P.S.SANDHU vs UNION OF INDIA

THIS case is a sequel to an unfortunate boat tragedy that took place at Barapani Lake near Shillong on 24th October, 1991. This complaint has been filed by W/C P.S. Sandhu of the Western Air Command, New Delhi and his two minor children, Mater Guneet Singh Sandhu, aged 13 years and Ms. Jasleen Sandhu, aged 11 years. The three complainants alongwith late Mrs. Guddi Sandhu were members of a group consisting of Air Force Officers and members of their families who had gone for a boat cruise in the Barapani Lake as part of a picnic programme on the ill-fated day. The picnic was organised by some of the officers of Headquarters, Eastern Air Command at the Electricity Board Guest House near Barapani Lake. A Boat Club is maintained at Barapani Lake by the Army Authorities of Army 101 Area Base near Shillong.

THE opposite parties in this complaint are: (1) Union of India represented by the Secretary, Ministry of Defence, New Delhi; (2) Army Headquarters, represented by Chief of Army Staff, new Delhi; (3) General Officer Commanding, 101 Area, C/O 99 APO; and (4) Manager, Boat Club, 58, G.T.C., (Gorkha Training Centre), C/O 99 APO (Shillong). The case of the complainants is that the 1st complainant and his colleague W/C Bhatia had together arranged with the Army-run Boat Club for taking the members of the picnic group consisting of Air Force Officers, ladies and children for boating in the lake and for this they made advance booking and paid charges at Rs. 5/-per head at the 58 G.T.C. to the Havaldar who was incharge of the Boat Club. Initially the 1st complainant and some other members of the group including the ladies went to the Boat Club just before noon intending to have the boat trip at that time. But, since a light drizzle was going on the Havaldar suggested to them that they should postpone the trip until after the weather cleared and hence they may return to the guest house and come again for boating in the afternoon. Accordingly, all the three complainants together with about sixteen members of the group went to the boat house at about half-past-four in the afternoon. Four of them were allotted a pedal-boat in which they went for boating in the lake. The complainants and 12 others were asked to occupy a boat with an out-board motor which was in the charge of a boat-man they set out for boating in that boat. It is stated in the complaint that in addition to the 15 persons who were asked to get into the boat besides the boatman some garden-chairs were also put in the boat with the result that the boat was overloaded beyond its capacity. It is further categorically averred in the complaint that as against the 16 persons in the boat there was only one life buoy on the boat and no life jackets were supplied to the passengers. There were only two life jackets and even they were used as cushions for being sat upon by the ladies since the boat was wet. After the boat had moved away from the shore and had reached a distance of about one-and-half kilometers from the shore it suddenly capsized and all the passengers were thrown into the water. Since there was only one life buoy and life-belts had not been supplied to the passengers, four persons, namely Mrs. Guddi Sandhu (wife of the complainant No. 1), W/C Kapoor and his two minor daughters lost their lives. The complainant''s case is that the tragedy occurred mainly due to the fact that normal safety measures to be observed by a Club offering boating facilities were not observed by the Army Boat Club. There was no arrangement whatever such as well-trained life guards or even any provision for administration of first-aid for recussiation of persons who had become unconscious after having been drowned and, what is worse, no kind of medical attention was arranged for by the time the victims were brought no shore and not even ambulance vehicles were available to take them to any nearby hospital. It is alleged that the non-provision of the essential safety measures constituted grave deficiencies on the part of the Army Boat Club whose services had been hired for consideration by the complainants and others and it was as a consequence of these deficiencies that the complainants had suffered irreparable loss of the precious life of Mrs. Guddi Sandhu, wife of complainant No. 1 and mother of complainant Nos. 2 and 3. On these allegations which have been further elaborated upon in the complaint, the complainants have sought to recover a compensation of Rs. 15 lakhs from the opposite parties.

ON behalf of the Opposite Parties a detailed counter affidavit has been filed by Major Raj Parmar of G.T.C. A preliminary objection has been taken therein that the complainants are not consumers within the meaning of the Consumer Protection Act, 1986 since no payment has been made by them nor have the respondents offered any services to the complainants for consideration. Another plea taken is that W/C Bhatia who was a member of the complainants'' group and was incharge of the arrangements at Barapani Lake had executed an indemnity bond on behalf of the members of the picnic party " Annexure R-l and by the terms of the said bond the Opposite Parties are absolved of any liability. Yet another contention raised in the counter affidavit is that a Court of Inquiry was constituted under the Air Force Act to inquire into all aspects of the tragic occurrence and the recommendation made by the Court of Inquiry as per its findings dated 5th December, 1991 was that no person or organisation be blamed for the accident The allegation made in the complaint petition that the boat was overloaded has been denied by the Opposite Parties and it is stated that the specified capacity of the boat is 16 Army soldiers with full battle load and two crew members. Of the passengers carried in the boat on the ill-fated day 8 were adults and the remaining 7 were only children, and hence, the total load carried in the boat was much below the full capacity of 1,800 kgs. The Opposite Parties have raised a plea in defence that the movements of the occupants of the boat had "solely contributed to the accident" and there was no defect of any kind in the boat. Reliance was also placed on the fact that an indemnity bond had been executed by W/C Bhatia and in view of the stipulations contained therein it was not open to the Complainants to make any claim against the Government of India or any officers or employees of the Government.

AFFIDAVITS by way of evidence were filed on the side of the complainants by W/C Kapany, W/C Satish Bhatia and Mrs. Jaya Asthana, w/o Gp. Capt. S. Asthana who were all members of the picnic group and also by complainants No. 1 and 3. On the side of the opposite parties affidavits were filed by Major Raj Parmar and Lt. Col. M.P. Ao, Staff Officer, Headquarters 101 Area Shillong. The complainant Nos. 1 and 3 were examined as C.Ws. 1 and 2 respectively and W/C Bhatia was examined as C.W. 3. These three witnesses were cross-examined at length by Col. (Retd.) P.K. Subramanian, Counsel appearing for the Opposite Parties. On the side of the Opposite Parties Lt. Col. M.P. Ao and Major Raj Parmar were examined as witnesses. The Counsel appearing for the complainants cross-examined these witnesses in detail

AFTER arguments in this case were concluded written submissions have been filed by the Advocate appearing on behalf of the Opposite Parties and its contents have been duly considered.

THE crucial issues to be decided in this case are whether any arrangement of hiring of the facility of boat cruise for consideration had been entered into between the complainants and the Opposite Parties so as to entitle the complainants to claim the status of consumers, and whether there was any deficiency of service on the part of the Opposite Parties in relation to the arrangements made for the boat cruise in the Barapani Lake for the complainants and the members of their group and whether the death of late Mrs. Guddi Sandhu had come about as a consequence of such negligence. In the event of the aforesaid issues being answered in the affirmative the further question that would arise is as to the quantum of compensation to be awarded to the complainants. We have carefully and anxiously studied and analysed the documentary and oral evidence adduced in this case. It is not in dispute that a party of about 19 persons consisting of Air Force Officers, their wives and children had gone for a cruise in the Barapani Lake on the fateful day, namely, the 24th October, 1991 as part of a picnic organised for them at Shillong. Though originally they went to the Boat Club between 12 noon and 1.00 p.m. with the intention of going for boating at that time, the boa t trip had to be postponed since there was a drizzling rain and they were advised to come back to the Boat Club in the afternoon. Accordingly, the party consisting of 19 persons went to the Boat Club at about 4.30 p.m. and while four of them were accommodated in a peddle boat, the remaining 15 were asked to get into the ill fated boat which was fitted with an out-board motor. There were in all sixteen persons in that boat including the boat-man. After the boat had moved away from the shore and gone about one-and-half kilometers it capsized and as a consequence of the mishap the lives of 4 persons were lost, namely, Mrs. Guddi Sandhu, W/C Kapoor, and his two minor children.

THOUGH the complainants have put forward a case that the boat was overloaded and the disaster had occurred partly due to the said fact the said allegation made in the complaint has been denied in the counter affidavit filed on behalf of the Opposite Parties wherein it has been stated that the specified capacity of the boat was 16 armed soldiers with full battle load and two crew members. Excepting for the bare assertion made by the complainants in the complaint petition and in the affidavits filed by them there is no acceptable evidence whatever to show that the boat had been overloaded. The said allegation cannot, therefore, be upheld.

THE next point to be considered is whether the complainants had paid any consideration for their being allowed by the Boat Club the facility of the boat ride in the Barapani Lake. Though the Opposite Parties have asserted in their counter affidavit that no charge was levied from the complainants this averment is clearly belied by the oral and documentary evidence adduced in this case. In the affidavit filed by complainant No. 1 dated 17th October, 1994, he has stated on oath that he had personally made the advance payment towards boating charges and since exact charges would depend upon the number of people using the boat and the actual time taken for the boat-ride the final account was to be settled only after the boat-ride was over. Though he was cross-examined at length by the Counsel for the Opposite Parties on this aspect of payment of consideration for the hiring of the boat, the testimony of the witness that he had personally remitted the charges at the boat house by payment to the Havaldar was not shaken in any material respect. On a specific question put to the witness by the Court the witness stated that he had paid Rs. 95/- by way of advance towards boating charges to the Havaldar who was present in the Boat Club and the charge was calculated at Rs. 5/- per head. The payment was made by the witness when he went to the Boat Club at about 1.30 p.m. and the amount was collected on the assumption that the duration of the boat trip will be 30 minutes. This testimony of the 1st complainant is corroborated by the evidence of Ms. Jasleen Sandhu - C.W. No. 2 who is the minor daughter of the 1st complainant, aged 13 years at the time of her deposition. She was a member of the group that had travelled in the boat on its ill-fated cruise. While being cross-examined this child-witness was put the question "This time you have stated that your father had gone to pay the rent of the Boat?" The answer of the witness was "Yes". Next followed the question "What was the specific thing that he told you?" To that she answered "When we were going for the boating, he did say, I am making the payment and you go ahead?" Then she was confronted by the Counsel for the Opposite Parties by the suggestion, "I tell you, it is a pure lie that you are telling that your father had told you this. Is it a lie or not?" To that she answered, "No, I am not speaking a lie when I say that my father had told me that he had made the payment and we can proceed for the boating."

TWO witnesses"R.Ws. 1 and 2 " have been examined on the side of the Opposite Parties. Admittedly they were not present anywhere near the Boat Club when C.W. 1 went there before noon and claims to have made the advance payment nor even when the complainant group boarded the boat at about 4.30 p.m. There is nothing in their testimony which throws doubt on the verasity of the aforesaid versions spoken to by the complainants Nos. 1 and 2. As already mentioned the statements of C.W. No. 1 " W/ C P.S. Sandhu "asserting that he had made the payment have not in any way been shaken in cross-examination. The forthright manner in which the child-witness has asserted that immediately after making the necessary payment to the Boat Club her father told her that he had made the necessary payment and they can proceed for boating has impressed us as truthful and acceptable. Such being the state of evidence we have no hesitation to record the finding that consideration had been paid to the Boat Club of the Opposite Parties by the 1st complainant on behalf of the persons who travelled by the boat. Hence the objection raised by the Opposite Parties that the complainants are not consumers and that the complaint is not maintainable before this Commission on the said ground is devoid of merit or substance.

NEXT we come to the important question as to whether the normal safety measures which were expected to be observed by a Boat Club or any other body providing the facility of boating had been duly taken in this case by the Opposite Parties. The 1st complainant (C.W. No. 1) was not present on the spot at the time when the Air Force Family Group boarded the boat and proceeded for the boating. His assertion that there were no safety equipments like life jackets and life buoys in the boat is based only on the impression that he gathered from a video-tape recording taken by one of the members of the group who remained on shore while the rest proceeded for boating and video-photographs were taken by him of the boat when it was being boarded by the members of the group and, thereafter, while it was moving away with the members on board. The direct eye-witness evidence is provided by the testimony of Ms. Jasleen Sandhu, C.W. 2, and Wing Commander Bhatia, C.W. 3 both of whom had travelled in the boat but were fortunately rescued from drowning. In the affidavit dated 17th October, 1994 filed by her by way of evidence Ms. Jasleen Sandhu has stated on oath that no life-jackets had been provided for the boating party and that when one of the ladies asked the boat-man as to whether there were no life-jackets the boat-man said that no life-jackets were available but added that it did not matter. Though she was vigorously cross-examined on this aspect by the Advocate for the Opposite Parties, all that he could elicit from the witness is that there were two or three life jackets which were used only as cushions for being sat upon. This child-witness has explained in re-examination that even the 2 or 3 life jackets about the existence of which she had mentioned in cross-examination were not originally in the boat when they boarded it. According to her when the persons who had boarded the boat found that the boat was wet a demand was made by some of them for being furnished with some cushions or other material on which they could sit and it was only thereupon that the 2 or 3 life jackets were given to them for being used as a substitute for cushions. The next material witness is W/C Bhatia"C W. 3" who was a member of the party that had boarded the boat and had travelled in it. In paragraph 7 of his affidavit dated the 17th May, 1994 W/C Bhatia has stated on oath that no life jacktes or life buoys were provided to the passengers in the boat. Nothing has been elicited from him in cross-examination which goes to throw any doubt on the truth on the aforesaid averment contained in the affidavit. The witness has firmly stood by the said version despite rigorous cross-examination. His replies to the following questions put to him in cross-examination may be noticed. Question: "There were life jackets?" The witness answered "There were no life jackets. As far as I am concerned, there were no life jackets on board. I only saw life buoys lying in the ground..Even if there were life jackets, they were sitting on top of it. But, I am not aware of any life jackets. I only saw 2 life buoys. They were also, I thing, not fully inflated. They were just lying very shabbily maintained life buoys. They were lying at the end of it. Only two and I am very specific that." We have carefully observed the demeanour of the eye-witnesses (witnesses Nos. 1 and 2) and we a re satisfied that their testimony can be safely accepted as truthful.

THOUGH the Opposite Parties have examined two witnesses namely, Lt Col. M.P. Ao and Major Raj Parmar as R.Ws. 1 and 2 neither of these witnesses have any personal knowledge as to whether the safety measures such as the availability on the boat of adequate number of life jackets and life buoys etc. had been duly complied with before the boat proceeded on its ill fated ride. Admittedly R.Ws. 1 and 2 were not members of the group that boarded the boat and travelled in it on the ill-fated day. They were not even present on the shore of the Lake at the time when the complainants'' group boarded the boat and it moved away on the ill-fated ride. In such circumstances, no evidentiary value can be attached to the assertions made by them that life saving equipments had been kept in the boat. As already indicated, the testimonies of P.Ws. 1 to3 have impressed us as forthright and truthful and we have no hesitation to rely on their versions and hold that basic essential safety measures such as adequate number of life jackets and life buoys were not provided in the boat at the time when the Complainants and their group were taken out for their boat ride.

SHORTLY after the occurrence of the tragedy, in which one of its officers namely, W/C Kapoor lost his life, a Court of Inquiry was constituted by the Air Force. The purpose of the inquiry was to confirm the factum of the death by drowning of W/C Kapoor whose body had not been recovered from the Lake so that all benefits payable by the Government consequent to the Officer''s death to his representatives may be paid to them. A copy of the recorded proceedings of the Court of inquiry has been produced by the Counsel for the Opposite Parties and if forms part of the paper book. The video film taken by a member of the picnic group who had remained on shore which covered all the events upto the stage after the boat started off on the cruise was viewed by the Court of Inquiry. It is seen from the copy of the proceedings of the Court of Inquiry that the three members of the Court had made, inter alia, the following observations after viewing the film. "F. One life buoy was seen lying in the front section of the boat. No life jackets were seen on the boat when it was offered for the boating. No one was wearing any life jackets etc." In our opinion the conclusion that emerges from a consideration of the entirety of the evidence which we have referred to above, can only be that except for a solitary life buoy, no life jackets had been provided to the passengers who travelled by the boat on that ill fated day. The provision of adequate number of life jackets in the boat is a mandatory requirement for ensuring the safety of the passengers in the event of any mishap occurring during the boa t cruise and in not providing sufficient number of life jackets or at least life buoys on the boat was a grave deficiency of service on the part of the Opposite Parties. If the life jackets or life buoys had been provided and the boat-man had sufficient training and experience to instruct the passengers about the timely wearing and mode of use of the life jackets the loss of four precious lives by drowning could have been avoided.

ANOTHER disturbing aspect that has emerged from the evidence in this case is that the boat-man who was normally expected to go to the aid and rescue of the passengers on the happening of an accident, such as the capsizing of the boat, had in this case, himself to be saved from drowning by some persons who went to his rescue. This clearly shows that he had no training or skill in rendering any assistance to the passengers on their being thrown into the water due to capsizing of the boat. To entrust the manning of the boat to such an untrained person was also wholly improper.

IN these days of highly sophisticated modes of communication such as walki-talkie etc. one should have expected that in a Boat Club run by the Indian Army which should be having all such modem equipments in its possession there would be at least a facility for the boat-man to communicate any alarm signal to the personnel on the shore in the event of any emergency such as the imminent capsizing of the boat so that the personnel from the shore may rush to the scene and render necessary assistance for saving the lives of the occupants of the boat. Unfortunately, there was absolutely no such arrangements in the Boat Club. To make matters worse, there were no life guards employed by the Boat Club nor even any personnel who had been trained for rendering first aid for the purpose of resuscitating persons who had become unconscious as a result of drowning. The evidence in the case has clearly brought out that when the unconscious body of late Mrs. Guddi Sandhu was brought on shore there was no responsible person from the Boat Club or from the Army Unit to render any assistance to the victims of the drowning accident. Mrs. Guddi Sandhu had a faint pulse when she was brought to the shore in an unconscious condiction and if only immediate resuscitation measures had been taken, her life could very well have been saved. To run a Boat Club without having the necessary safety equipments and personnel trained for meeting such an emergency where resuscitation procedure will have to be administered, constitutes, in our opinion gross negligence and serious deficiency on the part of the Opposite Parties. What is worse, the evidence discloses that even by the time when the victims of the tragedy who were in an unconscious stage were brought on shore no responsible person was available on the spot to take charge of matters and make arrangements for rushing the victims to the nearest centre where medical aid was available. The result was that the 1st complainant and the C. W. 3 (W/C Bhatia) who were not familiar with the location of any hospitals near the Lake area rushed the victims in their car to a military hospital which was 14 kilometers away, but, by the time they reached the hospital, life had become extinct in Mrs. Sandhu. The 1st complainant was told by the Doctors of the Hospital that if only proper first aid had been administered to Mrs. Sandhu, on her being brought to the shore, her life could have been easily saved. There is no evidence to the contrary on the side of the Opposite Parties. On a consideration of the evidence which we have summarised in the preceding paragraphs, we have no hesitation to record the finding that there was clear negligence and deficiency in service on the part of the Opposite Parties and it was as a consequence thereof that the unfortunate death of Mrs. Sandhu had occurred.

BEFORE we proceed to discuss the question of fixing the nature and quantum of the relief to be allowed to the complainants we may conveniently dispose of the plea taken by the Opposite Parties that because W/C Bhatia had signed a deed of indemnity the complainants are precluded from putting forward any claim against the Opposite Parties arising out of the mishap to the boat. Admittedly no deed of indemnity had been signed by the 1st complainant or by any person competent to act on his behalf or on behalf of the minor complainants 2 and 3. W/C Bhatia had not been authorised by the complainants to execute any document of indemnity on their behalf and the deed signed by him can operate only as against himself. The said document is of no legal effect whatever so far as the present complainants are concerned. The plea raised by the Opposite Parties based on the deed of indemnity will, therefore, stands rejected.

THE next question to be considered is as to the nature and quantum of the relief to which the complainants are entitled. It does not require any discussion to hold that W/C P.S. Sandhu and his two minor children who are complainants Nos. 2 and 3 have suffered a grave and irreparable loss by reason of the untimely passing away of Mrs. Sandhu. It is not a loss that can be precisely evaluated and quantified monetarily. All the same, to some extent that process has to be undertaken to deal with the claim for compensation put forward by the complainant. In addition to losing the conjugal companionship of his dear wife at a fairly young stage in his life, the 1st complainant who was in the active service in the Air Force stood saddled with the responsibility of the upbringing of his two minor children. He has deposed in his evidence that because of the consequential trauma that he had to endure he found himself unable to duly discharge his duties as an officer in the Air Force and was therefore, forced by the circumstances to seek a discharge and he got released from the service. On can well imagine the extent of the actual mental pain, agony and stress that the 1st complainant would have gone through in the years immediately I succeeding the tragedy. Equally hard it was for the two minor children " complainants Nos. 2 and 3 " in their tender years to lose the loving care of their mother and to have to grow up in life without receiving the love that a mother alone can bestow. Hence the severe loss suffered by them has also to be duly compensated for.

AS already indicated above, any quantification of the loss in die circumstances such as those obtaining in the present case can be only on the basis of rough estimate. In fixing the quantum of compensation to be awarded to complainant No. 1 we have to take note of the circumstances that he has subsequently remarried which fact has been admitted by him during his testimony in cross-examination. After giving our careful and anxious consideration to all relevant aspects we are of the view that it will be reasonable and fair to award to the 1st complainant a sum of Rs. 3 lakhs as compensation for the loss suffered by him and to award to each of the minor complainants Nos. 2 and 3 a sum of Rs. 2,50,000/- by way of compensation. The amount of Rs. 5 lakhs representing tine compensation payable to the two minor complainants Nos. 2 and 3 shall be deposited by the Opposite Parties in two fixed deposits for Rs. 2,50,000/- each for a period of 5 years with any Nationalised /Scheduled Bank in the respective names of the minor complainants Nos. 2 and 3 and the F.D.Rs. shall be lodged by the Opposite Parties in the Registry of this Commission for safe custody within one month from the date of receipt of copy of this order. The proceeds of the Fixed Deposits with accrued interest will be paid over to the complainants Nos. 2 and 3 on the respective dates of their attaining majority till which time the Fixed , Deposit Receipts will be kept renewed. The sum of Rs. 3 lakhs allowed to the 1st complainant as compensation shall be paid to him by the Opposite Parties within a period of one month. The Original Petition is allowed to the extent indicated above. The complainant No. 1 will also be entitled to recover a sum of Rs. 5,000/- from the Opposite Parties by way of costs of this petition.

BEFORE we part with this case we consider it necessary to record our deep sense of concern and anguish that such an incident involving the loss of four precious lives should have happened on account of gross negligence and deficiency on the part of the Management in-charge of the operation of a Boat Club run by the Army Authorities at Barapani Lake. In the foregoing paragraphs, we have found that elementary safety measures such as life jackets, life buoys etc. had not been provided in the boat and no qualified or trained life guards nor even any persons trained to give first-aid were available on the staff of the Boat Club. There was also no arrangement by which the boat-man could contact the Boat Club''s office on shore by any modern communication instrument such as walki-talkie etc. in the event of an emergency and no reserve crew was available with a speed-boat to rush to the aid of passengers in any boat which was in distress. The loss of lives that occurred in the present case was largely due to the aforesaid factors. The image that the people of this country have about the functioning of our Army and institutions run by the Army is that they will be models of efficiency and perfection. Unfortunately, the unsatisfactory manner in which the Boat Club at Barapani is run is wholly inconsistent with the expectations in the public mind. We feel that the Army Authorities will do well to immediately take steps to remedy all the defects indicated in this judgment and to run the Boat Club at Barapani and also in other places where similar Boat Clubs are run by the Army as perfect models of excellence where every possible measure for ensuring the safety of the persons using the boating facility will be scrupulously observed inclusive of the introduction of modern high-tech communication facilities as between the office of the Club on the shore and the boat-man in-charge of the boat. Copies of this order will be communicated to the Secretary, Ministry of Defence, Government of India; the Chief of Army Staff, Army Headquarters, New Delhi; General Officer Commanding, 101 Area, C/o 99 APO and the Manager, Boat Club, 58, Gorkha Training Centre, C/o 99 APO (Shillong).