Complainant Gurmukhnihal Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the necessary directions may kindly be issued to the opposite parties to pay Rs.7,00,000/- on account of suffering pain, medical expenses including attendant, professional loss mental and physical harassment due to fly bite which is admitted in the bill by the opposite parties. Opposite parties be further directed to pay compensation alongwith litigation expenses of Rs.10,000/-, in the interest of justice.
The case of the complainant in brief is that on 20.2.2016 he planned to celebrate the birthday of his wife, who is serving as a Medical Officer in ECHS at resort of opposite parties. He alongwith his wife reached the resort on 20.2.2016 and as per advance booking done by him, he was allotted room No.401 for their stay, as such he is consumer of the opposite parties. Thereafter when he entered into the room and there was no exhaust fan in the Bathroom regarding which he informed them as the resort was in isolated area away from the abadi and there was every possibility of flies and insects entering through the hole meant for exhaust fan, but the opposite parties turned a deaf ear towards his genuine request and showed utter negligence in providing Luxury amenities to him for which they charged exorbitant bill from him. He has next pleaded that on 21.2.2016 when he woke up and having bed tea with his wife, then suddenly a yellow sting from the hole of exhaust fan attacked him which bite on his right leg and he was shirking with pain and crying for help. On this, the opposite party no.2 immediately rushed to the room at his bell and call, who also killed a yellow fly with the water bottle and there was total chaos in the room and he also killed two yellow stings in front of opposite party no.2 and there were also more flies in the room. He with his mobile phone made the video of dead flies and moving flies inside the room and also took the video of his right leg which was swollen after the bite of yellow stings/fly. The Manager of resort informed the opposite party no.3, who came in the room after one hour and saw him was in severe pain but instead of feeling shame of the services provided to him, used vituperative language with him who is advocate by profession, suffered great humiliation at the hands of opposite parties. The opposite party was well aware that there is no exhaust fan in the Bathroom booked by him which was Gold Room (Deluxe) category, which provides ideal atmosphere for luxurious relaxation and solitude as per their information published in website, but all in vain, no services or facilities were provided to him to make his stay comfortable, rather he was made discomfort by the sheer negligence of the opposite parties which is clear cut deficiency in service on the part of the opposite parties. He has further pleaded that on 21.2.2016, they have issued a bill to the tune of Rs.4728.35 bearing No.678 including all rents, dining charges alongwith all taxes and they have credited Rs.728.35 in the bill on account of fly bite just to console him due to negligence on their part. Hence this complaint.
Notice of the complaint was served upon the opposite parties. Opposite parties no.1 to 3 appeared through their counsels and filed their written reply stating therein that the complainant contacted the opposite party no.2 on phone and inquired about the room availability only. There is no any policy of the opposite party to book any room on phone without payment. It was admitted that the complainant alongwith his wife reached at the resort of opposite party on 20.02.2016. On 21.02.2016 the bill was Rs.4728.35 which was to be paid by the complainant for the room rent, dining charges and other expenses but the complainant told the opposite party that he will pay only Rs.4000/- to the opposite party and started bargaining on the point of fly bite which might have come with the complainant' cloths when he had gone out of the hotel for morning walk, then the opposite party politely made discount of Rs.728.35 in the said bill on the request of the complainant. All other averments made in the complaint have been denied and they have prayed that present complaint may kindly be dismissed with costs.
Opposite party no.4 filed its written reply by taking preliminary objections that the present complaint of the complainant is not maintainable, as it is hopelessly premature. Neither the complainant, nor the opposite parties no.1 to 3 ever lodged the claim with the opposite party insurance company alongwith the requisite documents. Hence, without lodging the claim and without investigating the matter in question and without assessing the alleged loss of the complainant, the insurance company is not in a position to settle the claim under the terms and conditions of the policy. The insurance company is not liable to pay the claim until it is covered under the terms and conditions of the policy. The liability of the insurance company is fastened only subject to the terms and conditions of the policy. Hence, the present complaint of the complainant is liable to be dismissed on this score only. On merits, all averments made in the complaint have been denied and they have prayed that present complaint may kindly be dismissed with costs.
Complainant has tendered into evidence his own affidavit Ex.C1, copy of bill Ex.C2, C.D. Ex.C3 and pamphlet downloaded from the website Ex.C4 and closed his evidence.
Counsel for the opposite parties no.1 to 3 has tendered into evidence affidavit of S.S.Patial G.M. Ex.OP-1 alongwith copy of bill Ex.OP-2 and closed the evidence.
Counsel for the opposite party no.4 has tendered into evidence affidavit of Karam Singh Sr. Divisional Manager Ex.OP-4/1 alongwith copy of public liability policy Ex.OP-4/2 and closed the evidence.
8. We have carefully examined and thoroughly considered the evidence along with its supporting documents as produced/available on records of the proceedings while adjudicating the present complaint in the light of the arguments as put forth by their receptive advocate counsels. We observe that complainant Gurmukhnihal Singh had booked/checked (Affidavit Ex.C1) in the Room # 401 at the OP Resort on 20.02.2016 with his doctor wife on her Birthday and aggrieved at the unpleasant and uncomfortable stay over there (including one painful yellow-wasp fly bite) has filed the present complaint.
9. We find that the complainant had stayed there overnight as is evident from (Ex.C2) Bill # 678 dated 21.02.2016 for Rs 4,728.35 p with an extraordinarily strange exhibit of discount entry of Rs 728.35 p on account of Wasp Fly Bite. Sic! And that proves even the otherwise admitted fact of Wasp fly bite by the titled OP. Further, the weak OP plea that yellow fly may have entered the Room with the complainant’s clothes upon his return from morning-walk gets negated vide the produced CD (compact disc) Ex.C3 recording the flies flying across the room with some flies lying (killed) on the floor etc. We are also not convinced with the OP’s plea that the complainant himself had opted for the room with broken (exhaust fan) window frame that otherwise was not routinely rented out to customers; since that does not match the complainant’s status of a senior practicing lawyer in District Courts, Gurdaspur. Further, the OP Resort Brochure Pamphlet boasts of wonderful environment(s) with world class facilities including the Doctor on call etc that however could not be provided (not even first-aid etc) when requisite on the fake plea that complainant refused the same as his accompanying wife has been herself a ‘doctor’. The OP Resort need to know that a ‘doctor’ does not always carry along medicines/first-aid box etc and thus we find that the complainant has successfully proved his allegations as made out in his complaint vide the documentary and other evidence produced herein during the proceedings.
10. The OP Resort, in turn, has filed its affidavit Ex.OP1 along with the Bill Ex.OP2 exhibiting its discount on account of wasp-bite that rather proves the same. Further, the titled OP4 insurers have termed the complaint ‘pre-mature’ vis-à-vis themselves since no related claim has ever been filed with them. Lastly, during the course of verbal as well per the written arguments the learned counsel for the OP Resort has submitted that they have insured their customers with the OP4 insurers against all possible risks and have in the past procured compensation for many of them against dengue fever and snake bites, also. We note with concern the state of affairs prevailing at the OP resort and are inclined to award prohibitory costs coupled with statutorily approved punitive damages against them of course with directives that they shall make the Resort free from all types of risks to human life and dwelling etc in its true letter and spirit. From all these exhibits and contents of the proceedings we observe that the complainant has indeed suffered huge physical as well as mental harassment coupled with loss of happiness on the birthday occasion of his better-half and thus deserves but a suitably moderated statutory compensation so as to abide by the trite law forbidding undue enrichments through litigation and undue harshness to those determined on the wrong side of law.
11. In the light of the all above, we find that the present dead-end lock-up situation shall be somewhat moderated/lessened by the monetary as well as emotional (situational) compensation to the awakened complainant along with an exemplary cost to the OP Resort, in the form of statutory punitive damages so as to deter such like service providers not to subject their innocent and defenseless consumer customers to such derogatory risks etc.
12. Thus, while partly accepting the present complaint we ORDER the titled OP Resort to pay Rs.50,000/- to the complainant as cost and compensation and also to deposit Rs.25,000/- as punitive damages in the forum’s legal-aid account within a period of 30 days of the receipt of the copy of these orders otherwise the awarded amount shall attract interest @ 9% PA from the date of orders till actual payment.
13. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
December 20, 2017 Member.
*MK*
