State Consumer Disputes Redressal Commission
Shri Ved Prakash Vij vs 1. M/S. Baywatch Resort Sernabatim, ... on 3 February, 2010
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI-GOA Present: Smt. Sandra Vaz e CorreiaPresiding Member Smt. Caroline Collasso, Member Complaint No.12/2009 Shri Ved Prakash Vij Son of Shri Chuni Lal, E-65, Bali Nagar, New Delhi 110 015. Through Shri Kranti Vij, Attorney. Complainant v/s 1. M/s. Baywatch Resort Sernabatim, Salcete, Goa. 2. Mr. Sydney Moraes (Proprietor/Partner) M/s Baywatch Resort, Sernabatim, Salcete Goa. Opposite Parties For the Complainant Shri Melvyn J Aguiar, Advocate Dated:03-02-2010 ORDER
[Per Smt Sandra Vaz e Correia, Presiding Member]
1. The complaint is taken up for admission. Heard learned Adv Shri Melvyn J Aguiar for the complainant at some length.
2. The complainant is before us alleging deficiency-in- services and negligence on the part of the opposite party, a resort in South Goa.
Succinctly, it is his case that he came to Goa on 16-07-2008 alongwith his wife and grand-daughter and checked into the opposite partys resort. On 19-07-2008, he visited the steam and sauna bath of the resort and was briefed by the attendant about its use; later the complainant used and enjoyed the same. Next day the complainant again visited the steam and sauna bath and was again briefed by the attendant about the use thereof. After about 5-6 minutes of going inside the bath, the complainant found the room excessively hot and fell down on the floor of the steam bath room and lost consciousness. He was rushed by the resort staff to Vintage Hospital Margao and was informed by the treating doctors that he had sustained deep burns on his back from neck to waist and both arms. On being informed of the mishap, the complainants son Mr Kranti Vij rushed to Goa and got the complainant discharged and flew him back to Delhi the same day under medical certificate. In Delhi, the complainant was admitted to Kalra Hospital a couple of days later and remained in the ICU for several weeks. Doctors at Kalra Hospital informed the complainant that the burns were due to exposure to high temperature in the steam room for prolonged period of time. The complainant had 20% deep burns on the back from neck to waist and both arms with septicaemia. During his stay in hospital, the complainant had to undergo surgery and grafting several times under anaesthesia for the burn injuries. The complainant is an ex-MLA from Delhi and person of high repute and was very healthy prior to the incident; he suffered from multiple suffering, trauma, pain etc, details whereof are set out at paragraph 9 of the complaint. The complainant is seeking a direction to the opposite party to pay Rs. 90,60,000/- as compensation. The medical expenses are pegged at Rs. 9,50,000/- and miscellaneous expenses at Rs. 1,10,000/-. An amount of Rs. 80,00,000/- is claimed on account of mental agony, pain and stress not only of the Complainant but also of his entire family members and the complainant losing permanent loss of health, memory and loss of working power.
3. It is the valuation of the complaint at Rs.90,60,000/-, and more particularly, the claim of Rs. 80,00,000/- as compensation for mental agony suffered by the complainant and his family, that requires examination at the admission stage. In our opinion, in the facts and circumstances, the valuation is exaggerated and disproportionate. At the outset, it would be pertinent to examine the scope of compensation in a case of loss or injury caused by negligence of the opposite party. Sub-section 1 (d) of Section 14 of the Consumer Protection Act reads as follows:
to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to negligence of the opposite party:
(underlining is ours) But in this case, the complainant is not only claiming compensation for alleged loss suffered to himself but also to his wife and son and other members of the family. Paragraph 10 of the complaint speaks of other members of the complainants family who have suffered/are suffering mental pain on account of the opposite partys negligence. Again, in paragraph 11, averments are made regarding the complainants wife Mrs Santosh Vij having a big setback etc. The complainants only son Mr Kranti Vij is unable to control his business during these three months as he was overburdened on account of the complainants medical care. This is followed by paragraph 12 where it is stated . . . Not only the complainant but the entire family members of the complainant have suffered mental agony, pain and stress and the complainant has suffered permanent loss of his health, memory and loss of working power which all have occurred on account of deficiency of service/negligence by the opposite parties during his stay at Opposite Parties resort at Goa which is still continuing and accordingly the Complainant is claiming a nominal amount of Rs. 80,00,000/- (Rupees Eighty Lakh only) on this account. It is clear from plain reading of the plaint that amount of Rs. 80,00,000/- constitutes the compensation claim for the loss allegedly suffered not only by the complainant but by his entire family as well. Loss suffered by anyone other than the consumer himself cannot be considered and incorporated in the claim. In the circumstances, the compensation claim appears embellished for reason of the alleged losses suffered by the family having been clubbed with that of the complainant.
4. Be that as it may, admittedly, the complainant is about 78 years of age and as per medical certificate at page 15 is suffering from dementia. At paragraph 9 of the complaint, his dementia condition and consequential medical and psychological situation is sought to be attributed to the alleged negligent act of the opposite parties. The argument is rather speculative and far fetched. The diagnosis in the medical certificate at page 4 suggests probability of TIA with CT scan brain revealing ischemic changes thereby implying some proximity to the cause of the complainants fall in the sauna bath. In any case, on a prima facie view of the facts and circumstances, the compensation claim of Rs. 80,00,000/- towards mental agony is inflated and exaggerated.
5. Obviously, the amount of Rs.80,00,000/- was included to bring the complaint within the jurisdiction of this Commission, which, minus that amount, could be entertained by the District Forum. Invariably, prejudice would also be caused to the opposite parties as they would be deprived of one rung of appellate fora provided under the Consumer Protection Act.
6. The Honble National Consumer Disputes Redressal Commission, in Anil K Jain vs. Delhi Development Authority F.A. 95/2007 held as follows:
Learned counsel for the appellant submitted that the State Commission ought not to have transferred the complaint to the District Forum for consideration because the claim of the complainant was for a sum of Rs. 34 lacs. He submitted that the State Commission had no jurisdiction to decide at admission stage that the claim of the complainant was exaggerated and it was for the complainant to justify its claim at the time of hearing of the complaint before the State Commission by leading necessary evidence.
In our view, the impugned order passed by the State Commission does not call for any interference.
It is not necessary that the State Commission should admit such complaint and keep it pending for years.
If such complaints are kept pending before the Consumer Fora then the entire purpose and object of rendering speedy justice to the consumers would be frustrated.
Under the Consumer Protection Act, 1986, the Consumer Fora have to find out whether the complaint is maintainable or not and with regard to the admissibility of the complaint, Consumer Fora are ordinarily required to decide within 21 days from the date on which the complaint was received.
Hence, it was the duty of the State Commission to decide whether the complaint was required to be entertained on the ground of pecuniary jurisdiction and that has been done in the present case.
7. In the result and in view of the discussions above, the complaint is hereby dismissed with leave to approach the appropriate forum after putting in proper amount of compensation.
8. Needless to state that the observations, if any, made in the instant order are only made for the purpose of determining the pecuniary jurisdictional point and would therefore not come in the way of the appropriate forum determining the complainants case on the basis of the evidence and material that would be placed before it.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member