PURNIMA KESANUR vs KOLLUR MOOKAMBIKA WATER SPORTS

A ''joy ride'' became a ''death ride'' for a person who had gone for a joy ride in a boat. It appears the regular boat operator allowed a person who was sitting in the boat for joy ride to drive the boat himself and due to negligent riding of boat by that person the boat hit a rock resulting in the death of that person.

THE complainants have filed this complaint claiming compensation of Rs. 99,50,000 alleging negligence on the part of the opposite parties (for short, "O.Ps."). The facts in this case are as follows: The first complainant and her husband had taken a ticket for a joy ride by a water boat on 15.6.2003 in the Amusement Park run by O.P. 1, by paying a sum of Rs. 300 per head. The Amusement Park is recognized by the Department of Tourism. After purchasing the ticket, the first complainant and her husband went three rounds joy ride in the water boat. At that time, the regular operator of the boat was driving the boat. Thereafter, the husband of the first complainant expressed his desire to go for one more round. One Sri Nagaraj, who was a Guard, was also in the boat along with the husband of the first complainant. It is alleged that due to the negligent driving of the boat by the driver, the boat hit a rock and in the said accident the husband of the first complainant and the said Sri Nagaraj suffered severe injuries. They were taken to VIMS Hospital at Bellary and ultimately both of them died in the hospital. This has made the complainants to file the complaint claiming damages from the O.Ps.

O.P. 1 is the water sports, O.P. 2 is the guard who was the regular operator of the boat and O.P. 3 is the Insurance Company. The O.Ps. have filed their versions. In their versions, the O.Ps. have not disputed the fact that the first complainant and her husband purchased a ticket for joy ride by the boat. The O.Ps. have also not disputed the death of the husband of the first complainant and the said Nagaraj. According to the O.Ps., the husband of the first complainant when he went for joy ride for the fourth time, insisted the regular operator of the boat to allow him to ride the boat and while the husband of the first complainant was riding the boat negligently, the boat dashed against a rock and thereby he and the said Nagaraj suffered injuries. The case of the O.Ps. is that since the husband of the first complainant himself contributed for the accident, the complainants are not entitled for any compensation.

O.P. 1 had obtained an insurance policy from O.P. 3 covering the risk involved in the water sports. According to O.P. 3 as per Clause 14 of the terms and conditions of the policy, the Insurance Company is not liable to pay any compensation. From the insurance policy it is seen that the liability of the Insurance Company in respect of a single accident is Rs. 2,20,000 and for one year the liability is Rs. 8,80,000. Both the parties have filed their affidavits by way of evidence in support of their case and also produced documents.

ON the rival contentions referred to above, the only points that arise for consideration are: (1) Whether the complainants prove that they are entitled for compensation from the O.Ps. as pleaded in the complaint? (2) To what relief the complainants are entitled?

Point No. 1 : It is not in dispute that the first complainant and her husband purchased a ticket for the purpose of joy ride in the boat in the Amusement Park run by O.P. 1. It is also not disputed that the accident occurred on 15.6.2003. According to O.P. 1, it is not liable to pay any damages because the accident occurred due to the negligence of the deceased husband of the first complainant as he himself drove the boat. Further, O.P. 1 had appointed O.P. 2 as operator of the boat and he alone was authorised to drive the boat. In the instant case, assuming that the deceased husband of the first complainant himself was driving the boat, it amounts to negligence on the part of the operator of the boat in discharge of his duties in the course of his employment. In such an event, the owner of the boat, i.e., O.P. 1 is also liable for all the consequences that may arise due to the negligence on the part of the operator of the boat in the discharge of his duties. The case of the first complainant is that her husband was not driving the boat at the time of the accident and that the accident occurred due to the negligent way of driving the boat by the operator of the boat. From the facts it is seen that the accident occured because of the negligent driving of the boat, irrespective of the fact whether the boat was driven by the regular operator or by a third person. If the cause for the accident is the negligent driving of the boat by the regular operator of the boat, then O.P. 1 is vicariously liable to pay compensation. In the event if some third person was allowed to drive the boat by the regular driver of the boat, then also the owner of the boat is liable to pay damages, as the driver is negligent in discharge of his duties. Hence, we hold that the complainants are entitled for compensation as the husband of the first complainant died due to the negligence of the O.Ps. as stated above. Accordingly, we answer point No. 1 in the affirmative. Point No. 2 : The husband of the first complainant was working as a Software Engineer. According to the averments in the complaint, he was earning a sum of Rs. 6,10,000 per annum. In support of this contention, the complainants have produced the salary certificate issued by the employer of the husband of the first complainant. It is stated that the husband of the first complainant was aged about 32 years as on the date of the accident. The case of O.P. 1 is that at the time of the accident, the husband of the first complainant himself was driving the boat. No doubt this fact has not been proved by adducing any positive evidence. In our view, if the regular operator of the boat was driving the boat, in all probability there would not have been any accident. Taking into consideration that the husband of the first complainant also appears to have contributed his negligence for the accident, we are of the view that awarding a sum of Rs. 5,00,000 as compensation in favour of the complainants would meet the ends of justice. ]10. The case of O.P. 3 is that as per Clause 14 of the terms and conditions of the policy, the Insurance Company is not liable to pay any compensation. Clause 14 of the policy reads thus: "The deliberate conscious or intentional disregard of the insured''s technical or administrative management or the need to take all reasonable steps to prevent claims." A reading of this clause does not indicate that the insurance policy does not cover accident, if any, due to the negligence driving of the boat. Therefore, the Insurance Company cannot avoid its liability under Clause 16. As per the terms and conditions of the policy, the liability of the Insurance Company in respect of a single accident is Rs. 2,20,000. Therefore, O.P. 3 is to be directed to pay Rs. 2,20,000 to the complainants and the remaining amount is to be paid by

O.P. 1. 11. In the result, we pass the following order: (1) The complaint is allowed in part. (2) O.P. 1 is directed to pay Rs. 2,80,000 to the complainants with interest at 9% per annum from the date of the accident till realisation, within two months from today. (3) O.P. 3 is directed to pay Rs. 2,20,000 to the complainants with interest at 9% per annum from the date of the acident till realization, within two months from today. (4) We are told that the husband of the first complainant died leaving behind his wife and a minor daughter. The minor daughter has been arrayed as complainant No. 2. Hence, the Insurance Company is directed to deposit Rs. 2,20,000 with interest as ordered above in the name of complainant No. 2 in a Nationalized Bank till she attains majority. However, complainant No. 1 is permitted to withdraw interest on the said deposit to meet the educational and other expenses of her daughter. Complaint partly allowed.

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