Bhaskar Golla vs Ramakrishna Vidyashrama Trust (R) & Anr

First appeal No.674/2018 has been filed by the complainant and first appeal No.704/2018 has been filed by the opposite parties against the order of the State Commission dated 5th March, 2018 in complaint No.482/2015.

Brief facts of the case are that the opposite party was running a residential school in which son of the complainant was a student. He was also residing in the hostel run by the opposite party. He was student of 10th standard. During the intervening night of 3.11.2014 and 4.11.2014, another student Uday Naik who was also a student of 10th standard and was a residential boy, murdered the son of the complainant whose name was Pawan Kumar. The police report was made. The investigation was done and a criminal case was filed against Udai Naik.

The case of the complainant is that there was deficiency in service in providing safe boarding and lodging by the opposite party since there was no warden available in the hostel and also there was no one to watch the CCTV camera in order to know as to what was happening in the hostel and this way they had compromised with the security of the children. His case was that had the opposite party not been negligent and would have been providing the services with due diligence and sincerity, the life of his son could have been saved. It is not disputed that after that incident the deceased was immediately moved to the hospital but he died on the way.

The opposite party took the plea that the complainant was not a consumer and hence the complaint was not maintainable under the Consumer Protection Act. It was further contended that there was no negligence or deficiency in service on their part. It was an incident which they could not have foreseen and had no control over it. It is submitted that the offender Udai Naik was a boy of bad character and earlier also he had attempted suicide by consuming phenyl and subsequently admitted in writing in front of his parents. He was a student by way of allotment from the department of Social Welfare Department through the Government as he belonged to scheduled caste community. It was also the case of the opposite party that on investigation the police authorities did not find any illegality or irregularity on the part of the school authority and therefore the complaint was liable to be dismissed on this count. It was also contended by the opposite party in their written version that during the midnight when everybody was sleeping, Udai Naik got up, silently opened the door and quietly without causing any noise brought a stone and dropped it on the head of the deceased and that was admitted by him before the school staff and the investigator or officer of the police and he did it to take revenge from the deceased.

The parties led their evidences before the State Commission and after recording the evidences of the parties the State Commission reached to the conclusion that there was no warden appointed by the opposite party in the hostel who would have control over the activities of the students. The State Commission also reached to the conclusion that although CCTV cameras were fitted in the school, there was nobody to watch those CCTV cameras and had it been done, the incident would have been avoided. It was also noted that Udai Naik, offender was a boy of bad character. It was the duty of the opposite party to remain vigilant about his activities. The State Commission also held on the basis of evidence on record that since opposite party was providing boarding and lodging, it was providing service and therefore the complainant was a consumer and hence the complaint was maintainable.

This order is impugned before us by both the parties to the complaint. While the complainant has filed Appeal No.674 of 2018 for enhancement of the compensation granted by the State Commission, the opposite party has filed Appeal No. 704 of 2018 alleging that there was no evidence on record for the State Commission to conclude that there was deficiency in service on the part of the opposite party. It is argued that Uday Udai Naik, although was a boy of bad character but school had to admit him on account of the fact that he was selected by the Social Welfare Department and as such they had no role in selecting Udai Naik in school. It is argued that they had already fitted CCTV camera in the hostel and thus they had fulfilled their duties. It is also argued that there was a teacher who was appointed in the school and who was watching the activities of the students in the hostel. On these contentions, it is argued that impugned order be set aside.

We have heard the arguments and given our thoughtful consideration to the rival contentions of arguments of learned counsel for the parties.

The admitted facts are that deceased was the student of the opposite party and he was also provided the facility of boarding and lodging in the hostel and for that separate charges had been raised from the deceased. Providing the boarding and lodging services falls within the definition of 'service' under the Consumer Protection Ac and hence the complaint was maintainable under the Act. Although counsel for the opposite party has relied on the case of Bihar School Examination Board Vs. Suresh Prasad Sinha (2009) 8 SCC 483, Maharishi Dayanand University Vs. Surjeet Kaur (2010) 11 SCC 159, Jagmittar Sain Bhagat and Others Vs. Director, Health Services, Haryana and Others (2013) 10 SCC 136, Registrar, Indraprastha University, Kashmiri Gate, Delhi Vs. Miss Tanvi (2015) SCC Online NCDRC 1486 and M/s Jet King Infotrain Ltd. Vs. Abhishek Nath and Ors. (2015 )SCC Online NCDRC 4504, he admits that all these cases relate to the education activities and none of these case laws relates to the deficiency in providing facilities of Boarding and lodging. The finding in all these cases (supra), are therefore not applicable to the facts and circumstances of this case. We hold that the findings of the State Commission that the complaint is maintainable under the Act is based on the legal principles and we find no illegality and infirmity in the said findings.

As regards the deficiency in providing services of boarding and lodging in the hostel is concerned, the deficiencies are writ large on the face of it. The evidences on record clearly shows that no warden was appointed in the hostel. The opposite party has in their written statement stated that alleged offender in his statement to the police has clearly stated that he had opened the door quietly without causing any noise, brought the big size stone and dropped it on the head of Pawan Kumar in the midnight. Therefore, these activities stealthily done by him could not have been noticed by the warden even if he be there, on duty on that day. We find no merit in this argument. The contention in the written version and argument that the alleged offender had made statement that he stealthily gone out, collected the stone and dropped it in the midnight is contrary to the statement which he had given to the police and form part of the appeal no. 704 of 2018. He had made the following statement to the police that :

Again on 3.11.2014 at 8:30 pm, a fight again started between me and him. Thereafter at 11 pm all the students slept. I went out at the point of time from the room and brought a stone which was near the desk in front of room and kept it near the door and later went near pavan yadav and slept next to him. On 4.11.2014 at about 1.30pm I woke up and confirmed that everyone was asleep, then slowly went near the door and took the stone and dropped it on pavan yadav's head because I was angry at him. When I was in the school the policeman came and took me to police station.

This clearly shows that he went out of the room to take the stone from the desk which was near the room i.e. outside the room and then kept it near the door. It is not disputed that these activities were recorded in the CCTV camera. His act of 04.11.2014 that at about 1.30 a.m, he silently went near the door and took the stone, was also recorded in the CCTV camera. Strangely nobody had noticed these activities though the CCTV camera had recorded it. This clearly shows that opposite party was not monitoring the CCTV camera at any relevant time between 8.30 pm on 03.11.2014 till 1.30 a.m. on 04.11.2014. This amounts to gross negligence on their part. Had they been monitoring all the activities on CCTV camera in order to safeguard lodgers, such an act could have been avoided. This amounts to gross negligence on their part.

We do not find any illegality or infirmity in the findings of the State Commission on this count. Appeal No. 407 of 2018 has no merit and same is accordingly dismissed.

Learned counsel for the complainant who has filed Appeal No. 674 of 2018 has failed to point out as to which formulae other than the formula adopted by the State Commission while calculating to the amount of compensation he is entitled to, ought to have been adopted. We find that State Commission has rightly followed the formula for calculating the amount of compensation. We find no illegality or infirmity on this count also.

Appeal No. 674 of 2018 is, also dismissed.