Tamil Nadu

South Chennai

687/2009

R.Maheswari - Complainant(s)

Versus

M/S.MGM Dizzee World - Opp.Party(s)

T.Mohan & Devika

23 Aug 2018

ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

                                                                        Date of Filing  : 02.07.2009

                                                                          Date of Order : 23.08.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.687/2009

DATED THIS THURSDAY THE 23^RD DAY OF AUGUST 2018

                                 

1. R. Maheswari,

W/o. Mr. M. Raghunath Singh,

 

2. M. Raghunath Singh,

S/o. Mr. T. S. Madhan Singh,

Both Residing at:-

No.40/20, Raghava Street,

Choolai,

Chennai - 600 112.                                                   .. Complainants.                                                     

 

       ..Versus..

 

1. M/s. MGM Dizzee World,

Rep. by its Managing Partner,

ECR Road,

Muthukkadu,

Chennai.

 

2.  The United India Insurance Co. Ltd.,

Represented by its Divisional Manager,

Divisional Office – XIV,

Old No.139, New No.50,

North Usman Road,

T. Nagar,

Chennai – 600 017.                                            ..  Opposite parties.

          

Counsel for complainants         :  M/s. S. Devika & another

Counsel for 1^st opposite party  :  M/s. K. Bijai Sundar & another

Counsel for 2^nd opposite party :  Mr. R. Ravichandran

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to pay pecuniary loss of Rs.16,00,000/- for the death of their son in accident dated:24.03.2008, Rs.3,50,000/- towards punitive damages, mental agony, loss of love and affection etc together with interest at the rate of 12% p.a. with cost to the complainants.

1.    The averments of the complaint in brief are as follows:

The complainants submit that the 1^st opposite party possessing amusement park in the name of MGM Dizzee World conducting water rides, swimming pool etc of different kind of amusements.  The complainants further submit that his son R. Dinesh Kumar Singh, aged 25 years employed in M/C Quintegra Solutions Ltd. earning a sum of Rs.2,20,000/- per annum went to the 1^st opposite party’s amusing park along with 20 of his friends after due payment, of entry fees etc on 24.03.2008.  While the complainants’ son after water ride amusement entered into the swimming pool at about 15.15 hours drowned in the swimming pool due to the accident resulting sober mood to injuries.  Further the complainants submit that the accident is happened only due to the negligence of the 1^st opposite party in non providing of suitable security and safeguarding the life of the persons / public who are availing the amusement park.   Further the complainants submit that the deceased Mr. Dinesh Kumar Singh was hale and healthy person met with an accident in the swimming pool itself and succumbed to injuries.  In fact, he was slated to travel to England on deputation and had urgently obtained his passport a few days prior to the death.  The complainants’ son had excellent career prospects which were nipped in the bud.   The act of the opposite parties caused great mental agony.  Hence the complainants issued legal notice to the opposite party dated:20.02.2009.  Thereafter, this complaint is filed.

2.     The brief averments in the written version filed by the  1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainants to strict proof of the same.    The 1^st opposite party states that the deceased along with 20 others came to their amusing park and parted with various entertainments games etc provided in the premises conducting water rides, swimming pool etc.  The 1^st opposite party has provided necessary and safety and security, including the first aid kit and other life guard protection.  Further the 1^st opposite party states that all the 20 including R. Dinesh Kumar Singh was not in a sober mood and under the influence of alcohol created ruckus and noise, pulling and pushing each other inside and outside the swimming pool.  Further the 1^st opposite party states that immediately after incident, the ambulance service was called and the deceased was taken to the hospital.  Further the 1^st opposite party states that the amusing park was duly insured with the 2^nd opposite party under group insurance and the compensation claimed is imaginary and exorbitant. There is no negligence on the part of the 1^st opposite party.   If at all any compensation be awarded, it should be paid by the 2^nd opposite party.   Hence the complaint against the 1^st opposite party is liable to be dismissed.

3.     The brief averments in the written version filed by the  2^nd opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.   The 2^nd opposite party states that this opposite party issued Public Liability Non-Industrial Risk Policy of Insurance in favour of the 1^st opposite party.     The deceased named Mr. Dinesh Kumar Singh do not know swimming and he jumped from the height met with an accident resulted sober mood injuries.  The 2^nd opposite party is not liable to pay any compensation.  The policy issued in favour of the 1^st opposite party is related to public liability.  The contract between MGM, the 1^st opposite party and the 2^nd opposite party is very limited.   As per the clause 9, the insured shall inform the 2^nd opposite party insurance company immediately after the accident.   The compensation claimed is exorbitant.  The 2^nd opposite party states that it was purely an accident caused due to the negligence and lack of care on the part of the deceased.  Therefore, there is no negligence in service on the part of the 2^nd opposite party and hence the complaint is liable to be dismissed.

4.   To prove the averments in the complaint, the complainants has filed proof affidavit as their evidence and documents Ex.A1 to Ex.A9 are marked.  Proof affidavit of the 1^st opposite party filed and documents Ex.B2 to Ex.B4 are filed and marked on the side of the 1^st opposite party.  Proof affidavit of the 2^nd opposite party filed and documents Ex.B1 is filed and marked on the side of the 2^nd opposite party.

5.      The points for consideration is:-

1. Whether the complainants entitled a sum of Rs.16,00,000/- towards pecuniary loss for the death of their son as prayed for?

 

2. Whether the complainants entitled to a sum of Rs.3,50,000/- towards punitive damages, mental agony etc altogether with interest and cost as prayed for?

6.      On point:-

Both complainants and the 2^nd opposite party filed their respective written arguments.  The 1^st opposite party has not turned up to file written arguments and advance any oral arguments in this case.  Heard the complainants and 2^nd opposite party Counsel also.  Perused the records namely the complaint, written versions, proof affidavits, documents etc. Admittedly, the 1^st opposite party possessing amusement park in the name of MGM Dizzee World conducting water rides, swimming pool etc of different kind of amusements.  The complainants pleaded and contended that his son R. Dinesh Kumar Singh, aged 25 years employed in M/C Quintegra Solutions Ltd. earning a sum of Rs.2,20,000/- per annum as per Ex.A5 & Ex.A6 went to the 1^st opposite party’s amusing park along with 20 of his friends after due payment, of entry fees etc on 24.03.2008.  While the complainants’ son after water ride amusement entered into the swimming pool at about 15.15 hours drowned in the swimming pool due to the accident resulting sober mood to injuries. 

7.     Further the contention of the complainants is that the accident is happened only due to the negligence of the 1^st opposite party in non providing of suitable security and safeguarding the life of the persons / public who are availing the amusement park.   Ex.A1 is the FIR copy.  Ex.A2 is the Post-Mortem Certificate.  Ex.A3 is the Inquest Report.   Ex.A4 is the Death Report.   On a conjoint reading of Ex.A2 to Ex.A4, it establishes that the deceased Mr. Dinesh Kumar Singh was hale and healthy person met with an accident in the swimming pool itself and succumbed to injuries.  If suitable security measures and life guard provisions were made with appropriate emergency management, such death would have been avoided.  Since there was an inordinate delay in providing ambulance facility and hospitalization, the complainants are claiming a sum of Rs.16,00,000/- towards pecuniary loss and another sum of Rs.3,50,000/- towards punitive damages and mental agony.  Due compensation shall be awarded for such deficiency in service alone.  There shall be no punishment like imprisonment or awarding fine never arise and the same can be awarded through Criminal prosecution.   Further the complainants has not explained the pecuniary loss of Rs.16,00,000/- in this case.  As per Motor Vehicles Act for due assessment of pecuniary loss, the Formula of multiplier has to be adopted.   In this case, the complainants has not given any details regarding such formula of multiplication except citing a decision reported in IV (2007) CPJ page 15 National Commission.   The complainants also has not produced the text of the citation also.

8.     The contention of the 1^st opposite party is that the deceased along with 20 others came to the 1^st opposite party’s amusing park and parted with various entertainments games etc provided in the premises conducting water rides, swimming pool etc.  The 1^st opposite party has provided necessary safety and security, including the first aid kit and other life guard protection.  But the 1^st opposite party has not proved such protection and security measures in the manner known to law.   Further the contention of the 1^st opposite party is that all the 20 including R. Dinesh Kumar Singh was not in a sober mood and under the influence of alcohol created ruckus and noise, pulling and pushing each other inside and outside the swimming pool.  But even in Ex.A1, FIR and Ex.A2, Post Mortem Certificate, there is no whisper regarding the consumption of alcohol by the deceased and the companions also.  Further the contention of the 1^st opposite party is that immediately after incident, the ambulance service was called and the deceased was taken to the hospital. But on a careful perusal of Ex.A1 FIR, Ex.A2 Post-Mortem Certificate and the alleged time of incident, it reveals that there is an inordinate delay in providing ambulance service.  Further the contention of the 1^st opposite party is that the amusing park was duly insured with the 2^nd opposite party under group insurance and the compensation claimed is imaginary and exorbitant. If at all any compensation be awarded, it should be paid by the 2^nd opposite party. 

9.     The contention of the 2^nd opposite party is that this opposite party issued Public Liability Non-Industrial Risk Policy of Insurance in favour of the 1^st opposite party.   Ex.B1 is the policy.   The deceased named Mr. Dinesh Kumar Singh do not know swimming and he jumped from the height met with an accident resulted sober mood injuries.  The 2^nd opposite party is not liable to pay any compensation.  The policy issued in favour of the 1^st opposite party is related to public liability.  The contract between M.G.M., the 1^st opposite party and the 2^nd opposite party is very limited.   As per the clause 9, the insured shall inform the 2^nd opposite party insurance company immediately after the accident.  In this case, the 1^st opposite party has not informed to the 2^nd opposite party with regard to this accident.  The compensation claimed is exorbitant. Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 & 2 committed deficiency in service and are jointly and severally liable to pay a compensation of Rs.15,00,000/- with cost of Rs.5,000/-.

In the result, this complaint is allowed in part.  The  opposite parties 1 & 2 are jointly and severally liable to pay a compensation of Rs.15,00,000/- (Rupees Fifteen lakhs only) with cost of Rs.5,000/- (Rupees Five thousand only) to the complainants.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 23^rd day of August 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	24.03.2008	Copy of F.I.R.
Ex.A2	25.03.2008	Copy of Post Mortem Certificate
Ex.A3		Copy of Inquest Report
Ex.A4	24.03.2008	Copy of Death Report
Ex.A5	20.12.2006	Copy of letter of appointment of deceased
Ex.A6	31.07.2007	Copy of Salary Certificate
Ex.A7	25.03.2008	Copy of News paper Report
Ex.A8		Copy of Passport of Deceased
Ex.A9	20.02.2009	Copy of Advocate notice of the complainants with postal acknowledgement

 

 

2^ND OPPOSITE  PARTY SIDE DOCUMENTS:  

Ex.B1

22.06.2007 to 21.06.2008

Copy of Insurance of the 2nd opposite party

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS:  

Ex.B2		Copy of park rules and regulations
Ex.B3		Copy of ride restrictions (Height & Safety)
Ex.B4	24.11.2009	Copy of Certificate of participation in First Aid Training

 

 

MEMBER –I                                                                           PRESIDENT