HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE VILAS V AFZULPURKAR WP.No.10862 of 2009 Dt.29.7.2009 1. Butterfly Service centre And three others … Petitioners Vs. 1. Smt.B.Girija and three others … Respondents HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE VILAS V AFZULPURKAR WP.No.10862 of 2009 O R D E R:- (per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed against the order dated 22.4.2009 passed in R.P.No.80 of 2009 by the second respondent/State Consumer Disputes Redressal Commission, New Delhi. 2. The brief facts of the case are as follows: The 1st respondent herein purchased an LPG double burner stainless steel cooking gas stove manufactured by 4th petitioner herein, from second petitioner herein, by paying Rs.1350/-. As she found the stove to be defective, she informed the dealer ie. 2nd petitioner and requested for replacement of gas stove but the said request was not conceded to. However, the 2nd petitioner, who is a dealer namely Laxmi Steel Palace, Kukatpally, Hyderabad, dealer for Butterfly Group of Products, deputed a mechanic from the authorized service center of 5th petitioner. It is stated that the service agent visited the 1st respondent’s residence on 19.7.2006 and started repairing the gas stove in a negligent and careless manner and after switching on the gas regulator, tried to remove the gas tube at the stove end by heating the rubber tube. It is stated that the mechanic had a flaming candle by the side, which he was using for testing purpose and while so, the rubber tube suddenly became loose from the stove and a heavy flow of gas was released through the tube and the room was engulfed in flames due to which the 1st respondent-complainant suffered severe burn injuries and the neighbours rescued her and informed her family members about the tragedy, who admitted her in Remedy Hospital. It is stated that the 1st respondent- complainant suffered 40% burns affecting the left side of her face, chest, abdomen, thighs and knees and she was kept in ICU for nearly 45 days, resulting in incurring expenditure of Rs.3,25,000/- by her. That the 1st respondent/complainant lost her beauty and job as a lecturer. The 1st respondent alleging deficiency in the service on the part of the petitioners herein, who are Butterfly Service Center gas stove dealer, Managing Director and manufacturer of the Butterfly Group of Products, issued a legal notice followed by a complaint before the District Forum claiming the following amounts: a) Rs.3.25 lakhs towards expenses with interest @ 24% b) Rs.3 lakhs towards future expenses; c) Rs.6 lakhs towards damages caused; d) Rs.2 lakhs towards compensation; and e) Rs.25,000/- towards expenses and cost The allegation of the 1st respondent is that the mechanic deputed by the service center, negligently removed the gas stove tube by switching on the regulator knob and as a result of which the gas tube instantly opened resulting in a stream of gas flow and since the candle flame was in its path there was fire engulfing the complainant. The District Forum after going through the records awarded a compensation of Rs.3 lakhs towards medical expenses and Rs.1 lakh as compensation and Rs.2000/- costs. Aggrieved by the said order, the petitioners herein filed appeal before the State Commission, Hyderabad the complainant also not satisfied with the compensation granted filed appeal before the State Commission for enhancement. Since both the appeals arise out of the same order passed by the District Forum, the State Commission heard the appeals together and ultimately the State Commission dismissed the appeal filed by the petitioners herein and partly allowed the appeal filed by the complainant and enhanced the compensation to Rs.5 lakhs with interest at 9% per annum. Aggrieved by the said order, the 5th respondent, who is the manufacturer of Butterfly Group of Products filed revision before the National Commission, New Delhi, and by the impugned order, the National Commission dismissed the revision filed by the fourth petitioner herein holding that the compensation awarded by the State Commission is just and reasonable. Aggrieved by the said order, the present writ petition is filed by the petitioners. 3. Learned counsel for the petitioners strenuously contended that the proceedings before the District Consumer Forum being summary in nature and since disputed questions of fact were involved the District Consumer Forum ought to have referred the matter to Civil Court and the entire proceedings are initiated. The decision of the Apex Court in Oriental Insurance Company Ltd., v Munimahesh Patel[1] is relied on by the learned counsel for the petitioners and drawn our attention to the relevant portion which is thus: ”Proceedings before the Consumer Commissions are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that the Commission accepted that the insured was not a teacher. The complainant raised a dispute about the genuineness of the documents, (ie., proposal forms) produced by the appellant. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done. The nature of the proceedings before the Commission as noted above, are essentially summary in nature. The factual position was required to be established by documents. The Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission. Above being the position, the Commission was not justified to deal with the matter in the manner as was done. In our view, the directions of the State Commission were more appropriate keeping in line with the nature of dispute. Accordingly, the appeal is allowed but with no order as to costs.” 4. On the other hand, learned counsel for the 1st respondent contended that the writ petition is not maintainable as the petitioners 1 to 3 have not availed the statutory remedy of filing the appeal before the National Commission and the finding of the State Commission as against them has become final and, therefore, without exhausting the alternative remedy by them, the said petition is not maintainable. 5. Learned counsel for the respondent also contended that there was cogent and acceptable evidence adduced by the 1st respondent and therefore all the Forums considering the evidence adduced, appropriate compensation was granted which in the facts and circumstances of the case does not warrant any interference and the writ petition is liable to be dismissed. 6. There is no dispute as to the nature of incident occurred on the fateful day. There is also no dispute as to the purchase of the product by the 1st respondent from 2nd petitioner’s shop and 4th petitioner being its manufacturer. It is also not disputed that a mechanic was deputed by the authorized service center to repair the defective gas stove. It has come in evidence that the petitioners herein did not examine any person to show that the gas stove that was supplied to the 1st respondent was tested before selling it to the complainant and that there was no manufacturing defect. The 1st respondent in her affidavit specifically mentioned that the Butterfly stove purchased by her was found not working properly on the very first day because of the manufacturing defects and the 2nd petitioner-dealer refused to replace the defective stove, but deputed a mechanic from the authorized service center. When the said mechanic kept a flaming candle beside him for his testing purpose and because of his negligent attitude and suddenly removing the rubber tube from the stove and heavy gas was released through that tube from the cylinder and the entire room was engulfed with gas flames because of the burning candle and the complainant was unable to escape from the gas flame and she was captured by the heavy gas flames for some minutes in the kitchen itself lonely. Considering this evidence, the District Forum, the State Commission as well as the National Commission have concurrently held that accident was occurred due to the rash and negligent act of the mechanic deputed by the authorized service center of 4th petitioner herein, who is the manufacturer of Butterfly Group of Products. 7. In the circumstances, the finding given by all the Forums being a concurrent finding of fact, we do not find any illegality or irregularity in the impugned order warranting interference by this Court in exercise of jurisdiction under Article 226 of the Constitution. 8. The writ petition is meritless and it is accordingly dismissed. No order as to costs. ___________________ GHULAM MOHAMMED,J ____________________ VILAS V AFZULPURKAR, J 29th July, 2009. Note: CC in three days. B/o PNV/nrg THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE VILAS V AFZULPURKAR W.P.No.10862 of 2009 Dt.29-07-2009 [1] (2006) 6 SCC, 655