S. Somasundaram vs CORRESPONDENT, C.I.M.A. MADRAS

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE complainant has admitted his daughter by name Brindha in the U.K.G. in the Opposite Party''s School during the academic year 1992-93. On 2.12.93, when the girl went to toilet she fell down into the open sceptic tank, which was full of water and was drowned. THE postmortem was conducted and the body was handed over to the complainant on 3.12.93. According to the complainant, it was purely an act of negligence on the part of the Opposite Party''s school in keeping the sceptic tank open which has caused the death of the child. THE Opposite Party has not even employed a watchman to guard against the children falling into the tank. THEre was, therefore, deficiency of service and negligence and this complaint has been filed for claiming compensation for the loss of the child and a direction to direct the Opposite Party to close the sceptic tank. The Opposite Party has been served, but has chosen to remain absent and was set exparte.

Ex. A 1 to A8 are marked by consent. Proof Affidavit is filed. The claim is proved.

THE Complainant has admitted his daughter in the Opposite Party School on payment of necessary fees. He has, therefore, hired or availed of the services of the Opposite Party in the matter of education for consideration and is, therefore, a consumer under Section 2(1)(d)(ii) of the Consumer Protection Act. We hold that it is due to the negligence of the Opposite Party in keeping the sceptic tank open, this unfortunate occurrence has occurred resulting in the death of the three and a half years old child. The Complainant is entitled to claim compensation for loss of expectation of life. It has been well recognised that loss of expectation of life is an injury accruing before the death although damages in respect of it could be recovered after death. The child, which has met with the death on account of the negligence of the Opposite Party, was only three and a half years old and in such cases, the decided Authorities have laid down that the compensation awardable must be reasonable. Taking into consideration the inflationary trend that is prevailing to day, we find that a sum of Rs. 10,000/- will be sufficient compensation.

NO. doubt, the heire and legal representatives, i.e. Father, Mother and Brothers are entitled to loss of dependency. But in this case, the victim was a three and a half years old child and the complainant cannot, certainly, claim that he has lost any dependency. The claim on the ground of dependency must, therefore, fail. The claim is usually made for mental pain and sufferings. But, as pointed by the High Court of Madras in Debi Sing v. Mangathaya Ammal, A.I.R. 1935 Madras 322-155 I.C. 307, the Court ought not to grant sympathetic damages or damages by way of solatium for the loss of a son, daughter, wife or husband and father or mother. To the same effect are the observations of Lord Wright in Davies v. Powell, (1942 1 All.ER 657 HL), where the learned Judge held that there is no question here of what may be called sentimental damages, bereavement or pain and suffering. It is a hard matter of Pound, Shilling and Pence. We are, therefore, unable to award any compensation on sympathetic grounds. In the result, we hold that the Complainant is entitled to compensation in the sum of Rs. 10,000/- only for loss of expectation of life of the child. The Complainant has prayed for a direction to direct the Opposite Parry to dose the sceptic tank with concrete slabs. This prayer has to be allowed.

IN the result, we order as follows: (1) The Opposite Party shall pay compensation to the complainant in the sum of Rs. 10,000/- for the loss of his child. (2) The Opposite Party shall close the sceptic tank with concrete slaps within one month from the date of this order. (3) The Opposite Party shall also pay costs of Rs. 1,000/- to the complainant.

Complaint allowed.