1. 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.
The lower Forum accepted the complaint in part and awarded a compensation of Rs. 75,000/- plus a cost of Rs. 1,000/-.
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.
3. 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 learn swimming or he was a swimmer and went there to swim by way of an exercise. But in the complaint, it is stated that he went to the swimming pool for "Pazhaga" (in Tamil), which can be also taken to mean in English "as to learn". The doctor, who conducted the post-mortem, has not, of course, noted whether there was water found in the lungs. But, anyhow he has opined that the death was due to drowning. From the record produced by the complainant, we find that the deceased was not only proficient in studies but also in sports as well. He was a member of the Scout and also held certificates for successful completion of the course in Computer Concepts and Basic Language. Thus if such a promising youngster met with such tragic end, naturally the parents would be numbed with shock, having lost a son whose life has been nipped in the bud.
The two contentions were placed before this Forum for consideration by learned Counsel appearing for the Corporation. According to him, the death has resulted from an accident and assuming that there was negligence on the part of the Corporation which has caused the death, even then it will be only a case of tortious liability arising out of a breach of duty and hence the Consumer Forum cannot adjudicate upon the same but it is only a Civil Forum that will be appropriate Forum for adjudicating the complaint and hence the complaint is not maintainable. No doubt the Corporation will be liable on the ground of tortious liability and can be proceeded against in a Civil Court. At the same time, we are unable to accept the contention that the Consumer Forum cannot have jurisdiction. The General Assembly of United Nations passed the Resolution for Consumer Protection and adopted a guideline to provide a framework for Governments. The guidelines include physical safety as well. It also speaks of standard of safety. The Consumer Protection Act is a legislation intended to provide speedy redressal. If one approaches the Civil Court, then the procedure has to be followed with the result that there will be some prolongation of the matter. In order to avoid the same and provide a cheaper relief, these Forums have come into existence. Moreover, if one is to approach the Civil Court, necessarily ad volerem Court-fees has to be paid. That apart, there is no dispute as to the death of the person, the place of death of the person and the manner of death of the person. If these points are in controversy, perhaps one may say that these points being facts to be proved by adducing oral evidence, it is only just and proper that the Civil Court is entrusted with the job of adjudicating the same. But here, the intervention of the Civil Court is not necessary because the above facts are all admitted.
4. THE Corporation is the owner of the swimming pool and is maintaining the swimming pool and has thrown it open to the public for use. For the purpose of using the swimming pool, the Corporation charges Rs. 10/- per head. Thus the Corporation is rendering a service or hiring a service to those who wish to avail of the same. In pursuance of such offer of service, the complainant''s son has availed it by purchasing a ticket for Rs. 10/- and ultimately met with his end there. THErefore, viewed in that context, it will be clear that there is a hiring out of service by the Corporation and availing of service by the deceased. THEre is thus the contract of service in that regard between the parties.
The learned Counsel for the Corporation would contend that this is not a case of deficiency in service where persons like the complainant can come forward seeking redressal before the Forum. According to him, in matters like insurance alone if a third party namely the heir or nominee or representative in interest of the insured in case of death claim can approach the Court whereas in this case, if at all there was deficiency in service, it was only relating to the service rendered to the son of the complainant and, therefore, when the son of the complainant is not there, his mother cannot step into his shoes and pursue the complaint. According to him, the mother will be a stranger to the contract of service which was only the personal to the deceased and hence the complaint is not maintainable. In this regard, we are unable to accept the contention. One cannot place a too narrow construction upon interpretation of statutes. While defining complaint, it is provided that in case of a death of consumer, his legal heir/representative shall be deemed to be a consumer. If the contention of the Counsel for the appellant is to be accepted, then a position would result, where in case of death resulting from any deficiency in service on the part of a person whose services had been hired, then the heirs of the persons will be left with no other remedy. If according to the Counsel for the appellant a civil action can be maintained by heir of deceased on the ground of tortious liability, in our view, an action before the Consumer Forum can be equally maintained by an heir of the deceased for deficiency in service which resulted in death. For there need not be any specific provisions as such either in the definition to take into its folds the heirs of the consumer for a natural corollary, and part of scheme of any act, such a sequence or effect would fall. Hence, in such circumstances this contention of the learned Counsel for the Corporation that the application is not maintainable has to be rejected.
It is stated in the complaint that on that day, the rope marker was not there to divide the shallow area of the pool from the deep area of the pool. It is further stated that the instructor and lifeguard were not there at the time of the accident. It is also stated that no first aid was immediately given. These allegations are no doubt denied by the opposite party. But what we find is only an oath against oath. No affidavits are filed by the opposite party from the attender of the pool or from the instructor or from the lifeguard to say or show that they were actually present and that they warned the swimmer and that in spite of their warning the deceased strayed into the danger area and that the first aid was given and resurrection was attempted and that in spite of their efforts, they could not resurrect him. Nor it is stated by them that the rope marker was there. It is no doubt true that the bed of swimming pool will not be even in the sense that it would be a sloping surface so that one part would be shallow and another part of it would deep. This is with a view to help those who are beginners to learn swimming in that shallow part and enable those who know swimming to do swimming in deep waters. Therefore, it is that floor of the swimming pool or the bed of the swimming pool will be of sloping construction and with such gradient. Generally the pools will be rectangle in shape. Whether the rope markers have been slung across lengthwise of the pool or breadthwise of the pool and what is the practice, one need not bother now. But for differentiating the shallow part of the pool from the deep part of the pool, there must be definitely some indication either by way rope marker or by placards, boards and by way of hand signals. It is not stated in the version that in the swimming pool maintained by them besides the rope marker, they have exhibited necessary warning so that the beginners do not stray into the deeper part of the swimming pool. Such a case is not stated in the version. Therefore, in such circumstances, we have nothing to go by except an assertion or a denial. The fact remains that the boy aged 14 years died of drowning. He had gone there to swim or learn to swim. If he was not a learner but was a consummate consumer definitely a drowning accident could not be taken place. Perhaps, therefore, he had apparently gone there to learn swimming. Thus we have the irrefutable fact that the boy died of drowning in the swimming pool and while swimming. It is not the case that while he was swimming he developed any cardiac problem or that he suffered fits and thus drowned in the water. When it is not the case, then it follows that the drowning must have occurred because he had strayed into a deeper part of the swimming pool and drowned in that part of the pool. It is also in this connection to be pointed out that it is not the case of the opposite party that the drowning took place in the shallow part of the pool and not in the deeper part of the pool. Therefore, it is obvious that the drowning is a result of some negligence or is attributable to negligence on the part of the authorities maintaining the pool. At that time either there were no attenders or instructors to warn him or to jump to rescue the drowning individual. As we have pointed out already, it is not the case that the boards were exhibited warning the persons not to stray beyond a point. Added to these circumstances we get the further fact that the death had taken place in the evening time around 5 to 5.30 p.m. Perhaps the fag end of the day, the persons who were in charge of the pool namely the instructor, lifeguard, attender, were in a relaxed mood and failed to be vigilant. Therefore, the act namely the death speaks for itself. The theory of Res ipsa loquitor would come into play. Thus the act of carelessness is the chain that links the death of the individual and thus there is a negligence on the part of the authority concerned resulting from the deficiency in service and that they have failed to take all the necessary precautions and be vigilant in discharging their functions especially when youngsters like the deceased to flog to swimming pool either to learn swimming or to spend the time there to take a dip in the pool in the company of their friends. Hence, we have no hesitation in holding that there is deficiency in service as defined under the Act which has resulted in the death of the individual. There is lack of care in relation to the service of letting the swimming pool for use by the public.
5. NOW coming to the appeal filed by the appellant/complainant in A.P. No. 52/2001, she claims that the lower Forum erred in not awarding Rs. 4 lakhs and the sum of Rs. 75,000/- awarded is too low. The learned Counsel for the appellant in A.P. 52/2001 namely the complainant cited a decision reported in V (2001) SLT 826=II (2001) ACC 316 (SC), Lata Wadhwa and Others v. State of Bihar and Others, to contend that they are entitled to higher compensation or damages. Of course it was a case relating to a fire accident in a Pandal. Their Lordships of the Supreme Court adopted a multiplier for computing the amount of compensation. No doubt this is not a case arising in an Motor Vehicle Claims Tribunal. The case on hand is one arising on account of death of a person in a swimming pool. But, however, the dictum pronounced by the Supreme Court will apply to the facts of the present case. The Supreme Court held as follows: "The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last. In view of the aforesaid authoritative pronouncement of this Court and having regard to the determination made in the report by Mr. Justice Chandrachud, on the basis of the aforesaid multiplier method, it is difficult for us to accept the contention of Ms. Rani Jethmalani, that the settled principle for determination of compensation; has not been followed in the present case. Mr. Justice Chandrachud has correctly applied the multiplier, on consideration of all the relevant factors. Damages are awarded on the basis of financial loss and the financial loss is assessed in the same way, as prospective loss of earnings. The basic figure, instead of being the net earnings, is the net contribution to the support of the defendants, which would have been derived from the future income of the deceased. When the basic figure is fixed, then an estimate has to be made of the probable length of time for which the earnings or contribution would have continued and then a suitable multiple has to be determined (a number of year''s purchase), which will reduce the total loss to its present value, taking into account the proved risks of rise or fall in the income." Justice Chandrachud divided the persons into two groups in cases of children. First group of children falling between age group of 5 and 10 years and second group falling between age group of 10 and 15 years. A uniform sum of Rs. 50,000/- was held payable by way of compensation to children between age group of 5 to 10 years and conventional figure of Rs. 25,000/- was added and awarded a consolidated sum of Rs. 75,000/- to the heir of the children. In the case of children in the age group of 10-15 years, multiplier of 11 applied depending upon age of father and after adding conventional compensation of Rs. 25,000/- to each heir of deceased above 10 years, they were granted compensation to the tune of Rs. 1,57,000/-.
6. HERE in this case on hand, we have no data as to the earning capacity of the mother or the father. Further from the very complaint we find that the father is employed in a Department of Provident Fund. Therefore, we are not in a position to assess the prospective loss of earnings or the financial loss to the family. In such circumstances applying the above ruling, we are of the view that a compensation of sum of Rs. 1 lakh plus a sum of Rs. 25,000/- by way of conventional compensation would meet the ends of justice adequately. Hence in the circumstances, we are of the view that the complainant is entitled to a compensation of Rs. 1,25,000/- in all.
In the result, the appeal in A.P. No. 377/2000 is dismissed and the appeal in A.P. No. 52/2001 is allowed in part. The order of the lower Forum will stand modified as follows:
(a) The opposite party is directed to pay a sum of Rs. 1,25,000/- to the second complainant with interest at 9% per annum from the date of award namely from 28.7.1998. (b) The parties are directed to bear their own costs in these appeals. (c) Time for compliance : Two months.
Ordered accordingly.
