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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Subhash Chandra, Presiding Member and Dr. Sadhna Shanker, Member
Parkhyatt Goa Resort & Spa and Anr. – Appellants
versus
Vinay Rajkumar Rajpal – Respondent
First Appeal No.285 of 2012
(Against the Order dated 25/01/2012 in Complaint No. 7/2007 of the State Commission Goa)
Decided on 19.8.2024
For the Appellants:Mr. Sangram Patnaik, Advocate With Mrs. Swyam Sidha Patnaik and Mr. Sohel Rishabh, Advocates
For the Respondent:Ms. Srishti Gupta, Advocate
IMPORTANT POINT
Professional Negligence – Negligence in building plan or construction thereof should be supported by expert evidence/opinion of architecture.
Headnote:
Consumer Protection Act, 1986 – Section 13(1)(c) – Professional Negligence – Defective design of bathroom – No expert evidence/opinion of architecture &/or civil engineer – State Commission has also not examined issue whether complainant at the time of accident was under the influence of alcohol which was served during the lunch party before accident & was attended by complainant – There is neither commercial element in claim by complainant/respondent nor there is any contractual rate of interest on record between parties – Finding of defective design is not based on any expert opinion as required under Section 13(1)(c) of Act – As regards defective design & maintenance of bathroom, complainant has not adduced any evidence/expert opinion & only on mere saying of complainant & in absence of expert opinion, it cannot be said that bathroom had defective design & due to defective design, complainant suffered injuries – State Commission erred in concluding that design of bathroom was defective & order of SC Is liable to be set aside. (Paras 16, 17 to 20)
Result: Appeal Allowed.
ORDER
Dr. Sadhna Shanker, Member.—The present appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) by Parkhyatt Goa Resort & Spa and Blue Coast Hotels and Resorts (hereinafter referred to as the “opposite parties no. 1 and 2, respectively”) assailing the Order dated 25.01.2012 passed by the State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as the “State Commission”) in Complaint No. 07 of 2007 whereby the complaint was allowed.
2. The facts, in brief, are that the complainant, aged about 29 years, along with his wife Mrs. Ravina Rajpal were invitees for the wedding of Mr. Siddharth Bhimrajka, who had booked several rooms in opposite party No.1, a Five Star hotel belonging to opposite party no.2. The complainant along with his wife checked in on 07-07-2005 and was allotted room No. 321 on the ground floor. On his arrival, the complainant was welcomed and one of the hotel staff escorted him to the said room and showed the complainant the basic features of the said room. The complainant found the room to be nice and pleasant. The complainant also saw the bathroom and he & his wife found that the bathroom was peculiar but chose not to raise any concern with opposite parties’ authorities regarding its peculiar nature or show his willingness to shift to another room. The complainant attended the pool side lunch party in the afternoon on 09.07.2005during which alcohol was served but according to the complainant the complainant did not consume any alcohol. The complainant returned to the room around 2.30 to 3.00 p.m. and entered the bathroom to take a shower bath. The bathroom had three steps to go down to the bathing area and there was a handle bar to the right. When the complainant took the second step, the complainant slipped with great force, fell down and suffered injuries. The complainant was attended to by doctors and as per their advice the complainant was taken to Apollo Victor hospital where the complainant was administered immediate first aid and treatment. The complainant consulted some doctors from Mumbai and on their advice the complainant was flown to Mumbai by a chartered flight of Air Ambulance Service. The complainant was admitted to Jaslok Hospital and was operated upon on the next day i.e. on 10-07-2005 at about 4.00 p.m. and was discharged on 16-07- 2005. It is alleged that though the complainant claims that his mouth was kept closed upto 19-07-2005 and he was unable to do his normal duties for a period of one year. The complainant sent a notice dated 30-08-2006 through his Advocate Shri C.B. Wadhwa asking the opposite parties to compensate the complainant, which notice was followed by reminders dated 07/10/2005, 30/10/05, and 09/01/06, 16/05/2006 and 23/06/2005. The last two letters were sent through his Advocate M/s Thakore Jariwala & Associates. The complainant also received two replies sent by the insurers of the opposite parties through M/s Tuli & Company dated 14/06/2006 and 28/06/2006 contesting the claim of the complainant and denying any negligence and inaction on the part of the opposite parties.
3. Being aggrieved, the complainant filed a complaint before the State Commission with the following prayer:
a. That the State Forum be pleased to hold that the opposite parties (jointly and/or severally) are directly and wholly responsible for the said accident that was suffered by the complainant on 09.07.2005
b. That Hon’ble Commission by judgment and order be pleased to direct the opposite parties jointly and/or severally to pay to the complainant a sum of Rs.30,00,000/- together with interest at the rate of 15% p.a. from 9.7.2005 till the disposal of the complaint on account the said accident.
c. The Hon’ble Commission be pleased to order the payment of cost of present complaint and all expenses incurred towards litigation.
4. After appreciation of the facts of the case, the State Commission, vide its order dated 25.01.2012,
