JUDGEMENT<br /> By Sri. Pampapathi President:-<br /> <br /> This is a complaint filed by the complainant No- 1 & 2 against the Respondents 1 to 3 U/sec. 12 of Consumer Protection Act for to direct them to pay an amount of Rs. 20,00,000/- as compensation due to death of their second son Rishab with interest cost and other reliefs as deems fit to the circumstances of this case.<br /> <br /> 2. The brief facts of the complainants case are that, deceased Rishab is their son he was studying in UKG class of Respondent’s Institution. He was admitted in Respondent’s Institution by paying fees of Rs. 5,075/- for first and 2nd terms. On 04-12-07 when he was left for lunch in the school, he gone outside and fell in the open septic tank situated in the school premises. The students of the same school witnessed it and it was intimated to one teacher thereafter he was lifted hospital wherein he was declared as dead due to asphyxia as a result of drowning Respondent Institution not taken care to close the septic tank even though it is in their school premises. This fact was brought to the notice of the Respondents by the parents of children but they have shown their negligence in closing the septic tank and to give compensation to them thereby all the Respondents were found deficiency in their services towards complainants as such this complaint is filed by the parents and prayed for to grant reliefs as noted in this complaint.<br /> <br /> 3. The Opposite Parties 1 to 3 appeared in this case through its Advocate and filed written version by denying the entire allegations made by these complainants against them. It is contended by them that no septic tank was kept open in the school premises, the son of the complainant might have fallen in the water tank, there is no negligence on their part. Hence it was prayed by them to dismiss the complaint among other grounds. <br /> <br /> 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:<br /> <br /> 1. Whether the complainant Nos- 1 & 2 have proved that on 04-12-07 in between 12-30 to 1-30 PM their son Rishab aged about five years studying in UKG of Respondent’s Educational Institution in Raichur fell in the open (un-covered) septic tank which is situated in the school premises and died due to asphyxia as a result of drowning which is result of negligence of the Respondents 1 to 3 and thereby all these Respondents found guilty under deficiency in their services towards them.?<br /> <br /> 2. Whether complainants are entitled for the reliefs as prayed in their complaint.?<br /> <br /> 3. What order?<br /> <br /> 5. Our findings on the above points are as under:-<br /> <br /> (1) In the affirmative.<br /> <br /> (2) As discussed in the body of this judgement.<br /> <br /> (3) In-view of the findings on Point Nos- 1 & 2, we proceed <br /> to pass the final order for the following :<br /> <br /> REASONS<br /> POINT NO.1 & 2:-<br /> <br /> 6. To prove the facts involved in these two points, affidavit-evidence of complainant No-1 was filed, he was noted as PW-1, affidavit-evidence of one witness by name Narayan was filed he was noted as PW-2. Respondents filed interrogatories for which complainants answered. The documents at Ex.P-1 to Ex.P-25 are marked.<br /> <br /> 7. On the other hand affidavit-evidence of the principal of Respondents College was filed he was noted as RW-1 and complainant filed interrogatories and answered by Respondents. No documents filed and marked written arguments filed from the side of the Respondents.<br /> <br /> 8. In the instant case Ex.P-1 & Ex.P-2 are the Fee Paid Receipts regarding the admission of deceased Rishab in the Respondents Educational Institution for the year 2007. Ex.P-3 is the Annual Evaluation Report of the said student. On appreciation of these documents, those establishes relationship of consumer and service provider in between complainant and Respondents Institution. In this regard we have referred and followed the principles of three rulings reported in (1) 1993-DCR(CONS)-3-58 Bombay High Court Mohansiroya V/s. Principal SVT Santas College of Engineering DHV (2) (1) 1992 CPJ 105 ANL Pancheco gracies Bombay V/s. Principal Bharatiya Vidyapitha College of Engineering Pune. (3) 996 (III) CPJ Central Academy Educational Society V/s. Gorav Kumar.<br /> <br /> 9. In the said two rulings the Hon’ble Bombay High Court and the Hon’ble State Commission held as the student is a consumer of service where he receives education on payment of consideration, as such there cannot be any doubt regarding the relationship of complainants who being the parents of minor boy and the Respondents as service provider.<br /> <br /> 10. As regards to the present instance is concerned, documents Ex.P-4 copy of FIR which shows the place of incident as open septic tank situated in the premises of the Respondent’s school, other documents namely Ex.P-5 copy of charge-sheet. Ex.P-6 spot panchanama. Ex.P-7 Statement of the complainant No-2 before police and Ex.P-8 to Ex.P-14 are the copies of the statements of witnesses before the police in their investigation, clearly establishes the fact that the place of incident is the septic tank kept open in the premises of the Respondents. On the perusal of the written version of these Respondents with affidavit-evidence of RW-1 we are of the view that they have not seriously disputed the incident and place of incidence but they have contended that the said boy drowned in the water tank and died but not in the septic tank, we are of the view that, the affidavit-evidence of PW-1 & 2 are corroborating with the documents stated above with regard to incident and place of incident. There are no records from the side of these Respondents to hold that, the said boy drowned in the water tank but not in the septic tank. Mere affidavit-evidence of RW-1 without any supporting evidences not sufficient to negativate the above documentary evidence of complainant and affidavit-evidence of PW-1 and PW-2, as such we are not in a position to accept the case of Respondents accordingly we trusted the affidavit-evidence of PW-1 & 2 and documentary evidences. Ex.P-4 to Ex.P-14 and P.M. Report of deceased Ex.P-15, and came to conclusion that Respondents kept open the septic tank in the school premises by these Respondents where minor children like deceased Rishab were freely making movement and playing in the said premises is nothing but clear negligence and recklessness on the part of these Respondents, and due to it the said boy fell in the open septic tank and died due to asphyxia, as such all these Respondents jointly and severally found guilty under deficiency in their services towards complainant, accordingly we answered in Point No-1 in affirmative.<br /> <br /> 11. Complainant prayed for to grant compensation amount of Rs. 20,00,000/- with interest at the rate of 12% p.a. While considering the quantum of compensation, there are no hard and past rules to assess the loss. In MVC cases as well as cases arising out of the Workmen’s Compensation Act there are guidelines to assess the loss. But while considering the complaint under Consumer Protection Act, we have no such guidelines to compute the compensation. So we have to keep in mind that the brilliancy of boy, his future prospectus, loss of love and affection and other emotional loss are required to be considered. However before considering the quantum of compensation we have to take to note that human life cannot be measured in terms of loss of earning or monetary loss alone. There are emotional attachments involved which can be easily visualized and understood, sympathy for victim does not and should not come in the way of making correct assessment of the damage, but if a case is made out then we must not be charry of awarding adequate compensation amount.<br /> <br /> 12. In the instant case complainants have lost their second son because of no fault of them but it was due to negligence of these Respondents, keeping in view of the entire facts and circumstances stated above, we are of the view that awarding a global amount for the complainant may not fulfill the loss of love and affection by them. However we are of the view that granting lumpsum amount of Rs. 1,50,000/- is proper and adequate compensation amount which will meet out the ends of justice. As seen complainant No- 1 & 2 are entitled to get compensation amount of Rs. 1,50,000/- prove the Respondents 1 to 3 jointly and severally.<br /> <br /> 13. We have noticed the deficiency in service on the part of these Respondents due to their negligence the complainants have lost their second son as such we have granted an amount of Rs. 5,000/- recoverable from Respondents 1 & 2 under the head of deficiency in the service of these Respondents.<br /> <br /> 14. As regards to the cost of the litigation is concerned, complainant prayed for to grant Rs. 10,000/- this amount is excessive and exorbitant as such we have taken note of the entire expenses of the litigation and granted an amount of Rs. 2,000/- to the complainant towards cost of this litigation which is recoverable from Respondents 1 & 2 jointly and severally accordingly we answered Point No-2.<br /> <br /> 15. Complainant prayed for to grant interest at the rate of 12% p.a. it is a special case in which complainant approached this Forum for to grant compensation for the loss of their son, we have taken note of entire facts and circumstances of this case we are of the view that granting interest at the rate of 12% p.a. on the amount of Rs. 1,50,000/- from the date of this complaint till realization of the full amount will be the proper rate of interest and accordingly we have granted interest at the rate of 12% p.a. on the total sum of Rs. 1,57,000/- recoverable by the Respondents jointly and severally from the date of this judgement till realization of the full amount. <br /> <br /> POINT NO.3:-<br /> <br /> 16. In view of our finding on Point No-1 & 2 we proceed to pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint filed by the complainants No- 1 & 2 is partly allowed with cost.<br /> <br /> The complainant No- 1 & 2 are entitled to recover a total sum of Rs. 1,57,000/- from the Respondents 1 & 2 jointly and severally. <br /> <br /> The complainant No- 1 & 2 are entitled to get interest at the rate of 12% p.a. on the said sum of Rs. 1,57,000/- on the date of this judgement till realization of the full amount.<br /> Respondents 1 & 2 are hereby given One month time from the date of the judgement for making payment of the above total sum to the complainants. Intimate the parties accordingly. <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 24-07-09)<br /> <br /> Sd/-<br /> Sri.Pampapathi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Gururaj, Member,<br /> District Forum-Raichur.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />