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Ganji Mohan & Another v/s ODEL Solid Fitness rep. by its Managing Partner Mr. Dharma Prasad & Another

    CC No. 265 of 2014

    Decided On, 11 September 2017

    At, Telangana State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MR. JUSTICE B.N. RAO NALLA
    By, PRESIDENT & THE HONOURABLE MR. PATIL VITHAL RAO
    By, JUDICIAL MEMBER

    For the Complainants: M/s. K. Venkateswarlu, Advocate. For the Opposite Parties: J. Venugopal, Advocate.



Judgment Text

Oral Order: (B.N. Rao Nalla, President)

1. This is a complaint filed Under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 by the complainant to direct the opposite parties to pay an amount of Rs.50,00,000/- towards ultimate death of complainants’ son along with interest @ 24% per annum from the date of complaint, to pay compensation of Rs.5,00,000/- for causing mental agony, negligence and deficiency in service and unfair trade practice, and costs of Rs.50,000/-.

2. For the sake of convenience, the parties are described as arrayed in the complaint.

3. The case of the complainants, in brief, is that their son, by name, Venu, who is aged about 26 years and very hale and healthy and not suffering from any ailments, used to help the first complainant in his business at Ghatkesar. His son worked in Scotland from 22.04.2009 to 16.08.2012 and used to earn Rs.1,50,000/- per month and he is under planning to go to USA as his elder brother is there. While the things stood thus, he joined the opposite parties’ fitness centre along with his friend Mr. G. Uday Kumar on 11.02.2014 by paying Rs.4,000/- towards part payment out of Rs.12,000/- for a period of one year vide Bill No. 1188 dated 28.02.2014 and used to go there regularly in the morning hours along with his friend. On 09.03.2014, their son attended the gym as usual but did not return home till evening. All of a sudden Mr. Udai kumar, who did not attend the Gym on that day, informed them that their son fell down, all of a sudden, while doing exercises in the gym. Immediately they rushed to the Gym Centre at 4.00 PM and found their son was lying in between the thread-mills. They shifted their son in an unconscious state to Kamineni Hospital, L.B. Nagar by 108 Ambulance, where the doctors declared that their son was brought dead. They alleged that the opposite parties failed to provide proper care or minimum requirements at Gym, there is no coach or instructor during Gym hours on the unfateful day and even there is no attendant at that time. As per the footage of the C.V. T.Vs, their son was suddenly fallen while doing thread-mill at about 2.00 PM. At that time, even there was no lighting and no proper air-conditioning. Their son died only due to improper and careless maintenance of Gym against the Gym norms. Even after the incident also, the opposite parties did not provide proper technical and immediate medical aid to their son. L. B. Nagar police registered a case in Crime No. 240 of 2014 against the opposite parties. They got issued legal notice dated 26.06.2014 which was received by OP.2 on 28.06.2014, but, failed to give any reply. The acts of the opposite parties amount to gross negligence, unfair trade practice and deficiency in service. Hence the complaint.

4. The opposite parties opposed the above complaint by way of written version contending that there is no documentary proof that the complainants are the parents of G. Venu, he joined on 28.02.2014 but not on 11.2.2014 as alleged and admitted that he paid an amount of Rs.4,000/-out of Rs.12,000/- and he signed the brochure containing the terms and conditions and he was allotted morning hours to attend the Gym. The Gym timings are 6 am to 10 pm and on Sundays from 8 am to 2 pm. On 09.03.2014, the deceased came to Gym at 12 pm and did his workouts with the help of trainers, i.e. Kolan Hanuma Reddy and Cherukuri Madhu and completed at 1.40 pm. Along with the said trainers, Mantri Kishore, sweeper, Sudhakr, Receptionist and Jeevan, Manager in the gym were also present from 8 am to 2 pm. The deceased came out and sat for some time in the reception and suddenly before the closure of the Gym he went inside the Gym on the pretext of taking some of his belongings and started doing again on thread-mill and the receptionist by name Sudhakar informed him to stop the workout as he has to close the gym and came out and was busy outside. After sometime, again, when Sudhakar went inside as the deceased did not come out even after his telling, he noticed the decease lying on the floor and he thought that he is taking rest and at about 2.40 pm when he again tried to wake him he did not respond and immediately informed his friend Mr. Uday Kumar and shifted him to Kamineni hospital where the doctors examined him and declared brought him dead. On the complaint of first complainant, Crl. No. 240/2014 was registered and after PME examination, Dr. Sujath, gave opinion that the deceased expired due to Hypertrophic Cardiomyopathy of the heart - A natural death. The deceased suppressed the heart problem and there is sheer negligence on his part. They explained the terms and conditions of the Gym and was also given membership form along with disclaimer which was accepted and signed by the deceased before joining the gym. There is no negligence and deficiency in service on their part. Hence prayed to dismiss the complaint.

5. During the course of enquiry, in order to prove their case, the complainants filed evidence affidavit and got marked Ex. A1 to A14 and the opposite parties filed evidence affidavit and got marked Ex. B1 to B3.

6. Counsel on both sides had advanced their respective arguments reiterating the contents of complaint, written version, affidavit evidence in addition to the filing of written arguments. Heard both sides.

7. The points that arise for consideration are

(i) Whether there is any deficiency in service on the part of the opposite parties and whether the complainants are entitle for the reliefs as prayed for ? If so,

(ii) to what relief ?

8. POINT NO. 1:

There is no dispute that the deceased Venu, who was aged about 26 years, joined the Gym of opposite parties on 28.02.2014 by paying an amount of Rs.4,000/-out of Rs.12,000/- and he was allotted morning hours to attend the Gym. There is also no dispute that the Gym timings are 6 am to 10 pm and on Sundays from 8 am to 2 pm. There is no dispute that on 09.03.2014, he attended the Gym and fallen on the thread mill, Receptionist Sudhakar informed the friend of Venu, Mr. G. Uday Kumar, the father of Venu arrived and the deceased was brought to Kamineni Hospitals, where the doctors declared brought him dead.

9. The dispute is about the death of Venu due to negligence, improper and careless maintenance of the Gym by the opposite parties, which also amounts to unfair trade practice and deficiency in service.

10. (i) The first contention of the complainants is that there is no qualified coach or instructor during Gym hours on the fateful day and even there is no attendant at the time of the incident.

ii. Counsel for the opposite parties rebutted the same contending that on 09.03.2014 two trainers, by name, Kolan Hanuma Reddy, Cherukuri Madhu were present in the gym from 8 am to 2 pm along with Mantri Kishore, Sweeper ; Sudhakar, Receptionist and Jeevan, Manager, He further argued that On 09.03.2014, the deceased came to gym at 12.00 pm and did his workouts with the help of above trainers and completed at 1.40 pm. He further argued that the deceased came out and sat for some time in the reception and suddenly before the closure of gym he went inside the gym on the pretext of taking some of his belongings and started doing again on thread-mill and the receptionist Sudhakar informed the deceased to stop the workout as he has to close the gym. From the above, it appears, the deceased completed the workouts till 1.40 PM and again started doing thread-mill. It is not the case of the opposite parties that other co-members are there along with the deceased Why did he permit the deceased after 2.00 PM again to workouts without the presence of two trainers. But, it is not known, as to why, the Receptionist who wanted to close the gym at about 2.00 PM, waited till 2.40 PM. The above facts do not show the presence of the Manager or any other person, at that time, that is why, Sudhakar, Receptionist informed the Mr. Uday kumar, friend of the deceased about the incident. Sudhakar wanted to close the gym because nobody was there including the staff members and co-gym-members, hence inference can be drawn from the above facts that the deceased was the only one member along with the Receptionist Sudhakar at the time of incident in the Gym. . But the affidavit of the said Sudhakar was not filed in support of their contention by the opposite parties. The opposite parties did not file, at least, copies of the Attendance Register, if they were brought by police for investigation. The opposite parties failed to prove that the above two trainers were present at the time of the deceased doing workouts.

iii. The complainants relying on the footage of the CC TVs stated that the deceased person was suddenly fallen while doing thread-mill at about 2.00 PM and at that time there is no lighting and no proper air conditioning and no coach or person is available, however, it was not contradicted by the opposite parties either in the written version or written arguments that there were no footage of CC TVs. There is no dispute that the incident had occurred on 09.03.2014, which happened to be Sunday. As per the version of the opposite parties, the gym working hours are from 8.00 am to 2.00 pm on Sundays. The counsel for the opposite parties argued that one Sudhakar, Receptionist informed the deceased to stop workout for the first time. For the second time, he noticed the deceased was lying on the floor and thought that the deceased was tired and taking rest. As per the version of the opposite parties, at about 2.40 PM, when Mr. Sudhakar again went inside and tried to wake him up, he did not respond. But as per the footage of CCTVs he fell down on the thread Mill at about 2.00 pm. The deceased’s father alleged that when he rushed to the Gym at about 4.00 pm, he found that his son was lying in between the thread-mills. Hence the version of the opposite parties cannot not be believed to be true. It discloses that there is 40 minutes gap in between falling of the deceased on the thread mill and finding him so by Sudhakar and during the said 40 minutes nobody took care of him because nobody was there except Receptionist Sudhakar and he also did not take care till 40 minutes.

iv. In support of their contention , the complainants also relied on Ex. A8, Panchanama, which, discloses that nobody present at the time of mis-hap and he was fallen in the midst of the machine and Ex. A9 Final report of the police, which, concludes that, ' while the deceased was doing workouts on thread Mill machine all of a sudden he collapsed and fell in the midst of machine and nobody present there to look after him and opined that ' thus, A1 to A3 were aware that if anybody makes workouts without instruction and not under supervision of coach it may cause the death of person. Thus the acts of the accused A1 to A3 constitute an offence punishable 304 (ii)IPC and City Police Act-1348 Fasli No. IX, r/w rule of 7 Cyberabad Metropolitan Police Act, 2004

v. (v) Counsel for the opposite parties argued that Ex.B-3 = Ex.A10 Forensic report issued by Dr. M. Sugatha, Associate Professor, Osmani Medical College, Hyderabad shows that the death was due to ' Hypertrophic Cardiomyopathy of the Heart – A natural death ' and hence the deceased died purely due to his cardiac problem, which, was rebutted by the complainants, stating that the deceased was hale and healthy and he has no heart problem and argued that the opposite parties failed to prove the same with any cogent medical record. In that connection, the complainants further argued that the report of Dr. M. Sugatha is only an opinion for cause of death but failed to give any reason to the cause. As pointed out by the complainants, the opposite party did not adduce any evidence to prove that the deceased suffered with any previous heart problem. The post mortem report also did not disclose the reason to the cause of death as contended. The opinion of the doctor reveals that it is natural death. The deceased is aged about 26 years . It appears that he is hale and healthy and he is assisting his father in business. Under the sub-heading,‘ C-CHEST’ against the column no.8, Heart of Pericardium, in Ex.A9 Post-mortem report, it is mentioned as , ' Congested and enlarged of 15 X 15 X 7 cms and dilated with partially clotted blood present '. Except that, no particular disease was attributed against the deceased in the post-mortem. It is not the opinion of the Forensic doctor that the deceased suffered previous heart ailment or any other ailment. The said Forensic doctor was not examined by either side. We cannot accept Ex. B-1 and B-2 disclaimer and Membership Form respectively because those are not belonging to the deceased, but, they belonging to third person. However, Clause no. 4 of Disclaimer, discloses that the ' reaction of heart, lungs and blood vessel system to exercise cannot always be predicted with accuracy and there is a risk of certain abnormal changes occurring during or following exercise which may include but not be restricted abnormalities of blood pressure or heart attack '. It appears that the deceased did his workouts till 1.40 pm, thereafter he sat for some time in the reception with Sudhakar and again started at about 2.00 pm. It infers that he spent 20 minutes in the reception with the receptionist Sudhakar. All the above facts reveal that he was keeping well till at about 2.00 pm and immediately after he started again at 2.00 pm he fell down on the midst of the machine and the complainants came there at about 4.00 pm. The deceased father stated that in an unconscious state the deceased was brought to Kamineni Hospitals, which, was not contradicted by the opposite parties. From which, it can be drawn that the deceased was alive till 4.00 pm. Hence there is a gap of about two hours. In these two hours, the opposite parties did not take any care. It is to be established that if the deceased died due to heart attack, whether he could survive for about two hours in the Gym. But the forensic doctor was not examined.

vi. As per the version of the opposite parties, the Receptionist Sudhakar tried to wake him up at about 2.40 pm. Even then also, 80 minutes time is there from 2.40 pm to 4.00 pm. But he did not take immediate steps to give him immediate medical aid.

(vii). It is not known whether the deceased has taken any drink or snacks or any food during the said intermittent period of 20 minutes time when he spent with the Receptionist Sudhakar. But, Ex.A-9 post-mortem report, under the sub-heading, D-ABDOMEN, reveals that ' about 150 gm of reddish brown semi-digested food present with pungent odour and mucosa congested. Ex.A-8, Panchanama, reveals that after falling down in the midst of the machine he moved to and fro. Being Sunday on 09.03.2014, it is not known whether electric power there at that particular time. Further, as per the Ex.A-10 Final report of the police, the police established that the Gym was established without taking permission from concerned authorities under Shops and Establishments Act.

11. The contention of the opposite parties with regard to the documentary proof of parentship of the complainants cannot be accepted since the death certificate Ex.A2 issued by GHMC categorically reveals that the complainants are the parents of the deceased.

12. As alleged by the opposite parties, the complainants did not produce any documentary evidence to show that the deceased worked in Scotland from 22.4.2009 to 6.8.2012. However, Ex,A-12 tax receipt discloses that an amount of 2101.60 UK pound sterling was deducted towards tax on the income of 17,987.96 UK Pound sterling per year from his employer for the year 2012.

13. The deceased was aged about 26 years as on the date of his death. Since the complainants lost their son in the said incident naturally they are entitled for the compensation on account of the said death. Multiplier method is the safest one to arrive at the conclusion with regard to compensation for which, age of the deceased, avocation and income of the deceased are relevant. The complainants stated that their son worked in Scotland from 22.04.2009 to 16.08.2012 and used to earn Rs.1,50,000/- per month and he is under planning to go to USA to his brother and now the deceased has been helping to his father in his business. Further the complainants filed Tax receipt vide Ex,A-12 which discloses that an amount of 2101.60 UK pound sterling was deducted towards tax on the income of 17,987.96 UK Pound sterling per year from his employer for the year 2012. Keeping in view the above, the notional income of the deceased may be fixed at Rs.10,000/- as his monthly earnings and it comes to Rs.1,20,000/- ( 12 x 10,000 ) per year . Thus, the annual loss of dependency of the complainants comes to Rs.1,20,000/-. However, out of the said notional income of the deceased, 1/3rd thereof has to be deducted towards personal expenditure of the deceased, had he been alive, thus, net loss of dependency comes to Rs. 80,000/- ( Rs.1,20,000 – 40,000) per annum. Thus, by applying 18 multiplier, on the basis of the age of the deceased as 26 years, as contained in the second Schedule of M.V.Act, 1988, it comes to Rs.14,40,000/-. Added to it, a sum of Rs.5,000/- towards funeral expenses and Rs.5,000/- towards loss of estate has to be awarded. Thus, the total compensation payable to the complainants comes to Rs.14,50,000/-. The complainants are also entitled to costs of Rs.5,000/-.

14. After considering all the foregoing facts and circumstances and also having regard to the contentions raised on behalf of the complainants and opposite parties, in birds eye view, this Commission is of the view, the deceased Ganji Vasu joined the opposite parties’ Gym by paying Rs.4,000/- out of Rs.12,000/- per year, he was allotted morning hours and he used to attend the Gym regularly. As usual on 09.03.2014 at around 12.00 hours t

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he decease went to Gym and did it till 1.40 pm. Thereafter, he spent at about 20 minutes in the reception with the Receptionist Sudhakar and again came to the Gym and while doing on the workouts on thread mill machine all of a sudden he collapsed and fell down in the midst of the machine. But the working hours are from 8.00 am to 2.00 pm being Sunday. Thereafter, about 2.40 pm when the Receptionist Sudhakar tried to wake him up the deceased not responded. Then the said Sudhakar made phone call to the friend of the deceased, Uday kumar, who, in turn, made phone call to the father of the deceased and both of them came to the Gym at about 4.00 pm. By that time he was alive but in unconscious state and then they brought him to Kamineni Hospitals, where, the doctors declared him brought dead. The Forensic doctor declared that it is natural death. At the time of the deceased doing workouts, except Receptionist, nobody was present. After collapse, nobody noticed the deceased for about 40 minutes. Even after noticing the deceased, no immediate medical aid was provided. At about 2 hours no medical aid was given to the deceased, and by the time the father of the deceased came to the Gym and brought him to Kamineni Hospital for treatment, he was no more and the same is due to negligence and deficiency in service on the part of the opposite parties, hence they are jointly and severally liable to pay an amount of Rs. 14,50,000/-towards compensation for the death of the deceased and costs of Rs.5,000/. Hence point no.1 is answered accordingly in favour of the complainants and against the opposite parties 1 and 2. . POINT NO. 2: 15. In the result, the complaint is allowed in part and the opposite parties 1 and 2 are held liable and directed jointly and severally to pay an amount of Rs.14,50,000/- towards compensation and costs of Rs.5,000/- to the complainants within four weeks, failing which, it would attract interest @ 9% pa on the above amounts from the date of the order.
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