RAJASTHAN STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, JAIPUR
Hon’ble Mr. Justice S.K.M. Lodha, President;
Mr. Damodar Thanvi, Member; Mrs. Saria Khan, Member
AKLESH KUMAR BANSAL & OTHERS—Complainants
versus
M/S. FLAME GAS SERVICE & OTHERS—O.P.
C.C. No. 121 of 1990—Decided on 8.5.1992

Headnote:(i) Consumer Protection Act, 1986 - Sections 2 and 14 - Gas Cylinder Rules, 1981 Rules IS, 44, and 70 - Supply of defective refilled gas cylinder - Mechanic sent to attend the complaint not trained - He adopted faulty procedure when he pressed the nob by screw driver stating that there was air - Service rendered was deficient resulting in accident Award of compensation for death of the complainant because of burns received.

       Held, Those records have not been produced which is in possession of opposite party No. 1 or for that matter with opposite party No.3, there is no other alternative but to accept what has been deposed by complainant No.1 The fact as stated by complainant No.1 is that the gas was ejected by Poonamchand (opposite party No.2 in the Kitchen clearly shows that he ejected some air from the said gas cylinder. Then under rules 74 and 75 of the Rules the report was required to be submitted. The cylinder was defective as the air was to be ejected from it by opposite party No.2 for its proper use and in that process the accident had taken place. Complainant No.1 got the complaint about the cylinder registered at 2.30 p.m. The mechanic came at 5.15 p.m. or 5.30 p.m. and according to complainant No. 1 he pressed the· nozzle to eject the air from the cylinder so that the gas may be lighted. The dealer (distributor) (opposite party No.1) is required to attend to the complaints of the consumers. For attending and removal of the complaints it is expected from a distributor that he has to maintain a trained mechanic to deal with whenever there is call from any consumer of opposite party No.3. We may advert to rule 70 of the Rules. According to that a competent person has to be in charge of operation. Such mechanic has to observe general precautions of safety. According to complainant No.1 the mechanic was not trained as was necessary under rule 70 of the Rules. The opposite parties in the versions of the case have denied that the mechanic I was not an expert. The opposite parties, as stated above, did not produce any evidence to show that opposite party No.2 was a trained mechanic. Here at this juncture it may be mentioned that on 22.10.1991 it was ordered that the affidavits of Poonamchand and Ram Singh were not to be taken into consideration for the reasons mentioned in the order sheet dated 22.10.1991. Thus not only the refilled gas cylinder supplied to the complainant was defective but the mechanic who was sent by opposite party No. 1 to attend to the complaint was also not well versed as is required under rule 70 of the Rules. The case of complainant No.1 has already been stated hereinabove as what is mentioned in para 4 of the complaint. To put in brief the mechanic pressed the nozzle with screw driver for 7 -8 minutes as a result of which gas came out from the cylinder. Thereafter he stopped for one minute and again started pressing it for 7 to 8 minutes, as a result of that the gas spread. On the other hand the common plea taken by the opposite parties is that the burner was kept open by which the gas leaked and it spread.

       Opposite party No.2 when he came at 5.15 p.m. or 5.30 p.m. smelt the gas and asked Smt. Sunita Bansal wife of complainant No. 1 to take him to the Kitchen and thereafter he noticed that the gas had already leaked in the kitchen and the, room. He therefore asked the inhabitants of the house to open the door of the kitchen and the rooms and not to light any match or to put on the switch. The important feature of the Defence comes here. According to the version of the case somebody in the vicinity of the room of the kitchen lighted the match or put the electric switch on as a result of which fire was caught. It is significant to note that according to opposite party No.2 he had already given instructions when he was in the kitchen not to light the match or electric switch. Still for the reasons best known to opposite party No.2 he has stated that the fire was caught on account of the lighting of the match or putting on the electric switch.

       When the accident had taken place it was incumbent upon opposite party No. 1 or for that matter for opposite party No.3 to send a report in this regard as envisaged by the Rules. No one knows whether any report was sent and what were the contents of the report, in the absence of the action being taken by the opposite parties there is no doubt that without any supporting material for this plea it cannot be accepted from the evidence on record. it appears that the refilled gas cylinder was defective and that performance of service suffered form deficiency. There is no doubt that opposite party No. 2 was employed by opposite party No. 1 to attend the complaints of the consumers. There is no material that the mechanic Poonamchand (mechanic) (opposite party No.2) Was trained From the evidence it is also established that he adopted faulty procedure when he pressed the nob by screw driver stating that there was air and that air has to be ejected. Complainant No. 1 has alleged that the mechanic acted in the negligent manner without following the proper safety precautions. When he found that the gas cylinder was containing air and it was necessary to eject it the gas cylinder should have been taken either to the shop of the dealer (distributor) or in open space with a view to avoid likelihood of fire. It may be stated that complainant No.1 lodged the complaint with opposite party No.1 to the effect that burning did not let fire when connected to cylinder For doing that the mechanic should have first checked the gas stove but instead that he with the help of the screw driver pressed the nozzle as a result of which the gas leaked. Rule 15 of the Rules provides for precautions.

       In this case the relevant factor in deciding the consumer dispute is whether the gas cylinder supplied was defective and there was deficiency in the service rendered by the opposite parties. The gas cylinder in question was defective as per the affidavits of the complainants and there was deficiency in the service of the opposite parties and also that there was negligence on the part of the mechanic to render the service to complainant No.1 we hold that complainant No.1 has proved the allegations. The mechanic should have taken the safety precautions. See 1(1992) C.P.I. 37. Having considered the material on record and the circumstances emerging from the affidavits of the complainants and the documents, we have no hesitation to hold that opposite party No.2 acted in the negligent manner, or, no safety precautions were observed by him. The complainants have proved by the affidavits the allegations made in the complaint to show that there was deficiency in service of opposite parties No. 1 to 3. Opposite party No.2 was not a trained mechanic. At this juncture it will be pertinent to state that according to the opposite party that negligence was to be attitude to the complainants. This cannot be accepted. It is the responsibility of the manufacturer (opposite party No.3) or for that matter of the dealer (opposite party No.1) to provide the domestic gas to the consumer with due care and precautions and the service be rendered keeping in view the safety precautions provided under the Rules. The manufacturer and dealer have to keep in mind the likelihood of any accident while using the gas cylinder and anticipating such contingency to take necessary precautions while rendering the services to the consumer. In any case in our view the service rendered to complainant No. 1 was deficient which has resulted into accident in the present case. Points No. 1 and 2 arc decided against the opposite parties. (para 5)

       (ii)Compensation Claim - Supply of defective LPG gas cylinder - Deficiency-in-service in attending complaint - Accident - Wife of complainant succumbed to the injuries - She, 31 years of age, drawing a salary of Rs. 1,340/- A ward of Rs. 2,85,000/- would be just compensation payable to her husband and children.

       Held, There is no doubt that complainant No. 1 on account of death of Smt. Sunita lost his consortium. The complainant is the head of the family and natural guardian of his two minor children (complainants No.2 and 3. The loss on account of consortium is well known and therefore the complainant in this case deserves compensation on this ground. The complainant has claimed Rs. 51akhs which he would have got from her earnings and Rs. 50,000/- as he has been deprived of wifes devotion, company, love, comfort and mutual services etc. There in no rule of thumb for calculating such compensation. Complainant No.1 has lost his wife and complainants No.2 and 3 lost their mother. It is a permanent loss to them. For loss of consortium pecuniary compensation can be awarded. No tangible evidence in this case could be produced. Having considered all the relevant facts and circumstances, we consider proper to award compensation as under:

       1. Pain and suffering of complainant No.1. Rs. 35,000/-

       2. Loss of consortium etc. Rs. 50,000/-

       3. Loss of expectation of life. Rs. 2,00,000/-

       Total: Rs.2,85,000/-

       Taking into consideration of the circumstances of the case we are of opinion that a sum of Rs. 2,85,000/- would be just compensation payable to complainant No.1 complainants No.2 and 3. (Para 6)

       (iii) Compensation Claim - LPG Traders Combined Policy - Supply of defective LPG Gas Cylinder - Accident - Claim of compensation not lodged with the Insurance Company Claim lodged with dealer - Duty of the dealer to pursue the claim with Insurance Company Apathy shown by the dealer is unpardonable.

       Held, Complainant No.1 is a third party and Smt. Sunita was also third party and they were to be indemnified by the insurance Policy. The accident in question occurred during the subsistence of the insurance policy obtained by opposite party No.1. The purpose for insisting on the insurance policy to be obtained by the dealer is obvious. If any third party claims compensation on account of the loss of life or property as a result of accident due to the use of LPG cylinder there should be sufficient cover to satisfy the claim arising out of such accident. The insurance policy is a means to satisfy such claims. It is for this reason that the insurance policy is insisted upon whereby the insurer undertakes to indemnify the insured in case of any such loss sustained by him while making payment to the consumers involved in the LPG accidents. See 1(1992) C.P.J. 37. In view of the legal position we are of the view that since the complainants have lodged the claim with the dealer (distributor) it is the duty of the dealer to pursue the claim of the complainant with Insurance Company to settle the claim. The apathy shown by the dealer (opposite party No.1 is unpardonable complainants No.1, 2 and 3 are consumers, and they are entitled to compensation. (para 9)

       For the aforesaid reasons in view of our findings recorded hereinabove complainants No: 1 to 3 are entitled to compensation amounting to Rs. 2,85,000/- from the opposite parties. Opposite party No.1 is the dealer (distributor) who supplied the gas to complainant No.1 Opposite party No.2 is the mechanic (employee of opposite party No.1 and opposite party No.3 is the manufacturer. All the opposite parties are jointly and severally liable for the aforesaid sum to be paid to complainants No.1 To 3. It is, therefore, ordered that opposite parties shall pay Rs. 2,85,000/- as compensation to complainants No. 1 to 3 within one month from the date of the receipt of the order failing which complainants No. 1 to 3 shall be entitled to recover the aforesaid amount with interest@ 12% P.a. from the opposite parties from the date of the expiry of one month from the date of the receipt of the order until realization.(Para 10)

       Result: Complaint allowed accordingly.

       IMPORTANT POINT

       When the refilled LPG Cylinder supplied to the consumer was defective and the service rendered suffered from deficiency resulting in accident consumer entitled to claim compensation for the injuries suffered.