BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD.

F.A.No.932 OF 2012 AGAINST C.C.NO.37 OF 2012 DISTRICT FORUM-II, TIRUPATHI.

Between:

Bathala Giri Babu

Hindu, aged about 40 years,

Managing Director,

Hotel Udayee International

No.13-6-771/20, opp to RTC

Bus stand, Tirupathi 517 501.

Rambabu Rallapati

Hindu, aged about 47 years,

General Manager,

Hotel Udayee International

No.13-6-771/20,

Opp.RTC Bus Stand,

Tirupathi-517 501.                                 ..Appellants/

                                                            Opp.parties.

         And

Penubothu Arun S/o.Subbarao,

Hindu, aged 37 years, R/o.Maddiralapadu

Village Naguluppalapadu Mandal,

Prakasam District.                                          Respondent/

Complainant

Counsel for the Appellants     Mr.M.Ramgopal Reddy

Counsel for the Respondent  M/s.T.Sreedhar

         QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER.

                                                            AND

 SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

MONDAY, THE SEVENTEENTH DAY OF FEBRUARY,

TWO THOUSAND FOURTEEN

 Order (As per Sri  T.ASHOK KUMAR Hon’ble MEMBER)

                                           ***

This is an appeal preferred by the opposite parties against the order in C.C.No.37/2012 dated 11-10-2012 on the file of District Forum-II, Tirupathi. For convenience sake the parties as arrayed in the complaint are referred to hereunder:

The brief facts of the complaint are that the complainant  with his family members went to Tirupathi on 06-5-2012 and took a room at Hotel Udayee International Tirupathi which is under the control of the opposite parties.  At about 10.00 p.m. after keeping all the jewellery including mangala sutram of his wife in a bag along with cash of Rs.51,700/- they went to sleep and in the early hours of 07-5-2012 they found that the bag was missing and immediately informed the management and made search and found the empty bag lying on the terrace of the next building.  The hotel authorities informed the police, who inspected the premises but did not conduct any further investigation on the ground that no complaint was given and accordingly the complainant gave a fresh complaint which was registered as Cr.No.210/2012.  The complainant alleged that the incoming and outgoing of an unknown person through window of the complainant’s room was also recorded by the camera and as the glass window  was not properly secured, it was locked at one end and not locked at the other end, the miscreant entered the room through the glass window and committed theft and he sustained a loss of Rs.3,15,700/- due to the negligence and deficiency in service on the part of the opposite parties.  Hence the complaint for a direction to the opposite parties to make good the loss of Rs.3,15,700/- along with interest at 24% p.a., Rs.25,000/- towards travelling charges and another Rs. 2 lakhs for mental agony and costs of Rs.10,000/-.

Opposite party No.2 filed written version which was adopted by opposite party No.1 and they resisted the complaint.  They admitted that the complainant stayed in their hotel but contended that it is a mystery that theft took place when the complainant and his family members were very much in their room and that they lost belongings worth Rs.3,15,700/-.  The opposite parties contended that as per regulations, articles should be deposited in the locker and they cannot be held responsible for any theft in the room and contended that there is no deficiency in service on their behalf and prayed for dismissal of the complaint.

Both sides filed affidavits reiterating their respective contentions.  Exs.A1 to A4 and Ex.B1 were marked on their behalf.  Having heard both sides, considering the material on record and written arguments of both sides, the District Forum vide impugned order allowed the complaint directing opposite parties to pay a sum of Rs.1,60,000/- with interest at 12% p.a. from the date of the complaint i.e. 18-5-2012 till the date of realization together with compensation of Rs.5,000/- and costs of Rs.2,000/.

Feeling aggrieved by the said order, the opposite parties preferred this appeal contending that the order of the District Forum is against principles of natural justice and it failed to consider the other evidence produced by the opposite parties.  The complaint of the complainant is not maintainable as it  is not filed against ‘HOTEL UDAYEE INTERNATIONAL’, partnership firm, whereas the complaint is filed in personal capacity and therefore it is liable to be dismissed on that ground.  The District Forum failed to consider Ex.B1, Guest Registration card cum advance cash receipt wherein it is mentioned that all valuable and cash should be deposited with the front office in the safe deposit locker at free of cost and the complainant ought to have deposited his valuables with the management  and if he has not deposited the same, it is at his risk and responsibility and the opposite parties are not liable.  The alleged theft occurred on 07-5-2012 and the complaint is filed before the District Forum on 18-5-2012 and it is premature.  The District Forum awarded compensation without any supporting document  for the jewellery owned by the complainant at the time of boarding the hotel and prayed to set aside the order of the District Forum and allow the appeal.

Heard both counsel with reference to their respective contentions in detail.

               Now the point for consideration is whether the order of the District Forum is vitiated either in law or on facts?

         FA.I.A.No.3307/2013 was filed by the complainant to receive and mark the compact disk showing the thief loitering in the hotel premises and the same was received as Ex.M.O.1 subject to proof and relevancy.

It is the case of the complainant that his family went to Tirumala on 05-5-2012 to have darshan of Lord Venkateswara and after the darshan they came to Tirupathi and stayed in Hotel Udayee International on 06-5-2012 by paying Rs.3000/- in advance and he was allotted Room No.2141 and as the Air conditioner was not working, the staff of the hotel shifted them to room No.2139 and as the complainant and his family are restless, they slept early at about 10.00 p.m. and before going to sleep they put the mobile Samsung model (star duos) valued at Rs.10,300/- in handbag along with Managalasutram  of the wife of the complainant weighing 50 gms., errapusala chain weighing 18 gms and 3.3 rings weighing 10 gms and put the bag in the drawer provided in the hotel room and after they woke up in the early hours of 07-5-2012, and found their bag missing and informed the same to hotel authorities and they found the empty bag lying on the terrace of the next building.  The complainant alleged that the incoming and outgoing of an unknown person through window of the complainant’s room was also recorded by the camera and as the glass window  was not properly secured, it was locked at one end and not locked at the other end and the miscreant entered the room through the glass window and committed theft and he sustained a loss of Rs.3,15,700/- due to the negligence and deficiency in service on the part of the opposite parties. 

The learned counsel for the opposite parties contended that as per Ex.B1, the customers were instructed to deposit the valuables at the locker provided at the reception.  Even according to the said instructions, the management is no way responsible for any loss or damage to the locker or any other part and if that is so,  it makes no difference if the values are kept inside the room or in the locker and hence there is no force in this contention.

The counsel for the opposite parties contended that the complaint of the complainant is not maintainable as it  is not filed against ‘HOTEL UDAYEE INTERNATIONAL’, a partnership firm, whereas the complaint is filed in personal capacity and as such it is liable to be dismissed on that ground.   No evidence is placed on record to show that the said hotel is a partnership firm.  Even otherwise, partners are jointly and severally liable and therefore the said objection could not be appreciated in favour of the opposite parties.

The counsel for the complainant relied on Ex.M.O.1, compact disk, showing the thief loitered the premises and the counsel for the opposite parties objected for receiving the same as evidence and contended that there is no evidence that it was obtained from Police or from the court and it cannot be received as evidence as it may be generated.  If  the contention of the opposite parties that no CC camera is arranged  is true, that itself amounts to deficiency in service because as per the revised guidelines for approval of guest houses issued in the month of December, 2009 by Government of India, Ministry of Tourism, H & R Division, state that installation of  CC TV in public areas with data backup is mandatory.  The opposite parties did not deny that the police collected CCD footage in concerned criminal case from their hotel and therefore an inference is drawn that there was CC camera and they did not choose to file the same as evidence and as such adverse inference is drawn against them.  On the other hand, the complainant produced compact disc by obtaining the same from the Police and marked as Ex.M.O.1 which reveals that a person was loitering during the night time in and around the premises of the hotel and the same supports the case of the complainants that theft had taken place. 

The counsel for the complainant relied on the decision rendered in FA 102/2004 dated 01-8-2008 passed by Hon’ble National Commission in M/s Hotel Hyatt Regency v. Mr.Atul Virmani wherein it was held that if the keys of the car are given by the customer of a 5 star hotel for parking to the uniformed valet of the hotel is stolen, the 5 star hotel is responsible for making good the loss to the customer and the complainant in the instant case lost the bag containing valuables kept in the  drawer of the hotel and a criminal case was registered with regard to the said theft with.  Pendency of the criminal case is not a bar to file the consumer complaint.  The District Forum considered the decision of Hon’ble Supreme Court of India in Sumathi Devi M.Dhanwatay v. Union of India and others reported in 2004 AIR 2368 wherein a passenger travelling in A.C. compartment of train lost her belongings due to the theft.  The Hon’ble Apex court  held that the management cannot be totally  absorbed liability as railways have to provide necessary protection.   The same law applies to the instant case of the complainant on analogy and we see no reason to interfere with the well considered order of the District Forum.

In the result the appeal fails and is accordingly dismissed confirming the order of the District Forum.  There shall be no order as to costs.  Time for compliance four weeks from the date of receipt of the order.

                                                                    MEMBER.

                                                                    MEMBER.

JM                                                                 Dt.17-2-2014

//APPENDIX OF EVIDENCE//

Exhibits  marked on behalf of the complainant as additional evidence:

Ex.M.O.1-Compact Disc.

 MEMBER.

                                                                     MEMBER.

JM                                                                 Dt.17-2-2014