National Consumer Disputes Redressal
Shailendra Kumar Singh & Ors. vs Banaras Hindu University, Varanasi & ... on 30 March, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 188 OF 2011 1. SHAILENDRA KUMAR SINGH & ORS. S/o. Late Shri. Keshav Prasad Singh R/o. VPO Karhan Tehsil Mohammdabad Gohna Mau (U.P) 2. Smt. Usha Singh W/o. Shri Shailendra Kumar Singh, R/o. VPO Karhan Tehsil Mohammdabad Gohna Mau U.P 3. Ms. Shikha Singh D/o. Shri Shailendra Kumar Singh R/o. VPO Karhan Tehsil Mohammdabad Gohna, Mau U.p ...........Complainant(s) Versus 1. BANARAS HINDU UNIVERSITY, VARANASI & ORS. Though Its Vice-Chancellor, Varanasi Uttar Pradesh 2. Vice - Chancellor f Banaras Hindu University, Varanasi 3. University Sports Board Through Its President, Banaras Hindu University Varanasi ...........Opp.Party(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,MEMBER
For the Complainant : Mr. Shailendra Kumar Singh, In-person For the Opp.Party : Dr. Sumant Bhardwaj, Sr. Advocate with
Mrs. Revathy Raghavan, Advocate
Dated : 30 Mar 2022 ORDER
1. The present Complaint is filed under Section 21(a) (1) of the Consumer Protection Act, 1986.
2. Along with the Complaint, IA No. 13359 of 2019 was also filed for Condonation of delay in filing response to the Questionnaire by the Opposite Parties and an IA No. 17542 of 2019 was filed for Condonation in delay in filing interrogatories by the Complainant. As per the averments made by the Parties, the applications are allowed.
3. The case of the Complainants is that for the purpose of amusement and recreation of students, Opposite Party/University had constructed a swimming pool within its premises. Deceased, Dr. Shitesh Kumar Singh, Late son of Complainants No.1 and 2 and brother of Complainant No.3 who was pursuing Post Graduation in Medical Science paid an amount of Rs.300/- as fee for use of the abovementioned swimming pool where he was enrolled as a beginner in swimming. The Services provided by the Opposite Parties, inter alia, included supervision by Life Guards of users of the Swimming Pool. On the fateful evening of 26.05.2010, the deceased drowned in the swimming pool maintained by the Opposite Parties, where he remained submerged in the water for quite some time unnoticed by the Life Guards. After being rescued, he was admitted in the Intensive Care Unit (ICU) in Sir Sundarlal Hospital located in the premises of Banaras Hindu University in a critical condition, where he expired on 30.05.2010. Alleging deficiency in service on the part of the Opposite Parties, the Complainants filed the instant Complaint with this Commission with the following prayer:
"a) direct the Respondents to give a compensation amount of Rs.5,88,00,000/- for the financial loss and Rs.1,00,00,000/- for the mental trauma they have suffered. A total sum of Rs.6,88,00,000/- should be paid to the Complainants within the period fixed by this Hon'ble Commission with an interest of 18% till the execution of order/decree;
b) pass any other order and further relief(s) which this Hon'ble Commission deems fit and proper in the facts and circumstances of the case."
4. The Opposite Parties resisted the Complaint by filing a Written Statement on the ground that the Complainants were not 'Consumers'. It was stated that the Opposite Parties were not Service Providers as they had only made arrangements for the swimming for students and family members. Amount of Rs.300/- was charged from the members for maintenance of swimming pool hygiene and for safety of the members. It was stated that the deceased had submitted an application form for membership of the swimming pool before the University Sports Board, alongwith Rs.300/- as registration charges. In the application form there were two columns, one for the beginners and the other for the established swimmers. The deceased was only a beginner in swimming and was assigned the time slot of 5:00 PM to 5:30 pm. On the first visit of the deceased to the swimming pool on 20.05.2010, he was directed by the staff to confine his movement in the area specifically earmarked for the beginners where the depth of the pool was between 1.10 meter to 1.25 meter and he was not required to cross the demarcation that separates the two categories of Swimmers i.e. beginners and the established swimmers. The Opposite Parties submitted that notices were also displayed at prominent places inside the swimming pool premises mentioning that the beginners were not to go in deep waters. It was also stated that as soon as the deceased took a plunge in deep water earmarked for established swimmers, Life Guards on duty rushed to recuse him and successfully brought him out alive. He was immediately taken to S.S. Hospital of the University and best possible medical care was provided to save his life, but unfortunately he succumbed to death after four days on 30.05.2010. It was further submitted that a higher degree of knowledge is to be attributed to the deceased, since he was an MBBS Doctor, pursuing Post Graduation in Medical Sciences. The deceased could not be said to be oblivious of the consequence of going in deep waters as a beginner. The Opposite Parties denied that they were negligent and the death of the deceased was due to his own negligence. The deceased had given in writing as follows:-
"I will abide by the rules and regulations that are in force to govern the use of swimming pool and will not hold any body responsible in any circumstances for any untoward incidence"
Also, the deceased had not taken any permission of the Life Guards as per the rules for jumping in the deep zone, nor did he inform the Life Guards present there. The Life Guards were prompt in taking him out of water and provide first aid. The Opposite Parties also stated that the deceased had violated the Rules of the Swimming Pool, therefore, the Complainants are not entitled to claim any compensation from the Opposite Parties and the Complaint is liable to be dismissed.
5. The Complainants filed Rejoinder to the Written Statement stating that there was no expert person deputed for training facility or watch movements of the beginners. There was no instruction or signboard depicting clear picture in case of any fault of swimmer/beginner. It was stated that at the time of the incident, there was no Life Guard available to save the life of the deceased. It was due to the negligence of the Life Guard that the deceased drowned in the swimming pool and died.
6. Heard Complainant No.1 in person on behalf of the Complainants and the Learned Counsel for Opposite Parties and carefully perused the record. Complainant No.1 submitted that the service provided by the Opposite Parties is a non-educational service as it is available for amusement and recreation of the students of the University, within its premises which is run and managed by the Opposite Parties. The swimming pool does not give any coaching to the student and has no relation or concern with core education. The deceased had paid Rs.300/- as membership fees to the Opposite Parties to avail swimming pool service. The Complainants relied on the judgment of Hon'ble Supreme Court in Kishor Lal v. Chairman, Employee, State Insurance Corporation, Civil Appeal No. 4965/2000 decided on 08.05.2007.
7. On merits, it was submitted by the Complainants that the Life Guards were either not present in the swimming pool area or they were not vigilant. The Postmortem report revealed the cause of death as Asphyxia, resulted due to drowning. In the inquiry report dated 07.06.2010, it was mentioned that "when the Dr. Shitesh Kumar Singh did not come upon surface then his friend informed to the lifeguard." The deceased was a brilliant and diligent student having all the qualities of being a reputed Doctor and the compensation should be decided considering his prospects and qualifications.
8. Learned Counsel for the Opposite Parties submitted that the sports facility of an Educational Institution is not a service under Section 2 (o) of the Consumer Protection Act, 1986 and the student who uses sports facility of an Educational Institution is not "Consumer" under Section 2 (1) (d) of the Act. The Complainants are, therefore, not 'Consumers' and Opposite Parties are not service providers qua the Complainants. The Opposite Parties placed reliance on the judgement of the Larger Bench of this Commission in Consumer Case No.261 of 2012 "In Re. Manu Solanki and Ors. vs. Vinayaka Mission University and Ors".
9. On merits, Learned Counsel for the Opposite Parties submitted that for ensuring the safety of swimming pool users, the University engaged four Life Guards. The users of the swimming pool had also given self-declaration/undertaking to the effect that they will be solely responsible for the mishap, if any. The Opposite Party did not receive any consideration against the swimming pool charges. The Opposite Parties received Rs.300/- as maintenance charges. It was further stated that as a safety measure there was an iron/steel mesh net partition to prohibit/prevent the beginners from reaching to the deep portion of the swimming pool. There were also clear instructions and signboards mentioning danger zones. On the date of incident the Life Guards, Deputy Director and the In charge of the swimming pool were present and attentive in their duties. The allegation that there was no Lifeguard to watch the swimming of the users was denied. The deceased survived for about four days after the incident, which proved that he was taken out of water within no time. The Lifeguard on duty, Mr. Lalit Kumar Yadav and Mr. Chandra Nath Mitra, gave the first aid, including CPR (Cardio Pulmonary Resuscitation), immediately to the deceased and immediately took him to the University Hospital, accompanied by a Doctor who was a faculty member of the Institute of Medical Sciences. The deceased was admitted in emergency and shifted to ICU where he was provided all medical care free of cost. Learned Counsel submitted that as per OPD slip dated 26.05.2010, it was a case of head injury in the swimming pool followed by drowning. The Doctors of the Opposite Party Hospital tried their best to save the life of their fellow Doctor but he succumbed to the head injury. Opposite Parties, thus, prayed for dismissal of the Complaint.
9. The admitted facts of the case are that Dr. Shitesh Kumar Singh, student of Master of Surgery in Banaras Hindu University took membership of the swimming pool of the Opposite Party/University by paying Rs.300/- as registration charges. On 26.05.2010, while swimming he drowned in the swimming pool and was taken to the S.S. Hospital of the Opposite Party, where he was kept in the ICU and died on 30.05.2010.
10. On the question of maintainability, we would like to refer to the judgement in Manu Solanki and Ors. v Vinayaka Mission University (supra), wherein the Larger Bench of this Commission addressed the issue whether an Educational Institution is a 'Service Provider' for the purpose of Consumer Protection Act, 1986, which reads as follows: -
"37. .. If a school has a swimming pool and students of that institution drown on account of some deficiency or negligent of the authorities, would swimming in the school campus fall within the ambit of Core Education? Does maintaining a swimming pool and teaching swimming be considered as a part of core education?
.......
51. In view of the foregoing discussion, we are of the considered opinion that the Institutions rendering Education including Vocation courses and activities undertaken during the process of pre-admission as well as post admission and also imparting excursion tours, picnic, extra co-curricular activities, swimming, sport, etc. except Coaching Institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986."
11. Reading of the above makes it clear that the Institutions rendering Education including vocation courses and activities undertaken during the process of pre-admission as well as post admission and also imparting excursion tours, picnic, extra co-curricular activities, swimming, sport, etc. except Coaching Institutions, will not be covered under the provisions of the Consumer Protection Act, 1986. The judgment relied upon by the Learned Counsel for the Complainant in Kishor Lal (supra) is not applicable because in that case the issue before the Court was whether ESI Dispensary, which was a Government Dispensary was a "Service provider" and the Complainant was a "Consumer" qua ESI Dispensary. In the instant case, the issue is whether a swimming in Educational Institutions fall within the ambit of Core Education.
12. For the foregoing discussion and the judgment of the Larger Bench of this Commission, we are of the view that the present Complaint is not covered under the provision of Consumer Protection Act, 1986 and is accordingly dismissed. The Complainants, however, are at liberty to avail the appropriate remedy available to them in accordance with law.
...................... C. VISWANATH PRESIDING MEMBER ......................J RAM SURAT RAM MAURYA MEMBER