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Shri Gas Service v/s United India Insurance Co. & Others


Company & Directors' Information:- UNITED INDIA INSURANCE COMPANY LIMITED [Active] CIN = U93090TN1938GOI000108

Company & Directors' Information:- B S AND SERVICE PRIVATE LIMITED [Active] CIN = U92419MH1946PTC004912

Company & Directors' Information:- GAS CORPORATION INDIA LIMITED [Strike Off] CIN = U40200BR1993PLC005536

Company & Directors' Information:- J B UNITED PRIVATE LIMITED [Active] CIN = U93000MH2014PTC258844

Company & Directors' Information:- J B UNITED PRIVATE LIMITED [Active] CIN = U74999MH2014PTC258844

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- SERVICE CORPORATION LIMITED [Dissolved] CIN = U93090KL1946PLC001075

Company & Directors' Information:- UNITED CORPORATION LIMITED [Liquidated] CIN = U99999TN1942PLC003159

    Revision Petition Nos. 2439, 2442 Of 2010

    Decided On, 20 January 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Petitioner: Shailesh Prakash Sharma, Advocate. For the Respondents: Savita Rustogi, Advocate.



Judgment Text


Oral:

The complainant Paras Kumar had obtained an LPG connection of respondent Indian Oil Corporation from the petitioner Sri Gas Service for being used in his house No.2-A of 6, Saraswati Colony, Kota. The case of the complainant is that on 27.12.2000, a delivery boy of the petitioner delivered an LPG cylinder at his house, without checking the said cylinder. The petitioner did not check the cylinder despite the complainant having personally gone to its premises on 30.12.2000 and 31.12.2000 and having requested inspection of the cylinder. On 31.12.2000, when the sister of the complainant removed the cap of the above referred LPG cylinder for replacing the empty LPG cylinder, the LPG came out from the cylinder with a high speed, resulting in damage to the properties of the complainant, including his house and his belongings kept in the house. This, according to the complainant, happened on account of the valve of the cylinder being defective. District Collector, Kota appointed a Committee to check the LPG godown of the petitioner and several cylinders filled with LPG and kept in the said godown were found leaking or were defective. Alleging negligence on the part of the petitioner in rendering services to him, the complainant approached the concerned District Forum by way of a consumer complaint, seeking compensation. The petitioner, Indian Oil Corporation as well as the insurer from whom an insurance policy had been taken by the petitioner were impleaded as the opposite parties in the consumer complaint.

2. The complaint was resisted by the petitioner as well as by Indian Oil Corporation both of whom took a common stand that the delivery of the cylinder was taken by the complainant from the godown of the petitioner under cash and carry system, availing a rebate of Rs.5/- and the complainant himself had checked the cylinder at the time delivery was taken. This was their case that the family members of the complainant were negligent while fitting the regulator, which had resulted in the aforesaid incident.

3. The insurer disputed its liability, claiming that no information of the incident was given to them. It was also pleaded by the insurer that they were liable to pay only if the LPG cylinder at the premises of the consumer was installed by the employees of the LPG dealer.

4. The District Forum allowed the consumer complaint, and directed payment of compensation quantified at Rs.3,50,000/- by all the opposite parties in the consumer complaint, alongwith interest @ 9% per annum and the cost of litigation quantified at Rs.1100/-.

5. Being aggrieved from the order passed by the District Forum, all the three opposite parties in the consumer complaint i.e. the petitioner, insurer and Indian Oil Corporation preferred separate appeals before the concerned State Commission. Vide its order dated 26.3.2010, the State Commission allowed the appeal filed by the insurer but dismissed the appeals filed by the petitioner and the Indian Oil Corporation. Being aggrieved from the order of the State Commission, the petitioner is before this Commission by way of these two separate revision petitions. The order of the State Commission has not been challenged by the Indian oil Corporation.

6. The first question which arises for consideration in these petitions is that as to whether the petitioner was negligent in rendering services to the complainant or not. The answer to this question would primarily dependent upon whether the LPG cylinder was checked by the petitioner before delivering the same to the complainant or not. A concurrent finding of fact has been returned by the fora below in this regard in favour of the complainant and against the petitioner and the Indian Oil Corporation. The said concurrent finding cannot be disturbed by this Commission in exercise of its revisional jurisdiction unless it is shown to be patently illegal or otherwise perverse. In other words, the petitioner is required to satisfy this Commission that no reasonable person acting on the material available with the District Forum could have returned a finding of negligence on the part of the petitioner.

7. As noted earlier, the case of the petitioner is that the LPG cylinder was collected by the complainant from its godown and was not delivered by its employees at his residence. The case of the complainant on the other hand is that the LPG cylinder was delivered by the employees of the petitioner, without any inspection of the said cylinder. Assuming that the LPG cylinder was collected directly by the complainant from the godown of the petitioner, the said cylinder ought to have been checked before giving its delivery to the complainant. There is no evidence of the said cylinder having been actually checked by the petitioner before delivering the same to the complainant. The petitioner did not file any affidavit of an employee posted at its godown, stating on oath that the LPG cylinder supplied to the complainant from the godown was checked by him and was found to be free from any defect. In the absence of such evidence, I see no reason to disbelieve the case set out by the complainant. In any case, it would be difficult to accept that the LPG cylinder was checked before it was delivered to the complainant. Had the LPG cylinder been checked before delivering the same to the complainant, the LPG would not have come out of the cylinder the moment its cap was removed. The State Commission has in this regard relied upon the affidavit of Smt. Archana Meena, who clearly stated on oath that on 31.12.2000, when her mother asked her to install new cylinder and the cap of the new cylinder was removed, gas came out just like a fountain. Had the cylinder been properly checked before delivering the same to the complainant, the gas would not have come out in this manner irrespective of whether the cylinder was delivered at the house of the complainant as is alleged by him or it was delivered to the complainant from the godown of the petitioner as is alleged by the petitioner.

8. The District Magistrate constituted a committee, which checked the godown of the petitioner and found 291 cylinder of LPG in the said godown. It was also found that the gas had leakage from as many as 62 cylinders, out of 146 cylinders which were weighed by the Enquiry Committee. The Enquiry Committee therefore reported that the leakage could be for the following reasons:

“1. In bottling plant as per the prescribed procedure work was not done or on account of negligence cylinders having leakage could be supplied.

2. In the route on account of negligence of the transporter or loading / unloading or during supply on account of negligent handling leakage could be caused.

3. Many cylinders were having old walls which were to be replaced. By cylinders having new valves leakage was comparatively less found.”

9. The committee which submitted the aforesaid report, including not only the Circle Inspector but also the Executive Sales Officer of the Hindustan Petroleum Corporation and representative of the Indian Oil Corporation, namely Mr. Amit Agarwal. The aforesaid circumstance clearly shows that either defective cylinders were stored in the godown and LPG was leaking from the said cylinder or the petitioner was engaged in pilfering LPG from the cylinders as a result of which not only the quantity of LPG found in the cylinders was much less, they were also found leaking. In these circumstances, the finding of fact returned by the fora below cannot be said to be perverse so as to call for interference by this Commission in exercise of its revisional jurisdiction.

10. It is next submitted by the learned counsel for the petitioner that the insurer was liable to reimburse the petitioner which had taken an insurance policy to cover the cases of the loss or damage on account of any negligence in installation of the LPG cylinders. In this regard, he has placed reliance upon the terms and conditions of the Cover Note which the insurer had issued to the petitioner and which to the extent relied upon by the learned counsel for the petitioner reads as under:

"The company will indemnity the Insured in respect of all sums which the Insured is legally liable to pay as compensation and litigation expenses incurred by the Insured at the company’s written consent in respect of accidental death or bodily injury to the person other than a person under the Insured’s service and Insured’s family members and / or accidental damage to property caused by or arising from the installation of the gas filled liquefied petroleum gas cylinder in the premises of the Insured’s customers or whilst such cylinders from the Insured’s premium are in the …of being carried for installation in the premises of the Insured’s customers or whilst such empty cylinders are in the … of being carried from the premises of the Insured’s customers to the Insured’s premises.”

11. The State Commission while dismissing the appeal preferred by the petitioner has relied upon the following clause contained in the insurance policy:

"If while installing the cylinder to the customer by the insurer or its employee any property damaged or physical loss is caused, the insurance company is liable to pay compensation for the damage.”

12. Assuming that the clause relied upon the learned counsel for the petitioner is applicable, the said clause, in my opinion, does not include the cases of the damage cause

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d by or arising from the installation of LPG cylinder by the consumer himself. The aforesaid clause, in my opinion, indemnifies the insured for the loss which arise (i) on account of installation of LPG by the employees of the petitioner for premises of the customer (ii) the loss or damage caused while cylinders were carried from the premises of the petitioner for being installed in the premises of the customers and (iii) while empty cylinders were being carried from the premises of the customers to the premises of the petitioner. In the present case, the damage happened at the time when the LPG cylinder was being installed by the family members of the complainant and not while it was being installed by the employees of the petitioner. Therefore, the loss suffered by the complainant was not reimbursable to the petitioner in terms of the insurance policy which it had taken from the insurer. 13. For the reasons stated hereinabove, I find no merit in the revision petitions, which are accordingly dismissed with no order as to costs.
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