C. Venuprasad & Ors vs. M/s Narangs International Hotel Pvt. Ltd dated 2012-11-09
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
ORIGINAL PETITION NO. 179 OF 1994
1. C. Venuprasad
General Manager (Operations)
Premier Vinyl Flooring Ltd.
C-2, Commercial Centre
Safdarjung Development Area
2. Radha Venuprasad
W/o C. Venuprasad
B-54, Gulmohar Park
3. Ram Venuprasad
S/o C. Venuprasad
56, Seethammal Road
4. Govind Venuprasad
S/o C. Venuprasad
56, Seethammal Road
5. Roy Short
R/o The Green, Long Itchington
CV 23 8 PH England
6. Sylvia Clive Short
W/o Roy Short
R/o The Green, Long Itchington
CV 23 8 PH England
7. Sotiriadis Themistoklis
R/o 11, Hrodou Attikou
8. Efthymia Sotiriadis
W/o Sotiriadis Themistoklis
R/o 11, Hrodou Attikou
9. Sotirios Sotiriadis
S/o Sotiriadis Themistoklis
R/o 11, Hrodou Attikou
10. Sunil K. Sreedharan
D/2, Padma Apartments, Thekaveedu Lane
Off YMCA Road
Calicut-673001 (Kerala) ..... Complainant (s)
M/s Narangs International Hotel Pvt. Ltd.
Regd. Office : The Ambassador, Churchgate
Mumbai-400020 ...... Opp. Party (ies)
ORIGINAL PETITION NO. 2 OF 1996
M/s Narangs International Hotel Pvt. Ltd.
Regd. Office at Ambassador Hotel
Churchgate, Mumbai - 400020 ..... Complainant (s)
OTIS Elevator Co. (India) Ltd.
Head Office at Rehem Mansion
1, 42, SBS Road
Mumbai-400039 ...... Opp. Party (ies)
HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
HON’BLE MR. S.K. NAIK, MEMBER
Appearance in OP/179/1994
For the Complainant (s) : Ms. Arijita Kakati, Advocate with
Ms. Arundhati, Advocate
For the Opposite Party (ies) : Mr. Sanjiv Sen, Advocate with
Ms. Shuchi Singh, Advocate &
Mr. Varun Kumar, Advocate
Appearance in OP/2/1996
For the Complainant (s) : Mr. Sanjiv Sen, Advocate with
Ms. Shuchi Singh, Advocate &
Mr. Varun Kumar, Advocate
For the Opposite Party (ies) : Ms. Misha, Advocate with
Mr. Yajur Sharma, Advocate
Pronounced on : 9th November, 2012
PER S.K. NAIK, MEMBER
1. Failure of proper upkeep and maintenance of the lifts in the Ambassador Hotel, Mumbai, owned and managed by M/s Narangs International Hotel Pvt. Ltd. is at the center of controversy in these two complaints. In OP No. 179 of 1994, complainants no. 1 to 10 were guests of the hotel. Their twofold allegations are that during the stay of complainants no. 1 to 9 in the Ambassador Hotel, on the 28th of February, 1994 there was a breakdown of power supply from 0030 hours till 0645 hours without any alternate arrangement of back up power supply, as a result of which they had to pass through a harrowing time and had to spend a restless night. As if this was not enough, on the same day while travelling in the lift from the lobby to the revolving restaurant on the 12th floor, complainants no. 2, 3, 5, 6, 7 and 10 got stuck/trapped midway between the 11th and 12th floor for two and a half hours, which was traumatic and the rescue operation was harrowing. Alleging gross deficiency in service, those who were trapped inside the lift and their relatives who were anxiously waiting outside and watching the sluggish rescue operation have filed OP No. 179 of 1994 seeking compensation of Rs.43,00,000/- from the OP Hotel.
2. Since the alleged deficiency primarily centered around the failure of the lift, the hotel in turn has filed OP No. 2 of 1996 against the OTIS Elevator Co. (India) Ltd., who had installed the lifts and had been entrusted with the task of maintenance on payment of consideration. Thus, while the ten guests of the hotel, target the hotel for the gross deficiency in service and have claimed damages/compensation, the hotel by filing OP No. 2 of 1996 has tried to pass on the blame/deficiency to the OTIS Elevator Company (India) Ltd. Thus, these two complaints are closely linked and, therefore, we proceed to decide them by this common order.
3. Facts of the case are that in OP No. 179 of 1994, complainants no. 1 to 9 while on a visit to Mumbai in connection with a wedding in the family of a common friend were lodged in the Ambassador Hotel during the last week of February, 1994. While staying there, on the 28th of February, 1994 there was a breakdown of power supply from 0030 hours to 0645 hours. There being no alternate back up power arrangement, all of them had to spend restless night and complainant no. 2 had an attack of asthma as a result thereof. The matter was brought to the notice of the management, including in writing. However, what precipitated the indignation was what followed the same day i.e. on 28th of February, 1994. At 1230 hours complainants no. 2, 3, 5, 6, 7 and 10 got into the lift at the lobby level to go for lunch in the revolving restaurant on the 12th floor. The lift moved up for a while and came to an abrupt halt with a jerk between the 11th and 12th floor entrapping all of them. Attempt by the opposite party hotel to rescue the entrapped lift passengers was not only belated but very crude and it took two and a half hours for them to be taken out of the cabin of the lift by physically pulling them out one after the other through a hole which was made by ripping open/cutting the iron grill at the top of the cabin. The process involved a constant hammering of the iron grills/parts resulting in the glass panels inside the lift breaking into pieces falling on those entrapped. The atmosphere was intensely claustrophobic and abhorrent. Alleging that the two and a half hours of agony and trauma was as a result of gross deficiency in service, the complainants have filed OP No. 179 of 1994 seeking the following reliefs:-
Compensation for deficiency in service on 28.2.94 from 1230 hrs to 1500 hrs as detailed in paragraphs 5(iii) to (x) ante in respect of
a) Complainants 2, 3, 5, 6, 7 and 10 trapped in the lift @ Rs. Five lakhs each
b) Complainants 1, 4, 8 and 9 who were outside and whose family member(s) was/were trapped @ Rs. two lakhs each
Compensation for deficiency in service on 28.2.94 from 0030 hrs to 0645 hrs as detailed in paragraph 5(ii) ante in respect of complainants 1 to 9, the occupants of Rooms 405, 202 and 211 @ Rs.50,000 each
Costs for getting the matter adjudicated under the Consumer Protection Act @ Rs.5,000/- each
4. During the pendency of OP No. 179 of 1994, M/s Narangs International Hotel Pvt. Ltd. filed OP No. 2 of 1996 against the OTIS Elevators Co. (India) Ltd. with whom they had entered into a maintenance contract for the proper maintenance of the lifts, which was the focus of deficiency suffered by its guests. M/s Narangs International Hotel Pvt. Ltd. in their complaint have alleged that the lift was installed by the OTIS Elevators Co. (India) Ltd. and they had been entrusted with the task of annual maintenance under a contract and on account of the failure on their part to maintain it properly that the lift got stuck causing hardships to their guests and they, therefore, prayed for holding the OTIS Elevators Co. (India) Ltd. grossly negligent/deficient in rendering service and have sought a compensation as under :-
Rs.5.00 Lacs each for six guests entrapped for 2 and half hours from 1200 hrs 30 min. to 15 hours on 28/02/1994 in the lift
Rs. 2.00 Lacs each to the four relatives and friends for mental agony
Rs.50,000 towards cost to 10 guests for having the matter adjudicated under the Consumer Protection Act (Rs.5000 each)
Legal expenses incurred by the complainants in OP No. 179 of 1994 and the present complaint
5. By the time M/s Narangs International Hotel Pvt. Ltd. filed their complaint (OP No. 2 of 1996) against OTIS Elevators Co. (India) Ltd. in 1996, the pleadings with regard to complaint/OP No. 179 of 1994 had already been completed. However, in view of the allegation of negligence on part of OTIS Elevators Co. (India) Ltd. alleged by M/s Narangs International Hotel Pvt. Ltd., it took quite some time to complete the pleadings, which included examination and cross examination of the witnesses by M/s Narangs International Hotel Pvt. Ltd. and the OTIS Elevators Co. (India) Ltd.
6. In OP No. 179 of 1994, affidavits by way of evidence were filed by complainants no. 1 to 6 and 10. With regard to complainants no. 7 and 8, it was requested on their behalf that since complainant no. 7 had undergone a surgery, their affidavits filed along with the complaint be treated as their evidence. On behalf of the opposite party-M/s Narangs International Hotel Pvt. Ltd., affidavits of their Executive Engineer, the Chief Engineer and the General Manager have been filed.
7. In OP No. 2 of 1996, on behalf of the complainant-M/s Narangs International Hotel Pvt. Ltd, affidavits of three persons i.e. their Executive Engineer, the Chief Engineer and the General Manager have been filed while on behalf of opposite party-OTIS Elevators Co. (India) Ltd. affidavits by way of evidence have been filed by Mr. C.C. Johnson, examiner of OTIS Elevators Co. (India) Ltd., Mr. B.R. Jadhav, customer service executive and Mr. A.R. Aundhkar, sales executive.
8. Since all the affidavits by way of evidence were read together, complainants no. 1 to 4 and 10 and three persons, who had filed affidavits from the side of opposite party in OP No. 179 of 1994 were cross examined. Complainants no. 5 to 9 being foreign nationals were not produced for cross-examination. In OP No. 2 of 1996, apart from three witnesses of the complainant-M/s Narangs International Hotel Pvt. Ltd., two out of the four officers of OP-OTIS Elevators Co. (India) Ltd., who had filed the affidavits, were also cross-examined.
9. Learned counsel for the complainants in OP No. 179 of 1994 has contended that complainants no. 1 to 9 had preferred to stay in the hotel expecting that they would receive the best comfort of a star hotel commensurate with the tariff charged by the hotel but to their dismay at 0030 hours 28th of February, 1994 the power supply suddenly went off and they had to fend for themselves with great deal of discomfort until the morning. The opposite party hotel had no alternate/ back up power supply and when complained about it, they explained it away by saying that there were frequent breakdown/power cuts from the source of supply and the local laws did not permit the owners of the hotel to install generators as an alternative. Learned counsel contends that the least the opposite party hotel ought to have done was to have informed them about the power cut in advance so that they would have been mentally prepared to face the situation. The attitude of the opposite party hotel thus cannot but be said to be indifferent and casual. In any case, when a tariff has been charged for AC accommodation, disruption of such facility amounted to withdrawal of that promised facility leading to deficiency in service.
10. The incident of failure of power supply apart, learned counsel has referred to the incident of malfunctioning of the lift on 19th of February, 1994, 25th of February, 1994 and 26th of February, 1994, which was also brought to the notice of the opposite party hotel, which obviously had no impact as the subsequent incident of 28th of February, 1994 proved when the six complainants no. 2, 3, 5, 6, 7 and 10 were entrapped for two and a half hours from 1230 hours onwards. It has been contended that the episode clearly proves that they were not only negligent but ill-equipped and not capable of handling an emergency. Do’s and don’ts stickers issued by the OTIS Elevators Co. India Ltd. were not displayed in the hotel. Action plan for release of the passengers from the lift in case of emergency issued by Otis Elevators Co. (India) Ltd. to opposite party hotel was not available with them. While the lift got stuck at 1230 hours, the records shows that the first call to OTIS Elevators Co. (India) Ltd. was made at 1355 hours keeping the passengers in utter suspense and agony. Apart from the six passengers stuck in the lift, four of the complainants close relatives were in extreme anxiety crying for help but except for some crude attempts nothing serious was being done for early rescue of those stuck inside the lift. While it was mentally agonizing for those outside the lift, those inside were passing through a trauma which is beyond imagination.
11. It has further been contended by the learned counsel that the OP Hotel cannot escape from its liability on the pretext of the failure on part of their contractor i.e. OTIS Elevators Co. (India) Ltd. to maintain the elevators in proper condition. In support of this contention, learned counsel has relied upon a judgment of Privy Council in Wong Mee Wan V. Kwan Kin Travel Services Ltd. & Ors. [1995 (4) All ER 745]. On the point of compensation, she has referred to the judgment in the case of Kailash Kumar V. Shankar & Co. [1992(2) CPT 443(444-45)] and the provisions of Section 14(1)(d) and 14(1)(e) of the Consumer Protection Act, 1986 and has prayed that for the gross negligence, the complaint deserves to be allowed with the relief as prayed for with heavy cost.
12. On the other hand, learned counsel for the OP Hotel has contended that the blame squarely rests on the OTIS Elevator Co. (India) Ltd., who is a reputed elevator manufacturer. They had not only installed the lift but had the renewal maintenance contract for over the years. Their responsibility and accountability cannot be overlooked on their plea of some foreign material having been found in the gear oil for the simple reason that the gear box is a sealed unit and the special type of gear oil is supplied by the OTIS Elevator Co. (India) Ltd. themselves. Their own employee Mr. Johnson in his evidence has stated that foreign material could have entered either from outside or it could even be the result of some wear and tear/breakdown of gear/worn shaft. To blame the hotel staff with the allegation of tampering of gear box, therefore, cannot be sustained. It must have been the adulterated gear oil which was supplied by the OTIS Elevator Co. (India) Ltd., which would have caused the damage to the gear inside the box.
13. Counsel further contended that pursuant to the contract of annual maintenance, they had discharged their responsibility. No register/logbook of regular maintenance of the lifts was ever produced to prove that the hotel was ever pointed out any lapse on its part or any advisory given. What would have been the clinching evidence with regard to the so called foreign material in the gear oil should have come from an analysis of the contaminated gear oil which was, however, not subjected to any laboratory test. Even though there is a reference to the OTIS Elevator Co. (India) Ltd. having ordered an investigation into the incident, the said report dated 5th of April, 1994 has not been brought on record. In their attempt to pass the blame onto the engineering staff of the Hotel, they have falsely alleged that the engineering staff of the hotel had mishandled/tampered with the machine of the lift in an unauthorized manner, which is not true. The fact remains that whatever action was authorized as per the action plan in case of emergency only was resorted to by the engineering staff to handle the contingency. To the contrary, the hotel staff was continuously trying from 1240 hours onwards to inform the OTIS Elevator Co. (India) Ltd. about the incident but there was no response on the telephone from their side. As per record, for the first time the call matured at 1329 hours. Their staff thereafter took some time to reach the hotel and even they failed to move the lift even an inch from the place where it was stuck and, therefore, the Fire Brigade was called to help rescuing the entrapped passengers. It has been submitted that there was no deficiency on part of the Hotel. The blame for the entire episode, the learned counsel contends, rests on the OTIS Elevator Co. (India) Ltd., who were deficient in rendering the service of maintenance and, therefore, their complaint no. 2 of 1996 be allowed with cost.
14. The say of the OTIS Elevator Co. (India) Ltd. is that no doubt they had a maintenance contract with the Hotel but with regard to the incident of 28th of February, 1994, they received the information at 1355 hours and their staff reached the hotel within ten minutes. To their surprise, they found that the cranking handle had been bent in the process of someone forcefully trying to manually operate the machine unauthorizedly. Subsequent investigation, according to him, revealed that the cause of seizure of the lift was presence of foreign material in the gear box oil. Obviously, some untrained and unqualified hotel staff, in their anxiety to operate the lift, had interfered with the system. According to him, on earlier occasions also Mr. Johnson of the hotel had opened the gear box to use the break release system. It has further been contended that there was a plethora of correspondence on record repeatedly telling the hotel management about the wrongdoing of the hotel staff about misuse of the lift spaces, machine room and throwing of waste material in the lift starting from August, 1993. The hotel management was being warned of all these but nothing was done. It is claimed that they have been doing their maintenance work diligently and competently. The OTIS Elevator Co. (India) Ltd., therefore, cannot be held deficient and the onus, if any, is on the hotel for being deficient as all their actions were unauthorized resulting in the mishap of 28th of February, 1994.
15. At the outset, it may be noted that the entrapped guests of M/s Narangs International Hotel Pvt. Ltd. and their relatives filed the complaint (OP No. 179 of 1994) on 5th of August, 1994 whereas M/s Narangs International Hotel Pvt. Ltd. filed their complaint (OP No. 2 of 1996) on 5th of January, 1996. Interestingly, in their complaint they have prayed for exactly the same amount of compensation claimed by the entrapped guests in OP No. 179 of 1994 and have further stated that in the event of any compensation being awarded to the complainants in OP No. 179 of 1994 i.e. to the entrapped passengers and their relatives, the same be directed and ordered to be reimbursed to them i.e. M/s Narangs International Hotel Pvt. Ltd. by the Opposite Party i.e. OTIS Elevators Co. (India) Ltd. Obviously, this belated complaint was filed by M/s Narangs International Hotel Pvt. Ltd. only as a cover to the complaint filed by the entrapped passengers and their relatives in their effort to pass the blame and burden to the OTIS Elevators Co. (India) Ltd., as we shall see in our discussion later.
16. Coming to OP No. 179 of 1994, we find that the complainants have alleged gross deficiency in service on part of the OP Hotel on the following grounds :-
(i) Firstly, during their stay in the Hotel there was no power supply in the rooms from 0045 hours to 0630 hours on 28th of February, 1994, which caused great deal of inconvenience and discomfort. The complainants were never informed that there were frequent breakdowns of power supply nor was there any alternative arrangement. An elderly lady suffered an attack of asthma because of the prolonged disruption of power supply. Tariff charged for AC rooms in such circumstance had no justification. It was worse than staying in a non-AC room.
(ii) The same day while proceeding for lunch to the revolving tower on the 12th floor complainants no. 2, 3, 5, 6, 7 and 10 got entrapped in the lift between the 11th and 12th floor as the lift suddenly stopped moving at about 1230 hours. It took the authorities two and a half hours to finally rescue the entrapped passengers with the help of Fire Brigade who had to cut the iron grills with the use of heavy cutting machine, which traumatized the entrapped complainants.
(iii) That even prior to this incident, there had been frequent breakdowns of the lift on the 29th of January, 1994, 19th of February, 1994, 24th of February, 1994, 25th of February, 1994 and 26th of February, 1994, about which no serious cognizance was taken to ensure that the lift was repaired and made operational free of any risk. The attitude of the OP Hotel was totally callous. The OP Hotel, therefore, cannot advance the plea that it was the OTIS Elevator Co. (India) Ltd., who alone was responsible for the incident. Repeated malfunctioning of the lift ought to have alerted the OP Hotel and persisted with the OTIS Co. to set them right which was never done.
(iv) The staff of the OP Hotel to whom the rescue operation was delegated were neither trained nor competent to deal with such a situation. It appears that they had been tinkering with temporary breakdowns of the lift by manually operating the lift from the machine room by opening the cover of gear box without informing the OTIS staff. Hoping, perhaps that this time too they would be able to handle the situation and in their anxiety to rescue the guests they undertook the exercise themselves. We say so because while the lift was stuck on 1240 hours, the first call to the OTIS staff was made at 1325 hours. Obviously, the hotel staff had tried their hand to carry out an exercise to rescue the entrapped passengers and only when they found the situation beyond their competence that the OTIS people were summoned. We do not subscribe to the defence of the OP Hotel that any telephone call was made immediately after the incident. Their own evidence does not support this contention. Their staff Mr. John Joseph was a diploma holder in air conditioning and refrigeration and had no training of lift maintenance and Mr. Sapan Kumar Sarkar, the chief executive engineer, was only a marine mechanical engineer and had not received any specialized training with regard to handling of lifts. The log book with regard to periodical maintenance was not being maintained properly.
17. In short, the OP Hotel was squarely negligent in not ensuring the proper maintenance of the lifts and further not taking the prompt/immediate/timely steps to rescue the entrapped complainants clearly amounts to deficiency in service. This view is based on the preponderance of evidence on the record and to avoid burdening this order, we may only refer to the cross-examination of Mr. John Joseph and Mr. Sapan Kumar Sarkar (page 38 Vol.II, page 228 Vol. I and page 62 of Vol.II). That Mr. John Joseph and the staff had been fiddling with the lifts on certain occasions flows from his admission that in undertaking the exercise to rescue the entrapped passengers he relied only on his common sense (page 52 Vo. II). In their defence, the OP Hotel has also taken a plea that since they had an annual maintenance contract with the OTIS Elevator Co. (India) Ltd., lapse, if any, and the liability should be on them i.e. the OTIS Co. This aspect will be dealt with when we discuss the OP No. 2 of 1996 of the OP Hotel, in which the OTIS Elevator Co. (India) Ltd. is the OP but suffice it to say that irrespective of the hotel having engaged the services of the OTIS Co. as their contractor to look after the maintenance of the lifts, the OP Hotel as a service provider had the independent primary duty to ensure that the lift was properly maintained and safe for the users all the 24 hours of a day. We are, therefore, clearly of the view that the accountability and responsibility of the OP Hotel cannot in any way be mitigated/minimized just because they had a contract with the OTIS Elevator Co. (India) Ltd.
18. Learned counsel for the OP Hotel during his lengthy argument has made an attempt to raise objection with regard to the maintainability of the complaint by a group of unrelated complainants and has further contended that the complaint was filed as a counterblast to the denial of certain concessions/rebate sought for by the complainants for the period of their stay and further that the complaint was not maintainable for the reason also that the complainants had not paid the tariff from their own account but were the guests of the company who had booked the rooms for their stay. We outrightly reject these contentions as the complainants had stayed in the Hotel as their guests to avail their services and clearly they were ‘consumers’ within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and the OP Hotel was a ‘service provider’. It is the normal expectation of any guest selecting a star hotel for their stay to expect the best of treatment and facility without any let or hindrance since such star hotels charge a hefty amount of tariff. In this regard, contrary to their expectation, the guests were trapped inside the cabin of the lift from 1230 hours to 1500 hours followed by breaking open the tops of the lift when there was constant hammering and pounding, thereby breaking the glass panel falling inside the lift. The experience must have been that of great mental agony and trauma. What is, however, strange is that despite the episode, the OP Hotel in its written version has taken the plea that “the guests use all facility and service at their own risk”. We deprecate this course adopted by OP Hotel to escape their liability irrespective of whether it is stated in their house rule or otherwise.
19. Learned counsel for the OP Hotel has also tried to make out a case of the complaint being a counterblast to the denial of concessions/discount asked for by the complainants on the pretext of power breakdown during the early hours of 28th of February, 1994. Much has been made out of a note of grievance recorded by Shri Venuprasad, one of the complainants, on the stationery of Hotel stating therein that there was total power failure in the Hotel which lasted from 0130 hours to 0645 hours resulting in some of his guests shifting to other hotels. It was a suggestion made therein that the guests in room nos. 801, 504, 403, 401 and 205 be not charged one day’s room rent and the others be awarded a discount of half a day’s rent. Learned counsel has contended that the complaint has been filed as a result of the hotel not permitting the discount/waiver of the tariff. We reject this contention as the OP Hotel cannot blow hot and cold in the same breath, inasmuch as they have also advanced a plea that since the guests were not to pay the hotel tariff from their own pocket but the rooms were booked on behalf of the company. This argument will not help mitigate the deficiency in service. On the contrary, we find that the OP Hotel itself has sent a cheque of Rs.9126.25 to Mr. Venuprasad to contend it to be against full and final settlement of the accounts and simultaneously expressing the hotel’s deep regret for the inconvenience caused to him and the other members of the group. The letter has been signed by none else than the General Manager Mr. Sanjeev Kapoor. We note that the said cheque was returned by Mr. Venuprasad. This act of a refund of some amount with expressing their regret indirectly amounts to an admission of their failure to provide the requisite service.
20. Insofar as compensation is concerned, learned counsel for the OP Hotel has vehemently argued that the complainants are not entitled to the compensation sought for as no loss as such has been incurred by them and in that regard, he has cited the following judgments of Hon’ble Supreme Court :-
(i) Union Bank of India V. Seppo Rally OY And Another [(1998) 8 SCC 357];
(ii) Ravneet Singh Bagga V. KLM Royal Dutch Airlines And Anr. [(2000) 1 SCC 66]; and
(iii) Consumer Unity & Trust Society, Jaipur V. Chairman & Managing Director, Bank of Baroa, Calcutta And Anr. [(1995) 2 SCC 150].
21. We have perused the said judgments and find that the facts of the said cases have no applicability to the facts of the present case and in any case Hon’ble Supreme Court in the case of Ghaziabad Development Authority V. Balbir Singh [(2004) 5 SCC 65] on the subject of compensation has held as under :-
“The word ‘compensation’ is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, ‘compensating or being compensated; thing given as recompense;. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or service and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also compensate a consumer for injustice suffered by him.”
22. Insofar as determining the quantum of compensation is concerned, we find that only six complainants i.e. complainants no. 2, 3, 5, 6, 7 and 10 were trapped inside the lift for two and a half hours and had suffered the mental agony and trauma for which they are entitled to the compensation. In our view, a lump sum amount of Rs.2,00,000/- to each one of the six entrapped complainants appears to be just and proper in the facts of this case. In addition, the OP Hotel should pay a sum of Rs.10,000/- towards the cost of litigation.
23. Now coming to the complaint of M/s Narangs International Hotel Pvt. Ltd. i.e. OP No. 2 of 1996, the case made out by the complainant Hotel is that since they had a running maintenance contract with the OP OTIS Elevator Co. (India) Ltd., the responsibility for the alleged deficiency/malfunctioning squarely rested on the OTIS Co. and they have absolutely no liability.
24(i). In support of their contention, learned counsel for the complainant Hotel has referred to the judgment of Kings Bench Division in Haseldine Vs. C.A. Daw and Son, Limited CA 1941, which reads as under :
“The invitor is bound to take that kind of care which reasonable prudent man in his place would take neither more nor less. The landlord or a block of flats, as occupier of the lifts, does not profess as such to be either an electrical skill he cannot rely on his own judgement, and the duty of care towards his invitees required him to obtain and follow good technical advice. If he did not do so, he would, indeed, be guilty of negligence. To hold him responsible for the misdeeds of his independent contractor would be to make him insure the safety of his lift. That duty can only arise out of contract, as in the case of an employer’s duty towards his employed which in certain cases may make him responsible for the structural fitness of the premises where they are to work.
In the present case the landlord was ignorant of the mechanics of his hydraulic lifts and it was his duty to choose a good expert, to trust him, and then to be guided by his advice. I think that he realized his duty and wholly discharged it, so far as the safety of others was concerned, for he chose a first class firm of lift engineers and trusted them, and over a long period of years and in connection with many lifts be found them trustworthy. His contract with them did not include alterations or repairs, but it called for regular reports.
The engineers evidently had a very high reputation and wide practice as lift engineers, and I can see no ground whatever for doubting that the landlord took every reasonable precaution in trusting to their examining the lift with care and reporting to him if there was any indication of danger. The landlord thus duly performed his whole duty of care to be plaintiff and others using the lift, even if they were his invitees, by contracting with the engineers and then leaving the expert problems, of which he was ignorant, entirely to his experts who possessed the requisite knowledge. If he did not fail in his duty to an invitee, a fortiori he did not fail if the plaintiff was a mere licensee.”
24(ii). A careful reading of this judgment presupposes that the Hotel has to prove that it has taken reasonable care as flowing from the facts of a case. In the case in hand, not only there is a total failure on part of the staff of complainant Hotel to take reasonable care but the facts with regard to unauthorised handling and tampering with the lift by untrained/unqualified hotel staff, not reporting of earlier breakdowns and forcible attempt to handle the lift controls are writ large. The previous history and correspondence exchanged between the complainant Hotel and the OTIS Elevator Co. (India) Ltd. had clearly established that the lifts were not in perfect running condition and required urgent repairs to which not enough seriousness was accorded by the complainant Hotel. Obviously, the judgment cited by the learned counsel would not, therefore, fit into the facts of the present case to bail out the complainant Hotel in any manner.
24(iii). In this regard, we are inclined to agree with the submission made by the learned counsel for the complainants in OP No. 179 of 1994 that a person is as much liable for the acts of its independent contractor as for his own acts i.e. “if a person agrees to offer services, he cannot escape his liability by raising a plea of delegation of the performance thereof to a third party”. This view finds support from the judgment of the Privy Council in Wong Mee Wan V. Kwan Kin Travel Services Ltd. (supra), in which it has been held as under :-
“The fact that the supplier of services may under the contract arrange for some or all of them to be performed by others does not absolve the supplier from his contractual obligation. He may be liable if the service is performed without the exercise of due care and skill on the part of the sub-contractor just as he would be liable if the sub contractor failed to provide the service or failed to provide it in accordance with the terms of the contract. The obligation undertaken is thus, if the person undertaking to supply the service performs them himself, that he will do so with reasonable skill and care, and that if, where the contract permits him to do so, he arranges for others to supply the services, that they will be supplied with reasonable skill and care”.
25. In our earlier discussion, it has been noted that the lift had malfunctioned on a number of previous occasions and the Hotel staff had unauthorisedly handled the emergencies. On the day of the incident i.e. on 28th of February, 1994 while the lift stopped functioning at 1230 hours, the call register of the complainant Hotel itself shows that the first call was made to OTIS Co. at 1341 hours (page 250-151 of the paper-book in OP No. 179 of 1994). This apart, the letters of Mr. and Mrs. Short dated 8th of March, 1994 addressed to the Hotel also stated that the frantic efforts of the entrapped passengers in the lift “received very poor response for long” and “confusion was discernible”. This is also borne out from the letter of Govind Venuprasad, which stated “Despite my requests to inform the elevator maintenance firm, the men on the spot they were insistent on handling the job themselves. Their attempt were to put it mildly-crude and illogical”.
26. On the plea of the complainant Hotel that the gear box was a sealed equipment and the gear oil could be replenished/replaced only by their own staff, we are inclined to believe the defence of the OTIS Co. that when the elevator was stuck on the 24th of February, 1994 and 26th of February, 1994, the Hotel staff had handled the equipment without informing the OTIS staff and in the process had opened the gear box to release the break system. Maybe, in the process the Hotel staff would have put some lubricating material into the system or may have handled the machine in a crude and rough manner resulting in some inner parts getting brittled inside. We find that Mr. John, in his cross-examination, has denied that he ever opened the gear box but has admitted that only the gear box cover has been opened to release the break in case of certain situation. Since it is contended that there is no need to open the gear box cover in order to release the break system, we do not find any substance in the contention of the complainant Hotel that their staff was totally innocent with regard to the handling of the lift machine at their own level resulting in the malfunctioning.
27. Further, the negligence of the complainant Hotel is apparent from the correspondence the OTIS Elevator Co. (India) Ltd. had with them vide their letter dated 4th of December, 1993 followed by subsequent communication dated 16th of February, 1994 (extracted below). Through these letters, the OTIS Elevator Co. (India) Ltd. had brought to the notice of the complainant Hotel the number of problems faced by them from the staff of the hotel continuously over a period of time. The staff had been misusing the elevators. In the latter communication, it was clearly pointed out that the OTIS Elevators Co. (India) Ltd. would need approximately 3 weeks’ time to carry out the necessary work of renewing the wiring of the hoistway and the car and had requested the hotel to decide three weeks’ period for the shutdown. This advice of the OTIS Co. to the complainant Hotel clearly brings out that the lifts perhaps were very old and required thorough repair/replacement of certain important components, for which obviously the use of the lifts had to be stopped for a prolonged period. The evidence on record does not show that the hotel took any serious note of this advice perhaps because their business was running smoothly without any serious incident/mishap and perhaps also because there were no protests from the side of the guests.
“December 4, 1993
Mr. Sanjeev Kapoor
The Ambassador Hotel
Sub: MAINTENANCE OF OTIS LIFTS AT AMBASSADOR HOTEL, BOMBAY
Ref: Your letter No. SK/MF/AMBO/93 dated November 19, 1993
Your letter under reference addressed to our Managing Director, Mr. R.R. Bajaaj, was directed to me for initiating appropriate remedial measures. At the outset, kindly accept my apologies for the delayed response to your various complaints and the resultant inconvenience you are subjected to.
Immediately on receipt of your letter, I have reviewed the subject of maintenance of the elevators with the Area Executive and Supervisor, Messers A.A. Brananza and B.R. Jadhev respectively, who were instructed to investigate the problems and report to me.
I understand that Mr. Jadhev and the Route Examiner, Mr. C.C. Johnson had subsequently met your Chief Engineer, Mr. Sarkar, on 26th November, 1993, and the contents of your letter were discussed in detail, which I would like to summarise as under :-
1. Provisions of Emergency Lighting in car:
Our Repair Order (52T9833B) was received from you on 24th August 1993, materials procured on 11th October 1993 and the work executed on 23rd October 1993. This was checked by Mr. Sarkar, on 25th October 1993.
2. Intercom System of GE :
Though the intercom system has been working, this has been dysfunctional from the car to the lobby receipt desk due to the fact that the cable from the hoistway to the lobby reception master was damaged and needed replacement which was to be arranged and work executed by you.
Unfortunately, our repated appeals to have this work done at your end do not appear to have any positive response from your end, with the result the work remains unfinished.
3. Annunciator System on S.E:
There has been a perennial problem of misuse of hall buttons resulting in damage to the annunciator wires. Repairs are carried out from time to time after obtaining Service Orders from you – the most recent one being 52T980B completed in Sept. ‘ 93. However, the annunciator could not be put in operation as the damaged wires were to be replaced for which, no shutdown of the elevator was available. In view of your difficulty in shutting down the elevators during day time, we have now decided to carry out the repair work during night and, our estimate in this respect is expected to reach you by 4th of December 1993.
4. Broken Ropes of S.E:
It was not the rope which is reported to have broken but the selector tape – the cause of which was traced to a place of rag which got stuck in the tape. This is not uncommon at site, as dusters, beer bottles etc. are found thrown in the elevator shafts, hindering routine maintenance and giving rise to the problems which had in the past resulted in major breakdowns. I am advised that this was brought to the notice of your Chief Engineer on several occasions but, he is unable to control the problem.
You will no doubt appreciate that the situations as explained above, mainly stem from misuse of the elevators, are not conducive to uninterrupted elevator service. However, we reiterate our commitment to render satisfactory operation of the elevators at all times, particularly in view of the fact that yours is a prestigious Hotel. I have already instructed the attending technicians, to ensure that top priority is accorded on your elevators and that repairs, replacements, when warranted, are undertaken expeditiously.
OTIS ELEVATOR COMPANY (INDIA) LIMITED
“February 16, 1994
Mr. Sanjeev Kapoor
The Ambassador Hotel
Sub: MAINTENANCE OF OTIS LIFTS AT AMBASSADOR HOTEL, BOMBAY
This has reference to the discussion the undersigned had with you on 4.2.94, wherein you had pointed out certain items of work that need attention: The points raised by you are listed below:
SERVICE ELEVATOR, M/C NO. EO288
The annunciator of the Service elevator is not functioning.
This, as you pointed out, was brought to our attention in Aug ’93, however it would not be incorrect to point out that we had written to you on 4.12.93 vide letter BSD:ME3216/RS informing you that on account of the nonavailability of a shutdown during the day, we were unable to carry out the work.
We had also sent to you, a quotation for carrying out the work by night in our estimate B2ME3216/BR:1/12, for which there was no response.
As you have stated that you are now entering a lean period this is to inform you that we would need a shutdown for approx. 3 weeks, to carry out the work, as it is necessary to renew the wiring of the hoistway and the car; for this an estimate will follow shortly.
With regards to your request that routine maintenance be carried out on the Service elevator on any two fixed days in the month, we suggest that it should be on the 2nd and 4th Saturdays of every month between 9am and 12 noon; it will be our endeavor to meet this schedule.
If for any reason, we are unable to do so, we will keep you informed.
… ELEVATORS : M/C. NOS. E3216/7
Your complaint about the non-working of the indicator lamps of the hallbuttons of the guest elevators.
This is an ongoing piece of work and the fused lamps are replaced as and when required.
The reference made by your good-self regarding the defective emergency bell for the guest elevators has been noted and the defective unit will be replaced by 20.2.94.
Regarding your desire to provide brass claddings on all the landing doors, we request that you inform us what thickness of brass sheet you intend to provide, also how you plan to fix this brass cladding on the doors, and as a result of fixing the brass cladding, how much will the door thickness increase.
Only after receiving this information will we be in a position to inform you, if it is feasible for you to go ahead with your plan.
DUMWAITER, M/C NO. E9861
Your suggestion that the dumbwaiter be provided with a cardoor to avoid spillage of utensils is being studied by us and we will revert to you shortly.
During the discussion it was pointed out by you, that the intercom from the car to the lobby master is not working and as explained to you the cable from the hoistway to the lobby master is damaged and needs to be replaced by your goodselves, as soon as the cable is replaced, we will check and put the intercoms into operation.
Assuring you of our best services at all times.
OTIS ELEVATOR COMPANY (INDIA) LIMITED
28. When we consider the evidence including the cross-examination of the witnesses on record and take into account the facts that the OP OTIS Co. had been repeatedly advising the complainant Hotel to accept the estimates of repair and agree to shutdown of the lifts spreading over a period of 3 weeks and the complainant Hotel in their commercial interest not paying any heed to the request of the OP OTIS Co., we find no case of negligence on part of the OP OTIS Co. We say so because the complainant Hotel being the main service provider ought to have acted promptly and ensured the repair/replacement of their own lifts. It appears that the complainant Hotel had developed an indifferent attitude and inertia appears to have set in so long as their business was going on albeit not fully satisfying the service to their customers. Their complaint, therefore, has no merit and, accordingly, deserves to be dismissed.
29. To summarize, we, therefore, hold that the complaint (OP No. 179 of 1994) with regard to six entrapped complainants no. 2, 3, 5, 6, 7 and 10 partly succeeds and the OP-M/s Narangs International Hotel Pvt. Ltd. is directed to pay Rs.2,00,000/- to each one of the six entrapped passengers along with Rs.10,000/- as cost within a period of six weeks from today, while the complaint of M/s Narangs International Hotel Pvt. Ltd. (OP No. 2 of 1996) fails and is, accordingly, dismissed with no order as to cost.
( R. C. JAIN, J. )