Punjab

StateCommission

CC/12/12

Rajni - Complainant(s)

Versus

Sutlej Fun Resorts Ltd. - Opp.Party(s)

Sanjeev Singh

26 May 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.12 of 2012

 

 

                                                          Date of Institution: 13.02.2012  

                                                          Date of Decision :  26.05.2016

 

1.       Smt. Rajni, w/o Late Sh. Vikas S/o Nirdosh Singh, Permanent    Resident of Village Nangla Bhatona, Post Karoli Bangar, P.S Rabu         Pura, District Gautam Budh Nagar, Uttar Pradesh.

 

2.       Smt. Jaina w/o Sh. Nirdosh Singh, Permanent Resident of Village        Nangla Bhatona, Post Karoli Bangar, P.S Rabu Pura, District          Gautam Budh Nagar, Uttar Pradesh.

 

3.       Master Umang (Through his mother & natural guardian Smt. Rajni),  S/o Late Sh. Vikas s/o Nirdosh Singh, Permanent resident of           Village Nangla Bhatona, Post Karoli Bangar, P.S Rabu Pura, District Gautam Budh Nagar, Uttar Pradesh.

 

                                                                                                                                                      …..Complainants

                                                Versus                  

 

1.       M/s Sutlej Fun Resorts Limited (Though it's Manager  Director/Director), Hardy's World Amusement Park Water City,    Ludhiana            Jalandhar G.T Road, Ludhiana, Punjab.

 

2.       Mr. Rakesh Chabra, C/o Hardy's World Amusement Park Water  City Owned by Sutlej Fun Resorts Limited Ludhiana Jalandhar               G.T  Road, Ludhiana, Punjab.

 

3.       Reliance General Insurance Copy Limited, Having its office at 7th        Floor, Surya Tower, 108, Mall Road, Ludhiana Punjab                   141001.

 

 

                                                                                                                                                         ….Opposite Parties

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

               Shri J.S Gill, Member.

Present:-

          For the complainant                   :  Sh. Vishwajit Bedi, Advocate

          For opposite parties no.1&2       :  Ex-parte

          For opposite party no.3              :  Sh.R.S Joshi, Advocate

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The complainants, being legal representatives of Vikas (since deceased), have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs. The brief facts of the case of the complainant are that OP no.1 is limited company duly incorporated under the Companies Act, 1956 and is an amusement water park. OP no.2 is owner/Managing Director of Sutlej Fun Resorts Limited, who operates M/s Hardy's World Amusement Park Water City situated at Ludhiana Jalandhar G.T Road Ludhiana Punjab. OP no.2 is in charge and hence responsible for the business and affairs of the water park being run by OP no.1. OP No.2 and other Directors of OP no.1 have not taken any safety measures, as per the standards to ensure the safety to the customer/visitors, who visit and use waterslides, water pools and other water sports at the above amusement water park. Huge amounts were charged by OP no.1 and 2 from the customers as entry charges in the amusement park. OPs no.1 and 2 failed to provide the safety and security measures, which attributes to acting with all knowledge that the customers/visitors, who shall be using waterslides, water pools etc., are likely to suffer injuries since the waterslides, water pools etc, have not been built in accordance with the requisite standards and as such are highly insecure and have been causing serious grievous injuries to various customers/visitors. Vikas  (since deceased) accompanied by complainant and his cousin Dr. Prashant Singh, his wife and brother, while returning from Amritsar on 08.05.2009 at about 1.00 PM had visited OP no.1's amusement water park namely Hardy's Word Amusement Park Water City, Ludhiana Jalandhar G.T Road, Ludhiana. After paying the entry fee/charges, they entered and used the waterslides. No safeguards or security personnels were present to help and assist the customers/visitors thereat in case of any hazard. There was no guides or instructors to advise and guide the customers/visitors to instruct them as to how to take ride on the waterslides. OPs no.1 and 2 were not interested in any manner in safety and security of the customers. While sliding down from a water slide, the husband of the complainant no.1 namely Vikas received a serious backbone injury followed by paralytic attack immediately and his entire body stopped moving. Dr.Parshant noticed his body floating in the water without moving hands or legs. He called out for help, but none of the employees of OPs no.1 and 2 came out there for assistance. Dr. Prashant Singh with the help of complainant and her brother took Vikas out of the waters. They immediately arranged for a vehicle and removed injured Vikas to a nearby Mittal Nursing Home at 71-B Main Road Kitchlu Nagar Ludhiana. Some employees of OPs no.1 and 2 also reached the above private nursing home and pressurized the doctors not to register medical legal case. First worry of Dr. Prashant Singh and complainant was to save the life of the Vikas, who was in danger. He was removed to DMC Hospital in late evening of 08.05.2009 because of the helplessness of the doctors of Mittal Nursing Home to treat him. The doctors at Dayanand Medical College and Hospital Ludhiana after examination of Vikas detected that he has suffered C3-4 dislocation of his back bone. He underwent the treatment at Dayanand Medical College and Hospital Ludhiana and his condition continued worsening and he was put on ventilators thereat. OP no.2 visited the DMC Hospital Ludhiana and assured the complainant to provide all the expenses for treatment of Vikas. OP no.2 met the local police officers and discussed the case with them. OP no.2 visited only to pressurize the police not to take any legal action against them. There was no improvement in the condition of the injured Vikas and he was shifted to specialized hospital namely Indian Spinal Injuries Centre Vasant Kunj New Delhi and was admitted there on 16.05.2009 at about 20:40 hours by his father-in-law Mr. Gulab Singh. At Indian Spinal Injuries Centre Vasant Kunj New Delhi at the time of admission of Vikas, MLC No.1872/CGB/09 was recorded. Head Constable Arvind Kumar (56-SD) from police station Vasant Kunj visited the hospital on 22.05.2009 and recorded the statement of Dr. Parshant to that effect. DDR No.44 dated 22.05.2009 was also recorded at Police Station Basti Lodhawal Ludhiana, whereas FIR was not recorded to that effect thereat, despite commission of a cognizable offence.  The complainant and his family members could not pursue the criminal case at Ludhiana due to serious condition of injured Vikas. OP no.2 assured the complainant that OP no.1 was insured with Reliance General Insurance Company for a sum of Rs.10 lac. He has also claimed that he has already raised the claim with Reliance General Insurance Company and amount for treatment would be released at the earliest. The husband of the complainant has not yet recovered from dangerous injuries suffered by him in the water park of OP no.1. There was no movement in his body and his injured body was still paralyzed and has been admitted in Institute of Spinal Injuries Vasant Kunj New Delhi. Vikas suffered dangerous injuries, due to negligence of OPs no.1 and 2 because they have not taken any proper safety measures and standards to protect the lives of the persons, who use the above facility. Father-in-law of complainant no.1 sent a legal notice dated 22.09.2009 to OPs no.1 and 2 for compensation of Rs.50 lac for dangerous injuries suffered by Vikas. Vikas was working in Noida Cooperative Commercial Bank Noida and was drawing salary of Rs.7000/- per month and his family members were dependent upon him. Vikas died due to dangerous injuries suffered by him in this case. The complainant earlier filed similar complaint  no.87 of 2011 before National Commission at  New Delhi, but it was withdrawn with permission to file fresh complaint after modifying the amount of compensation therein. The cause of action to file the complaint arose on 22.09.2009 when legal notice was served upon OPs by complainant. The complainant has, thus, filed the complaint praying for compensation of Rs.90,00,000/- from OPs in this case.

2.      Upon notice, OP and 2 filed written version and contested the complaint of the complainant. It was averred in preliminary objections that complaint is not maintainable. Any deficiency in service was vehemently denied by OPs no.1 and 2 on their part in this case. It was further averred that presently Hardy's World is not run by OP no.1. Complex questions of facts and law are involved in this case, which cannot be adjudicated by Consumer Forum in summary manner. The locus standi of complainant to file the complaint was questioned. On  merits, it was averred that OP no.1 is a limited company situated at Ludhiana. It was denied that OP no.1 runs the affairs of Water Park. Each person has to follow the norms of life and to remain vigilant about the rules printed on the notice board. Any deficiency in safety measures on the part of OPs no.1 and 2 was denied, as alleged in the complaint. It was denied that Vikas received any injury in the water park as pleaded in the complaint due to deficient act of OPs no.1 and 2. OPs no.1 and 2 controverted the averments of the complainant and prayed for dismissal of the complaint.

3.      OP no.3 filed its separate written version and contested the complaint of the complainant vehemently. It was averred in the written reply by OP no.3 that the contents of the complaint are denied for want of knowledge regarding booking of amusement park by Vikas and suffering any injuries therein by him. It was pleaded that complainant be put to strict proof of the same. OP no.3 has not received any intimation or information regarding alleged accident resulting into any injuries to Vikas. OPs no.1 and 2 have not placed on record any documents to show that any insurance policy was taken from it. OP no.3 moved an application for issuing directions to complainant and OP no.1 to provide policy details, but they have failed to do so. It was further averred that if any insurance was taken by OP no1 from OP no.3, then the same was issued as per terms and conditions of the insurance policy only. OP no.3 prayed for dismissal of the complaint.

4.      The complainant tendered in evidence affidavit of Rajni/complainant no.1 Ex.CW-1, affidavit of Jaina/complainant no.2 Ex.CW-2 along with copies of documents Ex.CW-1/1 to Ex.CW-1/5. OPs no.1 and 2 were proceeded against exparte in this case. As against it; OP no.3 has tendered in evidence affidavit of Abhilash Chander Assistant Manager (Legal) of M/s Reliance General Insurance Company Ex.RW-3/1 and closed the evidence.

5.      We have heard learned counsel for the complainant and counsel for OP no.3 as OPs no.1 and 2 are ex-parte in this case. Originally, this complaint was filed before National Commission, vide complaint no. 87 of 2011, and by virtue of order dated 17.01.2012 of National Commission, this complaint was instituted before this Commission. Separate application for condonation of delay, if any, has been filed and since notice was issued to OPs of this complaint, hence it is implied that delay, if any, was condoned. Evidence on the record has been examined by us in this case, with the able assistance of counsel for the parties. Affidavit of Rajni widow of Vikas (since deceased), who met with this accident in this case, is  Ex.CW-1. She has testified the case of the complainant, as stated in the complaint on oath in this affidavit. She has also sworn her supplementary affidavit on the record. Ex.CW-2 is affidavit of Jaina wife of Sh. Nirdosh Singh. She has deposed in her affidavit that they went for ride in waterslide of water amusement park of OPs no.1 and 2, wherein Vikas sustained injuries on account lack of safety measures by OPs no.1 and 2. It has appeared in the affidavit that OP no.2 is in charge and responsible for all affairs of above Water Park being run by OP no.1 under the name of M/s Hardy's World Amusement Park Water City situated at Ludhiana Jalandhar G.T Road Ludhiana. It has appeared in the affidavit that OP no.1 has not taken safety measures, as per requisite standards to ensure the safety of the customers/visitors, who visited to use the waterslides, water pools and other water sports at the above amusement water park. OPs no.1 and 2 charged huge amounts from the customers, as entry fees to the amusement park. They further deposed that despite taking huge amount from them, OPs no.1 and 2 have not ensured the safety measures, as per standards required. It has appeared in their evidence that Vikas, while sliding down from waterslide received serious backbone injuries followed by paralytic attack and his entire body stopped moving thereby. Dr.Parshant noticed his body floating in the water without moving hands or legs and it was taken out of the water pool and shifted to Mittal Nursing Home at 71-B Main Road Kitchlu Nagar Ludhiana from the above place of accident.   They further deposed that Mittal Nursing Home could not properly manage Vikas and he was shifted to DMC Hospital Ludhiana, where he remained for some time for his management. He suffered from C3-4 dislocation of backbone. He was then shifted to Indian Spinal Injuries Centre Vasant Kunj New Delhi after few days for his treatment. The treatment of the hospital is Ex.CW-1/2. They further deposed that at Police Station Vasant Kunj, DDR was lodged, vide Ex.CW-1/3, but no FIR was recorded at Police Station, Ludhiana against the OPs in this regard. After admission of Vikas in Indian Spinal Injuries Centre New Delhi, OPs assured the complainant that an insurance cover was taken from Reliance General Insurance Company and whatever amount was received from the insurance company, the same would be paid to them. They further deposed that they spent huge amounts on the treatment of Vikas and bills of the hospital are collectively Ex.CW-1/4 on the record. They further deposed that legal notice was served upon OPs by father of Vikas, but to no effect. Death certificate of Vikas is Ex.CW-1/1 on the record proving his date of death, as 13.05.2011. The treatment record of Vikas by Mittal Nursing Home & Trauma Centre Pvt. Ltd is Dx.CW-1/2. The provisional diagnosis is C3-4 Subluxation c Quadriplegia, date of admission is 08.05.2009 in Mittal Nursing Home Kitchlu Nagar Ludhiana. Whatever treatment was possible for them, it was provided to Vikas by them, as long as, he remained admitted with them. Document Ex.CW-1/2 (colly) may be referred in this regard. Vikas was taken to DMC Hospital Ludhiana for his treatment from Mittal Nursing Home & Trauma Centre (Pvt) Ltd. His X-ray examination was conducted. He was not treated and was taken to Indian Spinal Injuries Center New Delhi. He was admitted in Indian Spinal Injuries Centre Vasant Kunj New Delhi on 16.05.2011 and was provided treatment thereat. The complainant spent lots of money on the treatment of Vikas, but he could not be cured, eventually Vikas died of above injuries. Injuries were received by him at water amusement park of OPs no.1 and 2 at Ludhiana. OPs no.1 and 2 have not contested this case and have not appeared before this Commission to refute the evidence of the complainant for the reasons best known to them, Ops no.1 and 2 were set exparte.  The condition of Vikas deteriorated on account of injuries received by him at the water amusement park of OPs no.1 and 2. Had proper safety measures been taken by OPs no.1 and 2, then these  injuries would have been avoided in water sliding game at water amusement park to Vikas. OPs no.1 and 2 are the controlling authorities to provide the safety measures for the safety of visitors, who enter in water park after paying necessary entry fee. Consequently, deficiency in service on the part of OPs no.1 and 2 is proved by the evidence of the complainant on the record and police report is Ex.CW-1/3. The above evidence of the complainant remained un-refuted by the OPs on the record. OP no.3 has moved an application before this Commission with direction to OPs no.1 and 2 to produce the particulars of insurance policy. OPs no.1 and 2 failed to appeared before this Commission after moving of above application for production of insurance policy, as such they were proceeded ex-parte, as is evident from the perusal of zimni orders from 06.07.2012 to 31.05.2013 passed in this complaint. Consequently, in the absence of any insurance policy on the record, we cannot fasten any liability on OP no.3 in this case for purpose of reimbursement of  tortious act or deficient act of OPs no.1 and 2. OP no.3 is not proved to be the insurer of OP no.1 and 2 with regard to the customers, who take water slides in the water amusement park of OPs no.1 and 2 after paying the necessary entry fees.  Since no such insurance policy has been proved on the record by Ops no.1 and 2, hence the liability of OP no.3 stands discharged in this case and complaint is ordered to be dismissed against OP no.3 only.

6.      We have reached this conclusion after discussing of above-referred evidence that OPs no.1 and 2 are proved to be deficient in service, as they have not provided the safety measures to the customers, who entered in the amusement park for water sliding and the life of Vikas has been lost due to this deficient service provided by OPs no.1 and 2. The complaint of the complainant succeeds against OPs no.1 and 2 for deficiency in service on their part.

7.      We accept the complaint of the complainant by directing OPs no.1 and 2 to provide compensation of Rs.5,00,000/- (rupees five lac only) to complainant no.1 Rajni widow of Vikas (since deceased) and  Master Umang complainant no.3, son of Vikas (since deceased), whereas no amount of compensation is provided  to complainant no.2/Jaina, as she not proved to be legal representative of Vikas The complainant no.1 and 3 shall receive the amount of compensation in equal shares to the extent of 50% each., whereas no compensation is awarded to complainant no.2. Regarding death of Vikas, due to deficient service of OPs no.1 and 2, complainant no.1 and 3 shall be further entitled to recover interest @ 7% from the date of filing the complaint till actual payment over and above the amount of Rs.5 lac, as compensation. The share of amount of compensation of complainant no.3 Master Umang shall be deposited in his fixed deposit receipt in some Nationalized Bank near to the place of his residence by his natural guardian Rajni being his mother. We also award compensation of Rs.40,000/- for mental harassment and Rs.20,000/- as costs of litigation to complainant no.1 and 3. OP no.1 and 2 shall provide the above referred amount of compensation within 45 days from the date of receipt of certified copy of the order, failing which the complainants no.1 and 3 shall be entitled to recover it under Section 25  and 27 of Consumer Protection Act, 1986.                                                                                                                                                                                                                      

8.      Arguments in this complaint were heard on 23.05.2016 and the order was reserved. Now the order be communicated to the parties.

9.      The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                              (J.S GILL)

                                                                                MEMBER

 

May, 26   2016                                                               

(ravi)