Platinum member of the Westin hotel – privileges in T&C of mariott hotels – pick up and drop

was complementary

Driver w westin uniform – picked both Korean nationals

After 500 m – while driving from airtel office to westin – driver slept off/overworked/ lost
consciousness/using mobile phone

Car hit divider and drove into poles

Our client got multiple fractures – 55% disability

Files – Police Complaint against driver alleging rash and negligent driving under MV act –
claim petition under MACT tribunal against owner, insurance co. (docs) – 1 lac
compensation given – he says it is abysmal

P&H appeal filed – he asks for 1 cr

He also wants to file a consumer petition against westin and mariott under consumer protection
act – cus car given by them, thus services by them – services deficient – driver by marriatte

DEFICIENCY OF SERVICE

1. Cpc order 2 rule 2 – res judicata – same cause of action > MACT is a separate remedy >
insurance >>> couldn’t attend sons’ birthday the next day, business loss, travel loss >
family had to travel from all parts of the world thus heavy >>>thus consumer
forum!
a. See grounds of compensation, not same grounds again
b. Make more new grounds
2. Section 10 cpc

TODAY, READ DOCS FULLY AND WHAT FURTHER GROUNDS CAN BE MADE!

Detailed notes on what all cases and laws applicable in this respect which can be used in the
consumer disputes redressal commission
CPA – defines consumer as:

Anyone who hires or avails of any service for a consideration which has been paid or promised
or partly paid and partly promised, or under any system of deferred payment and includes any
beneficiary of such service other than the person who hires or avails of the services for
consideration paid or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of the first mentioned
person, but does not include a person who avails of such service for any commercial purpose.

CPA – defined ‘deficiency’ as:

"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality,

nature and manner of performance which is required to be maintained by or under any
law for the time being in force or has been undertaken to be performed by a person in
pursuance of a contract or otherwise in relation to any service and includes— (i) any act of
negligence or omission or commission by such person which causes loss or injury to the
consumer; and (ii) deliberate withholding of relevant information by such person to the
consumer;

Service:

(42) "service" means service of any description which is made available to potential users and
includes, but not limited to, the provision of facilities in connection with banking, financing,
insurance, transport, processing, supply of electrical or other energy, telecom, boarding or
lodging or both, housing construction, entertainment, amusement or the purveying of news or
other information, but does not include the rendering of any service free of charge or under a
contract of personal service;

Donoghue v Stevenson – neighbour principle

IMP CASE IN NCDRC – hotel is responsible for the negligence of its staff

Hotel Hyatt Regency v Atul Virmani  (2008)

·         The issue involved in this case is if the keys of the car given by the customer of
a Five Star Hotel for parking to the uniformed valet of the hotel are stolen, whether
the Five Star Hotel is responsible for making good the loss to the consumer.
·         Entrance fee was charged for the parking of the vehicle
·         the case was contested by the hotel stating that valet service rendered was a
free service and the complainant is not a consumer under the Consumer Protection
Act, 1986. Hotel authorities were not legally bound to keep the vehicle in the hotel
premises. It was also stated that on the reverse of every car docket issued to the visitors, a
disclaimer notice is printed through which the visitors were informed that the vehicle
could be parked within the hotel premises at their own risk and that the hotel would not
be liable for the loss or damage to the vehicle parked.
·         The State Commission after going through records and hearing the Counsel
for the parties held that there was deficiency in service by the hotel in not ensuring
the safety of the car entrusted to their custody. Accordingly, the hotel was directed to
pay the complainant a sum of Rs. 2,00,000 along with 10% interest from the date of the
theft till the date of the payment with Rs. 5,000 as cost.  From this decision arises the
appeal.
·         Respondent said that When a person goes to a Five Star Hotel he does not just
pay for the food served, he pays for the general atmosphere, air condition,
decoration, safety and total environment of the hotel.
·         HELD:
o   the name Board does not mention that it is a 'hotel', it is only called Hyatt
because it is so famous and so popular that there is no need to mention the
word 'hotel. The Five Star Hotels provide several facilities as the customers
pay heavy price for room rent, meals, etc. They provide some facilities free of
cost like newspapers in the hotel room, complimentary fruit basket and
mineral water bottles.
 o   These so called free services are not actually free because they are more
than made up by exorbitant rental charges, very high charges for food and
very high entrance fee for discotheque, etc.
o   It is due to sheer negligence of the hotel staff that they had allowed the car
to be stolen and taken out by some unauthorised person for which there was
an entry in their register.
o   When a uniformed liveried valet with his imposing figure asks for the car
keys he exudes confidence in the consumer and, therefore, for the
management of a Five Star Hotel to shirk the responsibility of the safety of
the car parked in their premises does not augur well.
o   The hotel is liable for the negligence of its staff.
o   even though the hotel might have provided valet parking facilities free of
charge still it would be covered by the deficiency of service under Consumer
Protection Act, 1986 as it is charging for other services at a very high
rate [also upheld by another case of SC called Savita Garg v Director, National
Heart Institute]. If the hotel authorities cannot keep the car safely they should
have put a big Board at the entrance of the hotel proclaiming "Beware, giving car
keys to the valet of this hotel does not ensure safety of your car, Management is
not responsible for theft of the car". This has not been done by the hotel.
 Thus, appeal dismissed.

Klaus Mittelbachert v East India Hotels (1997)

- A person received in a hotel as a guest enjoys an implied assurance from the hotel that
the proprietor by himself and through his servants, agents would take proper care of the
safety of the customer. Not only the building structure but the services offered thereat
have to be safe and immune from any danger inherent or otherwise. A hotel owner holds
himself out as willing and also as capable to accommodate and entertain the guests. The
quality and safety of the services offered increases with the quantum of the price paid for
being guest at the hotel. Higher the charges, higher the degree to take care
The variation in the degree of care making it heavier co-relating the same with the charges fixed
and realised in consideration of offering a service assumes significance in law for two purposes,

Firstly, it has a bearing on the degree of care expected, either express or implied.

Secondly, it has a bearing on the amount of compensation that would become payable in the
event of failure to discharge the expected degree of care. Higher the degree of care, higher the
quantum of compensation, both flowing from rise in charges realised for rendering the services.

A five-star hotel charging a high or fancy price from its guests owes a high degree of care to
its guests as regards quality and safety of its structure and services it offers and makes
available. Any latent defect in its structure or service, which is hazardous to guests, would
attract strict liability to compensate for consequences flowing from its breach of duty to
take care.

The five-star price tag hanging on its service pack attracts and casts an obligation to pay
exemplary damages if an occasion may arise for the purpose. A five start hotel cannot be heard
to say that its structure and services satisfied the standards of safety of the time when it was built
or introduced. It has to update itself with the latest and advanced standard of safety.

SAVITA GARG (SMT) V. DIRECTOR, NATIONAL HEART INSTITUTE – SC

- Man died in a hospital. Family alleged negligence.

- SC held:
o It is a common experience that when a patient goes to a private clinic, he goes by
the reputation of the clinic and with the hope that proper care will be taken by the
hospital authorities. It is not possible for the patient to know which doctor will
treat him. When a patient is admitted to a private clinic/hospital it is the
hospital/clinic which engages the doctors for treatment. In the present case, the
appellant's husband was admitted to the best of the hospitals and it was not
possible for the appellant to find out who was the best doctor and who was not.
Normally, private clinics go by their reputation and people look forward for best
 treatment when they are run commercially. It is the responsibility of the clinics
that they must provide the best of services when they charge for the services
rendered by them.
o In case it is found that service rendered by the clinic or hospital, as the case may
be, is not up to the mark and it involves some negligence on their part for which
the patients suffer, then they are bound to reimburse them. They charge fees for
the services rendered by them and they are supposed to bestow the best care.

CHAIRMAN, THIRUVALLUVAR TRANSPORT CORPORATION V. CONSUMER

PROTECTION COUNCIL – SC - 1995

- question in this appeal is whether the National Consumer Disputes Redressal

Commission had jurisdiction to adjudicate upon a claim for compensation arising
out of a motor vehicle accident, despite the jurisdiction conferred on a Claims Tribunal
constituted under the Motor Vehicles Act.
- REASONING - The complaint in the instant case cannot be said to be in relation to
any service hired or availed of by the consumer because the injury sustained by the
consumer had nothing to do with the service provided or availed of by him but the
fatal injury was the direct result of the accident on account of which he was thrown out of
his seat and dashed against an iron handle of the seat in front of him.
- That being a special law would prevail over the relevant general law such as the 1986 Act
but in the instant case even that question does not arise for the simple reason that the
dispute in question did not attract the jurisdiction of the National Commission,
whatsoever and the National Commission has not shown how it had jurisdiction.
- Our case distinguishes from the facts of this case, since a service was availed in our case
that created a separate cause of action

PARTAP SINGH AND ANO v. DOON VALLEY CAMBRIDGE SCHOOL – 2018 - NCDRC
 - State commission upheld the district commission compensation awarded but reduced it
from 7 lac to 1.5 lac, saying that the complainants can approach the MACT as well
since it was a motor accident case as well.
- after the passing of the impugned judgment by the State Commission, the petitioners
filed MACT complaint and in the said matter MACT has awarded them
compensation to the tune of Rs.3,50,000/- alongwith 9% interest.
- NCDRC held:
o Section 3 provides for an alternative remedy to a consumer aggrieved against
the seller of the goods or the service provider. The complainants by filing the
consumer complaint had availed of the alternative remedy. Therefore, the
State Commission ought not have reduced compensation and forced the
complainants to go to the MACT seeking the redressal of their grievance.
o they set aside the order of the State Commission that had reduced the
compensation amount and allowed the revision petition
- therefore, under this case, both the compensations were allowed – one by MACT and one
by SCDRC (w.r.t. deficiency in service)

MAINTAINABLE IN NCDRC AS WELL BECAUSE THERE ARE DIFFERENT CAUSES

OF ACTION:

Geetu Sapra And Ors. vs B.L. Kapoor Memorial Hospital – 2003 - NCDRC

- negligence of doctors and hospital staff after accident

- In this case, the claim is not based on the accident. The claim is based on the alleged
negligence of the hospital and doctors after the said Mr. Sapra was taken to the
hospital. That is entirely a different cause of action. In respect of such a claim the
National Commission would have jurisdiction.
- issue: Whether the Complaint before the Consumer Fora is maintainable in a case where
claim before the Motor Vehicles Accident Tribunal is pending?
- Hence, the cause of action for filing Claim Petition before the MACT is the accident
arising out of the negligence of the driver of the other vehicle. As against this, before
 the Consumer Fora, the complaint is maintainable on the ground that there was
deficiency in service by the hospital and/or the doctors while giving treatment to the
deceased. Such complaint/claim cannot be filed before the MACT as MACT would
not have the jurisdiction to decide whether there was deficiency in service by the
doctors or the hospital.
- (a) the cause of action before the MACT was, with regard to rash and negligent
driving by the Driver of the other vehicle by which accident was caused; and
- (b) the cause of action against the Doctors or the hospital is for deficiency in
rendering service or treatment by the hospital and the doctors.
- Both causes are separate and distinct.
- Before the Consumer Fora it is maintainable as it is alleged that there was
deficiency in service by the hospital in not giving proper treatment at appropriate
time. It is to be made clear that in case of accident, even if proper treatment is given,
patient may or may not survive. In the present complaint, we are concerned only with
deficiency in rendering proper treatment to the deceased Mr.Sapra, who might or
might not have survived despite proper treatment. The claim is to be limited only
with regard to the deficiency in service in not giving proper treatment at proper
time.
- This award of compensation has nothing to do with the award of compensation for
accident which may be passed under the M.A.C.T.

Pravat Kumar Mukherjee v Ruby General Hsopital & Ors (2003) – NCDRC

- OBJECTION WAS with regard to maintainability of this complaint on the ground that
Complainant had already approached a tribunal under the Motor Vehicles Act, 1988. It is
also pointed out that in the M.A.C.T. the Complainant has received the amount of
compensation and without disclosing the said fact he has approached this Commission
under the Consumer Protection Act, 1986. Therefore, the complaint is not maintainable.
- HELD: this submission also requires to be rejected because the two causes are
different and are required to be decided by separate Tribunals/Forums having
limited jurisdictions the cause of action before the MACT was, with regard to rash
 and negligent driving by the Driver of the other vehicle by which accident was
caused; and the cause of action against the Doctors or the hospital is for deficiency
in rendering service - Emergency treatment by the hospital and the doctors. Both causes
are separate and distinct.
Further, it was not possible for the Complainant to maintain the complaint for the
deficiency in service by the doctors before the Motor Accident Claims Tribunal.
Similarly, before the Consumer Forum, the grievance with regard to the accident
and driver's liability or the vehicle owner's liability cannot be dealt with or decided.

Charanjit Singh vs. Branch Manager, National Insurance Co. Ltd. and Ors. (15.03.2004 -
SCDRC Chhattisgarh) : MANU/SG/0194/2004

- Appeal against district forum

- Truck met with an accident; breach in terms of policy so insurer held not liable to pay in
the MACT
- Whether the complainant/appellant is entitled to recover from the respondent/insurer the
loss caused on account of damage to the truck in the accident?
- HELD that remedy available in the consumer forum is independent and in addition
to other remedies. The pronouncement in the accident case by the Motor Vehicles
Claims Tribunal would not operate as res-judicata in the present case against the
complainant/appellant.