BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.691 OF 2007 AGAINST C.C.NO.1039 OF 2005 DISTRICT CONSUMER FORUM-I HYDERABAD.
Between
G.Sudershan Rao, S/o.G.Madhavaiah
Aged 73 years, Occ:Business,
R/o.4-49/1, Alwal, Secunderabad. Appellant/ complainant
A N D
1. The Chairman
Vamshi Welfare Association,
Opp:Chermas, Ameerpet, Hyderabad.
2. The Managing Director,
ECE lift Industries
Public Garden Road, Saifabad
Lakdi-ka-pool, Hyderabad. Respondents/opposite parties
Counsel for the Appellant Mr.M.K.Sridhar Goud
Counsel for the Respondents Mr.M.Hari Babu-R1
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT.
SMT M.SHREESHA, MEMBER
&
SRI K.SATYANAND, MEMBER
FRIDAY, THE TWENTY FIFTH DAY OF SEPTEMBER
TWO THOUSAND NINE
Oral order( As per Sri K.Satyananad, Member)
***
This is an appeal filed by the unsuccessful complainant assailing the order of the District Forum rejecting his claim.
The facts of the case are as follows:
The complainant was a contractor working for Indo Dutch Proteins Ltd., a
tenant in one of the flats of the complex of which opposite party No.1 is the representative association. On 14-8-2002 the complainant went to the said complex on some business work with the said tenant by name, Indo Dutch Proteins Ltd., for clearing the outstanding bills. As he was entering the lift, the lift took off even before he closed the shutters and as a result he tumbled down and fell into the pit of the lift and consequently sustained injuries variously. He claimed that he sustained very grave injuries and had to spend nearly Rs.1,00,000/- towards medical treatment. According to him this accident occurred due to the negligence of the opposite parties in as much as the opposite party No.1 did not put up a notice preventing the unwary users of the lift asking them not to use it as the lift was out of order. He also alleged that opposite party No.2, manufacturer of the lift was also negligent in not properly maintaining the same. Thus he attributed that he sustained injuries only on account of their negligence. In the first instance, he filed a criminal complaint upon which the police registered FIR and investigated into the allegations and ultimately they filed the charge sheet. The police justified the filing of the charge sheet as stated in the charge sheet itself finding that there was some prima facie case etc. He claimed to have issued a notice also to the opposite parties demanding the compensation for injuries he sustained on account of their negligence. According to him, he gave a notice on 12-12-2002 with no avail or did not evoke any response. Ultimately the complainant the complaint on 16-6-2005 and subsequently on 28-9-2005. The criminal case ended in acquittal. However, it is the case of the complainant that he was entitled to be compensated as prayed on the ground that on account of the defective lift offered for services to the visitors have caused the accident to him. He claimed a total amount of Rs.4 lakhs by way of compensation as also consequential relief’s against Vamshi Welfare Association as also the manufacturer of lift.
The complaint came to be resisted by opposite party No.1 while opposite party No.2 remained exparte. Opposite party No.1 filed a counter resisting the complaint that it was not aware of the complainant visiting the premises on 14-8-
2002 for collecting the bills from Indo Dutch Proteins Ltd., They also denied the very accident itself and other facts. They finally contended that the matter was barred by limitation.
Along with the complaint, the complainant filed a petition, I.A.No.710/2005 to condone the delay of 233 days in filing the complaint. The same was allowed by the District Forum after taking steps for due service of notices.
In support of his case, the complainant filed his own affidavit and also documents marked as Exs.A1 to A21. Opposite party No.1 did not adduce any evidence at all.
On a consideration of the evidence on record, the District Forum came to the conclusion that there was no contract for any service by opposite parties to the complainant. It however observed that opposite party No.1 was under an obligation to provide services to the visitors but at the same time, it found that no negligence on the part of opposite party No.1 was established in as much as there was no evidence that the lift was not in a proper working condition. It also found that there was no evidence on record that the complainant had hired any services from opposite party No.1 and ultimately held no negligence can be attributed to opposite party No.1. On the basis of these findings, the District Forum dismissed the complaint.
Aggrieved by the said order, the complainant preferred the present appeal essentially urging that the District Forum erred in coming to a conclusion that the complainant did not answer the description of ‘consumer’. It failed to see that he had been to the said building for the purpose of transacting business with Indo Dutch Proteins Ltd., which was a tenant in the 4th floor, which in turn was entitled to avail services of opposite party No.1 being a Welfare Association of the flat owners. In this view of the matter, he contended that as a beneficiary of one of the tenants in the flat, opposite party No.1 owes an obligation of extending service including lift service, equally to him whereby he will have to be treated as a ‘consumer’ in his capacity as a beneficiary of such service. The District Forum failed to appreciate that the complainant sustained injuries when he was availing the lift service offered by opposite party No.1.
Heard both sides who also filed written arguments.
The points that arise for consideration are:
<!--[if !supportLists]-->1) <!--[endif]-->Whether the complaint is maintainable?
<!--[if !supportLists]-->2) <!--[endif]-->Whether there any good grounds to interfere with the order of the District Forum?
<!--[if !supportLists]-->3) <!--[endif]-->Whether the complainant is entitled to any relief?
The maintainability of the complaint is sought to be undermined by the District Forum essentially on two grounds. In the first place, it has taken a view that the complainant did not answer the description of the ‘consumer’ in order to maintain the complaint before the District Forum. Opposite party No.1 as could be seen from the counter maintained total innocence not only of the whole incident as such but also about the very visit of the complainant to the place of incident. But the complainant adduced massive evidence to establish the essential aspects that are necessary to afford him the status of a ‘consumer’. In the first place, he tendered documents to show the business dealings between himself and one of the tenants in the said flat by name, Indo Dutch Proteins Ltd., He claimed to have come to the scene of the incident for the purpose of taking to the lift to reach the office of the said company
situated in the 4th floor in order to collect bills. Some of the documents clearly show the business relationship and the factum of his visit to the building where this mishap occurred while boarding the lift. It is not the case of opposite party No.1, Welfare Association, that Indo Dutch Proteins Ltd., was not one of the tenants in the said complex. The police report and the investigation that followed as evidenced by FIR, Ex.A1, also probablises the incident. This circumstance coupled with his sworn affidavit proves the incident as such. So there is no force in the contention of opposite party No.1 that the very incident was a myth. Even otherwise in the counter itself what all that was pleaded on behalf of opposite party No.1 was that it was not aware of the accident. So the evidence adduced by the complainant is sufficient to come to a reasonable conclusion that the accident had occurred. It is the case of the complainant that the accident was very violent and as he entered the lift, the lift immediately took off throwing him over board as a result of which he fell into the pit. The treatment that he had taken immediately in the wake of the accident as evidenced by number of medical bills and medical transcripts clearly show that he sustained grievous injuries in the accident. Thus the material on the whole clearly shows that the complainant intended to use the lift for the maintenance of which opposite party No.1 was unquestionably responsible and that he was thrown out as he was trying to enter into the lift and that he sustained injuries in the said accident and that he incurred heavy expenditure for treatment in the wake of those injuries which are cogently established.
The next question on which the complaint was resisted is that it was barred by limitation but it is very much on record that the complainant filed a petition to
condone the delay and the delay was condoned by the Forum. This completely cures even if there is any defect on account of any limitation and it does not lie in the mouth of opposite party any more to canvass that the matter is barred by limitation especially when the finding of the District Forum in that regard became final and in fact as could be seen from the tenor of the arguments they are not even conscious of the fact and the plea appeared to have been urged in ignorance of the relief granted by the Forum in the matter of condoning the delay. In our opinion, these two objections for the maintainability of the complaint have no force.
Now coming to the liability of the opposite parties, while opposite party No.2 remained exparte which sounds a signal that opposite party No.2 did not have any defense, opposite party No.1 strenuously contended initially that it was not aware of the incident but this is absurd as a very momentous accident occurred in the premises and the fact is established by the evidence found in the F.I.R., the police had in fact investigated and in such a case, it is absurd to contend that opposite party No.1 or the members of opposite party No.1 had no knowledge of the accident. However, opposite party No.1 became alive to the truth of the incident having occurred in their premises but they tried to urge other grounds to avoid their liability. One of the efforts made in that direction, as they contended is that the complainant did not give reasons to visit that place. As a matter of fact, it is the case of the complainant that he visited that place to have some business transactions with one of the tenants, a company by name Indo Dutch Proteins Ltd., As already pointed out, it is not the case of opposite party No.1 that Indo Dutch Proteins Ltd., was not
one of the tenants there. This wholesale denial lends strength to the plea of the complainant that he was a visitor to the said tenant. It is next contended by opposite party no.1 that the way the accident occurred as narrated by the complainant makes an absurd reading as that he had put one foot in the lift, he could not have stumbled down into the pit of the lift and this absurdness improbablises the very truth of the accident. This argument is also far fetched and clearly holds no water as there may be some inaccuracy in the description of the accident. The fact remains that he sustained some serious injuries for which he spent a lot for the treatment, naturally the accident in its train brings not only expenditure, agony but also trauma, mental tension and other things. The medical transcripts abundantly make it clear that he had suffered head injury, right Periorbital injury, blunt injury right orbit. Ex.A3 records the factum of his having fallen into the lift pit at 11.30 a.m. on 14-8-2002. The F.I.R. and medical records are very much relevant to establish the conduct of the complainant immediately in the wake of the accident. This kind of conduct is very much relevant under Section 8 of the Evidence Act for the reason that such a conduct would be spontaneous and not manipulative. In this view of the matter, the pleas of opposite party No.1 are not acceptable. So far as opposite party No.2 is concerned, as already mentioned, they did not choose to contest the matter. From this circumstance it is not unreasonable to agree with the contention of the complainant that the lift was manufactured by opposite party No.2 who supplied to opposite party No.1, the association, and the latter became liable as they were entrusted with the maintenance of the various amenities in the building complex including the lift. Opposite party
No.2 was the manufacturer or the installor of the delinquent lift in question and the fact that a very serious accident occurred obviously due to the defective lift throws up an occasion for invoking the doctrine of strict liability. In other words, this is a clear case of strict liability fastening not only to opposite party No.1 but also opposite party No.2. Inspite of a clear case of liability and the dispute in question being clearly a consumer complaint, the District Forum dismissed the complaint without justification. This therefore, takes us to review the order of the District Forum to hold that it can hardly be sustained. Accordingly we are of the opinion that there are ample grounds to set aside the finding of the District Forum. When once the order of the District Forum is found liable to be set aside, it naturally follows that the complaint has to be allowed but there is yet another subject in the process of allowing the complaint, namely the quantification of damages that the complainant is entitled to. In this connection, the complainant filed several medical transcripts as also receipts showing the expenditure to a sum of Rs.30,202.65. Apart from the actual expenditure that he incurred in getting himself cured of the injuries, the accident by itself is an experience which is horrific naturally associated with shock and trauma, for this trauma, he claimed damages separately. The gravity of the accident is very well imaginable, therefore, the claim made by him in this regard is justified.
Accordingly the appeal is allowed setting aside the order of the District Forum and consequently allowing the complaint in terms thereof. Opposite parties
are directed to pay jointly and severally to the complainant a sum of Rs.30,202.65/- with interest at the rate of 9% p.a. on the amount representing
expenses in addition to damages of an amount of Rs.3,00,000/- and an amount of Rs.5,000/- by way of costs. Time for compliance six weeks.
Sd/-
President
Sd/-
MEMBER.
Sd/-
MEMBER
JM Dt.25-9-2009
