| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER Friday the 5th day of April 2024 CC.17/2005 Complainant C.K. Vinod Kumar, S/o Kumaran, Cherakunnummal house, P.O. Nanminda, Kozhikode. (By Adv. Sri.T.V. Sunil Kumar Basu) Opposite Parties - Simon, Managing Director, Kanchirapally Amusement Park and Hotels (Pvt) Ltd,
Athirapally Road, P.O. Pariyaram, Chalakudi -680 721. (By Adv. Sri. Ratheesh Kumar and Adv. Smt. M.T. Jalajarani for OP1) - National Insurance Co. (Pvt) Ltd,
Noor Complex, near Arayedath Palam, I.G. Road, Kozhikode. (By Adv. Sri. K.K. Radhakrishnan for OP 2) ORDER By Sri. P.C. PAULACHEN – PRESIDENT This is a complaint filed under Section 12 of the Consumer Protection Act, 1986. - This complaint was once disposed of by our learned predecessors - in - office as per order dated 03/04/2009 by returning the complaint for presentation before appropriate Forum on the ground of want of territorial jurisdiction. First Appeal No. 536/2010 preferred by the complainant before the
Hon’ble Kerala State Consumer Disputes Redressal Commission was allowed and the order of this Forum was set aside and the matter was remitted back to pronounce order on merits and if necessary, after hearing the parties afresh. This is how this complaint once again comes up for consideration before this Commission. - The case of the complainant, in brief, is as follows:
The complainant is doing business of grocery and stationery articles in Nanminda town and he is a member of the Kerala Vyapari Vyavasayi Ekopana Samithi. On 29/08/2004, the complainant along with the members of the said samithi, visited the amusement park run by the first opposite party by name ‘Dream World Water Park’, on payment of the fee. While the complainant was travelling in the ‘sky train’, which is one of the items of enjoyment in the amusement park, his right leg hit against an iron bar fixed, as a result of which, he sustained grievous injuries including fracture of shaft of femur (R). He was rushed to the nearby St. James Hospital, Chalakudy and from there he was referred to the Govt. Medical College Hospital, Kozhikode and was treated as an impatient till 12/09/2004. He underwent surgery on 03/09/2004. - The accident has occurred due to the unscientific nature of handling of the item ‘sky train’ and lack of security and safety measures in the ‘sky train’, on the part of the first opposite party. The complainant is totally bedridden and has permanent disability and he is not in a position to move without the help of others. The injury has resulted in crippling to his right leg. Though the complainant claimed compensation, the liability was denied by the first opposite party. The lawyer notice issued by the complainant to the first opposite party was replied with untenable contentions. The first opposite party is liable to compensate the complainant and in view of the indemnification of the liability, the second opposite party is also liable. Hence the complaint claiming compensation of Rs. 1,00,000/-.
- Subsequently, the complaint was amended enhancing the claim to Rs. 3,00,000/- vide order in IA No. 183/2005.
- The opposite parties have filed written version and additional written version denying all the allegations and claims made against them in the complaint.
- According to the first opposite party, this Commission lacks territorial jurisdiction to entertain the complaint. The accident is admitted, but the way in which the complainant met with the accident narrated by him is not believable. The allegation that the accident has occurred due to some mechanical defect in the arrangement of the sky train is not correct. Any sort of negligence on the part of the first opposite party is denied. The sky train is scientifically crafted and necessary safe guards are maintained even foreseeing any untoward incident. At the entry point itself, specific instructions were given to the passengers that they should not project or protrude any part of the body outside the cabin. In addition, it is visibly written in front of each bogie cautioning the passengers about the dangers that may occur if they behave contrary to the instructions. Had the instructions been complied with, the untoward incident could have been avoided. The alleged hitting of the iron bar on the leg of the complainant was the tragic result of the projecting the leg outside the bogie, for which, the first opposite party cannot be held liable. However, the first opposite party has provided all necessary medical assistance to the injured at their expense.
- The first opposite party is not aware of the fracture allegedly sustained to the complainant and the treatment in the Medical College Hospital, Kozhikode. The accident had occurred solely due to the negligence of the complainant. There was no deficiency of service on the part of the first opposite party and they are not liable to pay any compensation to the complainant. If at all any compensation is payable, the first opposite party is to be indemnified and the same has to be paid by the second opposite party insurer. With the above contentions, the first opposite party prays for dismissal of the complaint.
- The second opposite party, in their written version, has admitted the policy, but raised the contention of lack of territorial jurisdiction to entertain the complaint. According to the second opposite party, since the alleged accident occurred solely due to the negligence of none other than the complainant, the claim for compensation is not allowable. The allegation that the complainant has become disabled and is bedridden is false and hence denied. The complainant is not entitled to claim any compensation. With the above contentions, the second opposite party also prays for dismissal of the complaint.
- The points that arise for determination in this complaint are;
- Whether the complaint is maintainable?
- Whether the accident as alleged has occurred in the amusement park owned by the first opposite party?
- Whether the complainant sustained the injury as alleged in the accident?
- If so, whether the injury sustained by the complainant was the result of the lack of security and safety measures and negligence of the first opposite party, as alleged?
- Whether the claim for compensation is allowable? If so, what is the quantum and who is liable?
- Reliefs and costs.
- Evidence consists of oral evidence of PWs 1 and 2 and Exts A1 to A11 on the side of the complainant. RW1 was examined and Ext B1 series were marked on the side of the first opposite party. Ext B2 was marked on the side of the second opposite party. The disability certificate issued by the Medical Board, Medical College Hospital, Kozhikode was marked as Ext C1.
- PW1 is none other than the complainant and he has filed proof affidavit and deposed in terms of the averments in the complainant and in support of the claim. Ext A1 is the receipt issued by the first opposite party, Ext A2 is the registration card issued from St. James Hospital, Chalakudy, Ext A3 is the copy of the IP Book issued from the Medical College Hospital, Kozhikode, Ext A4 is the copy of the lawyer notice dated 25/10/2004, Ext A5 is the reply notice dated 12/11/2004, Ext A7 is the call letter dated 10/12/2004 issued by the University of Calicut, Ext A8 is the driving licence of the complainant, Ext A9 is the copy of the final report in crime No.945/2004 of city traffic station, Kozhikode, Ext A10 is the list of persons who participated in the tour programme issued by the president of KVVES, Nanminda and Ext A11 is the photo copy of the case record pertaining to the complainant in the Medical College Hospital, Kozhikode.
- PW2 is the president of KVVES, Nanminda and he has filed proof affidavit and deposed supporting the case of the complainant.
- RW1 is the manager of the first opposite party. RW1 has filed proof affidavit and deposed supporting and reiterating the contentions in the written version. Ext B1 series are the photographs including negatives of the ‘sky train’. Ext B2 is the copy of the policy with conditions.
- We heard both sides. Brief argument notes were also filed.
- Point No 1: The opposite parties have contended that the complaint is not maintainable before this Commission for want of territorial jurisdiction. The issue regarding jurisdiction had already been answered by our learned predecessors - in - office as per order dated 03/04/2009 holding that this Commission lacks territorial jurisdiction to entertain the complaint and accordingly the complaint was ordered to be returned to the complainant for presentation before proper forum. Aggrieved by the order, the complainant preferred First Appeal No. 536/2010 and Hon’ble Kerala State Consumer Disputes Redressal Commission as per judgement dated 11/04/2011 set aside the order allowing the appeal and the matter was remitted back to this Commission to pronounce the order on merits. So this point already stands answered and does not arise for consideration at all.
- Point 2: The complainant alleges that the accident has occurred on 29/08/2004 while travelling in the ‘sky train’ in the amusement park ‘Dream World Water Park’ run by the first opposite party. While in the box as PW1, the complainant has deposed that the incident occurred on 29/08/2004 while traveling in the ‘sky train’ and his right leg hit against an iron bar and he was taken to the nearby St. James Hospital, Chalakudy. PW2 has also given evidence in tune with PW1 regarding the accident. Ext A2 is the registration card issued from the St. James Hospital in the name of the complainant. Going by the written version of the first opposite party, it can be seen that they have admitted that the complainant had met with an accident while he along with his friends were enjoying a trip at the amusement park. The second opposite party has also not specifically disputed the accident. From the evidence of PWs 1 and 2 coupled with Ext A2 and the admission of the opposite parties, we have no hesitation to hold that the complainant has met with an accident while travelling in the ‘sky train’ in the amusement park run by the first opposite party. Point answered accordingly.
- Point No. 3: The case of the complainant is that he sustained fracture femur (R) in the accident. PW1 has given evidence that immediately after the accident he was rushed to the nearby St. James Hospital and from there he was referred to the Medical College Hospital, Kozhikode. Ext A3 is the copy of the IP Book and Ext A11 is the copy of the case record of the Medical College Hospital, Kozhikode. The above documents show that the complainant was admitted in the Medical College Hospital on 30/08/2004 and was discharged on 12/09/2004. He has sustained fracture femur M/3 (R). He underwent surgery on 03/09/2004. ORIF with K-nail done.
- The contention of the opposite parties is that the complainant did not sustain fracture femur (R) in the accident and the same might have been sustained in some other incident. In support of the contention, it was pointed out that nothing is produced from the St. James Hospital where he was treated first to show that he had sustained such a fracture. It is true that except for Ext A2 nothing is produced by the complainant to show as to what was the diagnosis of the doctor and the treatment in St. James Hospital. But the mere fact that the treatment records from the first hospital where the complainant was taken immediately after the accident is not forthcoming by itself is not a sufficient reason to discard or disbelieve Exts A3 and A11. It is not disputed that it was the right leg of the complainant that hit on the iron bar. There is absolutely nothing to indicate that in between discharge from the St. James Hospital, Chalakudy and the starting of treatment in the Govt. Medical College Hospital, Kozhikode, the complainant had met with any other accident or sustained fracture of the femur (R) in some other incident. Admittedly, the complainant hails from Kozhikode district and naturally he might have preferred treatment in a hospital in the home district. It is averred in the complaint that he was given only first aid in St. James Hospital and thereafter he was taken to the Medical College Hospital, Kozhikode. It is true that the alleged history stated in Ext A11 is fall and the place and time of fall is not stated therein. It is common knowledge that the alleged history is written by the doctor on the basis of the information gathered from the patient or the person accompanying the patient. The patient or the person bringing him may not state the minutest details to the doctor and the doctor also may not note the minutest details of the incident in the case record of the patient. Here PW1 has categorically deposed that he sustained fracture femur (R) in the accident while travelling in the ‘sky train’ in the amusement park. His testimony is supported and corroborated by PW2, who was leading the group. Even though PWs 1 and 2 were subjected to searching cross examination, nothing has been brought out to discredit their version. Their evidence that the complainant sustained the above injury while enjoying the ‘sky train’ in the amusement park stands unshaken in the cross examination. The testimony of PWs 1 and 2 coupled with Exts A2, A3 and A11 would prove that the complainant sustained fracture femur (R) in the accident while travelling in the ‘sky train’ in the amusement park run by the first opposite party. Point is answered in favour of the complainant.
- Point No. 4: The complainant has alleged that the accident has occurred due to the unscientific nature of handling of the ‘sky train’ and lack of security and safety measures in the ‘sky train’, on the part of the first opposite party. On the other hand, the opposite parties have alleged that the leg of the complainant hit on the bar due to his own negligence as he projected the leg outside the bogie and thus invited the accident.
- PW1 has categorically deposed before this Commission that while travelling in the ‘sky train’ there was sudden jerking, as the result of which, he fell towards right side and his right leg hit on an iron bar fixed. PW2, who was also accompanying him, has given evidence in the same line as to the cause of the accident. Even though PWs 1 and 2 were cross examined at length, noting has been brought out to discredit their version. There is absolutely no reason to disbelieve them. It has also come out in evidence that some other persons travelling in the ‘sky train’ also met with accident, though the injuries sustained by them by them were minor in nature. There is nothing to indicate that the complainant had been negligent or that he was travelling protruding his leg outside the bogie as alleged or that he has contributed to the accident in any manner.
- It is the bounden duty of the first opposite party to ensure safety of the persons travelling in the ‘sky train’ and other items of ride in the amusement park. The evidence in hand shows that the accident has occurred solely due to the unscientific nature of handling and lack of security and safety measures in the sky train. Gross negligence on the part of the first opposite party in the matter of ensuring the security and safety of the travellers in the ‘sky train’ is established and proved. The injury sustained by the complainant was the result of the negligence and gross deficiency of service of the first opposite party. Point is answered in favour of the complainant.
- Point No. 5 :- The complainant has alleged that he was a merchant engaged in the sale of grocery and stationery items in Nanminda town. PW1 has maintained that he was running a grocery-cum-stationery shop. PW2 also has given evidence that the complainant was doing the said business and was a member of Vyapari Vyavasayi Ekopana Samithi, Nanminda Unit. Thus the evidence of PWs 1 and 2 would prove that the complainant was running a grocery-cum-stationery shop at Nanminda at the time of the accident. But no evidence was let in to prove the extent of income derived therefrom. So we consider that a notional income at the rate of Rs. 4,500/- per month in the year 2004 can be reckoned for the purpose of determination of compensation in this case.
- Exts A3 and A11 show that the complainant has sustained fracture of femur M/3 (R). He was initially treated at St. James hospital, Chalakudy and then admitted and treated in the Medical College Hospital, Kozhikode from 30/08/2004 to 12/09/2004. ORIF with K-nail was done on 03/09/2004. Undoubtedly, the complainant had loss of earnings. Considering the gravity of the injury sustained and the duration of the hospitalisation and treatment, we consider it probable that the complainant was prevented from doing normal work for a period of 6 months and that Rs. 27,000/- (Rs. 4,500×6) will be reasonable compensation under this head. Equally, the complainant had to undergo pain and suffering. Considering the gravity of the injury sustained, the procedure in the hospital and the duration of the hospitalisation and treatment, we consider that Rs. 35,000/- will be reasonable compensation towards pain and suffering.
- The complainant has not produced any medical bills. Hence no amount is allowed towards medical expenses.
- On the application filed by the complainant as IA No. 230/2005, the complainant was referred to the Medical Board to assess the disability, if any. Ext C1 is the disability certificate issued by the Medical Board, Medical College Hospital, Kozhikode. The certificate is to the effect that the complainant has suffered permanent disability assessed at 16%. It is stated in the certificate that the complainant has sustained fracture femur with 2" shortening and restricted rom knee and restriction of flexion of right hip. The opposite parties have not filed any objection to Ext C1. Considering the nature and the gravity of the injury sustained by the complainant, we find no reason to discard or disbelieve Ext C1. Ext C1 can be relied on.
- Ext A11 shows that the complainant was aged 28 years at the time of the accident. We are of the view that the principles in the matter of determination of compensation for disability in Motor Accident Claim cases can be extended to the facts situation in this case also. The operative multiplier applicable to the age of 28 is 17. The compensation for permanent disability at 16% is assessed at Rs. 4,500×12×17×16/100 = 1,46,880. Thus on a consideration of the evidence let in, we find that a total sum of Rs. 2,08,880/- (Rs.27,000+ Rs. 35,000 + Rs. 1,46,880) will be just compensation in this case.
- The complaint was filed on 15/01/2005. We consider it just and proper that interest @ 9 % per annum on the amount of compensation is awarded from the date of the complaint till the date of realisation of the said sum. The complainant is also entitled to get Rs. 10,000/- as cost of the proceedings.
- We have already found under Point No. 4 that the accident has occurred due to the negligence and latches of the first opposite party. The second opposite party has admitted the insurance coverage at the time of the accident as per Ext B2 which covers the period from 07/08/2004 to 06/08/2005. The first opposite party is having the liability for the accident. As there is valid insurance coverage, the second opposite party is liable to indemnify the first opposite party. The compensation has to be paid by the second opposite party. Point found accordingly.
- Point No. 6 :- In the light of the finding on the above points, the complaint is disposed of as follows;
- CC.17/2005 is allowed in part.
- The second opposite party is hereby directed to pay a sum of Rs. 2,08,880/- (Rupees two lakh eight thousand eight hundred and eighty only) as compensation to the complainant with interest @ 9% per annum from the date of the complaint i.e. 15/01/2005 till actual payment.
- The second opposite party is directed to pay a sum of Rs. 10,000/- as cost of the proceedings to the complainant.
- The order shall be complied with within 30 days of the receipt of copy of this order.
Pronounced in open Commission on this, the 05th day of April, 2024. Date of Filing: 15/01/2005. Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER APPENDIX Exhibits for the Complainant : Ext A1 - Receipt issued by the first opposite party, Ext A2 - Registration card issued from St. James Hospital, Chalakudy. Ext A3 - Copy of the IP Book issued from the Medical College Hospital, Kozhikode. Ext A4 - Copy of the lawyer notice dated 25/10/2004. Ext A5 - Reply notice dated 12/11/2004. Ext A7 - Call letter dated 10/12/2004 issued by the University of Calicut. Ext A8 - Driving licence of the complainant. Ext A9 - Copy of the final report in crime No.945/2004 of city traffic station, Kozhikode. Ext A10- List of persons who participated in the tour programme issued by the president of KVVES, Nanminda. Ext A11 - Photo copy of the case record pertaining to the complainant in the Medical College Hospital, Kozhikode. Exhibits for the Opposite Party Ext B1 series - Photographs including negatives of the ‘sky train’. Ext B2 - Copy of the policy with conditions. Commission Exhibits Ext C1- The disability certificate issued by the Medical Board, Medical College Hospital, Kozhikode Witnesses for the Complainant PW1 - C.K. Vinod Kumar (Complainant) PW2 – M.K. Gangadharan (President of KVVES) Witnesses for the opposite party RW1 – Rajeesh Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER True Copy, Sd/- Assistant Registrar. | |
