Decided on July 22,2004

S.Abdul Azeez Appellant


M.SHREESHA,MEMBER - (1.) THE brief facts as set out in the complaint are that the complainants son, S. Abdul Hameed, aged 23 years, a graduate undergoing A level Post Graduate Diploma in Computers at Vivekananda School of Post Graduate Studies paid an amount of Rs. 250/ - towards swimming pool fees to opposite party No. 1 on 7.4.2000 together with an application bearing No. 1879. Opposite party No. 2 issued an identity card according to which the validity was upto 30.4.2000 and the timings allotted to the complainants son was between 4.00 p.m. to 5.00 p.m. every day. In the application form dated 7.4.2000 it was mentioned in column 9 that the applicant was a swimmer. The. complainant mentions here that his son is only a beginner and has begun to learn swimming and by oversight he stated that he is a swimmer. It is submitted that on 19.4.2000 at about 3.30 p.m. he left to the swimming pool and failed to return home. The complainant and his wife were out of town and his other son informed Malkajgiri Police Station but no complaint was registered. On 20.4.2000 at about 11.30 a.m. the complainant was informed that his younger son drowned in the swimming pool on 19.4.2000 itself but was detected only at about 6.15 a.m. on 20.4.2000. The complainants son was taken to Gandhi Hospital at 6.45 a.m., he was declared dead and postmortem was also conducted. Opposite party No. 2 registered a complaint with the police under F.I.R. No. 84/2000. The complai -nant submits that according to the F.I.R., one Mr. G. Ummesh, Incharge of M.C.H. Swimming Pool complained to the police at about 6.00 a.m. one of the members of the swimming pool informed to Mr. Narasimha, a coach that a body was found in the deep water. Immediately the body was brought out of the pool and rushed to Gandhi Hospital.
(2.) THE complainant submits that the opposite parties did not provide experienced and vigilant swimmers and the complainant reiterates that his younger son is only a beginner and not a regular swimmer and that by oversight he filled in the application form stating that he is a swimmer. It is the duty of the opposite parties to observe whether the complainants son had come out of the swimming pool after his time was completed by 5.00 p.m. Even at the time of closing of the pool, no efforts have been made by the authorities to check whether the candidates have left the pool with their belongings. The opposite parties have to maintain the water in a crystal clear manner and even if a small object is lying under the water, it should be visible. The complainant submits that there is no justification as to why none of the coaches or other officials failed to observe the body of the deceased till the next day. There are flood lights from four sides of the pool and unless the swimming pool is badly maintained and the water is muddy and unclear it is impossible for any coach to miss the body of any swimmer. The letter dated 6.4.2000 addressed by the complainants son to the Director of Vivekananda School of Post Graduate Studies requesting for issue of bonafide certificate clearly reveals his intention to join the pool for learning swimming. The complainant further submits that the bright prospectus of his younger son have been nipped in the bud because of the sheer negligence on the part of the opposite party improperly maintaining the swimming pool with the skilled coaches. The entire family has been put to severe mental agony and hardship which cannot be measured in monetary terms. The complainant submits that the opposite parties have committed an act of deficiency of service due to which he lost his son and, therefore, seeks direction to the opposite parties to pay compen -sation of Rs. 19,50,000/ - together with costs of Rs. 10,O00/ - and other reliefs.
(3.) THE opposite parties filed coun -ter admitting that the complainants son joined the swimming pool as a member and paid the prescribed fee and was issued the identity card and the same was valid upto 30.4.2000. It is also submitted that the complainants son was allotted timings between 4.00 p.m. and 5.00 p.m. and that in the application form in Column 9 it was mentioned that the complainants son was a swimmer and not a beginner and the identity card was issued based upon the particulars mentioned in the application form. It is not correct to state that erroneously it was ticked as swimmer. There is a separate part in the swimming pool meant for beginners where more atten -tion is paid for the learners whereas the swimmers will be in the separate section where they will not have the same attention as that of the learners. It is also submitted that the beginners are restricted to an initial depth of 4 -5 feet and the rest of the pool arena is meant for swimmers distinct by ropes. The allegation that the complainants son was only a beginner and was allowed to enter into the swimmers arena due to negligence of coaches is denied. Opposite parties further submit that they will provide their members with quality coaching and all care and caution is taken to safeguard the interest of the learners and swimmers and pure water was maintained in the swimming pool by spraying best quality chemicals necessary for the maintenance of hygiene and transparency of water in the pool. The pool has also provided with shelves for keeping the clothes and other belongings of its members and all the members are instructed to place their belongings and clothes in these shelves only. But unfortunately on that day, the complainants son choose to keep his belongings including his clothes in a bush in the backyard of the swimming pool instead of the shelves provided and, therefore, the swimming pool authorities could not locate the belongings in time. They also submit that though the actual schedule time of the deceased is 4.00 to 5.00 p.m., on that day, he was accommodated as per his request in the time schedule of 6.00 to 7.00 p.m. and added to that there was a power failure due to which there was no way to locate the body of the deceased on 19.4.2000 itself. Regarding the parking of motor cycle, the opposite parties submit that keeping of the vehicle in the parking area will not give raise to any suspicion to the staff since on a number of occasions due to mechanical break down members leave their vehicles and pick up the next day. Opposite parties submit that there is no failure on their part and they have taken proper safety measures and deny that there was any deficiency of service on their behalf which resulted in the premature death of the boy and, therefore, sought dismissal of the complaint. Opposite parties filed additional counter contending that the complainant is not a consumer and hence the C.D, filed under the provisions of C.P, Act is not maintainable and hence sought dismissal of the complaint. The amount of Rs. 250/ - collected by the opposite party is only an entrance fee/application fee but not consideration for any service, hence the complainant is not a consumer. In the application dated 7.4.2000 itself the deceased has declared that the M.C.H. cannot be held responsible for any incident or accident while the applicants son undergo swimming and the doctor who conducted post -mortem has stated in his report dated 20.4.2000 that the cause of death is drowning associated with cervical spine injury. Hence it is clear that the deceased suffered from cervical spine injury while he was in the pool and because of that he drowned and died and not due to any negligence on the part of opposite parties.;

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