Dr. Sudhir Kumar Jain, J
1. The relevant facts as mentioned in the complaint filed before the State Commission are that the respondent no 4/non-applicant no 4/Rashid Khan (hereinafter referred to as "the respondent no 4") was the registered consumer in respect of LPG gas connection bearing consumer no 1848894 S.V. no 100000531012003 supplied by the respondent no 1/non-applicant no 1/M/s Sharda Gas Company (hereinafter referred to as "the respondent no 1"). The respondent no | being a Gas Agency was a local distributor/dealer of LPG Gas Cylinder vide Distributor Code no 124446 produced by the respondent no 2/ non-applicant no 2/ M/s Indian Oil Corporation (hereinafter referred to as "the respondent no 2") being production unit of LPG gas. The respondent no 3/non- applicant no 3/United India Insurance Company Limited (hereinafter referred to as "the respondent no 3") is an insurance company which as per information of the appellants/the complainants (hereinafter referred to as "the appellants") runs the business of general insurance of LPG Das consumers in coordination with the respondents no 1 & 2 meaning thereby that the respondent no 3 is insurer of every gas connection consumer. The respondents no 1 & 2 due to nature of their business are obliged to get insurance for their consumers from the respondent no 3.
1.1 Rahees Khan and the respondent no 4 were sons of the appellants. Rahees Khan was staying with his brother i.e. the respondent no 4. Rahees Khan was post- graduate in Economics and was preparing for competitive examinations besides doing Ph. D. from Central University Koni, Bilaspur, Chhattisgarh. Rahees Khan also passed ITI and B.Ed. besides qualifying CTET (Central Teachers Eligibility Test). Rahees Khan also qualified patwari examination and his interview was scheduled for 17.02.2016. The respondent no 4 being unemployed was dependent on the appellants. The respondent no 4 was regularly using the LPG gas connection for last many years. Rahees Khan on 17.11.2015 due to exhaust of gas in the gas cylinder purchased new gas cylinder vide receipt no. 104618 from the respondent no 1 and after refilling from the godown of the respondent no lbrought cylinder to the house. Rahees Khan after fixing regulator in the cylinder went to the toilet and after coming back lit the gas stove for cooking meal. The cylinder was not having safety washer and caught fire due to leakage of gas from the cylinder. The fire spread in room and articles kept in room were reduced to ashes. The fire was extinguished by the fire brigade. Rahees Khan received severe burns around 70% on his head, face, neck, hands, chest etc. and was got admitted in the hospital for treatment. Rahees Khan on 18.11.2015 was referred to Jawahar Lal Nehru Hospital and Research Centre, Bhilai for treatment. Rahees Khan (hereinafter referred to as "the deceased") succumbed to burn injuries and died on 22.11.2015. The post- mortem of dead body of Rahis Khan was conducted. The appellants gave oral intimation about incident to the respondent no 1. The appellants being successor of the deceased are entitled to receive compensation from the respondent no 3 as per policy of the Government. The appellants requested the respondent no 1 to arrange compensation from the respondent no 3. The respondent no 1 after receipt of information sent its officer for making inquiry who conducted investigation about incident from the appellant no 1, the respondent no 4, neighbors and landlord but despite this the appellants are not given any compensation. The respondent no 1 assured the appellants to forward information of the incident to the respondent no 3 for grant of: compensation after complying with the formalities and conveyed that entire process would take about 2-3 months. However, the respondent no 1 did not initiate any step for grant of compensation to the appellants. The appellant no 1 sent a letter dated 05.04.2016 to the respondent no 1 for grant of insured compensation. The appellants learnt that the respondent no 3 due to mutual understanding with the respondents 1 & 2 insured their consumers. The deceased died due to burn injuries suffered from LPG cylinder fire incident. The respondents no 1 to 3 are guilty of deficiency of service towards the appellants. The appellants are entitled to receive compensation. The appellants being aggrieved filed the present consumer complaint bearing C.C. No. 49 of 2016 titled as Husain Khan & another V M/s. Sharda Gas Company & others under section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') before the State Consumer Disputes Redressal Commission, Chhattisgarh (hereinafter referred to as the 'State Commission'). The appellants prayed as under:-
a). Rs.50,00,000/- (Rs. fifty lakhs) as compensation amount be allowed to the applicants from non-applicant No.1 to 3.
b). Rs.10,00,000/- (Rs. ten lakhs) be allowed compensation to the applicants to from non-applicant No.1 to 3 jointly for mental agony and physical pains.
c). Interest @ 18% on the aforesaid amounts be allowed from date of accident 17.11.2015 till the date of payment.
d). Cost of case be allowed.
e). Any other relief as the Hon'ble Commission may consider it proper necessary in the circumstances of the case be allowed to the applicants from non-applicant No.1 to 3.
2. The respondents filed their respective written statements/replies. The respondent no 1 in preliminary objections of the reply stated that the police has not registered any case on basis of complaint filed by the appellants in relation to fire incident happened on 17.11.2015. The appellants could not establish fire incident from domestic gas cylinder of the respondent no 1. The present complaint is false, frivolous and liable to be dismissed. The appellants are not consumers of the respondent no 1. The deceased was not consumer of the respondent no. 1 and as such the complaint is not maintainable. The deceased has not procured domestic gas cylinder from the respondent no. 1. The respondent no 4 was the consumer in respect of domestic gas connection and was not residing in the house where the incident of fire took place. The address 'of the respondent no 4 as per the record of the respondent 1 was "HNO River View Colony, near ITI, Bilaspur Choti Koni, Bilaspur" whereas alleged incident stated to have happened at "Tirthani Gali (House of Sanjay Sharma), Sarkanda, Bilaspur". The respondent no 4 never intimated the respondent no 1 about change in address. The present complaint complex issues of facts and law and as such the appellants should initiate appropriate legal proceedings for grant of compensation before the civil court. The respondent no 1 on reply on merit stated that the respondent no 1 is a gas agency and is distributor of LPG Gas produced by the respondent no 2 in Bilaspur.
2.1 The gas cylinder can never be without safety washer. The gas cylinders are checked at the time of receiving and also before delivery to the consumers. The gas cylinder is delivered to the consumer only after through checking and proper satisfaction. The leakage of gas or any other fault in the gas cylinder is brought to notice at the time of delivery itself. The alleged fire incident has not happened due to gas cylinder as per investigation conducted by the respondent no. 2 and said gas cylinder was placed at the spot of fire out of well-designed planning. The appellants never contacted the respondent no 1 for grant of compensation. The respondent no. 2 itself conducted the investigation of the fire incident. The respondent no. | received letter dated 05.04.2016 but it was not replied by the respondent no. | since it was unsigned. The respondent no 1 has procured LPG Traders Policy from the respondent no. 3 which was valid on the date of incident. The respondent no. | is not liable to pay any compensation. The respondent no. 1 has not committed any deficiency in service. The respondent no. | in Additional Submissions stated that alleged fire incident took place from any other cylinder purchased by the deceased from open market and due to the negligence on the part of the deceased. No gas cylinder belonged to the respondent no 1 was found at the spot. The cylinder was not having any burn mark as is reflecting from photograph of the cylinder clicked on 15.02.2016. The claim of the appellants is liable to be rejected. It is prayed that the complaint be dismissed.
3. The respondent no.2 in reply stated that the consumers who procured gas connections from the authorized gas agency of the respondent no 2 are insured. The respondent no 4 was procured gas connection bearing no no.1848894 from the respondent no 1 at address "River View Colony, Near I.T.I., Koni, Bilaspur" whereas the respondent no 4 was using the said gas connection at 'Sarkanda, Bilaspur (C.G.)" but the respondent no 4 never furnished information regarding change of address to the respondent no.l. The gas connection was being used by another person at another place which in violation of the Rules. The respondent no | informed the respondent no 2 about incident on 11.02.2016 and thereafter spot was inspected by the authorized by Field Officer/Assistant Manager on 11.02.2016. There was no proper platform for placing the gas stove in the room where it was being used rather gas stove used to be placed on the floor. The deceased as per information gathered from neighbors was using small gas cylinder after procuring from the market and fire incident was caused by said cylinder. The walls of the room were damaged due to blast which were subsequently got repaired by the appellants... It was also surfaced that only 200g gas was used from the cylinder and rest quantity of the gas was intact in the cylinder. The nozzle of the cylinder was found to be intact and lower portion of the regulator was found to be melting down. There was no sign of burning on the cylinder. The appellants are not entitled for compensation. The complaint is liable to be dismissed.
4. The respondent no. 3 in written statement stated that the respondent no 3 is not the insurer of every LPG consumer. The respondent no. 3 does not do business of insurance of LPG gas consumers. The fire incident had happened due to negligence of the deceased and any defect in pressure regulator should have been brought to the notice of the respondent no 1 which was not done by the respondent no. 4. The appellants are not entitled for any compensation as the deceased was not consumer of the respondent' no 1 and fire incident has happened due to negligence of the deceased himself. The deceased and the respondent no 4 did not comply with safety regulations. The appellants are not entitled for any compensation. The complaint be dismissed.
5. The respondent no 4 in written statement stated that he is a consumer in respect of domestic gas connection. vide consumer no 1848894 S.V. no 100000531012003 supplied by the respondent no 1 _ being local distributor/dealer of LPG Gas Cylinder produced by the respondent no 2 vide Distributor Code no 124446 since long which was procured from the respondent no 1 after complying with the formalities. The respondent no. 4 admitted contents of the complaint but stated that the complaint be dismissed qua the respondent no 4.
6. The contesting parties tendered affidavits along with documents in evidence.
7. The State Commission vide order dated 03.06.2017 (hereinafter referred to as the "the impugned order") dismissed the complaint. The State Commission observed that the deceased was not the consumer under the respondents no. | & 2 and the deceased being brother of the respondent no. 4 who was a registered consumer in respect of gas connection does not come within the purview of the consumer of the respondent no. 1. The State Commission also did not believe in the allegations made by the appellants in the complaint and observed that the appellants have failed to prove that the incident took place due to leakage from the gas cylinder. The part of the impugned order is reproduced as under:-
27. The deceased Rahis Khan was not consumer of the O.P. No.1 and O.P. No.2. If leakage was occurred from the gas cylinder, it shows that, Rahis Khan unauthorizedly used the gas cylinder and he was not having any gas connection, therefore only on the basis of the fact that he was brother of Rashid Khan, who was having gas connection, Rashid Khan does not come within purview of consumer of O.P.1.
The complainants are also not consumer of the O.P. No. 1.
28. Looking into the statements of Shashank Jaiswal and Vikram Kumar, it appears that the incident of the fire was not took place due to leakage from gas cylinder. If any leakage occurred from the cylinder, then the cylinder could become empty. There was no sign of burning in the Cylinder, therefore, the allegation made by the complainants are not reliable and complainants have failed to prove that incident took place due to leakage from gas cylinder, therefore, the O.P. No. 1 to O.P. No. 3 are not liable to pay any compensation to the complainants and complaint is liable to be dismissed.
29. Therefore, the complaint filed by the complainants, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
8. The appellants being aggrieved filed the present First Appeal bearing F.A. No. 1532 of 2017 titled as Hussain Khan & another V M/s Sharda Gas Company & others under-section 19 of the Act. The appellants challenged the impugned order on the grounds that the impugned order is devoid of law and is liable to be set aside. The State Commission did not appreciate the documents and affidavits filed by the appellants. The State Commission wrongly held that the deceased was not the consumer of the respondent no | and concluded that the deceased was unauthorizedly using the gas cylinder as he was using the gas cylinder with the prior approval of the registered consumer i.e. the respondent no. 4. The State Commission has failed to note that the location of gas cylinder was immaterial. The State Commission has failed to appreciate Nuksani Panchanama which was prepared by the police immediately after fire incident became black due to burning and the gas cylinder was kept near place of occurrence. The police also noted that in the regulator of cylinder, safety rubber was not found. The State Commission erred in relying on the report prepared by the employee of the respondent no 2. It was prayed that the present appeal be allowed and the impugned order be set aside.
9. We have heard Sh. R. K. Bhawnani, Advocate for the appellants, Ms. Priya Puri, Advocate for the respondent no 1 and Sh. Rajesh K. Gupta, Advocate for the respondent no 3. The respondent no 4 also appeared in person through VC. None has appeared on behalf of the respondent no. 1 to advance arguments. We also perused the relevant record.
10. The counsel for the appellants referred factual backgrounds and thereafter argued that the State Commission has grossly erred in holding that the deceased was not a consumer of the respondents 1 & 2 as per section 2(1)(d)(ii) the Act and term 'hire' is not defined under the Act and argued that term 'hire' has been used in the sense of 'avail' or 'use'. The counsel further argued that consumer means any person who avails or uses any service. It was further stated the respondent no 4 was a consumer under the respondents no 1 & 2 who availed services of the respondents no 1 & 2 for consideration and deceased was beneficiary of the services availed by the respondent no 4. The counsel vehemently argued that definition of the consumer cannot be strictly interpreted and restricted with respect to gas cylinder as it would not serve the intended purpose of the Act and to substantiate said argument referred M/s Spring Medows Hospital & another V Harjot Ahluwalia, AIR 1998 SC 1809. It was argued that the deceased was using the gas cylinder with prior approval of the respondent no 4 and as such State Commission wrongly concluded that the deceased was using the gas cylinder unauthorizedly. The counsel empathetically referred Nuksani Panchanama and argued that the State Commission has failed to consider said vital document which was prepared by the police immediately after fire incident and referred decision delivered by this Commission in Indian Oil Corporation Limited V Late Om Prakash Seth & others delivered on 17.09.2014. The counsel at the end argued that impugned order be set aside and appeal be allowed.
11. The counsel for the respondent no 2 during arguments referred statements of Shashank Jaiswal and Vikram Kumar and argued that the State Commission rightly appreciated their statements to arrive at conclusion that the respondents no. | to 3 are not liable to pay compensation. It was further argued that incident happened on 22.11.2015 and the Assistant Manager of the respondent no 2 inspected the cylinder on 12.02.2016 and at that time it was noticed that gas was only 200g short in the cylinder which reflects that there was no gas leakage from the cylinder. It was emphatically argued that fire was not caused due to gas leak from the cylinder. It was also noticed that the gas stove was placed at the floor of the room rather it should have been placed above the cylinder level which itself reflects negligence on the part of the deceased. The counsel further argued that the deceased was using a small cylinder which actually caused the accident. The counsel during arguments also attacked panchanama prepared on 17.02.2016 by the police wherein it was mentioned that safety rubber was found missing from the cylinder and stated that it is after thought in view of report prepared by the Assistant Manager of the respondent no 2. The counsel further stated that the respondent no 1 being one of dealers has to perform certain quality control before cylinders are handed over to the consumers. The counsel also argued that onus was on the appellants to prove that the cylinder was defective which could not be discharged by the appellants. The counsel ultimately argued that the present appeal be dismissed.
12. The counsel for the respondent no 3 argued that the Gas connection bearing consumer No. 1848894 issued in the name of Rashid Khan, at address River View Colony, Near ITI, Bilsaspur but was being used at Tirthani Gali, Sarkanda where the deceased was residing with his brother i.e. the respondent no 4. The deceased was not a consumer of the respondent no. | and as such the present complaint is liable to be dismissed. There was no deficiency in service on the part of the respondent no 3 rather the deceased himself was negligent in using the gas cylinder. The counsel ultimately prayed that the present appeal be dismissed and the impugned order be confirmed.
13. It is apparent that the respondent no. 1 was a dealer of LPG Gas Cylinder vide Distributor Code no 124446 under the respondent no 2. The respondent no. 4 was the registered consumer of the respondent no.1 with respect to domestic LPG gas connection bearing consumer no. 1848894 and S.V. No. 100005310112003 which was issued to be installed at premises situated at River View Colony, near ITI, Bilaspur Choti Koni, Bilaspur. The respondent no 4 was regularly using said LPG gas connection for last many years. The deceased who was son of the appellants and younger brother of the respondent no 4 was staying along with the respondent no. 4 at Tirthani Gali. (House of Sanjay Sharma), Sarkanda, Bilaspur. The deceased on 17.11.2015 refilled the gas cylinder vide receipt no. 104618 from the godown of the respondent no 1 and thereafter brought cylinder to the house situated at Tirthani Gali (House of Sanjay Sharma), Sarkanda, Bilaspur. The deceased lit the gas stove for cooking purpose but the cylinder caught fire. The fire brigade came at the spot and extinguished the fire. The deceased received severe burns (around 70%) and due to burn injuries died on 22.11.2015. The police was also informed by the medical department on 22.11.2015. The appellants being successor of the deceased claimed their entitlement to receive compensation from the respondent no 3 and sent a letter dated 05.04.2016 to the respondent no 1 for award compensation. The respondent no 2 has procured Public Liability Policy (Non- Industrial Risk) bearing no 021700275P101332273 from the respondent no. 3 which was valid from 00.00 hrs of 02.05.2015 to midnight on 01.05.2016 which means said policy was valid on the date of incident. The respondent no 1 informed the respondent no 2 about incident on 11.02.2016 and thereafter the respondent no 2 deputed authorized Field Officer/Assistant Manager for spot inspection. Vikram Kumar AM (LPG-S), Bilaspur, Raipur AO inspected the spot on 11.02.2016 and submitted the Report on 12.02.2016. The police also prepare nuksani panchanama on 17.02.2016. The respondent no 3 vide repudiation letter dated 15.09.2016 addressed to the respondent no 2 repudiated | claim on the ground that accident did not take place at the registered premises of the customer.
14. We shall consider the main contention of the respondents and also argued by _ the counsels of the respondents no 2 & 3 that the appellants are not consumers within the mandate of the Act under the respondents no 1 & 2 and as such the appeal is liable to be dismissed. It is not in dispute the respondent no 4 was registered owner in respect of gas connection as detailed herein above and registered premises for installation of said connection was River View Colony, near ITI, Bilaspur Choti Koni, Bilaspur but said gas connection was to be used at Tirthani Gali (House of Sanjay Sharma), Sarkanda, Bilaspur. The present complaint is not filed by the respondent no 4 who was the registered consumer of the gas connection rather the present complaint is filed by the parents of the deceased. The State Commission in the impugned order also held that the deceased was not the consumer of the respondent no 1 and so the appellants are also not the consumers under the respondent no 1. Sh. R. K. Bhawnani, Counsel for the appellants strongly countered the argument that neither the deceased nor the appellants were not the consumers of the respondents no 1 & 2 in respect of domestic gas connection. The counsel for the appellants argued that the State Commission grossly erred in holding that the deceased was not consumer of the respondents no 1 & 2.
15. The Consumer Act of 1986 was enacted to provide for better protection of the interests of consumers. It governs the relation between the consumer and the service provider. It is a specific legislation enacted only for purpose of protection of interests of the consumers. The existence of the relationship of the consumer and the service provider is must before invoking jurisdiction of the Act. The basic purposes of the Act are to protect consumers against defective goods, unsatisfactory services, unfair trade practices, etc. Section 2(1)(d) defines Consumer and includes a person who buys any good or hires or avails any service for a consideration. It reads as under:-
(d) 'consumer' means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.--For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.
16. Sh. R. K. Bhawnani, counsel for the appellants vehemently argued that term 'hire' is not defined under the Act and referred the dictionary meaning of hire which means to procure the use of services at a price. He argued that term 'hire' | is also used in the sense of 'avail' or 'use' and redefined the definition of consumer by stating that the consumer means any person who avails or uses any service. Sh. R. K. Bhawnani after referring M/s Spring Medows Hospital & another V Harjot Ahluwalia argued that when a person hires services, he may hire it for himself or for any other person and in such cases the beneficiary of these services is also a consumer. He vehemently argued the deceased being the beneficiary of the respondents 1 & 2 was consumer in respect of gas connection.
The Supreme Court in the above case observed as under:-
In the present case, we are concerned with clause (ii) of Section 2(1)(d). In the said clause a consumer would mean a person who hires or avails of the services and includes any beneficiary of such services other than the person who hires or avails of the services. When a young child is taken to a hospital by his parents and the child is treated by the doctor, the parents would come within the definition of consumer having hired the services and the young child would also become a consumer under the inclusive definition being a beneficiary of such services. The definition clause being wide enough to include not only the person who hires the services but also the beneficiary of such services which beneficiary is other than the person who hires the services, the conclusion is irresistible that both the parents of the child as well as the child would be consumer within the meaning of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the Act.
17. We shall also be considering another limb of argument advanced by Sh. R. K. Bhawnani that the definition of the consumer cannot be given strict and restrictive interpretation in case of gas cylinder as it would be against the intended purpose of the Act. The Consumer legislation is beneficial legislation and whosoever is using gas connection or cylinder being family member of the registered consumer is a consumer within the ambit of the Act. The deceased was using the gas cylinder/connection with the prior approval of the respondent no 4 and further it is a general practice that the gas cylinder/connection is registered in the name of one person of the family but it is also being used by other family members.
18. We are in agreement with the contention of Sh. R. K. Bhawnani that the gas cylinder/connection is usually and generally obtained in name of one family member and is being used by other family members and individual gas cylinder/connection cannot be possibly obtained in the name of each family member and further term consumer cannot be defined in the restricted manner in case of gas cylinder/connection and needs to be given wider interpretation. In the present case, the registered consumer of the gas connection did not file present complaint rather it has been filed by the parents of the deceased. The registered consumer is not the actual victim of the fire incident happened on 17.11.2015. The present complaint should have been filed by the respondent no. 4 being the registered consumer. The appellants do not have any locus standi to file the present consumer complaint when the registered consumer of the gas connection is available rather impleaded as the respondent no 4. Section 2 (1) (c) of the Act defines the complainant which includes the consumer. The Consumer Act of 1986 does not admit any other person other than the consumer as the complainant. The present complaint is not filed by the actual registered consumer and the definition of the consumer cannot be extended to such extent to include any family member when the actual consumer is available. We are not in agreement with the argument advanced by Sh. R. K. Bhawnani that the appellants are consumer as mandate of the Act of 1986. The decision delivered in M/s Spring Medows Hospital & another V Harjot Ahluwalia is not applicable in the present case as in the said case the consumer complaint was filed by the parents of the actual consumer who was minor but in the present case the complaint was not filed by the appellant on behalf of the actual consumer i.e. the respondent no 4 rather it was filed due to death of the deceased who was brother of the registered consumer i.e. the respondent no 4 and died on 17.11.2015. The arguments advanced by Sh. R. K. Bhawnani, counsel for the appellants although appearing to be attractive are without legal force and cannot be accepted. We are in agreement with the finding of the State Commission that neither the deceased nor the appellants are consumers under the respondents no 1 & 2. There is no reason to interfere in said finding of the State Commission in impugned order and is accordingly upheld. As the appellants failed to establish themselves as consumers of the respondents no 1 & 2 then there is need to give findings on the other issues raised by the contesting parties or that the appellants are entitled to claim the compensation. The provisions of the Consumer Protection Act, 1986 are not available to the appellants. The present appeal is accordingly dismissed along with pending application if any. However the appellants shall be at liberty to initiate appropriate legal proceedings for claiming the compensation and shall be able to claim benefit in limitation if so permitted under law.
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