Tamil Nadu

North Chennai

139/2012

B.Mutheeswaran, - Complainant(s)

Versus

M/s.Hotel Ganesh, rep. by proprietor maheswaran, - Opp.Party(s)

A.Mohan

15 Apr 2016

ORDER

 

                                                              Complaint presented on  :  01.06.2012

                                                                     Order pronounced on  15.04.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

 

FRIDAY THE  15^TH   DAY OF APRIL 2016

 

C.C.NO.139/2012

 

1.Mr. B.Mutheeswaran,

S/O Balasubramanian,

No.2/129, R.S.Madai – Post,

Ramanathapuram  Dist.,

 

2.Mr.K.Balasubramanian,

S/o. Kayambu Thever,

No.2/129 A, M.S.K. Nagar,

R.S. Madai – Post,

Ramanathapuram  Dist.,                  (Impleaded as 2^nd Complainant  as per the  

                                                             Ordered of this Hon’ble Forum in

                                                         CMP No. 37/2013 dated 03.04.2013)

 

                                                                                        ..... Complainants

..Vs..

1.M/S Hotel Ganesh,

Rep by its Prop.Mr.Maheswaran,

No.19, EVR Periyar High Road,

Opp. Vaishnava College,

Arumbakkam, Chennai – 106.

 

2.Mr.Maheswaran,

Proprietor/ S. Hotel Genesh,

No.19, EVR Periyar High Road,

Opp. Vaishnava College,

Arumbakkam, Chennai – 106.

 

 

3.Mr. Surya,

Manager, M/S Hotel Ganesh,

No.19, EVR Periyar High Road,

Opp. Vaishnava College,

Arumbakkam, Chennai – 106.

 

 

...Opposite Parties

Date of complaint                                   : 25.06.2012

Counsel for Complainant                       : M/S. A.Mohan

Counsel for Opposite parties                    : M/S. A.M.Packianathan Easter

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1. THE COMPLAINT IN BRIEF:

          The 1^st Complainant is the son of the second Complainant. The 2^nd Opposite Party is the proprietor of the 1^st Opposite Party/Hotel and the 3^rd Opposite Party is the Manager of the 1^st  & 2^nd  Opposite Party. The 2^nd Complainant was suffering from Diabetes Mellitus for more than 10 years and a chronic kidney disease surviving more than 5 years with the maintenance of Haemodialysis. To undergo kidney transplantation at M.R. Hospital, Chennai the 2^nd Complainant was accompanied by the 1^st Complainant came and stayed at 1^st Opposite Party hotel on 14.07.2011 at about 9.00 a.m . The 3^rd Opposite Party collected a sum of Rs.1000/- towards advance and allotted room no.126 at the 1^st Opposite Party lodge. After checking, the 2^nd Complainant visited a nearby shop   and to return to his room he was waiting for the lift, since he found difficult to climb the stairs.  The 3^rd Opposite Party also informed him that none was available to operate the lift  and  he can himself  operate on his own.  When the lift opened, the 2^nd Complainant stepped inside the lift, he fell down since the lift car fitted with a platform was not there and on hearing the screaming noise of the 2^nd Complainant, the 1^st Complainant   has gone down and rescued him with assistance of others. The lift was fitted with a collapsible gate which is prohibited by the Tamil Nadu Lift Act, 1997. No lift operator was employed by the Opposite Parties to operate the lift.  Immediately the 2^nd Complainant was admitted to a nearby Appasami Hospital and after giving first aid he was advised to admit him at M.R. Hospital and in the M.R. Hospital after giving some treatment they also advised to admit him at Shri Ramachandra Medical College Hospital, Porur and accordingly he was admitted there on the same day.  The 1^st Complainant lodged a Complaint with  the K8, Arumbakkam Police Station on the same day at 19 hours and a case in Crime No. 848/2011 for offences under section 287 and 337 IPC was registered. The 1^st Complainant also lodged Complaint on 28.07.2011 to the Electrical Inspector, Chennai South Division, Guindy for a improper maintenance and operation in the 1^st Opposite Party hotel. The 1^st Opposite Party without license and improper maintenance using the lift are in violation of rules. Due to the negligent act of the Opposite Parties the Complainant suffered with fracture and other injuries and was treated at various hospitals as in patient and also post follow up treatment taken at Ramanathapuram. The 2^nd Complainant undergone a surgery on 18.07.2011  at Sri Ramachandra Medical College Hospital “Open Reduction and Internal Fixation with Condylar Screw of Right Hip”  and discharged on 02.08.2011. He also took

treatment as in patient at Ramanathapuram from 03.08.2011 to 22.08.2011.The Complainants spent medical expenses as per the bills filed in the documents. The Complainant also suffered with mental agony. Therefore the Complainant filed this Complaint for medical expenses and for compensation for mental agony claiming a sum of Rs.19,00,000/- with costs.

2.WRITTEN VERSION OF THE  OPPOSITE PARTIES IN BRIEF:

           The 1^st Complainant has no locus standi to file this Complaint, since he is not an injured. The single room was allotted only to the 1^st Complainant as per the bill issued to him and not for the 2^nd Complainant. Therefore the 2^nd Complainant can be considered only as a gratuitous visitor and entered in the 1^st Opposite Party premises only at his risk. Further the 2^nd Complainant entered the premises in an intoxicated condition. Therefore the 2^nd Complainant cannot be considered as a Consumer. Since the injured was in a drunken condition to avoid the police, he preferred Complaint only at 7.00 p.m, even though the alleged incident took place at 9.00 a.m. Right from the incident the 1^st Complainant was demanding ransom from the Opposite Parties and such a demand was not heeded,  the 1^st Complainant preferred Complaint to the police and registered an FIR.  The 1^st Opposite Party is not a lodge house, but a guest house and further the lift was erected before 1997 and therefore lifts rules 1997 is not applicable. The sole intention of the Complainant only to exhort money from the Opposite Parties. As such the Opposite Parties have not committed any Deficiency in Service and prays to dismiss the Complaint.

 

 

 

3.POINTS FOR CONSIDERATION:

          1. Whether the Complainants are Consumers?

          2. Whether there is deficiency in service on the part of the opposite parties?      3. Whether the complainants are entitled to any relief? If so to what relief?

4.POINT:1

          It is an admitted fact that the 1^st Opposite Party hotel having lodging facility  and the  1^st Complainant booked a  room with the 1^st Opposite Party for stay on 14.07.2011 and paid a sum of Rs.1,000/-  and Ex.A1 advanced receipt issued for the same and the 2^nd Complainant who is the father of the 1^st Complainant  who attempted to board the lift on 14.07.2011 at  9.00 a.m  and at that time he fell down in the lift well and sustained fracture and immediately he was admitted in a nearby Appasami Hospital  and took first aid and thereafter   he was admitted at M.R. Hospital and undergone some treatment and again on the advice of M.R.Hospital and on the same day he was admitted  at Sri Ramachandra Medical College Hospital  where he undergone  surgery  for open reduction and internal fixation of right hip and was discharged on 02.08.2011.  

          5. The 2nd Complainant came to Chennai with his son (1^st Complainant) for kidney transplantation at M.R. Hospital, Aminjikarai Chennai and for that purpose they stayed in the 1^st Opposite Party lodge at Room No.126.  The Opposite Parties admits that the 1^st Opposite Party hotel is having lift facility. The Opposite Parties contended that the single room was booked by the 1^st Complainant only for his stay and at the time of booking his father has not come and since the room is booked only for the 1^st Complainant, the 2^nd Complainant can be considered only as a gratuitous visitor and therefore the Complaint filed by the 1^st Complainant is not maintainable and the 2^nd Complainant cannot be considered as a Consumer.

6. Initially the Complaint was filed by the 1^st Complainant and after objection raised by the Opposite Parties the 2^nd Complainant was included on 03.04.2013 by way of amendment.  The 1^st Complainant booked the room for the stay of himself and his father.  The fact of 2^nd Complainant came for kidney transplantation at M.R. Hospital was not disputed by the Opposite Parties. It is the normal practice; the room will be booked only in the name of one person even though more than one stayed in the room.  The second Complainant while entering the lift he sustained injuries has not been disputed by the Opposite Parties.  The Opposite Parties argued that the lift services are not offered to the Complainant as per Ex.A1 page 2 and the facility mentioned only in  page 2 alone available for the inmates staying in the hotel and lift services not mentioned in the facilities. If the lift service is not meant for the inmates of the hotel then to whom alone the lift can be used should have been displayed in front of the lift. No such display was made by the Opposite Parties. Further it is common that lift is used for both the inmates of the lodge and also for the other persons of the lodge. Hence the lift available in the 1^st Opposite Party is for the use of the inmates of the lodge also.   Therefore both the Complainants stayed in the 1^st Opposite Party hotel room on payment consideration under Ex.A1 and therefore, it is held that both the Complainants are Consumers and the Complaint against the Opposite Parties is maintainable.

7. POINT:2

          The Complainant contended that due to poor maintenance of the lift, the 2^nd Complainant fell in the lift pit and sustained injuries and further the lift is being used by the Opposite Parties without proper license and therefore the Opposite Parties have committed Deficiency in Service.

          8. According to the Complainants Ex.B2 & B3 were cooked up for the purpose of the case and no Ex.B2 was displayed near the lift.  On the Complaint of the 1^st Complainant Ex.A5, FIR has been registered by the Arumbakkam Police. The 1^st Complainant also lodged Ex.A7 Complaint to the Electrical Inspector Guindy, Chennai -32 and the said Electrical Inspector after inspecting the 1^st Opposite Party lift gave Ex.A10 reply to the 1^st Complainant. In Ex.A10 the Electrical Inspector referred the following violations.

i. The Proprietor of the M/S Hotel Genesh & Lodge (Ganesh Guest House), No-19, EVR Periyar  High Road, Arumbakkam, Chennai – 600 106 has not obtained license ever since the Tamil Nadu Lift Rules 1997 was enacted.

ii. The Lift has been put into Public use without a valid license as required under Rule 4 of Tamil Nadu Lift Rules 1997.

iii. The Periodical Maintenance of the passenger lift has not been carried out either by the manufacture of the lift or by the approved Company of electro mechanical engineers approved by the Inspector as required under Rule 7(4) of Tamil Nadu Lift Rules 1997.

iv. The Lift Insurance Policy for the persons using the lift has not been taken by the owner of the lift as required under Rule 4(d) of the Tamil Nadu Lift Rules 1997.

v. Collapsible gates provided for landing doors and car door are not yet replaced which is not permissible as per Bureau of Indian Standards. 

As per the above violations, the Opposite Parties have not obtained license as per Tamil Nadu Lift Rules 1997. Further the Electrical Inspector categorically stated that the lift was put into   public use without a valid license and periodically maintenance has not been carried out and life insurance policy for the persons using the lift has not been taken and collapsible gates have to be replaced. The 1^st Opposite Party wrote Ex.B7 explanation to the Electrical Inspector wherein he has admitted that he failed to obtain license in form H as per rules, 1997 for which he regret and also seek  apology for not giving notice about the accident. Therefore the above report of the Electrical Inspector clearly establishes the violations committed by the Opposite Parties in using the lift in the 1^st Opposite Party is a clear case of deficiency.

          9. The Opposite Parties replied that  there was a display in front of the lift “Power Cut – No Lift “ inspite of that the 2^nd Complainant entered the lift and sustained injuries and therefore Opposite Parties have not committed any Deficiency in Service. The 1st Opposite Party categorically admitted in Ex.B7 reply that he had not given notice of the accident to the Electrical Inspector and for such violations he seeks apology and to stop further proceeding before him. If really Ex.B2 displayed before the lift, he would have taken a photograph and filed the same. No proof filed for giving Ex.B3 to the Arumbakkam Police. Therefore in the circumstances, it cannot be accepted that Ex.B2 & B3 are already in existence and they might have been created by the Opposite Parties for the purpose of the case as contended by the Complainant.  Therefore from the forgoing discussions we hold that the Opposite Parties 1 to 3 have committed Deficiency in Service.

 

 

10.POINT:3

       The 2^nd Complainant sustained grievous injuries in the incident and the same was evidenced in Ex.A8 wound certificate. For such injuries the Complainant was initial by admitted at Appasami Hospital then at M.R.Hospital and then admitted at Sri Ramachandra Medical College Hospital and  a surgery was conducted  and thereafter for follow up treatment again he was admitted at Ganagamani Hospital Ramanathapuram and treated as inpatient for 19 days as per Ex.A12. Since the 2^nd Complainant undergone surgery and had sufferings due to grievous injuries, the Complainants suffered with mental agony is acceptable and for such mental agony they are entitled for compensation. The Complainant spent for medicines at Appaswami Hospital for a sum of Rs.46.35/- paisa, and a sum of Rs.3,674/- as per Ex.A3 at M.R. Hospital and a sum of Rs.2,32,188/- as per Ex.A6 at Sri Ramachandra Hospital totaling to a sum of Rs.2,35,909.28/- rounded to 2,35,909/-. Therefore the Complainants are entitled for an amount of Rs.2,35,909/- towards incurring expenses for treatment and medicines at Appaswami Hospital, M.R.Hospital and Sri Ramachandra Hospital.

11.The Complainant filed Ex.A12 certificate issued by the Ramanathapuram Doctor for the follow up treatment and he was an inpatient for 19 days from 03.08.2011 to 22.08.2011. This treatment also includes Haemodialysis. The Kanagamani Hospital issued statement incurring for an expenses of Rs.34,263.50/- towards medicines, X-ray, Lab and Dialysis and another bill Ex.A14 for Rs.63,500/- issued by AASI  clinic for treatment. The details of bills was not filed. The discharge summary for both the hospital was not filed to ascertain to know whether the treatment was given for the injury sustained at Opposite Parties place. Since no discharge summary filed and no other acceptable evidence is available that the treatment given at Ramanathapuram for injuries sustained at the Opposite Parties place the amount mentioned in Ex.A12 and A14 are not entitled to the Complainants.

12.  The Complainants claimed transportation charges of Rs.57,250/-  and a sum of Rs.78,459/- towards boarding and lodging.  For transportation he filed Nandhini Travels Trip Sheets 13 in numbers. In all the trips sheets the place of travel i.e starting place and destination have not been mentioned. Further more than 7 to 8 hours the vehicle was travelled. There is no pleading in the Complaint the purpose for which the vehicle was engaged and from which place to where they have travelled have not been pleaded. The 2^nd Complainant under gone surgery in the hospital and naturally, the son  of the 1^st Complainant is expected to be only with him in the hospital therefore the above mentioned trips sheet cannot be accepted  and on that score the Complainants are not entitled for transportation charges.

13. The Complainant filed Mallika Residency Bill for boarding and lodging for the period 15.07.2011 to 02.08.2011 situated at Mount Road, Chennai – 2 . The incident took place on 14.07.2011 and on the same the injured, the 2^nd Complainant was admitted at Ramachandra Medical College Hospital and surgery was conducted on 18.07.2011 and discharged on 02.08.2011.  Absolutely there is no pleading in the Complaint that for that period for whose stay the room was taken at Mallika Residency. Further from the said lodge the Sri.Ramachandra Hospital located faraway.  During the above said period admittedly the 1^st Complainant was undergoing treatment at Sri.Ramachandra Hospital. The 1^st Complainant should have been also along with the 2^nd Complainant injured. Therefore in the circumstances the claim for Rs.78,459/- is not a bonafide claim and the same is rejected.

14. The Complainants claimed a sum of Rs.5,00,000/- towards loss of business and income for them. Absolutely there is no pleading in the Complaint that the kind of business which was carried on by the Complainants. It is simply stated in the Complaint that father being a business man has incurred a huge loss every day. Without disclosing fathers business in the pleading, it cannot be accepted that the father was doing business and incurred loss. So also the 1^st Complainant business also not stated in the Complainant. Therefore on account of loss of business and income the Complainants are not entitled for any amount.

15. The 2^nd Complainant admitted case is that he was suffering from Diabetes Mellitus and he came to Chennai for Kidney Transplantation. Ex.A17 series bills issued by the M.R.Hospital for dialysis and urine analysis etc. Therefore the treatment given under Ex. A17 series bills has no relevance for this case and the amount incurred therein are not entitled by the Complainants. The injured father is suffering with diabetes and when such person sustained fracture the suffering would be more. Therefore it would be appropriate to order a sum of Rs.1,00,000/- towards compensation for mental agony, besides a sum of Rs.5000/- towards litigation expenses and as indicated above the Complainants are entitled for relief.

In the result the Complaint is partly allowed. The Opposite Parties  1 to 3  jointly or severally ordered to pay a sum of Rs.2,35,909/-(Rupees two lakhs thirty five thousand nine hundred and nine only) towards medical expenses  to the Complainant  and also to pay a sum of Rs.1,00,000/-(Rupees one lakh only) towards compensation for mental agony, besides a sum of Rs.5,000/-  (Rupees five thousand only) towards litigation expenses. The above amount shall be paid to the Complainants within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 15^th   day of April 2016.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 14.07.2011	Advance receipt issued by the 1st Opposite Party
Ex.A2 dated 14.07.2011	Medical Bills and other documents for the treatment taken at Appasamy Hospital
Ex.A3 dated 14.07.2011	Medical Bills & other documents for the treatment taken at M.R.Hospital
Ex.A4 dated 14.07.2011	Reference Letter issued by the M.R. Hospital recommending for treatment at Ramachandra Medical College Hospital
Ex.A5 dated 14.07.2011	F.I.R. & Crime No.848/2011 U/S 287, 337 I.P.C on the file of the Inspector of Police, K-8, Arumbakkam Police Station
Ex.A6 dated 14.07.2011       To 02.08.2011	Medical Bills, Discharge Summary and other documents for the treatment taken at Sri Ramachandra Medical College Hospital, Chennai.
Ex.A7 dated 28.07.2011	Complaint lodged by the Complainant  with the Electrical Inspector, Guindy, Chennai – 600 032.
Ex.A8 dated  02.08.2011	Wound Certificate issued by Sri Ramachandra Hospital
Ex.A9 dated 15.07.2011     To 02.08.2011	Receipts for the expenses incurred for Transportation (Nandhini Travels) and Boarding Lodging (Mallika Residency)
Ex.A10 dated 10.08.2011	Findings of Electrical Inspector, Chennai South Division, Guindy, Chennai – 600 032 in Letter No.2057/EI/CHN(S)?LIFT?2011 dated 10.08.2011 addressed to the Complainant
Ex.A11 dated 16.08.2011	Advance Receipt issued to one Periyasamy of Cuddalore by the 1st Opposite Party in the changed name of Ganesh Gust House
Ex.A12 dated 22.08.2011	Medical Certificate and Medical Summary issued by Kanagamani Hospital, Ramanathapuram.
Ex.A13 dated 08.09.2011	Information furnished under the RTI Act by the Public Information Officer/Addl City Health Officer, Public Health Department. Corporation of Chennai.
Ex.A14 dated 03.01.2012	Bill Summary for expenses at AASI Clinic
Ex.A15 dated 09.02.2012	Legal Notice issued by the Complainant to the Opposite Parties
Ex.A16 dated 23.02.2012	Reply Notice issued by the Opposite Parties
Ex.A17 dated 13.04.2012     To 04.05.2012	Bill Summary at MR Hospital

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTIES:

Ex.B1 dated 05.05.1999	Certificate of Registration
Ex.B2 dated NIL	Notice Board
Ex.B3 dated 14.07.2011	Letter to Inspector of Police, K8 Police Station
Ex.B4 dated 14.07.2011	Letter to Electrical Inspector and Lift Inspector
Ex.B5 dated 09.08.2011	Notice from Electrical Inspectorate
Ex.B6 dated 20.08.2011	Reply to Electrical Inspectorate
Ex.B7 dated 27.08.2011	Reply to Electrical Inspectorate
Ex.B8 dated 23.02.2012	Reply to Legal notice
Ex.B9 dated 28.06.2012	Paper cutting of Dhinathanthi

 

 

MEMBER – II                                                               PRESIDENT