B.C. Gupta ORDER
Dr. B.C. Gupta, (Presiding Member)
1. This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 19.02.2016, passed by the Odisha State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in CD Case No. 16/2003, vide which, the said complaint filed by the respondent No. 1, was allowed.
2. The facts of the case are that Subrat Kumar Mohanty aged 21 years, son of the complainant Smt. Chunilata Mohanty, who was pursuing his studies as a student of Electrician Trade came to the residential quarter of the complainant situated at G.J.A.I. Colony, Paradeep to spend his vacation. On 09.08.2002, he went for boating to Paradeep Port Boating Club alongwith two friends. It is alleged that they were not supplied any life-safety jackets and there were no motor tubes available on both sides of the boat. At about 1:00 PM, when the three boys tried to return towards the starting point, the boat became imbalanced and capsized, as a result of which the three boys fell into water. The complainant's son got drowned in the incident and died, while his two friends narrowly escaped, as they were acquainted with swimming. The dead body of the deceased Subrat Kumar Mohanty was recovered after about one hour by the personnel of the CISF and sent to B.M. Hospital, where the doctors declared him dead. The medical officer, who conducted autopsy opined that the cause of death was due to asphyxia because of water getting into the lungs. The complainant alleged in the consumer complaint that the incident occurred due to negligent and callous attitude of the OPs, which amounted to deficiency in service, as there was no sufficient life-saving mechanism equipment available at the boating club. The complainant sought directions to the OPs to pay compensation of 8 lakhs to the complainant for the gross deficiency in service on the part of the OPs, as she had lost her beloved son at young age. In the said complaint, the petitioner Paradeep Port Trust has been arrayed as Opposite Party (OP-1), whereas the Tourism and Infrastructure Development Council (TIDC), Orissa to whom the premises had been leased out for running the same, has been made OP-2.
3. The Appellant/OP-1 Paradeep Port Trust filed their reply to the complaint saying that they had handed over the management of the Boat Club to OP-2, Tourism and Infrastructure Development Council (TIDC) and hence, they had no connection with the day-to-day affairs of the Boat Club. There was no deficiency in service, therefore, on their part. As per the documents placed on record, the Paradeep Port Trust had issued notice on 25.01.2001, inviting sealed quotations from experienced organisations/persons to operate the Boat Club alongwith Open Air Restaurant for a period of 6 years, in response to which, the TIDC was the only bidder, who offered to run the said facility. Vide letter dated 20.03.2001, the operation of the Boat Club alongwith the restaurant had been handed over to the TIDC for a period of six years.
4. Vide impugned order, the State Commission, after taking into account the averments of the parties, allowed the consumer complaint and directed the OPs to pay a sum of 5 lakh as compensation to the complainant for gross deficiency in service alongwith 5,000/- as litigation cost. It is against this order that the present appeal has been made before this Commission.
5. During hearing, the Ld. Counsel for the appellant reiterated the grounds taken by them in their reply before the State Commission, saying that the Paradeep Port Trust was not responsible in any manner for the said incident, as they had handed over the management of the Boat Club to the TIDC. The Ld. Counsel has drawn attention to the copies of the documents, showing that the quotations etc. were invited from suitable organisations/persons for running the said Club, in response to which the TIDC was the only bidder and hence, it was decided to hand over the running of the Boat Club to the TIDC. The order of the State Commission directing the appellant to pay compensation to the complainant was, therefore, not in accordance with law.
6. The facts of the case make it very clear that the 21-year old educated son of the complainant, lost his life by drowning at the Boat Club, owned by the appellant, Paradeep Port Trust. The appellant has tried to shift the blame on their lessee, the TIDC, saying that the entire responsibility for running the Boat Club had been entrusted upon OP-2. The documents produced on the file indicate that in the technical bid submitted to the appellant by OP-2, it has been provided as follows:-
"4. Risk of Drowning: Very little
A) Special design of the boats is to avoid any such accidents.
B) 2 Nos. of life Boys & 16 Nos. of life jackets are being provided as a safety measure."
7. Since the TIDC was the only bidder as stated by the appellant, they handed over the operation of the Boat Club alongwith Open Air Restaurant to them for a period of 6 years. It is quite evident that while making such arrangements, the appellant should have ensured that all terms and conditions, and more so, those mentioned in the technical bid were strictly followed. As stated above, the bidder was required to make arrangements for life-boys and life jackets as safety measures. However, the facts and circumstances on record indicate that no life-jackets were provided to the son of the complainant or his friends, when they went for boating at the said Club. The appellant has not stated anywhere whether they had made any arrangements or taken any steps to ensure the safety and security of the persons using the Club. Indeed, the Paradeep Port Trust is a vast organisation, responsible for carrying out various activities concerned with port management. Such an organisation is expected to exercise more vigilance and level of responsibility to ensure that such unfortunate incidents do not happen within the premises managed by them and all possible precautionary steps are taken towards that objective. The appellant cannot get away from responsibility by simply saying that the management of the Boat Club had been handed over to the TIDC. The State Commission have rightly concluded that the appellant is vicariously liable for the acts of omission of the TIDC and hence, liable to pay compensation to the complainant for the negligence and deficiency in service. The State Commission rightly stated that in view of the contract between the Paradeep Port Trust and the TIDC, there was relationship of master and servant between them. The State Commission also relied upon a previous decision made by this Commission in the case, "Vadodara Municipal Corporation v. Purshottam V. Murjani" [MANU/CF/0322/2006 : 2007 (1) CPR 32 (NC)].
8. Based on the discussion above, I do not find any illegality, irregularity or jurisdictional error in the impugned order passed by the State Commission, vide which they directed the OP to pay compensation of 5 lakh to the complainant alongwith 5,000/- as litigation cost. The appeal is, therefore, dismissed and the impugned order passed by the State Commission upheld. There shall be no order as to costs. It is further directed that the payment in terms of the order passed by the State Commission shall be made to the complainant within a period of one month from today, failing which the amount will carry interest @9% p.a. till payment.
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