NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
(From the
order dated 2.7.99 in
case No.152/93
of the State Commission, Gujarat)
Ashok Kumar B.
Arora
Appellant Vs.
1. Vasudev Hotusingh Nagdev
2. Managing Director, East India Elevator Ltd.
Respondents
A
N D
(From the
order dated 2.7.99 in
case No.152/93
of the State Commission, Gujarat)
Vasudev
Hotusingh Nagdev
Appellant Vs.
1. Ashok Kumar B. Arora
2. East India Elevator Ltd.
Respondents
BEFORE:
HONBLE MR. JUSTICE D.P. WADHWA,
PRESIDENT
HONBLE MR. JUSTICE J.K. MEHRA,
MEMBER.
MR.
B.K. TAIMNI, MEMBER.
Quantum rope of the lift snapping
and lift falling down fracture of both the legs of the
complainant/appellant - 29.5% permanent
disability remained incapacitated
for seven months - award of damages of Rs.50,000/- by State
Commission held to be too low- damages
enhanced to Rs.2.50 lakhs with further award of interest @ 12% from the date of
accident.
O R D E R
DATED THE 20th
December, 2002.
JUSTICE D.P. WADHWA, J.(PRESIDENT)
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.401/99 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.276/99 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. 401/99 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 17.10.92 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 orthopaedic surgeons. Ultimately it was certified that he had suffered 29.5% permanent disability. He filed a complaint alleging deficiency in service on the part of the owner as well as manufacturer of the lift claming Rs.7.50 lakhs. The particulars of his claim are as under:
(vi) The complainant has therefore made the following claims:
a) cost of medical
treatment, shifting from Ahmedabad
to Rohtak and
back and also incidental expenses
of treatment Rs. 69,000/-
b) loss of business
during seven months immediately
after the
accident Rs. 60,000/-
c) suffering of pain, mental agony and harassment Rs. 80,000/-
d) compensation for loss of earning for the
remaining 25 yrs.
Of working life upto the
age of 65
@ monthly average earning of
Rs.6,000/-with
29.5% 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 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 defense 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 did 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:
1. Whether the accident took place on
17.10.92?
2.
Whether complainant is a consumer?
3. Whether the complaint was barred by
limitation? And
4. 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 No.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.4200/-
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.2200/- 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 @ 15% per annum from 1.9.99.
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 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 @
12% from 17.10.92 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.
Appeal
filed by Vasudev Hotusingh Nagdev is
dismissed.
J
(JUSTICE D.P. WADHWA)
J
(J.K. MEHRA)
MEMBER
(B.K. TAIMNI)