Judgment : Dt.3.8.2017

            This is a complaint made by Sri Bimal Das, son of Late Susilkumar Das, residing  at premise No.199, Jodhpur Gardens, P.O.-Lake Gardens, P.S.-Lake, Kolkata-700 045 against – (1) Sri Subrata Sen, son of Late Bhandul Chandra Sen, owner of M/s New Kalpana Mistanna Bhandar, situated at premises No.162/C/408, Lake Gardens, P.S.-Lake, P.O.- Lake Gardens, Kolkata-700 045, OP No.1 and (2) Sri Gopal Sen son of Late Bhandul Chandra Sen, owner of M/s New Kalpana Mistanna Bhandar, situated at premises No.162/C/408, Lake Gardens, P.S.-Lake, P.O.- Lake Gardens, Kolkata-700 045, OP No.2, praying for direction upon the OPs to pay Rs.1,20,698/- towards the medical expenses already incurred by the Complainant to the Complainant, and a direction upon the OP to pay Rs.5,00,000/- for the harassment, mental agony and Rs.3,60,000/- towards continuing medical expenditure for the tenure of 120 months and to pay litigation cost.

            Facts in brief are that Complainant is residing at 199, Jodhpur Gardens, P.O. – Lake Gardens, P.S.- Lake, Kolkata-700 045. OP No.1 & 2 are the owners of one sweet shop room namely M/s New Kalpana Mistanna Bhandar situated and lying at premises No.162/C/408, Lake Gardens, P.S.-Lake, P.O.- Lake Gardens, Kolkata-700 045. Complainant used to purchase sweet from the OP. On 4.6.2014 Complainant was engaged in official duty and his relatives including sister-in-law and her children visited the house of the Complainant and went to the shop room accompanying with the children Vasundara Das aged about 9 years at about 12 p.m. in noon. Complainant’s relative purchased sweets and paid the price and while the minor female child Vasundhara Das opened the glass door, the glasses in two pieces fell down at the left leg of the minor child and she sustained gravious injury as the power portion of her left leg and about eleven to twelve inches cut injury was suffered by the minor child.She was taken to Aurobinda Seva Kendra for her proper treatment. But, OPs did not render any assistance to the said cause. Complainant has further stated that as soon as he came to know that intimated his boss and took leave immediately and rushed to Aurobinda Seva Kendra. On preliminary enquiry doctor at the Aurobinda Seva Kendra that surgery is required and thereafter surgery of the left leg was done. Minor child had 82 stitches in her left leg. Complainant stated that he spent Rs.1,20,698/-. Complainant has further stated that OPs did not take care of the injuries suffered by the minor child. Complainant lodged an FIR bearing No.304/2014 and a charge sheet was submitted against the OPs under Section 338, 114 of IPC. So, Complainant filed this case.

            OPs filed written version and denied all the allegations of the complaint. Further, OPs have stated that since there was no allegation against the quality of sweets or the services rendered by the OP. Complainant does not become consumer. The injury suffered by the minor child is the result of an accident and due to the fact that the minor child was not of a naughty temperament. Further, OPs have denied all the allegations and have stated that they were ready to help the family members. But, now one FIR has been lodged. So, they did not help. Further, OPs have stated that Complainant is not a consumer. Complainant suppressed true facts. Since there was no fault on the part of the OPs they have prayed for dismissal of the complaint.

Decision with reasons

            Complainant filed affidavit-in-chief and has reiterated the facts mentioned in the complaint. Against this OPs have filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OPs filed affidavit-in-chief to which Complainant filed questionnaire and OPs filed affidavit-in-reply.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            There is no dispute that Complainant is a closed relation of the minor child who suffered injury. It is also not disputed that the sister-in-law of the Complainant went to purchase sweets with her minor child. OPs have admitted that on the relevant date at the relevant point of time an incident took place which was accidental in nature. They have also admitted that they intended to help the Complainant’s family. But since an FIR was lodged they backed out. So, it is clear that there is no dispute about the occurrence.

            OPs have taken a plea that Complainant is not a consumer because there was no deficiency in respect of either quality or quantity of the sweets which OPs used to sell. We are afraid to accept such an                 case the shop keeper has a liability/responsibility to take of the customer who visited the shop for purchasing any article whatsoever. In the present case admittedly the sister-in-law of the Complainant went to the OPs shop room for purchasing sweets with her minor child and due to the minor child’s either touch or pressing by hand to the door of the OP’s shop room the glass fell down on the leg of the minor child and there were cut injuries so suffered by the minor child. As such, we are of the view the incident appears to be admitted. Complainant has claimed expenditure of Rs.1,20,698/-. Now, it has to be seen whether this much amount Complainant invested in the treatment of the minor child. On perusal of the documents filed on behalf of the Complainant, it appears that Complainant has filed only Xerox copies of the documents out of which some documents are Xerox copies of OPD tickets, some are Xerox copies of receipts of medicines purchased and some are related to the treatment of the minor child at different places. However, it appears that minor child had suffered injury for which she underwent treatment and she also underwent some grafting of the skin. Since no document is forthcoming for establishing the claim of the Complainant, we are of the view that the claim made by the Complainant to the tune of Rs.1,20,698/- could not be ascertained and in absence of the original bills and documents. But it is clear that minor child suffered injury for which she underwent rigorous treatment.

            As such, she is entitled to some compensation. It appears that Complainant has prayed for Rs.5,00,000/- as compensation and which is on excessive side. Further, Complainant has prayed for another Rs.3,60,000/- towards continuing medical expenditure. But no original documents of continuing medical treatment is filed. So, this relief also cannot be granted.

            Considering the facts and circumstances and the admission about the incident Complainant is entitled to compensation of Rs.20,000/- and litigation cost of Rs.10,000/-.

            Hence,

ordered

            CC/421/2016 and the same is allowed in part. OPs are directed to pay Rs.30,000/- within two months of this order, in default the amount shall carry interest of 10% p.a. The amount shall be paid in the name of Vasundhara Das through account payee cheque.