Bharat Petroleum Corporation Ltd. v. Dharam Pal

R.C Jain, Presiding Member:— Aggrieved by the common order dated 25.04.2006 passed by Delhi State Consumer Disputes Redressal Commission, Delhi (in short ‘the State Commission’) in complaint case No. C-7 of 2001, C-8 of 2001 and C-10 of 2001, Bharat Petroleum Corporation Limited (original opp. Party No. 2) has filed the present appeals. By the impugned order, the State Commission has partly allowed the complaints filed by the three complainants, Dharam Pal, Baby Preeti (Minor through natural guardian, Satish) and Ashok, claiming various amounts of compensation for the death of two persons and severe burn injuries to Baby Preeti in a tragic incident of fire which took place at house No. E-1300, Jahangir Puri, Delhi belonging to Dharam Pal on 16.2.1999 due to leakage from a LPG cylinder, which was defective and gas started leaking from it when outer cap was removed in order to fix the regulator. The State Commission, holding the appellant-Bharat Petroleum Corporation Limited and the Distributor, Bharat Gas Service guilty, partly allowed the complaint with the following order/directions:—

“16. In the result all the complaints are allowed in the following terms:—

(i) Bharat Petroleum Corporation Ltd. (OP No. 2) shall pay compensation of Rs. Two lacs each for the person who died in the occurrence and Rs. One lac for the child who was completely defaced, permanently lost her ear and suffered scars on the body and face.

(ii) Bharat Gas Service (OP No. 1) shall pay lumpsum compensation of Rs. 50,000/- to its consumer i.e Complainant-Dharam Pal.

17. The above payment shall be made within one month.

2. The facts and circumstances, which led to the filing of the complaints, have been amply noted by the State Commission in the impugned order. However, to facilitate discussion, we would like to recapitulate them in brief. Dharam Pal, complainant in complaint case No. C-10 of 2001, was an ordinary resident of house No. C-1300, Jahangir Puri, Delhi and had a LPG gas connection of Bharat Petroleum Limited through its distributor Bharat Gas Service. On 15.02.1999, he obtained refill supply of a cylinder. On 16.2.1999 certain relatives and guests, including the family of his brother-in-law, Ashok and Satish had gathered in connection with betrothal ceremony in the morning. At about 10.30 a.m, Smt. Usha, wife of Dharam Pal removed the aluminum seal of the refill (new cylinder) and tried to fix the regulator on but even before that, the gas started leaking from the cylinder and the entire kitchen and the adjacent room suddenly caught fire. Certain cooking job was going on in the adjoining room where an electric stove was on. As a result of this fire, Usha suffered fatal burn injuries, Ashok's son also suffered fatal burn injuries and daughter of Satish suffered severe burn injuries, which completely disfigured her face and causing loss of one ear. Other persons present in the house also received minor burn injuries. According to the complainants, the fire causing loss of human lives and injuries was due to defect in the cylinder inasmuch as the rubber seal was missing from the cylinder and the gas started gushing out of the cylinder as soon as the plastic seal was removed in order to fix the regulator on the cylinder. Dharam Pal sought a compensation of Rs. 19,33,000/- with interest for the untimely death of his wife, who was aged about 28 years at the time of death and for the loss and damage to the household effects as detailed in the complaint. Different amounts compensation were sought in the other two complaints in regard to the death of the son of Ashok and severe injuries to Baby Preeti daughter of Satish. The complaints were resisted on behalf of the manufacturer and distributor of the LPG cylinder, denying any defect in the cylinder and deficiency in service or their liability to pay any compensation. It was sought to be explained that the cylinder was checked by the deliveryman for any leakage and that the case of the complainants before the local police, through father-in-law of Dharam Pal, was that the fire had occurred as an electric stove was already on at the time when Smt. Usha tried to change the cylinder with the new cylinder. Liability to pay any compensation, much less as sought by the complainants, for any loss or damage suffered by the complainants is also denied on the strength of clause 11 of subscription agreement executed between the parties which provided certain ‘Dos’ and ‘DON'Ts’ while accepting the delivery of the cylinder and its use. Going by the respective pleas and the evidence and material brought on record, the State Commission concluded that the gas cylinder manufactured by opposite party No. 2.appellant was defective and was supplied by its dealer-opposite party No. 1-Bharat Gas Service without ensuring that it was in perfect condition and therefore, they were liable for deficiency in service in supplying a defective cylinder. Based on this conclusion, three complaints were partly allowed in the above manner.

3. During the pendency of the appeals, the appellant-Corporation was directed to pay the amounts as ordered by the State Commission and the appeal was admitted for consideration of a larger question ‘whether there was any material to show that the appellant was negligent on account of defect in the cylinder or regulator or whether the incident had taken place on account of negligence on the part of the consumer’. In compliance of the directions of the Commission, the appellant-Corporation has already deposited the total awarded sum of Rs. 5 lakh with the State Commission while opposite party No. 1-Bharat Gas Service has not challenged the finding and order of the State Commission by filing an appeal and has already paid a sum of Rs. 50,000/- to each of the three complainants as far back as on 19.06.2006 Only Bharat Petroleum Corporation Limited has come in appeal.

4. We have heard Mr. Manoj Singh, learned counsel representing the appellant-Corporation and Mr. Suresh Srivastva, learned counsel representing respondents No. 1-complainants but no one appeared for the distributor-Bharat Gas Service or the police authorities, who were also arrayed as parties in the original complaint.

5. Learned counsel for the appellant would assail the finding of the State Commission holding that the cylinder supplied by the appellant was defective and had been supplied by its distributor without proper checking by exercising due care, primarily, on the ground that the same is not based on correct and proper appreciation of the evidence and material brought on record. In this connection, his first submission is that the facts and circumstances which have emerged from the complainants' own version would categorically establish that the mishap in this case had occurred not on account of any defect in the LPG cylinder but it was on account of negligent handling of the cylinder by Smt. Usha, wife of complainant-Dharam Pal inasmuch as at the time when she tried to change the gas cylinder with the new cylinder in question after the old cylinder had exhausted, an electric stove was already on. Basis of this submission is the report which was lodged by the father-in-law of the complainant-Dharam Pal with the police immediately after the occurrence. It is no doubt true that these facts find mention in the said police report. Nevertheless, the fact remains that there was leakage from the cylinder to the extent that it caught immediate fire which not only engulfed the kitchen but also the adjoining room. According to the complainants, the gas had leaked/gushed out from the cylinder when the upper cap was removed and there was no rubber seal/valve which is usually fixed (by the manufacturer) at the mouth of the cylinder in order to prevent any leakage of the gas from the cylinder till such time a regulator has been fixed on it. In the circumstances, the important question which arose for consideration was as to whether the cylinder supplied by the distributor was in order or defective as claimed by the complainants.

6. Having regard to the facts of the present case that the cylinder supplied on the preceding day of the incident from which the leakage is claimed was refilled at the plant of the appellant, the onus lay heavily upon the appellant to establish that it was defect-free. It would appear that as per their standing instructions/practice, the appellant, as it was duty bound, had instituted a fact finding inquiry so as to find out the cause of the fire incident. A report of such inquiry has been filed on record. We have perused the contents of the same. It would show that condition of the hotplate ‘OK’; rubber tube slightly burnt at the nozzle end of the hotplate and pressure of the regulator. After analysis the inquiry officer concluded; “it seems that while changing the cylinder, there was leakage on the opening of the cap of the cylinder which caught fire because electric heater was ‘ON’”. We inquired with the learned counsel for the appellant if the cylinder in question was subjected to any technical examination in order to find out if there existed any defect in the said cylinder. We were informed that no such examination was done because the cylinder in question was seized by the police and was not made available to the appellant for such examination. In this connection, we may simply observe that in view of specific allegation of the complainants that the cylinder was defective inasmuch as the rubber seal/valve was missing and the gas started gushing out as soon as the upper cap was removed, it was incumbent upon the appellant to have a technical examination of the cylinder conducted in order to rule out any such defect as pointed out by the complainants. In these circumstances, adverse inference is liable to be drawn against the appellant in that behalf. It has come on record that electric stove was being used for cooking purpose in the adjoining room where several other articles were stored and not in the kitchen where Smt. Usha had tried to change the gas cylinder by fixing regulator. With this position, unless there was heavy leakage from the cylinder, it could not have immediately reached the adjoining room where the electric stove was on. This circumstance leads us to infer that there was heavy leakage of gas from the cylinder in question at the time of fixing the regulator, which could not have been possible unless there was a defect of one kind or the other in the cylinder supplied by the appellant through the distributor-opposite party No. 1.

7. Despite the tragic incident, the appellant has tried to take shelter under clause 11 of the agreement which mandates observance of certain precautionary measures in order to avoid any mishap at the time of changing the cylinder. Even if we assume that the said precautions/safeguards were not meticulously followed by Smt. Usha at the time of changing the cylinder (because the electric stove was on), this circumstance alone would not exonerate the appellant and the distributor from their liability arising out of this mishap in which two lives were lost and a girl child was severally defaced and her ear was damaged as a result of injuries sustained by her. For these additional reasons, we find that the finding of the State Commission holding the appellant and opposite party No. 1 guilty of deficiency in service is just and proper and is not liable to be set aside.

8. Learned counsel for the appellant lastly argued that even if there was some defect in the cylinder or deficiency in service in supplying the defective cylinder, it was incumbent on the part of opposite party No. 1-dealer to ensure the supply of defect free cylinder rather than on the appellant and therefore, the appellant cannot be held guilty and liable for any such deficiency. The basis of this argument is the agreement dated 20.07.1987 executed between the appellant and the distributor-Bharat Gas Service in which the entire liability arising out of such like mishappenings as in the present case, is squarely on the distributor, the agreement to supply the gas cylinder being on principle to principle basis. Even if it is assumed to be the correct contractual position, the appellant (being the manufacturer of the gas cylinder) cannot escape its liability to pay compensation to the victim of such an unfortunate incident. We may, however, observe that the appellant if so advised, would be within its rights to pursue its remedy for recovery of the amount from the distributor.

9. Having regard to the entirety of the facts and circumstances of the case, so far as the adequacy or otherwise of the compensation so awarded by the State Commission is concerned, we may simply observe that going by the factual position that two persons have lost their lives and one girl child has been permanently defaced, total compensation of Rs. 6.5, lakh does not appear to be commensurate with the loss, injury and damage suffered by the complainants. Unfortunately, the complainants have felt content with the same and have not filed any appeal seeking upgradation of the relief, we are, therefore, constrained to restrict the compensation to the extent it has been awarded by the State Commission.

9. In the result, the appeals fail and are hereby dismissed. The order of the State Commission passed in these three complaints is upheld although for different/additional reasons. As already noted, Bharat Gas Service-distributor has already paid the compensation which it was asked to pay to the three complainants and similarly, the appellants have deposited the entire awarded amount of Rs. 5 lakh with the State Commission. We, therefore, direct the State Commission to disburse the deposited amount alongwith accrued interest thereon to the complainants in accordance with the direction given in the impugned order. There will be no order as to costs in these proceedings.