Allowed

William Jose v. Antony

Kerala HC21 Jun 2017RFA/72/2003

Case brief

AI extract

What is this about?

The High Court allowed appeals challenging liability for a restaurant gas explosion. Finding the owner negligent for unsafe storage and the distributor negligent for failing to inspect, it held both jointly liable. The insurance company was directed to indemnify the distributor.

What did the court decide?

Owner and distributor held jointly liable for equal proportion of damages; insurance company directed to indemnify the distributor.

William Jose Vs Antony — Consumer Protection | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN

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WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939

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RFA.NO. 72 OF 2003 ( )

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AGAINST THE JUDGMENT IN O.S. NO.211 OF 1998 OF THE I ADDITIONAL SUB COURT, ERNAKULAM DATED 30-10-2002

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APPELLANT(S)/1ST DEFENDANT IN O.S. NO.211 OF 1998:

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WILLIAM JOSE, AGED 35 YEARS, S/O.LATE P.V. JOSEPH, PARAMBALOTH HOUSE, PANAMPILLY NAGAR P.O., ERNAKULAM COCHIN - 682 035.

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BY ADVS.SRI.K.C.CHARLES

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SRI.G.RAJAGOPAL

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SRI.T.SETHUMADHAVAN (SR.) SRI.THOMAS M.JACOB

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RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 5 IN O.S.NO.211/1998:

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ANTONY, AGED ABOUT 45 YEARS, S/O.DEVASSY, EZHUMURI COLONY, CARRIER STATION ROAD, ERNAKULAM, COCHIN - 16.

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M/S.SINI AGENCIES, XXXV/2001, RAVIPURAM ROAD, ERNAKULAM, KOCHI - 682 016.

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THE DIVISIONAL MANAGER, BHARATH PETROLEUM CORPORATION LTD., KOCHI DIVISION, ERNAKULAM, KOCHI-14.

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STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM.

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RFA.NO. 72 OF 2003

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THE NATIONAL INSURANCE COMPANY LTD., 3, MIDDLETON STREET, CALCUTTA 700071, REPRESENTED BY ITS BRANCH OFFICE AT 27/XVI, MARKET JUNCTION, THRIPPUNITHURA, POLICY NO.570107/46/22/20/94/133 FROM 28.11.1994 TO 27.11.1995.

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R1 BY ADV. ASHIFA TALIB R. BY ADV. B. DEEPAK (AMICUS CURIAE) R1 BY ADV. JOBI A.THAMPY RR3 BY ADV. SRI.N.N.SUGUNAPALAN (SR.) R1 BY ADV. SMT.AYSHA YOUSEFF R, R5 BY DR ELIZABETH VARKEY R1 BY ADV. SRI.T.M.MOHAMMED YOUSUFF(SR.) R1 BY ADV. SMT.MOLLY JACOB R,R5 BY ADV. SRI.K.J.SAJI ISAAC RR3 BY ADV. SRI.S.SUJIN

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2017 ALONG WITH R.F.A. NOS.203 AND 259 OF 2003, THE COURT ON 21.06.2017 DELIVERED THE FOLLOWING:

“C.R.”

V. CHITAMBARESH

SATHISH NINAN, JJ .

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= = = = = = = = = = = = = = = = = = R.F.A. Nos.72, 203 & 259 of 2003

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= = = = = = = = = = = = = = = = = = Dated this the 21^st day of June, 2017

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J U D G M E N T

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SATHISH NINAN, J .

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These connected appeals arise from a common judgment in suits for damages. The relief of damages is claimed consequent on a gas cylinder explosion that occurred in a restaurant of which the predecessor-in-interest of the appellants was the owner. The appellants are hereinafter referred to as “owner”. The injured in the accident are the plaintiffs in the respective suits. The Bharath Petroleum Corporation Limited (hereinafter referred to as “the BPCL”), their distributing agency by name M/s.Cini Gas Agencies (hereinafter referred to as “the agency”) and their Insurance Company are the other defendants in the suit.

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The mishap occurred on 27.02.1995 at about

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R.F.A. Nos.72, 203 & 259 of 2003

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5.40 p.m. in the restaurant “Mini Coffee House”, situated near the South Railway Station, Ernakulam. The restaurant belonged to one P.V.Joseph, the predecessor-in-interest of the appellants. The allegation of the plaintiffs is that the accident occurred consequent to the negligence on the part of the owner of the restaurant, his employee, the BPCL and its agency/distributor, and that they are liable to pay damages. The incident is not in dispute. According to the owner, the accident occurred due to the defect in the gas cylinder which resulted in the bursting of the cylinder and they are not liable for any damages.

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The court below found negligence at the

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hands of the owner of the restaurant and his employee (cook), and accordingly made him liable for damages. In these appeals the owner challenges the liability fixed upon him. The owner would contend that all reasonable precautions were taken and that the accident occurred due the defect in the gas cylinders supplied by the BPCL and their

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R.F.A. Nos.72, 203 & 259 of 2003

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agency.

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Heard the learned counsel on both sides.

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Primarily the question is regarding the alleged negligence on the part of the owner of the restaurant and his employee. From the evidence it is clear and it is not disputed before us, that the restaurant had two kitchens; one on the eastern side and the other on the southern side of the restaurant. The blast occurred in the kitchen on the eastern side. It has also come out in evidence that the gas cylinder was connected to the burner by means of a flexible rubber tube. These facts cannot be disputed on the face of Ext.A10 copy of FIR registered in Crime No.67 of 1995 of the Ernakulam South Police Station, Ext.A8 Scene Mahazar, Ext.B15 Seizure Mahazar and Ext.B15 inventory, prepared by the Sub Inspector of Police in connection with the crime registered in relation to the incident. DW3 is the cook at whose hands the explosion took place. From his evidence it is clear that there were two hot burner stoves in use in the

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eastern kitchen. After connecting a new cylinder to a burner, he took a piece of paper, ignited it from the other burner and was about to light the burner to which the new cylinder was fitted whereupon fire spread out from the cylinder which lead to the blast. Exhibit B14 is the fire accident report prepared by the BPCL. Therein the accident is described thus:

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“At about 17.40 hours, one of their cook, Mr.Kunjumon lighted a piece of paper from another burner inside the kitchen and was in the process of lighting the canteen burner attached to the Indane domestic cylinder through an IOC DPR and the burner got melted and LPG gushing out of the rubber tube caught fire. The rubber tube got disconnected from the burner and fell hanging on to the side of IOC cylinder and in the process, started heating the cylinder. This intense heat caused bulging of the cylinder which, in turn, resulted in a small tear in the body of the cylinder. The LPG gushing out of this slit caught fire and started heating a full unused 19 KG cylinder kept adjacent to this cylinder.”

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They have concluded that it was the negligence on the part of the cook which caused burning of the rubber tube and the consequential accident. There is no material to arrive at a different conclusion

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regarding the causation of the incident.

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Learned Senior Counsel appearing for the appellants/owner would contend that there is lack of evidence to find negligence on their part, that the evidence on record would show that the BPCL and its distributor had failed to comply with the requirements as prescribed under the Gas Cylinders Rules, 1981 and the allied Rules and Regulations. According to him there are various statutory requirements to be fulfilled and duties cast on the BPCL and its distributor to be complied with regarding the distribution of gas cylinders and that there is lack of evidence to prove that the same have been complied with. Therefore, according to him the burden cast on the BPCL and its distributor has not been discharged and they are liable for damages and not the owner. He relied on Ext.B15 the LPG Accident Report to canvass his submissions that the negligence of the BPCL and the agency was the cause for the accident. Learned Senior Counsel also took us to Ext.B10 insurance

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policy in the name of the distributor to contend that the liability is to be cast upon the Insurance Company by virtue of the indemnity given by them. The learned counsel appearing for the BPCL and the agency would contend that the evidence on record shows beyond doubt that the accident occurred solely due to the negligence of the cook and that no material is forthcoming to show negligence or breach of duty on their part. The learned counsel for the Insurance Company would contend that their liability is contingent on the liability of the agency and since the agency is not liable in any manner, they are also not liable.

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From the evidence on record, it could not be disputed that the restaurant in question was provided with a commercial gas connection at the relevant time. So also, it cannot be disputed that there were two kitchens for the restaurant; one on the eastern side and the other on the southern side, and the accident took place in the kitchen on the eastern side. It is also in evidence that the

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gas cylinder was connected to the burner by using a flexible rubber tube. The eastern kitchen where the explosion took place was a small room without any ventilation and that more than one gas cylinder (one being a domestic connection) were kept together in that room.

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The Gas Cylinders Rules, 1981 relates to installation, the premises for the manufacture (filling), storage of compressed gas cylinder etc. The Indian Standard Code of Practice for Liquefied Petroleum Gas for short, “the Code of Practice”, the Liquefied Petroleum Gas Manual, Liquefied Petroleum Gas Regulation and Supply distribution Order, 1993 (for short, “the 1993 Order”), etc., are the relevant statutes governing the storage and supply of liquefied petroleum gas. The Code of Practice provide for location of the gas cylinder in respect of stationary installation, its piping, fitting, etc. It also provides for the nature of the materials for piping, tubing and fittings. So also it further provides that the cylinders are to

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be connected to the regulators through semi flexible connectors and that copper tubing is to be used. The 1993 Order further provides that storage of liquefied petroleum gas shall be in cool, dry, ventilated and accessible place away from boilers, open flames, steam pipes or any potential use of heat. As per the relevant statutes, a commercial connection has far more restrictions from that of a domestic connection. Cylinders are not to be kept inside the kitchen. Gas is provided to the kitchen through LPG pipes. Rubber tubes are not to be used. A bunk is provided for keeping the cylinders. In the case on hand, the connection was provided to the southern kitchen whereas the gas cylinder was kept in the eastern kitchen which was not the place where the supply was provided for. Gas connection was not provided through metal tube as was required. In terms of Rule 3(a) of the 1993 Order, there could not be domestic as well as commercial installations at the same premises. However, it is evident that both these installations were there at

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the premises in question. On the evidence, it is revealed that the eastern kitchen did not have any ventilation. So also, as pointed out supra, the gas cylinders are to be kept in a specified manifold. The same was violated and was brought into the eastern kitchen. Clause 4.1.11 of the Code of Practice provides for installations to be made where they may not be overheated or close to steam pipes or boilers. Rule 3(a) of the 1993 Order prohibits possession of more than one connection of liquefied petroleum gas granted under the public distribution system. Evidence of Dws1, 3 and 5 along with Ext.A8 and A14 would reveal that all the above provisions have been violated. The only conclusion could be that there has been negligent use of liquefied petroleum gas by the owner of the restaurant. The finding of negligence by the court below on the part the owner is not liable to be interfered with.

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The Learned Senior Counsel for the appellants relying upon the principle of strict

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liability enunciated in the decision in Rylands v. Fletcher (1868 L.R.3H.L.330) would argue that the BPCL who is the manufacturer of the liquefied petroleum gas has to be saddled with the liability for damages. To canvass his submissions, he relies on judgments of the Apex Court and this Court relating to instances of death by eletrocution wherein liability was cast upon the State Electricity Board. According to him applying the same principle, the BPCL and its agency are to be held liable for the damages. We are of the opinion that the said contention is not acceptable. The rule of strict liability evolved in Rylands v. Fletcher (supra) is stated thus:

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“We think that the true rule of law is, that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”

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Here the gas cylinders that were kept in the premises of the owner were brought in by him for

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his purpose. So also, the exclusive custody of the gas cylinders and its equipments were with the owner. While so, due to negligence on his part the accident occurred. The principle in Rylands v. Fletcher (supra) could not by any stretch of imagination be applied to hold the BPCL liable. Of course, this is subject to absence of any negligence or breach of duty on the part of the BPCL. There is no proof of any defect for the gas cylinder supplied. Therefore, we repel the said argument.

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Learned Senior Counsel referring to the statutory provisions referred to supra would contend that the agency/distributor has violated the various duties cast upon it regarding the maintenance of the liquefied petroleum gas system. The Code of Practice relating to commercial and industrial cylinder installations provide for periodic inspection to be done by the supplier of gas regarding the installation of piping and tubing. The LPG Manual also provides for regular

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check up by the distributors at the customer's premises. It also provides that the distributor or the sub distributor must ensure the flexible tubing, hose, etc., installed on the customer's premises is inspected every time refilled cylinder is delivered and that it should be changed if it is not found in satisfactory condition. It further imposes a duty on the refill delivery man, who at frequent intervals visits the premises, to note the condition of the equipments, appliances, tubing, etc., and in case it is found to be defective report the same to the distributor and customer. The distributor has shirked away from its duties. Here, the gas cylinder was used in an unauthorised premises. A rubber tube was used to connect the cylinder, the cylinder was kept in a closed room without ventilation, it was being used along with another domestic connection which was not permissible. Here, it would be relevant to refer to Ext.B14 the LPG Accident Report, prepared by the officer who investigated the accident. Certain

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entries therein are significant:

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“Rubber tubing last replaced, Less than ½ to 2 how many years 2 to 3 More √

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Physical condition of tubing Bad√ Satisfactory good Installation checked for gas Yes No √ leakage by deliveryman Whether the installation was checked by distributors Not checked If yes, approximate period when checked”

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From the above, it is evident that the rubber tube was in a bad condition and that the same was not replaced since more than three years. It is also revealed that the delivery man or any mechanic of the distributor/agency had not checked the installation for any gas leakage. If the distributor through its employees had made necessary inspections as was required under law as noticed above, the accident could have been averted. The duty of the distributor cannot be overlooked. The court below has declined to grant relief against the distributor on the finding that

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the accident was caused due to the negligence on the part of the owner. As is evident from the discussions made above, the negligence and nonperformance of the duties cast on the distributor and its employees has also contributed to the incident. We notice that the owner had filed O.P. No.53 of 1995 before the Consumer Disputes Redressal Commission, against the BPCL and the agency claiming damages, alleging deficiency of service by supplying 'defective cylinder with defective valve'. As per Ext.B13 order, the complaint was dismissed finding that the cylinder was not defective. The said order has been affirmed in appeal. The plaintiffs in the suit are not parties in the proceedings before the consumer forum. The allegation before the forum was deficiency of service by supply of 'defective cylinder with defective valve'. The proceedings before the consumer forum is more or less summary in nature. Be that as it may, suffice to observe that the said proceedings cannot have any

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significance in the present suit for damages filed by the victims. As found above, there is breach of duty on the part of the agency and they also contributed to the incident. Therefore, it is held that the agency/distributor is also liable for the damages that occurred consequent on the accident in question.

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When the liability of the distributor is found, Ext.B10 insurance policy assumes significance. Exhibit B10 is an L.P. Gas Traders' Combined Policy issued by the National Insurance Company Ltd. It relates to the period from 28.11.1994 to 27.11.1995 which covers the period in which the accident occurred. Section X of the policy deals with 'Liability to Third parties'. The relevant clauses are extracted hereunder:

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“The Company will indemnify the insured (or in the event of the death of the Insured his legal representative) against all sums which the Insured shall become legally liable to pay in the event of

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(a) accidental bodily injury to any person (not being either a member of the Insured's family or a person engaged

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in and upon the service of the Insured at the time of the occurrence giving rise to such injury nor a person claiming against the Insured under any Workmen's Compensation Act).

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(ii) at any registered address of the customers.”

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A contract of insurance is generally in the nature of contract of indemnity. As rightly contended by the learned counsel for the insurance company, in insurance policy relating to third party risks, the liability of the insurance company necessarily presupposes liability of the indemnified. Therefore unless the agency/distributor is liable, the liability cannot be fastened on the insurance company. However, the liability of the agency/distributor has already been found. Though the learned counsel appearing for the Insurance Company would contend that the accident in question and the consequent damage to third parties does not have any connection to the insurance trade, stock and business, as found supra, there is violation of the duty cast upon the distributor/agency in relation to its trade/business which has also

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contributed to the accident. The duty necessarily related to the trade/business of the agency. Therefore, they are not entitled to wriggle out from their liability undertaken in Ext.B10. Since the agency is found liable for the plaint claim, the Insurance Company in terms of Ext.B10 policy is liable to indemnify the distributor.

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Though the plaintiffs have not challenged that part of the decree which negatived grant of relief against the distributor and Insurance Company, we feel that this is a fit case where Order XLI Rule 33 of the Code of Civil Procedure be invoked to pass a proper and just judgment. In view of the findings entered into, the owner and the agency/distributor are found to have contributed to the accident and they are to be made liable for the damages in equal proportion.

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Before us, there is no challenge as against the quantum of damages awarded. Looking at the amount awarded by the court below, we feel that the quantum awarded is only just and proper

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considering the injury suffered.

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In the result, the appeals are allowed. Modifying the judgment and decree passed by the court below it is held that the owner along with the LPG distributor, M/s.Cini Gas Agencies are liable for the amount as decreed by the court below, the liability to be borne in equal proportion. The National Insurance Company Limited who is the insurer of the agency is bound to indemnify M/s.Cini Gas Agencies to the extent of its liability under this decree.

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Sd/-

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V. CHITAMBARESH, JUDGE.

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Sd/- SATHISH NINAN, JUDGE.

vsv

/true copy/

P.S. to Judge

R.F.A. Nos.72, 203 & 259 of 2003

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William Jose v. Antony

Case brief

What is this about?

What did the court decide?

William Jose v. Antony

Case brief

What is this about?

What did the court decide?

What the court decided

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