JUSTICE V.K. JAIN, PRESIDING MEMBER

The respondent/complainant, a child aged 14 years at the relevant time, was a 9^th standard student of B.N.M. Primary and High School, being run by B.N.M. Education Institutions at Bangalore. In December 2006, a group of students, including the respondent /complainant, accompanied by some teachers of the school, came to Delhi for an educational tour to several places in North India. The group reached Delhi on 24.12.2006. The complainant allegedly developed fever on 24.12.2006 and her illness was intimated, by her classmates, to the teachers accompanying the students. The case of the complainant/respondent is that no medical aid was provided to her,   which resulted in deterioration of her health. On 26.12.2006, when the group was on a visit to Ranathambore National Wildlife Park, the complainant had severe shivering and seizure. Twice, she became unconscious, firstly at 5 a.m. and then at 9.30 a.m. and she also vomited, due to high fever. According to the complainant, no medical help was provided to her even at that time. When the group was returning to Delhi by road, undertaking a journey of about 14-15 hours, the complainant, allegedly not being in her senses, attempted to jump from the bus but only a Crocin tablet was provided to her, without taking to her any doctor or hospital, which resulted in further deterioration of her health. She allegedly bite her tongue twice, which resulted in bleeding and she lost senses. Though her condition continued to worsen, she was made to participate in a camp fire till the midnight of 30.12.2006 and made to travel to Delhi with the rest of the group. By the time they reached Delhi, she was allegedly totally drowsy and behaving indifferently.  She was taken to the airport on 31.12.2006 without first taking her to a doctor or a hospital. But on account of her sickness, she was not allowed to take the flight. On return to the hotel, she allegedly vomited and fell unconscious in the bathroom. The door had to be broken upon, in order to rescue her from the bathroom. She was then taken to Jessa Ram Fortis hospital, where she was admitted. It was at that stage, that the teachers intimated the parents of the complainant about her ill-health. It was diagnosed by the doctors that she had suffered a viral fever, namely, Meningo Encephalitis. The doctors opined that had she been given timely medical aid and attention, she could easily have been cured.

2.      The mother of the complainant, on reaching Delhi, shifted her to Max hospital, where she remained admitted for as many as 53 days, out of which 23 days were spent in ICU. The complainant remained unconscious throughout this period and underwent hundreds of tests, scans and other investigations. Her parents had to stay in Delhi, in order to take care of her treatment. Despite the efforts made by the parents at considerable cost, there was no improvement in the health of the complainant. They then shifted her to Bangalore in an Ambulance Flight, under medical care. At Bangalore, she was admitted in Mallya hospital, where she was put on ventilator and treated with higher antibiotics, steroids etc. The doctors felt that no fruitful purpose would be served by continuing to keep her as an indoor patient and discharged her with continuation of treatment at home. She,  was discharged from the hospital after 74 days on 9.5.2007. Thereafter she was admitted in St. Martha’s Hospital on 1.8.2007, where she underwent further treatment and was discharged on 10.8.2007, with advice to continue the treatment at home. The complainant was thereafter admitted at NIMHANS Hospital from 1.10.2007 to 12.10.2007, where the doctors recommended Cognitive Retrieving Therapy The complainant was then admitted in All India Institute of Speech and Hearing at Mysore for about 3 months. Her parents also had to stay there in rented accommodation in order to take care of her child.

3.      Despite extensive medical treatment provided to the complainant by her parents, her mental condition and IQ is said to be the level of a 21 months old child, though at the time of filing of the complaint she was aged about 16 years. She is said to be a bright and intelligent child who, besides securing distinctions in her studies, was also excelling in sports and cultural activities. She is stated to be bedridden and requiring constant care of others with no indication as to what would happen to her future life. Her movements have been severely restricted and she does not have sufficient strength in her truck and lower limbs. She is not in a position even to identify her parents, and her cognitive and perpetual abilities are seriously impaired. She is stated to have become vegetable like for all practical purposes and needs to be bedridden all the 24 hours. Seeing her condition and plight, her parents and other family members find themselves unable to face her and are suffering grave mental torture and suffering, besides the financial burden which they have regularly been discharging since 31.12.2006 when they were informed of her sickness. Her father had allegedly spent about 35 lakhs on her medical treatment etc. by the time the complaint was filed, though he is a person of modest means. He has allegedly become penniless, having spent everything in the treatment of her child.

4.      Alleging gross negligence on the part of the teachers who were accompanying her and the school management in taking care of the child at the time she was in their care, control and supervision, the complainant approached the concerned State Commission by way of a consumer complaint, seeking a sum of Rs.35 lakhs towards medical expenditure incurred  upon the treatment of the complainant along with Rs.25 lakhs for her further treatment and Rs.40 lakhs as damages.

5.      The complaint was resisted by the appellant. It was admitted in the reply that the complainant was a student of the school studying  in the 9^th standard in the year 2006 and was a part of the group which had left Bangalore for a tour of North India during Christmas holidays. It was alleged in the written version filed by the appellant that when the complainant experienced sudden black out on 27.12.2006 due to cold, her father asked the teachers to provide her with some brandy and accordingly a teaspoon of brandy was given to her and she was alright. It was further alleged that on 30.12.2006 she complained of headache and was given Crocin. She was o.k. on taking Crocin but later on she fell unconscious and therefore it was decided by the teachers to send her back to the Bangalore with a friend of her mother. The complainant, however, wanted to go by train and when the rest of the group was about to leave for sightseeing at Delhi, the complainant excused herself, went back to the hotel and did not turn up to join the group. A teacher broke open the door of the toilet with the help of a hotel cook.  She was found unconscious and was taken to Jessaram Hospital, where her condition was stated to be serious. At that stage, her mother was contacted in order to seek permission for the treatment advised by her doctor but the parents did not agree for her treatment, whereupon they were asked to come immediately to Delhi. The complainant was kept in emergency ward till their arrival. It was also alleged in the written version filed by the appellant that in fact the complainant was not keeping good health for 3 months before joining the tour but this fact was withheld by her parents from the school authorities. The appellant denied any negligence on their part in taking care of the complainant.

6.      The State Commission vide its order dated 9.3.2016 directed the appellant to pay a total sum of Rs.88,73,798/- to the complainant along with interest @ 9% p.a. from the date of filing of the complaint. The following is the break-up of the compensation awarded to the complainant:-

7.      Being aggrieved from the order passed by the State Commission, the appellants are before this commission by way of this appeal.

8.      It is an admitted position that the complainant was a minor when she along with several other students left Bangalore to Delhi and undertook an educational troop to cities organized by the school. It is also not in dispute that the students were accompanied by several teachers. It has come in the evidence of Mrs. Kanchan, a witness of the appellants that there were as many as five teachers accompanying the students on the said tour. It can hardly be disputed that the complainant being a minor and in the care and custody of the teachers accompanying the students, it was a mandatory duty of the teachers to take care of the health of the students during the tour. In fact, one of the objectives behind organising such tours under the leadership of the teachers is to ensure the safety and well-being of the students during the period they are on tour.

The appellants filed the affidavit of one Smt. Kanchan by way of their evidence before the State Commission. Mrs. Kanchan was the Headmistress in the school and was a part of the troop which the complainant had joined, for undertaking the educational tour. In her affidavit by way of evidence, she stated that the complainant was normal till 27.12.2006, but while at Nainital, she experienced a sudden blackout and become unconscious for a minute or so. They also filed the affidavit of one Smt. Chitralekha who was known to Mrs. Kanchan and had joined the tour, along with her children who were studying in the same school. She also corroborated the above-referred statement of Mrs. Kanchan. In her reply to the interrogatories submitted by the complainant, Smt. Chitralekha stated that when the complainant became unconscious at Nainital, one of the teachers, namely, Mrs. Radha who was accompanying them was informed. But, there is absolutely no evidence or even claim of any medical aid having been provided to the complainant when she became unconscious on 27.12.2006. In their affidavits by way of evidence, Mrs. Kanchan and Mrs. Chitralekha did not claim that any medical aid was provided to the complainant at Nainital.

9.      In my view, a sudden blackout and becoming unconscious even for a minute or so, warranted immediate medical attention to the complainant by a qualified doctor.  This was not something which could be ignored or treated by giving warm water massage or some brandy at night.  Nainital, where the complainant experienced a sudden black out and became unconscious, is a prominent city of Uttarakhand and not only qualified doctors even well-equipped hospitals are available in that city.  The teachers accompanying the students on the tour therefore were negligent in taking her care, they having not taken her to a doctor or to a hospital, when she experienced sudden blackout and became unconscious on 27.12.2006.

10.    The appellants themselves have alleged in their written version that the complainant had a similar attack in the morning of 29.12.2006 and warm water rub was given to her.  A doctor was allegedly called by the tour conductor who allegedly opined that the attack was due to cold.  The complainant was then asked to get ready for outing in Corbett Park, after taking rest for some time.  The written version of the appellants as well as the affidavits of their witnesses however, is conspicuously silent as regards the name of the doctor who allegedly examined the complainant on 29.12.2006.  Neither the affidavit of the said doctor nor any prescription given by him was filed by the appellants.  Had the doctor actually been called on 29.12.2006, the appellants would have been in a position to give his name in the written version filed by them and would also have been in a position to either file his affidavit by way of evidence or request the State Commission to summon him as a witness.  In these circumstances, it would be expressly difficult for me to accept that a doctor was called and he had checked the complainant on 29.12.2006.   Not taking the complainant to a doctor / hospital, even after she had a repeat episode of blackout and unconsciousness on 29.12.2006, is a clear indicator of the negligence apathy and indifference displayed by the teachers towards the health of the complainant.  At least on the repeat episode of sudden blackout and unconsciousness of the complainant, they ought to have realized that there was something seriously wrong with the health of the complainant and therefore, she required immediate medical attention at the hands of a qualified doctor.  In fact, as noted by the State Commission, despite the attack at Nainital on 27.12.2006, the complainant was made or allowed to join the entire tour programme including forest safari in jeep.  Considering the blackout suffered by her on 27.12.2006, the least expected from the teachers accompanying her was to give full rest to her instead of making or allowing her to join the remaining part of the otherwise hectic tour, including the forest safari. 

11.    This is also the case of the appellants that on 30.12.2006, when they were returning from Corbett Park to Delhi, the complainant, on the way complained of headache and was given a crocin.  They further stated some-time after 9.00 p.m. she tried to get down from the moving bus and when they tried to stop her she refused to listen to them.  Despite the aforesaid abnormal behaviour of the complainant, which obviously happened on account of her health having further deteriorated and her brain having been affected, the teachers did not stop the bus in which they were travelling, at some hospital on the way to Delhi in order to provide immediate medical aid to the complainant.  Even on reaching Delhi in the night of 30/31/12/2006, the complainant was not immediately taken to a hospital, despite the above referred abnormal conduct indicating something wrong with her brain.  The aforesaid act on the part of the teachers accompanying the complainant was a gross act of negligence and cannot be justified by saying that she was feeling homesick. 

12.    The case of the appellant is that on 31.12.006, acting on the request of the father of the complainant, they decided to send the complainant back to Bangalore but by the time they reached the airport, they were late and missed the flight.  The case of the complainant is that seeing her condition, she was not allowed to take the flight.    A large number of flights are available for travelling from Delhi to Bangalore.  There is absolutely no evidence produced by the appellants to prove that no ticket for travelling from Delhi to Bangalore on 31.12.2006 was available.  In the absence of such evidence, it cannot be accepted that the complainant had to return from the airport, on account of the tickets not being available.  If tickets were not available in the next flight, the appellants could have purchased the tickets for the next available flight.  Therefore, the version given by the complainant appears to be plausible and correct.  More importantly, even on return from the airport, the complainant was not taken straight to any doctor or any hospital in Delhi.  It was only after the complainant became unconscious in the toilet and had to be taken out by breaking open the door that the teachers took her to Jassa Ram Fortis hospital.  The failure of the appellants to take her to a doctor or a hospital even in the morning of 31.12.2006 immediately on returning from the airport, has to be viewed in the light of her abnormal behaviour in the night of 30.12.2006 when she allegedly got down from the moving bus and even refused to listen to the teachers and students, accompanying her.  The said failure bordered on criminal negligence, considering the ill-health of the complainant, starting from 27.12.2006.

13.    In M.S. Grewal & Anr. Vs. Deep Chand Sood & Ors., Civil Appeal No. 9738 of 1996 decided on 24.08.2001, a group of students, studying in standard 4^th, 5^th and 6^th of a school were brought for a picnic on the bank of river Beas.  Two teachers were deputed for escorting and taking due care of the students.  The picnic was organized as a part of the extra-curricular activities of the students.  In the post-lunch session, 14 students accompanying by two teachers went down the river for a considerable distance when the teachers suddenly discovered a deep Dibber.  The teachers as well as the students fell into a great danger.  The teachers could save themselves but the children got drowned in the river.  On enquiry it was found that the students were allowed to stray downstream and enter into unchartered water.  It was also found that the students had been instigated to race to the bushes on the western river bank downstream before they entered into the water of dibber and got drowned on account of the depth of the water exceeding their average height.  The High Court having awarded compensation to the parents of the students who got drowned in the incident, the matter was taken to the Hon’ble Supreme Court, by way of a Special Leave.  Dealing with what constitutes negligence, the Hon’ble Supreme Court, inter-alia observed as under:

          “Negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person.  It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of other.  In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act.  Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do.  Clerk & Lindsell on Torts (18^th Ed.) set out four several requirements of the tort of negligence and the same read as below:

1. The existence of law of a duty of care situation, i.e. one in which the law attaches liability to carelessness.There has to be recognition by law that the careless infliction of the kind of damage in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable;

2. Breach of the duty of care by the defendant, i.e. that it failed to measure up to the standard set by law;

3. A casual connection between the defendants careless conduct and the damage;

4. That the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.

   While the parent owes his child, a duty of care in relation to the child’s physical security, a teacher in a School is expected to show such care towards a child under his charge as would be exercised by a reasonably careful parent.  In this context, reference may be made to a decision of Tucker, J. in Ricketts Vs. Erith Borough Council and Another (1943(2) All ER 629) as also the decision of the Court of appeal in Prince & Anr. Vs. Gregory and Anr. (1959(1) WLR 177).

   ……….. As a matter of fact the degree of care required to be taken specially against the minor children stands at a much higher level than adults: Children need much stricter care.  Incidentally, negligence is an independent tort and has its own strict elements especially in the matter of children the liability is thus absolute vis-à-vis the children”.

          It was contended on behalf of the school that they having taken all due care cannot be held responsible for the neglect and callous conduct on the part of the teachers, escorting the students.  Rejecting the contention, the Hon’ble Supreme Court inter-alia held as under:

          “Negligence is a method of performing an act: instead of it being done carefully, it is done negligently.  So liability for negligent acts in the course of employment is clear.

          In all these cases, it may be said that the master has not authorized the act.  It is true, he has not authorized the particular act but he has put the agent in his place to do that class of acts and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in.

          ……

          … the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the masters benefit, though no express command or privity of the master be proved”.

          In view of the above referred legal proposition approved and laid down by the Hon’ble Supreme Court, it can be safely said that the teachers accompanying the complainant and the other children, were negligent in performance of their duty and the appellants, they being the employers of those teachers, are vicariously liable for the loss, resulting from the said negligence and therefore, are liable to compensate the complainant.

14.    The Discharge Summary issued by Fortis hospital where the complainant remained admitted for a very short period shows that she was suffering from acute Meningo Encephalitis.  The Discharge Summary issued by the Max Super Speciality Hospital, New Delhi shows that the complainant previously a hale and healthy young girl, had seizures and become increasingly agitated and irritable.  She was suffering from fever and had multiple episodes of seizures.  There was also a history of tongue bite and frothing from the mouth.  On investigations, features suggestive of viral Encephalitis were found during the course of treatment in the Max Hospital.  She was also given ventilatory support in the said hospital.  Her sensorium worsened when she was shifted out of ICU.  The complainant was discharged for being treated at Bangalore but her condition obviously was quite bad at the time she was discharged.

          The Discharge Summary issued by Mallya Hospital at Bangalore on 09.5.2007 shows that she was unconscious when brought to the said hospital.  She remained admitted in Mallya Hospital for more than two months and was treated with antibiotic, anticonvulsants, steroids, low molecular weight heparin and other supportive measures.  She had also developed episodes of facial and upper limb twitching.  At the time of her discharge, Ryle’s tube, Tracheostomy tube and Foley’s catheter were insitu.  She was opening eyes occasionally and had non purposive movements of the limbs.  She was again admitted to Mallya hospital on 01.6.2007 and discharged on 04.6.2007.  The discharge summary issued by St. Martha’s Hospital, Bangalore shows that she had Herpes Simplex virus Encephalitis Sequelae., for last about eight months and was admitted in the said hospital for physiotherapy. 

          The discharge summary issued by National Institute of Mental Health and Neuro Sciences, Bangalore where she remained admitted from 1.01.2007 to 12.10.2007, shows that she was disoriented though conscious.  It was recorded in the aforesaid document that she was 100% dependent for ADL and even during stay in the hospital she had an episode of seizures.  Profound retardation in her current level of social functioning was noticed.  Several medications were advised at the time of her discharge. 

15.    In his affidavit by way of evidence Dr. B. P. Mruthyaunjanna, Neurologist at Mallya Hospital, Bangalore who treated the complainant in the aforesaid hospital, stated that he had noticed, from the record that the complainant was not treated immediately.  He further stated that the delay in treatment was the sole cause of her present condition. According to him, viral Encephalitis Sequel with fresh lesion is a disease, onset of which is abrupt with symptoms of fever, headache, altered consciousness, temperature varying between 101 to 104 degree f.  According to him, the said disease is a dreaded disease and cases between 70% to 80% would result in death if not treated immediately.  He further stated that recovery and condition of a person afflicted with the said disease relates to emergency with which he is treated and type of treatment rendered.  He went on state that inspite of treatment given to the complainant, there was only a slight improvement in her condition and there was no regain of memory, speaking ability and her mobility was totally affected besides the fact that her present IQ is equivalent to the one of a kid aged about four years.  In his opinion, the complainant is not likely to regain her memory during her life time.  She may survive but the quality of life would be miserable and she would need help of other to attend to her all needs.  He clarified that the disease with which the complainant was attacked was abrupt and was not a pre-existing disease.

          It would be seen from the affidavit of Dr. B. P. Mruthyaunjanna that had the complainant received immediate treatment, her condition was not likely to be what it is today and there was also a likelihood of her being fully cured in case immediate and appropriate medical aid was provided to her.

16.    I therefore, have no hesitation in holding that since the teachers accompanying the complainant were grossly negligent in taking her care despite taking such care being their mandatory duty, due to the complainant being in their protection and care, the appellants have rightly been held vicariously liable for the said negligence and accordingly have to duly compensate the complainant, to the extent such a compensation is possible.

17.    The complainant produced medical bills amounting to Rs.23,73,798/- before the State Commission, evidencing the expenses incurred by that time on her treatment.  The complainant is entitled to recover the aforesaid amount from the appellants.  Though, no-one can really compensate the complainant for, she being placed in a condition where despite being alive, she is not in a condition to enjoy the pleasures of rest of her life.  She has been rendered an invalid for the remaining part of her life and become wholly dependent on others.  The pain and suffering of the complainant being endless, no amount of compensation can bring back the precious years of life which she already has spent undergoing treatment at hospitals, physiotherapy centres and at home.  Considering the extent of her disablement as brought out in the affidavit of Dr. B. P. Mruthyaunjanna, there is no joy and purpose left in her life.  Neither she is likely to regain her memory and speech and mobility, nor will she be able to regain the intelligence and understanding expected from a period of her age.  She was a child of about 14 years at the time the dreaded disease struck her.  Though she is now of marriageable age; there is hardly any possibility of her getting married and enjoying the bliss of a married life.  She having lost almost everything worthwhile in the life, no amount of money can really compensate her.  Yet, this Commission has to do the best it can and give her what is found to be fair and reasonable compensation. 

The State Commission has, in addition to medical expenses, awarded a sum of Rs.10,00,000/- towards pain and suffering, Rs.10,00,000/- towards loss of amenities in life, Rs. 10,00,000/- towards incidental charges, Rs.20,00,000/- for future medical expenses, Rs.5,00,000/- towards attendant charges  and  Rs.10,00,000/- as the compensation for her mental agony.  Considering all the facts and circumstances of the case, the appellant in my opinion should pay a consolidated amount of Rs.50,00,000/- as an all-inclusive one time compensation to the complainant, along with interest @ 8% per annum from the date of filing of the complaint.  The appellants are granted six weeks to deposit the said amount with the concerned State Commission.  On such deposit, a sum of Rs.40,00,000/- shall be deposited in a Nationalized Bank, in an FDR in the joint  name of the parents of the complainant, initially for a period of ten years.  The interest which accrues on the said deposit shall be utilized by the parents of the complainant solely for her treatment and wellbeing.  The balance amount shall be paid to the parent of the complainants.  If the interest which is paid on the fixed deposit is not sufficient for the treatment of the complainant, the parents of the complainant will be entitled to withdraw part of the said deposit with the prior permission of the concerned State Commission.  The appeal stands disposed of.