Karnataka

StateCommission

CC/78/2016

Byrahanume Gowda - Complainant(s)

Versus

St. Anns School - Opp.Party(s)

Mohan N C

21 Dec 2021

ORDER

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

 

DATED THIS THE 21^ST DAY OF DECEMBER 2021

 

PRESENT

 

HON’BLE Mr. JUSTICE HULUVADI G. RAMESH    : PRESIDENT

MR. K.B. SANGANNAVAR                                 : JUDICIAL MEMBER

MRS. DIVYASHREE M.                                     : MEMBER

 

Consumer Complaint No. 78/2016

 

1.  Byrahanume Gowda      S/o. Ramakrishnaiah       2.  Shylaja      W/o Byrahanume Gowda       3.  Master Rithik      S/o Byrahanumegowda      aged about 10 months      represented by his father      and natural guardian      Sri. Byrahanumegowda       All are residing at St.Thomas School Road Subhashnagar, Nelamangala Nalamangala Taluk Bangalore District 562123 (By Sri. Mohan N. C.) V/s	……Complainants
1.  St. Ann's School      Rep by its Secretary/Chairman      Vajarahalli, Nelamangala 562123 2.  Mr. Pawan Kumar      S/o Dalmiya, Proprietor      Residency Holiday Farm/Resorts      Near T Begur, Kasaba Hobli      Nelamangala Taluk, Bangalore District            Also at 37th  K M Mile Stone      Tumkur Road, Nelamangala      Bangalore District 562123 (OP No.1 by Sri. B.V. Pinto)	..…Opposite parties

O R D E R

 

BY HON’BLE Mr. JUSTICE HULUVADI G. RAMESH, PRESIDENT

This complaint is filed under Section 17 of the Consumer Protection Act, 1986 to issue direction to OP to pay a sum of Rs.50.00 lakhs as compensation towards death of minor child Master B. Punith and to grant any other reliefs as deemed fit by the Commission. 

2. The brief facts of the case is that son of complainant Master Punith B. aged about 9 years was studying in 3^rd Standard in OP-1 school and was taken to 2^nd OP resort on an excursion conducted by the school for consideration.  It is stated that on 09.01.2015 at 9.00 a.m. complainant Nos. 1 & 2 dropped their son B. Punith to school and at about 9.30 a.m. school authorities took him to the resort owned, administered and operated by OP No.2.  Later, at about 12.00 noon Complainant No.1 received a phone call from one Sri. Manjunath, staff of the school stating that their son was admitted to M.S.Ramaiah Harsh Hospital, Tumkur Road, Nelamangala.  On reaching hospital he came to know that his son B. Punith had died due to drowning in the swimming pool of 2^nd OP resort.  The hospital issued endorsement as ‘brought dead’.  The post mortem report clearly discloses that the death of the child is due to drowning.  It is alleged that the children were taken to the swimming pool and were allowed to play in the swimming pool.  It was not monitored by any staff of the OPs.  The children were negligently allowed to play in the water without the supervision of anybody and there was no safety precautions taken by the OPs.  The son of the first complainant had drowned in the swimming pool and nobody had noticed the same.  When they noticed that one of the student was missing, it was too late and on searching for him, he was found at the bottom of the swimming pool.  Thereafter, the said B.Punith was brought up by one of the staff members of the school as there was nobody from the 2^nd OP resort to ensure safety to the children.  It is submitted that the depth of the swimming pool is 6 feet and the height of the said B.Punith was only 3 feet.   It is further alleged that it was obligatory on the part of both OPs to ensure safety of the children.  The OPs have neglected their duties and the service rendered by them is deficient.  Thus, lodged the present complaint seeking relief.
3. The OP No. 1 in its version amongst other pleas pleaded that complainant is not a consumer under the OP No.1 and there exist no consumer and service provider relationship between the complainant and the OP No.1.  Further denying the contentions urged in the complaint, it is pleaded that the children were made to use the pool of height of 2 feet only and they were never allowed to move further.  Smt. Megha the class teacher was continuously present during the entire time with the students including the deceased were playing in the water.  There was no negligence or lack of care and caution on behalf of the staff of OP No.1.  All reasonable care and caution has been taken in respect of the safety of the children who had gone to the resort.  It is unfortunate that the boy died after coming out of the swimming pool.  Thus, sought dismissal of complaint.
4. OP No.2 upon service of notice did not choose to appear before the Commission and placed ex-parte. 
5. Taken as heard.  School boy studying in St.Ann’s School died.  As such parents and sibling of the deceased child claimed compensation.  Documents have been produced regarding admission and other details.  FIR registered under Crime No.12/2015 against the Chairman of OP No.1, its staff and the 2^nd OP and its staff for the offences punishable under Section 143, 304A, R/w Sec. 34 of IPC.
6. Written arguments filed by the OP stating that false complaint filed by the complainant.  Complainant is not a consumer.  There is no question of deficiency in service on the part of OP.  On 18.12.2014 school organizes excursion and fees was collected by the School.  There is no negligence on the part of the school authorities.  Utmost care was taken by the school authorities.  More than 20 members had attended on students batch by batch.  The children were made to use the pool which was 2’ deep and the child came alive from the pool and thereafter, he died.
7. On perusal of the complaint filed by parents and brother of Master Punith B. who was studying in 3^rd standard in the first OP school was aged about 9 years.  The management of the said school taken these students along with other students to the second OP resort on excursion conducted by the school for consideration.  It is therefore, the contention of OPs that Consumer Complaint against educational institutions is not maintainable could not be acceptable followed by catena of decisions rendered by Hon’ble Apex court and Hon’ble National Consumer Disputes Redressal Commission.  In this regard it would be appropriate to rely upon a decision in case of Capital Charitable & Education Society (R) Vs. Axis Bank Ltd. decided by Hon’ble National Consumer Disputes Redressal Commission in Consumer Case No.269/2017 followed by judgement rendered by Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel & anr. Vs. H & R Johnson (India) Limited & Ors., (2016) 8 SCC 286 wherein it is held is a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.  Facts remain that child was aged about 9 years was on excursion led by school along with other students.  Admittedly, they were on excursion to 2^nd OP resort.  In such circumstances, viewed from any angle child cannot be held contributed his negligence for the swimming pool mishap unfortunately happened at the said place.  It is the duty of the management to take precautions, since, child was just aged about 8 or 9 years.  The management ought to have exercised utmost care when they take students for such excursion as a team.  It is therefore, we are of the view that OPs failed to exercise utmost care when the students were on excursion to the resort of OP No.2, which amounts to deficiency in service on their part.  The parents and sibling of deceased sought for compensation of Rs.50.00 lakhs contending that he was studying in 3^rd standard was a very intelligent student participating in several extracurricular activities and had a bright future prospects had he been alive, but, facts remain that he was a student of first OP and even though did not anticipated such mishap alleged to have happened in the swimming pool of OP No.2.  Therefore, some amount of compensation could be awarded in favour of complainants and the OPs are duty bound to solace complainants in this way.  As such in our view awarding of Rs.5.00 lakhs compensation with interest at the rate of 6% p.a. from the date of complaint till realisation would meet the ends of justice.  In such conclusion, Commission proceed to allow the complaint in part filed under Section 17 of the Consumer Protection Act, 1986 and direct OP Nos. 1 & 2 do pay Rs.5.00 lakhs as compensation along with interest at the rate of 6% p.a. from the date of complaint till realisation.  The liability of OP Nos.1 & 2 shall be joint and several.  They are directed to pay such amount within 60 days from the date of receipt of this order.

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President

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Judicial Member

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Member