National Consumer Disputes Redressal
Mamta Ajmani & Ors. vs New Delhi Young Men Christian Assn. on 16 April, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 249 OF 2009 (Against the order dated 19.12.2008 in Complaint Case No. C-119/2000 of the State Commission, Delhi) 1. Smt. Mamta Ajmani ........ Appellants w/o Late V.K. Ajmani 2. Vaibhav Ajmani son of Late V.K. Ajmani 3. Smt. Padma Ajmani wife of Late Rajinder Ajmani ( all residents of 113, Bank Enclave, New Delhi) 4. Mrs. Madhur Sethi w/o Sh. Gaurav Sethi and d/o Late V.K. Ajmani r/o 26/16, East Patel Nagar, New Delhi Vs. 1. New Delhi Young Mens Christian Association ......... Respondents Jai Singh Road, New Delhi 2. Shri Satyakam s/o Shri Ranjit Singh C-52, Shakti Nagar Extension Delhi-110052 BEFORE: HON'BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR. ANUPAM DASGUPTA, MEMBER For the Appellants : Sh. S.K. Chachra and Ms.Gaganpreet Chawla, Advocates For Respondent No.1 : Sh. Anil K. Batra, Advocate and Mr.Rajinder Singh For Respondent No.2 : Sh. S.P. Singh, Advocate with respondent In person Dated the 16 th day of April 2010 ORDER
PER JUSTICE R.C. JAIN, PRESIDING MEMBER The present appeal is directed against the order dated 19.12.2008 passed by the Delhi State Consumer Disputes Redressal Commission ( in short, the State Commission) in complaint case no. C-119/2000.
The complaint was filed by the appellants herein seeking a total compensation of Rs.19,00,000/- under different heads from the opposite parties / respondents alleging negligence and deficiency in service on their part as a result of which their predecessor-in-interest Mr.V.K.Ajmani had died.
2. Vide the impugned order the State Commission had allowed the complaint and awarded a lumpsum compensation of Rs.1,00,000/- besides cost of Rs.10,000/- to the complainants. Dissatisfied with the same, complainants have filed the present appeal seeking upgradation of relief by enhancement of the awarded compensation.
3. The facts and circumstances leading to the filing of the complaint and the passing of the impugned order briefly noted are that Late V.K.Ajmani aged about 43 years, a legal professional engaged in practice on tax side, was using the swimming pool of Young Mens Christian Association, ( in short, YMCA) situated at Jai Singh Road, New Delhi by paying a monthly fee of Rs.500/-. On the fateful duly of May 9, 1998 between 4.00 and 4.30 p.m. V.K. Ajmani drowned and died while swimming in the said swimming pool. The life guard detailed on duty at the swimming pool rescued / brought out Ajmani from the swimming pool and thereafter tried to revive him by giving artificial respiration but without success. Ajmani was rushed to nearby RML hospital where on examination, the doctors declared him brought dead.
Wife, children and parents of late Ajmani filed the complaint against YMCA and life guard claiming compensation of Rs.19 lakh under various heads, alleging gross negligence, want of proper care and deficiency in service on the part of the opposite parties. The complaint was resisted by the opposite party. The facts about Ajmani having availed of the pool facilities during the relevant period and he having drowned and died during the course of swimming at the swimming pool of opposite party no.1 on the aforesaid date and time were not denied. YMCA, however, came up with the defence that it provided the facilities of swimming to the members on no profit no loss basis at monthly charge of Rs.500/- which was not even sufficient to maintain the swimming pool. It was denied that there was any lack of care or deficiency in maintaining the swimming pool. It was explained that besides Satyakam-OP No.2, another life guard by the name of Piyush Jain had been engaged by the YMCA. In regard to the circumstances in which Ajmani had been drowned, it was stated that he had submerged in the water after his forehead had hit against one of the walls of the swimming pool. Realising that the deceased had submerged in water, both the above named guards took him out of the swimming pool and tried their best to revive the deceased but failed to do so and the deceased was rushed to RML hospital in a taxi where he was declared dead. It was further pleaded that swimming pool was being maintained after obtaining a license issued by the concerned authorities under the provisions of Union Territory of Delhi Swimming Pool ( Licensing & Controlling) Regulation, 1980.
On the strength of the report of post mortem examination on the body of the deceased, it was pleaded that the death of deceased was caused due to cerebral damage consequent upon the blunt force impact to the head rather than by drowning. Opposite party no.2 also denied any negligence or lack of care or not being vigilant and maintained that within couple of minutes noticing that the deceased had not come on the surface of the pool, he jumped into the pool and took out the deceased and tried to revive him.
4. The State Commission, going by the respective pleas and the evidence and material brought on record, more particularly going by the cause of death as reported in the post mortem examination on the body of the deceased, came to the conclusion that it was not a case where the deceased had drowned because of some circumstance or deficiency in service in the pool. The Commission observed that he might have hit his head against the wall and in the process submerged into the water and could not come out. The State Commission, however, taking the view that whenever swimming pool employs guards it is incumbent upon the employees or guards to watch out when a person dives into the water on his own, to see for how long he can remain in the water, and to make sure that the person comes out within a reasonable period of time and is seen around, held that there was limited negligence in the present case which resulted in the death of the deceased.
It, however, further observed that it was not a case where the life guard was not present or did not act on hearing the cries of drowning person which though was a most unfortunate incident for which the State Commission awarded a lumpsum compensation of Rs.1,00,000/- besides Rs.10,000/- as cost of litigation. Uncontended with the extent of relief granted by the State Commission, the complainants have filed the present appeal. Some slight delay in filing the appeal was condoned by the Commission.
It is not disputed that opposite parties have accepted the order passed by the State Commission and has paid the awarded amount to the complainants which they have accepted without prejudice to their rights in the present appeal.
5. We have heard Mr.S.K.Chachra and Ms. Gaganpreet Chawla, Advocates, learned counsel for the appellants and Mr.Anil K Batra, Advocate, learned counsel representing the respondent No.1 and Mr. S.P. Singh, Advocate, learned counsel representing the respondent no.2 have given our thoughtful consideration to their respective submissions.
6. Mr.Chachra though supported the finding of the State Commission holding the opposite parties negligent / deficient in service as recorded by the State Commission but assailed the same on the ground that State Commission has erred in holding them guilty of limited negligence / deficiency and based on the said finding, awarding a meagre sum of Rs.1,00,000/- as compensation which according to the learned counsel is not at all commensurate with the loss and injury caused to the complainants due to untimely death of Mr. Ajmani. In this connection it was submitted that death of Ajmani was caused due to gross negligence, want of proper care and deficiency in service on the part of the respondents inasmuch as respondent no.2 was supposed to be vigilant and careful and should have been present at the swimming pool itself in order to take care of any untoward incident which may occur at the swimming pool. It is pointed out that respondent no.2 was not present at or around the swimming pool at the relevant time when Ajmani drowned and he reached the pool only on hearing the shouts of the fellow swimmers and only thereafter he tired to rescue the deceased and by the time he could rescue him, the deceased had already died. Per contra, learned counsel for the respondents contended that the life guard was present at the pool and lost no time in rescuing the deceased and, therefore, strictly speaking the respondents cannot be held liable for any act of negligence but as a goodwill gesture and having regard to the unfortunate incident, the respondents did not consider it desirable to challenge the said finding.
7. On consideration of the respective pleas of the parties and having regard to the entirety of the facts and circumstances that swimming pool was being run by respondent no.1 under license issued by the concerned authorities and no deficiency in service in regard to the proper maintenance of the swimming pool as such was alleged or established and the very fact that Late Ajmani was not a learner, the respondents cannot be held guilty of any deficiency in service or gross negligence. There is ample material on record to show that deceased had died due to head injury sustained by him due to blunt force rather than by drowning. Since it has not been established in what manner the deceased had sustained the said injury on his head, having regard to the attenuating circumstances, it can only be presumed that deceased must have struck his head against the wall of the pool for which act neither respondent no.1 nor respondent no.2 can be held liable. As rightly held by the State Commission, there was limited negligence on the part of opposite party no.2 in not being watchful and vigilant by spotting the deceased immediately when he submerged in the water after receiving the said injury. This would clearly show that life guard was not present at or around the swimming pool at the relevant time or if present he was not vigilant and careful enough to watch the deceased submerging into the water and having not come up to the surface for a few minutes. Had the life guard been vigilant and had he exercised requisite care, he would have immediately noticed that deceased had not come out on the surface for unusual long time and would have acted promptly to rescue him and unfortunate incident perhaps could have been averted and precious life could have been saved.
8. Having held so, the final question which needs to be answered is what should be the reasonable compensation which should be awarded to the complainants who are the legal heirs of the deceased. Mr. Chachra contended that the deceased was 43 years of age, an advocate by profession practicing on Income Tax and Sale Tax side for about 17 years when he met with an unfortunate death and he was contributing a sum of Rs.25000/- per month towards maintenance and upkeep of his family. Going by his age at the time of his death, the compensation should be decided based on multiple factor between 15 to 18. In support of his contention, he has placed reliance upon a decision of this Commission in the case of Tagore Hospital & Anr.
Vs Harnam Singh & Anr. 1 (2008) CPJ 360 ( NC) wherein a multiplier of 15 was adopted and compensation of Rs.10,50,000/- was awarded having regard to the age of the patient i.e., 25 years at the time of her death due to medical negligence and her average earning being Rs.4500/- per month.
In that case the Commission itself had based its decision on the observations of the Supreme Court The proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency, of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Reliance was also placed on another decision of this Commission in a case of Municipal Corporation of Hyderabad Vs Abdul Azeez IV ( 2007) CPJ 15 ( NC), in which a boy died in a swimming pool of Municipal Corporation of Hyderabad. In the said case, this Commission upheld the award of Rs.5,00,000/- as compensation awarded by the State Commission.
9. Per contra learned counsel for the respondent contended that multiplier system has no application to the present case more particularly having regard to the limited negligence for which the respondent can be said to be guilty.
10. After giving our thoughtful consideration to the respective submissions, we are of the opinion that it being not a case of gross negligence or deficiency in service on the part of the respondents, it will not be appropriate to apply multiplier system in order to assess the damages in the present case. However, the appellants are certainly entitled to a reasonable compensation both towards pecuniary and non pecuniary damages suffered by them due to untimely death of Mr. Ajmani. Some material in the shape of Income Tax Returns has been filed to show that total annual income of the deceased was around Rs.60,000/- during the period 1996-97. With this income the dependency of the appellants on the deceased could not be more than Rs.40,000/- per annum. In our view, having regard to all the relevant facts and circumstances, a lumpsum compensation of Rs.5,00,000/- both towards pecuniary and non pecuniary damages should adequately meet the ends of justice.
11. In the result, the appeal is partly allowed and impugned order shall stand modified to the extent that appellants shall be entitled to a total compensation of Rs.5,00,000/- ( Rupees five lakh only) from the respondents besides cost of Rs.25,000/- in the proceedings before the State Commission and this Commission.
Liability to pay the said amount shall be joint and several on the respondents. Since the amount of Rs.
1,10,000/- has already been received by the appellants, we direct the respondents to pay the balance amount of Rs.4,15,000/- ( Rupees four lakh fifteen thousand only) to the appellants within a period of four weeks from receipt of the order failing which the amount shall carry interest @ 12% p.a. Sd/-J (R.C. JAIN) ( PRESIDING MEMBER) Sd/-
(ANUPAM DASGUPTA) MEMBER Am/