NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION
NEW DELHI
(From the order dated 23.12.1998 in First Appeal Nos.435 and 439/98 of the State Commission, Haryana)
1. Haryana
Institute of Fine Arts
through its Manager,
Piush Kumar son of
Shri R.N. Singh
Resident of 724/13, Urban Estate,
Karnal (Haryana).
2. Neeraj Mitra,
Son of Shri B.S. Mitra,
C-33, N.D.R.I. Staff Quarters
Project Director, Karnal,
(Haryana) … Petitioners
Vs.
1. Rajesh Mani Kaushik
Son
of Shri Surya Mani,
Resident
of near City Dispensary,
Qalandri
Gate,
Karnal
(Haryana).
2. Ali Hussan
son
of Shri Sher Khan,
House
No.2151/18-B-3,
New
Patel Nagar,
Opposite
Shadipur Bus Depot,
New
Delhi.
3. Ahmad Ali
Son of Shri Noor Ali,
Resident of 118, Nand Puri
Kakar Khera,
Meerutt Cantt. (UP). …
Respondents
BEFORE:
HON’BLE MR. S.K. NAIK, MEMBER.
HON’BLE MR. JUSTICE R.C. JAIN, MEMBER.
For the Petitioners : Mr. Manoj Swarup and
Mr. Ajay Gupta, Advocates
For the Respondent No.1 : Mr. Parminder Singh, Advocate.
DATED the 25th FEBRUARY, 2008:
Petitioner No.1, Haryana Institute of Fine Arts (NGO as claimed) took
some land on hire of a sum of Rs.7,500/- for five days from the Haryana Urban
Development Authority for organizing a fair (Phulwari Children Bazar) at Karnal
from 12th to 16th November, 1996. Petitioner No.2 was the
Project Director of the Children Carnival organised by the Petitioner No.1.
On 15th
November, 1996, the Complainant along with his wife and two children visited
the carnival. They purchased tickets at the rate of Rs.10/- per person for
boarding merry-go-round from Respondent No.2, who has installed the electrical
swings (Jhoolas). It is contended that Respondent No.2, Ali Hussain, was the
owner of the said electrical swings and Respondent No.3, Ahmed Ali was the
driver of the Jhoola. After the Complainant along with his children boarded the
merry-go-round, it started moving around the fulcrum at a high speed. Suddenly,
the seat on which the Complainant and his family were seated, got detached and
hence they were flung away at a distance of 15 yards on a hard surface, resulting
in injuries to them.
Hence, complaint
No.210 of 1997 was filed before the District Forum, Karnal, claiming a
compensation of Rs.4 lakhs for the injuries sustained and the expenditure
incurred for treatment, against the Petitioner and the owners of the
merry-go-round.
The
District Forum vide its order dated 17.3.1998 allowed the complaint and
directed the Respondent No.2 and 3, i.e. the owner and the Driver of the Jhoola
to pay damages of Rs.20,000/- to the Complainant. The complaint against the
Petitioner No.1 and the Petitioner No.2, i.e. the Haryana Institute of Fine
Arts and the Project Director was dismissed.
Against that order the Complainant
preferred Appeal No.435 of 1998 against the Haryana Institute of Fine Arts for
enhancement of compensation. The owner of the Jhoola, Ali Hussain, has also
filed Appeal No.439 of 1998 against the Complainant, before the State
Commission. The State Commission allowed the appeal No.435 of 1998 filed by the
Complainant and dismissed the Appeal No.439 of 1998 filed by the owner of the
Jhoola. While allowing appeal of the Complainant, the State Commission enhanced
the amount of compensation from Rs.20,000/- to Rs.1,00,000/-. It also held that
Petitioners No.1 and 2, i.e. the HIFA
and its Director were also jointly and
severally liable to pay the said amount along with Respondent Nos. 2 and 3,
i.e. the owner and the driver of the Jhoola.
Feeling aggrieved the HIFA and its
Director are in revision before us.
Findings:
In this Revision Petition, the question which requires consideration is whether the finding recorded by the State Commission that Petitioners No.1 and 2 who organized the carnival were liable to compensate the Complainant for the deficiency in service?
In the present case, it is not disputed that the Phulwari Bal
Bazar was organized on a piece of open land which was taken on rent by the
Petitioner No.1 for a sum of Rs.7,500/- for a period of 5 days from the HUDA.
On the said land Petitioners organized
number of entertainment programmes
for 50,000 school children. The
brochure specifically provides, as under:
“Special attraction on ‘Phulwari’ will be the display of traditional artforms of India, stage performances, swings, fountains, fun and food, handicrafts, exhibition-cum-sale of children products, etc., as national highway No.1 is close to the venue, ‘Phulwari’ will attract the travelers and the people from the connecting cities also.”
……
“A
Promotional Bonanza – Discount Coupon Scheme:
HIFA has designed a unique scheme for the promotion of the children products – “The Discount Coupon Scheme”. Company will provide 50,000 discount coupons of their product which will be distributed among the children. Details is enclosed”
It
is also not disputed that a number of entertainment sales including sale of
food products were installed in the said premises, as per the brochure. The
Exhibitors Scopes as under:
“- All children related products
-
Children wear
-
Foot wear
-
Educational tyos
-
Writing instruments
-
Art amterial
-
School equipments
-
Children furniture
-
Sports goods
-
Stationery
-
Books
-
Gift items
-
Clocks & watches
-
Radio & Music systems
-
Video games;
-
Computer & cellular phones
-
Confectionary
-
Health beverages
-
Milk supplements
-
Food products
-
Dietary products
-
Child care products
-
Skin & hair care products
-
Eye care products
-
Oral hygiene products
-
Health care products
-
Table & kitchen ware
-
Bicycles
-
Mopeds/scooters/motor cycles
-
Sewing machines
-
Leather accessories
-
Musical instruments
-
Cosmetics
-
Handicrafts
-
Fitness equipments
-
Water & air purifier
-
Vacuum cleaner
-
Food stall
-
Fun stall
-
Ice creams
-
Cold drinks
-
Greeting cards
This would mean that the Petitioners got installed number of stalls in the premises by charging various amounts. To that extent it would amount to business.
It is not
disputed that the Petitioner No.1 had permitted Respondent No.2 to install an
electrical swing on the portion of the land by charging a sum of Rs.10,000/- which includes the cost of
electricity. This would indicate that
for a small piece of land, for a few
days, Petitioners shall receive large
amount and that is their profit. It is
also not disputed that for taking a seat on the electrical swing Complainant
was required to pay a sum of Rs.10/-.
It
was mainly contended by the learned counsel for the Petitioner No.1 that it has
not charged any fee for those persons who are visiting and that they were not
having any supervisory authority over running the merry-go-round in question.
Hence, the Complainant was not consumer qua the Petitioners.
In our view, a
person who organizes such a fair or
mela, would be liable for the deficiency
in service rendered by the owner of the merry-go-round. The reason is it is the organiser’s
responsibility to take precautions in Phulwari Mela that no such untoward
incident occurs and such machines are properly installed.
Further, considering the organization
of fair (Mela) wherein a number of stalls were to be installed for sale of
various items is undoubtedly a business venture undertaken by the Petitioners.
The business venture was for sale of various items or for providing various services. One of the
services would be electrical swing,
namely, merry-go-round for which entrance fee is required to be paid. Therefore,
there is no doubt that those who have installed the electrical swing
would be liable.
The next
question is whether the organizers would
be liable?
In the present
case, it is not disputed that the Petitioners have charged a heavy amount of
Rs.10,000/- from the persons who have installed the electrical swings. Recovery
of Rs.10,000/- from Respondent Nos. 2 and 3 by the Petitioner would amount to
indirect charging of fee from the Complainants and many other persons who avail
the services of the electrical swings. Petitioners have paid only Rs.7,500/-
for 5 days as rent, and, thereafter, recovered various amounts from other
persons who have installed stalls for various items as mentioned in the
brochure which is quoted above. Therefore, the Petitioners as well as the
Respondent No.2 and 3 are jointly service providers.
Further,
it was the duty of the Petitioners to supervise such equipments which are
installed in the premises taken by them on rent are safe. They were in control
of the entire fair - Phulwari Children
Bazar. Further, had they taken such care and precaution, such an untoward
incident would not have happened.
Fortunately, the children of the Complainant were not severely injured.
Hence, the Petitioners would be liable for the deficiency in service.
Mr. Manoj
Swarup, learned counsel appearing for the Petitioners relied upon the decision
rendered by the Apex Court, i.e. Municipal Corporation of Greater Bombay Vs.
Laxman Iyer & Anr. (2003) SCC 731 and submitted that there was no
negligence on the part of the Petitioners.
In our view, this judgment is not of help in any way. In the said
judgment it has been observed:
“…..
Negligence is omission of duty caused either by an omission to do something
which a reasonable man guided upon those considerations, who ordinarily by
reason of conduct of human affairs would do or be obligated to, or by doing
something which a prudent or reasonable man would not do. Negligence does not always mean absolute
carelessness, but want of such a degree of care as is required in particular
circumstances. Negligence is failure to
observe, for the protection of the interests of another person, the degree of
care, precaution and vigilance which the circumstance justly demand, whereby
such other person suffers injury. The idea of negligence and duty are
strictly correlative. Negligence means
either subjectively a careless state of mind, or objectively careless
comparative term. No absolute standard can be fixed and no mathematically exact
formula can be laid down by which negligence or lack of it can be infallibly
measured in a given case. What constitutes negligence varies under different
conditions an in determining whether negligence exists in a particular case, or
whether a mere act or course of conduct amounts to negligence, all the
attending and surrounding facts and circumstances have to be taken into
account. It is absence of care according to circumstances…..”
Further, in the case of Rajkot Municipal Corporation & Ors. Vs.
Manjulben Jayantilal Nakum & Ors. (1997) 9 SCC 552 , the Apex Court, in
regard to negligence, held as under:
28. “At the cost of repetition, we may reiterate that negligence is the
omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do. The
defendants might have been liable for negligence, if, unintentionally, they
omitted to do that which a reasonable person would have done, or did that which
a person taking reasonable precautions would not have done”.
The aforesaid
judgments make it clear that the negligence is a failure to observe,
for the protection of the interests of another person, the degree of
care, precaution and vigilance which
the circumstance justly demand. Applying
the aforesaid test, it was the duty of the Petitioners to take care that
equipments which are installed for fun or entertainment are properly managed
and are of standard quality so that mishap does not occur. Therefore, in the
present case, it is absence of care on the part of the Petitioners which had
led to the mishap.
Further,
the Petitioners have undertaken a business
venture may be in the name of
cultural fair (Mela) but undoubtedly, it
was for a large profit and they were, therefore, expected to regulate affairs
in the fair, which a prudent and
reasonable man is expected to take so that there is no occurrence of such
mishap.
The word ‘deficiency’ is defined in Section 2(1)(g) of
the Consumer Protection Act, 1986, which reads as under:
Section 2(1)(g) -- "deficiency"
means any fault, imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance which is required to be maintained by or
under any law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in relation to
any service;
The said definition of the word ‘deficiency’, inter alia, provides that
deficiency would mean any imperfection in the manner of performance which is
required to be maintained in pursuance
of the contract or otherwise in relation
to any service. Therefore, who have organized the fair (Mela) on such a large scale were
required to take proper care and precautions in seeing that service providers
permitted by them takes proper care and caution in protecting the consumers who
spend amount in getting entertainment. As that is not done, it would amount to
deficiency in service by the Petitioners.
In
this view of the matter, there is no substance in this revision and, therefore,
it is dismissed. There shall be no order as to costs.
Sd/-
……………………………..J.
(M.B.SHAH)
PRESIDENT
Sd/-
…………………………………..
(S.K. NAIK)
MEMBER.
Sd/-
……………………………..J.
(R.C.
JAIN)
MEMBER