BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.327 of 2016

      Date of Instt. 25.07.2016

      Date of Decision: 04.03.2020

1.       Chandan Arora aged about 41 years S/o Sh. Inderpal Arora;

2.       Jyoti wife of Chandan Arora;

          Both the petitioners are resident of H. No.43, Kailash Nagar,    Sodal Road, Jalandhar.

..........Complainants

Versus

1.       Innocent Heart School, Green Model Town, Jalandhar, through its principal/authorized representatives/management/directors/president.

2.       Principal, Innocent Heart School, Green Model Town, Jalandhar.  

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh           (President)

Smt. Jyotsna                   (Member)

Present:       Sh. G. L. Gagneja, Adv. Counsel for the Complainants.

Sh. Vikas Sood, Adv. Counsel for the OPs.

Order

Karnail Singh (President)

1.                The instant complaint has been filed by the complainant, wherein alleged that the OP No.1 is a school being run by its principal/management and OP No.2 is the principal of OP No.1. OP No.1 is having control over the school buses being ply by the OP for the transportation of the students of school and huge charges were recovered from the parents. The son of the complainant namely Arush Arora was studying in the school of OP No.1 and the complainant had hired the services of the OP for the transportation of their ward namely Arush Arora on the School Bus bearing registration No.PB 08-AE-9153 after paying transportation charges of Rs.3300/-. Apart from the transportation charges, the OP had also taken school fee and other charges from the complainant and issued a receipt against that payment. The complainant also paid transportation charges for the month of July, August and September, 2014. The son of the complainant was studying in KG-I-C.

2.                That the school bus bearing RC No.PB-08-AE-9153 was being provided by the OP and the school authorities also assured that they will took the child from the house of the complainant and will drop back the child at home with proper safety and precautions and also assured that they have been also following the entire instructions and guide lines for the above said purpose issued by the Hon’ble Supreme Court of India from time to time. But the OP absolutely failed to do so and as such, due to the gross negligence on the part of the school management and due to deficient in service on the part of the OP as well as due to the gross negligence on the part of the driver and conductor of the school, being appointed by the OP to ply the said school bus, the minor child of the complainant had died. The OPs did not perform their duties and the driver of the said bus was having no valid driving license and he was driving the school bus in rash and negligent manners and moreover, necessaries precautions and amenities were also not provided in the school bus by the OPs and no safety devices were found fitted in the aforesaid school bus. There was only  “L” shaped grill fitted in front of the seat, where son of the complainant namely Arush Arora was sitting and there was no intermediating grill between the seat and the bar, leaving sufficient space for a child to fall. In this regard the police has registered the case FIR No.120 dated 01.08.2014 u/S 279, 304, 304-A IPC with PS Division No.2, Jalandhar and the trial of the said case is pending before the Court of Additional Session Judge, Jalandhar.

3.                That the above said facts clearly show that it is a case of gross violation of rules and regulations, recklessness and lack of due diligence at the behest of the OP. It was incumbent upon the OP who were owing and managing the said school to take all preventive safety measures according to rules while permitting to ply the school vehicle on a public road which was being used for carrying school children, but in the instant case, neither the OP took any preventive safety measures while plying the school bus, resultantly the kid of the complainant namely Arush Arora was died.    

4.                It is pertinent to mention here that the complainant party has also filed a claim petition under Section 166 of the Motor Vehicle Act against the OP No.1 and others and the said petition is pending before the Hon’ble Court of Sh. Mandeep Singh Dhillon, Motor Accident Claim Tribunal, Jalandhar and is fixed for 02.08.2016. Apart from above, the complainant also filed a petition before Punjab State Commission for protection of Child Rights and the same was decided by the Commission vide order dated 06.08.2015. However, the said order was challenged by one Jagjit Singh before the Hon’ble High Court of Punjab & Haryana at Chandigarh and the same is pending. It was in the knowledge of the OP that their aforesaid bus was being plied without adopting any preventive and safety measures, as envisaged under the law which could result in some mishap, but all these officials choose to violate the norms with the total impunity. The complainant various times visited to the OP for the claim, but each and every time, the OP put the matter on one pretext or the other by lame excuses. The attitude of the OPs tantamount to deficiency in service and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay compensation/damages, to the tune of Rs.20,00,000/- for the death of the child of the complainant party and also OPs be also directed to pay litigation expenses.

5.                Notice of the complaint was given to the OPs, who duly served and appeared through its counsel and filed detailed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable and further alleged that there is no cause of action against the respondents and further stated that the complaint has been filed just to harass the respondents because the story concocted in the complaint is totally self made story and therefore, the complaint is liable to be dismissed. It is further alleged that the true facts are that an unfortunate road incident has happened and Arush Arora died in that accident. That incident is an unfortunate incident, which was beyond the control of the respondents. There is no negligence, deficiency in service or unfair trade practice on the part of the respondents. The respondents have already entered into contracts with different contractors and availed the bus services from them. They are providing the services to the school management. An FIR has already been registered qua this fact and the trial is pending before the Court of Additional Session Judge, Jalandhar. The complainants have also filed one claim petition, which is also pending before the Court of ADJ, Jalandhar. Apart from that the complainants have also filed one petition before the Child Right Commission at Chandigarh. Not only this, the complainants have also filed many false applications before the police authorities and all the reports have been consigned by the authorities and further submitted that the complainant himself, at the time of unfortunate incident, an observations were made and stated that the incident took place due to illegal speed breakers. These facts show that the present complaint is nothing, but abundant of lies, so complaint is liable to be dismissed with heavy cost and further submitted that the complaint of the complainant is time barred. On merits, the factum in regard to studying the ward of complainants in the school is admitted and it is also not denied that bus services was provided to the ward of the complainant and for that the complainants were paying the transportation charges, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

6.                In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavits of the complainant Ex.CA and Ex.CB alongwith some documents Ex.C-1 to Ex.C-12 and closed the evidence.

7.                Similarly counsel for the OPs tendered into evidence affidavit Ex.OPA alongwith some documents Ex.OP/1 to Ex.OP/22 and closed the evidence.

 8.               We have heard the argument from learned counsel for the respective parties and also gone through the case file very minutely.

9.                The case of the complainant qua their ward namely Arush Arora was studying in the school of the OP and transportation was also provided by the school on the basis of separate charges and bus in which the ward of the complainant was going and coming to home, met with an accident in the month of August and wherein the ward of the complainant, namely Arush Arora was died and a criminal case FIR No.120 dated 01.08.2014 u/S 279, 304, 304-A IPC was registered with PS Division No.2, Jalandhar and it is also admitted that the trial of the said criminal case is still pending. Apart from that a claim petition before the Motor Accidental Claim Tribunal, Jalandhar is pending and further, another complaint of the complainant which was filed before the Punjab State Commission for protection of Child Rights, has been decided. Above all facts are admitted.

10.              Now, we have to analyze the allegations of the complainant leveled in the instant complaint, the complainant alleged that the kid of the complainant was died due to negligence and deficiency in service on the part of the OPs, because the bus in which the ward of the complainant was travelling, not fulfilling the norms and guidelines issued by the Hon’ble Supreme Court time to time and moreover, there is a only ‘L’ shaped grill fitted in front of the seat, where son of the complainant namely Arush Arora was sitting and there was no intermediating grill between the seat and the bar, leaving sufficient space for a child to fall and due to this negligence, the child of the complainant was fall from the bus while running and died. This is the main grudge of the complainant against the OP to prove the negligence and deficiency as well as unfair trade practice on the part of the OPs. This allegation of the complainant, if we co-related with another application submitted by the complainant himself to the Deputy Commissioner and copy of the same placed on the file by the OP as Ex.OP-10. The said application was given by the complainant, immediately after the accident and it is general phenomenon whatsoever stated immediately after any incident will most probably a true version and accordingly, if we see the version of the complainant as elaborated in this application might be also a true version and in this application, the allegations of the complainant is against the official of the government and complainants stated that the incident took place for want of illegal speed breakers and due to that illegal speed breakers, the accident was occurred, but the complainant forget the contents of that application submitted to the Deputy Commissioner Ex.OP-10 and concocted a new story and elaborated in the instant complaint that there was not a proper shaped grill fitted. So, the story propounded in this complaint seems to not a true version, rather the true version is elaborated in the application Ex.OP-10 submitted to Deputy Commissioner after immediate to the accident.

11.              Further, the complainant can avail one remedy regarding one claim, admittedly the complainant also filed a petition under Section 166 of Motor Vehicle Act against the OP No.1 and others before the Motor Accidental Claim Tribunal, Jalandhar and copy of the petition is available on the file Ex.OP-22. In that petition, the OP Innocent Heart School is also one of the respondents. So, when the complainant already availed remedy qua the damages and compensation against the Innocent Heart School by way of filing petition under Section 166 of Motor Vehicle Act, then the instant complaint is not maintainable.

12.              Matter not stopped here, rather admittedly the complainant also filed another petition before the Punjab State Commission for protection of Child Rights, Chandigarh and the same was decided and copy of the judgment is available on the file Ex.OP-18 and in that judgment, a compensation of Rs.20,00,000/- was awarded to the complainants. It is clearly established that the complainant has already availed too more for getting compensation from the OPs, if so, then the complainant has no locus-standi to file the instant complaint qua the same relief i.e. compensation/damages for the death of their child and accordingly, we do not find any force in the argument of learned counsel for the complainant, therefore, complaint is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

13.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                       Jyotsna                           Karnail Singh

04.03.2020                              Member                          President