NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
(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,
2. Neeraj Mitra,
Son of Shri B.S. Mitra,
C-33, N.D.R.I. Staff Quarters
Project Director, Karnal, (Haryana) … Petitioners
1. Rajesh Mani Kaushik
Son of Shri Surya Mani,
Resident of near City Dispensary,
2. Ali Hussan
son of Shri Sher Khan,
New Patel Nagar,
Opposite Shadipur Bus Depot,
3. Ahmad Ali
Son of Shri Noor Ali,
Resident of 118, Nand Puri
Meerutt Cantt. (UP). … Respondents
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.
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
- Gift items
- Clocks & watches
- Radio & Music systems
- Video games;
- Computer & cellular phones
- 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
- Mopeds/scooters/motor cycles
- Sewing machines
- Leather accessories
- Musical instruments
- 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.