CONSUMER EDUCATION ANDRESEARCH SOCIETY vs STERLING ENTERPRISES LTD

THIS complaint is filed by Consumer Education and Research Society, a registered Consumer Association and parents of one Rupesh C. Mehta (complainants for short) mainly to recover total compensation of Rs. 9,60,000/- for death of said Rupesh C. Mehta (deceased for short) who died due to drowning in the swimming pool (pool for short) of Sterling Enterprises Limited, opponent No. 1 herein (opponent for short).

THE case of the complainants is as follows: THE deceased was a member of Green Woods Lake Holiday Resort, a recreation scheme promoted by the opponent. THE deceased had paid Rs. 2,400/- as first instalment towards membership fees of the said scheme and the opponent had issued receipt dated April 8,1993 for the same. THE opponent wrote letter dated April 8, 1993 to the deceased informing him to avail of the facilities provided at its country club. On April 20,1993 at about 3.30 p.m. the deceased and his friend Nirav Sunil Kumar Parikh (Nirav for short), went to the country club of the opponent at Charodi and played table tennis for sometime. THEreafter thsey paid Rs. 5/- each to swim in the pool of the opponent. THEy swam for sometime in the pool before Nirav noticed two arms of the deceased raised above the surface of the water with his body under the water. Nirav cried for help but no help was available. THEreafter body of the deceased was brought out from the deep water. THE deceased was taken to the Civil Hospital on Gandhinagar Highway where he was pronounced dead. THE post-mortem examination revealed that the deceased had died due to asphyxia on account of drowning. THE allegation of the complainants is that the deceased died on account of negligence of the opponents in not providing life saving devices and equipments and other facilities at the pool. In other words, according to the complainants, the deceased died on account of negligence of the opponents. THEy are, therefore, entitled to claim compensation from the opponents. The deceased was employed as Medical Representative by Tide Pharmaceuticals Private Limited at a monthly salary of Rs. 3,326/-. The complainants were, therefore, entitled to claim compensation of Rs. 5,60,000/-for loss of earnings and Rs. 2,00,000/- for pain, shock and suffering on account of death of the deceased from the opponents. The have also claimed Rs.2,00,000/- as punitive damages. The complainants have thus claimed Rs. 9,60,000/- by way of compensation and prayed that the opponents should be directed to desist from practising unfair trade practice. The complainants have also prayed for costs.

The opponents have resisted the complaint and they denied the allegations that there was negligence on their part and that the deceased died on account of the alleged negligence. It is not disputed that the deceased was member of Green Wood Lake Holiday Resort and Recreation Scheme or Flexiplan Scheme of the opponent w.e.f. April 8,1993, about 12 days before the accident in which the deceased died on account of drowning. The opponents have admitted that the deceased, as such member, was entitled to avail of the facilities of the opponent''s country club and that he and his friend Nirav came to the country club in the afternoon on April 20,1993. It is also not disputed that they played table tennis before they went to the swimming pool. It is however, submitted the swimming pool of the club was meant for its members who were proficient in swimming. Coaching camps were organised by the club only during sometime of the year. The deceased and Nirav were not proficient in swimming and therefore they were not entitled to enter the swimming pool. It is submitted that there is a notice board prominently displayed near the swimming pool which stated that swimming pool was open only to members who were proficient in swimming. The deceased and Nirav, however, ignoring the notice, entered the swimming pool. It is further submitted that there were lifebuoys available near the swimming pool. These lifebuoys were not used to save the deceased. On hearing shouts for help of Nirav, the staff members of the club ran to the swimming pool and the deceased was brought out from the swimming pool in an unconscious state. First aid was administered to the deceased by disgorging water from his body. Such treatment was given believing that the deceased was alive. The Manager of the club, however, thought it advisable to take the deceased to the Civil Hospital for treatment. He was, therefore, removed to the Hospital in a private vehicle of another member where he was declared dead. It is not disputed that the deceased died due to asphyxia on account of drowning. The opponents have submitted that the deceased did not die on account of their negligence and therefore, they are not liable to pay any compensation to the complainants.

IT appears that police was informed about the death of the deceased and they drew up a panchanama of the swimming pool. The panchanama shows that the pool was 58 ft. long and 26 ft. wide. The length of the pool was north south and pool was shallow in the north. The pool became deep from north to south and it was deepest in the southernmost part where the water was 20 ft. deep. The water was clear. Panchanama does not show that there were marks to indicate the depth of the pool. The pool was a public swimming pool of country club having water surface area of about 1,500 sq. ft. IT was necessary to have depth of water plainly marked at or above the water surface on the vertical pool wall and on the edge of the deck or wall next to the pool at maximum and minimum points and at the points of break between the deep and shallow portions and at intermediate increments of depth, spaced at proper intervals. IT was also necessary to provide a life line at or near the break in grade between the shallow and deep portion of the pool, with its position marked with coloured floats. IT was also necessary to have a wall or enclosure completely enclosing the pool area. IT was also necessary to provide proper life saving equipments and devices readily available near the pool for safety of the swimmers or helping or rescuing persons who were drowning. IT appears from the evidence on record that there were no depth marks or life line provided. IT is stated that there were lifebuoys available near the pool. However, there is no satisfactory evidence to prove this contention. Apart from that it was absolutely essential to provide life guard or expert swimmer near the pool whenever it was open for use to rescue persons who were drowning or in difficulty. From the facts brought on record, it appears that there was no one near the pool who could help the persons who entered the pool for swimming or learning. There were no checks on the persons entering the pool. Only putting up a notice on the notice board to the effect that only persons proficient in swimming should use the pool is not enough. Pool should have been in an enclosure to prevent entry of persons who are not proficient in swimming or who could not be allowed to use the pool. In the instant case, the club accepted fee from the deceased and Nirav of Rs. 5/- each for using the pool. No question was asked to the deceased and Nirav whether they were proficient in swimming before allowing them to enter into the pool. In fact, no. person or member should be allowed to enter the pool or go near it unless there was a life guard or expert swimmer near the pool. Assuming for the sake of argument that there were lifebuoys near the pool, there had to be someone who could pick up the lifebuoy and give it to the person drowning or needing help. Keeping lifebuoys hanging on firewall cannot be considered to be a sufficient measure for rescuing the persons needing help. Besides lifebuoys there were no other safety device available near the pool. There were also no first aid available near the pool. After the body of the deceased was taken out from the pool all that was done was to gorge out water from the body. Manager who is alleged to be trained in first aid made no attempt to revive the deceased. In fact he did not visualize that the deceased was not unconscious but dead. In our opinion, the sad and tragic incident in which the deceased died occurred because there was no sufficient provision made to take care of the persons using the pool. There was, in our opinion, negligence on the part of the opponents in maintaining and running the pool. Facts in case of Shashikant Krishanaji Dole and Anr. v. Shikshana Prasaraka Mandali & Anr., III (1995) CPJ 97 (NC)=1995 (3) CPR 274 decided by the National Consumer Disputes Redressal Commission were as follows, Kedar, only child of the complainants, was enrolled for a training came to learn swimming by paying fee of Rs. 190/- in the swimming pool owned by a public trust (opponent No. 1 for short). The training of Kedar commenced from May 10,1991 under the guidance of opponent No. 2 who was a trainer (opponent No. 2 for short). Kedar met with his death on June 3,1991 at about 9.30 a.m. by drowning in the swimming pool. It was alleged that Kedar died on account of negligence of the trainer. The opponents to the complaint contested the complaint and denied the allegations of negligence. It was submitted that the trainer was a qualified trainer and coach. The carelessness and negligence in making available standard services at the swimming pool was denied. Other allegations of the complainants about the standards of swimming pool and non-availability of facilities in swimming pool in the emergency cases were also denied. The State Commission, before whom the complaint was filed by the parents of Kedar, held that the services of the opponents were deficient on the following points: (i) The coach employed was not fully trained; (ii) opponent No. 1 did not provide a partition in the pool to prevent young boy learners not proficient in swimming from entering the deep end of the pool; (iii) opponent No. 1 did not appear to have provided even the basic facilities needed in case of accidental mishap to provide first aid; and (iv) opponent No. 2 did not appear to exercise even basic common sense needed to counter an accident in swimming.

THE National Commission upheld the decision of the State Commission and held to the effect that life saving mechanism was not made available at the pool site and thus management of opponent No. 1 was totally negligent in keeping ready the necessary life saving mechanism to save lives of trainee students in case of accident. Opponent No. 2 was also negligent in discharging his duties. Opponent No. 1 was held liable for negligence of opponent No. 2 who was their employee. THE National Commission, therefore, came to the conclusion that opponents were liable to pay compensation to the parents of Kedar. THE award of compensation of Rs. 1,50,000/- by the State Commission was found to be reasonable. In the result, the National Commission dismissed the appeals filed before it. In the instant case also, as pointed out above, there was no marks or partition or compartment net to prevent persons who did not know swimming from entering the deep part of the pool. There was no lifeguard or expert swimmer at the pool side to help/rescue the deceased when he was drowning. There was also no sufficient life saving mechanism/ equipment available at the pool side. In any case, there was no person who could have made use of the lifebuoy, even it was there, as alleged by the opponent. First aid apparatus or equipments were also not available near the pool. Having regard to the facts and circumstances of the case, in our opinion, there was negligence and deficiency in service on the part of the opponent. The opponent is, therefore, liable to pay compensation to the complainants. In Shashikant Krishanaji Dole & Anr. v. Shikshana Prasaraka Mandali & Anr., (supra), the National Commission confirmed the decision of the State Commission to award compensation of Rs. 1,50,000/- to the parents of the deceased Kedar. It appears from the judgment that Kedar was a child and he was not earning any income. However, considering likely prospects of life of a child of lower middle class, the State Commission fixed the compensation at Rs. 1,50,000/-. In view of the National Commission, the compensation was reasonable. In the case of Ibrahim Ghasubhai Qureshi & Anr. v. Mandvi Nagarpalika, (complaint No. 129 of 1994, disposed of on December 6, 1996) in similar circumstances where the deceased who was earning Rs. 1,828/- per month was drowned in swimming pool of Mandvi Nagarpalika, this Commission awarded compensation of Rs. 2,50,000/- keeping in view the decision of the National Commission in Shashikant Krishanaji Dole & Anr. v. Shikshana Prasaraka Mandali & Anr. In the instant case, the deceased''s income of Rs. 3,326/- is proved by documents on record. In our opinion, therefore, it would be just and reasonable to award lumpsum compensation of Rs. 3,00,000/- to the complainants i.e. parents of the deceased. The opponent shall be liable to pay this compensation together with interest and cost as stated herein below.

IN the result, we partly allow this complaint and direct opponent No. 1 Sterling Enterprises Limited to pay to the complainants No. 2 and 3, parents of the deceased compensation of Rs. 3,00,000/- together with interest @ 15% p.a. from August 1,1994 till realisation. The said opponent shall also pay to complainant No. 1 Rs. 5,000/- and complainant Nos. 2 and 3 jointly Rs. 2,000/- as costs. The said opponent is directed to comply with this order within one month from the date of this order. Complaint partly allowed.