PER VINEETA RAI, PRESIDING MEMBER

1. This first appeal has been filed by Narsimha Kamat, Complainant No.1 before the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) and Appellant No.1 herein (other 2 Appellants being his minor daughters) being aggrieved by the order of that Commission which had dismissed their -1- complaint filed against M/s Ghai Gas Service and Bharat Petroleum Corporation Limited, Opposite Parties before the State Commission and Respondents No.1 and 2 respectively herein.

2. In his complaint before the State Commission, Appellant stated that on 02.07.1996 his wife Anushri Kamath (hereinafter referred to as the Deceased) suspected gas leakage from the cylinder used in the kitchen and complained about the same to Respondent No.1. The complaint was attended to only after 2 days i.e. on 04.07.1996 and that too after she had personally visited the office of Respondent No.1. The mechanic who attended to the complaint changed some parts and thereafter made out a bill for Rs.340/- as also Rs.10/- as service charges. As the said amount was considered high, Deceased paid only Rs.150/- to the mechanic and told him that she would settle the remaining payment after visiting the office of Respondent No.1 next day. At about 3.45 a.m. on the night intervening 4-5.07.1996 Deceased experienced a strong smell emanating from the kitchen and she went there and immediately put off the gas regulator. Thereafter to ensure that there was no further gas leakage she triggered the gas lighter near the burner since she had seen the mechanic also test for leakage by lighting a match during his visit and thereafter there was a loud explosion in which she sustained burn injuries on her face, hands and feet. She was admitted to KEM Hospital with 37% burn injuries and succumbed to the same following Septicemia 4 days later. According to the Appellant, although the news of the incident and the death of the Deceased was conveyed to Respondent No.1, no one visited the site to make any enquiries, including reporting of the incident to the Controller of Explosives as required under the law. Appellant alleged that the accident and the unfortunate death of the Appellants wife occurred because the mechanic of Respondent No.1 had rendered deficient service in not attending properly to the complaint and the parts that were replaced appeared to be defective. He also left the place without completing the repairs as he himself admitted to a neighbor of the Appellant one Shri Mehta. Appellant further stated that because of the trauma suffered by him he could not follow up the case after the letter that he had written on 14.10.1996 until

05.05.1998 when he asked the Respondent No.1 to pay a compensation of Rs.20 Lakhs for causing the premature death of his wife due to deficiency in service and negligence. Since he did not receive a satisfactory response to this communication, he filed a complaint before the State Commission against Respondents No. 1 and 2 and requested that they be directed to jointly and severally pay Rs.5 Lakhs for loss of company and deprivation of marital life; Rs.5 Lakhs to his children for deprivation of maternal care; Rs.5 Lakhs on account of future loss of income earned by the Deceased; Rs.4.50 Lakhs as compensation and Rs.10,000/- as litigation costs.

3. Respondents on being served filed a written rejoinder denying the allegations pertaining to any deficiency in service. Respondent No.1 stated that the complaint regarding gas leakage was lodged on 04.07.1996 by the Deceased and on the same day itself a mechanic was deputed to attend the complaint. It was further stated that thereafter the Deceased paid a sum of Rs.340/- to the mechanic and denied that only a part payment was made inter alia on the ground that some repairs were still pending. Respondent No.1 further denied that it had been informed about the incident immediately after the incident and stated that they were informed about it vide letter dated 05.05.1998 i.e. almost two years after the incident, after which Respondent No.2 was also informed. It was further stated that it was well established by investigations conducted by the police as also the dying declaration of the Deceased herself that the unfortunate incident occurred due to the negligence on the part of the Deceased since she failed to switch off the gas regulator and tested for gas leakage by using a lighter, a practice which had been widely publicized as being very hazardous. It was also contended that the LPG cylinders are manufactured from special steel and due care is taken regarding its safety. In case of any mishap like leakage, the safety precautions have to be taken by the customers themselves, including switching off the regulator. In the instant case the Deceased herself had admitted in the dying declaration that the gas was not properly put off by her which was likely to result in the leakage of the gas. Thus, the negligence, if any, lay on the part of the Deceased and the Respondents cannot be blamed for the same. Therefore, the question of deficiency in service or settling the insurance claim with the insurance company (which has not been impleaded as a party) did not arise.

4. The State Commission after hearing the parties and on the basis of evidence produced before it dismissed the complaint by observing as follows:

7. There is no proof placed on record to show that O.P.no.1 was deficient in service or negligent in rendering service to the customer. The dying declaration of Anushri Kamath was recorded by the Investigating officer. Police agency also recorded statements of close relatives of Anushri Kamath, including husband and father of deceased Anushri. They have not attributed any negligence to O.P.no.2. The dying declaration and police statements are part of the record and proceeding of this complaint.

8. Ld.Advocate Mr.Shirish Deshpande submitted that dying declaration of Anushri Kamath cannot be considered on the ground that there is nothing on record to show that Anushri was conscious at the time of recording of dying declaration. He also submitted that dying declaration cannot be considered as a piece of evidence.

9. Dying declaration, which is properly recorded is a best piece of evidence. In criminal trials the dying declaration is regarded as a legal proof, provided all the legal requirements are complied with before recording of Dying declaration. Dying declaration can be the basis for conviction. A statement made by a person who is on the deathbed under expectation of death, is called a dying declaration. If the person is mentally conscious, then statement of a person who is on the deathbed, can be recorded in presence of doctor. It is said that a person on the deathbed and who is likely to embrace death within short time, is reluctant to speak a falsehood. Such a person does not want to meet the God with a falsehood on the tongue. Therefore dying declaration is regarded as a best kind of proof.

10. In the case in hand, Dr.A.K.Deodhar attached to KEM Hospital examined Anushri Kamath and found that she was fully conscious and was in a condition to give statement. Doctor Deodhar accordingly made endorsement about mental condition of injured in the margin of the dying declaration. Sub-Inspector of Police attached to Dindoshi police station thereafter recorded dying declaration of Anushri Kamath. Anushri Kamath has given full account of the mishap. After narrating the entire of the incident, she concluded at the fag end of the dying declaration that she did not properly switched off the gas stove and because of that there was explosion of gas cylinder. The husband and father of deceased have also given similar kind of version before the police. All the necessary precautions, which were required by law were taken before dying declaration of injured was recorded. Dr.Deodhar examined the physical and mental condition of the injured. He found that injured was mentally alert and was in a position to give statement. Thereafter the police officer recorded the dying declaration. No fault can be found in the dying declaration of deceased Anushri Kamath.

11. Complainants have miserably failed to prove that O.P.no.1 was negligent in any manner. There was no deficiency in service.

5. Being aggrieved by the order of the State Commission, the present appeal has been filed.

6. Learned Counsels for both parties made detailed oral submissions.

7. Counsel for the Appellant contended that the State Commission erred in concluding that there was no deficiency in service on the part of Respondents by relying primarily on the dying declaration of the Deceased and without taking into account other important evidence, which clearly confirmed that Respondent No.1 was negligent, resulting in the gas explosion and death of the Deceased. Counsel for the Appellant reiterated that while the complaint regarding leakage of gas from the gas cylinder supplied by Respondent No.1 was made on 02.07.1996 no action was taken by Respondent No.1 till two days later and that also after the Deceased had personally visited the office. Since the leakage of gas can prove to be very hazardous and dangerous, the delay in attending to this serious complaint by Respondent No.1 itself indicates deficiency in service. Thereafter an inexperienced mechanic was sent to repair the same and on the first day i.e. on 04.07.1996 he only changed some parts of the cylinder leaving some repairs for the next day. This is evident from the fact that against a total payment of Rs.340/-, only sum of Rs.150/- was paid the first day and the remaining amount was to be paid after the major work was done. Counsel for the Appellant contended that these facts had been submitted before the State Commission and in support the names of the mechanic as also a neighbor Shri Mehta to whom the mechanic informed that the work was incomplete were stated before the State Commission. The very fact that Respondent No.1 did not produce the mechanic to support their case confirms the Appellants version of the matter. Further, that there was a complaint of leakage of gas was accepted by Respondent No.1 in the written rejoinder filed by it before the State Commission (Annexure P-8). Counsel for the Appellant further stated that the contention of Respondent No.1 that the Deceased herself was responsible for the accident since she did not take due care in switching off the knob of the gas cylinder from the regular is also not correct and in fact she had turned off both the gas cylinder knobs and the regulator. Regarding the dying declaration of the Deceased, Counsel for the Appellant contended that this statement was made by her because Deceased wanted to convey that there was no foul play relating to dowry or marital issues which led to the incident and the State Commission erred in misinterpreting the dying declaration. Counsel for the Appellant also stated that the State Commission erred in concluding that the Respondents were not informed about the incident. In fact, they were informed about the same vide letter dated 14.10.1996 i.e. soon after the incident and the death of the Deceased and the delay in filing the complaint before the State Commission was because the Appellant was hoping for a favourable response from the Respondents and also because he was in a traumatized state and was busy in the repairs of his house, which was damaged in the gas explosion.

8. Counsel for Respondent No.1 stated that the above contentions made by the Counsel for the Appellant are not borne out by the evidence on record, including the documentary evidence. Regarding the dying declaration of the Deceased, it was clearly stated by her as follows :

The said incident has occurred as gas was not properly put out by me and I have therefore no complaint or any suspicion on anybody.

This statement clearly indicates that the Deceased admitted that she had not properly switched off the gas cylinder and had turned off the gas to prevent leakage only after she had detected the smell on the early morning of 05.07.1996. Further the action of the Deceased in using the gas lighter to check that there was no leakage was highly hazardous and dangerous and it was, therefore, because of this action on her part that the very unfortunate incident occurred. Counsel for Respondent No.1 denied that there was any delay in attending to the complaint which was made on 04.07.1996 and within hours a mechanic was dispatched to attend to the complaint. As per the bill filed in evidence, he had completed the repairs and in acknowledgment the total amount due i.e. Rs.340/- was paid. Appellants contention that the mechanic had come back the next day to complete the repairs and had also informed a neighbor about the same is not supported by any credible and independent evidence by the Appellant. No affidavit was for example filed by Shri Mehta, the neighbor, to support this contention. Counsel for Respondent No.1 further stated that there is nothing on record to support Appellants contention that he immediately informed Respondent No.1 about the incident and in fact Respondent No.1 only came to know about the same on 05.05.1998 and it had also informed the Appellant vide letter dated 29.05.1998 that it never received the letter purported to have been sent by the Appellant in 1996. Police investigations conducted into the matter also confirmed that the Respondents were not guilty of any deficiency in service and negligence in this case. The State Commission, which is a first court of fact, had gone into the entire facts of this case and had rightly concluded that there was no negligence or deficiency in service on the part of Respondents.

9. Counsel for Respondent No.2 stated that Respondent No.2 are the manufacturers of the gas cylinders and they had not been informed about the incident. Further, the relationship between Respondent No.1 and Respondent No.2 was on principal-to-principal basis and, therefore, Respondent No.1 was not their agent. Under the circumstances, the State Commission had rightly concluded that they could not be held guilty in rendering deficient service or being responsible for the incident.

10. We have heard learned Counsels for the parties and have also carefully gone through the evidence on record. The facts pertaining to the gas explosion in which Deceased received 37% burn injuries for which she was admitted to KEM Hospital on

05.07.1996 and her subsequent death on 08.07.1996 is not in dispute. It is further a fact that in her dying declaration Deceased had clearly stated that the gas was not properly put off by her and, therefore, she had no complaint against anyone else. In the same dying declaration she had also stated that at about 3.45 a.m. on 05.07.1996 when she detected a smell emanating from her kitchen, she went to the kitchen and turned off the gas to prevent leakage of gas, which further indicates that the gas was not properly turned off by her. Apart from this, she further confirmed that to make sure that there was no further leakage she triggered the gas lighter causing the explosion. At the time she made the dying declaration, it was certified by Dr. A.K. Deodhar at KEM Hospital that she was fully conscious and in a condition to make her statement. The contention, therefore, of Counsel for the Appellant that the dying declaration was made by her only to rule out any foul play or involvement of any third party is not borne out by the evidence on record. Regarding the allegation of negligence against Respondent No.1 that they failed to respond to the complaint immediately and that the mechanic did not complete the work, we are unable to accept the contention of Counsel for the Appellant since again there is no independent evidence in support of the same. From the records on file, the mechanic did the entire repairs on 04.07.1996 itself and in acknowledgment he was paid the total amount as clearly indicated in the receipt. The contention of Counsel for the Appellant that the mechanic came the next day to complete the remaining repairs and that he had informed the same to a neighbor (Shri Mehta) is not confirmed by any evidence in respect of the same except the verbal contention of the Appellant. Appellant in support of the case could have produced the affidavit of Shri Mehta before the State Commission, which he failed to do. It is also a fact that the complaint was made before the State Commission almost two years after the incident. The reasons given for the same do not adequately explain the delay. Undoubtedly, the Appellant suffered a great trauma in losing his wife in such a tragic manner and a delay of few months in filing the complaint could have been well explained but not such a long period of almost two years. Because of this delay, it was not possible for any meaningful enquiry to have been conducted by Respondent No.2 i.e. the manufacturer when it was informed about the incident. The State Commission after considering all these facts has rightly concluded that the Appellant has failed to prove that there was any deficiency in service or negligence on the part of Respondents.

11. In view of the above facts, we see no reason to disagree with the order of the State Commission and uphold the same. The first appeal is dismissed. No costs. ...................... VINEETA RAI PRESIDING MEMBER ...................... VINAY KUMAR MEMBER