National Consumer Disputes Redressal
M.M. Kariappa & Anr. vs Hemalatha Jaswanth & 2 Ors. on 14 June, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1338 OF 2016 (Against the Order dated 08/06/2016 in Complaint No. 151/2012 of the State Commission Karnataka) 1. M.M. KARIAPPA & ANR. S/O. LATE MARIAPPA, CHAIRMAN, VOGUE INSTITUTE OF FASHION TECHNOLOGY, FOOTBALL STADIUM COMPLEX, DIGNOLLY, OPP. TO GARUDA MALL, OFF. M.G. ROAD, BANGALORE-560025 KARNATAKA 2. VOGUE INSTITUTE OF FASHION TECHNOLOGY THROUGH THE CHAIRMAN, M.M. KARIAPPA, KIADB DODDABALLAPURA INTEGRATED APPAREL PARK, BASHETTIHALLI, KASABA HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRIC, BANGALORE- KARNATAKA ...........Appellant(s) Versus 1. HEMALATHA JASWANTH & 2 ORS. W/O. JASWANTH, PRESENTLY R/O. AT SRI BALAJI NILAYA, 1ST FLOOR, 88A, 4TH MAIN ROAD, CHANDRAMOULASHWARA LAYOUT, AIRPORT ROAD, YELAHANKA, BANGALORE-562157 KARNATAKA 2. MR. JASWANT S/O. LATE BABU, PRESENTLY RESIDING AT SRI BALAJI NILAYA, 1ST FLOOR, 88A, 4TH MAIN ROAD, CHANDRAMOULASHWARA LAYOUT, AIRPORT ROAD, YELAHANKA, BANGALORE-562157 KARNATAKA 3. SWAROOP PRESENTLY RESIDING AT SRI BALAJI NILAYA, 1ST FLOOR, 88-A, 4TH MAIN ROAD, CHANDRAMOULASHWARA LAYOUT, AIRPORT ROAD, YELAHANKA, BANGALORE-562157 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Appellant : Mr. Shanth Kumar Mahale, Advocate
: Mr. Rajesh Mahale, Advocate For the Respondent : Ms. Asha Shetty, Advocate
Dated : 14 Jun 2022 ORDER
1. Heard Mr. Shanth Kumar Mahale, Advocate, holding brief of Mr. Rajesh Mahale, Advocate, for the appellants and Ms. Asha Shetty, Advocate, for the respondents.
2. M.M. Kariappa and Vogue Institute of Fashion Technology (the opposite parties) have filed above appeal from the order of Karnataka State Consumer Disputes Redressal Commission, Bangalore dated 08.06.2016, passed in Consumer Complaint No.151 of 2012, partly allowing the complaint and directing the appellants/ opposite parties to pay compensation of Rs.25/- lacs with interest @9% per annum, from the date of filing of the complaint till the date of payment and apportioning this compensation amongst the complainants/ respondents.
3. Mrs. Hemalatha Jaswanth, Jaswanth and Swaroop (the respondents) filed CC/151/2012, for directing the appellants (i) to pay compensation of Rs.9500000/- with interest @18% per annum from 25.12.2011 (i.e. the date of death of Swarna Jaswanth) till its realization, (ii) to pay cost of the litigation and (iii) any other relief which is deemed fit and proper in the facts and circumstance of the case.
4. The complainants stated that M/s. Manduda Educational Trust through its Chairman M.M. Kariappa opened an educational institution of fashion design in the name of "Vogue Institute of Fashion Technology" at Football Stadium Complex (for short the Institute). Ms. Swarna Jaswanth (daughter of complainants-1 and 2 and sister of complainant-3) took admission of B.Sc., F.A.D. course in the year 2010-2011 in the said Institute, completed her first year course and passed in first division. For second year course, the Institute transferred the students to the new building at KIADB, Doddaballapura Integrated Apparel Park, Bashettihalli, Kasaba Hobli, district Bangalore Rural, in spite of the objection of the student and her parent as by that time the building was under construction. The management of the Institute assured that the building would be completed soon and they would adopt all precautionary measure for the safety of the students. In November, 2011, the Institute declared vacation of the students to complete the construction. After vacation, the classes started from 05.12.2011. Ms. Swarna Jaswanth was regularly attending the classes. She went to the Institute on 14.12.2011 to attend the classes. During break hours, she along with her friends went to canteen to have some food, situated at second floor of the building. No food was available in the canteen, as such, she was coming down from the canteen. When she put her leg on the first step of staircase, which was constructed for going downwards, the step broke out and Ms. Swarna Jaswanth fell in the side of the step, which was a gallery covered with glass, to protect the rainwater. The glass cover broke out and Ms. Swarna Jaswanth fell on the ground floor along with broken glass and sustained injuries in head and spinal cord and went in coma. When other students made hue and cry, then the administration of the Institute took Ms. Swarna Jaswanth to Doddaballapura Government Hospital, on the college bus, from where she was referred to Columbia Asia Hospital, Hebbal, Bangalore, where she remained admitted till her death on 25.12.2011 and 21:39 hours. On the complaint made by Swaroop, FIR of Case Crime No.344/2011 was registered at Police Station Doddaballapur Rural, on 20.12.2011 at 13:40 hours, initially under Section 338 IPC and after death it was converted under Section 304-A IPC. The incident occurred due to poor construction of staircase, step of which was broken in just putting step on it, while going down. The opposite parties committed gross negligence in not constructing a boundary wall or iron grill by the side of staircase. They further did not give any strength of iron angles to glass panels put on the gallery and glass used for covering the gallery was very thin and of sub-standard. No signboard was put at that place, prohibiting use of staircase or restricting access to that area. The incident occurred due careless and negligent act of the opposite parties. Ms. Swarna Jaswanth was a brilliant student and was doing course of B.Sc. F.A.D., for doing job. Due to her sad demise, entire family suffered loss of love and affection, future earning and dependency. Both the parent of the deceased were unemployed and they spent their savings in study of the deceased and medical expenses during her treatment in the hospital. On these allegations, the complaint was filed on 21.12.2012.
5. The opposite parties filed their written reply on 12.07.2013 and contested the complaint, in which, the material facts as stated in the complaint have not been disputed. It has been stated that the land, where new building of the Institute was constructed was allotted by Karnataka Industrial Areas Development Board, Bangalore and the building was constructed under the scheme of "Suvarana Kayaka Kaushaya Abhivruddi" sponsored by Government of Karnataka. Entire construction was done under supervision of qualified Architect and Structural Engineer, who had also prepared layout plan, which was sanctioned by competent authority. It is considered as a best reputed institution of Art and Fashion design. The opposite parties are well patronized by the Industry and Corporate sector in the country. It has been denied that the construction was weak or any sub-standard material has been used. The incident occurred in terrace area, which was a prohibited zone, where a caution board was also put at the entry point, restricting the students and staffs from going in terrace area. Ms. Swarna Jaswanth was of more than 18 years old girl and mature enough to understand the restriction/caution. Ms. Swarna Jaswanth and her friends used to consume prohibited drugs and tobacco. She and her friends voluntarily went in the prohibited zone of terrace, ignoring the caution/restriction. There is no skid feature on the entrance of the terrace. She jumped upon the glass panel, which was broken down and she fell on the ground floor, due to which, she sustained injuries. Immediately after the incident, the administration of the Institute took her to Doddaballapura Government Hospital, on the college bus, from where she was referred to Columbia Asia Hospital, Hebbal, Bangalore, where she was admitted and her parent were informed. The incident happened due to her own negligent and reckless act of Ms. Swarna Jaswanth. Her act was noticed by the security guard also. There was no necessity to any student to go in terrace area or walk on glass panel, which was fixed to prevent rain water and pass sunlight up to ground floor. The management of the Institute took decision to provide Rs.156000/- towards medical expenses on the deceased.
6. The respondents filed Affidavit of Evidence of Hemalatha Jaswanth and documentary evidence. The appellants filed Affidavit of Evidence of M.M. Kariappa, Affidavit of Evidence of Ms. Niveditha (a student), Affidavit of Evidence of Harshith (a student), Affidavit of Evidence of Narasimha Murthy (maintenance in-charge) and Affidavit of Evidence of K.K. Bheemanna (security guard). These witnesses were cross examined by the respondents by serving interrogatories. Both the parties filed their short synopsis. State Commission, after hearing the parties, by judgment dated 08.06.2016, held that from perusal of photographs Exhibit (R-6 and its C.D), it was proved that two steps adjoin the area of glass panel/floor. The incident occurred on 14.12.2011 around 12:30 hours, which was lunch break period as per Exhibit R-8. The corner edge of first step was broken and adjoining portion of glass floor was also broken, from which it is proved that edge of the step was broken due to which, the victim had lost her balance and fallen down on the glass floor, which was also broken out and the deceased fell on the ground floor. There was neither any boundary nor any grill/railing on the staircase as such the opposite parties were guilty for not taking any safety measure at this place. The evidence adduced by the appellants/opposite parties were not reliable. Although it is alleged that entry was prohibited in terrace area but there was no gate, door etc. The deceased was a 19 years old girl at the time of her death and was a student of second year in B.Sc. F.A.D. course. As such, her minimum future income was assessed to Rs.25000/- per month. 50% of it was deducted towards personal income of the deceased. Age of Mrs. Hemalatha Jaswant (mother of the deceased) was 45 years. As such the compensation was assessed to Rs.25/- lacs. On these findings the complaint was partly allowed and order as stated above has been passed. Hence this appeal has been filed.
7. I have considered the arguments of the counsel for the parties and examined the record. The witness of the respondents is not an eye witness of the incident. However, the place of incident has not been disputed as the appellants themselves filed photographs of the place of incident. The incident occurred on 14.12.2011 around 12:30 hours, which was lunch break as per Exhibit R-8. A perusal of photographs Exhibit (R-6 and its C.D) prove that two steps adjoin the area of glass panel/floor. The corner edge of first step was broken and adjoining portion of glass floor was also broken, from which it is proved that edge of the step was broken as soon as the deceased put her step on it while coming down, due to which, the victim had lost her balance and fallen down on the glass floor, which was also broken out and the deceased fell on the ground floor. Finding recorded by State Commission in this respect does not suffer from any illegality inasmuch as this is proved from documentary evidence and circumstantial evidence.
8. The appellant has filed a copy of Layout Plan (Exhibit-R-4) of the building, where the incident occurred. In this Layout Plan, on the Second Floor (i) Kitchen, (ii) Toilet (ii) Wash (iv) Café (v) Outdoor Café and (iv) Corridor and Common Area have been shown. From the certificate of Building Engineer dated 01.07.2011 (Exhibit R-5), it is proved that construction of the building including Second Floor (218.13 sq.mtr) was complete. From these documents, it is proved that on Second Floor, there was no Terrace area, which was prohibited zone. From, their own evidence of the appellants, prohibited zone on Second Floor was not proved. If there was any prohibited zone, then there would have been some locked door/gate. Existence of door/gate at the place of incident is not proved as such defence taken by the appellant was not proved.
9. The appellants took plea that the deceased Swarna Jaswanth was in habit of taking prohibited drugs and tobacco and she and her friends voluntarily went in the prohibited zone of terrace, ignoring the caution/restriction. The appellants filed Affidavit of Evidence of Ms. Niveditha (a student) and Affidavit of Evidence of Harshith (a student) to prove this fact. Ms. Niveditha in answer to question No. 7- The steps broke. What do you say? Answered that "I do not know as I was not there with them in the terrace area." Question No.9- All allegation with regard to smoking you said are false? Answered that "I never said any thing about smoking." Harshith in answer to question No. 7- The steps broke. What do you say? Answered that "No step was broken as it was solid construction. This statement is contrary to own photographs and C.D. produced by the appellants. As such, these witnesses are not reliable. State Commission has rightly ignored their Affidavits.
10. As there was neither any boundary nor any grill/railing on the staircase and glass cover put on the gallery did not have any support of iron angle as such the opposite parties were guilty for not taking care any safety measure at this place. On second floor, there were Kitchen, Toilet, Wash, Café, Outdoor Café, Corridor and Common Area as such access of the students and staff to second floor was usual. The appellants took plea that it was prohibited zone, as such, putting a gate/door at the entry point was minimum requirement by way of reasonable care. As such, finding that the appellants were guilty of committing negligence is not illegal.
11. Swarna Jaswanth was an student of B.Sc. F.A.D. in the Institute of the appellant during 2011-2012. The appellants was charging fee of Rs.320000/- for B.Sc. F.A.D. Course, in the year 2011-12. State Commission has determined future income of the deceased as Rs.25000/- per month as the date of incident is 14.11.2012. A student, who has taken admission in expensive course of study and was first divisioner as such, her future income cannot be said to be excessive. Supreme Court in Sarla Verma Vs. Delhi State Transport Corporation, (2009) 6 SCC 121, National Insurance Company Limited Vs. Pranay Sethi, (2017) 16 SCC 680 and Civil Appeal No. 1269 of 2022 R. Valli and others Vs. Tamil Nadu State Transport Corporation Limited (decided on 10.02.2002) approved the multiplier system as provided under Motor Vehicles Act, 1988, for calculating the loss of income. In the present case, age of Mrs. Hemalatha Jaswant (mother of the deceased) was taken into consideration for assessing loss of income, whose age was 45 years at the time of death of Swarna Jaswanth. For the age group of 41-45 years multiplier of 14 is applicable. State Commission assessed future of income of the deceased as Rs.25000/- per month. 50% of the income was deducted towards personal expenses. As such loss of income comes to Rs.21/- lacs, applying multiplier of 14. Apart from it medical expenses of Rs.400000/- was claimed, which was verified from the bills of hospital. The respondents were also entitled for compensation for loss of estate and loss of consortium. As such award of Rs.25/- as total compensation cannot be said to be excessive.
ORDER
In view of the aforesaid discussions, the appeal is dismissed.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER