NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIAPPEAL NO. No. FA/63/2007
(Against the Order dated 05/01/2006 in Complaint No. 79/1999 of the State Commission Madhya Pradesh)
1. DR. BHIMSEN THARWANI AND ANR.KATNI CAMP, SUNIL BHAWAN, SINDHI BASTI, BURHANPUR, MP
...........Appellant(s)
Vs.
1. HOSHANGPROPRIETOR OF HOTEL AMBAR PUSHPAK BUS STAND BURHANPUR, MP
...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE R.C. JAIN ,PRESIDING MEMBERHON'BLE MR. ANUPAM DASGUPTA ,MEMBER
For the Appellant :
NEMO
For the Respondent :
NEMO
Dated : 11 Mar 2010
ORDER
PER JUSTICE R.C. JAIN, PRESIDING MEMBER (ORAL) Both these appeals arise from an order dated 05.01.2006 passed by the Madhya Pradesh State Consumer Disputes Redressal Commission (in short, the State Commission) in original complaint No. 79 of 1999. By the impugned order, the State Commission has partly allowed the complaint filed by the complainants-Dr. Bhimsen Tharwani and another against four opposite parties including the insurance company and while exonerating the opposite parties 1 to 3 for having committed any negligence or deficiency in service, has directed the opposite party No. 4-insurance company to pay a sum of Rs.2 Lakh to the complainants with the stipulation that if the amount is not paid within a period of 45 days from the date of communication of the order, the awarded amount shall carry interest @ 9% per annum from the date of the order till the date of payment. 2. Aggrieved by the said order, New India Assurance Company Limited has filed appeal No. 144 of 2006 praying for setting aside the impugned order passed by the State Commission directing it to pay the aforesaid amount, while appeal No. 63 of 2007 has been filed by the complainants praying for setting aside the finding of the State Commission so far as it has exonerated opposite parties 1 to 3 for having committed any negligence or deficiency in service and holding only the insurance company liable to pay the amount as also for upgradation of the relief so granted by the State Commission. 3. We have heard Mr. Kanwal Chaudhary, learned counsel representing the appellant-insurance company in appeal No. 144 of 2006, Mr. Kavin Gulati, learned counsel appearing for Mr. Wasya Khan, learned counsel for the complainants/appellants in appeal No. 63 of 2007 as also Mr. Rakesh Shukla, learned counsel for opposite parties 1 and 3 and Mr. N. R. Bhavsar, learned counsel for opposite party No. 2 and have given our thoughtful consideration to their respective submissions. 4. The facts and circumstances, which led to the filing of the complaint, have been noted by the State Commission in detail in the impugned order and need no repetition at our end. However, for the purpose of disposal of these appeals, we may simply notice that the complaint was filed claiming a total compensation of Rs.14,01,200/-from the opposite parties, on account of alleged negligence and deficiency in service on the part of opposite parties 1 to 3, in maintaining the swimming pool at their hotel Ambar situated at Burhanpur, Madhya Pradesh, as a result of which, it was claimed that son of the complainant No. 1, namely, Sunil Tharwani aged about 22 years had died on account of drowning in the said swimming pool. The complaint was resisted by the opposite parties and the parties led evidence mostly by filing affidavits of certain witnesses. From the complainants side, affidavits of complainant No. 1 and that of one Prakash, were filed in support of the averments and allegations made in the complaint while affidavits of Shri Hoshang Hawaldar, Bhagwani Das Gandhi, Shri Shabbir Bhai, Shri Bishan Pardesi, Shri Prem Chand Gupta and Shri Vishnu Kumar Gujrati, were filed on behalf of the opposite parties 1 to 3. The insurance company also resisted the claim by denying their liability to pay any amount unless any negligence was established on the part of hotel and its employees. It would also appear that the complainants also initiated criminal proceedings and a case under Section 304-A, I.P.C. came to be registered and chargesheet was filed in the competent criminal court against opposite party No. 2-Bhagwan Das Gandhi. The court of the first instance, convicted the said accused but in appeal, the conviction was set aside by the Sessions Judge and the said accused was acquitted. 5. Mr. Kanwal Chaudhary, learned counsel for the appellant-insurance company on the strength of the terms and conditions of the policy, has vehemently argued that the insurance company could only be held liable to indemnify the insured if there was any fault or negligence on the part of insured/directors or any of his employee while he was engaged in the business of the insured. He submits that the State Commission has grossly erred in fastening the liability on the insurance company to pay the amount of Rs. 2 Lakh as compensation, once it has exonerated the opposite parties 1 to 3 i.e. hotel management and its employees. What prompted to the State Commission to pass such an order, can be seen from the observations and findings made in para 9 and 10 of the impugned order which are as under. 9. However the injury caused by any such accident was squarely covered by the insurance policy obtained by the Hotel Management from opposite party no. 4 for the benefit of the customers. The opposite party-insurer has tried to evade its liability by saying that the policy provided coverage only to the customers of the hotel not to the members or the visitors to the pool which was open also to the outsiders not staying in the hotel. We are however, no persuaded by this contention of opposite party no. 4. The schedule of the policy with its Annexure R-4-1 clearly provided that cover under the policy was also extended to any accident occurring at the pool. No distinction is made between the occupants of the hotel and the outside members using the pool. The accident which resulted into the death of late Sunil who at the relevant time was using the pool on payment of requisite consideration, was covered by the policy. Needless to say that payment of charges for use of pool was a valid consideration for hiring of the service in question which also included the service of Insurance Company-the opposite party no. 4. 10. It will be thus seen that although no responsibility can be festened on opposite parties nos. 1, 2 and 3, opposite party no. 4 is liable to pay compensation Rs.2,00,000/- to the complainants being the legal heirs of deceased Sunil. 6. Learned counsel for the appellants/complainants in appeal No. 63 of 2007, has fairly submitted that on the face of the material on record, the findings recorded by the State Commission are mutually contradictory because the liability of the insurance company under the insurance policy arises only when any negligence etc. has been established on the part of the insured-hotel management. In view of this factual and legal position which emerges from a reading of the conditions of the policy, we have no hesitation to hold that the finding of the State Commission so far as it has held the appellant/insurance company in appeal No. 144 of 2006 liable to pay the awarded amount, is legally unsustainable and has to be set aside and the appeal deserves to be allowed to this extent. 7. Coming to the appeal filed by the complainants, the impugned order exonerating the opposite parties 1 to 3 is assailed on the ground that the order is erroneous and not based on correct and proper appreciation of evidence and material on record. Learned counsel for the appellants submits that not only the State Commission has misread the evidence of Prakash but has not at all considered the evidence of the opposite parties 1 to 3 put forth through the affidavits of the above named persons, particularly, opposite party No. 3-Bishan Pardeshi, life guard, which, according to him, contain certain statements, which has the effect of establishing negligence on the part of the opposite parties 1 to 3. On the other hand, learned counsel for the respondents submits that the impugned order is based on correct and proper appreciation of the evidence and material brought on record. Learned counsel for the respondent No. 2 further submits that so far as respondent No. 2 is concerned, he has been acquitted of the charge, which was almost the same as is alleged in the complaint and therefore, there exists no case against the said respondent. 8. Mr. Rakesh Shukla, learned counsel for the respondents 1 to 3 submits that during the pendency of the complaint and before its disposal by the impugned order, evidence recorded in the court of Judicial Magistrate, 1st Class, Burhandpur, was also tendered in evidence before the State Commission. He also submits that after the evidence of the complainant and Prakash, was produced through affidavits, an application was made on behalf of the opposite parties 1 to 3 seeking permission to cross examine the said witnesses, which was not considered by the State Commission. He also submits that the judgment of acquittal recorded by the Sessions Court in appeal against the conviction of opposite party No. 2 will also be relevant and at least will be of persuasive value in these proceedings. 9. On a careful consideration of the impugned order, we find that though the State Commission has noted down the facts of the affidavits of several witnesses including that of the life guard and Shri Sabir Bhai having been filed but it has focused its entire attention to the affidavit of Prakash and has not at all considered the evidence filed by the witnesses of the respondents which are stated to contain certain facts. 10. Having regard to the entirety of the facts and circumstances of the case, as noted above and the developments, which have taken place in this case, we are of the view that the complaint has not received the kind of consideration. It should have in a case like one the present one where the fate of the complaint was largely hinged on establishment of certain facts by oral evidence. Before reaching the conclusion whether there was any negligence or deficiency in service on the part of opposite parties 1 to 3, the State Commission was not only required to consider the evidence of the complainants but in all fairness, it should have scrutinized the entire evidence produced by the opposite parties and depending upon the intrinsic value of the evidence of each of the said witnesses, it should have come to the conclusion. In a situation, where two proceedings, one civil and the another criminal in nature, were initiated on almost same set of facts and circumstances, the evidence led before the two forums become relevant and the parties are entitled to rely on the same in support of their respective pleas. Had the State Commission allowed the parties to cross-examine the witnesses, the parties would have been in their rights to confront the witnesses with the previous statements made by them in the proceedings before the criminal court in order to test their veracity. In view of the above stated position, which has emerged, we are of the considered opinion that the impugned order passed by the State Commission exonerating the opposite parties 1 to 3, is also legally sustainable and is required to be set aside for reconsideration of the whole matter. 11. In the result, the appeal bearing No. 144 of 2006 filed by the New India Insurance Company Limited and the appeal bearing No. 63 of 2007 filed by the complainants are partly allowed and the impugned order dated 05.01.2006 passed by the State Commission is hereby set aside. In view of our forgoing observations, we consider it appropriate to remand the complaint back to the Board of State Commission to decide it afresh in accordance with law, after affording due opportunity to the parties including the liberty to cross examine the witnesses, if any. The parties are directed to appear before the State Commission on 05.04.2010 to receive further directions in the matter. Since disposal of the complaint and appeal has been delayed, we request the State Commission to dispose of the complaint as expeditiously as possible but not later than six months from the date of appearance of the parties before the State Commission. Needless to state that any observation made hereinabove will not tantamount to expression of opinion on the merits of the matter or any of the issues involved in the complaint and the State Commission would be free to decide the complaint in accordance with law. The amount deposited by the appellant-insurance company in appeal No. 144 of 2006 pursuant to the direction given in that appeal, shall abide by the final outcome of the complaint. However, we direct the Registry to refund the amount of Rs.35,000/- deposited as pre-condition for filing the appeal to the appellant-insurance company in First Appeal No. 144 of 2006.
......................JR.C. JAINPRESIDING MEMBER ......................ANUPAM DASGUPTAMEMBER
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