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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 27.07.2016 of the State Consumer Disputes Redressal Commission Andhra Pradesh (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.368/2014 in which order dated 20.06.2014 of East Godavari District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 30 of 2012 was challenged, inter alia praying for setting aside the order dated 27.07.2016 of the State Commission.
While the Revision Petitioner (hereinafter also referred to as OP) was Appellant before the State Commission and OP before the District Forum, the Respondents (hereinafter also referred to as Complainants) were Respondents before the State Commission and Complainants before the District Forum. Notice was issued to the Respondents on 11.01.2017. Both the parties filed Written Arguments/Synopsis on 06.03.2018.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that Seetharamaiah, husband of complainant no.1, namely, Gonimadathala Chandra Lakshi and father of complainant no.2 and 3, namely, Gonimadathala Srinivasa Harsha and Gonimadathala Vineela died a homicidal death on 03.05.2010 while staying at room no.7 of Koka’s lodge ( Hotel), Market Stree, Amalapuram, East Godavari District belonging to OP. The material on record viz. exhibits, inquest report, final police report and case diary of police showed that deceased occupied room no.7 in the lodge at about 7.30 p.m. on 03.05.2010 by paying Rs.100/- as rent. His dead body was found in pool of blood in the bathroom of the lodge with bleeding injuries on his head and other parts of the body. According to FIR given by the OP, the deceased, after occupying the room, procured food and liquor through a room boy, namely, Srinivas and consumed it in his company and auto driver, namely, Jaya Bharghava. The auto driver left the hotel at about 9.00 p.m. The room boy came out of the room at about 12.00 mid night. At about 1.00 a.m. the room boy Srinivas woke Kalla Suri Babu who was at reception and asked him to wake up the deceased at 4.00 a.m. as he wanted to go to Vijaywada. The receptionist Kalla Suri Babu went to the room to wake up the deceased at 4.00 a.m. and found the door open. He found the dead body in the bathroom with bleeding injuries. The OP came to know of this incident on the information given by the hotel clerk Rama Krishna. He accordingly lodged the FIR with the police. The police took up the investigation pursuant to the FIR and conducted inquest proceedings. After conducting detailed investigation, the police found that deceased checked into the hotel at about 7.30 p.m.. At that time, he had cash of Rs.14,000/- with him which he had received as his share in the sale proceeds of a house and the same was missing from him. The police filed final report concluding that room boy Srinivas alone could have committed the murder as he was the last person who was with deceased till midnight and there was no possibility of anybody else to commit the crime. According to the complainant, it is the duty of the OP to look after and safeguard the life of the customers during their stay in the lodge. The Complainant, therefore, filed CC before the District Forum claiming compensation for death alleging deficiency in service. The District Forum vide order dated 20.06.2014 partly allowed the complaint directing the OP to pay compensation of Rs.6,72,000/- along with cost of Rs.2000/-. Being aggrieved, the OP filed an Appeal before the State Commission and State Commission vide order dated 27.07.2016 dismissed the appeal of the OP. Hence, the OP is before this Commission now in the present RP.
Petitioner has challenged the said Order dated 27.07.2016 of the State Commission mainly on following grounds:
i. There is no customer-service provider relationship between the deceased and the Petitioner. The deceased is not a customer within the meaning of Section 2 (1) (d) of the Act. Even the respondents have not produced any evidence to prove that deceased was staying in the lodge on rent.
ii. The Petitioner only manages the lodge and is not the owner of the lodge and Srinivas was an employee of the brother of the Petitioner.
iii. Srinivas has not been convicted by any court with respect to alleged crime. The Investigating Officer has filed the final report before the Court in this case requesting the case to be treated as un-detectable and the court has accepted the final report. The contents of case diary, inquest report and even the final report cannot be relied upon to hold Srinivas guilty of murder.
iv. The deceased himself violated the rules of the lodge by inviting outsiders into his room and by consuming alcohol with them.
v. The case involves complex factual question and the Fora below have incorrectly decided the case in a summary proceedings and District Forum should not have exercised its jurisdiction and the matter should have been examined by an appropriate Court of law.
vi. State Commission failed to appreciate that quantum of compensation decided by District Forum is inappropriate and is based on the method used by the Motor vehicle accidents and other insurance cases.
vii. Reliance is placed on the findings of the Hon’ble Supreme Court in Synco Industries Vs. State Bank of Bikaner and Jaipur and Ors. ( 2002) 2 SCC 1, wherein it is held that if a case contains complex question of facts, then consumer forum should not exercise jurisdiction and it is for the civil courts to exercise jurisdiction.
Heard learned counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
5.1. Learned counsel for the Petitioner repeated the points which are stated in para 5, grounds for challenging the order of the State Commission, hence the same are not being repeated here.However, counsel also relied on the following judgments of the Hon’ble SupremeCourt / High Court / National Commission :
a. Chairman and Managing Director, City Union Bank Limited and Another Vs. R. Chandramohan, ( 2023) 7 SCC 775 & Oriental Insurance Co. Ltd. Vs. Munimahesh Patel ( 2006) 7 SCC 655 wherein Hon’ble Court held that proceedings before the Commission being summary in nature, the complaints involving disputed question of facts or the case, could not be decided by the Forum /Commission under the Act.
b. Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines and Another ( 2000) 1 SCC 66, wherein Hon’ble Court held that rendering of deficient service has to be considered and decided in each case according to the facts of that case, for which no hard and fast rule can be laid down.
c. S.K. Talan Vs. Hotel Sealford and Connected Matter, First Appeal No. 73 of 2014, wherein this Commission applied the principle of Contributory Negligence
d. Kum. Sangita Tukaramji Rokde Vs. Union of India and Ors. 2014 SCC Online NCDRC 220, wherein this Commission held that National Commission is a Summary Court
e. N K Das ‘ Saranam’ Vs. The Union of India and Ors, First Appeal No. 45 of 2010, this Commission applied the principle of Contributory Negligence.
f. India Tourism Development Corporation Limited Vs. Miss Susan Leigh Beer, 2014 SCC Online 3376 wherein Hon’ble High Court placed reliance on the doctrine of ‘res ipsa loquitur’ ( the things speaks for itself).
5.2 Learned counsel for the respondents argued that it was the duty and obligation on the part of the Petitioner to provide necessary protection to the customers who stay and take shelter in his lodge. It is also the duty of the Petitioner to look after and safeguard the life and limb of the customers during their stay in the lodge owned and run by him. The Petitioner failed to protect the life and property of the deceased. The petitioner failed to take the necessary measurements and precautions in providing appropriate security to the customers who stay in the lodge.
5.3. The deceased hired room in the Petitioner’s lodge and paid the charges. The deceased was a consumer and petitioner was service provider under section 2 (1) ( g) and ( o) of the Act.
5.4 Due to sudden and premature death of the deceased, the respondents were put to loss of consortium to the respondent’s family.
5.5. Counsel relied on the following judgments of Hon’ble Supreme Court / National Commission :
a. Taj Mahal Hotel Vs. United India Ins. Co. Ltd. & Ors, Civil Appeal No. 8611 of 2019, wherein Court held that hotel owner cannot contract out of liability for its negligence or that of its servants in respect of a vehicle of its guest in any circumstance.
b. Nagar Mal Sharma Vs. Hotel Chandra Mahal 2008 1 CPJ 338 (NC) wherein this Commission held that receipt of Rs.200/- by way of room charges from the petitioner is admitted by the respondent. Petitioner was thus consumer under section 2 ( 1) ( d) of the Act. It was further held that petitioner was entitled to undisturbed stay in the hotel room for which he had paid the charges and at the same time, the respondent service provider was under a duty to ensure trouble free stay of the petitioner
c. Bathala Giri Babu & Anr. Vs. Penubothu Arun, RP No. 2422 of 2014, wherein National Commission held that safety is a primary duty of the hotel authorities.
We have carefully gone through the order of the State Commission, District Forum, other relevant records and rival contentions of the parties. District Forum, after duly considering the evidence before it, has concluded that deceased was a consumer under Section 2 (1) (d) of the Act and OP was a service provider, observing further that any customer who stays in a lodge expect the security for his life and articles. It is the duty of the owner of the lodge to safeguard the people who stay in the lodge. Due to negligence of OP, the husband of Ist complainant was murdered in the lodge, and it amounts to deficiency in service on the part of OP. State Commission after considering the evidence / material before it and the rival contentions of the parties have concluded that there is no merit in the contention of the Appellant ( OP ) that he is not the owner of the lodge. Exb. A1/A2 FIR was lodged with the police by OP himself in which he categorically stated that he owns the lodge in question. He clearly admitted that he would look after the affairs of the lodge by visiting daily in the morning and evenings and his clerk would look after the lodge in his absence. Regarding contributory negligence, the State Commission observed as follows :
“Regarding contributory negligence, it is a common practice in the hotel industry that services are delivered to the customers only through servants and room services are delivered through room boys. Thus, there is nothing wrong on the part of the deceased to depend on the room boy Srinivas for securing food items for consumption. Whenever service boys are engaged for room service there will be more responsibility on the Hotelier and he should exercise more caution in employing a person with character and integrity. He is expected to verify the antecedents before giving employment. Ex. A4 police report throws light on the fact that the room boy Srinivas could alone be the offender. There is nothing on record to show that the appellant/opposite party verified the antecedents of the room boy. Therefore, the appellant/opposite party is guilty of employing an offender and facilitated commission of crime. There is no basis for the allegation that the deceased slept keepng the door open. What all Kalla Suri Babu, receptionist stated was that in the morning when he went to wake up the deceased the door was open. It does not mean that the deceased went to bed keeping the door open. Thus there is no substance in the contention that the deceased is guilty of contributory negligence.”
Extent of other relevant paras of order of State Commission is also given below:
“10) The substantive contention on behalf of the appellant/opposite party is that there is no element of service in letting out a room on rent and the deceased cannot be considered as a consumer.
'Service' is defined in Section 2(o) of the Act in the following terms:-
(o) "service" means service of any description which is made available to and includes but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news other information, but does not include the rendering of any service free of charge or under a contract of personal service,
The aforesaid definition is wide and covers many services that are available to potential users. Boarding and lodging or both together is one of the services covered under the definition. Lodging is a place in which some one lives or stays temporarily and a lodger is a person who pays rent to the owner to live in the place. It is a form of agreement between the owner and the lodger, owner agreeing to let the lodger the place for a price and the lodger agreeing to pay the price. The agreement may be to use the premises with or without amenities such as provision for sleeping, food etc. When a person takes up lodging or accommodation it would necessarily follow that he would use the same for his stay. He would do with the hope that his safety is taken care by the owner. Hotel industry being a service sector, an obligation is cast on the hotelier to ensure safety of the customers during their stay. He should take all precautions to see that the customers are not only comfortable, free from inconvenience but also safe. The appellant failed to ensure the safety of the deceased, thus committed deficiency in service.
The Forum awarded compensation on the basis of notional income of the deceased at Rs.200/- per day which is the approximately basic wages. The Forum applied multiplier ‘14’. Though the multiplier system is not applicable in all situations as held by the Hon’ble Supreme Court in Dr. Balram Prasad Vs. Dr. Kunal Saha ( 2014) SCC 384 it is not impermissible to do so as held by Hon’ble Supreme Court in United India Insurance Company Ltd. Vs. Patricia Jean Mahajan (2002) 6 SCC 281. Though multiplier ‘13’ could be applied as per the guidelines in Smt. Sarla Verma Vs. Delhi Transport Corporation (2009) 6 SCC 121 since the Forum has not granted any other benefits such as consortium, future expectancy or life, this Commission is not inclined to reduce the compensation by applying the lesser multiplier. Even otherwise, this Commission is convinced that reasonable compensation has been granted in view of the young age of the deceased and the age of the wife and two minor dependents.”
In this case, there are concurrent findings of both the fora below against the Petitioner hererin. As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269] that the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”
The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8th September, 2022, held that:-
“13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.
In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”
In view of the foregoing, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsels for the Parties and case laws relied upon by both sides, we are of the considered view that there is no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld. Accordingly, Revision Petition is dismissed.
The pending IAs in the case, if any, also stand disposed off.