ASHOK KUMAR B.ARORA vs VASUDEV HOTUSINGH NAGDEV

IN these two appeals arguments were heard on 21st November, 2002 when we reserved orders. Both the parties were allowed to file written note of submission within seven days. Only Vasudev Hotusingh Nagdev, appellant in First Appeal No. 401/1999 filed written note of submission.

THESE two cross-appeals arise out of the judgment dated 2.7.1999 of the Gujarat State Consumer Disputes Redressal Commission. First Appeal No. 276/1999 has been filed by Ashok Kumar B. Arora, the complainant who seeks enhancement of the amount of compensation awarded to him. In the complaint there were two opposite parties. Both had been held jointly and severally liable to pay compensation to the complainant amounting to Rs. 50,000/-. It is the first opposite party namely Vasudev Hotusingh Nagdev who has filed First Appeal No. 401/1999 challenging the award of compensation. Second opposite party namely East India Elevators Ltd. installed the lift in the premises of the first opposite party which resulted in the injuries of the complainant. Ashok Kumar was lawful occupant of Shop No. 231 situated on the second floor in Kamdhenu Market, Ahmedabad which market was developed and managed by Jawahar Construction Company of which it is stated Vasudev was the partner. Complainant would not know as to who actually owns the market and it is Vasudev who is looking after the market. A lift had been installed in the market which was constructed and installed by East India Elevators Ltd. On 17.10.1992 when the complainant got into the lift in order to go to the shop premises in second floor of the market the rope of the lift snapped with the result cabin of the lift came down on the ground in thud resulting in fracture of both the legs of Ashok Kumar, complainant. For seven months Ashok Kumar was incapacitated and was getting treatment from orthopedic surgeons. Ultimately it was certified that he had suffered 29.5 per cent permanent disability. He filed a complaint alleging deficiency in service on the part of the owner as well as manufacturer of the lift claiming Rs. 7.50 lakhs. The particulars of his claim are as under : "(vi) The complainant has, therefore, made the following claims : cost of medical treatment, shifting from Ahmedabad to Rohtak and back and also incidental expenses of treatment Rs. 69,000/- loss of business during seven months immediately after the accident Rs. 60,000/- (c) suffering of pain, mental agony and harassment Rs. 80,000/- compensation for loss of earning for the remaining 25 years. Of working life up to the age of 65 at the rate of monthly average earning of Rs. 6,000/- with 29.5 per cent disability Rs. 5,31,000/- (e) cost of litigation including advocate fee Rs. 10,000/- Rs. 7,50,000/-."

IT would be seen that the damages claimed both were special and general. Order of the State Commission also records that a first information report was lodged with the police resulting in conviction of Vasudev under Section 338 of the Indian Penal Code. Without recording anything more it is a case where principle of res ipsa loquitur clearly applies.

IN the written version filed by East India Elevators various objections were raised as to the maintainability of the complaint against it. These were overruled by the State Commission and since that order has not been challenged by the East India Elevators Ltd. we need not say anything as regards defence set up by it. As noted above, State Commission also held on the facts of the case that both Vasudev and East India Elevators Ltd. were jointly and severally liable for the injuries caused to the complainant on account of negligence in regard to the maintenance of the lift. Vasudev also raised objection and said that it was not a consumer dispute and that complainant Ashok Kumar had nothing to do with shop No. 231 which was owned by Rajmal Shivlal. But the fact remains that evidence is on record that Rajmal Shivlal had permitted the user of the shop premises and Ashok Kumar was entitled to go to that shop premises, he being a lawful occupant and in any case was a beneficiary of the owner of the shop of Rajmal Shivlal who had allowed Ashok Kumar to use the same. As a matter of fact, the fact that Ashok Kumar was a consumer has not been challenged before us.

ANOTHER objection raised by Vasudev was that he was merely a partner and the market was owned by Jawahar Construction Company. Vasudev had not said as to how Ashok Kumar would come to know that Vasudev was merely the partner of Jawahar Construction Company. State Commission noted the following points for determination of the complaint before it : Whether the accident took place on 17.10.1992 ? Whether complainant is a consumer ? Whether the complaint was barred by limitation ? And Whether the complainant was entitled to recover Rs. 7.50 lakhs by way of compensation or any part thereof from any of the opposite parties ?

STATE Commission returned the findings on Point Nos. 1, 2 and 3 in favour of Ashok Kumar and on the 4th point as noted above, had awarded a total compensation of Rs. 50,000/-. State Commission found that the complainant was earning Rs. 4,200/- per month and since for seven months he was not working, it awarded compensation of Rs. 29,400/- on that account being his salary for 7 months. A further sum of Rs. 4,368/- was awarded towards medical expenses, Rs. 2,200/- as travelling expenses for the complainant to go to his home town Rohtak and back, Rs. 10,000/- for physical and mental suffering during those seven months and Rs. 4,000/- as cost. Thus making a rough total of Rs. 50,000/-. It was ordered that in case the amount of Rs. 50,000/- was not paid on or before 31.8.1999, it would carry interest at the rate of 15 per cent per annum from 1.9.1999. In the circumstances of the case, there could not be any challenge to the order of the State Commission holding in favour of Ashok Kumar on points 1, 2 and 3 and in fact it was not rightly challenged in view of the evidence on record which was discussed in detail by the State Commission. As a matter of fact, Mr. Bhatt learned Senior Advocate appearing on behalf of Vasudev, was unable to challenge the conclusion arrived at by the State Commission. The only point for consideration is the amount of damages awarded by the State Commission. The damages comprise special and general. On special damages nothing can be said and this figure had been arrived at on the basis of the evidence produced by Ashok Kumar. As regards general damages, rather we are shocked that State Commission should have awarded Rs. 10,000/- for the sufferings Ashok Kumar had undergone and the fact that he had been permanently incapacitated. Judicial propriety restrains us from commenting on the lack of proper exercise of jurisdiction by the State Commission. Complainant had both his his legs fractured. He suffered pain and was unable to perform his normal work and suffering permanent disability. For all this to award Rs. 10,000/- is certainly adding insult to injury. In such circumstances we wished State Commission should have put itself in the condition of the complainant and then judged the case. It was also the case where interest should have been awarded to the complainant right from the day one when he suffered injury. The award of compensation of Rs. 10,000/- is pittance and we feel sad that the State Commission failed to exercise jurisdiction vested in it by law.

WE will, therefore, enhance the amount of compensation to Rs. 2.50 lakhs with interest at the rate of 12 per cent from 17.10.1992 till payment. Ashok Kumar in his appeal will also be entitled to cost which we assess at Rs. 5,000/-. His appeal is accordingly allowed.