S. Somasundaram                                                         ---   Appellant
                                                           Vs.
The Correspondent, 
Sri Chakravarthy International Matriculation Academy ---   Respondent

Before: Hon’ble Mr. Justice D.P.Wadhwa, President, 
            Hon’ble Mr. Justice C.L.Chaudhry, Member, 
            Mrs. Rajyalakshmi Rao, Member, Mr. B.K.Taimni, Member.

Per Justice D.P.Wadhwa (President)

     Award of compensation of paltry sum of Rs. 10,000/- by the State Commission to the father for death of his only child, a girl of 3-1/2 years of age on account of negligence of the respondent has shocked us. 

     Complainant is the Appellant before us. He admitted his daughter by the name Brinda in Upper KG in the school run by the respondent. Brinda was 3-1/2 years old. On 2.12.93 Brinda went to toilet in the school and there she fell down in the open septic tank and was drowned. Her body was found floating in the tank. The body was taken out from the septic tank and after the post-mortem it was returned to the complainant on the following day. There could not be two opinions that keeping the septic tank open near the toilet where tiny tots study was an act of sheer negligence on the part of the school authorities. Complainant filed complaint before the State Commission alleging deficiency of service in not keeping the toilets and the surrounding area tidy and secure and sought damages. A direction was also sought to be issued to the respondent to close the septic tank. 

     State Commission held that since it was the father of the child who had hired or availed of the services of school in the matter of education for consideration, he was therefore a consumer within the meaning of Consumer Protection Act 1986. National Commission in case of Sreedharan Nair N. Vs. Registrar, University of Kerala (FA No. 643/94) decided on 31.5.01, reaffirmed its earlier view holding that imparting of education is a service within the meaning of Consumer Protection Act 1986 (‘Act’ for short). State Commission has referred to some judgments to hold that the sum of Rs. 10,000/- was enough compensation to the father for the loss of expectation of life of the child.

     We do not think State Commission has appreciated the question in its right perspective. State Commission has solely gone by the Fatal Accidents Act 1855, even though, it held that father of the child was consumer. In Spring Meadows Hospital and Anr. Vs. Harjot Ahluwalia through K.S.Ahluwalia & Anr. (1998) 4 SCC 39 Supreme Court was considering the question as to who is the consumer when a minor is taken to a hospital by the parents and treatment is provided there by doctors and where there is allegation of negligence, it held that not only the child but also his parents were ‘consumer’. Supreme Court went on to observe if parents of the child having hired the services of the hospital, are consumers within the meaning of Section 2(1)(d)(ii) of the Act and the child is also a consumer being the beneficiary of such services hired by his parents, in the inclusive definition of Section 2(1)(d) of the Act, the Commission will be fully justified in awarding the compensation to both of them for injury each one of them has sustained. Supreme Court gave this ruling when the award of compensation to parents was questioned on the ground that clause (d) of sub section (1) of Section 14 of the Act provides for compensation only to consumer and in that case it was only the child who was the consumer.

     Clause (d) of sub section (1) Section 14 of the Act reads as under: 

"to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party".

     ‘Injury’ is a term which we come across in the law of Torts and also when there is a breach of contract. We may refer to Black’s Law Dictionary to understand what the expression ‘loss’ and ‘injury’ would mean. Injury is ‘any wrong or damage done to another, either in his person, rights, reputation or property; the invasion of any legally protected interest of another’. ‘Loss’ is generic and relative term. it signifies the act of losing or the thing lost; it is not a word of limited, hard and fast meaning and has been held synonymous with or equivalent to ‘damage’, ‘damages’, deprivation’, ‘detriment’, ‘injury’ and ‘privation’.

     Child must have been gasping for life when she was getting drowned. She must have suffered a great deal of pain and suffered a lot. According to Black’s Law Dictionary ‘Pain and suffering’ is the term used to describe not only physical discomfort and distress but also mental and emotional trauma which are recoverable as elements of damage in torts. State Commission has said (i) decided authorities have laid down that compensation awarded must be reasonable and that in the present case the child which met with the death on account of negligence of the opposite party was only 3-1/2 years old and that taking into consideration the inflationary trend that is prevailing today we find that a sum of Rs. 10,000/- will be sufficient compensation; (ii) no doubt, the heirs and legal representatives, i.e. Father, Mother and Brothers are entitled to loss of dependency. But in this case, the victim was a three and a half year old child and the complainant cannot, certainly, claim that he has lost any dependency. The claim on the ground of dependency must, therefore, fail; and that (iii) Claim is usually made for mental pain and suffering but it has been pointed out by various judgments that Court ought not to grant sympathetic damages or damages by way of solatium for the loss of a son, daughter, wife or husband and father or mother.

     Section 1A of the Fatal Accidents Act provides for compensation to the family of a person for loss occasioned to it by his death by actionable wrong:

     "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, not withstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime."

     When a school admits a child it undertakes to look after the safety of the child during school hours. This undertaking has been clearly breached in the present case. We have seen the photographs of septic tank filed before us. A bare look at the septic tank shows an appalling sight which is a pointer to the gross negligence on the part of the school authorities. It also appears from these photographs as if school did not have any appropriate toilet facilities and children perhaps had to go in open. It is the duty of the authorities before granting recognition or starting a school to see that proper toilet and other sanitary facilities are provided in the school. There clearly has been deficiency in service. In the present case there are two consumers one the child and the other parents. Not only child has suffered, parents have suffered as well for the loss and injury to the child. They are entitled to damages.

     In the law of torts spouse can claim damages for loss of consortium. Consortium is conjugal fellowship of husband and wife, and the right of each to the company, society, cooperation, affection and aid of the other in every conjugal relation (Black’s Law Dictionary). ‘Loss of consortium’: consists of several elements, encompassing not only material services but such intangibles as society, guidance, companionship, and sexual relations. Damages for loss of consortium are commonly sought in wrongful death actions, or when spouse has been seriously injured through negligence of another, or by spouse against third person alleging that he or she has caused breaking-up of marriage. As held in Spring Meadows Hospital case both the parents and the child would be consumer. Parents in the present case have been deprived of the company of their child, comfort and enjoyment of bringing up the child. If a spouse is entitled to damages for loss of consortium, parents will be entitled for the loss of company of a child.

     Even under the Fatal Accidents Act, the amount of damages to be awarded had to be just. Is the amount of Rs. 10,000/- called just? We do not agree. 

     The amount of Rs. 10,000/- awarded by the State Commission, in any circumstances, cannot be considered as just or reasonable. The appellant had claimed Rs. 5.00 lakhs as compensation on account of death of his child. We are of the view that a sum of Rs. 2.00 lakhs will meet the ends of justice considering the facts and circumstances of the present case. On this amount appellant shall also be entitled to interest @ 6% per annum from 3.12.93 till payment.

     Appeal is accordingly allowed. Respondent shall pay Rs. 2.00 lakhs as compensation to the appellant with interest @ 6% per annum from 3.12.93. Appellant shall also be entitled to cost amounting to Rs. 1,000/-.