State Consumer Disputes Redressal Commission
Suresh Kumar vs Dal Chand Sharma on 5 July, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 470 of 2016 Date of Institution: 25.05.2016 Date of Decision : 05.07.2017 1. Suresh Kumar s/o Sh. Ram Kumar C/o Indian Aquatic Academy, Escorts Swimming Pool, Sector-12, Faridabad. 2. The Indian Aquatic Academy, Escorts Swimming Pool, Sector-12, Faridabad, through its proprietor/owner. Appellants-Opposite Parties No.1 and 2 Versus 1. Dal Chand Sharma s/o Sh. Har Chand Sharma 2. Smt. Satwati w/o Sh. Dal Chand Sharma Both Residents of Street No.23, House No.5549, Sanjay Colony, Sector-23, Faridabad. Respondents-Complainants 3. The IFFCO TOKIO General Insurance Company Limited, Regd. Office: 34, Nehru Place, New Delhi-110019 (insurer of Escorts Swimming Pools, Sector-12, Faridabad). Respondent-Opposite Party No.3 CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member.
Present: Shri Vikash Kumar, Advocate for appellants. Shri Abhilaksh Grover Advocate for respondents No.1 and 2. Shri Rajneesh Malhotra, Advocate for respondent No.3. O R D E R BALBIR SINGH, JUDICIAL MEMBER
This appeal has been preferred by Opposite Parties No.1 and 2 against the order dated February 15th, 2016 passed by District Consumer Disputes Redressal Forum, Faridabad (for short 'the District Forum') whereby complaint filed by complainants was allowed and the opposite parties No.1 and 2/appellants were directed to pay, jointly and severally, an amount of Rs.5,00,000/- as compensation along with interest at the rate of 9% per annum from the date of filing complaint till its realization and Rs.2200/- as litigation expenses to the complainants equally.
2. As per version of the complainants, there exists Escorts Swimming Pool in Sports Complex, Sector-12, Faridabad, which is being managed by The Indian Aquatic Academy-Opposite Party No.1. Suresh Kumar-Opposite Party No.2 used to manage the affairs of the Escorts Swimming Pool.
3. Rakesh Kumar Sharma son of the complainants, aged about 23 years, graduate in engineering, Resident of Sector-25, Ballabgarh, was provided membership of Escorts Swimming Pool Sports Complex, who was having a seasonal pass No.166, having swimming right in the swimming pool from 7:00 P.M. up to 8:00 P.M. during summer season of the year 2009. Rakesh Kumar Sharma used to pay usual charges to use the swimming pool.
4. On May 9th, 2009, Rakesh Kumar Sharma, visited the Escorts Swimming Pool and started swimming practice. Rakesh Kumar Sharma died due to drowning while swimming in the swimming pool. The body of Rakesh Kumar Sharma was seen floating over the water in the swimming pool. This incident took place purely due to careless and negligence on the part of the opposite parties No.1 and 2 because during swimming hours, there was no instructor, savior or diver available to save the life of Rakesh Kumar Sharma. The swimming pool was got insured by the opposite party No.1 with "The IFFCO TOKIO General Insurance Company Limited" (for short 'the Insurance Company)-Opposite Party No.3. The insurance company-opposite party No.3 is also liable to compensate the complainants regarding loss of life of complainants' young son due to drowning in the swimming pool. Post mortem examination on the body of Rakesh Kumar Sharma was conducted wherein cause of death is mentioned of asphyxia. A criminal case under Section 304-A of the Indian Penal Code was registered on May 14th, 2006 at Police Station, Faridabad under F.I.R. No.237 against the opposite party No.1 and others. At the time of his death, Rakesh Kumar Sharma, was earning a sum of Rs.15,000/- per month and his income was likely to increase up to Rs.50,000/- within a period of 2-3 years. All it happened due to acts of negligence on the part of the opposite parties No.1 and 2. It is prayed that the complainants are entitled to receive an amount of Rs.17,99,900/- as compensation with interest at the rate of 12% per annum from the date of accident.
5. The opposite parties No.1 and 2, have taken plea, in their joint written version, that the complaint is bad for misjoinder of un-necessary parties and that the complaint is not maintainable in the present form.
6. On merits, the opposite parties No.1 and 2 have taken plea that in fact Rakesh Kumar Sharma (deceased) was instructed not to jump into the water without help of any one because he did not know how to swim. The deceased jumped into the water without caring these instructions on the asking of his friend and resultantly he drowned into the deep water. It is not a case of negligence on the part of the opposite parties No.1 and 2. The opposite parties No.1 and 2 maintained all mandatory conditions at the swimming pool. It is denied that there was no trained savior, instructor or diver at the time of swimming hours in the swimming pool. The entries in the attendance register show presence of number of guards, instructors and attendants in the swimming pool. In fact, the deceased Rakesh Kumar Sharma died due to his own negligence. Moreover, the opposite parties No.1 and 2 have also obtained an insurance policy vide insurance cover note No.41306035 regarding the period from May 28th, 2008 to May 27th, 2009. The opposite parties informed the Insurance Company regarding this incident by mentioning this fact in their written version and the Insurance Company received information as and when notice of the complaint was received. The opposite parties are not liable to pay any amount as compensation claimed in the complaint. It is prayed that the complaint be dismissed.
7. The opposite party No.3 - Insurance Company, filed its separate written version with the plea that the complainants are not covered under the definition of "consumer" and it is not a case of deficiency in service as defined in the Consumer Protection Act, 1986. The Insurance Company is not liable to pay any amount as compensation as there is no privity of contract in between the opposite party No.3 and the complainants or the deceased. It is also pleaded that the insurance policy or any other document concerning the insurance policy, have been placed on the file by the complainants. It is admitted that the public liability insurance policy No.41009173 was provided by the opposite party No.3 - Insurance Company in the name of M/s India Aquatic Academy, Escort Swimming Pool, Sector-12, Faridabad regarding the period May 28th, 2008 to May 27th, 2009. The Insurance Company do not form any liability in case the insured commits any breach or violation of the terms and conditions of the insurance policy. Moreover, no intimation was given to the Insurance Company regarding this incident and as such the Insurance Company is not liable to pay any amount to the complainants. It is prayed that the complaint filed by the complainants be dismissed.
8. The parties led evidence in support of their respective claims.
9. After hearing arguments, vide order dated February 15th, 2016, complaint filed by the complainants was allowed by the District Forum. Relief granted to the complainants is mentioned in detail in paragraph No.1 of this order.
10. Aggrieved with the impugned order dated February 15th, 2016, the opposite parties No.1 and 2 have filed the present appeal with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainants.
11. We have heard learned counsel for the parties and gone through the material available on the record.
12. It is admitted fact that the deceased-Rakesh Kumar Sharma, engineering graduate, aged about 23 years was provided a seasonal pass No.166 having swimming right in Escorts Swimming Pool in Sports Complex, Sector-12, Faridabad from 7:00 P.M. up to 08:00 P.M. during the year 2009-2010. Escorts Swimming Pool in Sports Complex, Sector-12, Faridabad is being managed by the Indian Aquatic Academy-Opposite Party No.1 through Suresh Kumar-Opposite Party No.2. It is also admitted fact that on May 9th, 2009, Rakesh Kumar Sharma visited Escorts Swimming Pool and started swimming practice during swimming hours. While doing swimming practice, Rakesh Kumar Sharma was drown and his body was found floating over the water in the swimming pool. Thereafter, efforts were made to save his life by his brother as well as other attendants and employees of the opposite parties but Rakesh Kumar Sharma breathed his last on his way to hospital.
13. There is no controversy of any type in this regard also that cause of death of the deceased was asphyxia (drowning) in the water. It is evident from the post mortem report also. Information was given to the Police of Police Station, Central Faridabad and a criminal case was registered on May 14th, 2005 under F.I.R. No.237 against the opposite party No.1 and others, under Section 304-A of the Indian Penal Code. In that case, evidence was adduced on behalf of the prosecution as well as on behalf of accused. The criminal case registered against Suresh son of Shri Ram, under Section 304-A of the Indian Penal Code under F.I.R. No.237 dated 14th May, 2009 was decided by the learned Judicial Magistrate Ist Class, Faridabad, vide judgment dated February 18th, 2015 and Suresh son of Shri Ram was acquitted of the charges levelled against him by giving the benefit of doubts.
14. During the course of arguments, learned counsel for the opposite parties argued that the complaint should be dismissed as in the proceedings of the criminal case, findings could not be given against Suresh-Opposite Party No.2 that Rakesh Kumar Sharma died due to certain acts of negligence on the part of the opposite parties.
15. We are not much impressed with this contention of the learned counsel for the opposite parties. Copy of the judgment passed in criminal case was not adduced in evidence in this case before the District Forum. In fact, the copy of the judgment was placed on the appeal file during pendency of the appeal. Any how, we want to make it clear that findings in this case cannot be based upon the findings given in the judgment dated 18th February, 2015 passed by the learned Judicial Magistrate Ist Class. In the case in hand, this Commission is required to give findings regarding civil liability of the opposite parties regarding certain acts of negligence on the part of the opposite parties which caused death of Rakesh Kumar Sharma. Judgment dated 18th February, 2015 was passed in a criminal case and we cannot over look this fact that accused Suresh was acquitted of the charges levelled against him giving him benefit of doubts and findings of courts in criminal cases are not binding in civil matters. Same yardsticks cannot be used at the time of appreciation of evidence and giving findings, in a criminal case and in a civil case concerned with same controversy. In civil cases, findings are to be given regarding civil liabilities in connection with an offence committed by the accused. In a criminal case, accused can be acquitted giving benefit of doubts but in civil matters, findings are to be given on probability of evidence produced by both the parties. In the judgment dated 18th February, 2015, findings have not been given that Suresh accused is totally innocent and was not involved in this offence. Suresh has been acquitted only giving him the benefit of doubt. Moreover, proposition of law cannot be disputed that findings in a civil case cannot be based upon the findings given in a criminal case. We want to make it clear that findings in this case shall be given on the basis of evidence adduced by both the parties, without giving much weight to the judgment dated 18th February, 2015 passed in a criminal case.
16. As per version of the complainants, monthly income of the deceased Rakesh Kumar Sharma was Rs.15,000/- at the time of his death which is evident from the appointment letter dated 03rd January, 2008 placed on the file wherein gross salary per month is mentioned as Rs.12,887 plus medi-claim+GPA+Gratuity and Leave Encashment etc. The deceased was bachelor in Engineering and certainly it was beginning of his career and his income was likely to increase in near future. Considering income of the deceased and all other surrounding circumstances, learned District Forum assessed compensation amount to be awarded to the complainants on account of death of Rakesh Kumar Sharma as Rs.5,00,000/-. Keeping in mind the pleadings, evidence adduced by both the parties, annual income of the deceased and all other surrounding circumstances, assessment of compensation amount appears to be reasonable and justified.
17. As per version of the complainants, Rakesh Kumar Sharma visited Escorts Swimming Pool during swimming hours on 9th May, 2009 along with his brother Ajay Sharma. Ajay Sharma was not allowed to enter swimming pool being handicapped. Rakesh Kumar Sharma died due to drowning in the swimming pool and all it happened due to negligence on the part of the opposite parties. As per version of the complainants there was no instructor, savior, diver or coach at that time. Rakesh Kumar Sharma went to the swimming pool along with his close friend Gaurav. On seeing Rakesh Kumar Sharma drowning in the swimming pool, Gaurav made hue and cry and thereafter Ajay Sharma also appeared there. Later on some attendants, who were not properly trained, appeared there and they tried to save the life of Rakesh Kumar Sharma. Despite their efforts, vomiting could not be possible. During the course of arguments, learned counsel for the complainants argued that there was no trained instructor, savior, diver or coach available during swimming hours. Few staff members appeared but after the incident.
18. The permission of the swimming pool was granted to the opposite parties by the State Government and in this regard an agreement was reduced into writing on 24.03.2008. Under Clause 7 of the agreement, it is mentioned that the opposite parties shall be responsible if any unfortunate incident takes place with any member of the swimming pool as well as employees of the Indian Aquatic Academy. The opposite party - Indian Aquatic Academy, shall be responsible for proper security arrangements also.
19. Version of the opposite parties in this case is that there were proper security arrangements in the swimming pool. Security guards, instructors and saviors etc. were appointed who were present in the swimming pool as is evident from the presence marked in the attendance register maintained in the academy. Copies of the entries in the attendance register, Annexure A-3 and Annexure A-4 are placed on the file. In our opinion, attendance register is not enough to prove that swimming coach, helper and guard etc., as mentioned in Annexure A-4 were present at the time of incident. Entries in the attendance register may be sufficient to prove that these employees of academy came in the academy on that day to perform their respective duties. The opposite parties could not adduce any convincing evidence to prove presence of any coach, security guard, helper, savior or instructor at the time of occurrence.
20. On behalf of the opposite parties No.1 and 2, a duly attested affidavit of Suresh Kumar-Opposite Party No.2, has been placed on the file which has not been properly tendered in evidence. As per statement of Suresh Kumar in his affidavit, Rakesh Kumar Sharma did not know how to swim and instructions were given to him not to jump into the water without help of any other. Suresh Kumar, in his affidavit, has not mentioned the name of any staff member present at that time who asked Rakesh Kumar Sharma not to enter the swimming pool. In his affidavit, Suresh Kumar, has also not mentioned the name of any particular coach, savior, diver, instructor and helper who was present during swimming hours in the swimming pool on that day when Rakesh Kumar Sharma entered the swimming pool.
21. On the other side, the complainants in support of their version placed on the file a duly attested copy of affidavit of Dal Chand Sharma-complainant. Statement of Dal Chand, in his affidavit, corroborates version of the complainants in their complaint mentioning that no instructor, savior, security guard etc. was available in the swimming pool when Rakesh Kumar Sharma entered the swimming pool. As per contents of First Information Report (FIR); plea taken in the complaint and contents of the affidavit, version of the complainants is that nobody was available in the swimming pool at the time of incident except Gaurav, a close friend of Rakesh Kumar Sharma. When Rakesh Kumar Sharma, was drowned, three staff members appeared there but they were not trained and capable to save the life of Rakesh Kumar Sharma. Statement of Smt. Sadhna Trehan, Vice President, M/s IFFCO TOKIO-Insurance Company, in her affidavit dated 30th July, 2013 is not of much help to solve this controversy.
22. In our opinion, the opposite parties No.1 and 2 cannot be allowed to save their skin merely saying that Rakesh Kumar Sharma was instructed not to enter the swimming pool as he did not know how to swim. We feel that if a person obtained swimming pool pass by making the required payment, certainly it can be presumed that the person wants to learn how to swim. If a person is stopped from entering the swimming pool, certainly he will not be able to learn the art of swimming. As per discussions above, we feel no hesitation in holding that the incident took place due to negligence on the part of the opposite parties. It was the duty of the opposite parties to make proper arrangements during swimming hours. If a person, who does not know how to swim, is allowed to enter the swimming pool to practice swimming, there should be proper arrangements of coach, instructor, savior and other equipments of life saving like swimming jacket etc. The opposite parties No.1 and 2 cannot be allowed to escape from their liability. There is sufficient evidence on the file to give findings that the drowning incident took place due to negligence on the part of the opposite parties as they could not make proper arrangements on that day during swimming hours when Rakesh Kumar Sharma entered the swimming pool.
23. It will be pertinent to mention here that the insurance policy bearing No.41009173 was provided by opposite party No.3 - The Iffco Tokio General Insurance Company Limited to the opposite party No.1 - The Indian Aquatic Academy, Escorts Swimming Pool for the period May 28th, 2008 to May 27th, 2009. Copy of the insurance policy is Annexure-A. Aggregate limit during the policy period provided to Escorts Swimming Pool was Rs.35,00,000/-. One of the terms and conditions of the insurance policy was that the opposite parties No.1 and 2 were required to ensure presence of life guards on duty. The opposite parties No.1 and 2 were directed to ensure proper repair and maintenance of the swimming pool and presence of properly trained persons.
24. As per version of the complainants as well as opposite parties No.1 and 2, in case the complaint of the complainants is allowed, the insurance company- opposite party No.3 also should be burdened to pay compensation amount. It is admitted fact that the insurance policy was provided by the opposite party No.3 to the opposite party No.1 regarding the relevant period. It stands proved from the attendance register (Annexure A-3 and A-4) that coach, instructor and helper etc. were not present in the academy on that day, as per the terms and conditions of the insurance policy. What happened, although coach and instructor etc were available in the academy but they were not available in the swimming pool during swimming hours when Rakesh Kumar Sharma entered the swimming pool. In fact, the view of the opposite parties No.1 and 2 was that neither the incident took place due to negligence on the part of the opposite parties No.1 and 2 nor the opposite parties No.1 and 2 as well as the opposite party No.3 - Insurance Company, are liable to pay compensation. Due to this reason, the opposite parties No.1 and 2 did not think it proper to give information regarding this incident to the opposite party No.3. The complainants earlier could not give information to the Insurance Company regarding this incident because the transaction of providing the insurance policy was in between the opposite parties No.1, 2 and opposite party No.3 and earlier the complainants had no knowledge that the insurance policy was provided by the opposite party No.3. In these circumstances, findings can be safely given that on this ground alone, findings cannot be given that the Insurance Company is not liable to pay the compensation amount. Therefore, it is held that the insurance company is also liable jointly and severally to make payment of the compensation amount to be awarded to the complainants.
25. During the course of arguments, learned counsel for the opposite party No.3 argued that no intimation was given to the insurance company and no insurance claim was submitted to the insurance company by the complainants. Version of the opposite parties No.1 and 2 as well as complainants is that the insurance company received information regarding this incident after receiving notice of the complaint. Required information to be given to the insurance company has also been mentioned in the written version filed by the opposite parties No.1 and 2. In this case, in fact, the complainants had no knowledge that the insurance policy had been provided by the opposite party No.3. In fact, it was an agreement in between the opposite party No.1 and the insurance company. Certainly, there was no privity of contract in between the complainants and the opposite party No.3. Any how, if findings are given that the opposite parties No.1 and 2, are liable to pay compensation, the insurance company also should be held liable to make payment of the compensation amount awarded because the insurance policy obtained by the opposite party No.1 with expectation of such type of incident in the swimming pool. It appears that the opposite parties No.1 and 2 also did not submit the claim form with the insurance company before filing of the complaint in the District Forum because the version of the opposite parties No.1 and 2 by this time is also that the opposite parties No.1 and 2 are not liable to pay any amount as compensation and incident did not take place due to negligence on the part of the opposite parties.
26. As a result, as per discussions above in detail, findings are given that the insurance company is also liable to make payment of the compensation amount. Resultantly, we find no illegality and invalidity in the findings of the learned District Forum regarding liability of the opposite parties No.1 and 2 to make payment of the total compensation amount awarded by the District Forum. The findings of the learned District Forum are modified to the extent that the opposite parties No.1 to 3 shall be jointly and severally liable to make payment of the compensation amount awarded in this complaint. With this slight modification in the impugned order, the appeal stands dismissed.
27. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
Announced:
05.07.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL