State Consumer Disputes Redressal Commission
Tmt. Thenmozhi Head Master Asst. ... vs V. Arthanari S/O. Veerappa Asari 3/48, ... on 18 July, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) Tmt. VASUGI RAMANAN MEMBER II F.A.NO.262/2009 (Against order in CC.NO.1/2006 on the file of the DCDRF, Namakkal) DATED THIS THE 18th DAY OF JULY 2011 Tmt. Thenmozhi Head Master Asst. Elementary Education Officer Erumapatti Appellant/ 1st opposite party Vs. 1.
V. Arthanari S/o. Veerappa Asari 3/48, Mettu Street, Perumapatti Bomasumuthuram Post Namakkal District- 637 001
2. Tamil Nadu Beneficiary Association Rep. by its Secretary K. Subrayan No.40-B1, Senthamangalam Salai Namakkal Respondents/ 1st & 2nd Complainant
3. The Asst. elementary Education Office Assistant Elementary Education Office Erumapatti, Namakkal District- 637 013
4. The District Elementary Education Officer District Elementary Education Office Trichy Road, Namakkal
5. The Elementary Education Director Elementary School Education Office Nungambakam, College Road Chennai 600 006 Respondents/ 2 to 4 Opposite parties The 1st and 2nd Respondents as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.4 lakhs as compensation alongwith Rs.5000/- for deficiency in service and cost of Rs.1000/-. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.29.7.2009 in CC.No.01/2006.
This petition coming before us for hearing finally on 18.7.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ 1st Opposite party: M/s. M.B. Gopalan Counsel for the 1 & 2 Respondent/Complainant : M/s. S. Devika & T. Mohan Counsel for the 3 to 5 Respondents/ 2 to 4 Opposite parties: M/s. K.K. Senthilkumar JUSTICE M. THANIKACHALAM, PRESIDENT
1. The 1st opposite party is the appellant.
2. The 1st respondent/ 1st complainants son (hereinafter called complainant), by name Gautham Raj, was studying in the 5th standard, in the 1st opposite party school, which was controlled and maintained by the opposite parties 2 to 4. On 6.1.2004, when the complainants son was requested to take a coir, to bundle the old papers, he took the same from the card board box, and at that time a scorpio bite him, resulting giddiness and other complications.
The 1st opposite party, had not taken the boy immediately to the doctor, and also not informed to the other opposite parties, whereas waiting for bus, took the boy to the hospital, after 4 hours, thereby committed deficiency and negligent act. If the 1st opposite party had engaged atleast a two wheeler or anyother vehicle, the life of the boy would have been saved, which the 1st opposite party failed, as headmistress. Because of the delay, despite treatment, the boy died on 7.1.2004, for which the opposite parties should be held responsible, which caused mental agony, and other loss to the complainant, thereby entitling her to claim a sum of Rs.4.5 lakhs, as compensation, as well as punitive damage of Rs.5000/-, in addition to cost of Rs.1000/-.
3. The opposite parties, admitting that the complainants son was studying in the school, opposed the case, contending that the headmistress has not asked any work to be performed by the boy, whereas while he was playing, he was bitten by scorpio, for which taking diligent steps, taking the boy to the doctor, treatment was given, and despite he died, for that the opposite parties cannot be held responsible, thereby praying for the dismissal of the case.
4. The District Forum, assuming jurisdiction, vesting power in itself, which are not available under the Consumer Protection Act, recorded a finding that all the opposite parties have failed to act in a diligent manner, and especially opposite parties 2 to 4, failed to conduct an enquiry in this regard, but the 1st opposite party alone is responsible, for the incident. In this way, even without giving a finding, whether the complainant will come within the meaning of consumer, whether the opposite party will come within the meaning of service provider, whether the complaint is maintainable before the consumer forum, or not, directed the 1st opposite party alone to pay a sum of Rs.2 lakhs as compensation, to the complainant, with cost of Rs.1500/- as per the order dt.29.7.2009, which is impugned by the 1st opposite party.
5. The learned counsel for the appellant would contend that the incident was accidental and unfortunate, for which the headmistress, cannot be held responsible, that when there was no transport facilities, provided to the school, the 1st opposite party availed the public transport, which cannot be faulted and that the complaint itself is not maintainable, since there is no relationship of consumer, and service provider, which are all not at all considered by the District Forum, resulting erroneous view, passing an illegal order, liable to be set aside, opposed by the otherside- 1st respondent/ complainant.
6. In order to maintain a case before the consumer forum, one should be a consumer, as defined under the Act, and the opposite party should be a service provider or if it is a case of goods seller. Both the things are not available in this case, but not taken into consideration. The 1st opposite party/ appellant, was working as headmistress in aided elementary school. There is no contract between the complainant or her son, with the 1st opposite party, for providing any service, except imparting education, as per the rules and regulations, which will not come within the meaning of service, as defined under the Consumer Protection Act, or the service rendered by the 1st opposite party viz. teaching the students, will not come under the definition of availing or hiring the service. Similarly, assuming that the headmistress has requested the boy to attend some work, in which this incident had taken place, that also will not come within the meaning of deficiency in service, or negligent act, as the case may be.
Therefore, when there is no element of consumer activities or service, as available under the Consumer Protection Act, to invoke jurisdiction, we are of the considered opinion, that the order of the District Forum is without jurisdiction, on the basis of the assumption, which should be uprooted.
7. Admittedly, the complainants son was bitten by scorpion on 6.1.2004, while he was in the school. The school is situated at Erumapatty, which was away from 7 kms. or so from Namakkal. No transport facilities was provided to the schools, known fact. In the elementary school, we cannot expect generally, anyone coming in a two wheeler viz. motor cycle, or in car Therefore, we cannot expect a poor teacher, that the patient should be taken speedily, either in the two wheeler or in the car, as the case may be, as incorrectly, unwontedly accused by the District Forum, commenting the conduct of the headmistress. If anything had happened, when there is no other way, she should depend upon the public transport system, and if there was any delay, that cannot be brought in under the umbrella of deficiency of service. It is a most unfortunate incident, that a young boy of the complainant, died unexpectedly, for that we cannot make another unfortunate incident, slapping a punishment against the headmistress, as if she committed negligent at, or deficiency, directing her to pay a sum of Rs.2 lakhs, as compensation.
Thus, viewing the case from all possible angles, we are of the considered opinion, the complaint itself is not maintainable, and since the 1st opposite party has not committed any deficiency, as known to the Consumer Protection Act, and the complainant is not a consumer, as understood by the Consumer Protection Act, the case itself is not maintainable, and in this view, the appeal is meritorious, liable to be allowed.
8. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.1/2006 dt.29.7.2009, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt made by way of mandatory deposit, to the appellant, duly discharged.
VASUGI RAMANAN A.K.ANNAMALAI M.THANIKACHALAM MEMBERII JUDICIALMEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Government