DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

               Smt. PRIYA.S, BAL, LLB, MBA (HRM)     :  MEMBER

                  Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

                          Tuesday  the  15^th  day of March   2022

C.C. 46/2015

Complainants

1. T. Balakrishnan

Prasanth, Purakkalam,

P.O. Kuthuparamba, Kannur Dt.

2. Sayooj Thavara, S/o. T. Balakrishnan

Prasanth, Purakkalam,

P.O. Kuthuparamba, Kannur Dt.

3. T. Sajan, S/o. T. Balakrishnan

Ocean Park, 505, S.N. Park,

Kannur – 670 001.

4. Surendran Korattem

B2 Wing 206, Aswamegh 3,

Akota, Vadodara – 390 020.

5. Ronish Alinkil

753, Basaweswara Nagar

Hebbai, 1^st Stge, Mysore – 570016

(By Adv.Sri.P. Ajaykumar & Sri.P. Lyvins)

Opposite Parties

1. The Proprietor

Gateway Hotel, P T Usha Road,

Kozhikode – 673 032.

2. Ms. Parinita Gawri,

Director of Public Relations,

Vivanta by Taj and Gateway Hotel

Oxford House, 2^nd Floor,

15/17N, F Road, Colaba, Mumbai – 400 001.

(By Adv. Sri.Mohammed Zahir)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT.

        This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

        2. The case of the complainant, in brief, is as follows:

            The complainants, five in number, booked five rooms for their accommodation in Hotel Gateway, Kozhikode to celebrate the 80^th birthday of the 1^st complainant.  The opposite parties allotted 5 rooms bearing Nos. 112, 116, 301, 305, and 314 and received Rs.24,367/- from the complainants. They occupied the rooms on 23/04/2014. They went to the 1^st complainant’s room No.301 to join together to start the celebration by sharing birthday cake. The lift in the hotel was not functioning properly. The complainants and their family members were stuck   in the lift   for 20 minutes while returning from the room of the 1^st complainant to the ground floor for having food from the restaurant. The third complainant was under treatment for blood pressure and the 1^st complainant was having various ailments. They were stranded in the lift without light or fan and were unable to communicate with others. Only after crying for help, the opposite parties have brought the technicians. The inexperienced technicians were not able to find any solution  to open the door of the elevator. Finally, they dropped the lift to the ground by loosing the rope. The complainants and others were pulled from the lift to the ground floor and rescued.

        3. When the 3^rd complainant  opened the  room allotted to him, he saw  large venomous   centipedes. The hotel authorities arranged another room after waiting for 4 hours. The complainants and the family members came from abroad and far away places to celebrate the 80^th birthday of the 1^st complainant.   Their stay in the hotel was life threatening and miserable. The service of the opposite parties was deficient, inadequate and condemnable. They were constrained to  shift to  Kadavu resort at Kozhikode for the celebration. Though they have booked the rooms in the Gateway Hotel for a joyous function, they had to face innumerable troubles and deficiency of service there. They issued a lawyer notice to the opposite parties  to compensate them for the deficiency of service and troubles caused to them, but it was replied by the opposite parties with untenable contentions. Hence the complaint seeking compensation of Rs.10,00,000/- for deficiency of service, return of the room rent collected and Rs.50,000/- as  cost of the proceedings.  

        4. The opposite parties resisted the complaint by filing version jointly. According to them, the 2^nd opposite party is an unnecessary party to the proceedings.  It is true that the complainants had checked in the  hotel  on 23/04/2014  and the  booking was for one night. It is true that  the elevator had halted for a few minutes between the 1^st floor and  the ground floor. The hotel staff was immediately alerted about the lift getting stuck by the automatic alarm system monitored 24 hours a day.  The passengers also pressed  the alarm button. The technicians swung into action and in a very reasonable time all the guests were evacuated safely within a few minutes.  The technicians of the company came and inspected the elevator and found nothing wrong and informed that the sudden halting can happen on account of voltage fluctuations. Throughout the evacuation process, the hotel staff and the security manager assured the guests  stranded in the lift through the phone installed  in the lift that  help was around and that the technicians were already working to release the door open.  As per the CCTV records, the 1^st complainant was not in the lift at that time.

        5. The complaint regarding the finding of centipedes in the room is not correct and hence denied. It is true that the complainants had sought a change of room and the same was provided within a reasonable time that was required for arranging and preparing another room suitable for guests requirements. Before the guest check-in, the rooms were thoroughly checked as a part of housekeeping practice and at that time there was nothing noticed. There has been a regular pest control schedule being followed throughout the hotel. There were no such complaints from any guests earlier or thereafter. There was no deficiency of service at the opposite party hotel. The booking was only for one night. No mental agony or suffering was caused to the complainants on account of any action or inaction on the part of the opposite parties. The claim for compensation is baseless. The relief claimed for return of room rent is also unsustainable  and baseless. The complainants shouted at the front office Manager and  they made a ruckus in the Lobby near the front office and abused the hotel staff which was completely uncalled for.  The complaint is devoid of merits and is an experimental one and liable to be dismissed.

6.  The points that arise for determination  in this case are:

                (1) Whether there was  any deficiency of service

    in the  opposite party hotel,  as alleged ?

(2) Whether the claim for compensation  and return

 of  rent is allowable ? If so,  what is the quantum ?

(3) Reliefs and costs.

        7. Evidence was recorded by our learned predecessors-in–office which consists of the oral evidence of PW1 and Exts.A1 to A10 on the side of the complainant. The Security Manger of the opposite party hotel filed proof affidavit on behalf of the 1^st opposite party. But he is not seen cross examined by the complainants. Exts.B1 and B2 were marked. The compact disc containing CCTV footage was marked as MO1.

8. The complainants are continuously absent and in spite of granting ample opportunity they were not available for hearing. We heard the opposite parties.

9. Points 1 and 2  : The complainants have approached this Commission alleging  deficiency of service  in  the  opposite party hotel.  The main allegations are that the lift was faulty and they were stranded in the lift and there was presence of centipedes in one of the rooms allotted to them.

10. In order to substantiate their case,   the 3^rd complainant got himself examined as PW1. PW1 has filed proof affidavit and deposed in terms of the averments in the complaint. It is an admitted fact that the complainants booked 5 rooms in the opposite party hotel and occupied the rooms on 23/04/2014.  Exts.A1 to A5 are the invoices issued by the hotel. PW1 has deposed that they were  stuck in the elevator which was not functioning properly while they were going to the restaurant in the ground floor. Further PW1 has alleged that in the room occupied by him there was centipede  and  so he and other inmates of that room  were scared to stay there and they had to wait nearly 4 hours for getting another room. According to PW1, there was gross deficiency of service in the hotel which put them into  misery and hardship.  

11.  Going by the averments in the complaint, the main grievances projected by the complainants are twofold. The 1^st grievance is that the lift became faulty and they were stranded in the elevator. The fact that the elevator halted between the 1^st floor and the ground floor is admitted by the opposite parties. The  case of the opposite parties is that the  technicians in the hotel swung into action immediately and the guests were evacuated safely within a few minutes. According to the opposite parties, the technicians of  the manufacturer who installed the elevator inspected the same and found nothing wrong with the elevator and opined that the sudden halting of the elevator could be on account of voltage fluctuations  and the same is beyond human control. So in effect, the stand taken by the opposite parties is that the lift was properly maintained and there was nothing wrong with the lift and the problem was due to voltage fluctuations which were beyond their control.

12. It is common knowledge that in spite of due care and maintenance,  sometimes the elevator may go wrong  as in the  case of any other machinery or equipment.   But here no case of fault or mechanical defect to the elevator is raised by the opposite parties and their case is that the incident was due to voltage fluctuations over which they have no control.  The said stand taken by the opposite parties cannot be accepted. The voltage fluctuation cannot be a defence. Normally there will be an Automatic Rescue Device (ARD) for the lift which is an advanced rescue system used for rescuing passengers trapped in an elevator in case of power failure.  Automatic rescue device in elevators is safely used to save the passengers to the nearest floor within minutes of power failure and give instant relief to the passengers.   It is for the opposite parties to ensure safe working of the lift even at the time of voltage fluctuations by installing advanced rescue device and generator sets with adequate capacity. The guests cannot be asked to cope up with the voltage fluctuations or failure of power supply while inside the lift. In Ext.A9 reply notice sent by the opposite parties, it is stated that the evacuation had taken a few minutes  since the elevator had to be cranked down manually to the ground level to enable  the opening of the door.  It is the bounden duty of the hotel authorities to provide all amenities including lift facilities without giving room for any complaint by the guests. It is also in evidence that the complainants were stranded in the lift for nearly 20 minutes. The panic, mental agony and trauma undergone by the complainants and their family members who were inside and outside the lift can be imagined. The hotel authorities cannot avoid the responsibility by putting all the blame  on voltage fluctuations.   

13. Another grievance is that in the room allotted to 3^rd complainant, his wife and children there were centipedes. PW1 has spoken to in detail about this. The evidence of PW1 shows that due to the presence of centipedes, they were afraid to stay there and it seems quite natural. It is in evidence that the hotel authorities  arranged another room for their occupation. But  they had to wait for 4 hours during night to get another room. PW1 alleges that an alternate room was provided only at 12 O’clock in the night. Ext.A10 series photographs show the presence of centipede in the room. There is no reason to disbelieve PW1 or discard Ext.A10 series. The allegation of presence of centipede in the room is denied by the opposite parties in the version. However, it is  admitted by them that PW1 and his family wanted another room and it was arranged by them. The reason for such  demand for change of room is not disclosed by the opposite parties. More over the trend of cross examination of PW1 and the averment in the proof affidavit filed by the security manager of the 1^st opposite party is to the effect that the centipede would have come from the baggage of the guests who occupied the particular room. The implication is that the opposite parties are rather admitting the presence of centipede in that room.  The contention that the centipede came with the baggage of the guests is not supported by any evidence.

14. The contention of the opposite parties is that the rooms were thoroughly checked as part of the house keeping practice and there was nothing noticed in the room at that time. Moreover, they have a  regular pest control schedule. But in this context,  it may be noted that the presence of the centipede in the room itself shows that  there was no proper housekeeping and pest control as far as the said room is concerned. The fact that the other guests who occupied the room prior and after the stay of the complainants herein did not have any such complaint is not a sufficient ground to disbelieve the version of the complainants which is supported by Ext.A10 series photographs. It is a Four Star hotel. Exts.A1 to A5 show that the room rent is Rs.4,500/- inclusive of taxes. The hotel authorities are expected to provide service and amenities to the guests commensurate with the classification of the hotel. The hotel authorities are expected to provide safe and hygienic atmosphere and proper service and amenities to the guests who have made payment for their stay. The guests cannot be asked to adjust with such situations like the one which the complainants had to face. Apart from this, there was delay in providing another suitable room to the occupants of that room.  They were made to wait for 4 hours during night. This also  amounts to deficiency of service.

15. It was pointed out by the learned counsel for the opposite parties that the security Manager who filed affidavit on behalf of the 1^st opposite party was not cross examined by the complainants and his evidence stands unchallenged. Considering the facts and circumstances of the case, we are of the view that the non-cross examination of the said witness is not  material as far as this case is concerned and that it is not a sufficient ground to disbelieve or discard the evidence of PW1  and Ext.A.10 series produced by the complainants. Even though PW1 was subjected to searching cross examination, nothing has been brought out to discredit his version. Moreover, the fact that the elevator got stuck  and the centipede incident  and the consequent shifting of the  guests to another room is  rather admitted by the opposite parties. So we are of the view that the fact that the said witness was not cross examined will not affect the case of the complainant.

16. The complainants  have a case that they were constrained to shift to another hotel. But there is absolutely nothing in evidence to show that they had moved to another hotel. No such hotel bills are forthcoming. Moreover, it may be noted that their booking in the opposite party hotel was for one night only and they were scheduled to check out on the next day as can be seen from Ext.B2 series registration cards.

17. The complainants have also sought for the return of the room rent. It is not disputed that they had occupied the rooms in the opposite party hotel and stayed there one night. So the prayer for refund of the rent cannot be allowed.

18. The complainants came from abroad  and faraway places and stayed in the hotel in question for celebrating the 80^th birthday  of the 1^st complainant.  Due to the inadequate service rendered by the hotel authorities, they lost the charm of the celebration. The deficiency of service has resulted in inconvenience, mental agony and hardship to the complainants, for which, they are entitled to be compensated adequately by the 1^st opposite party. The claim for compensation is Rs.10,00,000/-. The claim appears to be excessive. Considering the entire facts and circumstances of the case, we are of the view that a sum of Rs.20,000/- to the 3^rd complainant and Rs.10,000/- each to the remaining complainants will be reasonable compensation in  this case for the inconvenience, mental agony and hardship suffered by them due to deficiency of service on the part of the opposite party hotel.  

19. Point No.3 :

     In the light of the finding on the above points, the complaint is disposed of as follows:

1.   CC  46/2015 is  allowed in part.
2. The 1^st opposite party is hereby directed to pay a sum of Rs.10,000/- (Rupees Ten  thousand only) to  complainants 1,2, 4 and 5  and Rs.20,000/- (Rupees Twenty thousand only) to the 3^rd  complainant as compensation for the inconvenience, mental agony and hardship suffered by them due to the deficiency of service in the 1^st opposite party hotel.

(c )  The payment as aforestated  shall be made within                30 days from the date of the receipt of copy of this order, failing which, the amount shall carry an interest  of 6% per annum from the date of this order till actual payment.

(d) No order as to costs.

Dictated to the Confidential Assistant, transcribed by her and corrected by me and pronounced in the open Commission  on this the    15^th day March ,  2022.

Date of Filing: 28/10/2014.

    Sd/-                   Sd/-                           Sd/-

PRESIDENT         MEMBER                    MEMBER

APPENDIX

Exhibits for the Complainant :

1.     Ext. A1 – Invoice issued by Hotel.

2.     Ext. A2 – Invoice issued by Hotel.  

3.     Ext. A3 –  Invoice issued by Hotel.

4.     Ext. A4 – Invoice issued by Hotel.

5.     Ext.A5 – Invoice issued by Hotel.

6.     Ext. A6 – Copy of lawyer notice

7.     Ext. A7 – Postal receipt.

8.     Ext. A8  – Postal receipt .

9.     Ext. A9 – Copy of reply notice issued to opposite parties.

10.    Ext. A10  series - Photographs showing the presence of centipede  

  in the room .  

Exhibits for the Opposite Parties

     1.        Ext. B1 – Authorisation letter of the hotel

    2. Ext. B2 – Copy of the registration cards

Material objects marked

MO1 – The compact disc

Witnesses for the Complainants

PW1 – Sajan.T   - (Complainant)

Witnesses for the opposite parties

• Nil –

                Sd/-                         Sd/-                     Sd/-

                PRESIDENT                 MEMBER                MEMBER

                                                        Forwarded/By Order

                                                        Assistant Registrar