H DHANANI Vs. FISHERMAN S COVE

JUDGEMENT

(1.) THE complainants stayed in the hotel of the opposite party from 13.7.1998 to 15.7.1998. During their stay, a Catamaran trip was arranged and the complainants were persuaded to go on such a trip. Believing the representation of the opposite party who guaranteed a safe trip by Catamaran, the complainants undertook the trip. On their return trip, on account of the fact that the Catamaran could not take many persons, it overturned and it happened when the Catamaran was about 300 feet from the shore. At that place, the water was about 6 to 7 feet deep. The male members managed to extricate themselves from the Catamaran. The ladies were unable to extricate themselves and with much difficulty, they were dragged to safety. The staff members of the opposite party never came to their help. They were completely indifferent. They never bothered to get in touch with the complainant. Thus, on account of the negligence of the opposite party in arranging a dangerous and risky trip without taking measures, this mishap had happened. The complainants suffered mentally and physically. Hence, the claim for Rs. 15,20,000/ - for compensation.

(2.) THE opposite parties filed a version pleading as follows : The complaint is not maintainable. It is true that posters were displayed about the Catamaran trip in the sea but there was no insistence or compulsion that anybody should undertake the trip. The opposite party took all precautionary measures while arranging the Catamaran trip. The complainants only requested that trip should be arranged for five persons but at the last moment, a friend of the complainant joined that is how it became six. Every adventure has its own risk. The complainants were aware of the risk involved. Sivanandan and Desing were competent persons. The requests of the crew members, especially Mr. Desing, were ignored by the guests who began to indulge in activities that added to the swaying of the Catamaran from one side to another. When it was about 10 meters away from the shore, there was cross -wave on account of swaying and it overturned dropping the guests into the sea. Without wasting any time, Mr. Desing and Murugesan pulled out the ladies and they were brought to safety. Sivanandan went to fetch first aid for the guests. No one was injured in the incident. The complainants only were keen to get the waiver of charges for the Catamaran trip and it was waived and thus the trip was totally free of charge. The place where the Catamaran overturned, the sea was only about hip deep. The water was shallow. It was not 6 or 7 ft. deep. There could not have been any traumatic experience to the complainant. The 3rd complainant refused to wear life jackets. Througout the complainants were recalcitrant and non -cooperative. The claim made is exaggerated. The opposite parties, therefore, pray that the complaint be dismissed with cost.

(3.) THE facts are admitted. Hence, it is not necessary to delve at length over the same. The complainants stayed in the hotel of the opposite party. The opposite party advertised that they would arrange for Catamaran trip into the sea for their guests on payment of certain charges. Accordingly, the complainants who opted for such a trip and paid the charges were taken on a trip into the sea by Catamaran. While on return, when it was about 200 feet away from the shore, the Catamaran overturned. Naturally, those who were on the Catamaran were thrown into the sea. There is no dispute that the persons were rescued. According to the complainants at that place the sea was about 6 to 7 feet deep whereas according to the opposite parties it was only knee deep and shallow being nearer to the shore. According to the opposite parties, the Catamaran overturned because some of the complainants did not heed to the instructions of Desing and they started making movements and indulged in some activities which led to the swaying of the Catamaran and thus on account of their activities the Catamaran overturned. But, it is to be pointed out that when the complainants gave a notice, the opposite parties have not chosen to send any reply. Of course, the complainants have produced proof to show that the notice addressed by them to the opposite parties was delivered to the addressee. Therefore, there is a presumption though rebuttable that such a communication addressed by the complainants was received by the opposite parties. The opposite parties have not adduced any material to dislodge the presumption. Therefore, the analysis would show that the trip was arranged by the opposite parties for their guests and on payment of charges. As far as the complainants were concerned, they undertook such a trip in the Catamaran into the sea and on their return the Catamaran overturned throwing the occupants into the sea. It is clear from the complainants case that life jackets were provided to the complainants. It is also true that when the complainants undertook the trip, they must have been aware of the inherent risk or danger in such a trip. Whatever precautions are taken, there is certain amount of risk involved in such trips because one cannot say what the weather condition will be and when the sea will become rough and what will happen while one is floating about in the sea at the mercy of the Sea gods. At the same time, the opposite parties cannot just wash their hands off the whole affair saying that the complainants who opted for a trip ought to have been aware of the risk involved and, therefore, they cannot now complain. There is no material to suggest that the Catamaran overturned because of any act of the complainants. The opposite parties have not produced the proof affidavit from the said Desing or the other person who accompanied the complainants on that day. Therefore, that the Catamaran overturned is the fact unrebuttable. Whether the overturning of the Catamaran was due to an act of god or due to the negligence of the opposite parties, we have no materials to go by. We have no materials to show the loading capacity of a Catamaran and whether it was exceeded in this case. Even assuming it to be an act of God or an unexpected turn of event the opposite parties who have arranged such trips for their guests ought to have taken necessary precautionary steps to tackle the situation if any such mishap happens. Though in the version, they have stated that they have taken necessary precautions, we have no materials except the assertion in the version. We are only left with the assertion on the part of the complainants and denial on the part of the opposite parties. In such circumstances, we have to hold that the accident would speak for itself and, therefore, in that sense we have to hold that there has been some negligence on the part of the opposite parties in not taking suitable precautionary methods. Thus, in that sense, there is deficiency in service.