Utpal Kumar Bhattacharya, Member

This is a Complaint filed by the Complainant against the OPs u/s 17(1)(a)(i) of the C.P.Act, 1986.The facts of the case were that the mother of the complainant being a consumer of OP No 2 in respect of LPG connection, used to receive the gas cylinders from OP No 3, the agent of the said OP No 2.

In the early morning of 01.08.2012, the said mother of the instant Complainant suddenly caught fire in the kitchen while she was trying to replace the exhausted cylinder with a new one after removing the sealed cap of the new cylinder and fixing on the top of it the regulator with an intention to connect the same with the gas burner.

The father and younger brother of the Complainant, while trying to rescue the burning mother of the Complainant, also caught fire. The kitchen being totally engulfed by the flame, the burning trio could be recovered with the assistance of the local people not before all the three received severe burning injuries.

The victims were first sent to Jawaharlal Nehru Memorial Hospital, Kalyani wherefrom they were referred to NRS Medical College, Kolkata but neither of the three victims survived when father and younger brother of the Complainant died on 04.08.2012 at 6.35 am and 12.50 pm respectively and the mother of the Complainant died on 07.08.2012.

Pursuant to the above incident, Entally P.S. Case. No 3678, 3679 and 3680, all dated 01.08.2012, were initiated in respect of Rajesh Kumar Sinha, Jogendra Sinha, Laxmi Sinha respectively who were the victims of the incident. Separate Police inquests in respect of all the victims were conducted by the said police station when a GDE No 371 dated 05.08.2012 was registered also with the Bizpur PS. Final reports in respect of all the cases were already submitted.

The Fire Deptt.had conducted a separate enquiry into the incident and observed in its report under number FSO/61/2012 dated 14.09.2012 that the fire was caused due to the defective valve of the LPG cylinder.

The bodies of the victims were handed over to the claimants after Post Mortem being conducted and disposal order issued from the police morgue, NRS Medical College and Hospital. The Kolkata Municipal Corporation ultimately issued the death certificates of the victims.

Since the OP No 2 had entered into the insurance Policy No 251100/46/12/950000206 with the OP No 1 Insurance Company for giving policy coverage to similar type of incidents and since the said policy was having validity for the period from 02.05.2012 to 01.05.2013, the subject incident which had happened on 07.08.2012, was well under coverage of the said insurance policy. Accordingly, the Complainant had filed a claim before the OP No 1 through OP No 2 under Claim No 251100/46/13/9590002973(Sl. No.195).

The claim of the Complainant was approved and as a measure of immediate help and partial discharge of liability as well, Respondent No 1 issued an Advance Loss Voucher of Rupees 15,48,438/- towards Respondent No 2 with a request to discharge the same towards the Complainant. The Complainant, however was paid on 05.06.2015 only an amount of Rs. 15,32,924/-out of the total amount of Rs. 15,48,438/- after he was made to sign at the office of the Respondent No 3 on the receipt of the aforesaid total amount. The reason for not releasing the rest amount of Rs. 15,514/- was, as alleged, never disclosed. What was more, the Respondent No 1 managed to make the Complainant sign an undertaking to the effect that with the above payment, the Respondent No 1, would be absolved of all liabilities present or future arising directly or indirectly out of the said loss or damage although there was a policy coverage of Rs. 10,00,000/- for loss of life of each person. This way the Respondent No 1 cleverly defrauded Rs. 5,00,000/- for every deceased person paying only half of the amount the Complainant was entitled to, that is, Rs. 5,00,000 against a total entitlement per deceased of Rs. 10,00,000/-.

The petitioner had to sustain a pain and shock of untimely death of his parents and younger brother who, as stated, being a promising young man of 23 years, had a glorious future ahead of him.

Sensing that the acute agony caused by the dreadful death of his three nearest persons have been made more intense by the Respondent No 1 by adopting deceitful and fraudulent means through its effort to deprive the Complainant of his due entitlement, the Complainant filed the Complaint Case before this commission claiming :-

(1) Residual balance amount of his entitlement as per policy along with interest at the rate of 12 % from 05.06.15 till the date of realization.

(2) Compensation of Rs. 10,00,000/- for the death of his parents which was caused due to supply of faulty defective cylinder by the OP Nos 2 and 3

(3) Compensation of Rs. 44,40,000/- for the death of his younger brother of 23 years of age who was, allegedly, working as a Customer Support Associate at BGO-Kolkata of Take Mahindra Limited and IT services and Telecom Solution provider at a monthly salary of Rupees 10,000 per month and who died similarly due to supply of faulty and defective cylinder by the OP Nos 2 and 3 and

(4) A litigation cost of Rs. 10,000/-

Hard Ld. Advocates appearing on behalf of all sides.

Ld. Advocate appearing on behalf of the Complainant, submitting in brief the details of the incident, drew the notice of the Bench to page-13 of the W.V. submitted by the OP wherein, in Annexure-A, Section (ii) of the guidelines of the Policy, it has been clearly indicated under sub-section A of the said section if any person shall sustain bodily injury solely and directly caused by accidental violent external and visible means arising from usage of LPG cylinder during the policy period as defined in schedule, resulting in death or disablement as stated hereinafter the company shall pay to the Insured the persons named in the schedule or his/her assignee/his/her legal personal representative the sum or sums hereinafter set forth. In case of accidental death due to the injury the provision has been enumerated under clause 1 of the said sub-section as If such injury shall within twelve (12) calendar months of its occurrence be the sole and direct cause of the death of the Insured person, the sum insured stated in the schedule hereto applicable to such insured person

The Schedule of the policy annexed at running page 16 of the W.V. indicated at the running page 17 at the top that the sum insured would be Rs. 10,00,000/-per person.

The Ld. Advocate continued to submit that the OP No.1 Insurance Company had very cleverly taken advantage of the Complainants ignorance of his entitlement and procured from him an undertaking towards the OP No. 1s absolving of any further liability, paying only a part of the Complainants rightful entitlement.

This way, the OP No. 1, as continued, had closed the chapter, paying only RS. 15,00,000/- against its legal entitlement of Rs. 30,00,000/-. The deceitful manner that the OP No. 1 had adopted for subjecting the Complainant to an unfortunate deprivation, as continued, should be treated as glaring example of unlawful trade practiced upon the Complainant.

The Ld. Advocate concluded his argument without emphasizing much upon his other claims like payment of compensation by the OP NO. 2 and 3 towards death of his parents and promising younger brother narrated under (ii) and (iii) of the prayer part of the complaint

Ld. Advocate appearing on behalf of the OP No. 1 Insurance Company defended his client saying Rs. 5,00,000/- per person was already paid to the complainant.

Pointing out page No. 13 of his W.V., the Ld. Advocate continued that the insured amount was supposed to be paid on adjudication of liability which would always be determined by a specially designated trial court since it required detail trial procedure for determining liability on age, occupation, status, dependents and quantum of liability of the deceased together with details of legal heir & / or heirs with proper declaration of the appropriate court.

The Ld. Advocate continued to submit that the complainant had never furnished the claim computing the liability at law applying the parameter mentioned above, nor did he produce any evidence in support of his abrupt claim of Rs. 10,00,000/- and Rs. 44,40,000/-as compensation for his parents and younger brother respectively. As continued further, the claim was marked with conspicuous absence of the legal heir certificate justifying the fact that the Complainant was the lone legal heir of the deceaseds.

The Ld. Advocate, in the above context, referred to the decision of the Honble Apex Court in Civil Appeal No. 6453 of 2000 [Synco IndustriesVsState Bank Of Bikaner and Jaipur and others]wherein the Honble Apex Court, while dismissing the Appeal against the order of the Honble National Commission giving liberty to the Appellant to move the appropriate civil court, observed that Honble National Commission had rightly observed the issue to be decided by the appropriate civil court since the issue was not to be decided in summary fashion without verifying the detailed evidence for ascertaining the claim.

With the above submission, the Ld. Advocate prayed for the appeal to be dismissed.

The Ld. Advocate appearing on behalf of the OP No.2, the H.P. Corporation Ltd., Kolkata LPG Regional office, submitted that his client had already paid the premium against the policy. Now, the liability for payment of accidental compensation rested absolutely upon the OP 1 Insurance Company.

As submitted further, the deficiency on the part of his client was established neither by any expert nor in the police report. The accidental fire appeared to have been broken out of contributory negligence on the part of the victims. The agreement since is no less than a contract between the parties involved, the contributory negligence amounts to violation of the terms of the contract leaving no scope for the Complainant to furnish any acceptable claim.

Moreover, as continued, the Complainant has already received an amount of Rs. 15,48,438/- towards full and final settlement of the claim. With the receipt of the above amount, as contended, the Complainant had lost the right to submit any further claim.

With the above submission, the Ld. Advocate prayed for the Complaint to be dismissed.

The Ld. Advocate appearing on behalf of the OP No 3 flatly denied any claim of compensation to be met by his client as per prayer of the Complaint. He hinted at the contributory negligence on the part of the victims as, what the report of the surveyor indicated at page 19 of the W.V by OP No 1, there was a coal fed oven in operative condition by the side of the kitchen from which the fire was broken out.

As pointed out, his client was merely a supplier dealer of the LPG cylinder and which he had performed in right earnest with no lapse on his part. Moreover, no certificate was furnished by the Complainant as regards his identity as to the sole legal heir of the victims.

With the above submission the Ld. Advocate also prayed for the Complaint to be dismissed.

Perused the papers on record. There was no dispute as regards happening of the incident and loss of three lives, being the parents and younger brother of the Complainant as the same was corroborated by the evidences like reports of Police inquest furnished by the Complainant, the final report in respect of the three separate cases for three victims furnished by the Entally P.S and lastly, the death certificate issued by the Kolkata Municipal Corporation.

The record revealed that the Complainant had received a claim of insurance from the OP No 1 for an amount of Rs. 15,48,438/- of which 48,438 was for the treatment cost of four persons one of which was a lady namely Ms. Rina Mondal who survived after receiving treatment involving a cost of Rs. 15,514/-. Therefore, the Complainant was paid an insurance claim of Rs. 15,00,000/- and treatment cost of Rs. 32,924/- (48,438-15,514), totaling an amount of Rs. 15,32,924/-.

Since the above amount was paid to the Complainant by the OP No 1 insurance company, it could be assumed that the said payment was definitely not made without ascertaining the legal heirs of the victims. Applying the same analogy, there should be no bar in sanctioning further claim, if any, in the name of the Complainant.

We have gone through the record which appeared to be devoid of the required documents certifying the parameters for ascertaining liabilities. The record was not supported by any document about the Complainants younger brothers doing any job at a salary of Rs. 10,000/- per month, so were about the supporting documents towards income of his parents. We dont deny the fact that without proper adjudication of liability by a competent civil court, the payment for compensation of 54,40,000/- as claimed under (ii) and (iii) of the prayer part of the Complaint was difficult to sanction.

We, however, failed to understand why the OP insurance company, being aware of the fact as per policy guidelines towards Complainants entitlement to Rs. 10,00,000/- per victim, paid only half of the entitlement that is 15,00,000/- as a whole @Rs. 5,00,000/- per victim and obtained from him an undertaking towards the claim being settled once for all. It is conspicuously apparent that the OP No 1 had taken the ignorance of the Complainant about the policy condition as his weapon and managed to procure the subject undertaking which, in the eye of law, stood void ab-initio. The Op No 1 company, therefore, should not be allowed to escape without paying the due claim of further Rs. 15,00,000/- as per policy.

The record revealed further that the OP 2, being the authority for filling the cylinder was not sufficiently careful to ensure that there should not be any leakage of an inflammable gas likely to be used for domestic consumption. The report of the fire brigade indicated that the valve of the LPG cylinder was defective. Considering the fact that the fire would not have been broken out unless there was leakage in cylinder even if, for arguments sake, it was considered that there was an operative coke oven beside that kitchen. The OP No 2, therefore, cannot simply deny their liabilities for the dreadful deaths of the three victims.

We do not find any lapse on the part of the OP No 3 as a supplier of the cylinder and exonerate him from paying any compensation as claimed in the Complaint.

Hence, ordered that the Complaint be and the same is allowed in part with a cost of Rs. 10,000/- to be paid jointly and severally by the OP No 1 and OP No 2 to the Complainant sharing the same in equal proportion.

The OP No 1 is directed to pay Rs 15,00,000/- being the residual insurance claim to the Complainant and the OP No 2 shall pay a compensation of Rs. 5,00,000/- to the said Complainant for its deficiency in rendering services which claimed three invaluable lives.

The entire amount has to be paid within a span of 45 days from the date of this order, failing which, interest at the rate of 9 % shall accrue to the entire amount excluding cost to be paid from the date of default till the amount is fully realized.