Karnataka

Kolar

CC/61/2013

Smt. Salman Begum, - Complainant(s)

Versus

Sri. Gopal Reddy, - Opp.Party(s)

T.V.Ramesh

09 Oct 2015

ORDER

Date of Filing: 09/10/2013

Date of Order: 09/10/2015

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 10^TH DAY OF OCTOBER 2015

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB               ……..    MEMBER

SMT. A.C. LALITHA, BAL., LLB         ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 61 OF 2013

1) SMT. Salman Begum,

W/o. Sameer Pasha,

Aged About 27 Years,

R/at: Reddy Field, Bowrilalpet,

R.S. Pet, KGF, Kolar District.

 

2) Master Shabaz Pasha,

S/o. late Sameer Pasha,

Aged About 11 years,

 

3) Kumari. Saniya Mirza,

D/o. late Sameer Pasha,

Aged about 9 years,

 

Both OP.2 & 3 are R/at:

Reddy field, Bowrilalpet, R.S. Pet,

K.G.F, Kolar District.

 

(Complainant Nos.2 & 3 being minors through

their next friend being the mother Smt. Salma

Begum the complainant No.1)

(Rep. by Sriyuth. P.N. Srinath, Advocate)             ….  Complainants.

 

- V/s -

1) Sri. Gopal Reddy,

S/o. Obala Reddy,

R/at: Vijay Nagar,

Bangarpet, Kolar District.

Proprietor of HGR Resorts.

 

(Rep. by Sri.P. Raghavan, Advocate)

 

 

2) Sri. Shivaprasad,

S/o.Prabhakar,

Major, R/at: No.75,

Suvarna Residence, 2^nd Cross,

Prashanth Layout, Hope Form,

White filed, Bangalore-560 066.

 

(Since placed exparte)                              …. Opposite Parties.

-: ORDER:-

BY SRI. N.B. KULKARNI, PRESIDENT

01.   The complainants (earlier only the complainant No.1 had preferred the complaint and later by way of amendment complainant Nos.2 & 3 minors came to be arrayed.  And even earlier there was a sole OP No.1; whereas by way of amendment subsequently OP.2 came to be arrayed.  And reliance placed on order dated: 03.06.2015 as mentioned in the order sheet)  having submitted the complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred in short as “the Act”) has sought for compensation of Rs.10,00,000/- from the OPs together with interest at the rate of 18% per annum.

 

02.   The facts in brief:-

It is contention of the complainants that, Sameer Pasha (since deceased) (being the husband of the complainant No.1 and father of the minors complainant Nos.2 & 3, through the complainant No.1) on 24.05.2012 had been to HGR Resorts. (as per records within limits of Bangarpet).  And that on purchasing of a ticket he went inside the swimming pool.  And that he drowned inside the swimming pool and died.  And that the said death was on account of utter negligence of the OP (in view of the amendment to be taken read as OPs) in maintaining the swimming pool as it was without trainers in swimming pool.  And that the OPs had not displayed the water level depth and the breadth of the swimming pool.  And that there were no warning signals for swimming customers.  Further it is contended that, the jurisdictional police had registered UDR case as envisaged Under Section 174 of Cr. P.C.  And that the police in collusion with the OPs had not filed any charge-sheet.  And that the death of said Sameer Pasha was on account of deficiency in service on the part of the OPs.  So contending the complainants have submitted the complaint on hand to seek above set out relief.

 

(a)    At this juncture it is worth to note that, along with the complaint with list following six documents have been submitted, which documents vide serial Nos. 1 to 4 are Xerox copies and the documents vide serial Nos. 5 & 6 are originals:-

(i) Xerox copy of UDR report in Bangarpet P.S. Crime No.16/12.

(ii) Xerox copy of the first information.

(iii) Xerox copy of the post mortem report.

(iv) Xerox copy of the death certificate in respect of the said deceased Sameer Pasha who died on 24.05.2012.

(v) Office copy of the legal notice

(vi) Postal receipt.

 

03.   In the first instance only the OP-1 being the sole OP had put in appearance and had submitted written version resisting the claim of the complainant/s in toto.  However on 20.06.2014 amendment came to be introduced arraying the OP-2, and on 04.07.2014 notice came to be issued to him, as per the proceedings maintained by the then learned predecessors.  The then learned Predecessors on 25.10.2014 passed an order placing this OP-2 exparte, as he failed to put in appearance in spite of notice being published in the news paper (paper publication of the notice issued to the OP-2 that was published in “Hosa Digantha” kannada daily news paper dated: 11.10.2014).

 

04.   OP-1 has submitted the written version denying allegations made in the complaint with regard to purchasing of the said ticket on the part of the said deceased on the said day.  And that contended death in the swimming pool, as well, UDR as contemplated Under Section 174 of the Cr. P.C stand denied.  Further it is contended that, the said legal notice dated: 26.06.2012 has been appropriately replied.  There is denial with regard to the claim for said quantum of compensation.

 

(a)    Further it is specifically contended that, as he (OP-1) had no specific skill and expertise to run the business of boarding and lodging hence the whole premises including the restaurant, lodging, swimming pool came to be leased to others.  And that accordingly on 24.05.2012 being the contended fateful day lessee was in possession of the said premises as such, he (OP-1) had no possessory right over the same.  Further it is also contended that, the said deceased Sameer Pasha was ailing and was suffering from heart weakness and was also under influence of alcohol on the said day.  And that he had ignored the advises and also suppressed his shortcomings while resorted to swimming, which ultimately resulted in his death.   And that thus the very deceased had violated the norms to take up swimming.  Thus dismissal of the complaint has been sought.

 

05.   The complainant No.1 has submitted her affidavit evidence and on 29.03.2014.  There is repetition of submission of the very same documents as noted above.

 

06.   OP-1 has submitted his affidavit evidence.  On 08.07.2015 the learned counsel appearing for the OP-1 with list has submitted copies of following ten documents:-

(i) FIR UDR No.16/12

(ii) Police Inquest Bangarpet Police

(iii) Statement of Abdul Khaleel, S/o.Abdul Khadar

(iv) Statement of Salma, W/o. Sameer Pasha

(v) Statement of Padmaraj, Manager HGR Resorts

(vi) Statement of Shivaprasad, S/o.Prabakar

(vii) Final charge-sheet for “B” Report dated: 30.05.2012

(viii) Post mortem report dated: 29.06.2012

(ix) Rental Agreement executed by Shiva Prasad in favour of Gopal Reddy dated: 12.05.2012.

(x) Endorsement dated: 12.05.2012 issued by the Public Information.

 

07.   On 17.06.2015 the learned counsel appearing for the complainant has submitted written arguments and on 07.10.2015 the learned counsel appearing for the complainant has submitted Memo with Xerox copies of following three citations:-

(i) 2013 ACJ 605

(ii) AIR 1997 DELHI 201

(iii) AIR 2003 GUJARAT 44

 

08.   Further on this day the learned counsel appearing for the complainant has also submitted Xerox copy of following citation:-

2009 ACJ 1298

 

09.   On 08.07.2015 the learned counsel appearing for the OP-1 has submitted written arguments.

 

10.   On 07.10.2015 itself heard the oral arguments as advanced by the learned counsel appearing for both sides.

11.   Therefore the points that do arise for our consideration in this case are:-

1. Whether death of said Sameer Pasha on 24.05.2012 in the swimming pool of HGR Resorts within limits of Bangarpet was on account of deficiency in service?

 

2.   If so, whether both the OPs are accountable?

 

3.   To what compensation these complainants are entitled to?

 

4.  What order?

 

12.   Findings of this District Forum on the above stated points for the following reasons are:-

 

POINT 1:     In the Affirmative.

 

POINT 2:     OP-1 is not accountable, whereas OP-2 is accountable for the said deficiency in service.

 

 

POINT 3:     The complainants are entitled to compensation of Rs.8,00,000/- together with interest @ 9% per annum from 09.10.2013 being the date of the complaint till realization, for being recovered from OP-2 alone.

 

POINT 4:     As per final order for the following:-

 

REASONS

POINT NO.s. 1 to 3:-

13.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

(a)    As per the principles enunciated in 2013 ACJ 605, AIR 1997 DELHI 201, AIR 2003 GUJRAT 44 as relied by the learned counsel appearing for the complainant, this is a fit case to invoke doctrine of resipsaloquitur.  The reasons are simple.  On fateful day the said Sameer Pasha having purchased the ticket did enter the swimming pool around 3.00 P.M. (reliance placed on recital in Para-XVII of the said Inquest report) never knowing that, he would never come out again.  He was quite aged person, for, as per the records he was 38 years at the relevant time.  Even the post mortem report discloses that, death was on account of drowning that led to Asphyxia.

 

(b)    Therefore now we are bound to proceed to fasten the liability as to who was negligent in maintaining the said swimming pool at the relevant time?  True, OP-1 was owner of the said premises.  But as rightly pleaded by OP-1 there was rental agreement dated: 18.05.2012 between OP-1 and OP-2 and from said day onwards OP-2 as a lessee entered the premises who admittedly started managing the lodging; restaurant, including swimming pool.  This aspect has been sufficiently deposed by Op-1 in his affidavit as to be found in Para-5.  As such, on no stretch of imagination the liability could be fastened on this OP-1.

 

(c)    Furthermore as per the statement recorded in Inquest report the OP-2 has stated before the I.O. that, on taking rent he has been running the said HGR Resort Hotel.  In his such statement before I.O. on 26.05.2012 he has even stated that, one Padmaraj was Manager and his Maternal uncle/father-in-law by name Jagadeesh Mendan was looking after maintenance of the swimming pool.  He has also stated that, on that day in the said swimming pool there were three persons including the deceased.  And according to him the deceased was suffering from Epilepsy.  And according to him at the relevant time he was away in Bangalore.  This document is enough to come to the conclusion that OP-2 being a lessee of the said premises inclusive of the said swimming pool was legally responsible in maintaining the swimming pool. 

 

(d)    Admittedly there were no life guards nor any other emergency equipments to meet the contingency that had happened.  Consequently the exclusive liability with regard to improper maintaining of the said swimming pool was on this OP-2.

 

(e)    Now we shall proceed to assess the compensation, as, the complainants being dependents of the said deceased have been deprived of their livelihood. 

 

(f)     As per the recitals in the said post mortem report the deceased Sameer Pasha as on 24.05.2012 being the date of death was aged 38 years.  Following the principles enunciated in 2009 ACJ 1298 at Para-25 we reckon on figure 15 as a multiplier. 

 

(g)    As per this Inquest Report Under Section 174 of Cr. P.C. the deceased was a businessman.  So his monthly income could easily be guessed as of Rs.6,000/-.  In this 1/3^rd shall have to be deducted towards personal expenses of the deceased.  Therefore loss of dependency on the part of these complainants per month would come to Rs.4,000/-.  So, following shall be the equation to assess the total loss of dependency:-

Rs.4,000/- X 12 X 15 = Rs.7,20,000/-

For the said compensation on account of loss of dependency we will have to add conventional compensation on the following counts:-

1. For loss of consortium sum of     Rs.30,000/-
2. For funeral expenses sum of                Rs.20,000/-
3. For loss of estate sum of              Rs.30,000/-

 

(h)    Thus the complainants are entitled to share equally the total compensation of Rs.8,00,000/- together with interest @ 9% per annum from 09.10.2013 being the date of the complaint till realization for being recovered from the OP-2 alone.

 

POINT 4:-

14.   We proceed to pass the following:-

 

ORDER

01.   For foregoing reasons this complaint stands allowed with costs of Rs.3,000/- as against OP-2 only and stands dismissed with no costs as against OP-1 as hereunder:-

 

(a) The complainants are held entitled to total compensation of Rs.8,00,000/- together with interest @ 9% p.a. from 09.10.2013 being the date of the complaint till realization for being recovered from the OP-2 alone.

(b)    We grant time of one month to the OP-2 to comply the order from the date of communication of it.

(c)    Besides the OP-2 shall deposit the said compensation amount together with interest as stated above at the prescribed time in this District Forum only.  And on such deposit of the same; the complainant is held entitled to realise the same to the extent of her 1/3^rd share; whereas such 1/3^rd share of each of the minor complainant Nos.2 & 3 shall stand deposited in any one of the Nationalized or Scheduled Banks as per option of the complainant No.1, till these minor complainants to attain majority, subject to permission to realise admissible periodical interest for maintaining the said minors; during their minority.

(02)  Send a copy of this order to both parties free of costs.

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 09^th DAY OF OCTOBER 2015)

 

 

 

 

MEMBER                             MEMBER                 PRESIDENT