Govind And Ors. vs PRADEEP

THIS revision petition is directed against the order of Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (in short, "State Commission") dated 19.9.2014 whereby State Commission allowed the appeal No. 658/2010 preferred by the respondent/opposite party, set aside the order of the District forum granting compensation to the petitioner/complainant and dismissed the complaint.

BRIEFLY put facts relevant for the disposal of revision petition are that the minor son of the petitioners/complainants was found dead at the swimming pool being run by the respondent/opposite party. The case of the petitioners in the consumer complaint is that the respondent is guilty of deficiency in service in not taking proper precaution which resulted in the death of son of the petitioners due to drowning. The respondent opposite party in its written statement denied the allegations of the petitioner on merits. It was also pleaded that deceased is not a consumer qua the opposite party.

DISTRICT Forum on appraisal of the evidence, allowed the complaint and directed to the respondent/opposite party to pay to the petitioner a sum of Rs. 1 lakh as compensation alongwith 9% interest thereon w.e.f. 14.8.2009. Besides, compensation of Rs. 5,000/ - was awarded.

BEING aggrieved of the order of the District Forum, the respondent approached the State Commission in appeal and the State Commission vide its impugned order, allowed the appeal and dismissed the complaint. The relevant observation of the State Commission are reproduced as under: "We thus heard the counsel for both side and perused the record. It is seen from the record that Janardhan was child of 11 years studying in 2nd std. It is the contention of complainant that he was knowing the swimming and that he was visiting the Ashtvinayak Swimming pool regularly. But no document to that effect is produced on record to prove the fact. Even no receipt of any fee paid by Janardhan on the fateful day of his death is produced on record. Therefore, there is no relationship as consumer and service provider between the appellant and deceased Janardhan. In the P.M. report also, there is no water shown in the stomach of the deceased Janardhan. Therefore, cause of death is doubtful. As the case of drowning was not proved by any evidence, in our view, the appellant cannot be held liable for the death of Janardhan due to drowning in swimming pool. Even otherwise, appellant is a Chairman of the trust who runs swimming pool. Therefore, he could not be held liable for sad demise of Janardhan. It has also mentioned in the complaint that Janardhan was missing from 17.5.2009 and till 24.5.2009 his parents could not get the knowledge of his whereabouts. The dead body was found in the swimming pool and there is no evidence that death of Janardhan had not caused due to drowning. In our view, District Forum did not appreciate the facts and evidence in proper perspective. The order passed by forum has no foundation. It suffers illegality and infirmity. Therefore, it requires to be quashed and set aside. Hence, the following order:

The appeal is allowed. The judgment and order passed by the forum is hereby quashed and set aside. The complaint stands dismissed. No order as to cost."

Learned counsel for the petitioner has contended that the State Commission has committed a grave error in failing to appreciate that the deceased child was a consumer because he used to avail the services of the opposite party i.e. using swimming pool under the guidance of the coach in consideration of Rs. 20/ - per house. In support of this contention, learned counsel for the petitioner has drawn my attention to para 2 of the complaint which is reproduced as under: "2. The complainant had a son, Janardhan, he was learning in second standard in Bharat Primary School at Latur in the year 2008 -2009 and was qualified for the standard 3. He was intelligent and all -rounder and a swimmer also. He used to swim on holiday and as and when possible in the Ashta Vinayak Swimming Pool by paying Rs. 20/ - for one hour of swimming under the guidance of a coach."

THE above contention of the petitioner is misconceived. It is well settled that in a consumer complaint initial onus of proving the relationship of consumer and service provider is on the complainant. No doubt in para 2, the petitioners have alleged that the deceased child used to swim in the swimming pool of the opposite party on holidays as and when possible by paying Rs. 20/ - per hour. This, however, is only an allegation but no cogent evidence to prove the aforesaid plea has been adduced. Otherwise also, the allegation in para 2 is a vague plea and it does not specifically contend that on the relevant date, the deceased child had availed of the swimming pool facility by paying Rs. 20/ - as consideration. Thus, it is obvious that the petitioners have failed to establish that the deceased had availed of services of the opposite party for using the swimming pool under the guidance of coach by paying some consideration. Therefore, the finding of the State Commission that there is no relationship of consumer and service provider between the parties cannot be faulted.

EVEN if it is assumed for the sake of argument that there was a relationship of consumer and service provider between the parties, then also, in order to succeed in the complaint, it was incumbent upon the petitioners to prove that their son died due to drowning in swimming pool due to negligence on the part of the opposite party. In this regard, the post mortem report of the deceased is relevant. On perusal of the post mortem report, it transpires that the opinion regarding cause of death of child was withheld till the examination of viscera. Had the child died due to drowning, the doctor conducting the post mortem without waiting for the viscera examination report, would have given opinion in the post mortem report. Thus, even the cause of death of child is not established in this case. Merely because the dead body of child was found at the swimming pool, it cannot be said that the child died due to drowning. Thus, on this count also, petitioners have failed to establish deficiency in service on the part of the opposite party. As such, impugned order of the State Commission cannot be faulted. In view of the discussion above, petitioners have failed to show any material irregularity or jurisdictional error in the impugned order which may call for interference by this Commission in exercise of revisional jurisdiction. Revision petition is therefore, dismissed with no order as to cost.