Kerala

Idukki

CC/36/2020

Soumiya Vibin - Complainant(s)

Versus

District Tourism Promotion Council - Opp.Party(s)

Avd: M V Mathew

24 Dec 2022

ORDER

DATE OF FILING : 18.2.2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 24^th  day of  January, 2023

Present :

                   SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.36/2020

     Between

Complainant                                       :   Soumya Vipin, W/o. Vipin,

                                                               Manavalan House,

                                                               Chully P.O., Manjapra,

                                                               Ernakulam – 683 581.

(By Adv: M.V. Mathew)

        And

Opposite Parties                                  : 1. The Chairman,

                                                                 Tourism Promotion Council,

                                                                 District Collector, Idukki,

                                                                 Painavu – 885 603.

                                                             2. The Secretary,

                                                                 Elappara Grama Panchayath,

                                                                 Elappara P.O., Pin – 686 514.

                                                            3.  The Secretary,

                                                                 Kerala Tourism Development Corporation Ltd.,

                                                                Corporate Office, Muscot Square,

                                                                 Thiruvananthapuram – 695 033.

                                                            4.  The Secretary,

                                                                 Union of India Tourism Department,

                                                                 Ministry of Tourism Transport Bhawan,

                                                                 Sansad Marg, New Delhi – 110 011.

                                                            5.  Hindustan Prefab Ltd.

(Govt. Of India Enterprises),

                                                                 T.C. 24/656 (FF), Thycadu,

                                                                 Thiruvananthapuram.

           

O R D E R

SRI. AMPADY K.S., MEMBER

 

1. This complaint is filed alleging the following against opposite parties.

 

          Complainant is a housewife, has  three children and is living with husband and aged parents.  Complainant along with other 25 persons arranged a tour program on 23.2.2019 to Vagamon.   At about 2 pm, complainant along with the aforesaid friends arrived at Vagamon paragliding centre.  Complainant and co-tourists have taken entry pass and vehicle pass for Rs.10/- and Rs.50/- respectively.  They were permitted to

                                                                                                                   (cont…2)

• 2  -

enjoy the beautiful sights, meadows and the recreation facilities arranged in the premises and in the hilltops as well as all the facilities arranged there.  In the premises there were more hanging bridges which connects hilltops, resting centres, pockets for viewing farseeing views.  The entire premises was left open for tourists.  At the time of visit of complainant there were other tourists including visitors from North India visiting the sight.  The tourists were not aware of any risk or danger involved in any recreations arranged there by respondents.  They were not warned about any danger involved in any of apparatus.  There was no caution board to restrict or control the usage of any facility in the premises.  There were no guides to restrict or inform any risk if any in any of the recreation centres or areas.  Fascinated in the hanging rope, complainant entered into the rope bridge namely Burma Bridge to view the farsighted hilltop sceneries.  Unexpectedly one side of the iron rope broke down and complainant and some of other tourists who were on the bridge fell down.  It is seen that two persons from North India had also fell down.  As a result of the fall, complainant and some other tourists had sustained injuries.  The injured were immediately taken to the nearby hospital.  Eventhough an accident happened, there were no responsible persons of respondents to attend the injured.  Hence they did not get any kind of assistance or attention or response from the staff.  Complainant sustained severe injuries on spinal cord and backbone with fracture of left backbone and burst fracture of L2 Vertibral body with moderate loss of vertebral heights.  There was lacerated wound injury all over the body.  Complainant was first taken to nearby hospital and subsequently she was taken to St. James Hospital, Chalakkudy for further better treatment and was admitted as inpatient.  All the necessary and conservative treatments were administrated to complainant there.  She underwent a surgery and there was in Intensive Care Unit for two days. After the treatment she was discharged on 1.3.2019 with an advice for full bed rest and also for follow up treatment.  Complainant is still under bed rest in her house.  Complainant had to spend Rs.1,90,000/- for treatment and other medical expenses.  At the time of hospitalization, the vicar of St. George Church gave the statement before the Vagamon Police and the police has registered the crime numbered as 45/2019.

 

           The accident happened because of deficiency in service that is because of default, imperfection, shortcoming and inadequacy in the safeguard which the respondents are required to be undertaken legally and as per the requirements necessitated when the tourist centre is opened for public on issuing ticket for payment.  When entry pass is issued, respondents are duty bound to see that no harm or danger would happened to the visitors / hirers while using the apparatus erected by them.  When complainant along with co-passengers visited the tourist area, no guides or any other person authorized by opposite parties were present there to assist the tourists.  There was no caution board informing any dangers lurking there.  Opposite parties should have properly maintained the safety of the bridge and other things, when the tourists were using the same on payment of users fee.  It seems that realizing the respondent’s failure in keeping the tourist centre in  legally required manner, the tourist centre is closed.  1^st opposite party,                                                                                                                    (cont…3)

• 3  -

being the licensee of the rope way had the duty bound to protect the safety of the tourists when they were using the ropeway bridge.  2^nd opposite party, the Elappara Panchayath as the licensor of the said paragliding, is also bound to protect and safe guard the safety of the tourists.  3^rd opposite party is also responsible for the protection of the tourists.  The recreation facilities prepared and arranged by 4^th and 5^th respondents are equally responsible and liable for any loss sustained to the victim tourists because of the latches occurred in the tourist centre.   There is gross negligence, omissions and latches on the part of opposite parties in discharging their basic duties and responsibilities and in maintaining the Vagamon paragliding tourism centre and view point and it is because of their culpable omission, the accident happened to put the complainant in this tragic situation.

 

          Complainant entered the Vagamon paragliding tourism centre by payment of the entry fee of Rs.10/- and vehicle parking fee of Rs.50/- respectively.  Complainant and her co-visitors are from far away place at Ernakulam.  At the time of complainant’s visit, there were north Indians tourist team also.  Two or three north Indian tourists entered in the Burma bridge also who had fell down along with the complainant when the rope was broken.  It is on the trust of safety, complainant entered the bridge.  The tourists are attracted to see the far away hill views in hygienic environment and atmosphere.  Certain view pockets are specially arranged for viewing the far sighted hills.  Two or three hanging bridges are fabricated in the premises for the tourists.  The Burma bridge connect two hill tops is an attraction for the visitors.  No caution board or warning sign is erected anywhere in the premises to restrict the tourists in their visit.  Had the opposite parties been vigilant in maintaining and monitoring the Burma bridge in the required legal manner, the tragedy could have been averted.  In such a situation, when there is total negligence and failure to manage and monitor the said tourist centre, opposite parties are jointly and severally responsible and liable to the accident and the loss sustained to complainant as they are the service providers. 

 

          Complainant is a housewife and is bound to look after her aged parents in law and also have to take care of three school going children who are studying.  The family members are depending the complainant for being maintained.  Now she is almost bedridden.  Because of severe back pain, she is unable to do any stand erect and do any work.  She is still undergoing treatment for back pain.  The accident totally shattered her and her dependents life and it is because of the negligent acts of opposite parties and clear deficiency in service and there is unfair trade practice from the part of opposite parties.  There is clear negligence and latches on the part of opposite parties.  Opposite parties are liable to pay compensation to the complainant.  The loss sustained to complainant is to be monetarily compensated by opposite parties.  The attempt made by complainant by way of representation did not bear any result.  Complainant appraised the willful negligence of respondent which caused huge monetary loss to her and requested for compensating the loss on payment of Rs.5 lakhs, by way of lawyer notice.                                                                                                             (cont….4)

• 4  -

Eventhough notice was received, only 1^st respondent responded by way of reply notice with false allegation.  It is submitted that the averments in the reply notice is false and is incorrect.  The accident happened solely because of negligence and latches of respondents.  The reply notice of 3^rd respondent gives ample testimony to show liability of all respondents.  The cause of action arose on 23.2.2019 when the accident happened and subsequently when loss and damage is sustained to the complainant within the jurisdiction of this Court.   Hence she prayed for the following reliefs:

a)  Opposite parties may be directed to pay an amount of Rs.1,90,000/- as medical expenses, transport expenses and other miscellaneous expenses incurred to complainant.

b)  Direct the opposite parties to pay Rs.3 lakhs to complainant by way of compensation for the loss of earning, disability, pain and sufferings sustained to complainant because of deficiency in service and negligence on the part of opposite parties.

c)  Opposite parties may also be directed to pay Rs.9,000/- as cost of this litigation.

d)  To allow any other relief as the Forum deems fit.

 

2. First  opposite party filed written objections in the form of report.   It is  discussed

as under :

 

Pathanamthitta – Gavi – Vagamon – Thekkady Eco Tourism Circuit completed under Swadesi Darsan Programme was inaugurated by the then Central Tourism Minister at Vagamon Paragliding Centre, on 17.2.2019.  Work relating to the above was done by Hindustan Pre-Fab Ltd., Thiruvananthapuram (in short, HPL).  Authority for leasing out buildings situated in the area coming under the scheme was given to DTPC and conduct and responsibility of adventure activities was given to Kerala Adventure Tourism Promotion Society (in short, KATPS) which is a government agency.  Process of giving the building for rent through auction is being completed in DTPC.  Process of engaging an agency for the conduct of adventure activities are being completed by KATPS.  It is admitted by Secretary, DTPC, Idukki (1^st opposite party herein) that accident was happened on 23.2.2019 at 2 pm and it happened to those who had climbed on the Burma Bridge which connects 2 isolated hills which comes under adventure activities.  Persons involved in the accident includes 12 in numbers out of 60 persons including children studying in Sunday School of St. George Church at Chulli, Angamali.  Persons having injuries suffered were treated at Rims Hospital, Erattupetta and as the injury was not serious, nobody was admitted in that hospital.  Pass for visit of suicide point at Vagamon was issued through DMC, Vagamon for the past 7 years.  While the construction was going on, entry was permitted to visitors.  Those were given for viewing the natural beauty of above hills and suicide point.

 

While the entry ticket was taken, direction was given not to climb on adventure activities.  When the people gathered there tried to climb on above place, employees named Rajeswaran and Deshin Francis had given strict direction not to climb there.  As the work was going on there, contractor named Johnson and workers of HPL who were                                                                                                                   (cont….5)

• 5  -

present  there  also  instructed  the above people as above.  But violating the above directions, about 25 persons including Fr. Vakkachan, climbed over Burma Bridge and consequently rope of above bridge was broken.  During the time of taking treatment of injured persons, Mr. M.G. Mohanan, Office Assistant at Vagamon Office had went to Rims Hospital and met all those persons on behalf of DTPC.  Doctor informed him that treated persons were having minor injury only.  They were discharged in the same evening and returned to their native place.  Entry to Burma bridge can be done only with security arrangements.  Reason for accident was due to entry of many persons collectively without permission.   Entry pass has been issuing for the past 7 years for adventure areas.   Equipments were  installing in 200 sq. meter area only out of 100 acres area which is in the custody of Tourism Department.  P.K. Suresh, P.K. Shiju, Nikhil and Rajesh  were on duty on the accident date 23.2.2019.  Construction work of the park was entrusted to 5^th opposite party by Central Ministry of Tourism.  At the time of accident, concerned site was not transferred to the department after completion of work.  As the work was going on, equipments including Burma bridge were under the control of 5^th opposite party.  More than 20 persons were entered thereon though it was restrained by security personnel and hence the accident occurred.  It is contended that 1^st opposite party has no role in the tender process of construction of Burma bridge or fixing agency for construction or the functioning thereof after completion of work and therefore it has no liability to pay compensation to complainant.

 

3. Though registered notice was issued from this Commission, opposite parties 2 to 5 have not entered appearance or have filed written version.  Hence they were set exparte.  1^st opposite party filed written objections in the form of report and produced copy of a letter dated 15.6.2020 issued by District Collector, Idukki to Secretary, DTPC, Idukki for attending the hearings and to take necessary steps in the case.  Complainant filed proof affidavit and read in evidence.  Complainant produced copy of 6 documents.  6^th document being copy of paper news, it was not marked.  Other 5 documents were marked as Exts.P1 to P5.  Those are :

Ext.P1  -  Entry pass dated 23.2.2019.

Ext.P2  -  Discharge summary dated 1.3.2019.

Ext.P3  -  Hospital bill dated 1.3.2019 for Rs.1,60,153/- from St. James Hospital.

Ext.P4  -  FIR No.45 dated 23.2.2019 of Vagamon Police  Station. 

Ext.P5  -  Reply dated 16.9.2019 given by Secretary to Government, Tourism (A) Dept., Kerala, to notice sent by complainant’s counsels.

 

1^st opposite party had not appeared on posting dates and no documents were produced except the letter shown above.  No representation also.  As no cross examination was done, witness was discharged.  Case was posted for hearing but complainant was not present and no representation also.  Hence taken for orders.

 

          We have examined the pleadings and the documents marked.  On a careful examination of the same, following points arise for consideration.                     (cont…6)

- 6  -

1)  Whether there is any deficiency in service or negligence on the part of opposite parties ?                                                                                                       

2)  If so, for what reliefs complainant is entitled to ?                            

3)  Litigation costs ?

 

4.  Point Nos.1 and 2 are considered together :

 

           It is the specific allegation of complainant that after receiving entry fee, opposite parties are liable to safeguard the life of visitors.  On going through Exts.P1, P2 and P4, it is seen that complainant along with other visitors as a group entered in the paragliding area of Vagamon which is under the control of opposite parties.  Contention of 1^st opposite party is that DTPC has no control in the conduct of the tourism centre.  But it is not mentioned which is the authority responsible for the conduct of the said centre.  It is only an evasive denial which is not sufficient.  No documents with regard to administration and control of the tourism centre is produced by 1^st opposite party.  DTPC is the promoter of tourism in the district and it comes under Tourism Department, Government of Kerala.  Tourism Department’s schemes are implemented through Kerala Tourism Development Corporation Ltd. all over Kerala.  As such they are liable for any accident happened due to the deficiency in service or negligence in ensuring safety of tourists.  1^st opposite party has not produced relevant documents to substantiate their claim.  Though, it has stated that staff of them were present and restrained the tourists from entering on the Burma bridge, no CCTV recordings, attendance register of named staff etc. were produced.  1^st opposite party has no case that warning boards were exhibited at adventure areas.  At the same time, it is admitted that entry pass has been issuing for past seven years for seeing suicide point and hills which shows that there was no restriction for entry at adventure areas. It is also admitted that entry was permitted during construction work of Swadeshi Darsan Scheme. Agreements mentioned in written version were also not produced.  Tourists are not in a position to obtain such documents.  Those are well within the control of such opposite parties.    

 

          1^st opposite party admitted that entire tourism area extending to 100 acres are within the control of Kerala Tourism Department.  So called agreements if any, for construction stated by it are matters which have to be sorted out between them.  It is also admitted by 1^st opposite party that process for leasing out building, in the area is being completed.  Giving sub contract is not a reason to escape from liability.  Visitors are attracted based on the publicities given through visual and print media given by Kerala Tourism Department, KTDC and DTPC.   Crux of the issue is who is the custodian and administering the premises and responsible for safety of visitors at the time of accident.  As 1^st opposite party admitted that entire premises consisting of 100 acres are within the control of Kerala Tourism Department and being the promoter and administrator of tourism in the district, DTPC as well as Kerala Tourism Department along with KTDC  being the statewide administrator and programme implementing agency are jointly and                                                                                                                 (cont…7)

• 7  -

severally responsible for the accident.  No documents were produced by 1^st opposite party to prove the role and responsibility of 2^nd, 4^th and 5^th opposite parties.  Complainant also failed to establish the responsibility of such opposite parties.  In these circumstances, we are not inclined to issue any order against 2^nd, 4^th and 5^th opposite parties.  Considering the entire evidence on record, it is revealed that there was deficiency in service and negligence on the part of responsible opposite parties mentioned above in securing the safety of tourists, including the complainant and thereby resulted in loss and injury to her which is liable to be properly compensated.  Complainant has produced copy of hospital bills for Rs.1,60,153/- for her treatment owing to accident.  On going through Exts.P2 and P3, it is seen that various tests were conducted from 23.2.2019 onwards.  She was seen treated as inpatient from 25.2.2019 to 1.3.2019.  But she has not produced any evidence regarding further ailments and expenses or loss in earning stated in complaint.  Considering the entire pleadings and evidence on records, we find that there is deficiency in service and negligence on the part of opposite parties fastened with liability as shown above.  In the light of our discussions and evidences, we find that complainant is entitled to get hospital expenses of Rs.1,60,153/- (One Lakh Sixty Thousand One Hundred and Fiftythree only) and reasonable compensation of Rs.10,000/- for loss and injury caused to her.  Hence point Nos.1 and 2 are answered as above. 

 

5.  Point No.3 :

 

          Considering the entire aspects of the case, we find that complainant is entitled to get litigation costs of Rs.2,000/-.

 

          In the result, complaint is allowed in part with the following directions to opposite parties found to be responsible which is mentioned above :

 

1.  Opposite parties found to be responsible as mentioned above, i.e., 1^st opposite party, 3^rd opposite party and Kerala Tourism Department are jointly directed to pay to complainant, hospital expenses of Rs.1,60,153/-  (One Lakh Sixty Thousand One Hundred and Fiftythree only) along with compensation of Rs.10,000/- (Ten Thousand) for loss and injury caused to her, with interest at the rate of 9% per annum from the date of complaint till realization.

 

2.  They are also directed to pay litigation costs of Rs.2,000/- (Two Thousand) to complainant  within the above period.

 

         

 

                                                                                                                       (cont…8)

 

 

• 8  -

 

Above amounts should be paid within 30 days of receipt of this order, failing which complainant   will be at liberty to recover the amounts as per law.

 

Parties are directed to take back extra copies without delay. 

 

                           Pronounced by this Commission on this the 24^th day of January, 2023  

 

                                                                                                Sd/-

SRI. AMPADY K.S., MEMBER

                                                                                                Sd/-

    SRI. C. SURESHKUMAR, PRESIDENT

                             Sd/-

SMT. ASAMOL P., MEMBER

 

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1        -  Soumya Vipin

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1  -  Entry pass dated 23.2.2019.

Ext.P2  -  Discharge summary dated 1.3.2019.

Ext.P3  -  Hospital bill dated 1.3.2019 for Rs.1,60,153/- from St. James Hospital.

Ext.P4  -  FIR No.45 dated 23.2.2019 of Vagamon Police  Station. 

Ext.P5  -  Reply dated 16.9.2019 given by Secretary to Government, Tourism (A) Dept.,

      Kerala, to notice sent by complainant’s counsels.

On the side of the Opposite Party :

Nil.

 

 

                                                                                      Forwarded by Order,

 

 

 

                                                                                   ASSISTANT REGISTRAR