SURAT CITY GYMKHANA & ORS. vs AMRITABEN TARUNBHAI SHARMA & ORS.

First AppealNo.170 of 2012 challenges the order dated 21.2.2012passed by Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (State Commission) in Consumer Complaint No.3 of 2006 and has been filed under Section 19 of the Consumer Protection Act, 1986 by theappellants/opponents – Surat City Gymkhana, a registered Trust and society.

Facts relevant to the appeal are as follows. Sri Tarun Sharma, husband of respondent complainant 1 and father of respondent complainants 2& 3, was a life member of appellant opposite party no. 1 and by virtue of this, his wife and children were also members of the said organization. This organization provides amenities for swimming and various sports activities to its members. On 16.12.2005 , Tarun Sharma was at the club as usual. However, on this fateful morning, he tumbled on the ground while on his morning walk. In the absence of any staff/official of the Club, it was left to one other member to take him in his car to Mahavir Heart Institute Hospital, some 5-6 km. away ataround 7.30 a.m..Dr. Apurva Vasavada at the hospital opined that there had been brain damage. So, Dr. Apte, a neurologist was consulted who post-examination, confirmed brain damage.On 17.12.2005 at 2.45 p.m., doctors of Mahavir Hospital declared him dead.

The complaint is that there was no one from the organization’s side to attend to Tarun Sharma when he tumbled and fell. No first aid or any kind of primary assistance was administered to him. Precious time was lost in reaching him to a hospital. This amounted to serious callousness, unfair trade practice and deficiency in service. It is alleged that Sri Tarun lay on the track for quite some time, 30 minutes or so, and that the delay in reaching him to a hospital was critically fatal. The respondent complainants nos.1 to 3 lodged compliant with the State Commission, seeking the following reliefs :-

(i) Rs.40,00,000/- compensation with 9% interest from the date of complaint to the date of payment;

(ii) Rs.5,00,000/- each to the 3 complainants as compensation for mental tyranny, harassment and hardship;

(iii) costs incurred.

This complaint was contested before the state commission. The appellants opposite parties1 to 3 submitted that their organization was a trust, a society formed by and for its members and thus no individual responsibility could be fixed on its officials. Further, it was a non-commercial, non-profit, non-business organization, run by and for the benefit of its members. As such, the complainant member was not a consumer (and by implication the organization could not be considered a service provider). The organization was registered as a Public Trust and had taken a Public Liability Non Industrial Risk policy with National insurance Corporation Ltd.for Rs.25 lakh.

Facts and sequence of events were also contested. The appellant opposite party no. 1 held that the club had facilities for regular medical check- ups of its members; however, the deceased never availed of the same nor had he given any intimation to the club of his heart problem.On 16.12.05 , the deceased came in at 6:30 a.m. and was walking at 7 a.m. There were members walking behind him. So when he fell, one member, Sri Kishan Mehra immediately ran to him and ‘started giving him treatment’. Further, as 13 staff including instructor are always present from 5:30 a.m., at 7:15 a.m., they came to know and administered first aid immediately, including oxygen. Instructor Sri Yogesh Gambla, Kishan Mehra and Manager Sri Prakshbhai were in attendance. Sri Tarun Sharma was rushed to hospital as soon as possible and the delay that would have been there had they called an ambulance was also not there. In this way, there was no delay and no deficiency in service. Further, Manager as also Kishan Mehra had intimated his wife/complainant 1 at 7:15 a.m., so there was no delay in informing the family either. The certificates of the two Doctors of the hospital which suggested that ‘due to about 30 min delay in reaching available facility’he suffered irreversible brain damage and expired, has been challenged as being merely an opinion, not a proven fact.

Respondent/Opposite Party no. 4 was impleaded on 27.08.08. Their simple plea was that the complaint was time barred since the cause of action viz. death of Sri Tarun Sharma was on 17.12.05. Further pleas taken were that the insurance company was not informed of the incident promptly; that the policy covered only accident, and the incident of falling down and then succumbing to cardiac failure could not be taken to be an accident.

The State Commission heard the counsels, considered the rival submissions of the parties, including the questionnaires and concluded that the respondent/complainant had succeeded in proving their case. Accordingly, they allowed the complaint and directed as below:

“Complaint is allowed.

Complainants shall recover Rupees 18,00,000/- from the opponents jointly and severally with an interest of 6 percentage from the date of filing the complaint till actual realization of that amount.

Opponents shall bear their own cost and shall pay Rupees 10,000/- to the complainants as a cost of the complaint.”

Hence this First Appeal against the impugned order reproduced above.

Heard at length the learned counsels for both the parties.

Counsel for the appellant opposite parties 1 to 3, in his arguments, sought to establish that the death of Sri Tarun Sharma was a natural death, and was, under no circumstances, attributable to any other factor than an act of God. He argued that the death could not be related to any deficiency in service on the part of the Club. 10. In support, the Counsel argued that reliance placed by the State Commission on the affidavits of Sri Ajay Kejriwal, the member who took Sri Tarun to the hospital, and the two Doctors who attended the deceased at the hospital, was improper. The observations in these affidavits that the delay of around 30 mins. in reaching the deceased to “available facilities” caused irreversible brain damage and led to death, was but an opinion. It was argued that the use of the phrase available facilities left open the question as to what precisely was meant by this; thus, was it the delay in reaching him some aid at the site of the incident, or in reaching him to the hospital, or having reached the hospital, the delay in consultation with the family Doctor, and so on.It was further argued that no medical records were produced to establish clearly the time the deceased reached the hospital etc. Finally, it was argued that it was for the complainant to prove that the death was on account of any negligence or defect in service, and that this had not been done. As such, the appeal was bound to succeed.

The Counsel for Respondent/opposite party no.4 made his submission that the burden of proving negligence lay on the respondent complainants; that it was immaterial as to how and by whom the deceased was taken to the hospital as long as it was within reasonable time; and that the extent of delay, 30 min or whatever, would depend upon how and from when it was calculated.

Counsel for the respondents complainants submitted forcefully that the appellants were evading their responsibility. As a pointer to their callousness, he drew attention to para 53 of the state commissions order wherein it has been mentioned that the arguing counsel on behalf of the appellants had actually submitted that after the incident, it was not the responsibility of the organization to carry him to the hospital, suggesting that such a service was not a part and parcel of the institution. The counsel further submitted that various attempts were being made to mislead and confuse by harping on irrelevant details such as the exact time, the precise quantum of delay, and so on when the simple truth was obvious viz. there was no one from the club to attend to the deceased when he tumbled and fell down. This meant that he could be transported to the hospital only with a delay which in the opinion of the attending Doctors may have been critical. He further submits that no evidence by way of affidavits have been filed on behalf of the organization to support their claims of staff being available etc.. As such, the appeal is bound to fail.

Undisputed facts are few viz. Sri Tarun Das was a life member of the Club, having paid the requisite fees and was a regular user of its facilities, including walking; and that he did come to the club on the morning of 16.12.05 and while walking fell down; and that he was taken to the hospital thereafter where he succumbed on the next day.

What is disputed are the details about the happenings after the incident, with different scenarios being presented by the parties as seen in paras above. While the respondent complainants are clear that there was no one present at the time of the incident, that no first

aid nor any primary support was extended, and that there was delay in both transporting the deceased as well as informing his family, the appellants opposite parties 1to 3 insist that their staff were present and that it is they who took them to the hospital as quickly as was possible and also gave some first aid. The delay, as per the respondents complainants was critical and led to death; there was no delay as per the appellants opposite parties and in any case the death was a natural phenomenon, not attributable to anything other than an act of God.

Having perused the written documents before me, including the complaint, the reply thereto and the rejoinder filed in response, along with the detailed order of the state commission, and having heard the counsels for the parties at length, I am of the consideredview that that the state commission’s ordersare well reasoned and based on the available evidences.

An organization such as the appellant organization is essentially a club which provides certain facilities to its members against payment of a consideration comprising one time and recurrent fees. In this view, the appellant organization is a service providerand the deceased Sri Tarun Das was it’s consumer, as were his wife and children. This question was raised by the appellants opposite parties 1 to 3 before the state commission. One argument advanced was that since there was no instrument or equipment of the club that had caused the fall, there could not be any defect in service. Another argument was that the organization was a Trust and a society duly registered under relevant Acts and was nonprofit in nature. Both these were dismissed by the commission and correctly so. The fact that the incident of fall was not on account of any defective equipment is missing the point completely which is that there was no one responsible in attendance to look after precisely such mishaps. This was the deficiency or defect in service. Again, if cover of a Trust is taken, the organization should have listed the trustees. This was not done, so this cannot be a defence at all.

Again, harping on finer details of the cause of death, or on the fact that there was no service contract as such, is again missing the point. This point is that the member was a consumer of the club’s services and at his time of need, these services were found completely wanting. The appellant opposite parties have been unable to prove their case that they had staff in position who did the best they could. The very fact that they failed to produce any evidence at all, even by way of affidavits of their officials who were present and who provided first aid and who helped take the deceased to the hospital, speaks volumes and is self-incriminating. On the other hand, the respondent/complainants have furnished adequate evidence before the state commission to establish that there was no help whatsoever from the club they were members of, and that this amounted to callousness and thus severe deficiency in service.

In view of the foregoing discussion, I find no infirmity in the order of the State Commission and therefore, the same is upheld.