AI Structured Summary
Not yet generated for this judgment
Judgment
THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.
THE 1st Complainant is the wife and the 2nd Complainant is her husband. THE 1st Opposite Party, is the Secretary to Government, Department of Information, Public Relations and Tourism, which conducted the Chitrai Exhibition in Madurai in May, 1993. It collected a sum of Rs. 2/- for adults and Re. 1/- for children as Entrance Fee. In the said exhibition, the 2nd Opposite Party installed a Ropeway Car as an entertainment and collected a separate fee therefor. This Ropeway Car runs at high voltage of electricity. It runs for a distance of 100 metres hanging from an Iron ropeway. THEre are two iron stair cases to go to the Hopeway Car and to return. THE stair cases have iron handle bars. THE handle bars were decorated with serial lamps. On 8.5.93, the 1st Complainant alongwith her two sons, Karthik and Vinod Kamal, her Mother-in-law, Sarathambal and one Ambika went to the Chitrai. Exhibition. At about 8 p.m., they purchased tickets from the 2nd Opposite Party for traveling in the Ropeway Car. After travelling in the Car the 1st Complainant, her two children and Ambika were getting down the stair case, when they felt an electric shock and fell down by a few steps. THE staff of the 2nd Opposite Party switched off the electricity and brought them down. During this occurrence, the 1st Complainant''s son Vinod came to contact with the live wires and swooned. He was taken to the Govt. Rajaji Hospital, where he was declared dead. A complaint was logded to the Police and a case under Section 304-A of the Indian Penal Code has been registered against the 2nd Opposite Party. On the next day the autopsy was conducted on the body of the deceased Vinod and it was found that death was due to electrocution. THE 3rd Opposite Party, is the Electric Wire Contractor under the 1st Opposite Party; who was provided electric connections. Alleging deficiency of service on the part of the Opposite Parties, the complainants has come forward with the claim for compensation in the sum of Rs. 9,00,000-. The 1st Opposite Party is the Secretary to Government to Tamil Nadu, Department of Information and Tourism. It is admitted that the Madurai Chitrai Exhibition was conducted by Government. It was running smoothly from 24.3.93 to 8.5.93. On 8.5.93 around 8.p.m., it was informed to the Exhibition office that an accident had occurred in the Amusement Complex and a child involved in the accident was taken to Rajaji Hospital and the child died. There was no deficiency of service on the part of this Opposite Party. The Amusement Complex was leased out to M/s. Southern Amusement, who was the highest bidder. According to the 1st Opposite Party the child carried by the 1st Complainant has plucked the serial lights which had been far away from the stair case. It was only due to the negligence on the part of the Mother. It is, further, pointed out that under clause 20 of the agreement entered into between the 1st Opposite Party and the 2nd Opposite Party, the 1st Opposite Party is not liable of any loss or damage.
The 2nd Opposite Party is the person who was running the Ropeway Car. According to this Opposite Party the electricity was provided by the 1st Opposite Party both H.T. and L.T. The H.T. is used for operation of the machines in the park and L.T. for lighting purposes. There is no privity of contract between the complainant and this Opposite Party and there cannot be any liability against this Opposite Party. It is admitted that there are iron ladders for going up and down. It is denied that the stair case handle bars were decorated with serial lamps. The serial lamps were done in poles atleast 1 to 2 feet away from the stair case. It is denied that there was any shock in the stair case. According to this Opposite Party the child must have pulled the serial lamps and this could have happened due to the negligence of the Mother. It is true that after the incident the 1st Opposite Party requested the 2nd Opposite Party not to operate the Amusement Park and it was not operated thereafter. There was no deficiency of service on the part of .this Opposite Party and the claim for compensation is exorbitant.
THE 3rd Opposite Party is the Contractor, who has given the right to instal electric lights in the Exhibition. THEre is no privity of contract between the complainants and this Opposite Party. This Opposite Party did .not render any service to the complainants. This Opposite Party provided electric supply to the pavilion of the 2nd Opposite Party. Internal electrical works, ornamental, serial light fittings were provided by the 2nd Opposite Party himself. This Opposite Party is not liable for any claim. Exhibits A1 to A17 are marked. The lst Complainant has been examined as P.W. 1 and Dr. B. Thiyagarajan, who done autopsy on the body of the deceased child has been examined as. P.W. 2. R.W. 1 is an employee under the 2nd Opposite Party incharge of the Amusement Park where the Ropeway Car was operated and R.W. 2 is the Proprietor of the 3rd Opposite Party Contractor.
THE points that arise for determination are: (1) Whether the complainants are entitled to maintain this complaint against the all or any of the Opposite Parties ? (2) Whether there has been any negligence or deficiency of service on the part of any of the Opposite Party? (3) To what compensation, if any, are the complainants entitled?
Point No. 1 : The 1st Opposite Party has been conducting the Chitrai Exhibition at Madurai in April/May 1993. The various stalls in the Exhibition are leased out to various persons. One of the premises has been leased out to the 2nd Opposite Party, which has been running an Amusement Park with a Ropeway Car. The 3rd Opposite Party is the Contractor, who has installed electrical connections in the entire exhibition area. The 1st Opposite Party who is the authority conducting the Exhibition has been collecting Rs. 2/- for adults and Re. 1/- for children as entrance fee to the exhibition ground. The conduct of the Exhibition is an entertainment service rendered by the 1st Opposite Party for consideration in the form of tickets for entry. Any member of the public who purchase the tickets and go to the exhibition is a consumer, who avails of this entertainment service of the 1st Opposite Party for consideration and is therefore, a consumer, The 1st Complainant and her. children have purchased the tickets and visited the Exhibition. They are, therefore, consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act as regards the 1st Opposite Party. The 2nd Opposite Party has taken the right to run the Amusement Park within the exhibition complex, where he has been running a Ropeway Car. Separate charges are collected by the 2nd Opposite Party from the members of the public, who want to ride in the Ropeway Car. This is also an amusement service under Section 2(1)(o) of the Consumer Protection Act rendered by the 2nd Opposite Party for consideration in the form of tickets. The Complainant No. 1 and her two children, who had purchased the tickets and taken a ride in the Ropeway Car are, therefore, consumers as regards the 2nd Opposite Party also under Sec. 2(1)(d)(ii) of the Consumer Protection Act.
THE 3rd Opposite Party is the General Contractor, who has taken the contract from the 1st Opposite Party for electrical wiring for the entire exhibition area. He gives service connections to various stalls, but the stall holders make separate arrangements for their internal electrification and the 3rd Opposite Party is not concerned therewith. THEre is, therefore, no privity of contract between the persons entering into the exhibition of the amusement park and the 3rd Opposite Party. THE 3rd Opposite Party does not render any service to the members of the public, who visited the exhibition for any consideration. THE 1st Complainant and her two children, who have visited the exhibition and amusement park, run by the 2nd Opposite Party, are not, therefore, consumers as regards the 3rd Opposite Party. THE complaint against the 3rd Opposite Party is not, therefore, maintainable.
POINT No. 2 : We have already held that the Complainant No. 1 and her two children, who have visited the exhibition on 8.5.93 and also the Amusement Park run by the 2nd Opposite Party, are consumers as regards the Opposite Parties 1 & 2. They are, therefore, entitled to maintain this complaint against the Opposite Parties 1 & 2. We have now to find out whether mere was any deficiency of service on the part of the Opposite Parties 1 & 2. It is the case of the complainants that on 8.5.93, the 1st Opposite Party and her two children alongwith one Ambika visited this Exhibition paying with necessary entrance fees. Inside the exhibition complex they purchased special tickets for riding in the Ropeway Car. After riding the Ropeway Car and while coming down the stair case, they felt a shock and fell down. The 4 years old child Vinod, which the 1st Complainant was carrying in her arms touched the serial lamps on the handbar of the staircase and burnt its left hand palm. He became unconscious and was taken to the Rajaji Hospital, where he was pronounced dead. A police complaint has been given. The next day the autopsy was conducted on the body of the deceased Vinod by P.W. 2, Dr. B. Thiyagarajan. Ex. A5 is the Post-Mortem Certificate. He has noticed the following injuries : (1) Electric burns 1 cm. diameter in palm of left hand at the base of index finger with dry pale area with surrounding congestion. (2) Electric burn in the left cheek 2x1 cms.
In the opinion of the Medical Officer, the deceased would appear to have died of electrocution sustained by him. P.W.2 in his examination has also clearly explained mat the injuries found on the deceased body were due to electrocution. There is absolutely no reason cast any aspersion on the testimony of P.W.2 or the Post-Mortem Certificate issued by him under Ex. A5. We are, therefore, held that the deceased boy has suffered electric burns in the palm of the left hand and in the left cheek and has died as a result of electrocution. P.W. 1 is the Complainant No. 1, who has deposed to the fact that Ambika, herself and her two children were descending the stair case after riding the Ropeway Car. According to her they felt a shock and sat down. Her last child Vinod got hold of the hand bar of the stair case, which was decorated with serial lamps. The employees of the 2nd Opposite Party immediately switched off the lights and brought all of them down the child Vinod was unconscious. He was immediately taken to the Rajaji Government Hospital, where he was pronounced dead. The testimony of P.W. 1 is very clear and it shows that the serial lamps were put on the handle bars of the stair case. There has been some leakage in the serial laps, which has led to the shock. As the child placed its hand on the serial lamp, it has got and the left hand palm burnt. It has also suffered injury on the left cheek probably because the child dropped his face on the serial lamp. Inspite of searching Cross-Examination, the testimony of P.W. 1 has not been shaken to the point of disbelief. Small discrepancies here and mere have been pointed out, but they have not in any way affected the veracity of her testimony. Such discrepancies are in fact the hall mark of truth.
The main contention of the Opposite Parties is that the serial lamp was not put on the handle bars of the stair cases, but were fitted two or three feet away by fixing poles. If the serial lamps were fitted away from the stair case, the small child could not have touched the serial lamp and hence the contention that the serial lamps were far away from the stair case cannot be accepted. Immediately after the occurrence, the serial lamps have admittedly been removed and hence Ex. A4 photographs do not show the serial lamps. As already stated it is the case of the Opposite Parties that poles were fixed far away, about three feets, away from the stair case and the serial lamps were tied in these poles. Ex. Al do not, even, show these poles. We are, therefore, convinced that serial lamps had been placed only on the handle bars of the stair case and some leakage from the serial lamp has led to this disaster, when the child has come directly into contact with the serial lamps. The 2nd Opposite Party, who has been conducting the Amusement Park has not taken appropriate care in the installation of serial lamps, and there has been gross deficiency of service on his part. The Opposite Party No. 1, who has given the contract to the 2nd Opposite Party to run the Amusement Park is vicariously responsible for the negligence of the 2nd Opposite Party. We hold, therefore, that the Opposite Parties 1 & 2 are liable for the death of the 4 years old child of the complainants.
POINT No. 3 : This complaint is mainly for claiming compensation for the death of the 4 years old child of the complainants. The 1st Complainant has also stated that she suffered some shock and took treatment elsewhere. But, there is no evidence, therefor. There is also no mark of injury on her person. The 1st Complainant is not, therefore, entitled to claim any damages for personal injury. We have only to consider the case of the death of the child and the compensation to which the complainants as his parents are entitled to. The claim for compensation in the sum of Rs. 9,00,000/- made in the complaint is just fanciful. We have to assess the loss suffered by the complainants on account of the death of their child on the basis of well established principles relating to Fatal Accidents. The two main grounds of awarding compensation to the heirs of a deceased, who died as result of a fatal accident (1) Loss of Dependency and (2) Loss of Expectation of Life of the deceased.
The cause of action in these cases being the pecuniary loss suffered by the death by his legal representatives, the Court ought not to grant sympathetic damages or damages by way of solution for the loss of a son, daughter, wife or husband and father or mother (Debi Singh v. Mangathaya Ammal, A.I.R., 1935 Madras 322). The Court cannot also award damages for mental sufferings. (South Industries v. Alamela Ammal, A.I.R. 1923 Madras 565). As pointed out by the Lord Wright in Davies v. Powell, (1942 1 All.ER 657 HL); "There is no question here of what may be called sentimental damages, bereavement or pain and suffering. It is a hard matter of Pound, Shilling and Pence."
AS the child, which died in this accident was only 4 years old, his parents cannot claim any loss of dependency. In the case of children of tender years, the only head of compensation is for loss of expectation of life. In the case of children of tender years, there is necessarily so much uncertainty about the child''s future that no confident estimate of prospective happiness can be made. When an individual has reached an age to have settled prospects, having past the risks of uncertainties of childhood and having in some degree attained to an established character and to firmer hopes, his or her future becomes more definite and the extent to which good fortune may probably attend him at any rate becomes less incalculable. Generally, therefore, a conventional figure is awarded for loss of expectation of life, whether it be in the case of young children or in the case of adults. In "Corporation of Madras v. Thangammal" (1966 A.C.J. 148 High Court of Madras), the Claims Tribunal awarded compensation of Rs. 5,000/- for causing the death of a child aged 4 years. The owner of the vehicle filed an appeal before the High Court of Madras. The High Court held that in the case of an infant the parents might not have derived any actual pecuniary benefit from the child during the latter''s life time. Yet the Courts often awarded compensation for loss of expectation of life. In that view, the High Court saw no reason to interfere with the compensation awarded. In that case His Lordship Justice Venkatadri after reviewing the English and Indian decisions on the point in extenso came to the conclusion that the sum of Rs. 5,000/- was a sufficient compensation for the loss of expectation of life. This decision has been rendered in 1966 and we are now in 1994 and the value of money has dwindled to a large extent. Taking into consideration the depleted value of money, we hold that a sum of Rs. 20,000/- will be a sufficient solatium for the loss of expectation of life of this 4 year old child. The Complainants will also entitled to costs. In the result, we order as follows: (1) the Opposite Parties 1 & 2 shall jointly and severally pay to the complainants the sum of Rs. 20,000/- as compensation for the loss of their child. (2) The Opposite Parties 1 & 2 shall jointly and severally pay to the complainants the sum or Rs. 3,000/- toward costs. (3) The complaint is dismissed as against the 3rd Opposite Party, but without costs.
Complaint allowed.