INDIAN MEDICAL ASSOCIATION vs State of orissa

THIS original C.D. Case No. 62/95 has been filed by the Indian Medical Association, Orissa State Branch, Cuttack represented through its Secretary Dr. Mohamed Abbas against the State of Orissa, Director, Sports and Youth Services and Officer-in-charge of the Jawaharlal Nehru Indoor Stadium, Cuttack for compensation for not providing the facility of A.C. on 9.10.1993, when the Association organised a Kawali programme with artists from Bombay. The Association claims a sum of Rs. 2,00,000/- as compensation for humiliation and abuse thrown by the public who had purchased tickets for the same and Rs. 5,00,000/- on other heads. It is their case that the inaction of the Authorities in not restoring the A.C. facility on that day was an act of utter negligence and, therefore, amounted to deficiency in service.

IN the counter the opposite parties took the ground that there was no negligence on the part of the Authorities and the A.C. system did not function because of a sudden mechanical failure which could not have been rectified by the maintenance staff of the A.C. plant as they were not competent to do the job of repairing, since it was the Blue Star, who had installed the plant which was alone competent to rectify the defect under a service contract. There was no negligence on the part of any of the Government functionaries and question of deficiency in service did not arise. Mr. Sangram Das, the learned Addl. Standing Counsel for the State during the course of the argument highlighted the following points for appreciation of this Case. Firstly, it was contended that the complainant has failed to prove any negligence on the part of the Government functionaries. Secondly the complainant did not complain in writing to the Authorities concerned, either immediately before the commencement of the show or even after the show was over and instead of doing this they straightaway filed the case more than 1 years from the date of the show. Thirdly, according to the terms and conditions, which were made known earlier to the Organizers vide Clause-11 of the printed terms and conditions, the Authorities could not be held responsible for failure of the A.C. system. Fourthly, it was submitted that infact, since the A.C. system did not function on the date of the Show the Government refunded the amount of Rs. 10,000/- realised by them towards the A.C. charges but the complainant did not received it. Countering this argument on these points Mr. R.K. Patnaik, the learned Counsel for the complainant said that the question of negligence or no negligence did not arise since the service sought to be provided for was not available for which the member of the Association suffered inconvenience and subjected to humiliation by public. To the second point of Mr. Das that the complainant did not give in writing, Mr. Patnaik submitted that it is nowhere statutorily an obligation that once a period of limitation is prescribed under the Act it would be obligatory on the part of the complainant to claim in writing prior to filing the case. To the third contention of Mr. Das that the terms and conditions were furnished earlier Mr. Patnaik submitted that this factual aspect has not been proved and even if they were informed it hardly made any difference since the opposite parties are under the common law even liable to compensate for any act of negligence even if such terms and conditions were supplied earlier as claimed by the opposite parties. To the last of the contention of Mr. Das that Government refunded the amount for not being able to provide the facility. Mr. Patnaik submitted that the question of refund was immaterial since the damage had been caused for not providing the facility as promised and payment received and according to Mr. Patnaik, a refund would not absolve the opposite parties from the liability incurred.

We have heard the lengthy argument of the Counsel for both sides. We have perused the pleadings of the parties and also gone through the affidavits and other materials on records. Having bestowed our considered thought to the dispute we propose to dispose of the same in the following manner.

IT is an admitted case that a Kawali programme was arranged by the complainant on 9.10.1993 and it is also an admitted fact that the Kawali programme continued up to 3 O''clock of the night. IT is also the admitted fact that the A.C. system did not function on that day. We are not satisfied from the materials available on record as to what was the actual total number of the audience inside the hall who witnessed the programme nor the figure is available as how many persons even though purchased tickets did not attend the function at all (because of A.C. failure) and how many persons in fact returned from the entrance because of the non-functioning of the A.C. system. We can imagine this to be too difficult a task to prove. But it can be well-imagined that a sizable number of audience could have witnessed the function inspite of failure of the A.C. system, otherwise question of a function continuing up to 3 a.m. would not arise which fact we accept to be correct. The argument of Mr. Das that the Government functionaries took alternative steps to provide air circulators and fans is of no consequence since under no circumstances this improvised method could have adequately substituted the function of an A.C. system in such a big auditorium. Therefore, we are unable to hold that the fans and air circulators even if supplied by the authorities to have really solved the problem except that it might have provided some relief to the persons sitting close to those fans and air circulators. But the possibility of most of the persons experiencing discomfort on account of the increased inside temperature could not be ruled out. Therefore, we hold that there was a failure of the A.C. system which certainly caused discomfort and aroused a discontentment amongst the spectators present. Merely because many people witnessed the show upto 3 a.m., it should not be presumed that they did not suffer from this uncomfortable situation during the early hours of the evening when the temperature must be higher than the temperature during the last night hours. An A.C. system has almost become a necessity for those who have become accustomed to it. The Jawaharlal Indoor Stadium is a Stadium which has been constructed with the modern technology of having an inherent A.C. system. Air Condition may not be required during the winter days. But, considering here in this part of the State it could be well said that, A.C. system was a necessity and the failure of the A.C. system on the particular day did cause inconvenience to the persons witnessing the show. Having reached this conclusion the next point is whether the non-functioning of the A.C. system was because of the negligence or inaction in not attending to the restoration of the A.C. system. No doubt Clause-11 of the conditions for hiring the Indoor Stadium, Cuttack lays down that the Authorities will not be held responsible for the inconvenience on account of the failure of the A.C. system but that does not mean that the Authority can take resort to this clause in case of any negligence on their part or in a situation where it would be found that no reasonable care has been taken to see that the facility is made available. ''Negligence'' means in legal parlance an act or omission to do an act which a person is obliged to do and an omission to do any such act leads to a cause of action for damages. In the counter the opposite parties have taken the plea that there was sudden mechanical failure of the A.C. system. Firstly nothing has been placed on the record to show whether there was any mechanical failure at all and what was the nature of the mechanical failure and whether the mechanical failure was such that it was beyond the competency of the maintenance staff to rectify the defect and restore the A.C. system. In this regard we have perused the statement of witnesses of the opposite parties.

OPPOSITE party No. 1 one Dillip Kumar Das who on this point stated that if the A.C. system does not function, the amount for the same is to be refunded. On the date of function for operation of the A.C. technical staff were present and he was also present there from beginning of the show till end. Around 3 p.m. they started the A.C. plant for cooling the auditorium which worked till 5.30 p.m. but there was sudden breakdown. The staff tried to restore the system but they could not restore the same. Peculiary there is nothing as to what was the breakdown and what was the cause for the breakdown. There might have been many factors for the A.C. system not to function. It might be for various reasons and there is nothing on record to hold why the system did not function. Such factors must have been examined from the side of the Authorities that the sudden break-down of the A.C. system was of such magnitude which was beyond the capacity to be repaired by the staff. It is too much to expect from the common man of the public to know as to why the A.C. system failed. These materials should have been placed before the Court. Witness No. 2 for the opposite party is one Brajabandhu Mohanty who at the relevant time was working as the Asst. Director, Planning under the Directorate of Sports and Youth Services. He stated that there are about 10 technical staff posted at Jawaharlal Nehru Indoor Stadium to take care of the A.C. plant. They were not technically sound nor supposed to take up any repair work since there was a contract between the supplier of the system and Government for undertaking such repair. Except these nothing has been stated what was the wrong with the A.C. system. A bare statement that there was sudden breakdown does not satisfy us as to the defence taken by the opposite parties. We feel that it was obligatory on the part of the opposite parties to show the nature of the defect which they have failed to rectify at the precise moment. Further there is no evidence that before 9.10.1993, the plant was tested and it was functioning O.K. There is also no evidence that as to when the same was restored to normal condition after 9.10.1993. These two things could have to some extent satisfied to accept the case of the defence to be true. If there were so many technical staff for the purpose even a bare maintenance they could have spoken as to what happened and what was the defect for which they were unable to repair the same with their limited technical knowledge. Who knows the breakdown might have been an act of mischief or sabotage or because of failure of power supply to the plant or because of lack of adequate voltage or the absence of the person at the spot to take care of the sudden failure. We are left in the wilderness to judge this in the absence of any material from the side of the opposite parties as to the cause of breakdown. Therefore, we conclude that there was negligence on the part of the Authorities in not providing the facility for the reasons best known to them. Now next question is whether they will be liable for compensation and if so, to whom and to what extent. The Association is an organisation which certainly does public duty so far health is concerned. There cannot be any doubt about this. That the Medical Association is also a well-known Organisation of the Doctors in various disciplines and that they are devoted for the welfare of the people for health also cannot be doubted. The representative of the Association, its Secretary is the competent person to file the case. And since they paid the hire charges for the auditorium they would be considered as the consumers. Persons who purchased tickets and witnessed the Kawali programme inside the auditorium individually have not come forward to claim compensation for the inconvenience caused to them, but we have held in the earlier paragraphs that a sizable number of persons who purchased tickets and witnessed the show inside the hall did face inconvenience for non-functioning of the A.C. plant. Therefore, question of giving compensation to individual does not arise and certainly the Secretary is also not competent to bring a case for compensation on behalf of individuals. Therefore, we cannot award any compensation so far as any particular individual is concerned. The Secretary of the Association was certainly in a delicate position to face the situation and liable to answer for the inconvenience faced by the public since he was the person who was in overall charge of the show. When the A.C. system failed the possibility of the Secretary and other members of the Association present being put to an embarrassing situation could not be ruled out. Considering such inconvenience caused to the public at the particular moment inside the stadium and as well as the inconvenience caused to the members of the Organisation who are present inside it including the Secretary, we think it appropriate to award compensation of Rs. 10,000/- to be paid by the Government to the Association. If the amount of Rs. 10,000/- for the purpose of availing the A.C. system have not been refunded the same shall also be refunded if not already done. Complaint is allowed but without cost. The amount of compensation be paid within two months from the date of this order. This, however, will not prevent the Government to recover the amount from any officer, found responsible for the lapses. Complaint disposed of.