2021 (9) TMI 1487 - Commission - Indian Laws

Consumer awarded Rs. 2 crores for service deficiencies and medical negligence. Impleader dismissed.

The Commission found the Opposite Parties guilty of deficiency in service and medical negligence. The complainant was awarded Rs. 2 crores in compensation ... Deficiency in service - medical negligence - consumer and consideration/privity - misjoinder and director liability - pecuniary jurisdiction - compensation for physical, mental and economic loss - quantification of damagesMisjoinder and director liability - Opposite Party No.1 (Chairman) was improperly joined and impleadment of his successor was rejected. - HELD THAT: - The Chairperson as non executive was not shown to have personal involvement in the alleged deficiency in service; no evidence of his participation, management control or fraudulent conduct was produced. Precedents were considered to the effect that office bearers are not ordinarily service providers unless misfeasance or personal involvement is established. In these circumstances the deceased Chairman's name is struck out and the application to implead his successor is rejected. [Paras 15, 16]Name of Opposite Party No.1 struck out; impleadment of Mr. Sanjiv Puri rejected.Consumer and consideration/privity - Complainant is a 'consumer' under the Act notwithstanding that payment failed at the point of transaction. - HELD THAT: - Invoice and transaction records showed that consideration was sought and an attempted card payment for the haircut was recorded though declined. The Salon nevertheless provided the service and later offered complimentary remedial treatment; given the commercial nature of the Salon and the circumstances, the Complainant falls within the statutory definition of consumer. [Paras 20]Complainant held to be a consumer for the purposes of the complaint.Pecuniary jurisdiction - National Commission has pecuniary jurisdiction to entertain the complaint. - HELD THAT: - Under the Consumer Protection Act, 1986 pecuniary jurisdiction is determined by adding the value of goods/services and the compensation claimed. The Court applied the established test and held that the complaint as filed fell within the jurisdictional limits of the National Commission; a note was made that post 2019 law the test differs but the present matter is governed by the 1986 Act. [Paras 21]Complaint entertained by the National Commission; pecuniary jurisdiction upheld.Deficiency in service - medical negligence - compensation for physical, mental and economic loss - quantification of damages - Deficiency in service and medical negligence by Opposite Party No.2 established in part; compensation of Rs.2 crore awarded to the Complainant. - HELD THAT: - The record, including WhatsApp communication, CCTV images and the medical certificate, supported findings that the haircut was contrary to the Complainant's instructions and that subsequent treatment caused scalp injury and ongoing symptoms. The Commission applied established principles governing compensation in consumer matters, considering physical injury, emotional trauma, loss of professional opportunities and economic consequences. On moderation and in view of the facts and evidence, the Commission concluded that a substantial compensatory award was warranted to recompense the Complainant and to serve as a corrective admonition to the service provider. [Paras 22, 24, 25]Complaint allowed partly; Opposite Party No.2 directed to pay compensation of Rs.2,00,00,000 to the Complainant within eight weeks; parties to bear their own costs.Final Conclusion: The Commission struck out the non executive Chairman as an improperly joined party and refused impleadment of his successor; held the complainant to be a consumer and found the National Commission to have pecuniary jurisdiction; on merits found deficiency in service and medical negligence by the Hotel Salon in part and awarded Rs.2,00,00,000 to the complainant, with the payment ordered within eight weeks and parties left to bear their own costs. Issues Involved:1. Deficiency in service by the hairdresser at the Salon of Hotel ITC Maurya.2. Medical negligence in hair treatment.3. Misbehavior and threat by the Salon and Hotel staff.4. Pecuniary jurisdiction and whether the complainant is a consumer under the Consumer Protection Act, 1986.5. Compensation amount claimed by the complainant.6. Impleadment of Mr. Sanjiv Puri as a party after the death of Mr. Yogesh Deveshwar.Issue-wise Detailed Analysis:1. Deficiency in Service by the Hairdresser:The complainant alleged that the hairdresser, Christine, chopped off her entire hair, leaving only 4 inches from the top, contrary to her specific instructions. This incident caused her significant distress, leading to a cessation of her normal activities. The Salon's management offered a free hair treatment to rectify the issue, which further damaged her hair and scalp.2. Medical Negligence in Hair Treatment:The complainant experienced severe scalp damage during the hair treatment, including burning and irritation due to the use of excess ammonia. The treatment left her hair hard, rough, and unmanageable. Medical evidence from Dr. Ranjit Kumar Das supported the claim of scalp infection and hair damage due to harsh chemical treatment.3. Misbehavior and Threat by the Salon and Hotel Staff:The complainant reported that the Salon and Hotel staff were abusive, rude, and disrespectful when she sought assistance. They threatened her with consequences for visiting ITC Maurya again. This behavior was deemed unacceptable and contributed to the complainant's mental trauma.4. Pecuniary Jurisdiction and Whether the Complainant is a Consumer:The Opposite Parties argued that the complainant was not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986, since the services were provided free of charge. However, the Commission found that the complainant was indeed a consumer, as she had attempted to pay for the services, and the Salon had generated an invoice for the hair cutting service.5. Compensation Amount Claimed by the Complainant:The complainant sought compensation of Rs. 3 crores for harassment, humiliation, and mental trauma. The Opposite Parties contended that the claim was exaggerated and without basis. The Commission, after considering the evidence and the impact on the complainant's life and career, awarded a compensation of Rs. 2 crores. The Commission emphasized the need to serve justice and bring about a qualitative change in the attitude of the service provider.6. Impleadment of Mr. Sanjiv Puri as a Party:The Commission rejected the application to implead Mr. Sanjiv Puri, who became Chairman of ITC Ltd. after the death of Mr. Yogesh Deveshwar. It was determined that Mr. Deveshwar, being a non-executive Chairman, was not involved in day-to-day operations and had no personal involvement in the alleged deficiency in service.Conclusion:The Commission found the Opposite Parties guilty of deficiency in service and medical negligence. The complainant was awarded Rs. 2 crores in compensation for the distress and losses suffered. The application to implead Mr. Sanjiv Puri was dismissed, and the complainant was recognized as a consumer under the Act. The decision aimed to recompense the complainant and encourage better service standards in the future.