ORDER

1.       The present Complaint is filed under Section 21(a) (1) of the Consumer Protection Act, 1986.

2.       Along with the Complaint, IA No. 13359 of 2019 was also filed for Condonation of delay in filing response to the Questionnaire by the Opposite Parties and an IA No. 17542 of 2019 was filed for Condonation in delay in filing interrogatories by the Complainant. As per the averments made by the Parties, the applications are allowed.

3.       The case of the Complainants is that for the purpose of amusement and recreation of students, Opposite Party/University had constructed a swimming pool within its premises. Deceased, Dr. Shitesh Kumar Singh, Late son of Complainants No.1 and 2 and brother of Complainant No.3 who was pursuing Post Graduation in Medical Science paid an amount of Rs.300/- as fee for use of the abovementioned swimming pool where he was enrolled as a beginner in swimming. The Services provided by the Opposite Parties, inter alia, included supervision by Life Guards of users of the Swimming Pool. On the fateful evening of 26.05.2010, the deceased drowned in the swimming pool maintained by the Opposite Parties, where he remained submerged in the water for quite some time unnoticed by the Life Guards. After being rescued, he was admitted in the Intensive Care Unit (ICU) in Sir Sundarlal Hospital located in the premises of Banaras Hindu University in a critical condition, where he expired on 30.05.2010. Alleging deficiency in service on the part of the Opposite Parties, the Complainants filed the instant Complaint with this Commission with the following prayer:

“a) direct the Respondents to give a compensation amount of Rs.5,88,00,000/- for the financial loss and Rs.1,00,00,000/- for the mental trauma they have suffered. A total sum of Rs.6,88,00,000/- should be paid to the Complainants within the period fixed by this Hon’ble Commission with an interest of 18% till the execution of order/decree;

b) pass any other order and further relief(s) which this Hon’ble Commission deems fit and proper in the facts and circumstances of the case.”                     

4.       The Opposite Parties resisted the Complaint by filing a Written Statement on the ground that the Complainants were not ‘Consumers’. It was stated that the Opposite Parties were not Service Providers as they had only made arrangements for the swimming for students and family members. Amount of Rs.300/- was charged from the members for maintenance of swimming pool hygiene and for safety of the members. It was stated that the deceased had submitted an application form for membership of the swimming pool before the University Sports Board, alongwith Rs.300/- as registration charges. In the application form there were two columns, one for the beginners and the other for the established swimmers. The deceased was only a beginner in swimming and was assigned the time slot of 5:00 PM to 5:30 pm. On the first visit of the deceased to the swimming pool on 20.05.2010, he was directed by the staff to confine his movement in the area specifically earmarked for the beginners where the depth of the pool was between 1.10 meter to 1.25 meter and he was not required to cross the demarcation that separates the two categories of Swimmers i.e. beginners and the established swimmers. The Opposite Parties submitted that notices were also displayed at prominent places inside the swimming pool premises mentioning that the beginners were not to go in deep waters. It was also stated that as soon as the deceased took a plunge in deep water earmarked for established swimmers, Life Guards on duty rushed to recuse him and successfully brought him out alive. He was immediately taken to S.S. Hospital of the University and best possible medical care was provided to save his life, but unfortunately he succumbed to death after four days on 30.05.2010. It was further submitted that a higher degree of knowledge is to be attributed to the deceased, since he was an MBBS Doctor, pursuing P