PER MR. PREM NARAIN, PRESIDING MEMBER

          This appeal has been filed by the appellant – Board of Directors, Pramod Hotel  against the order dated 30.09.2015 passed by the State Commission in CC No. 31/2013.

2.      The brief facts  of  the case are that Ajay Dora booked some rooms on 11.04.2013  in the Hotel of the OP/Appellant in connection with the marriage of his sister’s daughter. The marriage reception was on 17.05.2013.  The  guests  vacated  the rooms on 19.05.2013.  In the night of  17.05.2013  in the  room of  the complainant  there  was a theft of jewellery and cash and same was reported to the police on 17.05.2013.  FIR was lodged with the police on 18.05.2013.  Later on, the complainant  filed a complaint before the  State Commission  alleging deficiency in service on  the  part  of  the OP/Appellant for paying a compensation of Rs.15.00 lakhs for  jewellery and Rs.20,000/- as reimbursement for the cash lost, along with cost.

3.      The complaint was resisted by the OP/Appellant on the ground that the guests were advised as per the booking card itself that the jewellery , cash and  other valuables are to be kept in the locker which was available with the cashier.  However, the jewellery and  cash was kept by the complainant in the room against the advice  of the hotel management.  Claiming no deficiency, it was requested to dismiss the complaint.

4.      The State Commission after considering the submissions of both the parties allowed the complaint as under :

“Under such premises, the Consumer Complaint  is allowed in part and opposite party Nos. 1 & 2 are directed jointly and severally to pay the complainant a sum of Rs.10,00,000/- towards loss of jewellery, Rs.20,000/- towards loss of cash and Rs.5,000/- towards compensation for anxiety and harassment within two months of receipt of the order or else the aforesaid amount shall carry interest @ 10% p.a., from the date of filing of the consumer complaint, i.e., 12.08.2013, till payment”.

5.      Hence the present appeal.

6.      Heard the learned counsel for the parties and have perused the record. 

7.      Learned counsel  for  the  appellant stated that the complainant has filed no proof  for  purchase of  jewellery  nor they have filed any other proof for keeping  that much jewellery in the room and that too, without  any  intimation  to the  management staff of the OP/appellant.  In the FIR the jewellery was valued at Rs.10.00 lakhs whereas in the complaint, it has been valued for Rs.15.00 lakhs.  Without any proof, the State Commission has awarded Rs.10.00 lakhs for loss of jewellery to be paid to the complainant and Rs.20,000/- for cash loss and Rs.5,000/- as compensation for harassment.

8.      Learned counsel  for  the  appellant  further  argued that it has been observed  by  the State  Commission  that  as per the video clipping of  the CCTV camera, the  suspected  thieves  are the staff of the hotel and the hotel management cannot  escape the vicarious liability and therefore the hotel  has been made liable to pay for all the stolen material alleged by the complainant.

9.      The learned counsel argued that in the criminal case, the charge sheet was not filed till the matter was pending before the State Commission  and  until the charge-sheet  is filed, no person can be held accused in the matter and,  therefore, the order of the State Commission is based only on surmises and conjectures as well as on assumptions and presumptions. 

10.    On the other hand, learned counsel for the respondent / complainant stated that the incident has happened when the marriage was going on and the culprits may have thought that there will be nobody in the room and they got a chance to steal the valuables.  It is not possible  to have  the purchase receipts of old jewellery and therefore  there  is no logic in the assertion  of the learned counsel for the appellant  that purchase receipts have not been produced for the jewellery.  The State Commission has clearly observed that in Indian marriages,  women wear lot  of jewellery and also keep lot of jewellery for changing, as per occasions.  The State Commission has observed that it is not possible to keep the receipt of jewellery purchased, for a long time.  The State Commission relied on the affidavit filed by the complainant  and   the assertions  made in the FIR.  There was no locker facility in the hotel and  the  directions  given  in  the booking  card were only on paper.  The State Commission has observed in its order that when the management  was  asked  about the locker facility it was stated that this was a new hotel, no locker  facility  was  maintained at that time.  Thus it is proved that there was no locker and consequently, there was no possibility of  keeping the  jewellery  and other valuables in the locker.  The only alternative was to keep the jewellery in the room under lock and key.                                                                                        

11.    It has been contended  by the learned counsel for the respondent that the staff of  the hotel is definitely involved in the theft as is brought

out  from the video clippings of  the CCTV camera.  The appellant cannot escape the vicarious liability in the matter.  It was argued that the staff must be having permission of the employer/hotel management board to enter into any room.  Therefore, for any illegal act of the staff, the owner/management of the hotel is vicariously responsible.  To support this argument, the learned counsel relied on the following judgment of the Hon’ble Supreme Court, i.e., Pushpabai Purshottam Udeshi & Ors. Vs. Ranjit Ginning & Pressing Co. (P) Ltd., & Anr., Civil Appeal No. 2071 of 1968, decided on 25.03.1977.

12.    I have considered the  arguments advanced by the learned counsel for the parties and have carefully examined the material on record.  The theft is admitted by both the parties as the FIR was lodged in the matter.  Though the booking  card  advises the guests to keep their valuables in the locker available  with the cashier, however, from the observations of the State Commission, it is brought out that the locker was not there when the incident  happened.  The  guest  registration form  also mentions that the management does not have the responsibility for the loss  of  guests’  valuables and Lockers are available with the cashier.  It further mentions that  “I have  gone  through the terms and conditions of  my  stay in the said hotel and I agree  to abide by the same”.  It means that  the  occupant must be aware  about the fact that the management will not take any responsibility  for  the theft  of valuables,  if  they  are  kept  unattended in the  room and  not kept safely  in the locker,  available with the cashier.  If the locker was  not  available  at that time, a  complaint should  have  been  lodged in protest or complaint with the hotel management at that time, which does not seem to be the case.  However, as the State Commission has observed that there was no locker facility in the hotel and the management has also accepted the same before the State  Commission  that  no  locker facility was available as that was a new hotel, the deficiency for not providing a locker,  is clearly established. 

13.    Now  the  question for consideration  is,  as to what  should  be  the compensation  for this deficiency?.   In the present case, another angle is involved that during the investigation, it  was found that  some  of the staff of the hotel were involved in the theft, though no charge-sheet was filed, till  the pendency of the  case  before the State Commission. None of  the  parties gave the present status of the criminal case  as well, during the hearing.  Clearly, the angle  of  vicarious  liability  is  involved in the present  case.  However, the same is not established as  neither the charge-sheet was filed till  that  time  nor any order of the criminal court was placed on record in this regard.   The facts and circumstances of the instant case do not seem to be covered  by  the extended scope  of  “in the course of the employment” or “under the authority of the master” as laid down by the Hon’ble Supreme Court in  Pushpabai Purshottam Udeshi & Ors. (Supra).  The first condition for attracting the vicarious liability is that the employer must be liable.  In the present case, no conclusive proof has been placed on record to show that the employees of the hotel are liable for theft of jewellery worth Rs.10,00,000/- and cash of Rs.20,000/-.  In the cited case, the authority given to the employees was absolute, whereas, in the instant case, it was not absolute, as though, the employees might be having permission to enter a room, in the absence of the occupants, but the rider was that the occupants will not keep their valuables in the room unguarded and the other rider was that the hotel management will not be responsible for any loss of valuables in case the advice is not followed. The compensation cannot be awarded without any proof of loss.  The only proof submitted  is the FIR lodged by the complainant.  The jewellery and cash  was  kept  unattended  against the advice of the hotel management.  Hence  the complainant  is also equally responsible for her loss as she did not comply with the advice given by the hotel management and if it was not possible to comply with that advice, she should have made a complaint at  that time before the hotel management or should have taken other care to keep her jewellery, valuables and cash, safe and secure.  However, this  does not exonerate the hotel  management  from  deficiency of service in providing a locker.  Here, definitely there is an element of ‘contributory negligence’ on  the part of the complainant as well and, therefore, the order of  the  State Commission allowing the total cost of the alleged theft of jewellery and cash is not justified. 

14.    I definitely agree that the hotel management was deficient in not providing the locker services and, therefore, it is liable to pay compensation to the complainant.  As the quantum of loss cannot be verified and also if there is no police report available in respect of quantum of loss, after investigation, as also the vicarious liability is not proved keeping in view the negligence on the part of the complainant also,  I deem it appropriate to order the appellant hotel management  to  give  compensation of  Rs.2.00 lakhs for the deficiency in service of not providing the locker in the hotel. 

15.    Based  on  the above  discussion,  the  appeal is partly allowed and the appellant is  directed  to pay to the respondent No.1/ complainant only Rs.2.00 lakhs instead of Rs.10,20,000/- awarded by the State Commission along with interest @ 7% p.a.,(instead of 10% p.a., as awarded by the State Commission, as it seems  to be on the higher side)  from 30.11.2015 (i.e., three months  after  the date of the impugned order, i.e., 30.09.2015), till the date of realisation.  Accordingly, the  order of the State Commission is  modified.   This order  will be complied  with  by the Appellant,  within a period of 45 days, failing which, an additional interest @ 3% p.a., shall be payable from the date of this order.  No order as to cost of this appeal.