K M INDORIA Vs. ZILA KRIDA PARISHAD, JAIPUR

JUDGEMENT

(1.) THIS complaint under Section 17 of the Consumer Protection Act, 1986 ( hereinafter referred to as "the Act of 1986") has been filed by the complainant before this Commission on 19.11.1997 against the opposite party seeking relief of compensation to the tune of Rs. 19,60,000 for the death of their son which had taken place in a swimming pool run by the opposite party.

(2.) THE case of the complainant as put forward by them in the complaint is as follows: That the present complaint pertains to the death of Himanshu Indoria son of the complainants (hereinafter referred to the deceased ) and death of the deceased was due to culpable negligence on the part of the opposite party. It was further stated in the complaint that at the time of death the deceased was a young boy of 18 years and the opposite party provides training to untrained persons in the swimming pool which is located at Chaugan Stadium, Jaipur and copy of rules and regulations of that swimming pool is marked as Anx. 1. It was further stated in the complaint that the deceased had applied for membership of the swimming pool of the opposite party in the month of June 1997. It was further stated in the complaint that on that application of the deceased he was granted membership No. 993 and he was to take his training in seventh shift every day and copy of the receipt dated 12.6.1997 and identity card issued by the opposite party are marked as Anx. 2 and 3. It was further stated in the complaint that the time schedule for the seventh shift was 5.00 p.m. to 5.45 p.m. and on 16.6.1997 he attended that shift and at about 6.00 p.m. his friend Moolchand (CW 1) who was also taking training in the same shift informed the complainants telephonically that the deceased had been admitted in the SMS Hospital, Jaipur as a case of drowning in the swimming pool run by the opposite party. It was further stated in the complaint that the complainants had reached the SMS Hospital, Jaipur and they were informed that the deceased had died and later on the body of the deceased was handed over to them and post -mortem of the dead body of the deceased was got conducted and the same is marked as Anx.6. It was further stated in the complaint that the incharge of the swimming pool had informed the Police Station, Kotwali, Jaipur about the death of the deceased on 16.6.1997 at about 7.00 p.m. which is evident from the mug FIR No. 16/97 lodged by S.S. Kisan DW 1 who is the Secretary of the District Krida Parishad (opposite party) and this swimming pool is run by that Parishad and the copy of that mug FIR is marked as Anx. 7. It was further stated in the complaint that the complainants had also lodged a report with the Police Station, Kotwali, Jaipur for committing offence under Section 304A, IPC bearing FIR No. 336 dated 21.6.1997. It was further stated in the complaint that since the training of swimming was being rendered by the opposite party after taking charges, and since there was culpable negligence in rendering that service, therefore, the opposite party could be held liable as there was no coach to train about 40 -50 candidates who were to learn in seventh shift and further there were no life saving guards on the spot to take immediate step for saving the life of the deceased and further no life saving apparatus were provided by the authorities in the pool so that a swimmer or learner might take self help in the event of emergency. It was further stated in the complaint that the news of the death of the deceased was published in the Dainik Bhaskar, a daily newspaper and the copy of that news is marked as Anx. 9. It was further stated in the complaint that the deceased was allowed to swim independently without pre -checking of his capabilities and without proper safety precautions and thus the opposite party had failed to discharge their mandatory duties and thus they are liable to be compensated for the deficiency in service on the part of the opposite party. It was further stated in the complaint that since the deceased was of the age of 18 years and was a bright student and had passed his Secondary Examination 1995 and Sr. Secondary Examination 1997 and his future was very bright as he had applied for admission in National Defence Academy and Naval Academy Examination which was to be held in September 1997 and copy of the admission certificate is marked as Anx. 12 and thus for the death of the deceased on account of loss of earning to the parents and on account of other factors, a compensation to the tune of Rs. 19,60,000 was demanded. A reply was filed by the opposite party on 14.7.1998 and the case of the opposite party was that the guidelines which had been produced by the complainants are not meant for the trainee but are only meant for seeking admission/membership of the swimming pool and the case as put forward by the opposite party in the reply was that the deceased had applied for membership of swimming pool only and he was not the member of training camp and thus he was not granted membership to take his training in seventh shift every day. It was further stated in the reply that he was only a member of seventh shift and the training was used to provide from 6.00 a.m. to 8.00 a.m. in the morning and 5.00 p.m. to 7.00 p.m. in the evening and he was not selected for the training and only being a member of the swimming pool, he was allowed to take the swim under the guidance of a trainer/coach. It was further stated in the reply that the deceased was untrained candidate as he had joined the pool two days before and after the shift was over, the deceased went in the deep end of the pool and took the dive and his head collided either with the surface or wall of the pool. It was further stated in the reply that on the day of the incident when the life guard checked the lockers, he found clothes of the deceased there and he enquired from Moolchand (CW 1) and thereafter life guard and coach run towards the swimming pool and brought out the body of the deceased from the swimming pool and first aid was provided in the pool itself and Dr. Mahesh Sharma was called upon and the deceased was taken to SMS Hospital, Jaipur and thus it is very much clear that there was no negligence on the part of the opposite party. It was further stated in the reply that Vinod Kumar DW 2, Pawan Kumar, Vipin Katiyar and Sh. Balkishan DW 4 were working as life saving guards and coach and they were attended their duties and since the deceased was not allowed to go at the end and since he had gone there, therefore, no negligence on the part of the opposite party could be established and further it is the case of the opposite party that the deceased had lost his life on account of his own negligence. Hence no case, complaint be dismissed.

(3.) ON the pleadings of the parties the learned member of this Commission had framed following three issues: