd and 3rd opposite parties are jointly and severally liable to pay compensation as fixed above and, if not paid, it shall be paid within one month from the date of receipt of copy of this judgment by the 3rd opposite party. Sum of Rs. 25,000/- deposited by the appellant to entertain their appeal is awarded as cost to the 1st respondent/complainant and it shall be released to him, on his application. Appeal is partly allowed as indicated above.