Date of Filing 31.01.2020

                                                                                                             Date of Disposal: 05.03.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                          …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIUR.P.MURUGAN, M.Com, (ICWA), BL.,                                                                     ……MEMBER-II

RBT/CC.No.70/2024

THIS THUSDAY, THE 05^th DAY OF MARCH 2024

S.Sasi Kala, W/o.Shanmugam,

No.3, 1^st Floor, Jeeva Complex,

Azhapakkam, Chennai 600 116.                                                            ......Complainant.

                                                                                   //Vs//

1.M/s.Everest Garments,

    No.29/9, Singara Garden,

    4^th Street, Old Washermenpet,

    Chennai 600 021.

2.M/s.Everest Garments,

    Rep. by its Proprietor Mr.Syed Muzammail,

    No.29/9, Singara Garden,

    4^th Street, Old Washermenpet,

    Chennai 600 021.                                                                         ……Opposite parties.

Counsel for the complainant                                    : M/s.R.Muniyapparaj, Advocate.

Counsel for the opposite parties.                            : Exparte.

This complaint has been filed before DCDRC, Chennai (North) as CC.No.50/2021 and transferred to this commission by the administrative order in RC.No.J1/3145/2023 dated 09.11.2023 of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as RBT/CC.No.70/2024 and this complaint coming before us finally on 27.02.2024 in the presence of M/s.R.Muniyapparaj, counsel for the complainant  and opposite parties were set exparte for non appearance on 06.06.2022 and upon perusing the documents and evidences of complainant’s side this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties along with a prayer to direct the opposite parties to pay a sum of Rs.12,00,000/- payment made by the complainant to the opposite parties and to pay a sum of Rs.12,00,438/- being the amount spent by the complainant towards medical expenses and to pay  a sum of Rs.15,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.10,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. Alleging negligence on the part of opposite parties the present complaint was filed. It was the case of the complainant that she usually purchase her clothes requirements from the shop which were dumped in the 1^st floor.  The complainant was not known that there was an open hole in the 1^st floor of size 4 feet by 4 feet for the purpose of lifting and shifting from 1^st floor to 2^nd floor.  Further the complainant had never seen the said hole at any point of time during the purchase of clothes and sarees from the opposite parties.  On 03.08.2019 complainant and her husband went to the 1^st floor of the opposite parties textiles for purchase of whole sale of clothes for the purpose of doing a business in their local place. There was a sudden failure of electricity in the 1^st floor.  In the meantime when the complainant moved back due to the darkness she fell down in the hole.  As a result, the complainant sustained severe injuries in the spinal cord and heavy fracture and was unable to walk. Hence immediately she rushed to the hospital with the help of her husband and admitted in Nissani Hospital at Royapuram and underwent treatment.  The complainant was bed ridden for months together. Therefore the complainant lodged a complaint before the Royapuram Police Station on the same day for which the Police Authorities issued a receipt of C.S.R. copy in 642/2019 and registered the FIR on 31.08.2019 vide crime No.568/2019.  Due to the negligence of the opposite parties the complainant was hospitalized for more than one month and till date she was continuously taking treatment and spending lot of money.  The complainant was first admitted in the Nissani Hospital at Royapuram and thereafter admitted in the K.M.Specialty Hospital at K.K. Nagar.  The total expenditure spent by the complainant till date was Rs.12,00,438/-. It was submitted that the opposite party had kept a hole of size 4 feet by 4 feet in the 1^st floor without any safety measures to the customers and also no warning board and indication was kept nearby the hole which amounts to negligence on the part of the opposite parties. Due to the above occurrence the complainant’s business was totally hampered and she sustained heavy loss. Complainant earned more than Rs.30,000/- per month and now due to the said occurrence the entire family members including two children namely S.Krishnkanth of 13 years and S.Rajesh of 11 years were put into severe mental agony and humiliation. Thus aggrieved by the act of the opposite parties the present complaint was filed for the reliefs mentioned above.

3. On the side of the complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A11 were submitted. Though one Mr.S.Magimai Raj filed vakalath for the opposite parties he did not appear before this commission to file any written version and hence they were called absent and set exparte on 06.06.2022 for non filing of written version within the mandatory period as per the statute.

Points for consideration:-

1)    Whether the alleged negligence and deficiency in service on the part of opposite party in not maintaining their showroom properly resulting in causing grave injury to complainant has been successfully proved by the complainant?

2)    If so, to what relief the complainant is entitled?

 Point No.1:-

4. On the side of complainant it was submitted that their written arguments may be treated as oral arguments and hence we considered the written arguments filed by them as oral arguments to decide the complaint on merits.

5. The case of the complainant is that on 03.08.2019 at about 5.20 pm the complainant along with her husband went for purchase of clothes materials in the opposite party’s shop.  Suddenly when the electricity fails in the first floor where the complainant was selecting the clothes she moved back and fell into a hole.  The hole was 4 x 4 feet which was kept for transferring clothes from the ground floor to the 1^st floor by the opposite parties. The opposite parties without carrying out any safety measures to the customers and without keeping any warning board had kept it open.  Due to the act of the opposite parties huge loss caused to the complainant both monetarily, physically and mentally as she had to take continuous treatment in various hospitals for a sum of Rs.12,00,000/-. Thus, the complainant had filed the written arguments stating that she is entitled for Rs.12,00,000/- compensation towards medical expenses and Rs.10,00,000/- compensation towards mental agony and hardship and Rs.10,000/- towards cost.

6. We perused the pleadings and material evidence submitted by complainant.

Complainant a consumer:-

7. It is an established fact that the complainant visited the opposite parties Garments showroom for the purchase of clothes for her small scale business on 03.08.2019 and that around 5.20 pm when the electricity fails she fell down in the hole in the opposite parties showroom.  When it is the case of the complainant that she went to the opposite parties showroom for purchase of clothes the relationship of consumer and service provider stood established.

Negligence:-

 8.  When the garments showrooms is a public place and when too many customers visit the place for the purpose of purchase of clothes, the opposite parties ought to have taken necessary preventive measures by keeping a partition and appropriate warning board to make the customers aware of the hole.  As per the pleadings of the complainant the hole is about 4 x 4 feet which could very well be the cause for a person to fell into it.  The opposite parties did not send any reply to the notice issued by the complainant and also did not appear before this commission and thus this commission holds that the opposite parties had failed to produce any evidence with regard to the safety measures taken by them. It is also the case of the complainant that the opposite parties did not provide immediate medical relief or assistance to the complainant when she fell into the hole and sustained injuries.  The medical records produced in proof of the same clearly establish that the complainant had suffered spinal injury for which various treatments including MRI LUMBAR SPINE, DORSO-LUMBARSPINE-AP VIEW AND DORSO-LUMBARSPINE – LAT VIEW were taken at huge cost.  Vide the Discharge Summary issued by K.M.SPECIALITY Hospital it is seen that the diagnosis made was D12 BURST FRACTURE and the procedure done was PROSTERIOR STABILIZATION DECOMPRESSION LAMINECTTOMY DONEUNDER ETGA.  The surgery was seen to have done on 05.08.2019.  In the said circumstances the allegation made by the complainant that the accident occurred due to non-maintenance of show room by the opposite parties clearly amounts to deficiency in service.  The damage caused to the complainant also could not be brought under the exclusion of an act of God as it was an accident caused due to negligence of opposite parties.

9. Our decision was supported by a decision rendered by State Consumer Disputes Redressal Commission, Chathiskar   2010 (4) CPJ 2019 wherein it has been held that the damage due to lack of maintenance will not be accounted to an act of God and that the customer entitled to be compensated. Thus we answer the point hold that the allegation as to negligence and deficiency in service against the opposite parties has been successfully proved by the complainant by sufficient evidence.

Point No.2:-

10. As we have held above that opposite parties are negligent while awarding compensation we have to consider the age of complainant at the time accident i.e. 36 years with two small kids and husband to take care.  It was also pleaded that she was doing a small scale clothes business in her locality. Though it is contended that the complainant had spent around Rs.12,00,000/- towards medical expenses there is no sufficient proof for the same.  Thus we award a comprehensive compensation including medical expenses a sum of Rs.7,00,000/- for the mental agony, hardship and monetary loss suffered by the complainant and also Rs.10,000/- towards litigation expenses.

In the result, the complaint is partly allowed against the opposite parties 1 & 2 directing them jointly and severally

a) To pay a sum of Rs.7,00,000/- (Rupees seven lakhs only) towards compensation for the mental agony and hardship caused to the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

c) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 6% will be levied on the said amount from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 05^th day of March 2024.

                Sd/-                                                           Sd/-                                                                  Sd/-                                                                    MEMBER-II                                        MEMBER-I                                                   PRESIDENT

List of document filed by the complainant:-

        Sd/-                                                            Sd/-                                                    Sd/-                                                                                                                                                                                                              

MEMBER-II                                              MEMBER-I                                      PRESIDENT