State Consumer Disputes Redressal Commission
Sri Tandra Krishna vs 1.M/S. Ocean Swimming Pool, on 5 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. A/189/2015 (Arisen out of Order Dated 31/08/2015 in Case No. Complaint Case No. CC/280/2014 of District Rangareddi) 1. Sri Tandra Krishna S/o Durgaiah,aged about 65 years, Occ. Pensioner, R/o H. No 5-9-856, Gunfoundry, Hyderabad 500001 ...........Appellant(s) Versus 1. 1.M/s. Ocean Swimming Pool, Rep by its proprietor Smt Gajula Vijaya W/o Swayam Prakash, R/o H. No 16-2-836/D/8/1, Saidabad Colony, Hyderabad 500059 2. 2. Karnati Venkata Krishna Reddy S/o K. Nagi Reddy aged about 50 years, Occ. Organiser of Ocean Swimming Pool Karmanghat, R/o Plot No 39, Tapovan Colony, Hyderabad 500079, Native of g. Veerapuram Village, Kothapalli Mandal, Kurnool 5 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 05 Feb 2018 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD F.A.No. 189 OF 2015 AGAINST C.C.NO.280 OF 2013 DISTRICT CONSUMER FORUM RANGA REDDY Between Tandra Krishna S/o Durgaiah Aged about 65 years, Occ: Pensioner R/o H.No.5-9-856, Gunfoundry Hyderabad-500001 Appellant/Complainant AND M/s Ocean Swimming Pool Rep. by its proprietor Smt Gajula Vijaya W/o Swamy Prakash, R/o H.No.16-2-836/D/8/1 Saidabad Colony, Hyderabad-500 059 Karnati Venkata Krishna Reddy S/o K.Nagi Reddy Aged about 50 years, Occ: Organiser of Ocean Swimming Pool Karmanghat R/o Plot No.39 Tapovan Colony, Hyderabad-500079 Native of G.Veerapuram, Village Kothapalli Mandal, Kurnool-518422 (Not necessary party) Respondents/opposite parties Counsel for the Appellant M/s A.Sudhakar Counsel for the Respondent No.1 M/s G.Ashok Counsel for the Respondent No.2 Not necessary party QUORUM : HON'BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT & SRI PATIL VITHAL RAO, MEMBER
MONDAY THE FIFTH DAY OF FEBRUARY TWO THOUSAND EIGHTEEN Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is an appeal filed by the complainant aggrieved by the orders of District Consumer Forum, Ranga Reddy wherein the District Forum allowed the complaint directing the opposite party no.2 to pay to the complainant a compensation of Rs.4,00,000/- for causing the untimely death of complainant's son. The opposite party no.2 also directed to pay an amount of Rs.50,000/- towards compensation and costs of Rs.5,000/- within one month failing which the amount shall carry interest @ 9% p.a. The complaint is dismissed against the opposite partyno.1 without costs.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainants, in brief, is that the opposite party no.1 is the proprietor of the swimming pool and opposite partyno.2 is the organizer. While so, on 25.04.2007, the complainant's son along with two other members went to the swimming pool on 25.04.2007 and during the swimming, the complainant's son drowned in water and the other two persons rushed to the counter and informed the matter to Opposite Parties. But the opposite parties did not take care and due to their negligence complainant's son died. The complainant lodged a complaint in the concerned police station where the police registered a crime in Crime No.462/2007 for an offence U/Sec.304-A IPC. The police investigated the matter and conducted panchanama at the swimming pool, recorded statements and inquest report was made. The dead body was given for post mortem examination which was conducted by Osmania Medical College and subsequently handed over to complainant. It is submitted that the deceased who was working in private service supported complainant's family. Due to the failure and negligence of the Opposite Parties in not providing a coach, the complainant's son died. Hence, the complaint praying to direct the opposite parties to pay Rs.4,00,000/- together with compensation of Rs.1,00,000/- and costs.
4. The opposite party no.1 resisted the case and contended that the opposite party no.1 not running Ocean Swimming Pool nor Proprietor thereof. The proprietor of the swimming pool was in no way related to the death of the complainant's son. In the police case also her name was not reflected. The complaint is barred by limitation and the District Forum has no jurisdiction to entertain the complainant. There is no prima-facie case made out and hence the opposite partyno.1 prayed for dismissal of the complaint.
5. Though the notice was served through paper publication on the opposite party no.2, he failed to appear before the District Forum and hence he was set exparte.
6. In proof of his case, the complainant has filed his evidence affidavit and got Exs.A1 to A15 marked. On behalf of the opposite party no.1, the Proprietor of the Swimming Pool has filed her evidence affidavit and no documents have been marked.
7. The District Forum after considering the material available on record, allowed the complaint bearing CC No.280 of 2013 by orders dated 31.08.2015.
8. Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum failed to see that the liability for causing death of complainant's son in the Ocean Swimming Pool on 25.04.2007 is not personal liability of the opposite party no.2. The opposite partyno.1 being the owner of the swimming pool it is also equally liable to pay compensation. The District Forum failed to consider the citations filed by the complainant. The District Forum having observed that the ' the opposite party no.2 along with his wife constituted second party, who approached the opposite party no.1 for lease of the swimming pool' failed to find that the document is not executed by the parties in the absence of consent of the first party by signing the document in the presence of witnesses. Hence, the said document has no validity. The District Forum erred in not taking Ex.A2 into cognizance while passing the order. Ex.A2 is the crucial official document and being the first information given by the opposite partyno.2 to the police stating that he is the contractor in the swimming pool and subsequently the opposite party no.2 alleged that he is the lease holder from the owner P.Sudheer, Exs.A5, A8 and later alleged G.Vijaya as owner Ex.A10. The District Forum having erred in considering Ex.A1 failed to see vicarious liability in the opposite partyno.1. The District Forum failed to apply principle of Res Ipsa Loquitor the present case. The District Forum having found that there is a severe lapse on the part of swimming pool management ought to have held the owner of the swimming pool is liable jointly and severally along with the opposite party no.2 for causing death of complainant's son. The opposite party no.1 failed to register the ocean swimming pool with the appropriate authorities. The opposite party no.1 failed to provide infrastructure, training and supervision required for running swimming pool. Hence, the complainant prayed to allow the appeal by setting aside the order of the District Forum.
9. Counsel for appellant present and was heard. No representation for the respondents' no.1 and 2. The counsel for the appellant/complainant has filed his written arguments and additional written arguments. The counsel for the respondent no.1/opposite partyno1 also filed his written arguments.
10. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
11. It is admitted fact that the deceased-Srikant along with two others visited the Ocean Swimming Pool which is owned by the opposite party no.1 and being leased to the opposite party no.2 on 25.04.2007 along with two others at 3 p.m. by purchasing tickets of Rs.30/- each. It is also admitted fact that on 25.04.2007 Srikant while doing swimming practice was drown. Thereafter, efforts were made to save his life but could not succeed.
12. 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, Saroonagar and a criminal case was registered on 25.04.2007 under F.I.R. No.462 against the respondent no.2 , under Section 304-A of the Indian Penal Code. The District Forum after considering the material on record and the complaint and counter of the opposite party no.1 allowed the complaint against the respondent no.2 i.e., Karnati Venkata Krishna Reddy for the reasons that the appellant no.2 has taken the Ocean Swimming Pool on lease from the respondent no.1 and who as per the Ex.A1 he undertook the responsibility for all risks including loss of life at the swimming pool. The respondent no.2 is very negligent in providing proper security to the persons who came to swimming by not providing life jackets, life guard or coach at the swimming pool who can attend immediately in the event of any untoward incident. Having failed to take such care at the time of the death of the complainant's son, the respondent no.2 is liable to pay compensation of Rs.4,00,000/- towards untimely death of complainant's son besides Rs.50,000/- as compensation with costs of Rs.5,000/-. The District Forum fixed the liability on the respondent no.2/opposite party no.2 and dismissed the complaint against the respondent no.1/opposite party no.1. Now, the appellant filed this appeal seeking relief against the opposite party no.1 also as Smt G.Vijaya who is the proprietor of the opposite party no.1 leased the swimming pool to the opposite party no.2. Therefore, she is also vicariously liable for the acts of the opposite party no.2.
13. On the other hand the opposite partyno1 contended that as per lease agreement Ex.A1, the opposite party no.2 was the lease holder of the swimming pool who as per clause 5 of the said lease agreement, he undertook responsibility for all risks including loss of life at the swimming pool thereby the opposite party no.2 is sole responsible to the alleged incident that had happed on 25.04.2007. Therefore, there is no deficiency or nay negligence on the part of the opposite party no.1. It is also contended by the opposite party no.1 that the complaint should be dismissed as in the proceedings of the criminal case, findings could not be given against opposite party no.1 that the complainant's son died due to certain acts of negligence on the part of the opposite party no.2.
14. We are not much impressed with this contention of the opposite party no.1. We want to make it clear that findings in this case cannot be based upon the findings given in Final Report filed by the policy U/s 173 of Cr.P.C. 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 the complainant's son.
15. It is also pertinent to note that Ex.A19 is the letter dated 12.02.2008 issued by the Dy. Commissioner of GHMC, LB Nagar Circle to the Additional Commissioner (Sport) stating that no license has been issued to M/s Ocean Swimming Pool O/o Swayam Prakash S/o Ambaiah for the year 2007-2008 as per the records. The complainant's son died on 25.07.2007 that means he died in the opposite party no.1 swimming pool when there was no proper license to that effect. The opposite party no.1 without obtaining any license from the GHMC to run the swimming pool had leased out it to the opposite party no.2 which amounts to gross negligence on the part of the opposite party no.1. On the other hand the opposite party no.2 who took the swimming pool for lease failed to provide proper security arrangement such as security guards, instructors and saviors etc. were not appointed. The opposite parties also could not adduce any evidence to prove presence of any coach, security guard, helper, savior or instructor at the time of occurrence.
16. In our opinion, the opposite party no.1 cannot be allowed to save her skin merely saying that she is not liable for the acts of the opposite party no.2 that she leased out the swimming pool to the opposite party no.2 vide lease agreement and as per clause 5 of the said agreement the opposite partyno.1 is not liable for risk, loss property or life, injuries and it is the opposite party no.2 solely liable for the same. As per discussions above, we feel no hesitation in holding that the incident took place due to negligence on the part of both the opposite parties. It was the duty of the opposite party no.1 first to obtain license from GHMC to run the swimming pool and later she can proceed for leasing out the swimming pool to third parties. But instead of doing so simply leased out the swimming pool to the opposite party no.2 and now to save the skin throwing entire blame on the opposite party no.2 who in the lower forum failed represent his case. 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 complainant's son entered the swimming pool.
17. The opposite party no.1 is outsourcing it responsibility. In the instance case, the opposite party no.1 has out sourced its responsibility of the maintenance of the swimming pool to opposite party no.2. However, the opposite party no.1 cannot forgo its prime responsibility. It was the duty of the opposite party no.1 to see whether the opposite party no.2 is discharging his duties properly or not. From the record available it is seen that the opposite party no.1 has not verified whether the opposite party no.2 has discharged its duties or not. As a principal owner the opposite party no.1 cannot escape its responsibility. Had the opposite party no.1 exercise proper control and supervision over the opposite party no.2, the mishap might not have occurred. The complainant has lost his only son. One cannot imagine their mental agony.
18. Any how, if findings are given that the opposite party no.2 is liable to pay compensation, the opposite party no.1 also should be held liable to make payment of the compensation amount awarded. As a result, as per discussions above in detail, findings are given that the opposite party no.1 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 party no.2 to make payment of the total compensation amount awarded by the District Forum. The findings of the District Forum are modified to the extent that the opposite parties No.1 and 2 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 is liable to be allowed. The point is answered accordingly.
In the result the appeal is allowed modifying the order of the District Forum holding and directing the opposite parties no.1 and 2 jointly and severally liable to pay Rs.4,00,000/- to the complainant together with compensation of Rs.50,000/- and costs of Rs.5,000/-. Time for compliance four weeks in default the said amount shall carry interest @ 9% per annum.
PRESIDENT MEMBER 05.02.2018 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER