Neel Kumar Motilal Karunakar vs Khyati Resorts Ltd

THE complainant along with his cousin Alpesh Kumar Parmar had gone to Khyati Resorts Ltd (hereinafter referred to as OP) in the afternoon of 6.6.1999, which was a Sunday, and purchased two entry tickets of Rs.25/-. THE complainant entered wave pool for bathing purpose at about 5 P.M. and in between 5 to 5.30 P.M. while the complainant was inside the wave pool, the waves were suddenly stopped without any siren or warning. THE water level dropped in the wave pool and at this point of time, foot of the complainant got slipped into a small ditch from where a floor tile had come out and the complainant fell down headlong in the shallow water on the slope of the wave pool. THE floor was oily due to moss. THE complainant sustained serious injuries on his head, cervix and spinal cord. THE complainant started profusely bleeding from his head. He was taken out of the water wave pool by Shri Alpesh Kumar Parmar, the cousin of the complainant and with the help of other people who were available nearby. No lifeguards were available there. Shri Alpesh Kumar Parmar approached security staff for medical help, but he was informed that no medical facilities are available. THE manager was also not available. Since the complainant was profusely bleeding from his head, he along with Shri Alpesh Kumar went to the highway and took a rickshaw driven by Sh. Jagdish Bhai Chatur Bhai Parmar and went to Civil Hospital, Mehsana. THE doctor at Civil Hospital, Mehsana gave some stitches on the bleeding head of the complainant and advised Shri Alpesh Kumar to take the complainant to Ahmedabad for further treatment. THE Civil Hospital, Mehsana on request provided ambulance on payment of Rs.330/- and the complainant was taken to Navneet Memorial Hospital Shushrusha, Ahmedabad at about 11.30 P.M. on 6.6.1999. Shri Alpesh Kumar went to lodge FIR with the Langhnaj Police Station, District Mehsana on 7.6.1999, but the Sub-Inspector of Police refused to record the FIR on the ground that no cognisable offence has been committed. According to the complainant a number of accidents of various kinds take place in the water park day after day.

ON 13.6.1999, Shri Alpesh Kumar again went to Langhnai Police Station and handed over written FIR. The police conducted panchnama on 13.6.1999 in the absence of Shri Alpesh Kumar. However, no police officer came to the Shushrusha hospital to record the statement of the complainant. The attending doctor of the hospital called the police from Navrangpura Police Station, Ahmedabad, who recorded the statement of the complainant on 19.6.1999 and forwarded the same to Langhnai Police Station. As no action was taken by Langhnai Police Station, father of the complainant approached a local leader, Sh. Dev Shankar Parmar who lodged a written complaint with the District Collector, Mehsana about the accident and the indifferent attitude of the Langhanj Police on 19.6.1999. The complainant could not afford heavy expenses of Shushrusha hospital and got himself transferred to the Civil Hospital, Ahmedabad on 21.6.1999. The statement of the complainant was recorded at the instance of District Collector, Mehsana, Ahmedabad on 12.8.1999. By order dated 4.10.1999, the District Collector, Mehsana, Ahmedabad suspended the permit granted to the OP for 2 months. Ultimately, District Collector, Mehsana cancelled the permit granted to OP on 20.7.1999 with immediate effect vide order dated 30.10.1999.

The complainant took treatment in the Civil Hospital till 11.8.1999 and subsequently shifted to the Paraplegia Department of the Civil Hospital for rehabilitation where he received Physiotherapy for about 10 days. On account of the great hardship faced by the Complainants family members, the complainant took voluntary discharge from the Civil Hospital, Ahmedabad on 19.8.1999. According to the complainant, he had sustained 100% disablement and was lying on a fowler bed in a rented house in Ahmedabad since 1999. The complainant had no sensation below the chest and could not move his arms and hands. Though the complainant was mentally conscious, he could not use his hands and fingers and was spoon-fed by attendants. He had no sense of stool and urine. He had to use a catheter to pass urine and two attendants were regularly required.

THE complainant thereafter was under treatment and care of Dr. P.S. Ramani, a Consultant Neuron Spinal Surgeon of Mumbai who advised the complainant to move in wheel chair. THE complainant was working as Assistant Administrative Officer with the Oriental Insurance Company, Mehsana and was drawing a gross salary of Rs.11,745/- per month besides other perks and would have continued to work till the age of superannuation of 60 years in April, 2024. THE complainant would have retired from the post of Regional Manager or even more, with a salary ranging between Rs.30,000/- to 50,000/- at the end of his career. THE complainant had incurred an expenditure of about Rs.2 lakhs on his treatment and would have continued to do so in future. THE complainant accordingly claimed compensation of Rs.59,29,500/-, details of which are as under: (a) Future Loss of income Rs.35,23,500.00 (Salary X 12 X number of years of service in balance) [11745 x 12 x 25] (b) Expenses incurred on treatment Rs.20,000,00.00 against bills ( c) Special diet such as fruit juices for Rs. 3,36,000.00 whole of the remaining life of 35 yrs at an average expense of Rs.800/- p.m. (800 x 12 x 35) (d) Expenses on two part time attendants Rs. 8,40,000.00 at the scale of Rs.1000/- per attendant per Month for 35 years. (e) Recurring Expenses on consultation Rs. 6,30,000.00 fees, medicine and physiotherapy charges at the monthly scale of Rs.1500/- for 35 yrs. (f) Pain, shock and suffering Rs. 4,000,00.00 Total Rs.59,29,500.00

The OP in reply took up preliminary objections that the complaint is not maintainable as the complainant is not a consumer within the meaning of section 2(1)(d) of the C.P. Act. It was further stated that the incident in question did not occur at the Resort; the complaint is liable to be dismissed on account of multifariousness and public policy as the licence of the OP was suspended by the Collector on the complaint filed by the present complainant which order was stayed by Gujarat High Court vide interim order dated 14.9.2000; that the complaint is politically motivated and the same is a manifestation of the vengeance of one Mr. D.S. Parmar who happens to be General Secretary of Mehsana District Rashtriya Janata Party; the said Mr. Parmar had an animus against the OP who had refused to meet his illegal demands; that the reports of the police dated 12.7.99, 24.7.99 and 3.11.99 show that the police after detailed investigation came to the conclusion that the complainant had fallen out accidentally and there was no negligence on the part of the OP; that the said reports clearly show that a doctor is constantly stationed at the Resort during the period when the Rides and Wave Pool is in operation and an Ambulance is available at the premises to meet the emergent situation; that the said reports further show that loud warning in the form of siren is given at the time of opening and before closure of Wave Pool and as such, the complaint in question is not maintainable. It is further alleged that the complaint is barred by the principles of legal maxim of Volenti non fit injuria inasmuch as when he went into the Wave Pool, he voluntarily bore the risk of injury on account of slipping due to floor of the pool being wet.

ACCORDING to the OP, all safeguards and related measures have been taken to ensure that there is no accident at the Wave Pool or at the Rides within the Resort and in the event of any accident occurring, the same is promptly dealt with. The OP has given details of the same in the preliminary submissions as under: a) Medical facilities are available at the Resort at all the hours when the Resort is operation. Such facilities, inter alia, include giving of first aid and immediate treatment to any patient as well as the services of a Doctor at all times when the Resort is operational.

b) Lifeguards, security staff and supervisors are constantly on vigil while the Resort is operational. c) Before the starting and closure of the Wave Pool, a warning in the form of loud siren is sounded.

d) The following instructions are displayed at all prominent places in the Wave Pool Diving (jumping) is strictly prohibited in the Wave Pool or the Water Park from the Parapet. When the Wave Pool is shut, entry therein is strictly prohibited. When the Wave Pool starts or closes, a siren shall be sounded. When the Wave Pool is in operation going to the front side of the Wave Pool is strictly prohibited. Those suffering from Blood Pressure or Heart ailment are strictly prohibited from using any of the Rides.

e) An Ambulance Van bearing Registration Number GJ-1-HH-8174 is constantly available for tackling any medical emergency. f) Caution boards displaying the aforesaid instructions are placed at all prominent places in the Resort. g) The Water is regularly circulated to make waves. The pressure of the water is such that there is no question of any moss or stickiness being created at the floor of the pool. h) Chlorine solution is regularly added in the water to keep the water clean. i) No diving or jumping is permitted in the Wave Pool. j) There is a regular change of water. k) The water is filtered thrice a day with the help of rubber pipes and through a Filtration Plant. On an average one lakh liters of water is filtered everyday.

On merits, it is submitted that the alleged incident, if any, was never brought to the notice of the staff of the OP by writing or by notice or otherwise till filing of the reply; that the OP regularly employed a doctor who is paid Rs.400/- per day for providing first-aid to deal emergent situation at the Resort and at the relevant time, Dr. Amritbhai Kachansinh Rajput was employed and an affidavit of Dr. Rajput has been filed. It is further submitted by the OP that Wave Pool shuts sharp at 5 P.M. and the incident took place thereafter, as alleged by the complainant. The police after investigation found that the complainant thereafter fell down in the Wave Pool accidentally and doctor as well as ambulance was available at the Resort before and after the shutting of the Wave Pool, warning instructions have been pasted at number of places and security guards are available at number of places at the Wave Pool. The police did not find any loose tile. It is pointed out that a conflicting and contrary stand is taken in the complaint dated 13.6.1999 filed by Alpesh Kumar Parmar, statements of the complainant dated 19.6.1999, 3.7.99 and 12.8.99 and the complaint of Mr. D.S. Parmar dated 19.9.1999. The case put up by the complainant is false and fabricated and full of material contradiction. In parawise reply, it is stated that the tickets are punched and returned to the customers. In the remaining paragraphs, the version of the complainant is denied and it is stated that no reasonable nexus is established of the injury in question and the complaint has been filed in order to blackmail the OP.

THE complainant had died on 9.6.2002 and the legal heirs were brought on record. THE OP made amendment to the written submissions and took the plea that the claim is based on the tort and the same abates on the death of the complainant. Rejoinder was filed by the complainant denying the averments made by the OP in the written statement.

AFFIDAVIT evidence was filed on behalf of the complainant, which consists of affidavit evidence of Smt. Lakshmi Ben Motibai Parmar who is the mother of the deceased complainant. On behalf of the OP, affidavit of Sh. Kirit Kumar, Director of Khyati Resorts Ltd. has been filed. Along with the complaint, four affidavits had been filed, namely; 1. Ashwinkumar Patel 2. Kamleshkumar Rathod 3. Jayesh Samabhai Gujarati and 4. Alpeshkumar Naraibhai Parmar. However, no affidavit evidence of the said persons has been filed. Written arguments have been filed by Counsel appearing on both sides and we have heard them orally as well. Ld. Counsel for the complainant took us through the relevant papers in the paper book and submitted before us that there was small ditch in the Wave Pool from where a floor tile had come out and due to sudden stopping of water in the Wave Pool without any warning, the foot of the complainant got slipped into a small ditch and the complainant fell down headlong in the shallow water on the slope of the Wave Pool. He also submitted that the floor was oily due to moss and the complainant suffered head injury and the complainant started profusely bleeding from his head. He also urged that neither lifeguards were available nor any medical facilities were available at the Wave Pool. He also took us through the complaint filed before the police as also the complaint filed by the local leader, Sh. Dev Shankar Parmar as also the statement of the complainant dated 12.8.1999. He also pointed out that the District Collector, Mehsana had cancelled the permit of the OP vide order dated 30.10.1999. Thereafter, the Counsel for the complainant took us through the medical record as also the expenses incurred on the treatment of the complainant. Ld. Counsel for the complainant concluded by stating that the compensation sought which is to the tune of Rs.59,29,500/- be granted with 18% interest per annum from the date of filing of the complaint till payment as also costs.

On the other hand, Ld. Counsel for the OP submitted before us that there are material improvements in the case of the complainant from stage to stage. He drew our attention to the FIR dated 13.6.1999 and submitted before us that in the police statement dated 19.6.1999 of the complainant there is no reference to the pit or moss, but the said fact has been introduced in the statement of the complainant dated 12.8.1999. He also pointed out that Annexure D, MLC transfer form does not show any injury to the head or to the leg, but it only shows cervical injury. According to him, the incident in question has not been proved by the complainant by filing affidavit evidence of Alpesh Kumar Parmar. According to him, not only lifeguards were present, but registered medical practitioner was also available on the date of alleged incident.

HOWEVER, no such incident as alleged by the complainant has taken place and the OP is not liable for injury or compensation as claimed by the complainant, which is otherwise highly exaggerated and is not supported by evidence. According to him, the complaint is liable to be dismissed. We have gone through the record. According to the complainant, Alpesh Kumar had gone to file FIR with Langhnaj Police Station, District Mehsana on 7.6.1999, but the Sub-Inspector of Police refused to lodge the FIR on the ground that no cognisable offence has been committed. On 13.6.1999, Shri Alpesh Kumar again went to Langhnai Police Station and handed over written FIR. In this FIR it was stated that when the complainant and Alpesh Kumar were thinking of going home, the Wave Pool was closed and his uncle complainant was coming out and as soon as he stood on the marginal space, incidentally he fell down in the fountain on his head and his skull was broken causing serious injury to cervical spinal cord. On 19.6.99, local leader, Sh. Dev Shankar Parmar had lodged written complaint with District Collector. In this complaint it was stated that while coming out of the fountain, the complainant was attempting to stand up but Neel Kumar Motilal Karunakar, the complainant slipped on account of collected moss in the reservoir and fell down in the fountain on his head and knocked down directly with tiles and skull was broken and the spinal cord was crushed.

IN statement dated 12.8.1999 recorded by the Additional Collector Mehsena, the deceased had stated that he alongwith Alpesh Kumar had gone to the resort at 1 p.m. and at 5 p.m. they were swimming in wave pool in water upto knee level and his leg fell in pit and on loosing balance he fell down and his neck was broken. On 19.9.1999, statement of the complainant was recorded in which the complainant stated that on account of sudden closure of Water Pool his leg suddenly slipped in the fountain and incidentally he fell down in the pit being his head downward and there was injury on the head. In the complaint filed before the Commission, it was stated that the foot of the complainant got slipped in a small ditch from where a floor tile had come out and the complainant fell down head down in shallow water of the Wave Pool and due to oily moss he received injury on the head and in the spinal cord and he was profusely bleeding from his head. There is no material on record to show that there was any pit or broken tile in the wave pool. There are thus material improvements in relation to the incident from time to time. The medical record of the examination of the complainant does not show any injury on the foot. If the complainants foot had slipped in a small ditch from where a floor tile had come out, the complainant would have certainly received injury on the foot. Moreover, the case of the complainant is that he fell down headlong in the shallow water on the slope of the wave pool. If a person falls down in shallow water, injury on the head with profusely bleeding would not be possible. MLC transfer form dated 6.6.1993 (Annexure D) shows diagnose as cervical spinal cord.

THIS certificate does not show any injury on the head much less bleeding from the head or any stitches on the head as claimed. MRI dated 7.6.1999 also shows fracture of C 5 vertebral body. X-ray report dated 7.6.1999 does not show any fracture of skull. Affidavit evidence on behalf of the complainant was filed after the death of the complainant. THIS affidavit evidence is that of Smt. Lakshmi Ben Motibai Parmar who is the mother of the deceased complainant, which is in fact hearsay evidence as she was not witness to the incident. Though affidavits of 4 witnesses including Alpesh Kumar were filed along with the complainant, yet no affidavit evidence of the said person was filed by the complainant. The names of other witnesses other than Alpesh Kumar, whose affidavit has been filed, do not even figure in any of the complaints made or even in the statement of the complainant, which was recorded on 19.6.1999. Even otherwise, in the affidavit of Alpesh Kumar it has been merely stated that between 5 PM to 5.30 PM he noticed his uncle, Neel Kumar Motilal Karunakar fell down in the Wave Pool and was bleeding from his head. He tried to take out his uncle out of the Wave Pool, but found it difficult to remove him due to slippery floor of the Wave pool and due to his body weight. He requested other persons who were also bathing to help him. He also stated that he also noticed a floor tile had come out and the complainant fell down headlong in the shallow water on the slope of the wave pool. THIS is an improvement made at a subsequent stage and even otherwise, we have already noted that no injury was found on the foot of the complainant.

KEEPING in view the above state of facts, we are of the view that the complainant has failed to prove the incident in question as also the manner in which the incident took place by any cogent and trustworthy evidence to establish any negligence or deficiency on the part of the OP. Having not proved any negligence or deficiency in service, the complaint is liable to be dismissed and we need not go into the question of award of compensation. For the aforesaid reasons, the complaint is hereby dismissed with no order as to costs.