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Friday, December 20, 2013

26/11 victim to sue Taj hotels in London...

‘liability’ (n) is  one of the most significant words in the field of law, and a complex subject in Insurance. Liability means legal responsibility for one's acts or omissions. Failure of a person or entity to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court order to perform (as in a breach of contract or violation of statute). Any loss or damage caused by a negligent act of a person / Firm exposes them to public liability and cost of litigation as also the cost of such liability suit will be covered in a liability insurance policy.  Liability also applies to alleged criminal acts in which the defendant may be responsible for his/her acts which constitute a crime, thus making him/her subject to conviction – punishment and fine.  This penal part (fine) is not covered in a liability policy though.

~ when there is litigation – where it will be litigated is of great significance ….it is known as ‘jurisdiction’ (from the Latin Juris meaning "law" and dicere meaning "to speak") - practical authority granted to a formally constituted legal body to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. The term is also used to denote the geographical area or subject-matter to which such authority applies. Jurisdiction draws its substance from public international law, conflict of laws, constitutional law and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of its native society.

Indians will never forget the wounds of 26/11……….. the coordinated shooting, bombing and killings that occurred in Mumbai and shook the Nation in 2008 – ghastly killings planned and executed by Lashkar-e-Taiba. Before that, protecting a maid whose relatives has close connections to the US embassy in Delhi, US suddenly arrested Indian diplomat - Ms.Devyani Khobragade, humiliated her and speaks of rule of law and that they would neither drop the charges against nor apologise to India……….. but would still protect and not handover David Headley who conspired in plotting the 2008 attacks, presently in US prisons.  – no double tongue here ….

Back home, the lone captured attacker went through the process of law and was eventually hanged for the killing of 166 persons and wounding more than 300 people. From Chhatrapati Shivaji TErminur to Nariman house, there was blood spillage all over…  and that included the ‘Taj Mahal palace hotel’ a 5 star hotel in Colaba – next to Gateway of India.  Part of the Taj Hotels, Resorts and Palaces, this building is considered the flagship property of the group and contains 560 rooms and 44 suites. From a historical and architectural point of view, the two buildings that make up the hotel, The Taj Mahal Palace and the Tower are two distinct buildings, built at different times and in different architectural designs.

A building which has hosted many many notable guests is widely believed to have been built by Jamshedji Tata after he was refused entry to one of the city's grand hotels of the time, Watson's Hotel, as it was restricted to "whites only".  There are however remarks that Tata would not have shown vengeance attitude.. it is stated that the hotel was converted into a 600 bed hospital during WW1. The dome of the hotel is made from steel as used in the Eiffel Tower.


Now the hotel and Tata group is in news as a British court has ruled that Taj hotel can be sued in UK for that dastardly incident.  It is a suit filed by a 33 year old man paralysed during the attack.  The Indian Hotels Company Limited, a Tata Group firm, had argued that Will Pike’s negligence claim should be heard in India but a high court judge accepted that taking his case through the Indian courts could run into years of delay.Indian Hotels Company, has the right to appeal against the ruling and the case will now go to the Court of Appeal for a final decision. “The appeal process is just a small delay. Pike, a London-based freelance filmmaker, was injured when he jumped out of the hotel window after it was stormed by militants who carried out the attacks in Mumbai in November 2008.

The liability suit is brought about by Pike alleging that the management of the hotel did not do enough to protect him from Pak terrorists during the siege.  Panicked he jumped and was left paralysed after falling 50ft from his bedroom window while trying to escape the extremists.  Justice Stewart is quoted as stating that  “I am persuaded that it is clearly the case that England is the appropriate forum for the trial of this action.” Others see the ruling as perverse in that the authorities in Pakistan, where the terrorists originated, are not being sued. An Indian businessman who was caught up in the attack on the Taj said: “I can’t see how the Taj can be blamed — it was a victim of terrorism. Many of its staff died trying to protect guests.” Lawyers for the Taj had wanted the case thrown out on the grounds that the High Court in London could not have jurisdiction over events that occurred in India.

In theory, this ruling means any victim of terrorism anywhere in the world can file a claim for compensation in the courts in London if some kind of British link can be established. Pike, a freelance filmmaker, has been joined in his legal action by his former girlfriend, Kelly Doyle. They say they had not been given proper advice about emergency procedures and evacuation routes and, when they heard doors being kicked in and shots fired, had to break a window with furniture from their smoke-filled room and try to reach the ground using bedding and curtains knotted together.
The judge said Pike and Doyle “have clearly demonstrated and proved that granting a stay in English proceedings and requiring proceedings to be commenced in India would amount to a denial of justice”. Pike’s lawyer Russell Levy, from Leigh Day, maintained that the case should be heard in the UK, where his client lives and where the Indian Hotels Company Ltd has a substantial business presence. Its interests include the St James Court Hotel and two upmarket restaurants — the Bombay Brasserie and Quilon.

Somehow I am not comfortably on reading the remarks of Justice Stewart that -: “My estimation is that the time this case would take to reach the probable end stage in India is some 20 years ie. about 15 years in high court plus 5 years on first appeal.” The court heard how the equivalent case in the UK courts would take 2 to 3 years. Justice Stewart went on to explain: “(Pike) is a man who is not quite 34 years of age. A favourable decision in England would give him the money substantially to improve his standard of living and enable him to better come to terms with his disability when he is about 36 years of age. If the proceedings have to be brought in India then he would be something like 50 to 55 years of age before that occurs.”

Sad that the victim is now consigned to a wheel chair – but so also are the others innocent killed and others  who lost their lives fighting the terrorists.  Tata group reportedly has done good providing monetary compensation to its employees and others who suffered cruelty whilst at their premises.  If Pike wins his case, the courts may award him in excess of a million pounds (Rs 10 crore). This would almost certainly set a precedent and encourage other claimants.

Statement from The Indian Hotels Company Limited, owner of Taj Hotels:  stated that they are disappointed that the English High Court has accepted jurisdiction to hear a claim for compensation by Mr Pike and Ms Doyle, two guests of the hotel when the hotel, as also multiple other locations across the city of Mumbai, were attacked by terrorists on 26th November 2008. The acceptance of jurisdiction by the English court was made without any detailed consideration of the merits of the claim; it was a purely procedural decision. This great Indian tragedy in which many staff and guests were killed or injured was not the fault of the hotel owners and management and the claim will continue to be vigorously defended. Many of our brave staff will give evidence at the trial. We do not consider it appropriate to make any further comment at this time.

It is further stated that in response to the outpouring of emotional support from well-wishers in India and across the globe, The Taj Public Service Welfare Trust Fund was set up to offer relief for those affected by the attack and to provide immediate assistance to all victims and their families — be it the general public, the security forces, employees of the Taj or employees of other establishments. Mr William Pike has already been the beneficiary from this trust. This trust fund has been further extended to cover relief to victims of sudden acts of violence, natural disasters and other tragic events that inflict damage to life and property.

With regards – S. Sampathkumar.

20th Dec 2013.

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