Louis Caitano Rodrigues vs Brihanmumbai Kreeda Ani Lalitkala Pratisthan

THE complainant retired from active life as taxi driver. O.P. No. 1 is a Registered Trust Known as ''Brihanmumbai Krida Ani Lalitkala Pratisthan, Brihanmumbai Mahanagar Palika Shahji Raje Bhosale Kreeda Sankul. O.P. No. 2 is the Managing Trustee of the Trust. O.P. No. 3 is the Member of the Committee In -charge of the Trust and O.P. No. 4 is the Swimming Instructor and Lifeguard appointed by the Trust.

THE O.P. No. 1 has its Swimming Pool at Andheri (West), Mumbai. O.Ps. enrolled the members for the purpose of swimming and also give admission to the public to the Swimming Pool as per Rules and Regulations of the Swimming Pool. Francis, the son of the complainant was given admission for monthly course for beginners/swimmers. Francis paid Rs. 400 to the O.P. towards entrance fee, instructions fee and monthly fee for the monthly course commencing from 4th June, 1997. The said course actually started on 5th June, 1997. Francis was a beginner. On 20.6.1997 at about 8.00 p.m. he reported his presence to O.P. No. 4, who was on duty at the Swimming Pool. O.P. No. 4 instructed Francis to swim in the Pool. However, O.P. No. 4 without informing Francis left the place. Francis jumped into the water under impression that Lifeguard was nearby. Francis was swimming in shallow water. Francis all of a sudden started drowning and shouted for help. O.P. No. 4 was too late to arrive at the Pool side. Meanwhile, Francis made struggle for his life in the water. Francis was taken out of water. The jaw of Francis was found locked. Yellowish forth was coming out from his mouth. Francis was taken to Cooper Hospital in a private car. In the Hospital Francis was declared dead. It is the case of the complainant that because of negligence on the part of the Swimming Instructor and Lifeguard, Francis, a young boy of 24 years lost his life. Francis was only son of the complainant. The O.Ps. refused to admit their lapse and turned down the claim for compensation. Therefore, the complainant filed consumer complaint for grant of compenstion of Rs. 10 lakhs.

THE O.Ps. filed common written statement and thereby resisted the complaint filed by the complainant. It is denied by the O.Ps. that there was any deficiency or negligence on their part. It is contended by them that all possible help in time was given to Francis. Accoring to them it was an unfortunate accident. The O.Ps. have also raised serious objection to the maintainability of the complaint on the ground that the complainant is not a consumer. The O.Ps. have also contended that the amount of compensation claimed by the complainant in the complaint is exorbitant.

BOTH the contesting parties have placed on record their respective evidence in the form of affidavits. We heard learned Advocate Mr. H.H. Trivedi for the complainant and learned Advocate Mrs. A.P. Purav for O.Ps. at length. We carefully perused the documentary evidence. Whether complaint filed by the complainant is maintainable under Consumer Protection Act, 1986? Before going to the issue of negligence, we propse to take up the issue with regard to maintainability of the complaint. It is contention of the O.Ps. that they had provided swimming facility to the public. This facility of swimming is not a service. Therefore, the complainant is not a consumer. The challenge to the maintainability of the complaint does not appeal to us. The Swimming Pool belongs to the Corporation. The Corporation has provided a swimming facility to the public at large. The swimming facility is not provided free of charge. In this particular case Rs. 400 were paid as fees by Francis. The payment of Rs. 400 is the consideration for swimming facility provided by the O.Ps. The facility is one kind of service. Calling service by different name does not change the real position. In our view, Corporation has provided service for which deceased Francis had paid Rs. 400 by way of consideration. Therefore, the father of deceased Francis can file a consumer complaint for grant of compensation for defective service. We hold that the complaint filed by the complainant is a consumer complaint which falls within the ambit of Consumer Protection Act, 1986. Factual Matrix

FRANCIS reported for swimming on 20.6.1997 for batch commencing from 8.00 p.m. with his friend. Francis started taking lessons in swimming since 5.6.1997. The unfortunate incident occurred on 20.6.1997 at 8.40 p.m. Francis had not acquired the skill of swimming. He was just a beginner. He died while swimming. He was struggling in water. He was in swallow water. He shouted for help. It is a fact that O.P. No. 4 and others dived into the water and took Francis out of water. Artificial respiration was given to him. It is not disputed that initially Francis was tried to be admitted in the Hospital by Ambulance, which could not start for 7 to 8 minutes. By private car, Francis was taken to Cooper Hospital at 9.05 p.m. However, before giving any treatmet Francis was declared dead.

SALMAN Shaikh, Santosh Adsule, Santosh Parkar, Rajan Gaikwad, Dilip Karekar and O.P. No. 4 Satish Nimbalkar are the Lifeguards, who were present at the time of mishap at the Swimming Pool. O.P. No. 4 Satish Nimbalkar and Salman Shaikh dived into the water when Francis was struggling in the water and was taken out of the water. During the course of investigation, the Investigating Officer recorded statements of all the Lifeguards and friend of deceased Francis. Some of the Lifeguards have also filed their affidavits. It is revealed from the first disclosure of the Lifeguards to the Investigating Officer that Vinod Padwalkar, the instructor under whom deceased Francis was taking training was on leave on 20.6.1997. In absence of Vinod Padwalkar, Francis and his friend were kept under O.P. No. 4. O.P. No. 4 asked the Francis to swim in the shallow water and left the place. It is admitted fact that O.P. No. 4 was engaged in giving training to other trainees. Francis asked O.P. No. 4 as to whether he could swim without life jacket. O.P. No. 4 allowed him to swim into the water without life jacket. From the statement of Shrijit Mayalipron, the friend of Francis, it is seen that Francis after completing one round shouted for help. He called O.P. No. 4 for help. Thereafter, O.P. No. 4 jumped into the water and took Francis out of the water. It appears that Francis after one round was exhausted and, therefore, he shouted for help. He was not kept under vigilant eye. No body assessed probable mishap. From the material placed on record, deficiency of negligence can be attributed to the O.Ps. What is the minimum care required to be taken at the Swimming Pool?

THE Royal Life Saving Society (RLSS) is one of the largest water safety and life saving education organisations in the world, being active in 40 countries. The life saving movement began in England in 1891 as a means of overcoming the considerable loss of life due to drowning. In 1924 the Society was granted a Royal Charter by King George V and a Supplemental Charter was granted by Queen Elizabeth II in 1959. In 1992, Lifeguarding Manual was produced. It provided a valuable text for lifeguards. It is now recognised that those who are responsible for patrolling in a locality, be it beach, pool, lake or river, require additional skills and knowledge over and above those required by the general lifesaver. It is Societys recommendation that all lifeguards, both professional and volunteer, should possess a current Lifeguards Award specific to their work/patrol environment. The training to the lifeguards should include observations, emergency action skills, the use of specialised equipment such as oxygen resuscitation equipment, and any other, which they are required to operate. Regular training will reveal the hazards and features relevant to specific environments and increase knowledge of operational procedure and the emergency action plan. While on duty, lifeguards must show skilled performance, physical capabilities, knowledge, understanding of potential emergencies, appropriate procedures and good judgment. As lifesavers, they are trained to react to various aquatic emergency situations. The lifeguards primary responsibility is to take steps to prevent accident. The lifeguard should be dressed in appropriate clothing so as to be easily recognizable to the public and instantly ready for action. The lifeguard should wear a bathing costume with shorts or skirts, closed toe footwear for protection and to permit safe mobility poolside and a lifeguard shirt. The shirt be properly labelled with word ''LIFEGUARD'', ensuring easy identification. The lifeguard must know how aquatic accidents occur - when, where, why and to whom - so that they have the necessary understanding to prevent accidents. [Emphasis supplied] These are the common reasons why Swimming Pool accident occurs: (1) Improperly designed or constructed pool; (2) Failure to secure pool from small children; (3) Failure to maintain pool in safe condition; (4) Lack of lifeguards; (5) Lack of safety equipments; (6) Inadequate warnings; (7) Absent of easy readable marking and; (8) Lack of safety covers. Whether negligence is established?

FROM examination of documents and evidence, we come to the conclusion that the sufficient number of Lifeguards were not present at the Poolside. Vinod Padwalkar was on leave. No substitute Lifeguard was provided in his place. No specific Instructor was given to the trainess to whom Vinod Padwalkar was supposed to give training. Francis was a learner. He was allowed to swim in the water in absence of Instructor without life jacket. O.P. No. 4 should not have allowed Francis to swim in the pool water without life jacket. No Lifeguard was present near the swallow water when Francis was in dire need of assistance. No body had visualised well in advance that Francis would require assistance. Francis a beginner was not kept under constant surveillance. When Francis was taken out of water, considerable damage was already done to him in absence of timely help. Shreeji Mayalipron, the friend of deceased Francis was the first person who noticed that Francis was struggling and shouted for help. There is nothing placed on record to show as to whether really the Lifeguards had required training. Taking into consideration the totality of circumstances referred to above we are of the clear opinion that there was negligence on the part of the O.Ps. Because of negligence of O.Ps. Franics lost his life. Negligence of any degree amounts to deficiency in service. Quantum of compensation This takes us to consider the quantum of compensation to be awarded to the complainant. A certificate dated 24th November, 1997 issued by employer of deceased Francis is placed on record to show that the monthly consolidated emoluments of Francis was to the tune of Rs. 6,500 per month. Francis joined as Office Boy in November 1989 and was drawing Rs. 600 per month then. During passage of time, he became Consulate Co -ordinating Executive. The O.Ps. have raised serious objections for the quantum of monthly salary of deceased Francis. The affidavit of employer of Francis is not placed on record. Francis was graduate. We, therefore, take up the monthly salary of Francis to the tune of Rs. 5,000 per month. At this rate, the yearly income of deceased Francis was Rs. 60,000. According to the learned Advocate Mr. Trivedi the appropriate multiplier would be 18. On the other hand, it is tried to be argued that the 18 multiplier would be on the higer side.

IN the case of General Manager, Kerala State Road Transport Corporation v. Susamma Thomas and Ors., I (1994) ACC 346 (SC)=1994 ACJ 1, the Supreme Court has observed that multiplier method is the appropriate method for calculating just compensation. The choice of multiplier is determined by the two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant, whichever is higher, the ascertainment of the multiplicand is a more difficut exercise. In the said case the Supreme Court has held that the appropriate multiplier can be upto 16 years.

IN the case of U.P. State Road Transport Corporation and Ors. v. Trilok Chandra & Ors., I (1996) ACC 592=1996 ACJ 831, the Supreme Court has held that the multiplier cannot exceed 18 years. On the date of filing of the complaint, the complainant who happens to be father of deceased Francis was 62 years. The mother of Francis was 55 years of age. Francis died at the age of 24 years. Taking into consideration the age of deceased Francis and the age of his parents, we propose to adopt multiplier of 10 years. Francis would have spent 1/3rd amount of his monthly income on himself. The monthly loss of dependency, therefore, would come to Rs. 3,334. Thus yearly loss of dependency would come to Rs. 40,008. Therefore, the amount of loss of dependency would come to Rs. 4,00,080. In the result, we pass following order : ORDER 1. The complaint filed by the complainant is partly allowed. 2. O.P. Nos. 1 to 3 are hereby directed to pay compensation of Rs. 4,00,080 to the complainant together with interest @ 6% p.a. from the date of accident i.e., 20.6.1997 till the date of realisation. 3. O.P. Nos. 1 to 3 are further directed to pay Rs. 3,000 to the complainant by way of cost of the proceeding. 4. Copies of the order be furnished to the parties. Complaint partly allowed.