S. ABDUL AZEEZ vs Municipal Corporation of Hyderabad

THE brief facts as set out in the complaint are that the complainant''s son, S. Abdul Hameed, aged 23 years, a graduate undergoing ''A'' level Post Graduate Diploma in Computers at Vivekananda School of Post Graduate Studies paid an amount of Rs. 250/- towards swimming pool fees to opposite party No. 1 on 7.4.2000 together with an application bearing No. 1879. Opposite party No. 2 issued an identity card according to which the validity was upto 30.4.2000 and the timings allotted to the complainant''s son was between 4.00 p.m. to 5.00 p.m. every day. In the application form dated 7.4.2000 it was mentioned in column 9 that the applicant was a swimmer. THE complainant mentions here that his son is only a beginner and has begun to learn swimming and by oversight he stated that he is a swimmer. It is submitted that on 19.4.2000 at about 3.30 p.m. he left to the swimming pool and failed to return home. THE complainant and his wife were out of town and his other son informed Malkajgiri Police Station but no complaint was registered. On 20.4.2000 at about 11.30 a.m. the complainant was informed that his younger son drowned in the swimming pool on 19.4.2000 itself but was detected only at about 6.15 a.m. on 20.4.2000. THE complainant''s son was taken to Gandhi Hospital at 6.45 a.m., he was declared dead and post mortem was also conducted. Opposite party No. 2 registered a complaint with the police under F.I.R. No. 84/2000. THE complainant submits that according to the F.I.R., one Mr. G. Ummesh, Incharge of M.C.H. Swimming Pool complained to the police at about 6.00 a.m. as at about 6.00 a.m. one of the members of the swimming pool informed to Mr. Narasimha, a coach that a body was found in the deep water. Immediately the body was brought out of the pool and rushed to Gandhi Hospital.

THE complainant submits that the opposite parties did not provide experienced and vigilant swimmers and the complainant reiterates that his younger son is only a beginner and not a regular swimmer and that by oversight he filled in the application form stating that he is a swimmer. It is the duty of the opposite parties to observe whether the complainant''s son had come out of the swimming pool after his time was completed by 5.00 p.m. Even at the time of closing of the pool, no efforts have been made by the authorities to check whether the candidates have left the pool with their belongings. THE opposite parties have to maintain the water in a crystal clear manner and even if a small object is lying under the water, it should be visible. THE complainant submits that there is no justification as to why none of the coaches or other officials failed to observe the body of the deceased till the next day. THEre are flood lights from four sides of the pool and unless the swimming pool is badly maintained and the water is muddy and unclear it is impossible for any coach to miss the body of any swimmer. THE letter dated 6.4.2000 addressed by the complainant''s son to the Director of Vivekananda School of Post Graduate Studies requesting for issue of bona fide certificate clearly reveals his intention to join the pool for learning swimming. THE complainant further submits that the bright prospectus of his younger son have been nipped in the bud because of the sheer negligence on the part of the opposite party improperly maintaining the swimming pool with the skilled coaches. THE entire family has been put to severe mental agony and hardship which cannot be measured in monetary terms. THE complainant submits that the opposite parties have committed an act of deficiency of service due to which he lost his son and, therefore, seeks direction to the opposite parties to pay compensation of Rs. 19,50,000/- together with costs of Rs. 10,000/- and other reliefs. The opposite parties filed counter admitting that the complainant''s son joined the swimming pool as a member and paid the prescribed fee and was issued the identity card and the same was valid upto 30.4.2000. It is also submitted that the complainant''s son was allotted timings between 4.00 p.m. and 5.00 p.m. and that in the application form in Column 9 it was mentioned that the complainant''s son was a swimmer and not a beginner and the identity card was issued based upon the particulars mentioned in the application form. It is not correct to state that erroneously it was ticked as ''swimmer''. There is a separate part in the swimming pool meant for beginners where more attention is paid for the learners whereas the swimmers will be in the separate section where they will not have the same attention as that of the learners. It is also submitted that the beginners are restricted to an initial depth of 4-5 feet and the rest of the pool arena is meant for swimmers distinct by ropes. The allegation that the complainant''s son was only a beginner and was allowed to enter into the swimmers arena due to negligence of coaches is denied. Opposite parties further submit that they will provide their members with quality coaching and all care and caution is taken to safeguard the interest of the learners and swimmers and pure water was maintained in the swimming pool by spraying best quality chemicals necessary for the maintenance of hygiene and transparency of water in the pool. The pool has also provided with shelves for keeping the clothes and other belongings of its members and all the members are instructed to place their belongings and clothes in these shelves only. But unfortunately on that day, the complainant''s son choose to keep his belongings including his clothes in a bush in the backyard of the swimming pool instead of the shelves provided and, therefore, the swimming pool authorities could not locate the belongings in time. They also submit that though the actual schedule time of the deceased is 4.00 to 5.00 p.m., on that day, he was accommodated as per his request in the time schedule of 6.00 to 7.00 p.m. and added to that there was a power failure due to which there was no way to locate the body of the deceased on 19.4.2000 itself. Regarding the parking of motor cycle, the opposite parties submit that keeping of the vehicle in the parking area will not give raise to any suspicion to the staff since on a number of occasions due to mechanical break down members leave their vehicles and pick up the next day. Opposite parties submit that there is no failure on their part and they have taken proper safety measures and deny that there was any deficiency of service on their behalf which resulted in the premature death of the boy and, therefore, sought dismissal of the complaint.

Opposite parties filed additional counter contending that the complainant is not a ''consumer'' and hence the C.D. filed under the provisions of C.P. Act is not maintainable and hence sought dismissal of the complaint. The amount of Rs. 250/- collected by the opposite party is only an entrance fee/application fee but not consideration for any service, hence the complainant is not a ''consumer''. In the application dated 7.4.2000 itself the deceased has declared that the M.C.H. cannot be held responsible for any incident or accident while the applicant''s son undergo swimming and the doctor who conducted post-mortem has stated in his report dated 20.4.2000 that the cause of death is ''drowning associated with cervical spine injury. Hence it is clear that the deceased suffered from cervical spine injury while he was in the pool and because of that he drowned and died and not due to any negligence on the part of opposite parties.

THE complainant filed his affidavit reiterating the same contentions as mentioned in the complaint and the opposite parties also filed evidence affidavit reiterating the same contentions as mentioned in the counter. THE complainant marked Exs. A1 to A15 and opposite parties marked Exs. B1 and B5. The point for consideration is whether there is deficiency of service on behalf of the opposite parties and if the complainant is entitled to any relief sought for in the complaint?

THE facts not in dispute are that the opposite parties collected an amount of Rs. 250/- from the complainant''s son for admission to undergo swimming on 7.4.2000 and the same was valid upto 30.4.2000. It is also not disputed that the son of the complainant was allotted time between 4.00 to 5.00 p.m. every day and that on 20.4.2000 the body of the deceased/son of the complainant was noticed and the same was reported to Mahankali Police Station. Ex. A1 is the application for admission given by the son of the complainant wherein he mentioned that he was a swimmer. Ex. A3 is the receipt issued by M.C.H. for Rs. 250/-. Ex. A4 is rules and regulations on admission card. Ex. A5 is F.I.R. and Ex. A6 is investigation report. Ex. A14 is the Post Mortem Certificate wherein it is mentioned that the cause of death is due to drowning associated with cervical spine injury. Ex. A15 is the charge sheet/final report wherein it is stated that death is due to accidental drowning. We have gone through Exs. B1 to B5 which include the F.I.R. and post mortem certificates and also the identity card. The contention of the opposite parties herein is that any payment of token amount for registration or application or admission or entrance purpose cannot be considered as service rendered by the Government body to its beneficiaries are not in the nature which can be compared to that of consumer. The Counsel for the opposite parties drew our attention to a National Commission judgment reported in 1996 (1) CPR 136, in which it was held that ''Services rendered by Government body to its beneficiaries cannot be compared to that of a consumer''. The opposite party is a Municipal Corporation which is a local Government body and hence the complaint is not maintainable. He also relied on a National Commission judgment in III (2003) CPJ 72 (NC) and IV (2003) CPJ 97, wherein it was held that statutory function exercised is not service for consideration and does not fall within the purview of Consumer Protection Act. The Counsel for the opposite parties submitted that they are governed by the bye-laws issued in exercise of the powers conferred under Section 586 of Hyderabad Municipal Corporation Act, 1955 namely: "MCH Bye-laws relating to the regulation of the use of swimming pools belong to the MCH, 1979", vide G.O.M.S. No. 31, Housing Municipal Administration and Urban Development Department, dated 2.1.1980. Bye-law No. 18 categorically states that: "The Commissioner or delegatee shall not be responsible for any accident, injury or loss of life caused in the premises of the swimming pool". The deceased who was educated and was 23 years old, himself declared in his application date 7.4.2000 that he shall abide by the bye-laws of MCH Swimming Pool and MCH not to be held responsible for any accident while undergoing swimming and hence the complaint is liable to be dismissed."

THE opposite parties'' contention is that the complainant''s son declared himself as a swimmer in the application form and the complainant cannot take the stand now that he was only a beginner and not a swimmer and the contention of the opposite parties is that it is categorically stated in the identity card at column 10 that the swimmers shall swim at their own risk. THE deceased admittedly died due to cervical spine injury and consequent drowning as per post mortem dated 20.4.2000. THErefore, the complainant''s son died due to his own negligence and there is no deficiency of service on behalf of the opposite parties.

THE opposite parties further contended that the complainant is not a ''consumer''. This does not hold good in the instant case. It is held by the Apex Court in III (1993) CPJ 7 (SC), in Lucknow Development Authority v. M.K. Gupta, that ''activities carried on by private or statutory body is ''service'' within the meaning of C.P. Act, 1986''. The complainant''s son on 19.4.2000 admittedly swam in the opposite parties swimming pool and did not return home. In the early hours of 20.4.2000 his body was discovered by the swimming pool authorities and they registered a F.I.R. Though the opposite parties contend that the beginners and swimmers have separate sections for swimming, having collected the consideration for running the service of ''swimming'' it is the duty of the opposite parties to provide experienced and vigilant coaches and also lifeguards for learners as well as swimmers. Even for argument sake, if the complainant''s son had not been a beginner, still it is pertinent to note that any accident can happen at any time in the pool and lifeguards should be present to aid and assist the swimmers in the event of any such unforeseen or unfortunate accident. It goes without saying that first aid kids together with experienced coaches and guides should be present during the timings offered by the opposite parties for swimming lessons in the pool. It is significant to note that even at the time of closing of pool, no efforts have been made by the swimming pool authorities to check if there was any swimmer or beginner left behind in the pool. Opposite parties in their counter mentioned that the complainant''s son had placed his cloths in the bushes and not in the locker and, therefore, it became difficult for them to detect if anyone was left behind. Even in such an event the opposite parties should have checked the premises completely before closing the pool. It is a matter of common knowledge that even late in the evening flood lights are switched on and the pool is generally well lit to aid the swimmers and prevent accidents. Opposite parties should have thoroughly checked their premises before closing the pool. Except for the contention that as per the bye-law and Clause No. 10 ''the swimmers should swim at their own risk''; and that the deceased died due to cervical spine injury and not due to any negligence on their behalf, the opposite parties did not adduce any evidence to prove that they took all care and caution inspite of which such an accident occurred. The opposite parties cannot take umbrage under the clause that ''swimmers can swim at their own risk'' when they have collected fee and issued identity card and allotted timings, it is their primary responsibility to provide the necessary facilities like experienced coaches, life guards, first aid etc. to assist both beginners and swimmers. It was not until the next day morning that the body of the deceased was found they could detect that such an incident took place at all. The deceased was only 23 years old and had a bright and promising future having completed his B. Com. degree and undergoing ''A'' level post graduate diploma course in computers.

The complainant claims compensation of Rs. 19,50,000/- but has not stated any grounds/details as to how he arrived at that amount. No details have been furnished. Except for mentioning that the family has been put to agony which cannot be measured and, therefore, he is entitled to the claim of Rs. 19,50,000/-.

KEEPING the facts and circumstances of the case in view, we are of the opinion that there is deficiency of service on behalf of the opposite parties and we feel it a fit case to award compensation for the mental agony suffered by the parents of the deceased who was young and had a bright future. We feel it would meet the ends of justice by awarding compensation of Rs. 5,00,000/- together with costs of Rs. 2,000/- to be paid within six weeks from the date of this order failing which it would attract interest at 9% p.a. In the result, this complaint is partly allowed directing the opposite parties to pay to the complainant an amount of Rs. 5,00,000/- towards compensation together with costs of Rs. 2,000/- within six weeks from the date of this order failing which it would attract interest at 9% p.a. Complaint partly allowed.