National Consumer Disputes Redressal
Madan Lal Arora vs Dharampalji & Ors., Mahashya Chuni Lal ... on 15 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 269 OF 1999 Madan Lal Arora S/o Ishwar Dass Arora R/o 26/1, Ashok Nagar New Delhi Complainant Versus 1. Sh. Dharam Pal Ji Chairman Mahashya Chuni Lal Saraswati Bal Mandir Senior Secondary School L-Block, Hari Nagar, New Delhi 110 064 Also at : Mahashya De Hatti (M.D.H.) 9/44, Kirti Nagar, New Delhi 110 015 2. Sh. Govind Ram Aggarwal Prinicpal 3. Sh. Sohan Singh Head Teacher 4. Sh. Pawan Paliwal Clerk 5. Sh. Rajpal Singh P.E.T. 6. Sh. Ramesh Chand P.E.T All C/o Mahashya Chuni Lal Saraswati Bal Mandir Senior Secondary School L-Block, Hari Nagar, New Delhi 7. Mahashya Chuni Lal Saraswati Bal Mandir Senior Secondary School L-Block, Hari Nagar, New Delhi 110 064 Opp.parties BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For the Complainants : Mr. Peeyoosh Kalra & Mr. Omar Siddiqui, Advocates For the Opp.party Nos. 1,2,3 & 6 : Represented by OP 4 & 5 For the Opp.party Nos. 4 & 5 : Both, In person For the Opp.party No.7 : Mr.Shambhu Nath Singh, Advocate Pronounced on 15.04.2013 ORDER
JUSTICE J.M.MALIK
1. This is an unfortunate case where Nitin Arora, a student of Class IX got drowned in presence of his school teachers, in Saryu river.
2. The facts germane to the present case filed on 04.10.1999 are these. Nitin Arora was a student of Class IX and was studying in Mayasya Chuni Lal Saraswati Bal Mandir Senior Secondary School, L-Block, Hari Nagar, New Delhi, OP No.7.
OP7 is running a School under the control of Sh.Dharampalji, Chairman, OP1. Sh.Govind Ram Aggarwal, Principal, OP2, Sh.Sohan Singh, Head Teacher, OP3, Sh.Pawan Paliwal, Clerk, OP4, Sh. Rajpal Singh, and Sh.Ramesh Chand, PETs, OP5 & OP6, are all employees of said school, OP7. The OPs had arranged Desh Bhraman Tour and have also charged Rs.1,800/- per child and a tourist bus was booked which started for tour on 02.10.1997.
Nitin Arora also joined the tour.
The tour programme did not mention that students will take bath in Saryu river.
3. This complaint was filed by Sh.Madan Lal Arora, father of deceased Nitin Arora.
Sh.Madan Lal Arora received the message that his son got drowned in Saryu river, on 04.10.1997. The message was delivered at about 11/11.30 AM, at Delhi. Madan Lal Arora immediately left for Ayodhya in Tata Sumo on the same day at about 1.00PM. The school authorities had provided the said vehicle. Madan Lal Arora arrived at Saryu river on 05.10.1997 at about 8.30AM. It transpired that his son had got drowned. It is alleged that OPs 3, 4 & 6 were taking tea in the canteen and OP 5 was sitting near the clothes of the children. The son of the complainant was sent to take bath in Saryu river without accompanying teachers. It appeared that Nitin Aroras foot might have slipped because of high current of the river water and he, as were all other children, started shouting for help, but the teachers did not come to their rescue.
4. Sh. Madan Lal Arora employed swimmers/divers and two boatmen and one steamer for finding out the body of his son and had to spend Rs.35,000/-. He made the said search for complete seven days, but the body could not be traced out. The complainant came back to Delhi on 11.10.1997. On 12.10.1997, at about 9.30AM, the complainant received a phone call informing him that the child had been traced out and that he is completely well. Consequently, the complainant and Nitin Aroras maternal uncle left for Lucknow and from Lucknow to Ayodhya, they hired a Maruti Van. At Ayodhya, they found that there were two Katras. The complainant could not find his son despite the matter was tomtomed by drum-beating. The matter was published in newspaper along with photograph of Master Nitin Arora. The complainant and the maternal uncle of Master Nitin Arora stayed there for 5-6 days and again employed divers, boatmen and steamers and spent about Rs.25,000/- and reached Delhi on 18.10.1997. In the month of April, 1999, the complainant went to Ayodhya but could not find any whereabouts of his child, Nitin Arora and came back to Delhi after spending Rs.5,000/-. It is alleged that the complainants son got drowned due to negligence and deficiency on the part of the OPs. No frantic efforts were made to save the child. No safety precautions were taken. The OPs allowed the children to take bath in Saryu river.
They did not try to contact any swimmers, divers or boatmen, immediately. The mother and grand-mother of the child have not recovered from shock of the death of Master Nitin Arora. The complainant could not look after his business for about three months from 04.10.1997 to 31.12.1997 and suffered loss to the tune of Rs.30-35 thousands.
5. Legal notice was sent to the OPs but it did not ring the bell. Ultimately, this complaint was filed wherein the complainant has demanded a sum of Rs.25.00 lakh from OPs 1 to 7, for the loss suffered by the complainant, both mentally, physically and financially. He has also prayed for interest @ 12% p.a. from 04.10.1997, till the date of payment, with costs of the proceedings. It must be mentioned here that OPs 1 to 6 were the OPs initially. OP7 was impleaded as a party, subsequently vide order dated 08.08.2012.
6. Defence :
OPs 1 to 6 set up the following defences. First of all, they have called into the question, the jurisdiction of this Commission. Secondly, it is stated that complainant is not a consumer. It is explained that by imparting education to the children, the school is not doing any business and not running the school on commercial basis, rather they are serving the nation by imparting the education to the children. Most of the students get the education without paying the fees. The tour was not on commercial basis. It is an academic tour and the school was not supposed to earn any profit. The expenses were charged for the welfare of the children. The school had organized an educational tour for the upliftment of the children and it was the option for the guardian of the students to send or not to send, to join or not to join the tour. Those students who joined the tour, their guardian had to sign the undertaking and the complainant himself had signed the undertaking to this effect. Such like tours have been organized for the last 20 years. The teachers have been taking full attention and care to the students and prior to this incident, no such like incident took place. The complainant has been doing all possible mischief and trying to black-mail the OPs for extracting huge amount. Although the complainant had lodged FIR, yet, no action was taken against the OPs. It is explained that this incident took place due to negligent act of the deceased because he did not obey the directions of the teachers. The school management had deputed four teachers to look after the children who had been accompanying them.
Saryu river bath was very much in the list of tour programme. The complainant is not a witness to the incident. OP 2, the Principal, did not accompany the other teachers. The complainant could not explain the source of his information. The deceased did not obey the instructions of the teachers and went ahead from the directions given by the teachers. OPs immediately tried to save him and took all the necessary steps. The story put forward by the complainant is false. The OPs are not liable to pay any compensation to the complainant.
7. According to OP7, all necessary due care and safety precautions were taken by the OPs to save the life of the deceased. OPs took the children on tour with a purpose of giving exposure to them and to make their tour programme knowledgable and successful. All kinds of first aid equipment were also given to them in their journey. The teachers were specifically instructed by the Management to follow the discipline of tour programme and during the entire tour programme, they were instructed to keep the students in discipline and all necessary arrangements and precautions were taken to avoid any such untoward incident. Nitin Arora was an adolescent boy of 14 years old. He was expected to be having a sufficient amount of maturity to travel or take bath, etc., under the supervision of the teachers, who were accompanying him in the said tour. Consequently, the degree of care and safety precautions were taken during the said tour, but while going into the water, the deceased Nitin Arora did not follow certain safety precautions given by the teachers who were admittedly present on the bank of the said Saryu river on 04.10.1997 and despite the aforesaid due care, Nitin Arora slipped into the current of water and unfortunately drowned. The tour programme includes Ayodhya Darshan, which includes taking a holy dip in the Saryu river as well which was allowed by the Teachers, in their wisdom after verifying the depth of the water and current of water on the bank of Saryu river. The teachers were also having ascended with the students in water to avoid any kind of nasty conduct on the part of the students but Nitin Arora, after ascending in water, did not follow the instructions of his teachers. OP7 is an unaided private educational institution which is imparting quality education to the children of poor strata and the same is being managed and established by a Society with the contribution of funds. The school is not indulged in any kind of profiteering and as such the funds of the school were being utilized just for the cause of education. All other allegations have been denied.
8. Submissions and Findings:
We have heard the counsel for the parties and gone through their written synopses. The learned counsel for the OP has invited our attention towards the undertaking given by the deceased as well as his father. The undertaking runs as follows:-
UNDERTAKING I agree to abide by the Rules of the above tour. Trekking/competition and shall observe discipline as directed by the authorities of M.C.L Saraswati Bal Mandir School, Tour Trekking/ completion Incharge all times. In case of any unforeseen accident or injury, I or my parents of Guardian will not hold the institute or any member of its staff wholly or partially responsible for it.
Sd Sd/-
Father/Guardian Signature of Applicant He contended that under these circumstances, all the OPs are not liable for the above said incident. He also argued that there is no evidence, worth the name, which may go to show that the teachers were sipping tea. He argued that teachers were also taking bath in the Saryu river along with the children. He explained that all the children were allowed to go into the water. The teachers discharged their duty with due diligence. They were not aware of any unforeseen incident. Moreover, Tata Sumo was provided by the School. All kinds of arrangements were made. The teachers had encircled the children. He, however, submitted that only two teachers knew swimming. Counsel for OPs further submitted that the school is very sorry about the incident but it had no intention. The teachers took all the due care. The boys were of adolescent age and divers were engaged to find out the body of Nitin Arora.
9. It was also argued that the complainant is not a consumer.
This case entails lot of evidence and the complainant should be directed to approach the civil court. The teachers were taken to the tour and there was no consideration and no profiteering in taking the children to the tour. This was a cultural tour. The father of the deceased is a factory owner, a well to do person and does not deserve such a huge amount.
10. Learned counsel for the OPs lastly submitted that there is no evidence. The allegations of the complainant that teachers were sipping tea is based on hear-say evidence which carries no value in the eyes of law. There is no eye-witness. The defence of service on the part of the school does not stand proved.
11. In addition, the OPs 2 to 6 raised the following arguments. The complainant being the father of the deceased child cannot claim himself to be a consumer, under the provisions of Consumer Protection Act, 1986. The complainant has not hired the services of Chairman and the teachers of the school. The complainant is bound by the undertaking given by him. The incident took place on 04.10.1997 and the present complaint was filed on 04.10.1999 beyond two years and, therefore, it is barred by time.
This Commission has no jurisdiction to try this case. FIR was lodged but no case was made out against the OPs. The tour itinerary was only a broad outline of the places to be visited by the children and no minute details of the tour programme can be given. The allegations leveled in the complaint are contradictory to the notice dated 07.09.1998. The complainant is trying to encash the unfortunate death of his child and wrongly stated that he had spent Rs.35,000/-. According to the OPs, OPs 2 to 6 are the employees in the school, therefore, complaint against them is not maintainable. The deceased student did not follow the instructions and, therefore, this incident took place. The complainant spent only Rs.600/- for publication of missing report in Jan Morcha newspaper. In other newspaper, news was carried out but it did not mean that the complainant had paid money. The complainants submission that he had spent huge amount for his stay in Ayodhya, is false as the entire expenses were borne by the school management. The school constituted an inquiry committee. The maternal uncle of the deceased child also participated and he was satisfied that there was no fault on the part of the teachers and left the school premises, in good faith.
12. Again, there is improvement in the evidence. In the notices, no bifurcation of the amounts spent was given. It is difficult to fathom as to how six persons, compensation, in the sum of Rs.25,00,000/- each, vide six separate notices were sent to first six OPs. However this amount appears to be incorrect because no specific demand was made from each of the OPs.
13. The learned counsel for the complainant has cited the following authorities :-
1) Santu Ram & Anr. Vs. State & Ors., W.P. (C ) 768/2009, decided on 07.02.2012.
2) Association of Victims of Uphar Tragedy & Ors. Vs. Union of India & Ors.and Common Cause Vs. Govt. of NCT of Delhi & Ors., 2003 [2] JCC 715.
3) Samira Kohli Vs. Dr. Prabha Manchanda & Anr., 2008 (1) SCALE 442.
14. All these arguments have left no impression upon us. We have perused the tour itinerary which is placed on record. There is no progaramme for Saryu river bath.
When it was known to the OPs that the students did not know how to swim, why did they allow them to take a dip in the Saryu river. This is the main negligence on the part of the teachers.
Only two teachers knew how to swim.
The plea set up by the OPs that all the teachers had encircled the children is not true. The children were asked not to go deep into the water. Yet the deceased went into the deep-waters and was drowned. The parents should have been informed that the students will be allowed to take a dip in the Saryu river. Had the parents knew about it, they would not have allowed the children to enter into the Saryu river. It is also noteworthy that without seeking the help from divers, boatmen and swimmers, the children were allowed entry into the Saryu river. No precaution was taken. Had the teachers remained present in the river or on the banks of the river, the question of Nitin Aroras drowning would not have arisen. It clearly means that the students were put in the river without any aid. The story that teachers were sipping tea near the river, assumes importance. Moreover, the versions given by OPs 1 to 6 on 19.04.2005 and the version given by OP 7 on 28.01.2013 are different, contradictory and some improvement has been made in the version of OP7. None of the teachers stated that they were present when Nitin Arora was taking bath in the Saryu river. The OPs should not have allowed all the students to take bath together, at one time.
15. The facts of this case smack of negligence on the part of the teachers. This view finds force from the following authorities. As far as the principle of strict liability is concerned, reference may be made to a leading case of MCD Vs. Suhagwanti, AIR 1966 SC 1750, wherein the Supreme Court applied the strict liability principle in awarding compensation to the victim. The court applied the maxim Res Ipsa Loquitor as the mere fact that the clock tower fell, told its own story in raising the inference of negligence so as to establish a prima facie case against the Corporation.
16. In Pushpabhai Purshottam Udeshi & Ors.
Vs. M/s. Ranjit Ginning & Pressing Co. (P) Ltd. & Anr., (1977) 2 SCC 745, the Supreme Court explained the doctrine of Res Ipsa Loquitor in the following words:-
6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitor.
The general purport of the words res ipsa loquitor is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Ed.) at p.306 states : the maxim res ipsa loquitor applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused. In Halsburys Laws of England, 3rd Ed., Vol.28, page 77, the petition is stated thus: an exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendants negligence, or where the event charged has negligence tells its own story of negligence on the part of the defendant, the story so told being clear and unambiguous. Where the maxim is applied, the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part .
17. In Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1, Page 1388, Para 27, wherein the Honble Apex court has held, as under:-
Res Ipsa Loquitor, is a rule of evidence which in reality belongs to the Law of Tort. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant.
Further, it has held that :
Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three : duty, breach and resulting damage.
18. In V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513, at page 532, Para 50, it was held by the Honble Apex court that :
In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the Respondent to prove that he has taken care and done his duty to repel the charge of negligence.
19. It is well said that Law is the backbone which keeps man erect. It is unfortunate that in their written statement dated 08.02.2000, OPs 1 to 6 did not explain the minute details of the accident. They laid emphasis on the peripheral issues like jurisdiction, question of consumer, giving free vehicle to the father of the deceased, etc. They have kept the details of the incident under their hats. They did not state whether the children were sent together or in groups. How many teachers were in the river, at the time of the incident, is not mentioned. When all these facts are admitted, including the accident, the OPs are to carry the ball in proving that the accident did not occur due to their mistake because of their negligence. They alleged that the story put forward by the complainant is concocted, but unfortunately, they have no story to put forward. The teachers should have taken care of the children and the consent given by the father or the deceased pales into insignificance. The children should not have been left in the river without any expert and that too, without providing any life-saving jackets, pad, tubes, etc., to the children, to be used at the time of swimming. Nobody, will throw the children in the river without taking such like precautions. Either the teachers were ignorant and negligent or they had never taken the students out like this.
20. Now, we turn to the aspect of compensation. The deceased was a young child of 14 years. He was to live the whole life. He was to serve his parents. He lost his life due to negligence and dereliction of duty on the part of the OPs. This act has caused mental agony, anger, anguish, frustration, sadness, etc., to the family of the deceased child. Under these circumstances, we direct that OP Nos. 1 and 7 will pay a sum of Rs.10,00,000/- with interest at rate of 9% p.a., with effect from the date of incident, i.e. 04.10.1997, till its realization. OPs Nos. 2 to 6 will pay Rs.1,00,000/- each, along with interest @ 9% p.a. from the date of incident, i.e., 04.10.1997, till realization. The principal of the school is also liable because he should have given instructions to the above said OPs, either not to allow the children to enter into the water or to take precautions at the time of taking bath, in the Saryu river, by the children.
21. OPs1 to 7 will also pay litigation charges to the extent of Rs.2,00,000/-, within 45 days, otherwise it will carry interest @ 9% p.a., till its realization. The complaint stands disposed of.
....J (J.M. MALIK) PRESIDING MEMBER ...
(DR.S.M. KANTIKAR) MEMBER Dd/ 20