BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.465/2012 against C.C.No.114/2011 District Forum, Kurnool.
Between
1. The Sports Authority of Andhra Pradesh
Represented by its Vice Chairman
And Managing Director,
L.B.Stadium, Hyderabad.500 001.
2. The District Sports Authority,
Represented by its Chairman and
District Collector,
Collectorate
Kurnool Dist.,518 002 Appellants/
Opp.parties.
And
1. D.V.Gopi Krishna
S/o.D.Chengalrayudu
Lab Engineer,
G.Pulla Reddy Engineering College,
2. D.Mani
W/o.D.V.Gopi Krishna, Housewife
Both are R/o.D.No.87-599
Madhavanagar, Nandyal Road,
Kurnool city, Kurnool Dist.518 002 Respondents/
Complainants
Counsel for the Appellants : M/s M.V.S.Prasad.
Counsel for the Respondents: M/s M.L.Srinivas Reddy
F.A.No.150/2013 against C.C.No.114/2011 District Forum, Kurnool.
Between
1. D.V.Gopi Krishna
S/o.D.Chengalrayudu
Lab Engineer,
G.Pulla Reddy Engineering College,
2. D.Mani
W/o.D.V.Gopi Krishna
Both are R/o.D.No.87-599
Madhavanagar, Nandyal Road,
Kurnool city, Kurnool Dist. ..Appellants/
Complainants
And
1. District Sports Authority,
Represented by its Chairman and
District Collector,
Collector complex,
Kurnool Dist.,
2. Sports Authority of Andhra Pradesh
Represented by its Vice Chairman
And Managing Director,
L.B.Stadium, Hyderabad. Respondents/
Opp.parties
Counsel for the Appellants : M/s M.L.Srinivas Reddy
Counsel for the Respondents: M/s M.V.S.Prasad-R1 and R2.
QUORUM: SMT.M.SHREESHA, HON’BLE Incharge President
AND
SRI T.ASHOK KUMAR, HON’BLE MEMBER.
WEDNESDAY THE TWENTY SIXTH DAY OF JUNE
TWO THOUSAND THIRTEEN
Order (Per Smt.M.Shreesha, Hon’ble Incharge President)
***
Aggrieved by the order in C.C.No.114/2011 on the file of District Forum, Kurnool, the opposite parties preferred F.A.No.465/12 and the complainant preferred appeal F.A.No.150/2013.
Since these both appeals arise out of a similar C.C. they are being disposed of by a common order.
The brief facts as set out in the complaint are that the complainants are the parents of D.Arvind, their only son, who is a 13 year old student of 7th class and a good sportsman and an intelligent student participating in all extracurricular activities. On 01-5-2010 by paying an admission fee of Rs.200/- and a monthly subscription of Rs.200/-, D.Arvind joined the swimming pool which is run by the opposite parties. There are two pools in which pool No.2 is meant for learners and also regular swimmers. The timings were 6 a.m. to 6.45 a.m. and as directed by the concerned authorities, he swam in pool No.1 from 2-5-2010 to 7-5-2010 except on Mondays which is a holiday. From 8-5-2010 he was assigned Pool 2 which is divided into three parts called south pool point(4 feet depth), central pool point (12 feet depth) and north pool point (41/2 feet depth) and there is also a metal pole gate which prevents the learners from entering the central pool. The metal dividers are lifted after regular swimming pool hours to enable the competitors of swimming to swim full length of the swimming pool. During this procedure on 10-5-2010, the metal dividers were lifted and the same were not reset in the south pool on 11-5-2010 in the morning and allowed the learners to swim in the south pool point.
O.P.1 had allowed many admissions in the month of May, 2010 and though each pool should not have more than 25 per batch, on 11-5-2010 more than 25 members were allowed to swim in each pool point and so the coaches could not observe the learners properly. On this date, at 6.00 am the first complainant dropped his son and handed him over to the coach and returned at 7 am but could not find his son and after searching, the dead body of the deceased was found at 7.25 a.m. and immediately was taken to the hospital, wherein he was declared dead. The complainants submit that the boy died due to the gross negligence of O.P.1 who did not appoint sufficient staff to maintain the swimming pool properly and also in allowing the members to swim in the pool. Had the coach taken minimum precautions and care, the boy would not have died. The complainants got issued a legal notice on 28-5-2010 claiming compensation of Rs.10,00,000/- but the opposite parties 1 and 2 neither paid the amounts nor replied to the legal notice. Hence the complaint seeking directions to the opposite parties to pay Rs.10,00,000/- towards compensation and other damages and costs.
O.P.1 filed written version stating that they are having two swimming pools, one is a learner’s pool with 3 feet depth and another is a racing pool. The racing pool is divided with SS barricading into 3 parts as follows:
a) South side pool 8 x21 mts. With 3 ¾ ft. depth
b) North side pool 8 x 21 mts. With 4 ft. depth
c) Centre pool 34 x 21 mts. With and 6 ½ ft. depth.
The admission procedure for all learners is that they must be allotted to learners pool only and after passing a test, a person may be shifted to another pool with signature of tested person only. The son of the complainants, D.Arvind has taken admission on 01-6-2010 and has been allotted learners pool and was asked to swim in learners pool and a learner cannot swim either in south pool or any other pool unless a swimming test is conducted by the concerned trainee and after passing the test, the concerned trainer will endorse to shift to sough pool by signing on the identity card and nobody has endorsed to swim in south pool. Opposite parties submit that metal dividers were fixed to separate South, North pool with centre pool tied 2 numbers of Nylon ropes 1 ½ feet gap from the bottom i.e. 1 ½ feet another one and competitors swim at centre pool only in 34 mts. Length and centre pool is also 6 ½ feet depth only and even 4 ½ ft. height person take a push from bottom to come up. Opposite parties further submitted that admissions are within the limit of 35 numbers per patch/pool including absentees generally, 20% were absent and the staff there is one Regular permanent life saver, 1 contract (North side) 1 DSA Temporary coach who is teaching to learners at south side, 8 temporary trainer cum life guards were appointed for the safety of learners/swimmers for the summer period and on 11-5-2010 all the above were present for duty at swimming pool. Opposite parties submitted that the father of the deceased did not hand over the body to any learners pool staff nor south pool concerned coach and if he is handed over to south pool coach he must reject to enter south pool without swimming test as there is no endorsement on ID and also submitted that in general when drowning the boy should shout, splash and struggle for survival but none of these things happened in this case due to unidentified medical problems/fits, unconsciousness. Opposite parties further submitted that the complainant No.1 was not interested to lodge complaint and does not want post mortem and submitted that the District Sports Authority, Kurnool is a service oriented department and maintaining play fields i.e. swimming pool is on loss no profit basis and does not have any commercial motive behind it and submitted that there is no deficiency in service and prayed for dismissal of the complaint.
The District Forum based on the evidence adduced i.e. Exs.A1 to A17 and the pleadings put forward allowed the complaint directing the opposite parties jointly and severally to pay compensation of Rs.4,10,000/- with interest at 9% p.a. from the date of demand notice i.e. 28-5-2011 together with Rs.1000/- towards costs.
Dissatisfied with the said order, the complainants preferred appeal, F.A.No.150/2013 on the ground that the compensation awarded is meagre and that they lost their brilliant child and also the love and affection of their only son. While the opposite parties preferred F.A.No.465/12 and it is the case of the opposite parties that unidentified medical problems would have resulted in the death of the boy. They deny that the first complainant handed over the boy to the coach of the pool and deny that the pool was not maintained properly. It is pertinent to note that the opposite parties did not file any documentary evidence to substantiate their contention that the deceased boy had unidentified health problems. They did not even state as to what is the health problem and if the boy was undergoing any treatment. Except for baldly denying that the complainant did not hand over the boy to the coach and saying that they have taken all care and caution, there is no evidence filed on behalf of the opposite parties with respect to the coach and learners ratio or as to how many coaches/life guards were present on that day at that time and also no specific reasons were given as to why the body of the deceased was not found immediately but found only after frantic efforts except stating that the boy did not shout for help. The fact remains that the boy had gone to the pool at 6.00 a.m. to swim and the trainers/life guards could not save the boy though they are supposed to be present and assist such learners. Therefore, we agree with the finding of the District Forum that there is deficiency in service on behalf of the opposite parties and therefore this appeal fails and is accordingly dismissed.
Now we address ourselves to the quantum of compensation awarded by the District Forum?
We observe from the record that the District Forum based on the judgement of the Apex Court in 2001 ACJ 1735 SC has granted compensation of Rs.4,10,000/- based on the case wherein a student of similar age died in a fire accident and it is the contention of the complainants that the District Forum has not taken into consideration any other ground.
While we observe that there is negligence on behalf of the opposite parties, as the coach and the staff who are employees of the opposite parties did not event take minimum care and caution while dealing with young learners, we are of the considered view that the fact that the boy is their only child and a brilliant student and also that the parents lost the love and affection of their child can be considered for enhancement of the compensation. The National Commission in FA 385/2004 decided on 29-8-2007 has confirmed the order of this Commission in a similar case i.e. Municipal Corporation of Hyderabad V. Abdul Azeez reported in IV (2007) CPJ 15 NC in which this Commission had granted for the death of a boy in a swimming pool and wherein he was also a learner and the Municipal Corporation did not take proper caution and care when the boy drowned.
The learned counsel for the appellant/opposite party in FA 465/12 contended that they had taken all due care and caution and that the parent never brought the child to the care of the coach and that the child had voluntarily swam in the pool. The O.Ps. did not file any documentary evidence with respect to the coaches, learners ratio and as to how many life guards were present and why the death was not discovered till the parent came. In the instant case the drowning of the boy was not even noticed by the coach and immediate action was not taken and the body of the deceased was searched only after the parent had come to pick up the boy and made frantic efforts to trace him. In that case, an amount of Rs.5,00,000/- was awarded towards compensation which was confirmed by the National Commission and since this case also deals with the similar facts, we also award the same amount of compensation and enhance the amount from Rs.4,10,000/- to Rs.5,00,000/- and we also enhance the costs to Rs.5,000/- while we confirm the rest of the order of the District Forum. In the result appeal, FA150/13 is allowed in part and the order of the District Forum is modified by enhancing the amount of compensation from Rs.4,10,000/- to Rs.5,00,000/- and costs from Rs.1,000/- to Rs.5,000/- while confirming the rest of the order of the District Forum. Time for compliance four weeks. Appeal F.ANo.465/2012 is dismissed. No costs.
INCHARGE PRESIDENT.
MEMBER.
JM Dt.26-6-2013
