Date of Filing      : 13.02.2023

                                                                                                                                       Date of Disposal : 31.08.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, MA.,ML, Ph.D (Law)                                          .…. PRESIDENT

                 THIRU.P.MURUGAN,  M.COM.,ICWA (Inter),BL.,                                                        ......MEMBER-II

CC. No.14/2023

THIS THURSDAY, THE 31^st DAY OF AUGUST 2023

Mr.S.Suresh, S/o.A.Sekar,

No.21, Kamarajar 3^rd Street,

Thirunageswaram Colony,

Kundrathur, Chennai 600 069.                                                               ……Complainant. 

                                                                                 //Vs//

1.The Manager, i/c,

   GOKULAM CINEMAS,

   No.795C, Old Sundar Theatre Complex,

   Rukmani Nagar, Poonamallee,

   Chennai 600 056.

2.The District Collector,

   Nethaji Road, S.O,

   Tiruvallur District. 602 001.                                                            …..Opposite parties

Counsel for the complainant                            :   Party in Person.

Counsel for the 1^st opposite party                   :  Mr.R.S.Bharanivel Raaj, Advocate.

Counsel for the 2^nd opposite party                  : M/s..E.Vijayakumar, Advocate (GP)

This complaint is coming before us on various dates and finally on 28.08.2023 in the presence of the Complainant who appeared in person and Mr.R.S.Bharanivel Raaj counsel for the 1^st opposite party and Mr.E.Vijayakumar 2^nd opposite party and upon perusing the documents and evidences of both the parties this Commission delivered the following:

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in not providing the facility conferred on the disabled person as per the Disability Act 2006 along with a prayer to direct the opposite parties to pay a sum of Rs.10,00,000/- towards compensation to the complainant due for the deficiency in service on the part of the opposite parties.

Summary of facts culminating into complaint:-

2. On 24.05.2022 the complainant watched the Tamil Movie namely NENJUKKU NEETHI in screen number 2 of the 1^st opposite party’s theatre. Soon after the complainant entered inside the complex being a disabled person enquired about the lift or ramps provided for disabled person as the screen was in the second floor but he was informed that no lift was available and only he had to go by the stair case.  With great difficulty he climbed the stair case due to which he got severe leg pain on the same day. Immediately the complainant lodged a Police Complaint and due enquiry was held and the report was forwarded to the 2^nd opposite party for legal action.  But the 2^nd opposite party neglected to inspect the building as to whether Rules and Regulations has been followed as it was a newly constructed complex. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the 1^st opposite party to pay a sum of Rs.10,00,000/- toward compensation and damages for the physical pain and mental agony caused to the complainant by the opposite parties.

The crux of the defence put forth by the 1^st opposite party:-

3. The 1^st opposite party filed version disputing the complaint allegations contending interalia that the opposite party was running a theatre in the name of Gokulam Cinemas, Previously it was known as Sundar Palace and Sundar Paradise.  The theatre was there for the past more than 30 years and the same was functioning without any blemish. It was submitted that it obtained due permission from District Collector, Thiruvallur in accordance with Tamil Nadu Cinemas Regulations, Rules and Act 1958.  The said license in Form ‘C’ has been issued after physical inspection of Authorities such as Engineer, PWD Department and other Government Agencies.  The opposite party had also availed insurance from New India Assurance Company Limited. For the present year, license has been granted by the District Collector, Thiruvallur District as per proceedings in K.VIS.No.71669/2022/M1 dated 06.01.2023. The allegation of complainant that he had watched a movie on 24.05.2022 in screen number 2 of the opposite party’s theatre was denied and was put to strict proof to show that he had watched the movie in the opposite party’s theatre. As name of the persons are not printed in the movie ticket, the complainant could manipulate the ticket obtained by any other person. The allegation that the complainant had enquired with the staff of the opposite party about availability of lift facility and he was informed that no lift facility was available was also false. The opposite party had already taken steps to install Lift Facility in the theatre.  However, due to COVID-19 pandemic the said work could not be completed in time.

The crux of the defence put forth by the 2^nd opposite party:-

4. The 2^nd opposite party filed version disputing the complaint allegation contending interalia that as per the records maintained by the 2^nd opposite party, the 1^st opposite party was running the cinema theatre in the name and style of Gokulam Cinemas and got the permission from the 2^nd opposite party and also this year license was renewed vide proceeding issued in K.DIS.No.71699/2022/M1, dated 06.01.2023.  Further the building inspection was done by the PWD Officials and after physical inspection only the ‘C’ form license issued to the 1^st opposite party. The complainant watched the movie as night show i.e. at 9.30pm hence, definitely he knows the facilities availed and infrastructures maintained by the 1^st opposite party theatre. The complainant did not clearly stated in what way the 2^nd opposite party had committed deficiency in service to the complainant. There was no specific allegation or cause of action against the 2^nd opposite party.  Thus he sought for the complaint to be dismissed against him.

5. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex.A9 were submitted.  On the side of 1^st opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B4 were submitted.  On the side of 2^nd opposite party proof affidavit was filed but no document was filed on their side.

6. Points for consideration:-

1. Whether the alleged negligence and deficiency in service on the part of the opposite parties in the matter of providing the statutory facilities available for the disabled persons in the opposite party’s Theatre Complex as per the Disability Act 2006 has been successfully proved by the complainant?
2. If so to what reliefs the complainant is entitled?

Point No.1:-

The following documents were filed on the side of complainant in support of his contentions;

1. Disability Certificate of complainant was marked as Ex.A1;
2. Disability Pass Book of complainant was marked as Ex.A2;
3. Movie ticket and two wheeler parking token was marked as Ex.A3;
4.  Legal notice issued by the complainant to the 1^st opposite party dated 30.05.2022 was marked as Ex.A4;
5. Complaint lodged against the 1^st opposite party by the complainant at T12 Poonamallee Police Station was marked as Ex.A5;
6. Police summon issued to the complainant for appearance dated 16.06.2022 was marked as Ex.A6;
7. Aadhaar card of the complainant was marked as Ex.A7;
8. Advocate ID of complainant was marked as Ex.A8;
9. RTI Reply along with documents issued by Deputy Commissioner of Police to complainant dated 06.10.2022 was marked as Ex.A9;

On the side of 1^st opposite party the following documents were filed in proof of their defence;

10. Reply notice sent by the 1^st opposite party to the complainant dated 10.06.2022 was marked as Ex.B1;
11. Acknowledgement card from complainant was marked as Ex.B2;
12. Letter from District Collector, Thiruvallur along with endorsement in ‘C’ Form license given to complainant dated 06.01.2023 was marked as Ex.B3;
13. Letter given by the Executive Engineer of PWD about the structural stability of 1^st opposite party premises dated 12.08.2022 was marked as Ex.B4;

7. Heard complainant/Party in Person and the learned counsels appearing for the opposite parties.  It is an admitted fact that the complainant visited the 1^st opposite party theatre on 25.05.2022 at about 9.50pm for visiting Tamil movie NENJUKKU NEETHI in screen number 2. Though the identity of the complainant was disputed by the 1^st opposite party that he was not the person who watched the movie on the available ticket, the same was not canvassed during the arguments, hence taken as proved that it is only the complainant who watched the movie on that day.

8. The crux of the complaint allegations is that the complainant being a locomotor disabled person was not provided the lift or ramp facility conferred by the Disability Act 2006 by the 1^st opposite party and that the 2^nd opposite party failed to monitor whether Rules and Regulations were followed by the 1^st opposite party.

9. The crux of the defence by the 1^st opposite party is that due to COVID -19 the lift facility could not be completed and the defence of 2^nd opposite party is that there is no privity between the complainant and the 2^nd opposite party and hence the complainant has no cause of action to file the present complaint against them.

10. On appreciation of the entire pleadings and materials produced by both parties.  It is evident that the complainant has a 60% locomotor disability person (Ex.A1) and also possessed disabled Pass Book issued by Government of Tamil Nadu (Ex.A2).  The movie ticket and the two wheeler parking token proves that on 25.05.2022 the complainant watched the movie in screen number 2 and seat number is C-5. Further the complaint allegations that no lift or ramping facility was available with the 1^st opposite party was not disputed by both opposite parties.

11. When we perused the Disability Act 2006, we come across the following provisions;

PART IV — ACCESSIBILITY

19.      Access to premises

It shall be the responsibility of all organs in a public or private institution to provide—

(a) Suitable exits for persons with disabilities;

(b)Universal standards or designs of public toilets.

 20.     Duty to provide access to buildings

Any person, who constructs, a building to which the public is invited, shall ensure that persons with disabilities have access through

 Provision of—

1. accessible and easy-to-find building entrances, connected by accessible pathways to accessible indoor or outdoor parking areas, local public transit stops and accessible elevators;
2. safe and accessible urinal, bathrooms for the diverse disabilities;
3. safe and well-dimensioned staircases for the comfort of persons with mobility problems;
4. ramps wherever stairs obstruct the free passage of pedestrians, mainly wheel chair users and people with mobility problems;
5. adequate railing around hazardous areas, stairs, ramps, accessible roofs, mezzanines, galleries, balconies and raised platforms;
6. well-dimensioned elevators,('in the case of multi-storied buildings) that persons with disabilities can use conveniently.

(2) An accessible elevator should-

 (i) serve all floors normally reached by the public;

(ii) have embossed numerals on the floor selector buttons to be easily 

      identifiable by touch;

(iii) signal arrival at each floor to alert sightless and hearing impaired

       passengers simultaneously

(3) Where it is difficult or unfeasible to install a ramp or an elevator to an existing building, the owner of the building shall provide platform lifts to provide accessibility.

12.  It is the case of the 1^st opposite party that they had taken steps to install the lift but due to COVID-19 situation the work could not be completed.  This contention seems to be meaningless and could not be entertained as COVID -19 effects came to an end even before two years. Complainant had given a Police complaint and inspection had been done and report was also filed (Ex.A9) wherein it has been clearly mentioned that

“Nkw;gb kDjhuu; nfhLj;j Gfhiu ngw;W rk;gt ,lkhd NfhFyk; rpdpkh]; nrd;W tprhuid nra;jjpy; kDjhuu; 25.05.2022k; Njjp Nkw;gb jpiuauq;fpy; neQ;Rf;F ePjp glk; ghu;f;f te;jJ cz;iknadj; njupatUfpwJ.  NkYk; mtu; khw;W jpwdhsp vd;gjhy; mq;F cs;s gzpahsu;fsplk; Lift kw;Wk; Ramp trjp cs;sjh vd;W Nfl;lNghJ mtu;fs; ,y;iy vd;W $wpajhfTk;> mjw;F mtu; Vd; jq;fs; jpiuauq;fpy; khw;W jpwdhspfSf;F nra;J itf;f Ntz;ba mbg;gil trjpfs; $l nra;atpy;iy vd;W Nfl;ljhfTk;> mjw;F mtu;fs; Kiwahf gjpy; $whjjhy; kDjhuu; fhty; epiyak; te;J jpiuauq;F cupikahsu; kw;Wk; Nkyhsu; kPJ eltbf;if Ntz;b Gfhu; nfhLj;Js;sjhf njupatUfpwJ.  NkYk; ,Ujug;gpdUk; fhty; epiyaj;jpy; itj;J tprhuid Nkw;nfhs;sg;gl;lJ.  tprhuidapy; jpiuauq;fpd; Nkyhsu; $ba tpiutpy; Nkw;gb trjpfis nra;aNghfpNwhk; vd;Wk; mjw;fhd Ntiyfs; eilngw;W nfhz;L ,Uf;fpwJ vd;Wk; vOj;J %yk; njuptpj;Js;shu;.  kDjhuUk; ,J rk;ke;jkhf khtl;l Ml;rpauplk; Gfhu; njuptpj;J nfhs;tjhf $wpdhu;

tprhuiz KbT:

Nkw;gb kD rk;ke;jkhf ,Ujug;gpdiuAk; tprhuid nra;jjpy; khw;W jpwdhspfSf;F nra;J juNtz;ba Lift kw;Wk; Ramp trjpfs; Nkw;gb jpiuauq;fj;jpy; ,d;Dk; nra;J Kbf;ftpy;iy vd njupatUfpwJ.  NkYk; kDjhuu; fhty; epiyaj;jpy; khtl;l Ml;rpaUf;F fbjk; itf;FkhW Nfhupdhu;.  Nkw;gb kDjhuupd; Nfhupf;iffis epiwNtw;w Ntz;baJ kw;Wk; jpiu muq;fj;jpw;F toq;f Ntz;ba cupkk; Nghd;witfis fhty; Jiwapd; tuk;Gf;F cl;gl;;lJ my;y.  mJ khtl;l Ml;rpaupd; tuk;Gf;F cl;gl;lJ. MfNt kDjhuNu Neubahf khtl;l Ml;rpahsuplk; kD mspj;J mtuJ Nfhupf;iffis eptu;j;jp nra;J nfhs;Sk;gb mwpTWj;jg;gLfpwJ.”

In the inspection report it is clearly mentioned that no lift or ramping facility available in the 1^st opposite party theatre and that the complainant was directed to approach the 2^nd opposite party for further legal action.  The 1^st opposite party has also admitted that the theatre complex is a newly constructed complex.  According to Article 41 of the Constitution of India, the States should make effective provisions for securing right to work, education and public assistance in certain cases such as unemployment, old age, sickness and disablement. Further as per chapter 8 of provisions in Disability Act 2006, the Government transport and all Authorities should have constructions amenable for disabled person and that the building and toilet should be constructed with ramp and other facilities. Special feature required for physically handicapped disabled person with regard to building services like Lift, Toilet, parking space are to be specially provided designed in an advantageous manner to the disabled person. In such circumstances when it is specifically proved by the complainant that the 1^st opposite party being a public place does not possess the necessary facility for locomotor disabled person of 60% and that had obtained license from the 2^nd opposite party deceitfully it is to be held that the 1^st opposite party had committed clear negligence and deficiency in not following the rules and regulations provided under the Disability Act.  The 2^nd opposite party is also to be jointly held responsible in committing deficiency in service for providing the necessary permission to run the theatre without inspecting the building premises of the 1^st opposite party by the PWD officials and based on the report filed by them.  Thus we hold both the opposite parties had committed clear negligence and deficiency in service and the complainant had successfully proved the same. Thus we answer the point accordingly.

Point No.2:-

13. As we have held above that the opposite parties had committed deficiency in service we direct the 1^st opposite party to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with a cost of Rs.10,000/- towards litigation expenses.  We also direct the 2^nd opposite party to take necessary action against the 1^st opposite party for the deviation in Rules committed by them.  Thus we answer the point accordingly.

In the result, the complaint is partly allowed

a) Directing the 1^st opposite party to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the mental agony and hardship caused to the complainant within four weeks from the date of receipt of copy of this order; 

b) Directing the 2^nd opposite party to take necessary action against the 1^st opposite party within four weeks from the date of receipt of copy of this order; 

c) Directing the 1^st opposite party to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.

d) Amount in clause (a) if not paid by the 1^st opposite party in four weeks from the date of receipt of copy of this order the amount shall carry interest at the rate of 9% from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 31^st day of August 2023.

       -Sd-                                                                                                                -Sd-

MEMBER-II                                                                                                    PRESIDENT

List of document filed by the complainant:-

List of documents filed by the 1^st opposite party:-

      -Sd-                                                                                                                     -Sd-

MEMBER-II                                                                                                       PRESIDENT