S.K. Taing vs Hotel Sealord

BOTH these cross -appeals arise out of one order of State Commission; hence, decided by common order.

APPEAL No. 73/2014 has been filed by the appellant/complainant and Appeal No. 247/2014 has been filed by OP/appellant against the order dated 9.12.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''the State Commission'') in Consumer Complaint No. CC/98/153 - S.K. Taing Vs. Hotel Sealord and Hotel Sealord Vs. S.K. Taing by which, complaint was partly allowed and OP was directed to pay to complainant Rs. 1,50,000/ - towards medical treatment, Rs. 1,00,000/ - towards compensation and Rs. 50,000/ - as cost of litigation. Brief facts of the case are that complainant was staying in OP No. 1 hotel in room No. 225 on second floor since 3.2.1998 Services of OP were not at all satisfactory. Rooms were not cleaned and nobody attended the room even after several calls. It was further submitted that on 6.2.1998, complainant along with his friend S.K. Bhandari came back to hotel at 1.50 a.m. and at that time there was no light in the hotel and it was pitch dark. There was no attendant or watchman in the hotel. There was no light/lamp or candle on the stairs or entrance or anywhere in the hotel. Complainant and his friend started walking through their senses, climbed stairs and were going to their room on the second floor. On reaching second floor, complainant felt a door like space with its shutter open and believing it to be the gate; the complainant stepped inside and started falling in a death trap. He fell down from the height of second floor to ground floor and became unconscious. It was further alleged that it was actually the lift door which was left open, unguarded and unlocked without any lift and without any warning or lamp. Complainant sustained grievous external and internal multiple injuries and fractures all over his body especially in his legs. During treatment in the hospital, a rod was fixed in complainant''s right thigh at Bombay Hospital and 75,000/ - were spent on the operation. Complainant''s family incurred expenses of lakhs of rupees on further treatment, medicines and travelling from Delhi to Mumbai on several occasions. It was further alleged that when complainant was lying on bed in the hospital in semi -conscious state, OP''s representative obtained signatures of complainant on some paper written in regional language under the pretext of completing some hospital formalities. It was further submitted that even after lapse of two months, complainant was not able to stand on his legs. Alleging deficiency on the part of OP, complainant filed complaint before State Commission. OP resisted complaint and submitted that OP''s hotel is repudiated hotel, catering to the needs of Indian and foreign guests belonging to the middle class since last 13 years. It was admitted that complainant checked in OP hotel on 3.2.1998. It was further submitted that in the intervening night of 5th and 6th Feb., 1998, complainant along with his associate Mr. Bhandari entered in OP hotel fully drunk. Their legs were rambling, eyes were looking reddish and they were using abusive language while talking with each other. The receptionist stopped them at the gate and asked them to sit down in the lobby as due to power failure in the area, the electricity lights were off for some time. OP put candles and lights everywhere on ground floor, stair case and upper floor. Receptionist of the hotel asked complainant and his friend not to climb staircase till proper lighting arrangement is made even then both of them tried to go up from stairs. After some time, all of a sudden, there was a sound from the staircase of rolling down of some person who was found to be the complainant, the staff of hotel rushed and rendered help. In the meantime, Director, Ramkumar Khanna came on the spot and took the complainant to Bombay Hospital and deposited Rs. 20,000/ - in the hospital for complainant''s treatment. It was further submitted that during the stay in the hospital, OP management took full and proper care of the complainant. Police report was recorded immediately on the day of the incident in which it was mentioned that there was accidental fall of the complainant from the staircase. It was further submitted that this statement was recorded by police in presence of Mr. Bhandari, the complainant''s associate. OP denied any negligence and prayed for dismissal of complaint and also submitted that OP owed amount of Rs. 20,000/ - from the complainant which he promised to pay. Learned State Commission after hearing both the parties allowed complaint as mentioned earlier against which both parties filed appeals.

HEARD learned Counsel for the parties finally at admission stage and perused record.

OP filed Appeal No. 247 of 2014 along with application for condonation of delay of 85 days. Op moved application for condonation of delay and submitted that copy of the impugned order was received on 27.2.2014 by the Manager and he kept it in his bag for reading. On the same day he got message about illness of his mother and he left Mumbai immediately and returned back on 20.3.2014. It was further submitted that Director of the hotel on receiving order on 21.3.2014 contacted Advocate for preferring appeal in which delay of 58 days occurred which may be condoned. In support of his application affidavit has also been filed. If this fact is believed that Manager of the hotel received order on 17.2.2014 and left Mumbai along with order on account of illness of his mother and returned back on 20.3.2014, there is delay of 24 days in filing appeal from 27.2.2014 and if it is believed that copy of the order was received on 27.12.2013 there is delay of 85 days in filing appeal. As cross -appeal has already been filed by the complainant, I deem it appropriate to condone delay in filing appeal by Op on the basis of latest judgment of Hon''ble Apex Court - (1) Civil Appeal Nos. 10120 -10121 of 2014 - Jeevanti Devi Vs. Commercial Motors & Anr., (2) Civil Appeal No. (s) 10289 of 2014 - A.T.S. Govindarajane Vs. Chief Manager, State Bank of India, (3) Civil Appeal No. 5071 of 2014 -Taipen Traders Ltd. & Anr. Vs. M/s. Bhawani Cold Storage & Ors. by which delay of 135 days, 149 days and 218 days, respectively, in filing revision petition was condoned and in such circumstances, delay of 24/85 days is condoned subject to payment of cost of Rs. 5,000/ - to the complainant.

LEARNED Counsel for the complainant submitted that inspite of proof of negligence on the part of OP and heavy expenses incurred in treatment and lifelong deficiency in the body, learned State Commission has committed error in granting only compensation of Rs. 2,50,000/ - and Rs. 50,000/ - as cost of litigation; hence, appeal be allowed and impugned order be modified and compensation may be enhanced. On the other hand, learned Counsel for the OP submitted that inspite of no proof of fall from open gate of lift from second floor to the ground floor, learned State Commission has committed error in allowing complaint; hence, appeal be allowed and impugned order be set aside. It was further submitted that as complainant sustained injuries on account of fall from stairs, as a good gesture, OP is ready to pay ex -gratia amount of Rs. 1,50,000/ -.

FIRST of all, it is to be seen whether complainant stepped inside the open shutter of lift on second floor of the hotel and fell to the ground floor and sustained injuries. Complainant and his associate Mr. S.K. Bhandari submitted affidavits in which it was stated that they reached hotel at 1.50 a.m. on 6.2.1998 and at that time there was no light, lamp or candle on the entrance or stairs and it was pitch dark. It was further submitted that both of them started walking through stairs towards their room which was on second floor by using their own senses and by touching the wall and stairs. It was further submitted that on reaching second floor, complainant felt a door like space with its shutter open and believing it to be gate stepped inside the same and started falling in a death trap and he fell down from the height of second floor to the ground floor and became unconscious. It was further submitted that Mr. S.K. Bhandari on hearing his cry immediately rushed down stairs and called for the hotel staff for help. It was further submitted that complainant sustained grievous external and internal multiple injuries and fracture all over his body especially in his legs. On the other hand, OP''s witness Shri Liyaqat Ali Khan in his affidavit submitted that he is authorised signatory of the hotel. It was further submitted that in the night of 5.2.1998 complainant along with his friend returned in hotel in fully drunk stage and started talking in filthy language with the staff of OP. Receptionist of the hotel requested complainant to sit in the lobby for some time as they were not in a position to go up. It was further submitted that at the same time the lights in the hotel went off due to sudden power failure and the staff made immediate arrangements to put candles in the lobby, stair case and the upper floors. It was further submitted that inspite of requests to the complainant to wait in the lobby, complainant and his friend started climbing the stairs and after sometime the staff suddenly heard a thud like sound and complainant came rolling down. Mr. Khanna, Director of OP took the complainant to Bombay Hospital for medical treatment and deposited Rs. 20,000/ - in the hotel. Complainant and his associate have submitted that complainant sustained injuries on account of fall from open gate of lift on second floor whereas OP''s witness has denied this fact. In normal course, if gate of lift opens there will always be base of the lift on which person(s) can stand and go to upper or lower floors. Lift cannot remain open without base and in such circumstances, in the absence of any other oral or documentary evidence it cannot be believed that from the second floor of hotel, complainant fell from open gate of lift to the ground floor and sustained injuries. Had he fallen from second floor to the ground floor, he would not have sustained only fracture in the leg and some minor injuries. In the complaint and in affidavits it has been stated that complainant sustained grievous external and internal multiple injuries and fractures all over his body especially in his legs whereas as per medical report, complainant sustained only one fracture in the leg and some minor injuries. If a person of more than 50 years falls from second floor to ground floor in ordinary course, he will not sustain only fracture in the leg and some minor injuries and in the light of medical report it creates doubt that complainant fell from second floor of the hotel through open space of lift to the ground floor.

IF complainant fell from open gate of lift from second floor, he could not have reached to ground floor and he should have been on the roof of the lift which must be above the ground floor and below first floor. In such circumstances, complainant could not have been taken out from roof of the lift without breaking wall or without help of crane. Nowhere it has been pleaded that complainant was taken out by the help of crane or by demolishing wall. Had complainant fallen on ground floor of the hotel in the space of lift how he was taken out and how got opened when there was no light/power available in the hotel at the time of incident.

IN discharge summary of complainant issued by Bombay hospital it has been mentioned that on account of accidental fall from second floor on 6.2.1998 complainant sustained injury to head and left femur. In this summary it has nowhere been mentioned that he fell down from space of lift to the ground floor. On the other hand, learned Counsel for OP has drawn my attention towards daily diary of Police Station Kalkaji Division which reveals that Sr. Police Inspector recorded statement of complainant which runs as under: "Today he returned from Navaseva Office on 6.2.1998 in the morning at 2.00 to the hotel and the electricity of the hotel was off and lift was closed. He was climbing stairs for second floor, his step was slipped and fallen in dark he had inside injuries to leg and head. For this event he has no complaint or doubt of any kind. This event is accident and therefore investigation is closed.

Perusal of aforesaid Police statement makes it clear that complainant sustained injuries on account of slipping step from second floor of the hotel and nowhere it has been mentioned that complainant fell down from open space of lift at second floor. Learned Counsel for complainant submitted that as complainant was in semi -conscious state at the hospital, OP''s representative obtained signatures of complainant on some paper written in regional language under the protest of completing some formalities whereas this fact has been denied by authorised representative of OP. When Mr. S.K. Bhandari accompanying complainant was present in the hospital why did he not ascertain about contents of paper on which complainant put signatures. Perusal of record reveals that daily diary of police station does not contain signatures of complainant and in such circumstances, this statement of complainant and his witness cannot be believed that complainant''s signatures were obtained on any paper written in regional language, but it appears that on inquiry by Sr. Police Inspector, complainant mentioned that he sustained injuries on account of slipping from stairs and the matter was closed.

COMPLAINANT in his affidavit submitted that Mr. S.K. Bhandari who was walking behind him, on hearing his cry immediately rushed down stairs and called hotel staff for help. Mr. S.K. Bhandari has not corroborated this statement in his affidavit. Not only this, had there been no candle light in the hotel at the time of incident, Mr. S.K. Bhandari could not have reached to the ground floor immediately through stairs in pitch dark and in such circumstances, it appears that candles were put in the lobby as well stairs as electricity power was not available at that time.

EVEN if for the sake of arguments it is presumed that complainant fell down from door like space with its shutter open from second floor it cannot be presumed that gate of lift was left open by hotel staff and gate of the lift can be left open by any visitor living in the hotel and in such circumstances, no liability can be fastened on the part of OP. It is admitted case of the parties that at the time of injury to complainant in the hotel at 2 a.m. lights were off due to power failure. Complainant''s case is that no light/lamp or candle was provided whereas OP pleaded that candles were put on ground floor, stair case and upper floor. Even if it is presumed that no candles were put by OP in the lobby, stair case as well upper floor, complainant should have waited in the lobby till power supply was restored. He should not have climbed stairs in pitch dark inspite of request by hotel staff and even if he climbed stairs by touching wall and fell down from space of lift at second floor his contributory liability is established and in such circumstances, he was not entitled to Rs. 2,50,000/ - on account of expenses on medical treatment and compensation for negligence and at the most 50% liability should have been fastened on the OP.

IN the light of aforesaid discussion it becomes clear that complainant failed to prove any deficiency on the part of OP in sustaining injuries and learned State Commission committed error in allowing Rs. 2,50,000/ - towards medical treatment, expenses, compensation and Rs. 50,000/ - as cost of litigation and impugned order is liable to set aside. But, as learned counsel for OP by way of good gesture agreed to pay Rs. 1,50,000/ - as ex -gratia on account of sustaining injuries in the hotel, I deem it appropriate to allow ex -gratia payment of Rs. 1,50,000/ - by OP to the complainant.

CONSEQUENTLY , First Appeal No. 247 of 2014 - Hotel Sealord Vs. S.K. Taing filed by OP is allowed and order dated 9.12.2013 passed by learned State Commission in Complaint No. 98/153 - S.K. Taing Vs. Hotel Sealord is set aside and consequently, Appeal No. 73 of 2014 - S.K. Taing Vs. Hotel Sealord filed by complainant for enhancement of compensation is dismissed. OP is directed to pay Rs. 5,000/ - as cost of condonation of delay and Rs. 1,50,000/ - as ex -gratia payment to the complainant within a period of one month from the date of order, failing which, OP will be liable to pay interest @ 12% p.a. on aforesaid amount till realization.