BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.
FA No. 546 OF 2014 AGAINST CC No.1086 OF 2011
ON THE FILE OF DISTRICT FORUM-II, HYDERABAD
Between :
- Chairman & Managing Director,
Sterling Holiday Resorts (India Ltd.,)
No.7, 3rd cross Street,
Kasturibai Nagar, Adyar, Chennai – 600020.
- General Manager,
Sterling Holiday Resorts (India) Ltd.,
Ramakrishna Mutt road, Elk Hill, Ooty.
- Sterling Holiday Resorts (India) Ltd.,
2nd Floor, Babukhan Mall, Somajiguda,
Hyderabad. …Appellants / Opposite Parties
AND
- G.Syamala, W/o. D.Govinda Babu,
Aged about 60 years, Occ: Artist,
R/o. Plot No.101, Mani Residency,
D.No.8-3-299/C/10/101, Yousfguda,
Hyderabad.
- Allam Subbarayudu, S/o. Late Nagaiah,
Aged about 67 years, Occ: Business,
D.No. 8-3-229/C/10/101,
Mani Residency, Yusufguda,
Hyderabad – 500045. ....Respondents/Complainants
Counsel for the Appellants / Opposite Parties: Sri P.Rajender Reddy
Counsel for the Respondents / Complainants: Sri P.Gopal Das & D.Vallabha Rao
FA No. 535 OF 2014 AGAINST CC No.1086 OF 2011
ON THE FILE OF DISTRICT FORUM-II, HYDERABAD
Between :
- G.Syamala, W/o. D.Govinda Babu,
Aged about 60 years, Occ: Artist,
R/o. Plot No.101, Mani Residency,
D.No.8-3-299/C/10/101, Yousfguda,
Hyderabad.
- Allam Subbarayudu, S/o. Late Nagaiah,
Aged about 67 years, Occ: Business,
D. No. 8-3-229/C/10/101,
Mani Residency, Yusufguda,
Hyderabad – 500045. .... Appellants /Complainants
AND
- Chairman & Managing Director,
Sterling Holiday Resorts (India Ltd.,)
No.7, 3rd cross Street,
Kasturibai Nagar, Adyar, Chennai – 600020.
- General Manager,
Sterling Holiday Resorts (India) Ltd.,
Ramakrishna Mutt road, Elk Hill, Ooty.
- Sterling Holiday Resorts (India) Ltd.,
2nd Floor, Babukhan Mall, Somajiguda,
Hyderabad. … Respondents/ Opposite Parties
Counsel for the Appellants /Complainants : Sri P.Gopal Das & D.Vallabha Rao
Counsel for the Respondents/ Opposite Parties : Sri P.Rajender Reddy
Hon’ble Sri Justice B.N.Rao Nalla … President
&
Hon’ble Sri Patil Vithal Rao … Member
Wednesday the Twenty First day of February
Two thousand Eighteen
Oral Order : (Per Hon’ble Sri. Patil Vithal Rao, Member).
COMMON ORDER
***
Both these Appeals arise from the order dated 07.07.2014 passed by the District Consumer Forum-II, Hyderabad (for brevity, ‘the District Forum’) in C.C.No.1086/2011and that as such they are being disposed of by the Common Order. By the said order the District Forum directed the Opposite Parties 1 to 3 to pay jointly and severally the Complainants a sum of Rs.1,38,251/- towards medical expenses of the Complainant No.2 and a compensation of Rs.10,000/- with costs of Rs.5,000/- by granting 40 days time for compliance. For the sake of convenience, the parties will be referred to hereinafter as arrayed in the complaint.
2 The case of the Complainants, as set up under Section-12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) before the District Forum, in brief, is that the Complainant No.1 is a member of the Sterling Holiday Resorts (India) Ltd., (herein after called as “the Resorts”) of which the Opposite Party No.1 is Chairman and Managing Director and the Opposite Party No.2 is General Manager having it’s Office at Hyderabad which is Opposite Party No.3. The further case of the Complainants is that on 14.03.2011 the Complainant No.1 booked the Resorts at Oooty and Kodaikanal to avail holiday facility for her guests including the Complainant No.2 in Twin Apartments at Fern Hill, Ooty but to the dismay of the Complainants, the Opposite Parties confirmed the booking at Sterling Elk Hill, Ooty allotting Flat Nos. 305 & 306 with a promise to shift the guests to another Apartment for the vacation period from 09.05.2011 to 13.05.2011 on payment of the charges of Rs.5,644/-. The Complainants have further contended that while shifting the accommodation the Complainant No.2 slipped infront of the lift on account of spell of oil on the ground and suffered fracture of left leg. Immediately he was shifted to Coimbatore and then to Hyderabad for treatment which costed him in all Rs.11,40,586/-. By attributing deficiency in service for the said act on the part of the Opposite Parties, the Complainants claimed the above said amount with interest @ 12% as compensation towards medical expenses and mental agony apart from Rs.5,000/- towards legal notice charges, and costs of Rs.10,000/-.
3 The Opposite Parties resisted the claim by way of filing a written version before the District Forum on the grounds, interalia, that there was no negligence on their part in maintaining the Resorts and that there was no oil near the lift at the relevant time since the kitchen was far away from the corridor but the Complainant No.2 fell on his own account accidentally and sustained injury for which the Opposite Parties cannot be blamed. Further, the Complainant No.1 having availed the holiday facilities for last 8 years, never complained about any lack of cleanliness etc., at any time on the part of the Opposite Parties in maintaining the Resorts. Moreover, the Complainant No.2 is not a member of the Resorts but only a guest and that there was no privity of contract between him and the Opposite Parties and that as such he cannot claim to be a consumer within the meaning of the Act, 1986 to entertain the present complaint. The further defense of the Opposite Parties is that the Complainants have filed the case with false allegations with an intention to extract money and make wrongful gain. Therefore, they sought it’s dismissal.
4 The Complainants, during the course of the enquiry before the District Forum, have relied on the oral evidence of the Complainant No.2 and two other guests accompanying him at the relevant time by way of filing their affidavits of evidence and also the documents under Exs.A1 to A17, to substantiate the claim. The Opposite Parties did not file any documentary evidence except the affidavit evidence of their Deputy General Manager – Legal, in defence. After hearing both the parties the learned District Forum has passed the Order as stated in Para No.1 supra which is now impugned.
5 The contention of the Appellants/Complainants in their Appeal in F.A. 535/2014, in brief, is that the District Forum has failed to consider the entire documentary evidence placed on record in a right perspective and also ignored purchase of injection FORTEO 600 mg., for an amount of Rs.3,58,200/- by the Complainant No.2. Further, the District Forum did not grant any adequate compensation towards pain, suffering and mental agony having found that there was deficiency in service on the part of the Opposite Parties. Therefore, they sought to allow the Appeal.
6 The Appellants / Opposite Parties, who filed the Appeal F.A.No.546/2014 have challenged the impugned order on the premise, in brief, that the District Forum has wrongly held that the Complainant No.2 was a ‘consumer’ under the Act, 1986, though there was no privity of contract between him and the Opposite Parties. Further the Opposite Parties have provided another Apartment having better facilities without any extra charges though the Complainant No.1 was not entitled to it as a member. The findings of the District Forum are based on assumptions and presumptions with regard to the oil spillage on the floor at the entrance of the lift gate, without any adequate proof. Though the claim was based on fabricated documents and frivolous in nature, the Forum below did not consider it properly. For these reasons, the Opposite Parties sought to set aside the impugned order by allowing the Appeal.
7 Perused the entire evidence placed on record, impugned order and written arguments of both the parties. Heard, their learned counsel.
8. Now the point for consideration is that:
whether the order under appeal is unjust, illegal and contrary to law and lacks proper appreciation of evidence and that as such liable to be set aside ?
9. Point: It is not in dispute that the Complainant No.1 is a member of the Holiday Resorts of the Opposite Parties and that booked the accommodation on 14.03.2011 to enjoy vacations of her three guests at Ooty and Kodaikenal by making payment of required charges of Rs.5,644/- for the period from 09.05.2011 to 13.05.2011. It is to be noted that there are three different types of Apartments viz., Twin Apartments to accommodate six guests, Regular Apartments to accommodate four guests and Compact Apartments to accommodate three guests. Though the Complainants have alleged that despite their booking for Twin Apartments facility, the Opposite Parties have reserved a Compact Apartment for the guests, there is no evidence placed on record to this effect. Be that as it may, the facts remains that the guests including the Complainant No.2 were shifted to Twin Apartments on the next day itself on their alighting there. The specific case of the Complainants is that, during the process of shifting, the Complainant No.2 slipped and fell resulting in a fracture injury to his left leg on account of oil spell on the floor near the lift gate and that housekeeping material was kept nearby at that time. The Opposite Parties have denied and disputed these allegations by asserting that they maintain cleanliness without giving any scope for any complaint and that even the Complainant No.1 has been enjoying the holiday facility since last
more than eight years ungrudgingly. The Complainants have filed adequate medical record to show that the Complainant No.2 spent considerable amount in getting treated, initially at Coimbature and thereafter at Hyderabad. In this regard it is to be seen that the Complainant No.2 is a senior citizen of 67 years (at the time of the complaint) and is a business man. It is common knowledge that when a businessman of nearly 70 years opts to enjoy vacations at a Resorts presumably he must be with sound health and well physique. In this case, no doubt the Complainants did not adduce evidence of any independent nature like of a direct eye witness but it is to be seen that they have filed two 3rd party affidavits of the guests who accompanied the victim. Though, they are close friends of the complainants, that itself cannot be a ground to discard their version for the simple reason that at a place, like a Holiday Resorts, we cannot expect any independent witness to come forward and give evidence before the Forum on oath. Therefore, having regard to the facts and circumstances, the maxim of Res-ipsa loquitor, has to be invoked to resolve the riddle. Plainly it means, facts speak in themselves. It is a rule of evidence whereby the negligence of an alleged wrongdoer can be inferred from the fact that the accident happened. By applying the said principle we can conveniently conclude that the Complainant No.2 might not have fell near the lift unless there was some lubricating object such as an oil. The Complainants have also propounded that housekeeping material was kept near the lift and that the kitchen room was also nearby. Though, the Opposite Parties have denied and disputed it, they did not adduce any concrete evidence to disprove it. Infact, the learned District Forum has meticulously considered this aspect, in our view, in a right perspective, and came to conclusion that the Complainant No.2 slipped on account of spillage of oil near the lift. It is an undisputed fact that the Complainant No.2 suffered fracture injury due to it and initially availed treatment i.e., first aid at Ooty and thereafter, on medical advise, flown to Hyderabad by air. Ex.A3 is a copy of medical prescription dated 10.05.2011 with regard to the said first aid. The Complainants have filed copies of cancellation of train tickets vide Ex.A5 so also copy of a letter dated 01.05.2011 issued by Chief Minister’s Office to the Office of the Tirumala Tirupati Devasthanam, under Ex.A7. These documents amply establish that the Complainant No.2 was to visit Tirumala on return journey after availing the holidays to have darshan of Lord Sri Venkateswara but, had to cancel the same and book an air ticket to rush to Hyderabad, for treatment on account of the incidents in issue. The Complainant No.2, due to the ordeal, had to abandon not only his plan of enjoying the vacations but also underwent pain, hardship and mental agony. Unfortunately, the District Forum has awarded a mere compensation of Rs.10,000/- even by ignoring the Resorts charges of Rs.5,644/- paid by the Complainants, which in our considered view is inadequate and that as such we deem it just, necessary and expedite to enhance the same to Rs.50,000/- to meet the ends of justice and equity.
10. Though the Complainants have prayed for award of entire medical expenses, some of the bills were not duly proved. For instance, the Complainants have claimed a sum of Rs.36,000/- towards alleged purchase of FORTEO 600 mg., injections, but no bills have been produced except the estimate given by one DRUG MART, Secunderabad. The District Forum has meticulously analyzed this aspect, and rightly awarded a sum of Rs.1,38,251/- only towards medical expenses.
11. With regard to maintainability of the claim, it is to be noted that, the Complainant No.2 has stepped in the shoes of the Complainant No.1 to avail the facility of vacations as her guest, who is undisputedly a member of the Sterling Holiday Resorts and that even the Opposite Parties have entertained it while booking the Resorts by the Complainant No.1 well in advance. Therefore, now they are estopped from alleging that there was no privity of contract between them and the Complainant No.2 and that he cannot be a ‘consumer’ within the meaning of the Act, 1986. Therefore, we hold that the claim, as set up by the Complainants, is certainly maintainable.
12 Inview of the forgone discussion, we hold that the Appeal of the Opposite parties in F.A.No.546/2014 is liable to be dismissed and the Appeal of the Complainants in F.A.535/2014 is fit to be allowed by modifying the impugned order to the extent indicated above.
13 The point is answered accordingly.
14 In the result, F.A.No.546/2014 is dismissed and F.A.No.535/2014 is allowed by modifying the impugned order and directing the Opposite Parties jointly and severally to pay the complainant No.2 a sum of Rs.1,38,251/- towards medical expenses with interest @ 9% p.a., from the date of his discharge from the hospital i.e., 16.05.2011 till realization and compensation of Rs.50,000/- with costs of Rs.5,000/-.
Time for compliance, 4 weeks.
PRESIDENT MEMBER
Dt.21.02.2018
