PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) In brief consumer dispute is as under –
This is the complaint regarding deficiency on the part of Opposite Parties (Opponents) as the Complainant sustained serious head injury during the repair of the building known as Pancharatna building which was being repaired by the Opposite Parties as alleged by the Complainant.
2) The Complainant has stated in his complaint that he is doing business of diamonds and diamond studed jewellary. He is a Member of Diamond Merchant’s Organisation known as ‘Mumbai Diamond Merchant Association’ situated in Pancharatna building, Opera House, Mumbai, where generally he comes and meets his clients in the business. He pays the membership fees to this association and avails the facilities provided by this association.
3) Opposite Party No.1 is the Contractor who has undertaken the building repair work of Pancharatna Co-Op. Housing Society Ltd. Opposite Party No.2 is the Sub-Contractor of Opposite Party No.1 and Opposite Party No.3 is the Worker of Opposite Party No.2 from whose hand the hammer fell down and the Complainant sustained head injury. Opposite Party No.4 to 7 are the Office bearers of Pancharatna Co.-Op. Housing Society Ltd. and Opposite Party No.8, 9 and 10 are the Office bearers of ‘Mumbai Diamond Merchant Association’.
4) It is the case of the Complainant that on 26/07/2002 at about 5.00 p.m. as usual he was discussing the business matters with other businessmen near Pancharatna building. A hammer slipped from the hands of Opposite Party No.3 as he was negligently doing the scaffolding work of the building. The said hammer fell on the Complainant’s head as a result of which he sustained a serious head injury. He fell unconscious. He was removed to Harkisandas Hospital where he was treated in an I.C.U. and was operated. Because of this injury he suffered financial loss to the tune of Rs.20 Lakhs as well as met with physical as well as mental agony.
5) The Complainant further elaborated that the building repair work was being carried out without any board of warning displayed on the sight. The area was not cordened with ropes or with other items. It was the duty of the Society and Association to put up warning board, etc. The Society and Association should have taken proper care to protect their members.
6) The Complainant has prayed for Rs.20 Lakhs compensation for his serious head injury, mental agony and business loss sustained by him due to the above injury. The Complainant has attached the following documents in support of his complaint -
a) A copy of Mid-day News Paper, dtd.28/08/2002.
b) Copies of membership card and subscription receipts of the Complainant.
c) Copies of donation receipts to the Association.
d) Copy of Sales Tax Registration Form.
e) Copy of a Certificate from International Gemological Institute.
7) The Complaint was admitted. All the Opposite Parties appeared through their Ld.Advocates and filed their written statements. Complainant filed his affidavit in evidence and written argument. Opposite Party No.1,2 and 3 submitted their affidavit of evidence and written arguments. The Opposite Parties also submitted copies of the following documents -
a) Photographs of the site of Pancharatna building under repair.
b) Panchanama dated 26/07/2002 drawn by Police (place of incident) (English Version of Marathi Panchanama).
c)Letter of the wife of the Complainant addressed to Police.
d)Statement of Shailesh C. Shah
e)Statement of Nimish D. Shah
f)Statement of the Complainant Hemen B. Shah
g)Letter of Raksha Construction Co.addressed to one Irfan Ali Jamin Ali Shaikh, dtd.14/07/2002 (work order).
8) Opposite Party No.1 to 3 jointly averred that the Complainant has not made the Mumbai Diamond Merchant Association a party to this complaint and on this ground of non joinder of the parties the complaint is liable to be dismissed. They further averred that the Complainant is not a consumer and as such, this complaint is not maintainable in this Forum. They submitted that the complaint does not disclose any deficiency in service on the part of these Opposite Parties as there is no privity of contract of any nature, whatsoever between the Complainant and Opposite Party Nos.1 to 3. They further submitted that the act complained of, is only on sheer act of an accident or misfortune without any intent or knowledge.
9) The Opposite Party stated that all precautions were taken while doing the repair work by putting a board of caution as “Caution – Work in progress – and No Entry in bold letters. Inspite of this board it was the Complainant who did not act prudently by entering the place where the work was going on. They also submitted that the Pancharatna Co.Op. Hsg. Society also had taken all necessary precautions and had circulated the notice to all its members and put up on Notice Board, cautioning all members about the falling objects and to stay away from the area in order to avoid injuries.
10) Opposite Parties Nos.4 to 7 have submitted that the Complainant cannot claim any deficiency of service against them for negligence of Opposite Party Nos.1 to 3. They cannot be held responsible for the incident as they had taken due care and caution putting caution notice in the premises informing the public about the repairing work going on in their premises. They denied all the allegations made in the complaint.
11) Opposite Parties Nos.4 to 7 have submitted that a criminal case is registered in respect of the alleged incident against the contractor only and not against Opposite Party Nos.4,5,6 & 7. They also stated that the Complainant had failed to make out any case under the Consumer Protection Act as he has failed to establish himself as a consumer as defined in the Consumer Protection Act.
12) Opposite Party Nos.8 to 10 also have stated that the Complainant is not a consumer within the meaning of Sec.2(1)(d) of the Consumer Protection Act. He does not have the Locus Stand to file this complaint. The allegation mentioned in the complaint do not amount to complaint within the meaning of term complained as defined in Consumer Protection Act. They averred that the Complainant himself claimed as the member of the Mumbai Diamond Merchants Association. However, there is no complaint as regards the service provided by the Association for which the Complainant became the member of the said Association. They have specifically denied that they were looking after the maintenance work of Pancharatna Co.Op.Hsg. Society Ltd. They do not control the affairs of the society. There is a separate body to administer the work of the society.
13) They further averred that the society had decided to repair the building. The security and safety of any person visiting the premises is upon the society of the building and not on them. They denied that the person visiting the premises is a consumer of the association.
14) The Opposite Party further averred that the members of the society and the person who visits the members is consumer of the society and not that of the association. They also denied that the office bearers of the association are responsible for the negligent act as a result of which the Complainant had suffered severe head injury.
15) They further stated that the day to day activities are carried out by the office bearers of the society and hence, they are liable for any act of their employee or the contractor, employed by them. They are liable for any deficiency in service caused due to negligence in carrying out any work undertaken by them.
16) We heard the Ld.Advocates for the Complainant and the Opposite Parties. Perused all the above said documents. Our findings are as follows –
17) The Complainant is a member of ‘Mumbai Diamond Merchant Association’, which is having a Hall and Offices in the Pancharatna building and he visits those Halls and Offices for his business purpose. These premises are situated in Pancharatna Co-Op. Housing Society Ltd. which is an independent body.
18) Pancharatna Co.-Op.Housing Society Ltd.(in brief “the said Society”) has entrusted the building repair work to Opposite Party No.1 who in turn entrusted the work of scaffolding work to the Opposite Party No.2, a Sub-Contractor and of Opposite Party No.2 has appointed Opposite Party No.3 to carry out their scaffolding work. While working on the top floors of this building and doing scaffolding work, the hammer slipped from the hands of Opposite Party No.3 and fell on the head of the Complainant Shri.Hemen Shah who was discussing with his colleagues Mr.Shailesh Shah and Nimish Shah outside the building. Because of this incident the Complainant sustained a serious head injury and he fell unconscious. He was taken to Harkisandas Hospital for treatment.
19) Opposite Party No.3 is the worker (labour) of Opposite Party No.2 who was doing the work of scaffolding. Opposite Party No.1 vide its work order dtd.14/07/2002 had entrusted this work to Opposite Party No.2 and as per this work order, the safety precautions for the work was to be taken by Opposite Party No.2. As per the Complainant’s pleading itself, he sustained the head injury as the hammer slipped from the hands of Opposite Party No.3 and fell on his head. Thus, Opposite Party No.3’s act was responsible for the injury. However, there is no privity of contract between the Complainant and Opposite Party No.3 as well as Opposite Party No.1 to 7. The Complainant has not availed or hired any services from these Opposite Parties.
20) The Complainant is a member of the Mumbai Diamond Merchants Association (for brevity the Association) but this Association has not played any role in this incident. Pancharatna Co.Op. Housing Society Ltd. is the independent entity which is not a party in this case. The Society had entrusted the repair work to Opposite Party No.1. Therefore, the Complainant cannot be said to be the Consumer of the Opposite Party No.1 to 7. If at all the Complainant is the member of Mumbai Diamond Merchants Association, the Association is also not made a party to this complaint. Though the Opposite Party No.8 to 10 are the office bearers of the said Association, they are not involved in the alleged incident of falling the hammer on the Complainant’s head, nor they are concerned with the repair work of the building. Therefore, Complainant, not being the consumer as per the definition of Sec.2(1)(d) of Consumer Protection Act, 1986. This Forum does not have the jurisdiction to decide the complaint. Therefore, we pass the order as follows -
O R D E R
i.Complaint No.154/2003 is dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
