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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ajit Bharihoke, Presiding Member
Govind & Anr. —Petitioners
versus
Pradeep —Respondent
Revision Petition No. 689 of 2015
(Against the Order dated 19/09/2014 in Appeal No. 658/2010 of the State Commission Maharastra)
Decided on 1.4.2015
Counsel for the Parties:
For the Petitioners:Mr. Shashibhushan P. Adgaonkar, Advocate
IMPORTANT POINT
In a consumer complaint initial onus of proving relationship of consumer and service provider is on complainant.
Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Consumer complaint—Maintainability—Death due to drowning—In a consumer complaint initial onus of proving relationship of consumer and service provider is on complainant—Petitioners have failed to establish that deceased had availed of services of opposite party for using swimming pool under guidance of coach by paying some consideration—Finding of State Commission that there is no relationship of consumer and service provider between parties cannot be faulted— Even cause of death of child is not established in this case—Merely because dead body of child was found at swimming pool, it cannot be said that child died due to drowning—On this count also, petitioners have failed to establish deficiency in service on part of opposite party—Impugned order of State Commission cannot be faulted—Revision Petition dismissed. (Paras 7 to 9)
Result: Revision Petition dismissed.
Ajit Bharihoke, Presiding Member—This revision petition is directed against the order of Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (in short, “State Commission”) dated 19.9.2014 whereby State Commission allowed the appeal No.658/2010 preferred by the respondent/opposite party, set aside the order of the District forum granting compensation to the petitioner/complainant and dismissed the complaint.
2. Briefly put facts relevant for the disposal of revision petition are that the minor son of the petitioners/complainants was found dead at the swimming pool being run by the respondent/opposite party. The case of the petitioners in the consumer complaint is that the respondent is guilty of deficiency in service in not taking proper precaution which resulted in the death of son of the petitioners due to drowning.
3. The respondent opposite party in its written statement denied the allegations of the petitioner on merits. It was also pleaded that deceased is not a consumer qua the opposite party.
4. District Forum on appraisal of the evidence, allowed the complaint and directed to the respondent/opposite party to pay to the petitioner a sum of Rs.1 lakh as compensation alongwith 9% interest thereon w.e.f. 14.8.2009. Besides, compensation of Rs.5,000/- was awarded.
5. Being aggrieved of the order of the District Forum, the respondent approached the State Commission in appeal and the State Commission vide its impugned order, allowed the appeal and dismissed the complaint. The relevant observation of the State Commission are reproduced as under :
“We thus heard the counsel for both side and perused the record. It is seen from the record that Janardhan was child of 11 years studying in 2nd std. It is the contention of complainant that he was knowing the swimming and that he was visiting the Ashtvinayak Swimming pool regularly. But no document to that effect is produced on record to prove the fact. Even no receipt of any fee paid by Janardhan on the fateful day of his death is produced on record. Therefore, there is no relationship as consumer and service provider between the appellant and deceased Janardhan. In the P.M. report also, there is no water shown in the stomach of the deceased Janardhan. Therefore, cause of death is doubtful. As the case of drowning was not proved by any evidence, in our view, the appellant cannot be held liable for the death of Janardhan due to drowning in swimming pool. Even otherwise, appellant is a Chairman of the trust who runs swimming pool. Therefore, he could not be held liable for sad demise of Janardhan. It has also mentioned in the complaint that Janardhan was missing from 17.5.2009 and till 24.5.2009 his parents could not get the knowledge of his whereabouts. The dead body was found in the swimming pool and there is no evidence that death of Janardhan had not caused due to drowning. In our view, District Forum did not appreciate the facts and evidence in proper perspective. The order passed by forum has no foundation. It suffers illegality and infirmity. Therefore, it requires to be quashed and set aside. Hence, the following order :
The appeal is allowed. The judgment and order passed by the forum is hereby quashed and set aside. The complaint stands dismissed. No order as to cost.”
6. Learned counsel for the petitioner has contended that the State Commission has committed a grave error in failing to appreciate that the deceased child was a consumer because he used to avail the services of the opposite party i.e. using swimming pool under the guidance of the coach in consideration of Rs.20/- per house. In support of this contention, learned counsel for the petitioner has drawn my attention to para 2 of the complaint which is reproduced as under:
“2. The complainant had a son, Janardhan, he was learning in seco nd standard in Bharat Primary School at Latur in the year 2008-2009 and was qualified for the standard 3. He was intelligent and all-rounder and
