As per Hon’ble Member Shri Avinash Prabhune.
1. This complaint is filed u/s Section 12 of the Consumer Protection Act 1986 regarding deficiency in services of the Opposite Party (OP) resulting death of the daughter of the Complainant.
2. According to the complaint of the Complainant,
a) The Complainant along with her minor son and daughter went to Amusement park, Crazy castle limited, Nagpur on 08.04.2014, which is maintained by Opposite Party No 1, Managing director Haldiram Private limited & Opposite Party No 2 run amusement park on behalf of O.P. 1. Opposite Party No 3 is the operator of the O.P. 1. O.P. 4, the insurance company, had provided insurance to O.P. No 1 & 2 for amusement park. The complainant purchased valid ticket for entry in the park by paying Rs 390 for self & Rs 190/- each for her children. The complainant’s daughter, Sara, fell down during her ride on Caterpillar solely due to incorrect operation of the ride and negligence by O.P. 3. The complainant’s daughter got unconscious but O.p. 3 did not provide any help after accident. Complainant managed to take her daughter to Dr Ravi Dande Hospital, Nagpur but unfortunately her daughter died. Police Station Ambazhari has registered offence against O.P. 3 & Others. Complainant further alleged that entire activities carried out at amusement park are illegal & OPs did not deploy trained persons for operating amusement park. O.P. No 1 & 2 are insured & having valid policy from O.P. 4, therefore, all O.P.s are jointly & severally liable to compensate Complainant.
b) The complainant further submitted her family background & irreparable loss suffered by her family due to death of her child due to negligence of O.P. 1 to 3. Complainant had issued legal notice dated 14.03.2016 to O.P.s but the reply to notice from OPs was evasive. Complainant alleged deficiency in services & negligence on the part of O.P. No 1 to 3. Complainant had filed present complaint alleging deficiency in services against O.Ps No 1 to 4 & prayed for directions to O.P. to pay total claim of Rs 8,25,000/- along with interest of 24% p.a. till realisation under different heads.
3. Forum issued notices to all O.P. after registering Complaint. Counsel of the O.P. 1 & 2 filed Written Statement on dtd 24.12.2018. The matter proceeded ex parte against O.P. 3 as OP 3 failed to appear despite of paper publication of Notice. Counsel of the O.P. 4 filed Written Statement on dtd 01.04.2019.
a) OP 1 & 2 had filed joint reply & raised preliminary objections as regards to maintainability of the compliant denying deficiency in service & denied complainant as Consumer. OPs further termed complaint as false & alleged suppression of the facts by Complainant. OPs filed parawise reply admitting visit of the complainant along with her two minor children at amusement park maintained by OPs on 08.04.2014. OPs denied their negligence in the death incidence of Sara, Complainant’s daughter. OPs submitted that they have taken all required actions by calling ambulance & taking sara (deceased) to hospital. OPs further submitted that all the activities at amusement parks are carried out with provisions of law & with trained staff. OPs further submitted that they had taken due care for all the visitors & necessary safety instructions have been displayed at every equipment. OPs alleged that complainant had ignored instructions given & written on the notice board, therefore, negligence, lethargic & casual attitude of the complainant towards the children was the cause of incidence. OPs further submitted that notice received from the complainant was suitably replied through counsel. OPs further submitted that they had insured park under Trade protector policy from OP 4, therefore, denied any liability to pay compensation. OPs denied prayer clause & prayed Forum to dismiss complaint with costs. OP 1 & 2 submitted 3 documents on records. i.e. copy of insurance policy, copy of the instructions & Copy of the ticket containing instructions.
b) OP 4 had filed reply & admitted that OP 1 & 2 had purchased Trade protect policy No 4730737 for the period from 18/09/2013 to 18/07/2014. OP 4 denied liability on the pretext that neither Complainant nor OP had intimated or filed any claim for the alleged incidence of death of the Complainant’s daughter. OP 4 came to know about the incidence only after receipt of notice in the present matter. OP 4 denied complainant’s contentions & raised objections about the maintainability of the compliant.
4. Complainant filed written notes of arguments on 12.09.2019. OP 1 & 2 filed written notes of arguments on dt 10.10.2019.
5. Heard Ld counsels for all the parties. We record our findings for the reasons given below.
FINDINGS AND REASONS
S.N. Points Finding
1 Whether the complainant is a ‘Consumer’ ? Yes.
2 Whether the complaint is maintainable? Yes.
3 Whether O.P. 1 to 3 is deficient in services? Yes.
4 Whether O.P. 4 is deficient in services? No.
5 Whether the complainant is entitled
for Claim/Compensation Yes.
6 What Order ? As per Final Order
AS TO THE POINT NO 1 & 2– (Consumer) (Maintainability of Complaint despite of preliminary objections of O.P.)
6. It is undisputed fact that Complainant along with her minor son and daughter went to Amusement park, Crazy castle limited, Nagpur on 08.04.2014. The complainant had purchased valid ticket for entry in the park by paying Rs 390 for self & Rs 190/- each for her children. The complainant’s daughter, Sara, fell down during her toy train ride on Caterpillar & subsequently died on 08.04.2014. Complainant had alleged negligence on the part of O.P. 1 to 3, which resulted death of her daughter Sara during her visit to amusement park. O.P.4 had provided Trade protect policy No 4730737 for the period from 18/09/2013 to 18/07/2014 to O.P. 1 & 2, where insurance coverage was available towards Public liability of Rs 5,00,000/- during the management of amusement park. O.P. 1 & 2 did not compensate Complainant for the loss of her child by denying any negligence of the OPs, therefore, Complainant had filed present complaint. It is matter of records that O.P.s 1 & 2 had purchased Trade protect policy from O.P. 4 by paying premium for insurance coverage, therefore, complainant, being the beneficiary of the public liability insurance coverage under the policy, is entitled to get benefit of policy. In view of the above facts, forum is of the firm opinion that present Complainant is entitled to be considered as ‘Consumer’ within definition of Section 2(1)(d) of the Consumer Protection Act 1986 & all OPs are considered as ‘Service provider’ under Section 2(1)(o) of the act & can be held liable for deficiency in service, as alleged, under Section 2(1)(g) of the Act.
The present complaint is within the pecuniary & territorial jurisdiction of the Forum as per Section 11 of the Act.
It is matter of records that cause of action accrued on 08.04.2014 & present complaint was filed on 05.04.2016. Forum has already held that complaint is within limitation as per Section 24-A of the Act while rejecting application of OP 1 & 2 for dismissal of complaint alleging it as time barred. Similar objection raised by OP 4, also deserves to be rejected.
OPs had raised objection that allegations & submissions in the complaint requires complete trial & cannot be decided in summary trial before forum. We do not find any merit in the objection of the OPs because issue involved in the present matter is quite simple & can be decided as per the procedure & provisions under the Consumer Protection Act. We rely upon the following observations recorded by the Hon Supreme Court of India, in the matter of ‘(Dr. J.J. Merchant & Ors. -Vs- Shrinath Chaturvedi (AIR 2002 SC 2931)’.
12. It was next contended that such complicated questions of facts cannot be decided in summary proceedings. In our view this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple. inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards.
It is settled position that dispute under the Consumer Protection Act is to be decided by following principles of natural justice by avoiding hyper technical procedures & arguments, therefore, we donot find any substance in the objections of OPs about the maintainability of the present complaint before forum.
In view of the above discussions, we answer point No.1 & 2 in affirmative.
AS TO THE POINT NO 3 & 4 (Deficiency in Services)
7. It can be seen from submissions of the Complainant & documents attached with complaint, such as FIR No 142/14 dt 22.04.2014, Post mortem report dt 09.04.2014 & legal notice that the complainant’s daughter fell down during her toy train ride on Caterpillar & subsequently died on 08.04.2014. Complainant had specifically submitted that OP 3 suddenly & abruptly started caterpillar toy train & operated 3 - 4 round although her daughter was shouting “Bachao Bachao”, thereafter, OP 3 suddenly applied brakes causing fall of her daughter on the track, which resulted in unconsciousness for her daughter. OP failed to provide any help for arranging medical treatment. Complainant’s allegations are against OP 3 for negligent operations of the caterpillar toy train & OP 1 & 2 for managing park activities through untrained staff & failure in maintaining amusement park. With reference to Complainant’s allegations, Forum noted following facts & aspects in the present complaint.
i) O.P. 1 & 2 denied most of the contentions of the complainant & submitted that park is run by trained staff but had not submitted any document to substantiate their claim about trained staff.
ii) O.P. 1 & 2 denial about the negligence in the accident incidence is evasive because it is matter of records that both OP 1 & 2 were not physically available on the spot at the time of accident. OPs had not filed any affidavit of O.P. 3 for negating the negligence of OP 3 in the incidence as alleged by the Complainant. OP 3, operator, who was present at the spot at the time of accident, did not appear & filed any reply to negate allegations of the Complainant despite of ample opportunities, therefore, it can be considered as implied acceptance of the Complainant’s allegations by OP 3.
iii) In the present matter, Post mortem report dtd 09.04.2014 clearly indicates the cause of death as ‘Blunt trauma to chest’, i.e. chest injury, further injuries referred in column 20 (Thorax, pleura, right and left lung) & column 17- Surface wounds & Injuries – aptly give credence to the allegations & story of accident submitted by the complainant. Looking in to the injuries suffered by decease clearly indicates that adequate protective measures were not available for the toy train ride. Similarly o.p’s had no arrangements for meeting out such emergency situations arising during the operations of toy train, which also established deficiency in services of the o.p’s.
iv) O.P. 1 & 2 submitted copy of the instructions displayed in the park & Counsel of OP vehemently argued that complainant’s ignorance & failure in following safety instructions has resulted the mishap, initially it appears appealing but when we carefully perused all the instructions & specific instructions displayed at Caterpillar toy train, it is specified that small children must be accompanied by parents, therefore, it was the prime duty of the O.P. No 3 to restrict entry of the 4 years old daughter of the complainant inside the area of toy train if she was not accompanied by her mother, Complainant. O.P.3’s failure to restrict entry of the deceased child amounts to negligence & deficiency in service. OP’s further deficiency can be noted from the fact that OP has misunderstood different person accompanied sara as her parent. In fact, considering risk involved in the ride, O.P. No 3 ought to have been extremely cautious before starting the ride. OP ought to have carried out necessary enquiry & checking before allowing sara (deceased) to enter in toy train. O.P. cannot be permitted to shirk responsibility upon the complainant.
v) O.P. 1 & 2 submitted that complainant had not provided birth certificate to demonstrate age of her child. It is evident from the available records that age of complainant’s daughter was of about 4 years. Moreover, we donot find much substance in the submissions of OP as specific instructions displayed (Document at Page No 88 – Filed by OP) at Caterpillar toy train donot specify any age constraint/requirement to ride toy train, whereas, for all other different rides, it is categorically specified different requirements (such as 3-8 years, 5-12 or 5-15 years, minimum 10, 12 & 15 years, minimum height 4’ 6”).
vi) It is well settled position that the elements of the tort of negligence are: (i) existence of a duty of care; (ii) a breach of the duty through action or omission; and (iii) damages arising as a consequence of the breach. It can be seen in the present case that all three elements are found as OP 3 has failed to take reasonable preventive as well as corrective action in the matter. It is felt that timely corrective actions by the OP 3 would have reduced the intensity of the accident. The negligence of the OP 3 has resulted accident & tragic death of the daughter of the Complainant.
vii) It is matter of records that O.P.3 was employee of the O.P.1 & 2, therefore, it is settled position that O.P. 1 & 2 are vicariously liable for the negligent/deficient act of their employee, O.P. 3.
8) It is matter of records that O.P.4 had provided Trade protect policy No 4730737 for the period from 18/09/2013 to 18/07/2014 to O.P. 1 & 2, where insurance coverage was available towards Public liability of Rs 5,00,000/- for the management of amusement park. O.P. 1 & 2 is shirking responsibility upon OP 4 for paying compensation citing the insurance coverage available to them under above policy. OP 4 denied liability on the pretext that neither Complainant nor OP had intimated or filed any claim for the alleged incidence of death of the Complainant’s daughter. OP 4 came to know about the incidence only after receipt of notice in the present matter. It is evident from written statement of the OP 1 & 2 that OPs had not placed any documents or submissions regarding intimation & lodging of insurance claim with OP 4 about the incidence of accident. It is clear from the documents available on the records that there was no way for complainant to know about the policy unless OP 1 & 2 informed her about the policy. Complainant came to know about insurance policy only after receipt of written statement of OP 1 & 2, thereafter; Complainant added OP 4 as necessary party & amended complaint for claim against OP 4. It is matter of records that policy was purchased by OP 1 & 2 from OP4 by paying premium, therefore, it was insurance contract between them as per applicable terms & conditions of policy. OP 1 & 2 had not placed any document on records about terms & conditions, entitlement, requirements & claim procedure for insurance under public liability. In view of the facts, forum is of the firm opinion that OP 1 & 2 ought to have intimated & lodged claim with OP 4 or ought to have guided Complainant for getting insurance claim under policy from OP 4 but unfortunately otherwise is noticed. OP 1 & 2 ought to have adopted consumer centric proactive measures considering the status of the Complainant due to death of her child. OP 1 & 2 is deficient in service also on this count of claim of Insurance. In the absence of documents, no liability or deficiency can be attributed to OP 4 in the present matter. OP 1 & 2 had not negated written submissions of OP 4 regarding non receipt of intimation & claim. We agree with the submissions of the OP 4. We donot find any direct liability of OP 4 in the present matter. OP 1 & 2 ought to have directly settled matter of insurance claim with OP4. Complainant cannot be compelled to suffer due to lack of coordination between both OPs.
In view of the above discussions, we answer point No. 3 in ‘affirmative’ & Point No 4 in ‘negative.’
AS TO THE POINT NO 5 (Compensation & Costs)
9) Complainant had claimed compensation of Rs 5,00,000/- for the irreparable loss of her child sara due to negligence of OP. Complainant had claimed compensation of Rs 3,00,000/- for the physical & mental agony & Rs 25000/- for funeral & medical expenses. We have already confirmed negligence & deficiency in services of OP 1 to 3 in the matter. It is matter of records that OP 1 & 2 had covered their business risks & such incidences through Trade protect insurance policy from OP 4.
Normally, Citizens visit amusement parks for fun, enjoyment & relaxation from stress in day to day working. The present tragic accident of the Complainant’s daughter in the amusement park was unfortunate incidence & loss of 4 years child by Complainant cannot be equated & compensated in any monetary terms. Complainant had suffered irreparable lifetime loss due to death of her child. In fact, OP 1 & 2 could have claimed insurance against policy & could have settled present matter by paying compensation as sought by the complainant. However, we feel that granting compensation of Rs 5,00,000/- claimed by the Complainant would provide some solace to her in the present facts & circumstances of the matter. Complainant’s sufferings, depression, trauma psychological problems faced after the accident during above period can be well imagined. Complainant is entitled to get reasonable compensation for the physical & mental agony. Similarly, Complainant was required to issue legal notice & file present consumer complaint before forum, therefore, Complainant is entitled to receive Costs in the matter.
10. In view of above reasons recorded, present complaint deserves to be partly allowed. Hence, we proceed to pass following order-
1) Complaint is partly allowed.
2) We direct O.P. 1 to 3, jointly & severally, to pay compensation amount of Rs 5,00,000/- @ 9% P.A. from date of accident date 08.04.2014 to till actual realization to the Complainant.
3) We direct O.P. 1 to 3, jointly & severally, to pay Rs 2,00,000/- as compensation for mental & physical agony & Rs 10,000/- as Costs to the Complainant.
4) Complaint against O.P. 4 is dismissed.
5) We direct O.P. 1 to 3, jointly & severally, to comply with above orders within 30 days from the receipt of order copy.
6) Certified copy of this order be supplied to both the parties.
