State of Tamil Nadu vs K.Gangabai

The Defendants in OS.No.93 of 2014 are the Appellants in this appeal, which had been filed against the judgement and decree dated

25.9.2014, made in OS.No.93 of 2014 by the Principal District Judge, Trichy.

The above suit had been filed by the Respondent herein as an indigent person, seeking compensation of Rs.10,50,000/- with interest at the rate

of 6% p.a. from the date of the plaint till the date of realisation. This compensation has been claimed owing to the death of the son of the

Respondent, Periasamy @ Pandi, who, according to the Respondents, died by drowning, due to carelessness and negligence of the 2nd Appellant

herein.

In the plaint, the Respondent K.Gangabai had stated that she and her husband Kathiresan had two sons and one daughter. Her husband

Kathiresan died on 23.8.1983. Her younger son Periasamy @ Pandi had studied up to X Standard and was working in a two wheeler shop. He

was undergoing swimming practice at the swimming pool at Anna Stadium, Trichy in the year 2003. It had been stated that the said swimming pool

was under the control of the 1st Defendant, namely, the State of Tamil Nadu and under the direct supervision and control of the 2nd Defendant,

namely, the District Sport Officer, Tamil Nadu Sport Development Officer, Trichy. It had been stated that on 29.3.2003 at around 4.30 p.m.

when Periasamy @ Pandi was undergoing swimming practice, he drowned in the swimming pool. It had been specifically stated that the trainers

were negligent and did not provide first aid. However, they took him in an auto to Aarthy Hospital, where he was declared as dead. The trainer,

who was present by name Sivakumar, handed over the dead body of Periasamy @ Pandi to the Plaintiff. A complaint was given to the K.K.Nagar

Police Station and a case in Cr.No.95 of 2003 was registered under Section 174 of Cr.PC. Postmortem report revealed that the death was due to

drowning. The Revenue Divisional Officer enquired and the Police without any investigation accepted the report of the Revenue Divisional Officer

and closed the case as ''action dropped''. It had been stated that there was no recommendation for grant of compensation. The Plaintiff alleged

direct negligence on the part of the trainers, who are under the control of the Defendants. It had been stated that the deceased Periasamy @ Pandi

was earning around Rs.6,000/- p.m. while working in the two wheeler shop and the Plaintiff claimed a total sum of Rs.10,50,000/- as

compensation with interest and costs of the suit.

In the written statement filed by the 2nd Defendant, namely, the District Sports Officer, Tamil Nadu Sport Development Officer, Trichy, and

adopted by the 1st Defendant, the fact that Periasamy @ Pandi had gone to swimming pool for training by paying Rs.20/- per hour had been

denied. It had been further denied that proper training was not given to him. It had been contended that the deceased went to have swimming and

he had not paid any sum for coaching session. He had died due to his own negligence. It had been stated that the incident happened for no fault of

the trainers. It had been further stated that one Sugumaran was running the pool for the period 1.2.2003 to 31.1.2006. The contract in his favour

included safety, security and maintenance for a period of three years. There was one pump operator, four life guards and one cleaner. The

Defendants claimed that they cannot be held liable for the compensation and the quantum of compensation claimed was also disputed. The

Defendants sought dismissal of the suit.

On consideration of the pleadings, the court below had framed the following issues:-

Whether Periasamy @ Pandi had gone to the swimming pool for undergoing training in the course of swimming?

Whether proper training was not imparted to Periasamy @ Pandi about swimming course?

Whether the swimming pool was devoid of experienced coach, safety gadgets, first aid appliances and first aid personnel?

Whether Periasamy @ Pandi died due to lack of the factors mentioned in the issue no.3?

Whether the 2nd Defendant is liable for payment of compensation to the Plaintiff?

If so, what is the compensation to be payable to the Plaintiff?

To what relief the Plaintiff is entitled to?

During the trial, the Plaintiff had examined herself as PW.1 and marked Ex.A1 to Ex.A10. These documents included a copy of the death

certificate of Periasamy @ Pandi as Ex.A4, the copy of the post mortem certificate as Ex.A6, the information provided by the Commissioner of

Police under the RTI Act as Ex.A8 and the copy of the petition submitted to the Chief Minister and other Officials as Ex.A9. On behalf of the

Defendants, P.Kalaiselvan, District Sport and Youth Welfare Officer was examined as DW.1 and he marked Ex.B1, which is the copy of

agreement between the Sports Development Authority of Tamil Nadu, Trichy Unit and Trichy Sports Promotion Company. Ex.B2 (series) are the

photographs and CDs.

On consideration of the oral and documentary evidence, the court below had found that the deceased Periasamy @ Pandi had gone to

swimming pool only for undergoing training in the course of swimming and had also found that proper training was not imparted to him and had

further found that there were no trained coaches, experienced coaches, safety gadgets, first aid appliances and first aid personnel at the swimming

pool and therefore, found that the death of the son of the Plaintiff was only because of the negligence of the Defendants and further held that they

are liable to pay compensation. The court below further determined that the principles and formula under the Motor Vehicles Act can be followed

to determine the compensation and accordingly, fixed Rs.3000/- as the monthly income of the deceased and arrived at the total compensation at

Rs.3,50,000/- and directed that the same should be paid with 6% interest p.a. from the date of the plaint till the date of realisation. The court

below had also granted costs and also further directed that the court fees due shall be paid by the Defendants. Hence, the Defendants before this

court by filing this appeal against the said judgement.

This court heard the learned counsel on either side and also perused the materials placed on record.

The learned Government Advocate for the Appellants stated that the deceased Periasamy @ Pandi had purchased only Rs.20 ticket, which is

valid for one hour and had entered into the swimming pool for swimming purposes alone and he did not go for swimming class. Consequently, the

learned Government Advocate stated that there was no fault on the part of the trainers. It was also stated that according to Ex.B1, swimming pool

had been leased out by an agreement to the Trichy Sports Promotion Company for a period of three years from 1.2.2003 to 31.1.2006 and

therefore, it is stated that the said lessee was a necessary party to the suit and liability if any can be fastened only against them.

On the other hand, the learned counsel for the Respondent supported the reasonings given in the judgement and stated that on facts, it has

been found that the deceased Periasamy @ Pandi had actually entered into the swimming pool for coaching purposes and even otherwise, the

liability of the Defendants is absolute and therefore, stated that the appeal should be dismissed.

I have carefully considered the rival contentions of the learned counsel on either side.

It is a fact that the deceased Periasamy @ Pandi died due to drowning. This is established by Ex.A6, postmortem certificate dated 30.3.2003.

Even prior to that, a First Information Report was lodged and Cr.No.95 of 2003 had been registered by the KK.Nagar Police Station under

Section 174 of Cr.PC. In the First Information Report, it had been stated that as follows:-

On 29.3.2013 at around 4.30 p.m., one Periasamy (age 18) was undergoing swimming training in the swimming pool situated in the Anna Sport

Stadium"".

This information had been given by the trainers of the 2nd Appellant. In view of such categorical statement, the contention of the learned

Government Advocate for the Appellants that the deceased had not went for training is to be rejected.

It is also pertinent to point out that the records with respect to training for swimming classes and the records relating to purchase of tickets will

be available only with the Appellants. They have not sought to produce the said documents. Consequently, an inference under Section 114(g) of

the Evidence Act can be drawn that the said records have not been produced only because they would speak adversely against the Appellants. In

view of these discussions, I hold that the deceased had gone to the swimming pool maintained by the 2nd Appellant only for swimming classes.

When a person goes for swimming classes, it is only expected that the authorities controlling the swimming pool would have trainers, first aid

equipments and rescue equipments.

It is the contention of the learned Government Advocate that the Contractor was in charge of the swimming pool. In Ex.B1, which is the

agreement with the Contractor, one of the clauses reads as follows:-

The contractor shall make arrangements to safeguard the lives/ properties of the users and monitor first aid measures whenever necessary.

However, a vicarious liability is fastened on the Appellants to ensure that the Contractor appointed by them maintains the requisite first aid

equipments according to the agreement. The Appellants simply cannot wash away hands and turn a Nelson''s eye and after entering into the

agreement. Therefore, the responsibility also exists to ensure that the Contractor upholds his part of the agreement. Ultimately, it is the Appellants

who are the custodians of the swimming pool. Swimming pool is owned by the Government. The swimming pool comes under the direct control of

the 2nd Appellant, which is the District Sport Officer. Consequently, I hold that the contention that the Contractor has to be made liable has to be

negatived. It is, therefore, clear that the deceased Periasamy @ Pandi died while undergoing training for swimming and at that particular time, there

were no trainers, no first aid equipments, no rescue equipments and he was just left to drown and die.

With respect to the compensation, the court below had fixed a sum of Rs.3,000/- as the probable monthly income of the deceased and had

also found that he was aged 18 years. Consequently, applying the principles followed in determining the compensation under the Motor Vehicles

Act, the court below had arrived at a sum of Rs.3,44,000/- as total compensation and rounded off to Rs.3,50,000/- with interest at 6% p.a. The

said contention has not been seriously disputed and also I find no reason to interfere with the reasonings adopted and the compensation amount

arrived by the court below.

In this case, it would also be relevant to refer to the decision of this court reported in 2015-5-MLJ-154 (G.Ravindran Vs. State of Tamil

Nadu) wherein this court was concerned with the death by drowning of a student in a swimming pool and this court had held as follows:-

The swimming pool is maintained by the 5th Respondent. Admittedly, there was no security guard, instructor and care taker. Like the

Petitioner''s son, other students were allowed to enter the area of swimming pool without any escort or care taker. The 5th Respondent is negligent

and failed to provide sufficient safeguards and protect the persons, who use the swimming pool.

It would also be advantageous to refer to the decision reported in AIR 2003 GUJARAT 44 (Popatlal Gokaldas Shah and another Vs.

Ahmedabad Municipal Corporation), wherein also in a similar case where a young boy died in a swimming pool maintained by the Municipal

Corporation and it was held as follows:-

It is true that in the instant case swimming pool has been maintained by the municipal Corporation under discretionary duty provided under

Section 66 of the B.P.M.C Act. However, there is no statutory duty defined under the provisions of the Act, Rules or Regulations of the coach

towards the person who is swimming. In view of the same, therefore, an act or omission of a coach by which they plaintiff''s son could not be

saved from drowning, the same does not fall within the breach of duty provided under the provisions of the B.P.M.C Act. The Corporation

through its servant coach has failed in discharging of its duty of care against the persons who are swimming. The case falls squarely within the

tortious liability and thereby there is tortious liability of the Corporation in this behalf.

In AIR 2015 NOC (56)Delhi (India Tourism Development Corporation Limited Vs. Miss Susan Leigh Beer), which is a case where injury

was caused in a swimming pool, the Division Bench of the Delhi High Court had held as follows:-

In the instant case the injury suffered by the deceased was fracture of the cervical 6th and 7th bones a flexion injury with some degree of

compression, resulting in quadriplegia. This injury was caused when deceased jumped into the swimming pool, with her feet first. On making

contact with the floor of the pool, her feet slipped forwards, causing her to fall backwards and hit her head to the side of the pool. Injury caused to

deceased leading to quadriplegia is one that does not happen in the ordinary course of things, on jumping into the shallow end of the pool,

especially given her status and background as a champion swimmer. Since the nature and manner in which the injury was sustained by the

deceased, it creates a presumption of negligence on part of Defendant Government Corporation in maintaining its swimming pool. By the maxim

res ipsa loquitur, the Plaintiff need not show causation between the injury and the Defendant''s act. The Plaintiff need only show the fact of injury;

the mere fact of the injury justifies the inference that the knowledge of causation lies with the Defendant. Thus, the onus was on the Defendant to

refute causal link to its acts, by showing either that the injury was not due to its negligence or that it had exercised reasonable care. The

Government Corporation however failed to prove that it took due care and precaution to avoid the accident, which was foreseeable. It was

therefore at fault.

In the instant case, it has been found on facts that the deceased Periasamy @ pandi, who is the son of the Respondent herein had gone to the

swimming pool maintained under the direct control of the 2nd Appellant for swimming training classes and drowned. There were no trainers, there

were no medical equipments, there were no first aid equipments and there were no rescue equipments. All these point to direct liability on the part

of the Appellants. Consequently, the appeal filed by the Appellants has to suffer dismissal.

In the result, this appeal suit is dismissed with costs. The judgement and decree dated 25.9.2014, made in OS.No.93 of 2014 by the Principal

District Judge, Trichy is confirmed.