DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.77/2022

Pranjal Prateek,

S/o Shri M.K Singh,

R/o C-4/133, Ground Floor,

SDA, New Delhi-110016

….Complainant

Versus

M/S Lodhi Property Company Limited

Through its Director

The Lodhi,

Lodhi road,

New Delhi-110003

        ….Opposite Party

 Date of Institution    : 29.03.2022      

 Date of Order            :14.06.2022      

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member: Ms. Kiran Kaushal

This case is at initial stage.

1.      Complainant’s case is that complainant visited Lodhi Hotel run by M/s Lodhi Property Company Ltd. (hereafter referred to as OP).  It is stated that the complainant drove to the hotel on 31.8.2021 in BMW X-1, a utility vehicle with a high ground clearance of approximately 183mm bearing Regn. No. HR 26DQ 4067.  It is stated that on the said day, it was raining heavily, but complainant went to the hotel, as he had a professional meeting scheduled at the hotel.  As the complainant approached the entrance gate, the hotel gate guard stepped out of the security room adjacent to the boom barrier at the hotel entrance gate and signaled by hand to proceed to the entrance.  The complainant being seated inside his vehicle could not reasonably ascertain the amount of water accumulated at the entrance and therefore relied on the judgment of security guard.  Subsequent thereto the complainant moved his vehicle forward at slow speed wading through some water at the entrance gate inside the hotel premises.  As soon as the vehicle came out of the water collected at the entrance gate, the vehicle engine stopped immediately.

 2.     It is stated that the complainant at his own cost, arranged a tow truck for transporting the vehicle to the authorized workshop, since the vehicle was damaged to the extent that the engine was not starting. The complainant was drenched in rain and was left in lurch in disheveled condition.  Yet, the complainant attended his meeting while the car was being towed away to the workshop.  It is stated that the loss of the vehicle was undeniably caused due to unprofessional management of the sole entrance gate by OP and not properly maintaining the hotel premises including drainage, especially during the rain spells in monsoon. It is next stated that Complainant had to pay hefty sum to the workshop, in addition to the insurance claim. Consequential to the damage of the vehicle , complainant was forced to avail services of a private taxi services.

3.      Alleging deficiency in services on behalf of OP, complainant prayed for directions to OP to make payment of Rs.13,04,650/- along with interest @ 18% per annum from 31.8.2021 till the date of payment.

4.      Complainant in support of his complaint has Annexed a photograph of the entrance gate of the hotel, Mails exchanged between the parties and a bill/cash memo of a tour operator.  We have perused the file and heard the counsel for the complainant.

5.      During the course of arguments on admission hearing complainant was put a query as to how he was a `Consumer’ without having paid any consideration. This commission was of the view that complainant having not paid the consideration was not a consumer.

For ready reference relevant provision is reproduced:

 Section 2(7) of the Consumer Protection Act 2019, `Consumer’ is defined as under:-

(7) “consumer” means any person who – (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any use of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any  commercial purpose; or

(ii) hires or avails of any service for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

6.      To establish his credentials as a Consumer, complainant filed an additional affidavit on the issue of maintainability stating that though complainant held a meeting with OP on 31.8.2021 i.e. the day of the incident; it was the client of the complainant, Mr.  Jeevan Krishanan who paid the bill for food and beverages purchased and despite best efforts made by the complainant the said bill could not be traced. This explanation does not satisfy the legal requirement to prove payment of consideration. Moreover, it is hard to believe that in today’s age of technology, complainant could not retrieve the bill paid or show any CCTV footage proving that the complainant attended a meeting on the said day. Further the photograph annexed by the complainant, of the entrance gate of the hotel is sans the vehicle of the complainant. Complainant has also not placed on record the receipt of the Tow truck by which the vehicle was towed to the workshop.  Bald averments without any substantive evidence have no value in the eyes of law. Therefore, we are of the opinion that the complainant has not been able to establish his status as a Consumer and also the fact that the complainant’s vehicle got damaged due to the water collected at the entrance gate of the hotel.

7.      The complainant referring to the e-mail dated 13.9.2021 (Annexure C-4) by OP states that the OP has not denied/disputed the incident which occurred on 31.8.2021. On perusal of Annexure C-4 it is noticed that the said email is reply to the mail of the complainant dated 31.8.2021.The said mail, when read in totality, indicates acknowledgment of heavy rains but clarifies that despite the unexpected heavy downpour on the said day, lot many cars passed by the same entry and exit of the hotel and same protocol was being followed for entering or exiting the hotel. There is no admission of complainant’s presence or his vehicle having faced any damage at the hotel gate. Therefore, the said e-mail cannot be read as acceptance of the occurrence of the incident.

 8.     Complainant in his affidavit on maintainability has relied on the judgment Hon’ble Supreme Court, in the case of Taj Mahal Hotel Vs. United India Insurance Co. Ltd. & Others (2020) 2SCC 224  it is held:

“Applying this to the facts of this case, the State Commission observed that though the Appellant-hotel had averred that Respondent No.2 had not had dinner at the hotel that night, it was improbable for him to have stayed inside the hotel from 11 pm till 1 a.m. without consuming any food or snacks or paying any kind of bill.  Hence, the State Commission proceeded on the assumption that Respondent No. 2 had paid consideration the contract”.

9.      The Managing Director, Kerala Tourism Development Corporation Ltd. Vs. Deepti Singh and Ors., MANU/SC/0418/2019, has held under:

“Every guest who enters the pool may not have the same level of proficiency as a swimmer.  The management of the hotel can reasonably foresee the consequence which may arise if the pool and its facilities are not properly maintained.  The observance of safety requires good physical facilities but in addition, human supervision over those who use the pool…The failure to satisfy this duty of care would amount to a deficiency of service on the part of the hotel management”.

10.    The said cases are distinguishable on facts, as the complainant in the instant case has not been able to establish the fact that the complainant visited the hotel premises on 31.8.2021.

11.    Thus we are of the opinion that complainant has not been able to establish the fact that he had visited the hotel on 31.8.2021 and that the damage to the vehicle occurred due to the vehicle wading through water at the hotel premises. Also in the absence of evidence that the complainant paid any consideration he is not a `consumer’. Therefore, instant case is not maintainable and is dismissed in limine.

File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.