National Consumer Disputes Redressal
Mayi Gowda vs State Of Karnataka And Ors. on 20 December, 2002
ORDER
Rajyalakshmi Rao, Member This is the first appeal filed by Dr. M. Mayi Gowda, the appellant aggrieved by the order dated 27th November, 1995, of the State Commission of Karnataka in Complaint No. 302/92 whereby the complaint was dismissed with no costs. The respondents are; 1) State of Karnataka, 2) Principal conservator of forest management, 3) Conservator of Forests, and 4) The Commissioner, Corporation of City of Mysore.
The appellant claimed Rs. 9.99 lakhs for deficiency of services in the complaint and the same was dismissed by the State Commission.
Brief facts of the case are:
1. The appellant a native of Bannur, T. Narasipur Taluk, Mysore district and is a Doctor by profession and ran a clinic in Bannur, along with his family members comprising two daughters, a son and two nephews, visited Dassera festival celebration which are being organised by the respondents on 7th October 1992. He purchased tickets for an elephant ride which was available in the exhibition around 8.00 pm. Mahout was there on the elephant and they boarded on the elephant into a cradle that was fixed on it. It is his case that, no sooner he climbed, the elephant moved about 5 to 10 steps, the cradle which was loosely tied deflected to the left side of the elephant, thus causing imbalance for the persons sitting on the elephant. Children fell down but had a narrow escape from being trampled by the elephant. But the Appellant was seized by the elephant while he was lying bent in the cradle and it pulled him and threw him to a distance.
2. It is an admitted fact that the appellant fell on the electric pole with a great impact resulting in breakage of his ribs and he sustained grievous injuries to his body including head. It is not disputed by the parties that he had his treatment in K.R. Hospital and J.S.S. Hospital in Mysore and also in Manipal Hospital at Bangalore. He contended that even though he took treatment in these reputed hospitals, this accident caused irreparable damage to his eyes and he lost eyesight in both the eyes.
3. The appellants being a medical practitioner and the sole earning member of the family is now unable to carry on practice due to loss of eye sight and also due to permanent disability. Since he purchased the ticket and hired the services of the elephant ride which is managed and supervised by the respondents, the appellant submitted that he is a consumer and claimed that the accident was the result of gross negligence and deficiency in service and claimed the following reliefs from all the Respondents jointly and severally.
4. The respondents described that the female elephant called "Saraswathi" is a domestic and docile animal and it has been participating in Dassera exhibition for such rides for several years. It has the experience of 13 years in participating in various festivals, film shootings, various religious functions and honouring the V.I.P's. Denying completely any negligence, the respondents submitted that the elephant had suddenly become panicky while the children and the appellant were in the process of getting down from the cradle.
Disputing the claim, the respondents, argued that the appellant cannot be classified as a consumer. It is also submitted that the appellant was given compensation of Rs. 10,000/- by the Forest Department and further a sum of Rs. 50,000/- from the Chief Minister's Relief Fund was also given to him. On the basis of above averments, respondents sought dismissal of the appeal.
5. In the State Commission, evidence was lead by the following people, the appellant, and his brother, Medical Officer, Manipal Hospital official in Mysore City Corporation, Forest Guard, Forest Officer, Veterinary Doctor, Mahout and another, a Forest Guard, which are placed on the record. State Commission dismissed the Complaint and returned the finding that the accident took place due to the un-usual behaviour of the elephant. It further observed that the elephant became panicky in the rush hours of exhibition and that Mahout and forest guards could not control the situation in spite of being present. It was also held by the State Commission that the appellant did not establish negligence on the part of the respondents and the loss or injury suffered was also not proved.
6. After carefully perusing the record with detailed evidence which was led by both the parties in the State Commission, and after hearing the arguments, we have come to the conclusion that there is a negligence on the part of respondents. It is admitted by both the parties that the Forest Officers collected certain for the ride and after such payment the appellant was taken for a joy ride on the elephant. It is not disputed that the appellant fell down from the elephant and sustained injuries. It is also proved on evidence and in fact is not disputed that the petitioner underwent treatment for the injuries sustained at more than one hospital and dispute that lost the eye sight of both the eyes. From the facts and circumstances given, the findings of the State Commission that loss or injury is not established, cannot be sustained.
The fact of negligence is evident from the Respondent's own statements that some miscreants at the rear of the elephant were (a) piercing the elephant and also (b) pricking the elephant with lighted cigarettes. This glaring evidence and admission by the respondents cannot be ignored. In the statement of objection filed by the respondents. They state "the said elephant stood near the dismounting platform for the visitors to dismount from the elephant. At that time, a few visitors had got down and at that juncture, the elephant suddenly became panicky and started moving forward with lot of excitement on account of some persons who were standing behind the elephant pricking the said elephant with sharp stick or by burning cigarette which resulted the elephant becoming panicky and excited and dashed the Complainant against the electric pole which carried a hologen lamp which was burnt and further caused the shock and anxiety to the animal and during that process the children of the Complainant/Appellant had jumped from the elephant and sustained injuries. But the complainants children were escaped". The Complainant, however, got caught in the titled HOWDA and was pulled by the elephant and thrown away. The Complainant hit the electric pole and sustained injuries.
7. The question that arises in one's mind is as to what are the safety measures that are taken by the respondents to pre-empt or avoid such accidents specially when they have full knowledge that large crowds gather during Dassera Festival in the exhibition. To allow the crowds to come close to the elephant and not wart them off to keep distance from the elephant is definitely negligence by any standard. To safeguard the people who take these ride and to see that the route that is taken for such ride is safe and as fool proof as possible is their responsibility. In the entire discussions. records and arguments presented to us, we have not once heard the respondents plead their case explaining their taking all the precautions of a drill or a ride code that makes it a safe ride. Such elephant rides should not be conducted in a light hearted manner where crowds can come close to the elephant and prick them with cigarette butts, etc. It is easy to say that it was beyond their control and that masses take over in the situations. The point is they are not taken by surprise about the masses who come every year for the Dessarah Festival. They were fully aware of the scenario prior to the date of this event. We feel that this accident would have not taken place but for the mis-management of the authorities who organised and took the elephant ride casually, knowing fully well that the elephants can turn wild and can cause unlimited damage to people and properties. It is an admitted fact that even the Mahout also feel down and sustained injuries. The very fact that the elephant joy ride was stopped since this incident as per the evidence recorded by Mr. N. Madadevaiah, the Forest Guard, shows that the respondents realised the dangers involved in doing such rides specially in crowded areas where they are unable to control.
8. Even if we take the Petitioner's stand that the knot of the hooda became loose and titled towards the left-hand side of the elephant and that a hook of such a titled hooda pierced his left thigh and in hat position, the elephant got hold of his neck with his trunk and threw him away, negligence on the part of the keepers of the elephant is quite evident. The statement of the Mahout and the guard that they asked the Petitioner not to jump and still he jumped cannot absolve them of negligence. A person is bound to panic in case of hooda becomes loose and tilts badly.
9. It was submitted before us with reference to law as prevailing in England that elephant would be in the category of dangerous animals and negligence to be presumed. It is not necessary for us to consider this question as the fact remains that elephants in our country have been domesticated and are used in religious processions, marriages and earlier used even in the battles which were fought. Even today we see elephants on the road being guided even by teenager as a mahout.
However, in the present case what we find is that according to version of the opposite parties themselves there was a mahout and two forest guards accompanying the elephants when the complainant and his children were having the joy ride and at the end of the joy ride when the elephant was standing at the platform for the children and complainant to dismount, some miscreants at the back of the elephant pricked with sharp sticks or burning cigarettes which made perhaps the elephant to go out of the control of the mahout for a shortwhile. Children of the complainant fell down and fortunately they escaped injury. Complainant could not be that fortunate and ultimately lost his eye sight as well. It was submitted by opposite parties that the cause of the elephant going berserk suddenly due to paniky situation leading to excitement because some of the miscreants of the public pricking the animal which was not noticed by any of the officials including the mahout and the kothwal who were standing in front of the animal with their usual equipment to control the elephant. To the extent there was negligence on the part of the Forest Department inasmuch as the forest guard did not prevent the miscreants from pricking the elephant with sharp sticks or burning cigarettes. The other act of negligence is that the cradle was loosely tied otherwise it would not have tilted creating a panicky situation when the elephant moved a few yards as is contended before us. Admittedly elephant is used by the Forest Department and the mahout and the forest guards are employees of the Forest Department.
It is contended by the Forest Department that complainant should not have jumped when he was asked not to do so and perhaps argument on this is based that there was contributory negligence. This is not acceptance. When based that there was contributory negligence. This is not acceptable. When the cradle had tilted and children of the complainant fell down, it was natural for him also to jump out.
There is no case against 4th respondent, the Commissioner Corporation of the City of Mysore. Complaint against him has to be dismissed.
10. It is Respondent's responsibility to ensure to control the animal and is liable for its actions. Being in the knowledge of such crowds coming every year, Forest Officials and Exhibition Authorities should have taken ample care to see the said ride is conducted away from the proximity of crowd or should have maintained safe distance from the elephant during the ride which has not been done. The guards did not ward off the crowd because it has come in the evidence that miscreants were pricking the elephant with lighted cigarette butts and piercing with sticks. The very fact that they have stopped these joy rides in the exhibition itself shows that realisation by the authorities that they cannot control the crowds behaviour. The Petitioner is an adult, a married and responsible father who brought his family for an enjoyable evening at the exhibition. The Petitioner is also a medical Doctor who is not unaware of the social and precautionary conduct as to how to avail such services of the jolly ride. Even if we take the Petitioner's stand that the knot of the hooda became loose and tilted towards the left hand side of the elephant and that the hook of such a tilted hooda pierced his left thigh and in that position, the elephant got hold of his neck with his trunk and threw him away, negligence on the part of the keepers of the elephant is quite evident. The statement of the mahout and the guard that they asked the Petitioner not to jump and still he jumped cannot absolve them of negligence. A person is bound to panic in case the hooda become loose and tilts badly. Another point is that the mahout himself got injured in the process which shows that the elephant did panic and he could not control the situation himself.
11. This is a situation where everyone tried to do their best but yet the event did occur and caused damage to the Petitioner and made him blind for lifetime. It is very unfortunate that the damage is permanent and the glaring fact is clear that the Petitioner has to undergo life long damage of permanent disability which is apparent and not disputed in the light of the above discussions, we find the Respondents who were rendering service for considering are liable to pay for rendering deficient service and for not taking precautionary measured and being negligent in their conduct. As for the reliefs the Complainant's income has not been assessed by Income Tax and the comes in his way of establishing how much his income was at that time. His statement that it was in the range of Rs. 10,000 to Rs. 12,000 per months is not proved. He received Rs. 60,000/- from the State. Although he claimed Rs. 9,99,000/- from the Respondents, which included Rs. 1 lac spent on treatment his wife had requested the State Government to give Rs. 2,00,000 as compensation. Since the amount of Rs. 2 lacs was claimed by himself, we feel it would be appropriate to pay the petitioner Rs. 2,00,000/- with 12% interest from the date of the complaint till date of payment by the respondent.
ORDER We allow the appeal and set aside the order of the State Commission. The Respondents are directed to pay Rs. 2,00,000/- lakhs and also pay 12% interest on this event from the date of the complaint till the date of payment. Respondents may also pay Rs. 10,000/- as costs to the petitioner.