Unnikrishnan vs V MURALEEDHARAN

-THIS revision is directed against the order dated 30. 11. 2000 of Consumer Disputes Redressal Commission Rajasthan, Jaipur allowing appeal against the order dated 23. 5. 1997 of a District Forum and dismissing the complaint. The District Forum had allowed the complaint with direction to Laxmi Vilas Hotel-respondent to pay a consolidated amount of Rs. 11,000 as damages towards mental agony, medical treatment, etc. to the petitioner.

FACTS giving rise to this revision lie in a narrow compass. Petitioner wanted to arrange a dinner on the occasion of birthday of her grand son on 28. 9. 1994 in a hotel. On being approached, the respondent hotel assured the petitioner of the supply of best food and service. Rate for 140 participants was settled at Rs. 115 per participant and the petitioner allegedly paid advance of Rs. 4,000 on 27. 9. 1994 for which no receipt was issued. Dinner on the said date continued till late night. It was alleged that the guests present in the dinner expressed dis-satisfaction as regards quality of the food served. Food supplied was sub-standard and stale. In the morning on 29. 9. 1994, the petitioner had vomiting and loose motions. Her family members too fell sick. They were treated by Dr. B. K. Jain for food poisoning. J. P. Mathur, Narendra Kumar Aggarwal, Satish Jain, Ashok Kumar, Vishambhar Dayal, Om Prakash, K. B. Garg, Kumari Anuj Arora, Smt. Manorama Arora, Dilip Singh, Shri Pandey Saheb and others who took the dinner, also suffered from food poisoning and taken treatment at different places. Alleging deficiency in service, the petitioner filed complaint claiming compensation of Rs. 1,00,000 towards mental agony, Rs. 50,000 towards treatment, etc. and cost which was contested by the respondent hotel. Written version on the affidavit of Madan Lal Sharma was filed denying receipt of advance money of Rs. 4,000 on 27. 9. 1994, settling the rate @ Rs. 115 per participant, dinner having been served in the hotel on 28. 9. 1994 and the petitioner and others having fallen sick as alleged. It was stated that the petitioner is not a consumer nor the respondent a service provider and the complaint was not maintainable under the Consumer Protection Act, 1986 (for short the Act ). In support of the complaint, the affidavits of Satish Chandra Jain, Ashok Kumar Sharma, J. P. Mathur, Narendra Kumar Aggarwal, Dilip Singh and Smt. Manorma Arora were filed before the District Forum along with the complaint. Since the written version filed on behalf of hotel was on the affidavit of Madan Lal Sharma, the respondent did not file any other affidavit by way of evidence. Rebutting the affidavit of Madan Lal Sharma, the petitioner filed her affidavit.

We heard Ms. Mary Milzy for the petitioner and Mr. Rohit Madan for the respondent.

NEEDLESS to repeat that in the written version filed on the affidavit of Madan Lal Sharma it has been denied that any dinner was served on 28. 9. 1994 and advance money of Rs. 4,000 was paid on 27. 9. 1994 by the petitioner. In their affidavits Satish Chandra Jain, Ashok Kumar Sharma, J. P. Mathur, Narendra Kumar Aggarwal, Dilip Singh and Smt. Manorma Arora have averred that they had taken the dinner arranged by the petitioner in the respondent-hotel on 28. 9. 1994. Affidavits of these witnesses have been disbelieved by the State Commission on the grounds of change in date in verification from 17 to 25 of the month of November, 1994 and parentage and addresses of these witnesses not having been disclosed in the list of participants filed along with the complaint. Photostat copies of the affidavits of these witnesses placed on the file would show that these were sworn before an Oath Commissioner on 25. 11. 1994. To coincide with this date, the date of 17th seem to have been changed to 25th in handwriting. Change in date in verification, thus, could not be the ground to doubt the genuineness of the affidavits. In our view, non-mentioning of the parentage and addresses of participants in dinner in the list filed along with complaint has no relevance whatsoever for determining the genuineness of the affidavits. Aforesaid order of the District Forum would show that during the course of argument, it was admitted by the Counsel appearing for the respondent hotel that the dinner was arranged in Laxmi Vilas Restaurant which is a distinct entity from Laxmi Vilas Hotel, respondent. However, this plea was not accepted by the Forum observing that Laxmi Vilas Restaurant is operating in the premises of Laxmi Vilas Hotel and both of them are engaged in similar business. In this revision, petitioner has filed the copy of notice dated 13. 2. 1995 got served by Laxmi Vilas Restaurant through Mr. Gopi Chand Jain, Adv. on the petitioner. This would show that dinner was arranged on 28. 9. 1994 and charges were fixed @ 115 per person and petitioner was called upon to pay the dinner charges within 15 days of the receipt of notice failing which legal action was threatened to be initiated against her. It was pointed out by Mr. Madan, Adv. that this ntoice was not filed before the Fora below. He submitted that as this notice has been filed for the first time in revision, it cannot be taken note of in the case. However, issuance of this notice by Laxmi Vilas Restaurant though Counsel was not seriously disputed. It is pertinent to mention that it is not the case of respondent in the written version that the dinner was arranged in Laxmi Vilas Restaurant instead of respondent-hotel. Respondent had not chosen to cross-examine any of the deponents of the above affidavits filed by the petitioner. There does not seem to be any reason for Satish Chandra Jain and others to have filed affidavits falsely averring that they had participated in the dinner arranged by the petitioner in the respondent-hotel on 28. 9. 1994. Stand taken by the respondent in regard to its not having served any dinner on 28. 9. 1994 is, thus, to be held to be totally false. Ordinarily, no hotel woul arrange dinner for a stranger unless some money is paid in advance. Thus, the plea taken by the petitioner in regard to having paid advance money of Rs. 4,000 for which no receipt was issued by the respondent, seems to be plausible. This brings us to the allegation in regard to food served being sub-standard and stale. Order of District Forum notices that medical certificates of different participants - Exhibits 4 to 13 were filed by way of evidence. Affidavits of aforesaid Satish Chandra Jain, Ashok Kumar Sharma, J. P. Mathur, Narendra Kumar Aggarwal, Dilip Singh, Smt. Manorma Arora would show that they had developed fever and diarrhoea after taking dinner on 29. 9. 1994 for which they had received treatment. Said averment is also supported by the affidavit of the petitioner. Obviously, these participants had developed diarrhoea and fever because of consumption of sub-standard/stale food at the respondent hotel. Respondent-Hotel being deficient in service cannot escape liability for payment of compensation, etc. Order of State Commission, thus, deserves to be set aside being not legally sustainable and order of District Forum restored.

RESULTANTLY, while accepting revision aforesaid order dated 30. 11. 2000 of State Commission is set aside and order dated 23. 5. 1997 of the District Forum is restored. Respondent-hotel will also pay Rs. 15,000 as cost to the petitioner. R. P. allowed.