DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 25^th day of January 2018

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P. Member                                  Date of filing:  03/12/2015

               : Sri.V.P.Anantha Narayanan, Member

(C.C.No.184/2015)

Nisha,

W/o Prabit.T,

‘Prathiba’ House,

Pathiriyaal (PO),

Thiruvali,

Malappuram – 676 123.                                                                         -           Complainant

(By.Adv.Snehaja.P.M)

 V/s

1.  Managing Director,

    Fantasy Park, Malampuzha Road,

    Palakkad – 678 651.

   (By Adv.Ramachandran.E)                                                                -           Opposite parties

2.  Murugeshan,

     S/o Ayyappaswami,

     Kulapparathi House, Malampuzha (PO),

     Palakkad.

    (By Adv.P.Bharathi)

3.  United India Insurance Office Company Ltd,

     Personal Line Insurance Office,

     Surya Complex, Mission H.S.S Junction,

     Palakkad – 678 014.
    (By Adv.K.Lakshmi Narayanan)

O R D E R

By Smt.Suma.K.P. Member,

The case of the complainant in the above case is that she had been to the park owned and maintained by the 1^st opposite party on.  13.05.2014 and that while she was waiting for Boomer ride and due to the negligent act of the second opposite party (employee of the 1^st opposite party) one of the ride hit her and in that incident she sustained injury.  She contended that in the said accident she sustained cut wounds, lacerated wounds and abrasions.  She was taken to Sai Nursing Home and her wounds were stitched.  She further contended that she was discharged on the same day and had continued her treatment at Manjeri Government Hospital and that one of her tooth in the front row was removed and two tooth were loosened.  She also contended that she is still continuing her treatment for fixation of artificial teeth. 

She narrated the incident as follows :-

During the visit to the Fantasy Park along with her relatives, while she was waiting in the place for riding the BOOMER RIDE, due to the negligence of the ride operator who is bound to control the speed of the ride.  One side in which two persons were riding came and hit her due to which she fell, and sustained injuries on her forehead, nose and teeth when she hit the floor.  Immediately, she was taken to Sai Hospital, Olvakkode and gave first aid.  She had to put clips in her teeth due to the injury sustained and she was discharged in the evening.  Thereafter, she had to undergo treatment at Manjeri Government General Hospital from where the doctors told her that one of her front teeth has to be removed.  Ultimately, the said teeth has been removed and two other tooth were damaged.  She says that she is continuing the treatment for implanting artificial teeth in the place where her tooth had to be removed.  She further claims that due to these injuries, she has suffered injury marks on the face and also  disfigurement of her face.  She claims Rs.50,000/- for future treatment for implanting the teeth.  According to her she has already spent Rs.25,000/- at various hospitals for treatment.  She claims Rupees 10 lakh as compensation from the opposite party in this regard. 

Opposite party entered appearance and contended that, there is no negligence on their part as well as on the part of their employees in the alleged incident as stated in the complaint.  She herself invited the accident by standing in the landing area of the slides of the             BOOMER RIDE, where specific boards have been put up that nobody should stand there.  Probably in her attempt to grab the slide as soon as possible to sit in the ride, she might have entered into the prohibited area.  It is pertinent, to notice that the specific case of the complainant is that the slide came and hit her while she was standing in the queue as alleged, other persons standing near her would also have been hit by the slide and have suffered injury.  This would show that she was not standing in the queue as alleged whereas she might have been standing in the landing are of the slide of the ride where the entry is prohibited by display of sign boards. 

The 3^rd opposite party had denied the contention of the application that the accident happened due to the negligence of the 1^st and 2^nd opposite parties.  The alleged accident happened due to her own negligence.  There were sign boards that the visitors should not stand there.  Disobeying the warning in the sign boards and the instructions of the employees she standed in such a place where the accident may occur, for which she had contributed to the whole extent and she cannot blame the opposite parties for the same.  The alleged injury sustained by her is very minor and there was no necessity for any implantation of new tooth since there is no loss of the teeth in the alleged accident.  There is no loss of leave or loss of income as alleged in the complaint.  The complainant had not sustained disfiguration due to the alleged accident.  There is no such disfiguration and she is not entitled to get any compensation under the above said heads.  The claim of Rs.10 lakhs claimed for the pain and suffering, disfiguration and under other heads are without any basis.  The complainant had claimed huge amounts as compensation only to enrich her.  She is not entitled to get the amounts claimed.  The contention regarding the operation of boomer ride and the control of the same are not admitted by 3^rd opposite party.  The applicant was not able to prove her contentions either by oral or documentary evidence.  There was no deficiency in service is on the part of the opposite party.  Immediately after the accident she was taken to hospital and necessary treatments were given.  There is nothing on record to show that there is any negligence on the part of the employees of the 1^st opposite party.  The opposite party admits that there is valid insurance cover of the 1^st opposite party and the liability is limited as per the terms and conditions in the policy/contract of insurance.  A true copy of the policy is produced along with the version and the same is marked in the above case.  The evidence adduced by petitioner will disprove her case.  She had sustained only minor injury.  She had violated the direction given in the sign board erected by the opposite party for the safety of visitors.  She had invited the accident.  The injury alleged to have been sustained is very minor and she had given necessary treatment for the same.  The injury alleged to have been sustained is very minor and she had given necessary treatment for the same.  Considering the nature of injuries sustained and the treatment undergone by the petitioner, the amounts claimed are exorbitant and unreasonable.  The witness examined by her is none other than her father in law.  He is an interested witness.  His words cannot be believed.  Further the entire treatment is done at Government Hospital and at Medical College Hospital.  The complainant is a nurse and there are no supporting documents produced for her claims made in the application.  Further in the accident there is damage to only one teeth.  That is also only loosened.  There is no basis for her claims made in the complaint.  The complainant is not entitled to get any relief claimed in the petition, since the accident happened exclusively due to her own negligence, she is not entitled to get any compensation and the complaint has only to be dismissed. 

Complainant filed application as IA-149/2016 for amendment of the complaint.  Application was allowed, since, it will not affect the nature of the complaint.  Amendment was carried out and copy of the amended complaint was served to the opposite parties.  Opposite party filed additional version.  Complainant as well as opposite parties (1 & 3) filed their respective chief affidavits.  1^st opposite party filed application as IA-411/2016 seeking permission to cross examine the complainant.  Complainant filed additional affidavit along with CD.  No counter was filed and the affidavit was received on file.  Complainant was cross examined as PW1.  Exts.A1 to A9 was marked from the side of the complainant.  Complainant filed application for cross examination of 1^st opposite party.  1^st opposite party was cross examined as DW1.  Complainant filed another application seeking permission to examine a witness from their part.  Application was allowed and the witness was examined as PW2.  Evidence was closed and the matter was heard. 

The following issues that arises for consideration are.

1. Whether there is any deficiency of service from the part of opposite parties ?
2. If so, what are the relief and cost?

Issues No.1 & 2

We have perused the affidavits and documents produced before the Forum the

complainant submits that she along with her family visited the Fantasy park on 13.05.2014 and while she was waiting for boomer ride, due to the negligent act of the 2^nd opposite party (employee of the 1^st opposite party), one of the ride hit her and in that incident she sustained grievous injuries.  To prove the case of the complainant PW1 and PW2 are examined and Exts.A1 to A10 was marked.  From Ext.A2 series it is evident that the complainant was treated in Sai Hospital, Palakkad and from Ext.A3 & A4 series it can be viewed that she had undergone treatment from Manjeri, Govt.Hospital.  The copy of the FIR was also marked as Ext.A5 which shows that a crime was registered u/s 338 IPC against the opposite party 2.  From Exts.A1 to A9 it is also evident that the complainant had undergone treatment at Govt.Dental College, Clinic at Kozhikkode.  PW2 was an eye witness who was the father in law of the PW1.  During cross examination PW1 has deposed that “Rm³ AhnsS ride  Ibdm³ th­n Im¯p \n¶XmWv.  Cu ride h¶nd§p¶Xv Hcp landing space emWv.  B landing space sâ back emWv Rm³ \n¶Xv.   landing space Dw BfpIÄ Iyq \n¡p¶Xpw X½n thÀXncn¡m³ Rm³ t]mbkab¯v space D­mbncp¶nÃ.  apIfn \n¡p¶ Hm¸tdäÀ¡v AXn I¬t{SmÄ sN¿m\mbn H¶pw CÃ.  Xmg¯v landing space sâ ASp¯v BfpIsf XSp¡m\mbn Hcmsf \nÀt¯­nbncp¶p F¶mWv Fsâ hmZw.  landing space sâ ASp¯v BfpIÄ \n¡cpXv F¶v t_mÀUv FgpXn h¨Xmbn I­nÃ.  t_mÀUv D­mbncp¶nÃ.  landing space  \n¶m apIfn \n¶pw hcp¶ BfpIfpsS tube FSp¯n«v thWw apIfnte¡v t]mhm³ AXn\pth­n Rm³ AhnsS Im¯p \n¡pIbmbncp¶p.    (page 4 of the deposition)”.  PW2 has also deposed to the same effect in his chief examination as “Fantasy Park se Poh\¡mc³ Im¯p\n¡m³ ]dª Øe¯p Xs¶bmWv Rm³ \n¶ncp¶Xv.  kpc£m \nÀt±i§fS§nb ssk³ t_mÀUv B ]cnkcn¯v D­mbncp¶nÃ. (Page 1 & 2 of the deposition)”. 

            From the above evidence it is viewed that opposite parties have not arranged proper security measures for the persons waiting to enter in to the Boomer Ride.  This amounts to deficiency of service on the part of the opposite parties.  Issue no. 1 is answered accordingly. 

Issue No.2

            Immediately after the accident she was taken to Sai Hospital, Olavakkode and gave 1^st aid.  She had to put clips in her teeth due to the injury sustained and she was discharge in the evening.  Thereafter she had to undergo treatment at Manjeri Govt. General Hospital and that one of her tooth in the front raw was removed and that two teeth were loosened.  She submits that she is continuing treatment for implanting artificial teeth in the place where her teeth had to be removed.  She further claims that due to these injuries, she had suffered injury marks on the face and also the disfigurement of her face.  She claims Rs.50,000/- for future treatment for implanting the teeth.  According to her she had already spent Rs.25,000/- at various hospitals for the treatment.  She claims Rs.10 lakh as compensation from the opposite party in this regard.  The opposite parties had submitted that the compensation amount is highly exaggerated and is without any basis.  They had also submitted that the entire treatment is done at Govt.hospital and at Medical College Hospital.  The very medical records produced by her would show that she was undergoing dental treatment even prior to the alleged incident which falsifies her case that the dental treatment which she now undergoes of his due the alleged incident.  Even though she had stated in the complaint that she had to take long leave in her duty due to the injury sustained, she admits in cross examination that she had no taken such long leave.  She being a Govt.servant had not produced any records to prove the above allegation also.  No evidence was produced from the part of the complainant to show that she had spent huge amount for her treatment.  From the available evidence produced before the Forum it can be inferred that the complainant had sustained injuries and had suffered mental pain and financial difficulties.  Considering the above aspects we allow the complaint, and the opposite parties are directed to pay Rs.10,000/- (Rupees ten thousand only) as compensation to the complainant for the pain, physical and mental sufferings caused due to the deficiency of service of the 1^st and 2^nd opposite parties.  We also direct the opposite parties to pay Rs.2,000/- (Rupees two thousand only)  towards cost of this proceedings. 

          The afore said amount shall be paid by the 3^rd opposite party being the insurer of the 1^st and 2^nd opposite parties within one month from the date of receipts of this order failing which complainant will be entitled to realize interest at the rate of 9% p.a from the date of order till realization. 

Pronounced in the open court on this the 25^th  day of January 2018.

                                                                                                           Sd/-

                 Shiny.P.R.

                   President 

                       Sd/-      

                   Suma.K.P.

                    Member

                       Sd/-

    V.P.Anantha Narayanan

                    Member

Abstract

Exhibits marked on the side of complainant

 Ext.A1 Series  -  Fantasy Park Entry Ticket

Ext.A2 Series   -  Sai Hospital, Olavakkode Prescription and bills

Ext.A3 -  Accident Register Cum Wound Certificate dated. 13.05.2014 issued by

               Govt.Hospital, Manjeri to the complainant

Ext.A4 -  Op Ticket Dated.14.05.2014

Ext.A5 -  Copy of First Information Report of the Police Station Malampuzha

Ext.A6 -  Op Ticket of Sudhi Dental Clinic dated.25.05.2014

Ext.A7 -  Case Record of Govt.Dental Medical College Hospital, Kozhikkode Dated.13.08.2014

Ext.A8 -  Public Liability Non Industrial Risky Policy issued by United India Insurance

                Company Ltd

Ext.A9 -  Photographs & CD

Exhibits marked on the side of Opposite parties

Nil

Witness examined on the side of complainant

PW1    -  Nisha.P

PW2    -  Balakrishnan

Witness examined on the side of opposite party

DW1    -  Ashokan.T.S

Cost   

            Rs.2,000/-