Consumer Education and Research Society vs NELSON HIGHER SECONDARY SCHOOL

IN this complaint under Section 2(1)(c) read with Sections 2(1)(d)(ii), 2(1)(g) and 2(1)(r) of the Consumer Protection Act, 1986, the complainants pray for compensation alleging negligence on the part of opponent No. 1 school. Opponent No. 2 is Principal of opponent No. 1 school.

THE case set out in the complaint shortly stated is that the complainant Nos. 2, 3 and 4 are parents and sister respectively of Satbir, aged 15 years was a student in opponent No. 1 school prosecuting his studies in Standard VIII; that on 26.10.1993 opponent No. 1 organised a picnic for 500 students and took them to a picnic spot called Dholeshwar Mahadev, Koba near Gandhinagar, with teachers to take care of the students; that Rs. 100 per student were charged and accordingly Satbir also paid Rs.100 for the said picnic; that on 26.10.2003 the students and teachers reached the picnic spot around 10.30 a.m. near Dholeshwar Mahadev on the bank of Sabarmati river; that some students went into the water, that cries were raised by other students whereupon the teachers of the school went into the water and pulled Satbir out and was rushed to the hospital at Gandhinagar where he was declared dead. It is the say of the complainants that this incident took place around 10.30-11.00 a.m.; that though Satbir was declared dead around 11.30 a.m., family members of Satbir were informed at 2.30 p.m only; that Satbir met with an accident and was taken to Civil Hospital in Gandhinagar whereupon the family members reached the hospital to find Satbir dead; that, the death of Satbir due to drowning was because of sheer negligence on the part of the teachers who accompanied the students and for that matter opponent No. 1 school administration; that deceased Satbir who was an student of Class VIII in opponent No. 1 school was a consumer of services of opponents for consideration within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act; that the opponents did not take any steps to verify and check the safety aspect before taking 500 students for picnic/excursion especially when there was a river where such incidents can happen; that opponents are responsible for negligence in conducting the picnic/excursion and effectively supervising the students during the course of excursion/picnic. On these allegations, the complainants pray for Rs. 8,00,000 by way of compensation, Rs. 10,000 and Rs. 5,000 as cost. Opponent Nos. 1 and 2 have filed their reply vide Exh. 9 refuting the claim of the complainants inter alia stating that the complaint suffers from non-joinder of parties; that opponent No. 1 school is aided and run as per Government rules and regulations; that the school has taken insurance of all students from M/s. New India Assurance Company Limited and paid premium for the period in question, therefore the liability, if at all, any, for paying compensation is of the Insurance Company and none else; that the present complaint is illegal, unjust and improper and not maintainable as per the provisions of the Consumer Protection Act. It is not disputed that Jashbirsingh Jassal is father of Satbirsingh. It is denied that Satbir Jassal expired on 25.10.1993 due to negligence of the opponents as alleged in the complaint. It is further denied that complainant Nos. 2, 3, and 4 are entitled to claim compensation for loss of Satbir Jassal. It is further denied that late Satbir Jaassal was a consumer of opponent No. 1 within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act. It is stated that Satbir Jassal was student of standard VIII; that on 26.10.1993 a picnic was arranged by opponent No. 1 to Dholeshwar Mahadev, Koba, Nr. Gandhinagar, that the family members of late Satbir Jassal were informed at about 2.30 p.m. on 26.10.1993 that Satbir met with an accident; that it is true that when the family members reached the hospital, Satbirsingh was found dead. It is stated that accidents are something acts of God which are uncertain, unplanned, unexpected, un-designed, mishaps such as falling down, toppling down, sudden sinking of earth. All these cases are vis major acts which are unknown and beyond human control. Opponent No. 1 arranged for a Dholeshwar. The picnic spot was selected by the students and approved by the Government authorities. In all 15 teachers had taken 325 students for picnic at picnic at about 10.25 a.m. or so. The students and staff reached Dholeshwar from Sarita Udyan. The students were strictly warned not to play in water but still however some students wanted to wash hands and face in water. So male teachers, after checking the depth of water and finding it knee deep, permitted the students to go into water and accordingly approximately 50 students went into the water and staff encircled them. The students were instructed to remain within the restricted area; that other students who did not get into water were playing cricket and other games while few others sat near Mrs. Bhatnagar and Mrs. Ashma Khan (teachers); that Satbir did not get into water. He sought permission from Mrs. Bhatnagar to ease himself and after some time some students started shouting that Satbir is far away, in water with one of his friends. So male teachers viz. Mr. Yadav and Mr. Chauhan accompanied with peon Laxmanbhai at once ran to catch hold of them. One of the boys was caught and as Satbir tried to run away playfully in the water, accidentally he slipped and unfortunately got drowned; that the accident occurred at about 10.30 a.m. approximately; that at once Satbir was brought to Gandhinagar Civil Hospital and at 11 a.m. the doctor declared him dead; that the staff immediately informed opponent No. 2; that the said incident about accidental death of late Satbir was neither due to negligence nor want of proper care to be taken by opponents and the opponents are in no way responsible for the accident that occurred on 26.10.1993 resulting in death of Satbir Jassal; that opponents have exercised due care and caution and every possible measure to avoid accident was taken, but, still, however, the accident which occurred was due to contributory negligence of the deceased. The accident would have never taken place if Satbir was obedient and not disobeyed the instructions. If at all he wanted to get into the water he could have got in along with other students. Satbir did not get drowned at the spot where other students were playing in water and for the reasons best known to Satbir he asked for permission to go for easing himself but on the contrary he went into water and that too, too far away from the place where other students were permitted. Hence, it was not known to the staff as to how Satbir got into water. Therefore, the opponents cannot be made responsible for the accidental death of Satbir. On these averments, tile opponents pray ..for dismissal of the complaint.

It is submitted by Mr. H.J. Thakkar, learned Advocate for the complainants that Satbir, aged about 15 years was a student of 8 standard in opponent No. 1 school; that on 26.10.1993, a picnic to Dholeshwar Mahadev on the banks of river Sabarmati near Gandhinagar was organised; that 350 students participated in the said picnic; that students were allowed to go into water that there was no time to instruct the students not to go into water nor the depth of the water was properly checked; that when picnic of school students is arranged grater degree of care and caution is required and no carelessness would be permissible; that the teachers in the School are like parents at home and degree of care required to be exercised is that of the parents exercising at home; that the story of making circle of teachers is a concoction; that about 250 students went inside the water, that Satbir was only son of his father, that though the incident of drowning took place at 10.30 a.m., parents were informed around 3 O''clock which shows the degree of carelessness on the part of the school authority, that the drowning of Satbir is because of carelessness/negligence on the part of the teachers who accompanied the students and that the attention of the teachers was drawn only when some students shouted; which means the teachers were not attentive and did not know how many students drowned in the water.

AS against this, it is submitted by Mr. N.S. Dave learned Advocate for opponents No. 1 and 2 that the complaint is an afterthought; that the place for picnic was selected by the students and the school accepted the place as it was on the approved list of the Government; that physical verification of sand-hole is not possible; that there is no negligence on the part of the school teachers; that the incident took place at a far place; that the students were asked to remain within the circle which was in the water, that in fact the water was knee deep where circle was made by teachers with students within the circle but Satbir was not in the circle and he came in the water later and went away at a far off place from the circle where the students were under the supervision of the teachers; that the deceased did not follow the instructions by going far away from the circle where other students were playing in the water. Facts are not much in dispute inasmuch as Satbir, a young boy of 15 years, a student of standard VIII joined the picnic organised by opponents on 26.10.1993. The picnic spot was Dholeshwar Mahadev on the bank of river Sabarmati at village Koba near Gandhinagar. It is also not in dispute that 325 students joined the picnic. The school authorities collected Rs. 100 by way of picnic fees/charges; that 12 teachers and three peons accompanied the students to the picnic spot. Majority of the students went in water. Satbir did not go into water initially but subsequently went in water, away from the place where other boys were playing in water and shouts were raised by 2-3 students whereupon the teachers rushed for rescue. One boy was taken out from water but he was not Satbir. Then search was made in the water, and Satbir was pulled out of water. This took place at about 10.30 a.m. Satbir was rushed to the Civil Hospital at Gandhinagar where the doctor examined him and declared dead. These are the admitted facts.

THE question therefore arises is whether the teachers who accompanied the students for picnic and for that matter opponent No. 1 can be held responsible for negligence. The evidence of Sitaram Ramdev Yadav, a teacher of opponent No. 1 school who accompanied the students in the picnic is at Exh. 36. He deposed that about 325 students joined the picnic at Dholeshwar Mahadev on 26.10.1993 and the witness also accompanied the other teachers for supervising the students. There were 12 teachers and three peons in the picnic; that the witness and another teacher Chauhan examined the depth of water and thereafter the students who wanted to go in the water were permitted and were kept within the circle formed by the teachers; that 9 teachers formed the circle covering an area of 20 feet circumference. At that time Satbir was not in the circle; that Satbir was sitting with other teachers and students at a little distance; that two to three students who were sitting with other teachers shouted that Satbir had gone in water and that place was about 60 feet away, the place where Satbir was lying the depth of water was not much but it was more than knee deep; that one boy was pulled out of water but he was not Satbir. Again, attempt was made but Satbir was at a little distance. Thereafter, the witness along with another teacher Mr. Chauhan and peon Laxmanbhai went ahead in water. There Satbir was found and taken out; that all these happened within 15-20 minutes of reaching the picnic spot. Satbir was taken to Civil Hospital at about 11 O''clock. The other witness Smt. Manoramaben Bhatnagar (Exh.40) stated in her evidence that she was Supervisor in the School at the relevant time; that on 26.10.1993 opponent No. 1 school had arranged a picnic to Dholeshwar Mahadev (Gandhinagar); that about 325 students had participated in the picnic; that 12 teachers and three peons also went to supervise the students; that the students were divided into different groups and one teacher was in charge of one such group. The witness was sitting with the students who did not want to play; that the witness was keeping an eye on all the teachers and students; that about 50 students were playing on the ground; that some students went in the water along with their group mates; about 150 students had gone into the water for playing, taking bath, etc. Some male teachers went in the water, and ascertained the depth of the water and the water was knee deep, witness permitted some of the teachers and students to go in the water, that the teachers had made a circle in the water and the students were playing in the water within the circle; that the witness was at a distance of 3 to 4 metres from the circle made by the teachers and the students within the circle; that Satbir was initially sitting with the witness but thereafter asked for permission to ease out himself and thereafter Satbir did not return where the witness was sitting; that after about 10 minutes, the witness heard shouts that Satbir was in water. Thus it would be seen from the above evidence that after checking the depth of the water, the students were permitted to go in water and about 150 students went in the water, that about 50 students were within the circle playing in water and the attention of the teachers was drawn when 2-3 boys shouted from a distance of 50 feet that Satbir was in the water. Gurupejsingh Gurucharansingh Khunuja has been examined at Exh. 21. It is suggested from his evidence that the witness filed his affidavit at Exh. 20; that the witness participated in the picnic which was arranged on 26.10.1993. The witness has denied saying that it is not true that the teachers told the students not to go in water. That the teachers did not tell the students not to go in water, that the witness did not know swimming yet he went in the water, that deceased Satbir was 5 to 7 feet ahead of this witness in water. He also did not know swimming. When Satbir drowned, students raised shouts and the teachers reached the place within 10 minutes; that when the witness and Satbir went in water, teachers were not nearby; that 4 to 5 students went out of river water and called the teachers; that water was knee deep at the bank. In cross-examination it has been denied that the teachers instructed the students not to go in the water, that in the river Satbir was 5 to 7 feet ahead of this witness; that there were other students also in the water taking bath; about 200 to 250 students were in the water taking bath; that the witness stated that Satbir was drowned in the water whereupon Mr. Yadav jumped in the water and searched for Satbir; that after about 10 minutes one boy was taken out but he was not Satbir. Mr. Yadav again went in water and after 10-15 minutes Satbir was taken out of water and was taken to Civil Hospital, Gandhinagar. It is stated that at the place where the witness and Satbir were washing their hand and feet, water was knee deep. Ahead of that place, water was neck deep and the place where Satbir drowned, water was more deep in which even a person would drown; that when they were washing their hands/feet Mr. Yadav and other teachers were in water near the witness and Satbir.

IT appears from the above evidence that Satbir initially did not join the students but later went in the water. IT is also suggested that after some time witness Gurupejsingh and Satbir went in water. IT is also suggested that the place where they were washing their hand and feet, the teachers were nearby and at that place, water was knee deep. IT is also suggested from the evidence of witness Gurupejsingh that both of them then slipped away and went ahead leaving other students and teachers at the place where the water was knee deep. IT is further suggested that ahead of that place, water was neck deep and the place where Satbir drowned, water was more than six feet deep. IT is also suggested that Satbir was 5 to7 feet ahead of the witness Exh. 21. Thus, it appears that the depth of water was gradually increasing as Satbir and witness Exh. 21 went ahead. The place where the teachers and other students and where even Satbir and witness Exh. 21 initially were, depth of water was not much i.e. up to knee deep and the students were playing in water at that place. IT appears that Satbir and witness Exh. 21 leaving other students and teachers went ahead and depth of water was increasing as Satbir and witness Exh. 21 went ahead in water. At one place water was neck deep and where Satbir drowned, depth of water was more than six feet as it is stated that water was deep enough up to the height of one person meaning thereby that depth of water was such even a person would drown. IT appears that the teachers were not aware that witness Exh. 21 and Satbir leaving them and other students, were going ahead farther away in water and they did not know about Satbir and some other having drowned till some students went to them and called them. IT appears that probably the teachers were supervising only those students who were in the circle and who were nearby the place they were standing in water. Probably they did not keep eye and lost sight of the students who were not nearby. IT may be realised that the teachers had taken 325 students for picnic and the place selected was a river bank. Depth of water at the bank would be less. From that it cannot be said that the depth of water would be the same throughout the water of the river or little ahead on both sides where the teachers were standing in water and other students playing. Students, as they are, in their mid-teen age would certainly behave in an unpredictable manner. The teachers accompanying the students ought to have contemplated that the students would not behave like adults and it appears that Satbir and witness Exh. 21 unmindful of the consequences went ahead in water not realising that depth of water may be more at some places and that exactly appears to have happened. When the depth of water at one place was knee deep, but where Satbir drowned, it was much more which can drown even a grown up adult person with more height; meaning thereby more than six feet deep. IT appears that while going ahead in water and Satbir not knowing swimming, must be obviously walking in water and suddenly he must have found himself in a deep debbler where the depth of water would be much more than the depth around the debbler portion and unaware of such sand hole Satbir must have slipped into the debbler and water flowing above him and not knowing swimming could not come out and drowned. IT appears that the teachers were not keeping an eye on the students who were away. The teachers ought to have kept their vigil on the students who were away from the place where they were in the water and they ought to have seen, no student go far away in the water.

THE school authorities when they select a place near river bank and as many as 325 students joined the picnic, ought to have made adequate arrangements to ensure that no untoward incident takes place. It ought to have realised that the students of this age would behave in an unpredictable manner which may be hazardous/dangerous to life. THE degree of care expected of teachers has to be judged considering the circumstances attending the case. If the possibility of danger emerging is reasonably apparent, then to take no or less precaution is negligence but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precaution. In the instant case, the possibility of untoward incident taking place cannot be said to be a fantastic possibility looking to the age group of the students. In our opinion, adequate degree of care/caution cannot be stated to have been taken by the school authorities and some more precaution, in our opinion ought to have been taken and failure to do this, in our opinion, would suggest negligence on the part of the school authorities. Taking the evidence of witness Exh. 21, it is crystal clear that the teachers did not warn/caution the students not to go ahead in water. Probably the students were left to themselves inasmuch as Satbir and witness Exh. 21 went much ahead in water up to a distance of 60 feet. Under the circumstances, we are of the opinion that the school authorities and for that matter the teachers attending the students were negligent in performing their duty to safeguard the lives of the students who joined the picnic. It may be realised that the safety of the students were put in the care of the teachers and the teachers were required to exercise the maximum degree of care towards the students to ensure their safety. It is needless to state that the degree of care required to be exercised by the teachers is the same as the degree of care exercised by parents at home for the safety of the inmates. In the instant case, in our opinion, the teachers accompanying the students have failed to exercise that degree of care which would ensure the safety of lives of the students who were allowed to go in water not realising that the students would go ahead in water and depth of water could be more than near the bank and therefore the degree of care required was much more than ordinary care where water would be more deep than the depth at the bank. Satbir was a young boy of 15 years, a student of 8th standard and only son of his parents. In the case of death of children, parents can claim present value of future contribution which the deceased would have made to them. The dependency can be estimated by computing the annual contribution which the child would have made from the date of his probable earning. The question as to when a child would have reached such an earning capacity and as to what he could have contributed would depend on the health, family background, father''s or family profession, if any, the capacity of the parents to educate the child etc. In our opinion, the income can be computed at Rs. 2,400 per month of which 1/3rd amount can be reasonably expected to have been spent for oneself which would leave the amount of Rs. 1,600 per month x 12 = Rs. 19,200 per annum which would be the dependency benefit available to the parents. Looking to the age of Satbir, in our opinion, multiplier of 15 years would be just and proper which would give the amount at Rs. 2,88,000 (Rs. 19200x15). This would be the dependency benefit which the complainants would be entitled to. Over and above Rs. 2,88,000, in our view, an amount of Rs. 50,000 by way of conventional amount would also be required to be paid to the complainants. Thus, in all, the complainants would be entitled to Rs. 3,38,000. In our opinion bearing in mind the facts of the case, it is just and proper compensation.

We may also say that the liability of opponent No. 3 Insurance Company would be to the extent of Rs. 10,000 only as the Insurance Policy No. 48/210201/08784 [P.61] covers the risk of anyone insured person to the extent of Rs. 10,000 and the total liability for one event would be Rs. 5 lakh. We, therefore, pass the following order. ORDER The complaint is partly allowed. Opponent Nos. 1 and 2 are directed to pay to complainant Nos. 2 to 4 Rs. 3,38,000 with 9% interest from the date of complaint till realisation of the amount. Opponents shall, also pay cost quantified at Rs. 5,000 to complainant Nos. 2 to 4. Opponent No. 3 Insurance Company is liable to the extent of Rs. 10,000 only from the total amount as above payable by opponent Nos. 1 and 2 to complainant Nos. 2 to 4. The amount as above shall be paid within 30 days from today. Complaint partly allowed