Per Mr.Shashikant A. Kulkarni, Presiding Judicial Member
[1] This is a consumer complaint under Sec.12 of the Consumer Protection Act, 1986 [hereinafter to be referred to as ‘CP Act’]. Complainants claim to be consumers and opponents are service provider with the meaning of CP Act.
[2] Complainants are parents of the deceased boy, namely, Rohan. He died due to drowning in civil tank on 28/04/2003.
Opponent no.1 is owner of a swimming tank. Though claimed, but during course of submission at Bar, complainants’ advocate submitted that, complainants do not want to proceed for reliefs against the opponent no.1.
[3] Opponent no.2 is a swimming club. Opponent no.3 is trainer appointed by the opponent no.2 to train the boys, an art of swimming. Opponent no.2 had given an advertisement in the form of pamphlet inviting the parents to admit their boys of age group 2 to 12 years in swimming summer camp. Complainant no.1 and one Mrs.Shailaja Rane decided to send their boys to attend swimming camp. Both Smt.Rane and complainant went, therefore, with their children to coach-opponent no.3 and paid Rs.1,200/- per head. Coach obtained Rs.4,800/- from them. He however issued a single receipt in the name of Tejas Rane, sone of Mrs.Rane.
[4] Swimming timing was from 8.15 p.m. to 9.15 p.m. Opponents used to blow siren at 9.10 p.m to remove boys from the tank and close the tank. It used to close the tank at 9.20 p.m. In the said camp, 86 boys were admitted. Those were under the training of the opponent no.3-coach. That means two persons were there, to look after the boys. However, on the basis of identity provided, the boys were given entrance in the pool premise and life saving floats.
[5] The incident took place on 28/04/2003. The complainant no.1 was near net of the swimming tank standing out side. She was looking for Rohan. She went to the opponent no.3. Opponent no.3 asked her to see elsewhere or nearby so casually. In the meanwhile, the time passed. All boys left. Only Rohan was not found. Complainant insisted opponent no.3 to see him. Opponent no.3 jumped into water and recovered Rohan from 15 feet deep. Some first-aid was provided to attempt to save him, but he was finally hospitalized. In hospital, he was declared to be dead, due to drowning.
Alleging deficiency in service, complainants claimed compensation over Rs.50 lac on the part of opponents as the deceased was promising student and would have earn money and fame and also lot of income.
[6] Opponent no.1 submitted that at the relevant time swimming tank was given to the opponent no.2 on lease for its use.
Opponent no.2 tried to disown its liability stating that, its duty was to collect the boys and hand over to the opponent no.3 coach for training. Rest of the responsibility was with the opponent no.3.
Opponent no.3 submitted that there is no consideration paid. Complainants are not ‘consumers’. He was not negligent. Rohan asked him at about 9.00 p.m. permission, to go to toilet. He granted permission. Full kit was on the body of Rohan when he went to toilet. However, surprisingly, after recovering body of Rohan there was no float on his body. It is tried to be submitted that, without knowledge, without taking proper care and without knowing proper art of swimming, Rohan went into the water and drowned. Therefore, no negligence can be attributed against the opponent no.3.
[7] On the basis of such pleadings, parties have led affidavits evidence and relied on documents. We have heard the learned advocates of both the sides.
[8] Learned Adv.Vikas Jambhekar for the complainant submitted that, this is a clear case of negligence and deficiency in service. There is privity of contract between the complainant and opponents, therefore opponents are liable to pay compensation.
There is no substantive relief claimed against the opponent no.1.
Learned Adv.S.B.Prabhawalkar for the opponent no.2 and 3 vehemently submitted that, affidavit of Mrs.Rane cannot be believed. Complainants have not paid consideration. Complainants are not ‘consumers’. It is established that, boy went in water without permission of the coach.
[9] Core question is whether the complainants are consumers and opponent no3 was negligent. We answer these questions in affirmative.
Complainants are consumers because coach Mr.Ghag returned the amount of four boys after one week’s time by cheque to Mrs.Rane. It is tried to be submitted that the letter has no bearing issued by Mrs.Dakshata Ghag because letter is signed by Mrs.Dakshta Rajaram Ghag. Opponent no.3-is Rajaram Ghag. She writes Sou. i.e. married with before her name and her husband’s name is Rajaram. No Indian woman would write name of any other person as her husband. Therefore, the cheque was on behalf of opponent no.3-Rajaram Ghag and return of amount was for four boys including deceased.
[10] Number of boys admitted in the said batch of camp itself shows negligence of the opponents. Said boys who were in the custody of opponent no.3 were 86 in number. Opponent no.3 was thus custodia legus of those boys. He cannot disown his liability. Opponent no.3 is responsible for the death of Rohan.
[11] However, claim of the complainant for compensation is excessive. Complainants have calculated the compensation on the calculation basis on the life expectancy of the deceased and probable earnings which would have been made by him and also for the support to the family etc. But the amount claimed based on life expectancy and without taking into consideration the uncertainties of life appears to be excessive. However, even maximum average earning life of 30 years taken into consideration to be active life of person and average income taking into consideration Rs.4,000/- per month deducing to Rs.2,000/- per month for personal expenditure, following amount would show exact pecuniary loss caused to the parents of deceased due to death.
Rs.2,000/- x 12 months = Rs.24,000/- x 30 years = Rs.7,20,000/-.
Besides for shock, mental agony and other non-pecuniary damages claims may be granted for Rs.1.80 lac with interest to make total compensation of Rs.9 lac. We hold accordingly and proceed to pass the following :
ORDER
1.Consumer Complaint is allowed in part.
2.Opponent no.2 and 3 are directed jointly or severally to pay an amount of Rs.9 lac [Rs. Nine lac only] to the complainants along with interest @9% p.a. from the date of complaint i.e.14/10/2003 within 60 days from today, failing which interest shall be @12% p.a. till realization.
3.Opponents to bear their own costs and pay litigation cost to the complainants of Rs.25,000/- [Rs.Twenty Five Thousand only].
4.One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
5.Copies of the order be furnished to the parties free of cost forthwith.
Pronounced
Dated 27th March, 2015.
