Haryana

Karnal

CC/254/2022

Vikas Goyal - Complainant(s)

Versus

Noor Mahal Hotel Management - Opp.Party(s)

Ashwani Kumar Popli

08 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No.254 of 2022

                                                        Date of instt.27.04.2022

                                                        Date of Decision:08.09.2023

 

1.     Vikas Goyal son of Shri Suresh Kumar,

2.     Neelam wife of Vikas Goyal, both residents of Arya Upnagar, Narwana, District Jind, (Haryana), India.

                                               …….Complainants

                                              Versus

 

1.     Noor Mahal Hotel Management Sector-32, Karnal, through its General Manager. 

2.     Bajaj Allianz General Insurance Company Limited, SCO 156, 158, 159, 2^nd Floor Sector-9, Chandigarh, vide insurance policy No.OG-22-3264-3301-00000001, valid from 29.05.2021 to 28.05.2022.

                                                                      …..Opposite parties

 

Complaint Under Section 35 of Consumer Protection Act, as amended up-to-date.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

Argued by: Shri Ashwani Kumar Popli, counsel for the

    complainants.

Shri G.P Singh and Satish Arora, counsels for the OP No.1.

                    Shri Atul Mittal, counsel for OP No.2.

 

                    (Jaswant Singh President)

 

ORDER:  

 

                The complainants have filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainants have two sons. Complainants are doing the business of chemical Export and Import. Son of complainant namely Hirdey Goyal, is very intelligent, smart and brilliant student of his class. On 17.07.2021 and 18.07.2021, the complainants alongwith his family members went to Noor Mahal Hotel, Karnal, to attend the ring ceremony and marriage of his uncle’s son namely Sahil. The complainant, their family members and relatives had taken the services of OP No.1 and paid an amount of Rs.8,00,000/- through bank account as booking amount. On 18.07.2021, at about 04:30 PM, the complainants went to take bath in the swimming pool of Noor Mahal Hotel of OP No.1 after obtaining prior consent of the staff/employees of the OP no.1. After few minutes, the complainants found his son missing and both the complainants searched Hirdey here and there and after some time, they was informed that their son Hirdey was drown in the swimming pool. They took his son to Amrit Dhara Hospital, Karal, where doctor declared Hirdey as dead. The postmortem was got conducted by the doctor of Civil Hospital, Karnal and cause of death was shown as “Due to drowning”.  An FIR No.387 dated 19.07.2021, U/s 304A IPC was got registered in Police Station Sector-32-33. The gross negligence is on the part of OP No.1 as it was the legal duty of the employees of OP No.1 to exercise due care towards the safety of the guests while using the Swimming Pool, which was only for the use of customers of the Hotel of OP No.1 but the OP No.1 and its employees breached their duties to take care guest and hence the OP No.1 is liable for the consequential damages as the complainants and all the persons present there were the guests of hotel run by OP No.1. Since, the facility of swimming pool was available for use of guests of hotel, there was a close and proximate prelateship between the management involving the maintenance of save condition in the pool and guests of the hotel of OP No.1 using the pool. A hotel which provides swimming pool for its guests owes a duty of care, but the OP No.1 failed to provide proper care and security near the swimming pool, which amounts to deficiency in service on the part of OP No.1. The duty of care arises from the fact that unless the pool is properly maintained and surprised by trained personnel, it is likely to become a potential source of hazard and danger. After some days of the accident, the complainants alongwith other respectable persons approached to the owner of hotel of the OP No.1 and its other managements employees and at that time, the owner of the hotel of the OP No.1 admitted that there was breach of duty of care as well as deficiency in service, on the part of employees of the OP No.1 and OP No.1 assured the complainants to compensate them for their breach of the duty, their rash and negligent act as well as deficiency in services. The OP No.1 also assured that they have obtained the policy of insurance of their hotel and the company will compensate/indemnity their loss which they will pay to the complainants. After investigation of the matter by the police, the complainants alongwith other respectable again approached the OP No.1 for the requisite and appropriate payment of compensation, but the OP No.1 started lingering on the matter on one pretext or the other and finally in the month of April, 2022, the OP No.1, refused to pay any amount of compensation. Hence, the present complaint. 

2.             On notice, OPs appeared and filed their separate written version. OP No.1 filed its written version raising preliminary objections regarding maintainability, jurisdiction, etc. On merits, it is submitted that the complainants are not the consumers of the OP as per Consumer Protection Act, 2019 as the complainants had not paid any amount to the OP No.1 for rendering any service to them.  The events for 17.07.2021 and 18.07.2021, were booked in advance on 21.06.2021 by Sahil Goyal and at that time, the policy of the hotel regarding group/social events, payment policy and schedule/ cancellation was duly discussed with Sahil Goyal and his family members and copy of the said policy was duly signed by Mr. Sahil Goyal and Amit Lathwal, Manager, on behalf of Hotel Noor, Mahal. As per clause 16 of the said policy, the events which are booked at “Jal Mahal” the host of the function/party/get-together can only use “Jal Mahal” and Pool Dec. Nobody can use the swimming pool without the prior written permission of the General Manager of Hotel Noor Mahal. The swimming pool at various intervals is closed for regular cleaning/ chlorinisation/covid/maintenance for operations from time to time. Guests should adhere to safety norms so displayed at pool side. It is of utmost importance to mention here that OP No.1 has taken all the precautions required for setting up the swimming pool and the rules for use of swimming pool are prominently displayed at various places. Life jackets and floating tubes are provided for using the swimming pool. Even a qualified life guard always remains present there. Beside this, it was also specifically mentioned that pool is not part of Jalmahal venue, separate prior written permission is required after filling the consent form for entering inside the pool from the management and in case of any mis-happening/ accident occurs in the pool area, the management will not held liable and all members/guests within pool are at own risk.  The Watch and Ward staff of the OP No.1 as well as Life Guard Pawan Kumar tried to persuade the complainant No.1 to get out of the pool and not to use the same. However, complainant No.1 did not listen to them and kept on splashing the water in the swimming pool. In his jest to enjoy, he did not ensure that his son should remain in the portion reserved for children, where the depth of the pool is very less and his son went into the deep water and got drowned. All these events happened in a quick succession and the son of the complainant got drowned in the water. The watch and Ward staff of the OP No.1 and life guard immediately pulled out the son of complainant from swimming pool and performed RCP upon him and tried to resuscitate him. Initially, the child responded and resuscitation and made some movements of hands. Immediately, the child was rushed to nearest hospital Amrit Dhara in emergency by the hotel staff in the hotel vehicles however, he was declared brought dead. Had the complainant No.1 obtained prior permission from the hotel management to use the swimming pool, proper security measures would have been provided to him and his son and the minor child would not have drowned in the water. Moreover, the complainant No.1 himself took a calculated risk of taking his son into deep water without taking any precautions. It is pertinent to mention here that it was prominently displayed besides the pool that the pool was closed, however, the complainant No.1 used the swimming pool without seeking any permission. It is pertinent to mention here that the complainants had got registered an FIR No.387 dated 19.07.2021, under Section 304A IPC, P.S. Sector-32-33, Karnal, against the management of Hotel Noor Mahal, Karnal, regarding drowning of their son. The matter was thoroughly investigated by the police and no negligence on the part of OP NO.1 was found in the occurrence of incident and as such, FIR was recommended for cancellation. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP No.2 filed its written version raising preliminary objections regarding maintainability, locus standi, cause of action, deficiency in service, jurisdiction, mis-joinder and non-joinder of necessary parties, barred by limitation, etc. On merits, it is submitted that the story put forward by the complainant is merely an afterthought just to get the compensation from this Commission and to extort money from the OP No.2. It is stated that policy is a legal contract between the policy holder and the insurance company and the parties to the said contract are bound by its terms and conditions. The terms of the policy are in nature of the contract and their interpretation has to be made in accordance with the strict construction of the contract. Thus, the words in an insurance contract must be given paramount importance and interpreted as expressed without any addition, deletion or substitution. The complainants are not entitled for any relief, because as per complainants, they are saying that Noor Mahal Hotel, have a Public Liability Insurance Policy. That all mention documents are very crucial to decide the admissibility of the claim, however, the same have not been provided by the complainant or the OP No.1. That it is the prerequisite for deciding any claim that the relevant documents are asked for on the basis of which the admissibility of the claim is decided. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel or the complainant has tendered into evidence affidavit of complainant No.1 Ex.CW1/A, affidavit of complainant No.2 Ex.CW2/A, affidavit of Vinit Goyal, one of the guest of the function Ex.CW3/A, copy of marriage card Ex.C1, copy of account statement Ex.C2, copy of FIR Ex.C3, copy of postmortem report Ex.C4, photographs Ex.C5 to Ex.C8, pen drive Ex.C9, copies of ITR acknowledgement Ex.C10 to Ex.C15, coy of Aadhar Card of complainant No.1 Ex.C16, copy of Aadhar Card of complainant No.2 Ex.C17, certificates of Hridya Goyal Ex.C18 to Ex.C22, certificate under Section 65B of Indian Evidence Act, Ex.C23 and Ex.C24 and closed the evidence on 21.03.2023 by suffering separate statement.

6.             On the other hand, learned counsel for the OP No.1 has tendered into evidence affidavit of Chander Shekhar, General Manager, Noor Mahal, Hotel Management Ex.OPW1/A, affidavit of Pawan Kumar as Ex.OPW2/B, copy of rooming list Ex.OP1, copy of extract of e-mail Ex.OP2, copy of sample rules and regulations for swimming pool Ex.OP3, copy of staff entry register Ex.OP4, copy of lifeguard certificate Ex.OP5, copy of guidelines for classification/re-classification of hotels Ex.OP6, pendrive Ex.OP7, certificate under Section 65B of Indian Evidence Act Ex.OP8, photographs of display board of instructions Ex.OP9, copy of insurance policy Ex.OP10 and closed the evidence on 27.07.2023 by suffering separate statement.

7.             Learned counsel for the OP No.2 has tendered into evidence affidavit of Saurav Khullar, Legal Manager, Bajaj Allianz General Insurance Company as Ex.OW2/A and copy of policy with agreement Ex.OP2/1 and the evidence of the OP No.2 was closed by court order dated 18.08.2023.

8.             In additional evidence, Shri Vijay Ahlmad, of the court of Shri Prateet Singh Dhonchak, learned Judicial Magistrate First Class was examined. In chief examination, he has tendered cancellation report Ex.OP11 (containing 1 to 141 pages) and in cross-examination, he has tendered attested copy of protest petition Ex.C25, copies of order Ex.C26 and Ex.27 passed by learned Judicial Magistrate First Class, Karnal.

9.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

10.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainants alongwith his family went to Noor Mahal Hotel, Karnal, to attend the ring ceremony and marriage of his uncle’s son namely Sahil. The complainant, their family members and relatives had paid an amount of Rs.8,00,000/- through bank account as booking amount. On 18.07.2021, at about 04:30 PM, the complainants alongwith his son Hirdey went to take bath in the swimming pool of Noor Mahal Hotel of OP No.1 after obtaining prior consent of the staff/employees of the OP no.1 and after some time, their son Hirdey had drown in the swimming pool. They took his son to Amritdhara Hospital, Karnal, where doctor declared Hirdey as dead. The postmortem was got conducted by the doctor of Civil Hospital, Karnal and cause of death was shown as “Due to drowning”.  An FIR No.387 dated 19.07.2021, U/s 304A IPC got registered in Police Station Sector-32-33 against the management of OP no.1 with regard to gross negligence is on their part. It was the legal duty of the employees of OP No.1 to exercise due care towards the safety of the guests while using the Swimming Pool and lastly prayed for allowing the complaint. Learned counsel for the complainants relied upon the case laws titled as The Managing Director, Kerala Tourism Development Corporation Limited Versus Deepti Singh and others, Civil Appeal No.3038 of 2015, DOD 15.03.2019, Shivajee Rao and others Versus Bangalore Mahanagara Palika and others, CC No.67 of 2009, DOD 02.12.2014, M/s Pyaridevi Chabiraj Steels Pvt. Ltd Versus National Insurance Company Limited and others CC No.833 of 2020, DOD 28.08.2020, Sharafat Khan and another Versus Northern Railway and another LPA 615/2019, DOD 26.05.2023.

11.           Per contra, learned counsels for the OP No.1, while reiterating the contents of written version, have vehemently argued that the complainants are not the consumers of the OP as per Consumer Protection Act, 2019 as the complainants had not paid any amount to the OP No.1 for rendering any service to them. At the time of booking, an agreement was duly signed by Mr. Sahil Goyal and Amit Lathwal, Manager, of the OP. They further argued that the events were booked at “Jal Mahal” the host of the function/party/get-together could only use “Jal Mahal” and Pool Dec. Nobody could use the swimming pool without the prior written permission of the OP. The guests must follow the safety norms so it was displayed at the pool side.. The pool is not part of Jalmahal venue. Separate prior written permission is required after filling the consent form for entering inside the pool from the management and in case if anyone enter in the poor without permission, in that case, if any, mis-happening/ accident occurs in the pool area, for that the management is not responsible. The complainant had not obtained the prior permission from the hotel management to use the swimming pool. They further argued that complainants got registered an FIR No.387 dated 19.07.2021, under Section 304A IPC, P.S. Sector-32-33, Karnal, against the management of Hotel Noor Mahal, Karnal, regarding drowning of their son. The matter was thoroughly investigated by the police and no negligence on the part of OP NO.1 was found in the occurrence of incident and as such, FIR was recommended for cancellation. They further argued that there was no negligence or deficiency in service on the part of the OP No.1, hence, prayed for dismissal of complaint with costs.  

12.           Learned counsel for the OP No.2, while reiterating the contents of written version, has vehemently argued that the story put forward by the complainant is merely an afterthought just to get the compensation from this Commission and to extort money from the OP No.2. The policy is a legal contract between the policy holder and the insurance company and the parties to the said contract are bound by its terms and conditions and lastly prayed for dismissal of complaint with costs.

13.           First question arises for consideration is that whether the complainants fall within the definition of “consumer” as per Consumer Protection Act, 2019 or not?

                The definition of Consumer as defined in Section 2 sub clause (7) of Consumer Protection Act, 2019, which is reproduced as under:-

(7)    Consumer means any person who:-

i)      buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

ii)        hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are available of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

14.           The onus to prove their version was relied upon the complainants but the complainants have miserably failed to prove the same by leading cogent and convincing evidence. Complainants relied upon the copy of bank account statement Ex.C2 with regard to making payment of Rs.6,00,000/- to the OP No.1 but the said account is not in the name of complainants rather it is in the name of one Vijay Goyal. Complainants have also failed to prove their relation with said Vijay Goyal. The complainants have also relied upon the marriage invitation card Ex.C1 but in the said marriage card, it is nowhere mentioned that complainants were invited in the marriage functions of Mr. Sahil. Complainants have also relied upon the photographs Ex.C5 to Ex.C8. No doubt, the said photographs are of pool but the complainants have not placed on file any receipt of making payment for using the pool, etc. With regard to the event, an agreement between Sahil and Manager Sales and Marketing of OP No.1 was executed on 21.06.2021 took place in the hotel of OP No.1. Mr. Sahil had provided a list of guests Ex.OP1 to the OP No.1, who would attend the function but in the said list the name of the complainants or their son have not been mentioned. The best witness to prove the version of the complainants was Sahil who had paid consideration to the OP No.1, but the complainants have neither examined Mr. Sahil nor tendered his affidavit in their evidence. Furthermore, the complainants were also not examined any of the guests mentioned in the list of guests Ex.OP1 to prove their version. It is doubtful that the complainants were invited by Mr.Sahil to attend his marriage functions and had paid any amount to the OP No.1. Hence, the complainants do not fall under the ambit of “Consumer” as defined under Section 2 sub section (7) of Consumer Protection Act, 2019.

15.           Now the next question arises for consideration is that whether the son of complainant died due to negligence and carelessness on the part of the OP No.1 or not?

16.           At the time of booking of hotel of OP No.1, the parties i.e. Sahil Goyal and Mr. Amit Lathwal, Manager Sales and Marketing for Hotel Noor Mahal, Karnal executed an agreement by mentioning several and terms and conditions and the relevant conditions i.e. condition No.16 is reproduced as under:-    

16.   In case of events at Jal Mahal are booked/taking place, the Host of the function/ Party/ get-together can only use Jal Mahal and Pool Deck only. Nobody can use the swimming pool without the prior written permission of the General Manager. The swimming pool at various intervals is closed for regular cleaning/ Chlorinisation/ Covid/ Maintenance for operations from time to time. Guest should adhere to safety norms so displayed at pool side

17.           As per the said agreement, Mr.Sahil Goyal had booked events for three days in the “Ball Room + Regal”, “Mischief+Dewane-E-Aam”, “Sheesh Mahal”, “Jal Mahal”, “Dera+Fateh Mahal”. As per condition No. 16 of the said agreement, the events which were booked at “Jal Mahal” the host of the function/ party/Get-together could only use “Jal Mahal” and Pool Deck” and could not use the swimming pool without prior written permission of the General Manager but the complainants before using the swimming pool did not obtain the  permission from the OP No.1. Moreover, the Dos and Don’t’s for swimming pool are displayed around the pool and whereon it has been specifically mentioned that no diving or jumping is allowed as it is a shallow pool. This fact has been proved by the OP No.1 by placing on record eleven photographs of the display board Ex.OP9. Furthermore, at the time of using swimming pool by the son of the complainants, the complainant No.1 was with him in the pool and this fact has not been denied by the complainants and also proved from the photographs Ex.C5 to Ex.C8. No one can be the best caretaker of a child except his parents. When the complainant No.1 was himself with his son and he did not care for his son then how can he blamed the staff of the OP No.1.

18.           Admittedly, the complainant No.1 had lodged a FIR No.387 dated 19.07.2021, under Section 304-A IPC against the management of OP No.1. The matter was thoroughly investigated upto the level of DSP but no negligence on the part of management of OP No.1 has been proved and finally police has filed cancellation report, in the Court of Shri Prateet Singh, learned JMIC, Karnal, vide cancellation report Ex.OP11. No doubt, complainant No.1 was not agree with the said report and he has filed the protest petition against the cancellation report which is pending adjudication before the Court of learned JMIC, Karnal but at this stage, the investigation conducted by the police cannot be ignored.

19.           In view of the above discussion, it has been proved on record that the complainants were neither the consumer of OP No.1 and nor  there was any negligence on the part of the OP no.1, hence, the present complaint devoid of any merit and same deserves to be dismissed.

20.           The case laws cited by the learned counsel for the complainants are not applicable to the facts and circumstances of the present complaint.

21.           Thus, as a sequel of above discussion, the present complaint is devoid of any merits and same deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:08.09.2023 

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

       

(Vineet Kaushik)             (Dr. Rekha Chaudhary)

                     Member                          Member