(Per Hon’ble Sou.Usha S. Thakare, Presiding Judicial Member)
(1) This consumer complaint is filed by complainant-Mr.S.K.Taing for giving directions to opponent hotel for making payment of `15,00,000/- due to deficiency in service on its part.
(2) Facts giving rise to the present consumer complaint in short are as under:-
Opponent-Hotel Sealord (hereinafter referred to as ‘opponent hotel’) is a commercial establishment. The complainant is a resident of Delhi. According to the complainant, he visited Mumbai on 03/02/1998. He stayed in said hotel and hired services of the opponent hotel by staying in the said hotel since 03/02/1998. Double bed room bearing no. 225 on second floor was allotted to the complainant. The complainant’s name and address had been entered in register of the customers maintained by the opponent hotel which bears his signature on the page dated 03/02/1998. It is alleged that services of the opponent hotel were not at all satisfactory. Nobody attended the room even after several calls. The rooms were not cleaned regularly and the staff was negligent and non-co-operative. On 06/02/1998, the complainant came back to the opponent hotel at around 1.50 a.m. with one of his friend, namely, S.K.Bhandari, who had accompanied him from Delhi and was staying with the complainant in the same room. When the complainant and his friend arrived at opponent hotel, there was no light in the hotel and it was pitch dark. There was no attendant or watchman/waiter. There was no light/lamp or candle on the stairs or entrance or anywhere in the premises. The complainant and his friend started walking through the stairs towards their room which was on the second floor. It was so dark that they could not see anything and had to walk using their own senses and by touching the wall and stairs. On reaching second floor, the complainant felt a door like space with its shutter open and believing it to be the gate, the complainant stepped inside. The moment complainant stepped inside, he started falling in a death trap. He fell down from height of second floor to ground floor and became unconscious. It was actually the lift door which was left open, unguarded and unlocked without any lift and without any warning or lamp. The complainant could have died but luckily he is alive though he sustained grievous external and internal multiple injuries and fractures all over his body especially in his legs. As per the doctors he has become permanently handicapped for the rest of his life. The complainant is yet under the close supervision of the doctors and specialists and has not been able to recover from the grave mental shock received due to the opponent’s negligence.
(3) It is further alleged that the opponent hotel should have made arrangements for light or at least a lamp or candle in case of electricity failure and should have tightly locked the door of the lift in such an event. Due to negligence and casual approach of the opponent hotel’s management, the accident was occurred. It has resulted in causing an irreparable loss to the complainant which could not be compensated in terms of money or in any other terms and has made the complainant permanently handicapped for the rest of his life. The complainant was the only earning member and bread-earner for his family. A rod was fixed in the complainant’s right thigh which was operated upon at BombayHospital and a huge amount of `75,000/- was spent on the said operation. The complainant’s family incurred lakhs of rupees on his further treatment, medicines and traveling from Delhi to Mumbai on several occasions, boarding, lodging etc. and the said expenses are still continuing. Due to sheer negligence of the opponent hotel’s management, the complainant has undergone the worst form of torture, humiliation. When the complainant was lying on the hospital bed in semi-conscious state, the opponent hotel’s representative came and obtained complainant’s signature on some paper written in regional language under the pretext of completing some hospital formalities. At that time, the complainant was not in a position to understand as he had not recovered from the horrible shock of the accident. Even after two months from the date of the accident, the complainant is not able to stand on his legs and is completely bed-ridden. Therefore, the complainant has filed the present consumer complaint for direction to the opponent hotel to pay an amount of `15,00,000/- to the complainant for making him permanently handicapped for the rest of his life. He has also claimed expenses of treatment, hospitalization, operation and medicines from the opponent hotel.
(4) The opponent hotel has resisted the claim by filing written version and denied the liability to pay an amount of `15,00,000/- and medical expenses. It is submitted that the complaint is misconceived. There is a delay in filing complaint which is not explained. The allegations and averments in the complaint are after-thought. It is submitted that opponent hotel is a reputed hotel catering to the needs of Indian and foreign guests belonging to the middle class. It gives satisfactory good services to its customer/guests and the management takes proper care to see that all the requirements of the customers/guests are attended to. The opponent hotel has been functioning for the last 13 years and there is no any complaint against the hotel.
(5) The opponent hotel further submitted that the complainant has suppressed material facts. On 03/02/1998, the complainant checked in the opponent hotel. On 5th night and 6th morning, he and his associate Shri Bhandari entered at the opponent hotel fully drunk. The complainant and said Bhandari threatened the hotel staff. Their legs were rambling, eyes were looking reddish and they were using abusive language while talking with each other. The receptionist stopped them at the gate and asked them to sit down in the lobby as due to power failure in the area, the electricity lights were off for some time. In such circumstances, the management made quick arrangement by putting candle lights everywhere i.e. on ground floor and stair case and upper floor. The warning was given to the complainant and his friend, particularly when they were not in normal condition. The receptionist of the hotel asked them not to climb staircase, not to go up for some time and they should wait till the lights came or till proper lighting arrangement is made. However, both of them tried to go up from staircase. They were exchanging abusive words with each. Both of them fought, which was clear from the abusive language which they were exchanging while climbing staircase. After some time, all of a sudden, there was a sound from the staircase of rolling down of some person who was found to be the complainant. After seeking the fall of the complainant from the staircase, the staff rushed and gave whatever help they could. In the meantime one of the Directors, Ramkumar Khanna came on the stop and took the complainant to BombayHospital for immediate treatment which provided immediate medical help. Since hospital insisted substantial amount of deposit before admitting the patient for treatment the said Director arranged from his personal fund account and deposited a sum of `20,000/- with the hospital. During stay in the hospital, opponent hotel’s management took full and proper care of the complainant. Police report was recorded immediately on the day of the incident. Said report shows that there was an accidental fall of the complainant from the staircase. The said statement was recorded by the police in the presence of Shri Bhandari, the complainant’s associate who was accompanying the complainant at the hotel. From these facts, it will be clear that the complain ant and his associate Shri Bhandari were not in normal physical and mental condition when they entered at hotel between 1.45 a.m. and 2.00 a.m. They were under influence of liquor and their behaviour was abnormal. They were using abusive language, threatening and violently gesticulating and quarrelling. There was sufficient candle light everywhere in the hotel. It is specifically submitted that the accident took place due to negligence and/or casual approach of the complainant. The opponent hotel is not liable for expenses incurred by the complainant. The complainant himself was negligent despite warning and advice. It is shocking that the complainant is making baseless allegations against the opponent hotel. The complainant is not entitled to the reliefs claimed. There is no liability on the opponent hotel. On the other hand, the complainant owes `20,000/- to the opponent hotel which the complainant has promised to repay. The complaint is, therefore, liable to be dismissed with costs.
(6) Complainant-Shri S.K.Taing led his evidence by filing affidavit. His friend/associate-Shri S.K.Bhandari also led evidence by way of affidavit in support of the contentions raised by the complainant. To give counter blow, Shri Liyaqat Ali, the authorized signatory of the opponent hotel has led evidence by affidavit. The complainant has filed on record documents issued by Bombay Hospital Trust, bill issued by Dr.Jhunjhunwala, (Orthopaedic Surgeon), prescription and other documents issued by Dr.S.K.S.Marya of Indraprastha Apollo Hospital. Opponent hotel has relied on FIR dated 06/02/1998 recorded at M.R.A.Road Police Station and entry taken in station diary on the basis of the said report. We have heard learned counsel Mr.Uday Wavikar-advocate for the complainant and learned counsel Mr.Subodh Gokhale-advocate for the opponent hotel.
(7) The fact that the complainant is a consumer of the opponent hotel is not disputed. The complainant had been to the opponent hotel on 03/02/1998 and hired services of the opponent hotel by making payment of charges as such he is a consumer as contemplated u/s.2(1)(d) of the Consumer Protection Act, 1986. On 03/02/1998, double bed room on 2nd floor was allotted to the complainant. His name was entered in the customers’ register. The complainant was staying in the opponent hotel along with his friend-Mr.S.K.Bhandari.
(8) The complainant was staying since 03/02/1998 in the opponent hotel. Nothing is on record to hold that on 03/02/1998 or on 04/02/1998 or on 05/02/1998, the complainant or his friend made grievances with the Manager or Director or any other authority of the hotel about negligent and non-co-operative attitude of the hotel staff. Evidence on record is not sufficient to hold that the rooms of the hotel were not cleaned regularly by the staff of the opponent hotel. If really the room allotted was not neat and clean, the complainant must have left the room or he might have made complaint with the Manager or authority of the opponent hotel. However, the fact that the complainant met with an accident which took place in the midnight of 05th and 06th February, 1998 is admitted on behalf of the hotel. But the way in which the accident took place is disputed.
(9) On 06/02/1998, the complainant came back to the hotel at around 1.50 a.m. with his friend-Mr.Bhandari. According to the complainant, there was no light in hotel and there was pitch dark. There was no attendant, watchman/waiter. There was no light/lamp or candle on the stairs. The complainant and his friend started walking using their own senses and touching by the wall and stairs. On second floor, the complainant felt a door like space with its shutter open and believing it to be the gate, he stepped inside. He fell down from the height of second floor to ground floor and became unconscious. He sustained grievous injuries and admitted in the hospital.
(10) The opponent hotel tried to prove that due to failure of electricity, arrangement of light was made. Candles and lamps were lighted on the ground floor and staircase and upper floor. Warning was given by the receptionist to the complainant and his friend-Bhandari not to climb the staircase, but they did not listen and ultimately, the complainant met with an accident.
(11) It is the case of the opponent hotel that the directions were given to the complainant by the receptionist. The receptionist is available with the opponent hotel. His affidavit of evidence is not filed on record. The persons who were present in the hotel at the time of incident did not come forward to file affidavit in support of written version of the opponent hotel. On the other hand, version of the complainant is fully supported by the evidence of his colleague Mr.Bhandari. Presence of Mr.Bhandari on the spot with the complainant is admitted by the opponent hotel. Suppose, there was light arrangement made by the opponent in the hotel, there was no possibility of occurring of the accident. The accident took place as there was darkness in the hotel.
(12) The opponent hotel in its written version pleaded that the opponent hotel is a reputed hotel catering to needs of Indian and foreign guests belonging to middle class. It gives satisfactory good services to its customer/guests and the management takes proper care to see that all the requirements of the customers/guests are attended to. If the opponent hotel is a reputed hotel and entertaining the foreigners, it is the duty of the opponent hotel to make necessary arrangements to meet out electricity failure in emergency. The opponent hotel should have made alternate arrangement of light by generator or inverter to meet out the problem of electricity failure. At least; the hotel should have made arrangement for emergency lamps so as to avoid danger to the life of the people at public place i.e. at opponent hotel. Admittedly, there is a lift on second floor. It is not explained by the opponent hotel as to why the door/gate/shutter of the said lift was kept open. It was the duty of the hotel management to close the door of the lift tightly to avoid danger.
(13) It is urged on behalf of the opponent hotel that at the relevant time, the complainant and his friend-Bhandari were under influence of liquor. They were using abusive language with each other. Mr.Bhandari threatened the hotel staff. Their legs were not steady. Their eyes were looking reddish and they were talking with each other in abusive language.
(14) The staff members, who were threatened by the complainant or by Mr.Bhandari, did not come forward to state these facts on oath. The condition and the conduct of the complainant should have been proved by the staff members who observed the conduct and condition of the complainant and his friend. Best witnesses are withheld by the opponent. Affidavit of evidence is filed by Mr.Liyaqat Ali. He does not claim that he personally observed the incident or conduct of the complainant. The Director of the opponent hotel who shifted the injured in BombayHospital, failed to lead his evidence by filing affidavit. Medical papers are filed by the complainant on record. There is nothing on record of the BombayHospital to prove that the complainant was unable to walk and his eyes were red due to consumption of heavy liquor. Bare words of the authorized signatory about the conduct and condition of the complainant at the time of incident are not sufficient to prove the negligence of the complainant himself which resulted into the accidental fall from cabin meant for lift. Director of the opponent hotel might have provided medical aid by spending amount of 20,000/- towards his medical treatment, but this fact is not sufficient to hold that the alleged accident was taken place due to negligence of the complainant only.
(15) Learned counsel for the opponent has drawn our attention to FIR which was noted down in the station diary by police. On perusal of the said station diary entry, it appears that PSI-Shri M.B.Kadam of M.R.A. Road Police Station recorded statement of injured complainant-S.K.Taing. The injured made statement that “on 06/02/1998 at 2.00 a.m., when he came back from office situated at Nhava Sheva to the hotel, there was dark at hotel due to failure of electricity. Lift was out of order. Therefore, he proceeded to the second floor by climbing staircase. While climbing staircase, he fell down due to slip of leg and sustained injury. He has no complaint or suspicion against anybody.” It appears that the police closed the investigation by believing that the injured sustained injuries due to an accident.
(16) Station diary entry recorded at Kalbadevi Police Station shows that statement was recorded on 06/02/1998 at 5.15 a.m. The alleged accident took place on 06/02/1998 at 2.00 a.m. As per evidence of the complainant and his friend-Mr.Bhandari due to alleged accident, the complainant sustained grievous injuries and he became unconscious. Station diary does not reveal that when the statement was recorded by PSI-Shri Kadam, the complainant was conscious. The statement of the injured was not recorded in presence of the doctor of the hospital. Copy of original FIR is not filed on record. The complainant in his affidavit states that when his signature was obtained on statement, he was in semi-conscious state. He was shocked due to serious incident. He was lying in the hospital on bed in semi-conscious state. The representative of the hotel came in hospital and obtained signature on statement which was in regional language. Complainant-Shri Taing is a resident of Delhi. He does not understand Marathi language. Statement of the complainant was recorded in Marathi. If really, the complainant fell down from the staircase due to leg slip, the members of the staff of the opponent hotel could have filed affidavit to that effect. Receptionist was there who observed the incident, but he did not come forward to state that the complainant fell down due to slip of leg while climbing the staircase. Mere station diary entry without affidavit of the police officer who recorded the statement of the injured is not of much help to the opponent to prove negligence of the complainant.
(17) On 06/02/1998, the complainant was admitted in BombayHospital and Medical Research Centre. His pathological tests were carried out at Department of Pathology. His blood was tested. If the complainant was under influence of alcohol, it could be observed during examination of blood. The patient/injured was admitted by the Director of the opponent hotel in the hospital. The authorized person/Manager/Director could have obtained documents of the hospital to point out that the complainant was under influence of liquor. Certainly, doctor of BombayHospital and Medical Research Centre had recorded history of the patient that was not collected by the officials of opponent hotel to show the reason of the accident. Colleague of the complainant, namely, Mr.Bhandari was on the spot. His statement might have been recorded by the police. Said statement is not filed on record. Best witnesses and best documents are withheld by the opponent hotel and hence it is necessary to draw adverse inference.
(18) Medical papers issued by BombayHospital filed on record by the complainant show that he has undergone several tests. The complainant has undergone operation and a rod was implanted in the thigh of the complainant at BombayHospital. He was at BombayHospital from 06/02/1998 to 14/02/1998 because of fracture sustained by him to the II shaft femur. Interim bill dated 08/02/1998 issued by BombayHospital and Medical Research Centre pertaining to the treatment of the complainant is for an amount of `10,704/-. Bill dated 08/02/1998 for the medicines and injections is for `337.60. Bill dated 09/02/1998 issued by medicines for `613.75. Another bill dated 09/02/1998 is for `147/-. Bill dated 10/02/1998 for medicines is for `76.60. Another bill dated 10/02/1998 is for `90.65. On 10/02/1998 Dr.Jhunjhunwala (Orth.Surgeon) issued bill for `7,000/- and it was paid. Final bill issued by BombayHospital is for the amount of `3,473/-. Bill of medicines dated 11/02/1998 is for `438/-. Bill of medicine dated 12/02/1998 is for `87.65. On 14/02/1998, the complainant had paid an amount of `10,704/- to BombayHospital vide receipt No.2372087 by cash. Again on 14/02/1998, he paid bill of `34,739/- at BombayHospital. On 14/02/1998, he was discharged from BombayHospital and discharged intimation was issued. The bills and other documents of BombayHospital show that the complainant had incurred heavy expenses for medical treatment. He was required to purchase medicines as per the advice of the doctor. Later on, he had been to IndraprasthaApolloHospital at Delhi for further treatment. He visited IndraprasthaApolloHospital at Delhi on 25/02/1998. Again x-ray test was carried out. Diagnosis was that of fracture of right shaft femur. The bill of ApolloHospital is not filed on record by the complainant, but his treatment in this hospital cannot be denied. According to the complainant, still he is under medical supervision. It is true that the complainant met with an accident. He suffered multiple injuries and fractures. He had undergone operation for fracture injury. The accident was caused due to negligent act on the part of the opponent hotel. Certainly, not providing necessary facilities at public place like hotel amounts to deficiency in service on the part of the opponent hotel and the complainant is entitled to claim compensation for the same. However, the complainant failed to substantiate claim of `15,00,000/-. The complainant made an exaggerated claim. Due to fracture injury, the complainant had to undergo trauma, mental agony, mental disturbance, torture and physical pain. The opponent hotel is liable to pay compensation to the consumer complainant for loss and injury suffered by the consumer complainant due to negligence of the opponent hotel. He is entitled to claim `1,50,000/- from the opponent towards medical expenses, medical treatment, special diet, attendance charges and travelling. Opponent hotel is liable to pay an amount of `1,00,000-/ to the complainant for its negligence and ultimately for deficiency in service rendered to the consumer complainant. The complainant has filed this complaint by coming from Delhi. He was required to attend this complaint at Mumbai. The opponent hotel is liable to pay an amount of `50,000/- to the complainant towards cost of litigation. In short, the complainant is entitled to receive an amount of `3,00,000/- from the opponent hotel. With this view, we pass the following order.
ORDER
1. The consumer complaint is partly allowed.
2. The opponent hotel is directed to pay an amount of `1,50,000/- to the complainant towards medical treatment, an amount of `1,00,000/- towards compensation for negligence and an amount of `50,000/- towards cost of litigation (total amount of `3,00,000/-) with simple interest @6% p.a. from the date of filing of this complaint till realization of the amount.
3. The opponent hotel is directed to make payment as per the order to the complainant within 45 days from the date of this order.
4. Copies of the order be furnished to the parties free of cost.
Pronounced on 9th December, 2013.
