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TAMIL NADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, CHENNAI
Hon’ble Thiru Justice A. Raman, President &
Tmt. R. Vanaroja, Member
MADURAI CORPORATION—Appellant
versus
SOUTH INDIA CONSUMER PROTECTION COUNCIL & ANR.—Respondents
A.P. Nos. 377 of 2000 & 52 of 2001—Decided on 30.1.2004
Counsel for the Parties :
For the Appellant/Opp. Party (in A.P. No. 377/2000) Respondent/Opp. Party (in A.P. No. 52/2001):Mr. P. Srinivas, Advocate.
For the Respondents/Complainants (in A.P. No. 377/2000) Appellants/Complainants (in A.P. No. 52/2001): None.
The main legal point established in the judgment is the concept of deficiency in service under the Consumer Protection Act, 1986, and the liability of the Corporation for ensuring safety at the swimming pool.
Headnote:
Consumer Protection - Swimming Pool Accident - Consumer Protection Act, 1986, Section 2(1)(d), Section 2(1)(o), Section 2(1)(g), Section 2(1)(r), Section 2(1)(u), Section 14(1) - The court discussed the Consumer Protection Act, 1986, and its provisions related to physical safety, standard of safety, and the definition of consumer. The court also highlighted the liability of the Corporation under tortious liability and the jurisdiction of the Consumer Forum in cases of deficiency in service. The judgment emphasized the concept of deficiency in service and the responsibility of the Corporation in ensuring safety at the swimming pool. The court also referred to the Supreme Court's decision on compensation calculation in cases of death.
Fact of the Case:
The deceased, a young student, drowned in a swimming pool due to the absence of a rope marker and negligence of the swimming pool authorities. The complainant sought compensation for the loss of her son.
Finding of the Court:
The court found that there was deficiency in service on the part of the Corporation, leading to the death of the individual. It also held that the complainant was entitled to compensation under the Consumer Protection Act.
Issues: The main issues were the liability of the Corporation for the swimming pool accident, the jurisdiction of the Consumer Forum, and the entitlement to compensation for the complainant.
Ratio Decidendi: The court held that there was deficiency in service as defined under the Consumer Protection Act, and the Corporation was responsible for ensuring safety at the swimming pool. It also applied the Supreme Court's ruling on compensation calculation to determine the amount of compensation for the complainant.
Final Decision: The appeal in A.P. No. 377/2000 was dismissed, and the appeal in A.P. No. 52/2001 was allowed in part, directing the opposite party to pay a sum of Rs. 1,25,000/- to the second complainant with interest at 9% per annum from the date of award.
Thiru Justice A. Raman, President—The complainant’s case is that the deceased Rengarajan is her second son. He was studying in the Central School in X standard. On 24.7.1993 at about 5.00 p.m., he went for swimming in the pool belonging to and maintained by the opposite party. One part of the swimming pool has a depth of 4 feet while another part of the swimming pool about 12 feet deep. Normally a rope marker will be slung across the surface of the water to specify and bifurcate the shallow part of the pool from the deep part of the pool. The time for swimming has been fixed from 6.00 a.m. to 7.00 a.m. But the complainant’s son was permitted in an irregular manner to swim between 5.00 p.m. and 6.00 p.m. Further on that day, the rope marker was not there since it has snapped. The complainant’s son in the absence of the rope marker without knowing the difference in depth, died by drowning in the deep portion of the swimming pool. There must be an instructor and a lifeguard with an attender present all the time at the swimming pool. At the time of the incident, neither instructor nor the lifeguard were present. Thus on account of the carelessness and negligence, the death by drowning had taken place. If immediate first aid had been given, he would have survived. It was only at 7.00 p.m. on that day the complainant was informed about the same and the deceased was taken to Government Rajaji Hospital where he was declared to be dead. The complainant had also lodged a complaint with the police. The death of his son at such young age has caused considerable mental agony and loss to the complainant. The deceased was well trained in computer operation and was well versed in Hindi. He was also No. 1 student in studies. Hence, the complainant prays for a compensation of Rs. 4 lakhs.
2. The opposite party filed a proof affidavit alleging thus: The complaint is not maintainable. The complainant is not entitled to compensation of Rs. 4 lakhs. The allegations in the affidavit that the swimming pool staff incorrectly admitted the deceased for swimming on 24.7.1993 between 5 p.m. and 6 p.m. and rope marker was not fixed are false and incorrect. The swimming pool is opened on Saturday and Sunday between 6 a.m. and 7.30 a.m., 7.45 a.m. to 8.45 a.m., 9 a.m. to 10 a.m., 10.15 a.m. to 11.15 a.m., 11.30 to 12.30 p.m. for males and 2.30 p.m. to 3.30 for females and 5 p.m. to 6 p.m. for males. The allegation that the staff were absent at the time of the accident was also false. They were on duty in the swimming pool on 24.7.1993. By 5.15 p.m. the Rengaraj came to the swimming pool and after purchasing the ticket, he was swimming in the pool. He met with an accident suddenly by 5.35 p.m. and in spite of the efforts taken by the Corporation staff, he died. There was no negligence on the part of the staff. The Corporation is not liable. The deceased was given first aid. The Corporation had given complaint to the Inspector of Police immediately. The complainant is not a consumer.
3. The lower Forum accepted the complaint in part and awarded a compensation of Rs. 75,000/- plus a cost of Rs. 1,000/-.
4. Aggrieved by the same, the Madurai City Municipal Corporation has preferred an appeal in A.P. No. 377/2000. The complainant for her part has come up with appeal in A.P. No. 52/2001 requesting for higher compensation.
5. There is no dispute about the fate of the unfortunate boy who died by drowning in the swimming pool on 24.7.1993 at about 5.30 p.m. It is admitted that entrance fees are collected from the persons who want to come and swim and thus use the swimming pool. Apparently from the timings given in the proof affidavit of the opposite party, which is the version to the complaint, the permitted duration for swimming for a person holding ticket is an hour. Therefore, after collecting charges, the Corporation permits the use of the swimming pool by such invitees. It is needless for us to go into the question whether the deceased went there on that day to
