Niranjan Nath Sharma (Since Deceased) vs Bangalore Mahanagara Palika, Bangalore City

THIS is an unfortunate case wherein a young person, named, Sh. Smruti Ranjan Sharma, died in a Government Swimming Pool, while he was learning to swim. The present complaint has been filed by his father, Dr. Niranjan Nath Sharma (since deceased), and the case is now represented by the LRs of the deceased Dr.Niranjan Nath Sharma, against the Municipal Corporation of Bangalore City and owner of the Corporation Swimming Pool, Jaya Nagar, Bangalore, OP1. OP1, vide lease deed dated 17.12.2004 leased out the said swimming pool to PM Swimming Centre, OP2, on contract basis for a period of 35 years. OP2 has been running the swimming pool on commercial basis by providing swimming and coaching facilities for swimmers and learners. True copy of the lease deed, Ex. C -1 has been placed on record. The said swimming pool was insured with Oriental Insurance Co. Ltd., OP3.

OP 2 used to conduct coaching camps in the said swimming pool and one said camp was held between 02.04.2008 and 22.04.2008. Late Sh. Smruti Ranjan Sharma got registered himself for the said coaching centre on 01.04.2008 vide application for learning swimming and paid the requisite fee of Rs. 2,200/ -. He was admitted for 20 days'' coaching w.e.f. 02.04.2008 between 8.45pm and 9.45pm. (Copies of the application form, fee receipt and I.Card issued by OP2, Exs. C -3, C -4 and C -5, respectively, have been placed on record).

THE deceased was regularly attending the swimming camp. However, on 16.04.2008 due to gross negligence and deficiencies in the service of OP2, Sh.Smruti Ranjan Sharma got drowned in the swimming pool. The swimming pool was quite crowded on that day. However, there were no coaches/ life guards or other employees of OP2, present at the time of the incident and nobody noticed his drowning, except by one Dr.Venkatesh, that too, after some time. No immediate steps were taken by OP2 either to give first aid or to rush the deceased to the hospital. A Doctor (one of the Swimmers present there) gave the necessary first aid and after a long persistence, the deceased was taken to Apollo Hospital for treatment. The deceased kept on mechanical ventilation during his treatment in the said hospital. The family members of Sh. Smruti Ranjan Sharma were not informed. While undergoing treatment in the said Hospital, Sh. Smruti Ranjan Sharma, breathed his last. All records, including that of Apollo Hospital from 16.04.2008 till his death, on 19.04.2008, have been placed on record. The father of the deceased Smruti Ranjan Sharma/ complainant (now deceased) (had spent more than Rs. 5,00,000/ - towards medical expenses at Apollo Hospital for the treatment during the said period. The Post -Mortem report, Death Summary, etc., Ex. C -6 and C -7, respectively, have been placed on the record. A criminal complaint was filed which is still pending. Copies of the criminal complaint, Ex. C -8 has been filed.

SH . Smruiti Ranjan Sharma was employed with CG -Core EI Programmable Solutions Pvt. Ltd., Koramangala, Bangalore, since the past four years. On 01.07.2004, he was appointed as Application Engineer and his services were later given due recognition. At the time to death, he was earning salary of more than Rs. 9,00,000/ - per annum. Copy of the appointment letter with salary structure has been filed as Ex.C -10 (Colly). The deceased was about 27 years'' old at the time of his death. He was the sole bread -winner of the complainant and his family members. The deceased is survived by his father (the complainant, now deceased), a brother and three sisters.

IT is alleged that there is deficiency in service provided by the OPs. Ultimately, this complaint was filed before this Commission, on 29.04.2009, with the following prayers : - "(i) direct the Opposite Parties Nos. 1 to 3 to pay, jointly and severally, a global compensation of a sum of rupees two crores to the complainant for causing untimely death of his son by name Smruthi Ranjan Sharma on account of deficiency in services and gross negligence in running the swimming pool and also for loss of dependency, loss of love and affection, mental agony and anguish, medical expenses and funeral expenses; (ii) grant interest at the rate of 12% on the compensation amount from the date of filing of this complaint till its payment; (iii) grant cost of the proceedings; (iv) pass such other order or further order(s) as may be deemed fit and proper in the facts and circumstances of the case".

THE OP2 enumerated the following defences. The complainant is not a consumer. This case requires thread -bare evidence, cross -examination of witnesses and this Commission which is holding the summary procedure has no jurisdiction to go into the disputed questions of facts. The present complaint is not maintainable. There is no deficiency of service, as alleged.

AGAIN , OP2 is a Corporation registered under the provisions of the Karnataka Municipal Corporation Act. It deals with swimming pools for public at various places in the city of Bangalore. OP1 being a partnership having undertaken a number of projects participated in Tender floated by OP1. It was found to be a successful candidate and was given the list of above said swimming pool. The OP has invested huge sums of money so as to develop it to bring it to high standard International Swimming Pool as the swimming pool in question is located in a very prime locality of the Bangalore city. It received various high quality customers such as CEOs, Doctors, professionals and they used the swimming pool provided by this OP. it is provided with facilities for new customers more particularly, youngsters. Although, the providing of training facility does not bring any sizeable income, as it requires huge investments in the form of providing coaches, trainers and other ancillary facilities. It has appointed best coaches. Elderly persons to the youngsters come to the swimming centre for learning swimming since the year 2001. No complaint was ever received but on the contrary the people applauded the facilities provided at the swimming centre provided by OP2. The son of the complainant was satisfied with the facilities provided there. It is instructed to all the trainees that as and when the training commences, they are strictly to be under the supervision of coaches appointed by the OP2. They are also required to wear safety apparatus provided to each one of them. This procedure was followed by the deceased Sh. Smruti Ranjan Sharma, all the time.

IT is contended that on 16.04.2008, Sh. Smruti Ranjan Sharma, stayed for some time in the swimming centre. He appeared to have become over confident and was carrying out the swimming activity without the aid and assistance of any coach. The coaches had sternly warned him not go to the deep side of the waters without the aid and assistance of the coaches as he was still a trainee. However, on that fateful day, he commenced his training under the Trainer, Sh. V.Natarajan, who was training the deceased, right from 02.04.2008. The deceased Sh. Smruti Ranjan Sharma, was asked to take rest for some time so as to provide him further training. However, the deceased ventured to go into the deep end of the pool, without the aid and assistance of the trainer, namely, Sh.V.Natarajan, which is contrary to the instructions given. When he moved to the deep end of swimming pool, he was not in a position to swim and immediately noticing this, the Trainers and other persons on the site, rushed to the deep end of the swimming pool and brought him out of the water. Unfortunately, Dr. Hegde and Dr. Venkatesh, who were the regular swimmers were present there and the deceased was provided with all the necessary first aid treatment by them. Thereafter, the employees of OP2 called up the nearby Apollo Hospital Ambulance and the deceased was rushed to the Apollo Hospital, where the deceased ultimately passed away, after three days. The complainant, without knowing the factual position, made a wrong publicity at the various TV Channels and thereby brought down the image of the swimming centre run by OP2, due to which, it suffered a huge loss in its business. It is contended that on account of sheer negligence and lack of awareness on the part of the deceased, the accident took place.

IT is also averred that when the Trainee feels tired, the Trainer attends to the other trainees and till the trainer comes back, it is incumbent on the part of the Trainee not to venture to go into deep side of the pool. All other allegations have been denied.

OP 3 has also filed its written statement denying all the allegations. It is contended that its liability is limited only to Rs. 16,00,000/ -, as provided in the insurance policy itself.

AFTER hearing the counsel for the parties at length and after having subjected the evidence on record to a closest scrutiny on record, our findings are as follows. The complainant has placed on record the lease deed pertaining to the year 2004 -05 issued by Bangalore Mahanagar Palika in favour of PM Swimming Centre, OP1, showing OP1 as Lessor and OP2 as Lessee. In this 9 -page composite document, para 4 of the terms and conditions of the lease deed, runs as follows : - "4. The Lessee shall appoint only trained persons who are certified by authorised State or National Body concerned with Swimming as lifeguards and coaching".

THE complainant has also produced policy schedule issued by Oriental Insurance Company Ltd., OP3, Ex.C -2, which clearly mentions that the indemnity limit for one accident is Rs. 16,00,000/ -, but aggregate amount during the policy period is Rs. 48,00,000/ -. Ex. C -3 is the application form for learning swimming. Under the application, issued by PM Swimming Centre, it mentions the name and address of the deceased. Item Nos. 5 and 6 of the said application, run as follows : - 5. Whether interested in Participating further Training programme Yes 6. Are you suffering from any ailments Fits/Epilepsy/Skin Diseases/ any contagious diseases Heart Problems If any other problems In case of emergencies whom to contact : Name: Shivajee 9880602551 No No No No

THERE are rules and regulations and code of conduct appended at the foot of this document, of which, rule No.(11) is relevant, which mentions (i) the applicants are required to wear swimming costume and cap. Ex. C -4 is the fee receipt in the sum of Rs. 2,200/ - issued by PM Swimming Pool. Diving is strictly prohibited. Backside of Ex.C -4. Ex. C -5 is the photocopy of identity card. Ex. C -6 is the admission card from Appollo Hospital and treatment / progress notes running into various pages. Ex.C -8 is the FIR, Ex. C -9 (colly) are the newspaper reports. Ex. C -10 (colly) are the education certificates of the deceased and his appointment letter, salary certificate, etc. Ex. C -11 (colly) are the income tax returns and copy of the legal notice.

THE case of the complainant is further supported by the affidavit of the Shivajee Rao, who is the second son of the complainant and brother of deceased Smruti Ranjan Sharma. There is another affidavit of one Sh. Sudarshan. He contended that he is aware of all the facts of this case. Para No.6 of his affidavit evidence is germane to the present controversy and is reproduced here, as under : "6. That after taking admission as above, I was regularly attending the swimming camp. The deceased Smruti Ranjan Sharma also used to attend the swimming camp regularly. However, on 16 -4 -2008, during one such coaching class, deceased Smruti Ranjan Sharma got drowned in the swimming pool. His drowning was neither noticed by the coach Nataraj nor any other personnel of the swimming pool. The drowning of deceased Smruti Ranjan Sharma was first noticed by one of our co -swimmer Dr. Venkatesh, that too, after fifteen minutes. Even though the said swimming Pool is most the time quite crowded, the Opposite party No.2 does not have sufficient number of coaches and life guards employed. The learners and new swimmers, most of the time, are left unattended and are forced to learn swimming on their own since only one coach is available and it is not possible for him either coach or control or manage the swimmers and learners in the pool. It is the primary duty of Opposite Party No. 2 and his employees including coaches and lifeguards to be present in sufficient numbers and they are required to be highly vigilant to safeguard and protect the lives of learners during the coaching camps and also of other swimmers who use the swimming pool. On 16 -4 -2008, due to inadequacy of the above said facility, the said incident of drowning by deceased Smruti Ranjan Sharma occurred. I was present in the pool at that time and I am an eye -witness to the said incident. I state with conviction and confidence that the drowning of deceased Smruti Ranjan Sharma was entirely due to gross negligence and deficiencies in the service on the part of Opposite Party No.2".

NO application was moved to put interrogatories upon this significant witness, whose evidence carries infinite value. We have also perused the inquest panchnama. The statement recorded by the police department, of one Mr. Yogendra Kumar, is partly relevant. This is reproduced as follows : - "As usual, on 16.04.2008, when he went to the night batch for swimming, he drowned in the water and later the coach and others pulled him out of the water and gave him first aid and took him for further treatment to Apollo Hospital, Bannerghatta road. He was in the MICU ward undergoing treatment and on 19.04.2008 having failed to respond to the treatment has breathed his last. Smruti Ranjan Sharma who had recently joined to learn swimming, having drowned while learning from a coach on 16.04.2008 in the swimming pool is only because of the carelessness and irresponsibility of the coach, cause of which he was admitted to the hospital and died as he could not get well".

STATEMENTS of other witnesses were also recorded and are placed on record.

COUNSEL for the OP2 submits that a criminal case was pending and is still continuing. She contended that the complainant''s allegation that no coaches were present is false. The evidence on record clearly goes to show that Sh. V. Natarajan was there at the spot. She explained that the accident occurred due to negligence of the deceased. He should not have swum in the pool without help of Guard. Moreover, it is the condition that the trainee swimmer will not dive into the pool, without the supervision of the Trainer. He was required to wear the swim costume and cap. He should not have taken the plunge without taking the life guards.

WE find force in a measure in her arguments. It must be borne in mind that a fresh swimmer is always a novice/ neophyte. He always requires training from the expert persons. He is not aware of, as to how to come out of the crisis. In absence of any expert, any mishap is likely to happen. That is why, for fresh swimmers, various training centres for swimming have come up. The people spend considerable amount to learn swimming. They are not supposed to put their lives in jeopardy because of lack of trainers and requisite facilities.

IT must be borne in mind that Sh.V. Natarajan is helming the whole case. He is the star witness. He is the backbone of OP''s case. It is surprising to note that his affidavit did not see the light of the day. In his absence, the case of the OP evanesces. It is difficult to fathom, why did the OP prefer to bury its head in the sand. The production of the affidavit of Sh.V. Natarajan would have gone a long way to elicit the real picture. There is not even an iota of evidence to reveal what were his antecedents'' As already noted, the lease deed, para No.4, requires in no uncertain terms, that the trainers must carry the certificate by the authorized state or national body concerned, with swimming as life guards and coaches. The weakness of the OP2''s case is further actuated by this shortcoming.

IT is also surprising to note that, although, there was a big crowd, there were swimmers, both trained and untrained. The evidence on record reveals that only one Expert, Sh. V. Natarajan, the coach, was present there. It is difficult for one coach to control the entire pool. It is well settled that love of money is the root cause of all evil. In order to save money the OP2 did not either provide the experts or life guards or a qualified doctor. If it cannot keep a qualified doctor permanently, it should have bond with him who could be available at its beck and call. Unfortunately, OP No.2 could not name a doctor or emergency doctor appointed for this purpose. Though some negligence on the part of the deceased is quite visible, yet, it was quite probable. He was getting the training and he should have been given the extra protection. The production of the affidavit of Sh.V.Natarajan would have gone a long way to throw light if the deceased took a dive, in the swim suit along with cap at that time, or whether, Sh. V. Natarajan was present there or not.

THE OP admits that the deceased always followed the procedure. From the evidence, it appears that Mr. V.Natarajan was not even present at the spot during the relevant period. He might be near/around the pool, he might be taking tea or having some conversation with some other people, or he might have gone to the green room. The clear picture does not emerge, without the examination of Sh. V. Natarajan. It is but clear that when it was time to act, he had another fish to fly. OP2, as a whole, has committed an egregious mistake.

NONE has appeared for the Bangalore Mahanagar Palika, Bangalore City, OP1, despite service. Record reveals that AD card has been received back from OP1, after service of notice. It appears that they have no concern with this case. The entire case puts a veil of suspicion over their bonafides. It is not understood, why did they give the lease for a long period of 35 years''. They have not even cared to appear before this Commission. There is not even an iota of evidence which may go to show that they have ever checked the omissions and commissions of OP2. They have never bothered to see whether, all the terms and conditions of the lease deed were complied with. They do not care a fig for the swimmers. They have supervised the proceedings in a ''happy -go -lucky'' manner. It is clear that they are working in cahoots with OP2. They are so negligent that they did not bother to appear in this case to know what is the fate of this case. They cannot wriggle out of the liability. They should have granted the lease deed for a year or two. They should have seen, whether, the terms and conditions are being followed or not. They should have produced before us the Register, maintained by them depicting that safety measures were being taken by OP2. They cannot get rid of vicarious liability.

THE counsel for the complainant has cited two cases of this Commission, titled Smt. Mamta Ajmani and Ors. Vs. New Delhi Young Men''s Christian Association and Anr., FA No. 249 of 2009, decided on 16.04.2010, and Tagore Hospital and Anr. Vs. Harnam Singh and Anr., FA No. 312 and 337 of 2002, decided on 04.01.2008 in order to buttress his case. It must be remembered that criminal negligence and civil negligence (torts, etc.) are of different kinds. The proof of civil negligence would not ipso facto prove the criminal negligence. The matter is pending with the criminal court and it is expected that it will decide the case as per the facts and circumstances of that case only.

IN the written submissions, the complainant has given the Memo of Calculation for arriving at a global compensation of Rs. 2.00 crores, as under : - I. Loss of Future income / loss of estate Rs. 1,98,00,000/ - II. Mental Shock and Agony Rs. 10,00,000/ - III. Loss of love and affection Rs. 10,00,000/ - IV. Medical expenses Rs. 5,00,000/ - V. Funeral expenses Rs. 25,000/ - TOTAL Rs. 2,23,25,000/ -

THE said amount appears to be almost correct. We consider that a total amount of Rs. 2.00 crores (Rupees Two Crores only) is adequate. We, therefore, direct the insurance company/OP3, to pay a sum of Rs. 16,00,000/ - to the complainant/LRs out of the total amount of Rs. 2.00 crores. OP1 will pay Rs. 50.00 lakhs to the complainants/LRs, out of the total Rs. 2.00 crores, as their liability is limited upto that extent only. Rest of the amount in the sum of Rs. 1,34,00,000/ - (Rupees One Crore Thirty -four Lakhs only) be paid to the Complainants/LRs, by OP2. All the OPs i.e., 1 to 3, shall pay their respective amounts to the complainants/LRs, within 90 days'' from the date of receipt of this order, otherwise, the same will carry interest @ 12% p.a. from the expiry of said 90 days'', till their realization.

HOWEVER , it is made clear that this amount of Rs. 2.00 crores is to be divided between the LRs of the deceased Sh. Smruti Ranjan Sharma, in equal proportions. The first LR, Sh. Shivajee Rao, is directed to file the list of all the LRs with their addresses and mobile phone numbers, before the Registrar of the National Commission, New Delhi. Registrar, National Commission, is directed to disburse the said total amount, in equal proportions, in favour of all the LRs, through Demand Drafts.