Tamil Nadu

StateCommission

CC/106/2012

E.R. SETHU MADHAVAN - Complainant(s)

Versus

VIJAYAN - Opp.Party(s)

VASUKI RAMANAN

10 Dec 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                                    Present:         Thiru J. Jayaram,                                PRESIDING JUDICIAL MEMBER

                                                          Tmt.  P. Bakiyavathi                           MEMBER

 

C.C. No. 106 / 2012

 

Dated this the 10^th day of DECEMBER, 2015

  

E.R. Sethumadhavan,              

S/o Ramakrishnan,                   

268-A, Bharathwaj Nagar,         

6^th Block, MTC Quarters,         

Mudichur-Manivakkam Post,    

Varadarajapuram,                                                                                     ..  Complainant

Chennai – 600 048          

 

                                                                       Vs.

 

Vijayan,                                   

Principal & Correspondent,       

Zion Matriculation School,        

Natraj Nagar, Selaiyur,                                                                      ..  Opposite Party

Chennai – 600 073          

 

Counsel for Complainant:                    -        Ms. Vasugiramanan

 

Counsel for Opposite Party                 -        Mr. G. Gopalakrishnan

 

              This complaint coming up before us for final hearing on            08-09-2015 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following Order:

 

J. JAYARAM, JUDICIAL MEMBER

1. The case of the complainant is as follows:

The complainant’s daughter by name E. Sruthi was a student of 2^nd standard in the opposite party school, and the opposite party collected a sum of Rs.7,700/- towards fee for conveyance by school bus for 11 months at the rate of Rs.700/- per month. On 25-07-2012, the school bus brought the children back home and during then, the complainant’s daughter was sitting on the 6^th row in the school bus where there was a big hole covered with a wooden board and the child was made to sit on the board, and when the bus reached Attai Company stop, the bus took an ‘u’ turn and the child fell into the hole and the bus ran over her thereby ending the life of the small girl.  

 

2.       The school bus was not properly maintained and it is the bounden duty of the school to take all measures to ensure the safety of the children while travelling in the school bus. The child died due to the improper maintenance of the school bus, and negligence on the part of the management of the opposite party school. The complainant’s wife had undergone sterilization operation. The complainant and his wife became very sick both physically and mentally after the death of their girl child, and hence the complaint claiming total compensation of Rs.25 Lac and to pay costs of Rs.10,000/-.

 

3.       The opposite party filed version stating as follows:

Three school busses including the ill-fated one, owned by one Yogesh were engaged for carrying the school children in these buses on lease basis, and therefore he is not responsible or liable for the incident.

 

4.       It is further stated in the version that the Hon’ble High Court suo motu took up the matter and issued notice to the opposite party and the Hon’ble High Court directed the opposite party to pay certain amount to the complainant. Therefore, the present complaint is not maintainable and is hit by res judicata.       

 

5.       It is further stated in the version, the tragedy occurred due to the rash and negligent driving of the school bus by the driver and the opposite party cannot be made liable for the tragic incident.

 

6.       The complainant filed proof affidavit and filed exhibits marked as Ex.A1 to A11 on the side of the complainant. The opposite party filed proof affidavit along with exhibits, marked as Ex.B1 to B9.

 

7.       The points for consideration are:

 

i)        Whether there is negligence or deficiency in service on the part of the opposite party as alleged in the complaint;

ii)       Whether the complainant is entitled to claim compensation from the opposite party;

iii)      To what relief the complainant is entitled?

 

 

8.       Point Nos. 1 & 2: Admittedly, the fact remains that the complainant’s daughter was made to sit on the wooden board covering a big hole in the school bus and the child fell down on the road through the hole in the bus and was run over by the same bus. The first contention of the opposite party is that they had taken the school bus on lease from the owner of the bus and so the opposite party is not responsible or liable for the incident.  

 

9.       It is the bounden duty of the opposite party to maintain the school bus properly and he cannot shirk his responsibility by implicating the owner of the school bus. It is the opposite party who collects the fees from the parents for carrying the school children including the deceased child for picking up the children from their residence and dropping them in the school and vice versa. Having collected the fees for the school bus, the opposite party is responsible to ensure the safety of the children by maintaining the school bus properly and if done so, there could not be a big hole in the bus which was covered by a Wooden board and the child was made to sit on the board over the hole, causing her fall through the board, and was run over by the same bus resulting in her instantaneous death. Therefore, the contention of the opposite party in this regard, that they are not liable for the tragic incident, is untenable.

 

10.     The opposite party would further contend that the accident was caused by the rash and negligent driving of the school bus and so they are not liable for the incident.

 

11.     In this regard, it is pertinent to note that, admittedly there was a big hole in the 6^th row of the bus where the hole was covered with a wooden board and the child was made to sit over the board and she fell down on the road through the hole and was run over by the same bus causing her death.

 

12.     It is a case where we can safely invoke the doctrine of ‘res ipsa loquitur’ and no further evidence is required to establish the liability of the opposite party’s school management. Therefore, the contention of the opposite party that the incident was caused by the rash and negligent driving of the bus by its driver, is unsustainable.  

 

13.     The further contention of the opposite party is that the Hon’ble High Court suo motu took up the matter and the Hon. High Court directed the opposite party to pay certain amount to the complainant and hence the present complaint is not maintainable before the Consumer Forum.

14.     In this context, it is relevant to note that the Hon’ble High Court has specifically stated in its order in COP Nos. 18689, and 18690 / 2012 as follows:

 

“Para 12: It is made clear that the amount payable to the parents of the victim is independent of any other claim that may be raised by the members of the bereaved family under any other law in force”.

 

15.     Further more, the Hon’ble High Court in COP Nos. 20296 and 20465 / 2012 has reiterated the earlier observation and has stated as follows:

 

“Para 16: It is made clear that the amount payable to the parents of the victim is independent of any other claim that may be raised by the members of the bereaved family under any other law in force”.

 

16.     The opposite party has further relied on the ruling of the Hon. Supreme Court in the following case –

 

Chairman, Tiruvallur Transport Corporation vs.

The Consumer Protection Council –

 

I-(1995)-CPJ-3 (SC)

 

and has argued that in view of the relief available under The Motor Vehicles Act, the instant complaint filed under the Consumer Protection Act is not maintainable.

 

17.     It is relevant to note that the ruling relied on by the opposite party viz. The Chairman, Thiruvallur Corporation vs. The Consumer Protection Council, in support of their defense is not applicable to the facts of the present complaint, since as per the said ruling the complaint arose out of a motor accident, whereas in the present complaint, the complainant is attributing negligence on the part of the opposite party for the improper maintenance of the vehicle used for transporting school children which led to the demise of the child. In this context, we have to note that Sec.3 of the Consumer Protection Act, empowers the complainant to seek the remedy before this Commission, in addition to any other law for the time being in force.

 

Sec. 3 of Consumer Protection Act reads as follows:

 

“3. Act not in derogation of any other law – The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”

 

 

18.     In the following case, the Hon’ble Supreme Court has held:

Secretary, Thirumurugan Co-operative Agricultural Credit

Society v. M. Lalitha –

AIR-2004-Supreme Court-448

 

“Consumer Protection Act, S.3 -  Remedy before Consumer Forum – Is in addition and not in derogation to remedy under other Acts – Dispute between Member and Co-operative Society – Jurisdiction of Consumer Forum to decide dispute – Not ousted in view of remedy of arbitration provided under S.90 or 156 of T.N. Co-operative Societies Act, 1983”

 

“As per S.3 of the Consumer Protection Act, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional / extended jurisdiction, particularly when S.3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar.”

 

“Further, the question of conflict of decisions may not arise. If the parties approach both the forums created under the T.N. Act and the Consumer Protection Act, it is for the forum under the Consumer Protection Act to leave the parties either to proceed or avail the remedies before the other forums, depending on the facts and circumstances of the case, Chairman, Thiruvallurvar Transport Corporation v. Consumer Protection Council, AIR 1995 SC 1384 : 1995 AIR SCW 2028 and Dhulabhai v. State of M.P. AIR 1969 SC 78, Distinguished.”

 

19.     Therefore, there is no force in the contention of the opposite party that the complaint is hit by res judicata and also that this Commission has no jurisdiction to adjudicate the present complaint and hence we hold that this complaint is maintainable before this Commission.

 

20.     On considering the entire materials on record, we hold that there is negligence and deficiency in service on the part of the opposite party in not maintaining the school bus properly resulting in the death of the child and hence the complainant is entitled to claim compensation from the opposite party, and the points are answered accordingly.

 

21.     Point No.3: The complainant has claimed total compensation of Rs.25 Lakhs, which is very much on the higher side. We have to note that the child died in a very tragic, pathetic and pitiable circumstances. From the version, we come to know from the opposite party, that the child’s brother also has passed away. Further it is submitted by the complainant that his wife has undergone sterilization, as evidenced by the sterilization certificate Ex.A8. Having regard to the facts and circumstances of the case, and considering all the relevant factors, we feel that award of Rs.10 Lakhs as total compensation would be the just and reasonable compensation for the negligence and deficiency in service on the part of the opposite party and the consequent death of the child, and the mental agony and sufferings of the complainant and his wife; and the point is answered accordingly.  

 

22.     In the result, the complaint is partly allowed, directing the opposite party to pay a sum of Rs.10 Lakhs (Rupees Ten Lakhs only) as total compensation. No order as to costs.

 

Time for compliance - two months from the date of receipt of copy of this order. In case of default to comply with the order, the amount shall carry interest at the rate of 9% p.a. from the date of default till compliance.

 

 

 

 

TMT.  P. BAKIYAVATHI                                                    J. JAYARAM          

           MEMBER                                                    PRESIDING JUDICIAL MEMBER     

 

 

List of Documents filed by the Complainant

 

Ex.A1          Ration Card

Ex.A2          Promotion letter with bus point details

Ex.A3          Bank Counterfoil for Academic fees of Rs.8,600/-

Ex.A4          Bank Counterfoil for Stationery fees of Rs.1,110/-

Ex.A5          Bank counterfoil for Bus Fare of Rs.7,700/-

Ex.A6          School Identity Card of the Deceased

Ex.A7          Death Certificate

Ex.A8          Sterilization Certificate – Chennai Corporation

Ex.A9          FIR Copy

Ex.A10        Medical Certificate of complainant’s wife

Ex.A11        MACT Claim Petition

 

List of Documents filed by the Opposite Party:  

 

Ex.B1          First page of Zion Diary 2012 - 2013

Ex.B2          Guidelines for the students availing bus facility

Ex.B3          Letter from Yogesh cab to V.R. Enterprises

Ex.B4          Lease agreement dated 1-6-2012

Ex.B5          Paper publication in Hindu, Dated 15-7-2012

Ex.B6          First Information Report

Ex.B7          High Court order in WP No.20272/2012, dt.10-8-2012 &

                   29-08-2012

Ex.B8          High Court order in Crl.O.P. No.18689 & 18690 / 2012,

                   Dt. 22-8-2012 & 20296 & 20465 / 2012, dt. 31-8-2012

Ex.B9          Dinamalar publication dt. 5-2-13

 

 

 

 

 

TMT.  P. BAKIYAVATHI                               J. JAYARAM          

           MEMBER                                  PRESIDING JUDICIAL MEMBER