National Consumer Disputes Redressal
Rajaram Gangaram Ghag vs Geeta Vinod Jethva & 3 Ors. on 20 May, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 609 OF 2015 (Against the Order dated 27/03/2015 in Complaint No. 225/2003 of the State Commission Maharashtra) 1. RAJARAM GANGARAM GHAG R/O. 1/4 RAJHANS CO-OP. SOCIETY, GHATKOPER (EAST) MUMBAI-400075 MAHARASHTRA ...........Appellant(s) Versus 1. GEETA VINOD JETHVA & 3 ORS. R/O. 22/3 AZAD NAGAR, R.A.K. ROAD, WADALA, MUMBAI-400031 MAHARASHTRA 2. SH. VINOD JINABHAI JETHVA R/O. 22/3 AZAD NAGAR, R.A.K. ROAD, WADALA, MUMBAI-400031 MAHARASHTRA 3. AQUATIC SWIMMING CLUB, R/O. G/1, GULMOHAR WADI, VEER SAWARKAR MAGAR, DADAR (WEST) MUMBAI-400028 MAHARASHTRA 4. MUMBAI MUNICIPAL CORPORATION CORPORATION BUILDING OPP. C.S.T. MUMBAI- ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT
FOR THE APPELLANT : FOR THE APPELLANT : MR. HIMANSHU UPADHYAY, ADVOCATE FOR THE RESPONDENT : FOR THE RESPONDENTS : NONE FOR R-1 & 2/COMPLAINANTS
MR. MANISH KUMAR TIWARI, ADVOCATE FOR R-3
MR. ASHISH WAD, ADVOCATE &
MR. AJEYO SHARMA, ADVOCATE FOR R-4
Dated : 20 May 2024 ORDER
1. The appeal arises out of an order dated 27.03.2015 passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) whereby the State Commission has awarded compensation to the claimants/respondents no.1 and 2 who are the unfortunate parents of a 7 year old child Rohan who died while swimming in a tank/pool maintained by the Mumbai Municipal Corporation and run by the Aquatic Swimming Club with the appellant Rajaram Gangaram Ghag as the in-charge trainer/coach.
2. The unfortunate incident took place on 28.04.2003 when the appellant as a coach was taking swimming classes between 8.15 p.m. to 9.15 p.m. The deceased was also one of the participants. It appears that immediately upon the closure of the swimming hours referred to above, the deceased boy went missing when the complainants/respondents no. 1 and 2 came near the net of the swimming tank looking for him. The appellant dived into the swimming pool and recovered the body of the deceased that had sunk 15 feet deep into the pool. Some first aid was attempted and he was hospitalized but he was declared dead having drowned in the swimming pool.
3. The complaint was filed against the swimming pool as well as the appellant and the Municipal Corporation was also arrayed as one of the opposite parties.
4. After having assessing the evidence on record, the State Commission came to the conclusion that the appellant and the Aquatic Swimming Club were jointly and severally liable to pay a sum of Rs.9,00,000/- as compensation within 60 days from the date of the complaint i.e. 14.10.2003 plus litigation costs of Rs.25,000/-. The compensation was to be paid with 9% interest.
5. The Aquatic Swimming Club that has been held to be jointly and severally liable along with the appellant has not filed any appeal. However, learned counsel for the Club has urged that the appellant had given an undertaking of all risks with regard to the children at the swimming pool and, apart from this, the admission of the deceased boy Rohan was taken directly by the appellant and the fee was also realized by him in his own bank account. It is therefore submitted that the entire liability is of the appellant.
6. Learned counsel for the Municipal Corporation Mr. Wad said that the complainants have not sought any relief against the Corporation which stands recorded in paragraph-2 of the impugned order. He however submits that the appellant coach had given an undertaking to the Swimming Club for owning all kinds of accidents, risks or otherwise and the Swimming Club on a back to back basis had given this undertaking to the Municipal Corporation through the Manager of the Mahatma Gandhi Memorial Olympic Swimming Pool, owned by the Municipal Corporation. He therefore submits that the liability of any deficiency is against the appellant as well as against the Club that has not chosen to file any appeal.
7. The complainants had initially appeared through counsel and were represented but it appears that on account of the prolonged pendency of this appeal, the complainants/respondents no.1 and 2 may not have been able to contest the appeal and keep track of it.
8. Having heard learned counsel for the parties and having perused the records, the membership form of the deceased boy Rohan has been signed by one of the parents. Learned counsel for the appellant urged that the said membership form categorically indicates that the child shall swim at the risk of the parent. Learned counsel further contends that no liability can be fixed on the appellant as he is only a trainer/coach and that no risk or liability falls on the appellant in respect of any accident or the drowning of the deceased in the present case. It is urged that the swimming pool/tank was managed through the Aquatic Swimming Club and therefore the entire liability is of the Club and not of the appellant who is only a coach. The contention therefore is that neither any tortious or vicarious liability can be attributed to the appellant, hence the impugned order of the State Commission is vitiated. There is no negligence or deficiency in service on the part of the appellant and hence the impugned order deserves to be set aside.
9. It is further stated that the compensation awarded is incorrectly disproportionate and the appellant is a physically handicapped person who was only there to coach the students coming to the camp with no involvement with the safety and risk of the students coming there. It is also the contention that the child was given a float but he was not seen around 9.00 p.m. Immediately at 9.15 p.m. when the timing of the swimming pool was over, the siren was blown and it was the appellant who dived into the swimming pool and recovered the body of Rohan.
10. It is also evident from the pleadings that a criminal case under Section 304 read with 34 IPC has also been registered.
11. From the record, it is evident that the Swimming Club membership form does indicate the parent applying for enrolment of the child to swim at its own risk. However, the same form under the rules and regulations provides that parents will not be permitted to stand or sit in and around the swimming pool while the training is being conducted. This recital in the rules and regulations therefore eliminates the presence of the parents from the site of the swimming pool and therefore they are not in a position to see their child or lend a protecting hand to him while undergoing training or swimming. The aforesaid recital in the membership form seems to be meaningless, inasmuch as the child cannot be left to swim at his own risk and consequently has to be looked after by the trainer.
12. Apart from this, it appears to be reasonable that the appellant who is the coach gave an undertaking that he shall take full responsibility for any accident or incident. This document which is in native Marathi has also been translated and exhibited before the State Commission and is extracted hereunder:-
"To, Aquatic swimming club I, Mr. Rajaram Narayan Ghag (Laxmi Narayan swimming coaching camp, Ghakopar) Have been conduct swimming batches at Swimming Pool, Dadar under the aegis of aquatic swimming club every evening at 8.15 p.m to 9.15 pm from 21.04.03.
I, Mr. Rajaram Narayan Ghag is hereby solemnly declare that taken full responsibility of swimmers/learners. For any kind of accidents, incidents physical or financial or otherwise or any situations arising due to the above and that I shall take full responsibility for the same.
Chief Coach Chief Coach Sd/- Sd/- (Mr. Rajaram Narayana Ghag) (Ganesh S. Kamtekar) Witness Sd/- Naresh Agarwal Sd/- Anant Pratap"
13. A perusal of the said undertaking would indicate that the appellant has given an undertaking to the Swimming Club and therefore the appellant cannot escape any responsibility once the aforesaid document is on record and is not denied. The service to take care is explicit and unambiguous. The document has not been rebutted by any competing evidence.
14. This is further substantiated by the fact that the Club gave an undertaking to the Municipal Corporation of Greater Mumbai on 22.01.2003. The same is extracted hereunder:
"MUNICIPAL CORPORATION OF GREATER MUMBAI MAHATMA GANDHI MEMORIAL OLYMPIC SWIMMING POOL (APPLICATION FORM FOR RESERVATION OF THE Pool) Dated:- 22/1/03 The Manager, M.G.M.O. Swimming Pool, Bombay - 400028.
Dear Sir, I/We have to request you to kindly grant me/us the permission to reserve the Swimming Pool on 8.15 to 9.15 for 1 hours from 21/4/2003 to 18/5/2003.
The number of people swimming will be about 100 and shall be entirely responsible for the loss of life, accident, theft etc. I/We shall compensate to the Municipal Corporation of Greater Mumbai for any damage to the property etc. I/We shall not make any profit out of the reservation of the swimming Pool and shall not sale of tickets on the swimming pool premises.
I/We shall be entirely responsible for obtaining any licence or permission, police arrangement etc. from the authorities concerned if any, when required for our purpose.
I/We undertake not to allow any of our member or any other outsider to run a canteen for the use of members within the swimming pool premises.
I/We herewith enclose Rs.__ as fees for reservation of the pool, Rs.__ for running the filteration plant and Rs.__ for sweeping/cleaning swimming pool premises.
Endorsement by the member of the pool Signature Sd/-_____ Signature Sd/- Pass No. ___ 1038______ Name & Address ______ (Not applicable to School or College) (Rubber stamp of School or College) Ganesh S. Kamtekar AQUATIC SWIMMING CLUB Life Guardss Signature __ Sd/-___ Off: G/1, Gulmohar Wadi Veer Savarkar Marg, Dadar, Mumbai-400028. Phone: 4213645, 4443845 XXX XXX XXX"
15. The very first paragraph of this undertaking by the Aquatic Swimming Club to the Municipal Corporation is that the Club shall be entirely responsible for the loss of life or any accident.
16. Learned counsel for the appellant submits that once the entire liability and responsibility has been taken over by the Club, the appellant cannot be saddled with any liability to compensate in the case of any such accident.
17. The aforesaid argument of the learned counsel for the appellant has to be rejected, inasmuch as the responsibility of any risk during training inside the swimming pool was that of the appellant as the appellant was liable for any incident or accident which occurred under his guidance. It is not the case of the appellant that the Club had not made adequate arrangements for the safeguard of the swimmer trainees or they had defaulted in any other way. The Club is however vicariously liable as per the undertaking above. Even otherwise, the accident occurred during training hours and neither before or after when the pool was empty or during non-working hours so as to fix the entire liability on the Club. It is not disputed that the child had gone for the swimming camp and was admitted by the appellant. It was the duty and obligation of the appellant as well as the Club to undertake all safety measures to secure the life of the children undergoing swimming training in the pool/tank. Knowing that the pool itself was deep enough, and the children were there to learn swimming, adequate care to ensure that none of the swimmers drown was the responsibility of the Club as well as of the appellant coach. The appellant as well as the Club were both having knowledge of any such contingency when they gave the undertakings as referred to hereinabove. In such circumstances, the joint and several liability as found by the State Commission does not appear to be suffering from any infirmity.
18. The appeal therefore lacks merit and is accordingly rejected.
.........................J A. P. SAHI PRESIDENT