National Consumer Disputes Redressal
Municipal Corporation Of Hyderabad ... vs Shri Abdul Azeez S/O Mohammed Omer on 29 August, 2007
Equivalent citations: IV(2007)CPJ15(NC)
ORDER
Rajyalakshmi Rao, Member
1. The facts of the case reveal that there was total negligence on the part of the Municipal Corporation in not manning the swimming pool by proper lifeguards and other staff so as to at least monitor the swimmers. Nobody noticed what happened to the deceased, who entered the swimming pool at about 6.00 p.m. till next morning. Such fact would attract principle of res ipsa loquitor.
2. This First Appeal is filed by the Municipal Corporation of Hyderabad and Others against the order dated 22.7.2004 passed by the A.P. State Consumer Disputes Redressal Commission in Original Complaint No.38/2000, wherein the State Commission held that the death of the Complainant's son S. Abdul Hameed, while swimming in a swimming pool being run by the Municipal Corporation, was due to deficiency in service on the part of the Municipal Corporation and hence awarded a compensation of Rs.5 lakhs together with costs of Rs.2,000/-.
3. The admitted facts are as follows:
Abdul Hameed, aged 23, son of the Complainant, was a graduate undergoing 'A' level Post Graduate Diploma in Computers at Vivekanand School of Post Graduate Studies. Hamid paid an amount of Rs.250/- towards swimming pool fees to the Municipal Corporation of Hyderabad on 7.4.2000 together with an application bearing No.1879 for admission to V. Gurumurthy Memorial Swimming Pool (MCH). In the application, against column 'Swimmer or beginner', Hamid wrote himself as a 'Swimmer'. The swimmers are allotted time slots of one hour commencing from 6.00 a.m. and ending at 7.00 p.m. Hamid was given the slot of 4.00 p.m. to 5.00 p.m. He was given an identity card for the swimming pool valid from 7.4.2000 to 30.4.2000. The identity card had 13 conditions. Two of the conditions relevant are:- Condition -8, which reads "Beginners are prohibited from going into deep water"; and Condition-10 which reads as "Swimmers shall swim at their own risk.
4. It is the case of the Complainant that on 19.4.2000, Hamid left home at about 3.30 p.m. to the swimming pool and that he failed to return home. On the next day, i.e. on 20.4.2000, Hamid's dead body was found at about 6.15 a.m. in the said swimming pool by one of the swimmers of the first batch of the day. The body was taken out and the postmortem was got conducted at the Gandhi Hospital at 6.45 a.m. The detailed postmortem report is on record and the cause of death is shown as "drowning associated with cervical spine injury". The police was informed immediately and an FIR was registered, which was later closed as "Accidental death". A messenger was sent by the Municipal Authorities to the house of Hamid at about 11 a.m. and his father, the Complainant, was informed about the discovery of the dead body.
5. Alleging deficiency in service on the part of the Municipal Corporation, the Complainant approached the Andhra Pradesh State Commission with the complaint. He contended that his son Hamid did not know swimming; that he was only a beginner; that through over sight, he ticked the portion in the application as "Swimmer"; and that it was wrong on the part of the authorities to allow him to go into the deep water.
6. The Complainant further contended that the very fact that the dead body lying in the swimming pool was not located till the next morning, i.e. 12 hours later, itself shows that there is total negligence on the part of the Municipal Corporation in running the swimming pool without adequate trained coaches and lifeguards. The State Commission without giving a finding as to whether Hamid was a swimmer or a beginner, observed that even if it is assumed that he was a swimmer, even swimmers are prone to accidents in swimming pool and that it was the duty of the Municipal Corporation to provide adequate guards and other safeguards to take care of any possible accidents in the swimming pool, and accepted the plea and held in favour of the Complainant.
7. Hence, the Municipal Corporation has come in Appeal before us.
8. The case of the Municipal Corporation is that the deceased, Hamid, was not a "Beginner" but a "Swimmer", as correctly shown by him while filling up the application form; that had he been a beginner, he would have confined himself to the shallow portion clearly earmarked for the beginners; that there were adequate trained guards at the swimming pool but more attention, for obvious reasons was being paid to the beginners in the shallow pool of the pool; that Hamid died not because he did not know swimming or due to negligence of the authorities, but that he died because of his spinal injury and consequent drowning as clearly shown by the postmortem report. It is further argued that though the time slot allotted to him was 4.00 p.m. to 5.00 p.m., on the fateful day, Hamid himself wanted to swim in the slot of 6.00 p.m. to 7.00 p.m. and that his request was accepted. They have also argued that perhaps the dead body was not located before the closure of the swimming pool for the night, as there was unfortunately a power failure. Further, it seems that there was no adequate power supporting system also. Another reason mentioned is that Hamid did not keep his clothes and belongings in the shelves provided for the purpose but instead kept his clothes in the bush next to the swimming pool and hence, his presence/ absence could not be ascertained.
9. We have gone through the case record and heard the arguments. In our opinion, the question whether Hamid was a "Swimmer" or a "Beginner" is not vital to determine whether there was deficiency in service on the part of the Municipal Corporation. On behalf of the Municipal Corporation, the Municipal Commissioner and the Sports Director filed their affidavits. Both the affidavits are almost similar to each other and are in general terms except baldy stating that all care and caution was taken by coaches as well as by the Municipal Corporation, and no details have been given as to how many coaches, lifeguards were provided and whether at the relevant time the coaches/lifeguards were present and whether there was any power-back-up system in the event of failure of power.
10. Firstly, no details have been furnished as to when exactly Hamid went to the swimming pool. It is more strange to see that no one noticed Hamid drowning and that no one noticed the missing Hamid till the dead body was found the next morning. It is a different matter if it was argued that Hamid entered the swimming pool after 7.00 p.m. or after it was closed for the night. The Appellants admitted that Hamid was allowed entry to the swimming pool in the last slot 6.00 p.m. to 7.00 p.m. It is the responsibility of the pool authorities to find out whether everything is in order before they close the swimming pool. Their excuse that there was a power failure is really only an excuse. The details of the power failure have not been indicated. Even if there was power failure, it was all the more necessary to have the swimming pool thoroughly checked before closing it for the night.
11. Further there is no substance in the argument that Hamid died because of injury to spinal cord and consequent drowning. It is possible that the injury to the cervical spine might have occurred while swimming or diving etc. Even the most experienced swimmers can encounter accidents while swimming. It is always necessary for the authorities to make appropriate provisions to tackle such emergencies, when they run public swimming pools and charge fee of Rs.250/- for three weeks time. The very fact that the dead body was not noticed for a period of 12 hours later is a shocking indictment of the state of affairs at the swimming pool.
12. Hence, we see no substance in the First Appeal and find no reason to interfere with the well reasoned order of the State Commission.
13. In view of the above discussion, First Appeal is accordingly dismissed. There shall be no order as to costs.