IN THE HON’BLE DISTRICT CONSUMER DISPUTE REDRESSAL

FORUM, CHANDIGARH

Case No. ___/2018

IN THE MATTER OF

Child represented through Father....................................................................... Claimant

VERSUS

Rose International School, Chandigarh............................................................... Respondent

1
 INDEX

LIST OF ABBREVIATIONS…………..……………………………………………….…...…2

INDEX OF AUTHORITIES…………...………………………………..............………….….3

TABLE OF CASES……………………………………………………………………........…..4

STATEMENT OF JURISDICTION………..……………………….......................….…...…..5

STATEMENT OF FACTS…………………..………………………………………...….....….6

STATEMENT OF ISSUES………………….……………………………………………….…7

SUMMARY OF ARGUMENT……..………….……………………………………........……8

ARGUMENTS ADVANCED…………………...………………………………………...…..9-18

CONTENTION 1: Whether the Plaintiff comes under the Definition of Consumer as given
under the Consumer Protection Act, 1986?

CONTENTION 2: Whether the School authorities are negligent and should be made liable
for the accident during school excursion or not?

Prayer……………………………………………….................................……………………...19

2
 ABBREVIATIONS

 Cri : Criminal
 AIR : All India Reporter
 & : And
 P : Page
 ¶ : Para
 Hon’ble : Honourable
 Ed. : Edition
 Vol. : Volume
 Co. : Company
 Art : Article
 Pvt : Private
 Ltd : Limited
 M.P : Madhya Pradesh
 A.P : Andhra Pradesh
 U.P : Uttar Pradesh
 Raj : Rajasthan
 PW : Petitioner Witness
 SC : Supreme Court
 SCC : Supreme Court Cases
 V : Verses
 Anr : Another
 UOI : Union of India
 Spl : Special

3
 INDEX OF AUTHORITIES

Statutes:
 The Consumer Protection Act, 1986
 The Code of Civil Procedure, 1908

Books referred:
 Dr Avtar Singh, Law of Torts, (8th ed , 2002).
 Dr. R.K. Bangia, Law of Torts, (24th ed, 2017).

Dictionary:

 P. Ramanath Aiyaris, Concise Law Dictionary, ed.5, 2014

 Black’s Law Dictionary

4
 TABLE OF CASES

 Alka Devi v. Union of India , AIR 1993 Delhi 267.

 B.N.M. Educational Institutions v. Kum Akshatha, 2016 SCC OnLine NCDRC 1116
 Balchandra Waman Pathe v. State of Maharastra, 1968 Mah L.J. 423.
 Barwick v. English Joint Stock Bank (1867) L.R. 2 Ex.259, 266.
 C.K. Subramania Iyer and Others v. T. Kunhikuttan Nair and Six Others , [(1969) 3 SCC
64].
 Chairman, M.P. Electricity Board, Rampur v. Achhelal Lodhi, AIR 2013 M.P. 141.
 Dongue v. Stevenson, (1932) A.C. 562.
 Dr. M Mayi Gowda v. State of Karnataka, II (1996) C.P.J. 307.
 DTC V. Lalita, AIR 1982 Delhi 267.
 Franklin v. The South East Railway Company (157 English Reports 3 H & N, p.448).
 General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma
Thomas and Ors., 1994 (2) SCC 176.
 Gobald Motor Service Ltd. v. R..M.K. Veluswami, AIR 1962 SC 1.
 Ishwari Devi v. Union Of India, AIR 1969 SC 183.
 Jacob Mathew v. State of Punjab, AIR 2005 SC 3180.
 Kooragang Investments Pty. Ltd. v. Richardson & Wrench Ltd. (1982 A.C. 462).
 Lata Wadhwa and Others vs. State of Bihar & Others, Civil Writ Petition No. 232 of
1991
 Lloyd v. Grace, (1912) A.C. 716.
 M.P. State Electricity Board v. Ramlal Vishwakarma, AIR 2012 M.P. 157.
 M.S. Grewal & Anr v. Deep Chand Sood & Ors , (2001) 8 SCC 151.
 Makbool Ahmed v. Bhura Lal, AIR 1986 Raj 176.
 Morris v. Douglas County 403 P 2d 775, (Ore. 1965)
 MPSRT Corporation v. Abdul Rahman, AIR 1997 MP 248.
 Poonam Sharma v. Union of India , AIR 2003 SC 467.
 Premwati Soni v. State of Rajasthan, AIR 1977 Raj 116.
 Prince and Another v. Gregory and Another (1959(1)WLR177).

5
 R Srinivasa v. K.M. Parasivamurthy, AIR 1976 Kant. 92.
 R v. Lawrence, (1981) 1 All E.R. 974 (HL).
 Railway Company of Canada v. Jennings (13 Appeal Cases 800).
 Ricketts v. Erith Borough Council and Another (1943 (2) All ER 629),
 S Dhanaveni v. State of Tamil Nadu, AIR 1997 Mad. 257.
 S Somasundaram v Sri Chakravarthy International Matriculation School, 2001 SCC
OnLine NCDRC 1354.
 Spring Meadows Hospital & Anr. Vs. Harjot Ahluwalia through K.S. Ahluwalia & Anr,
(1998) 4 SCC 39.
 Sreedharan Nair N. Vs. Registrar, University of Kerala (FA No.643/94) decided on
31.5.01.
 State Bank of India v. Shyama Devi, AIR 1978 SC 1263.
 Syed Akbar v. State of Karnataka, (1980) 1 SCC 30.
 Taff Vale Railway Company v. Jenkins [(1913) AC 1].

6
 STATEMENT OF JURISDICTION

The Claimant has approached the Hon’ble District Consumer Redressal Forum under section 11
of the Consumer Protection Act, 1986, which reads as follows;

“11- Jurisdiction of the District Forum-

(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to
entertain complaints where the value of the goods or services and the compensation, if any,
claimed 1[does not exceed rupees twenty lakhs].

(2) A complaint shall be instituted in a District Forum within the local limits of whose
jurisdiction,—

(a) the opposite party or each of the opposite parties, where there are more than one, at the time
of the institution of the complaint, actually and voluntarily resides or [carries on business or has
a branch office or] personally works for gain, or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the
complaint, actually and voluntarily resides, or [carries on business or has a branch office], or
personally works for gain, provided that in such case either the permission of the District Forum
is given, or the opposite parties who do not reside, or [carry on business or have a branch
office], or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.”

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 FACTS OF THE CASE

Rose International School in Chandigarh, known to be one of the best in town. It believed in the
holistic development of a child. Along with studies school arranges trips for children. Continuing
with this trend the school organised a 1 day trip for students of classes 4-9 to Shimla. It was not a
mandatory trip & only interested students had to deposit money along with a declaration signed
by their parents which stated that the school would take all the precautions, but in event of
something unavoidable happens the school would not be held responsible. About 100 students
from all classes gave their names. Class teacher, one more teacher & a helper were to accompany
the students in each class. Strict instructions were given to the students & students were not
allowed to go any place without the knowledge. However during lunch time, while the teachers
sat down for lunch, students were strictly instructed to not to move from their place & 2 helpers
were asked to keep an eye on them. But 2 students wanted to see the river & went down the cliff
& one of them fell down the deep ditch and was injured badly, that his leg suffered multiple
fractures. He was taken to the hospital where the doctors told that a surgery was required to put
an iron rod in the leg which would take 6 months to heal. Parents of the student sue the school.

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 SUMMARY OF ARGUMENTS

Contention 1: Whether the Plaintiff comes under the Definition of Consumer as given
under the Consumer Protection Act, 1986?

The Term Consumer is defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
The sub clause 2 of this definition uses the term services which are provided for consideration
and schools definitely come under the ambit of this word. If parents of the child having hired the
services of the school, are consumers within the meaning of Section 2(1)(d)(ii) of the Act then
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 and the Commission will be fully justified in
awarding the compensation to both of them for injury each one of them has sustained.

Contention 2: Whether the School authorities are negligent and should be made liable for
the accident during school excursion or not?

The School authorities were completely negligent on their part and should be made liable for the
accident of the unfortunate child. It is further submitted that such the accident could have been
even more fatal due to the gross negligence of the school authorities. It is humbly submitted that
the present case involves the kids of 10-11 years of age as they are students of the 5th grade. The
kids could not be expected to have knowledge and experience of any danger that could be
inflicted on them. There are immature that is the reason they are allowed to move only under the
guardianship of adults and if any risk is inflicted on them such adults shall be made responsible.
Injury is a term which we come across in the law of Torts and also when there is a breach of
contract.

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 ARGUMENTS ADVANCED

Contention 1: Whether the Plaintiff comes under the Definition of Consumer as given
under the Consumer Protection Act, 1986?

It is humbly submitted before this Hon’ble Court that the injured Child along with the Parents
very well fit into the definition of the word Consumer. The Term Consumer is defined under
Section 2 (1) (d)1 of the Consumer Protection Act, 1986. The sub clause 2 of this definition uses
the term services which are provided for consideration and schools definitely come under the
ambit of this word. If parents of the child having hired the services of the school, are consumers
within the meaning of Section 2(1)(d)(ii) of the Act then 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 and the Commission will be fully justified in awarding the compensation to both of them
for injury each one of them has sustained. The Supreme Court also held that 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, it was held that compensation could be given to either of them
or to both of them.2

The Supreme Court in the landmark judgment of S Somasundaram v Sri Chakravarthy

International Matriculation School3 held that the father of the child who had hired or availed

1
The Consumer Protection Act, 1986.
Section 2(1)(d)- “consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under
any system of deferred payment and includes any user of such goods other than the person who buys such goods for
consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when
such use is made with the approval of such person, but does not include a person who obtains such goods for resale
or for any commercial purpose; or
(ii) 12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any beneficiary of such services other than the
person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised,
or under any system of deferred payment, when such services are availed of with the approval of the first mentioned
person 13 [but does not include a person who avails of such services for any commercial purpose];
2
Spring Meadows Hospital & Anr. Vs. Harjot Ahluwalia through K.S. Ahluwalia & Anr, (1998) 4 SCC 39.
3

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of the services of school was therefore a consumer within the meaning of Consumer Protection
Act, 1986.4

Further in the case of Spring Meadows Hospital & Anr. Vs. Harjot Ahluwalia through K.S.
Ahluwalia & Anr5, The 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.

In the light of the above arguments it is humbly submitted before the Hon’ble Court that Plaintiff
has a right to file the case against the Defendant and this Hon’ble forum has complete
jurisdiction to try this case and there lies no dispute on this point of law.

4
Sreedharan Nair N. Vs. Registrar, University of Kerala (FA No.643/94) decided on 31.5.01.
5
(1998) 4 SCC 39

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Contention 2: Whether the School authorities are negligent and should be made liable for
the accident during school excursion or not?

1) That there is gross negligence on the part of school staff.

It is humbly submitted before this Hon’ble Court that the School authorities were completely
negligent on their part and should be made liable for the accident of the unfortunate child. It is
further submitted that such the accident could have been even more fatal due to the gross
negligence of the school authorities. The school authorities although sent staff with the students
but were not vigilant enough while having their lunch6 as out of all, only 2 helpers were left to
keep a watch on 100 students. Furthermore the students were allowed to have their meals on the
cliff which was inherently dangerous at the first place. Hence by inducing the doctrine of
vicarious liability, school shall be made liable to pay compensation. The doctrine is based on the
maxim ‘”Qui facit per alium facit per se” which means “the act of the agent is the act of the
principal”.7 Principal is liable for every act which is committed within the course of employment
even if the act is not expressly specified.8 There is a difference between civil and criminal
liability i.e. of the standard of evidence and there is absence of mens rea in civil negligence. 9

In the case of Jacob Mathew v. State of Punjab,10 the Supreme Court gave the essentials of
Negligence

(1) Defendant’s duty to take care of the Plaintiff

(2) Breach of the duty of care by the defendant

(3) Consequential damage;11

6
Fact Sheet
7
State Bank of India v. Shyama Devi, AIR 1978 SC 1263.
Lloyd v. Grace, (1912) A.C. 716.
8
Premwati Soni v. State of Rajasthan, AIR 1977 Raj 116.
9
Syed Akbar v. State of Karnataka, (1980) 1 SCC 30.
Balchandra Waman Pathe v. State of Maharastra, 1968 Mah L.J. 423.
10
AIR 2005 SC 3180.
R v. Lawrence, (1981) 1 All E.R. 974 (HL).
11
Kooragang Investments Pty. Ltd. v. Richardson & Wrench Ltd. (1982 A.C. 462).
Barwick v. English Joint Stock Bank (1867) L.R. 2 Ex.259, 266.

12
It is humbly contended that all the essentials of negligence are complete in the present case.
There is no general rule of law defining such duty but it is to be inferred from the circumstances
of each case.12 The Defendant is liable or not depends on the reasonable forseeability of the
injury to the plaintiff.13There was a legal duty on the part of teachers to take care of their
students and they have miserably failed in doing so as in the present case the students were
having their meals at the cliff which was inherently dangerous. Hence there is breach of duty to
take care on the part of the Defendant and the injury caused to the Plaintiff is consequential to
such negligent act. All this leads to Res Ipsa Loquitor i.e. things speak for itself.

As early as 1965 the case of Morris v. Douglas County14 came up in which a group of six-year
old children was taken to an ocean beach. Several children were permitted to stand on a log
which then rolled over one of the children, injuring him. It was held that teacher should be held
for gross negligence and should be punished accordingly.

Further in the landmark judgment of M.S. Grewal & Anr v. Deep Chand Sood & Ors15 A
group of 77 students went to excursion to Beas out of which fourteen young kids died as they
drowned. The Supreme Court held that Liability of the school cannot be shifted for any reason
whatsoever by reason of the factum of teachers being within the course of employment of the
school at the time of the tragedy.

The NCDRC in the case B.N.M. Educational Institutions v. Kum Akshatha16 held the School
vicariously liable for negligence on part of teachers accompanying students who a student who
suffered brain inflammation on study tour and compensation to the tune of Rs 50 lakh was
imposed.

12
Dongue v. Stevenson, (1932) A.C. 562.
13
Dr. M Mayi Gowda v. State of Karnataka, II (1996) C.P.J. 307.
14
403 P 2d 775, (Ore. 1965)
15
(2001) 8 SCC 151.
16
2016 SCC OnLine NCDRC 1116

13
 2) That the concept of Contributory Negligence is not applicable.

It is humbly submitted that the present case involves the kids of 10-11 years of age as they are
students of the 5th grade. The kids could not be expected to have knowledge and experience of
any danger that could be inflicted on them. There are immature that is the reason they are
allowed to move only under the guardianship of adults and if any risk is inflicted on them such
adults shall be made responsible. The Supreme Court has a common view as to children of such
tender age as that they cannot be held liable for contributory negligence as they lack any sense to
comprehend dangerous articles.17

The Supreme Court in the case of Alka v. Union of India18 held the Defendants negligent
enough to leave room open where an electric pump was installed. The plaintiff, a child of 10
years got injured due to same. It was held that child of such tender age could not be expected to
have sense or experience of such nature as to stay away from hazardous things and hence cannot
be held liable for contributory Negligence.

The Hon’ble Supreme Court had repeatedly in various judgments involving children has held
that any accident caused by negligence of any authority whether present there or not shall still be
made liable for any damage or loss caused to the child.19

Further the Supreme Court in the case of Ishwari Devi v. Union Of India20, a person died due to
the negligence of the bus driver and the conductor, as when he placed his foot on bus, the
conductor whistled and started the bus. It was held that it was conductor’s legal duty and he was
negligent in his conduct.

It is humbly submitted that the teachers are completely responsible for the negligent act as the
kids could not be made responsible. Hence the school shall be made responsible for the same.

17
R Srinivasa v. K.M. Parasivamurthy, AIR 1976 Kant. 92.
DTC V. Lalita, AIR 1982 Delhi 267.
MPSRT Corporation v. Abdul Rahman, AIR 1997 MP 248.
18
AIR 1993 Delhi 267.
19
S Dhanaveni v. State of Tamil Nadu, AIR 1997 Mad. 257.
Chairman, M.P. Electricity Board, Rampur v. Achhelal Lodhi, AIR 2013 M.P. 141.
M.P. State Electricity Board v. Ramlal Vishwakarma, AIR 2012 M.P. 157.
20
AIR 1969 SC 183.
Makbool Ahmed v. Bhura Lal, AIR 1986 Raj 176.

14
While the parent owes his child, a duty of care in relation to the child’s physical security, a
teacher in a School and while excursions is expected to show such care towards a child under his
charge as would be exercised by a reasonably careful parent.21

While it is true that if the students are taken to another school building for participation in certain
games, it is sufficient exercise of diligence to know that the premises are otherwise safe and
secure but undoubtedly if the students are taken out to playground near a river for fun and swim,
the degree of care required stands at a much higher degree and no deviation there from can be
had on any count whatsoever.22

c. That the school is liable to pay damages and compensation

It is humbly submitted before the Hon’ble Court that school shall be made to pay all costs for
surgery and medical treatment of the injured child and compensation of Rs. 1,50,000 shall also
be paid.

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 14of 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) of Section 1423 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 expressions 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

21
Ricketts v. Erith Borough Council and Another (1943 (2) All ER 629) as also the decision of the Court of Appeal
in Prince and Another v. Gregory and Another (1959(1)WLR177).
22
Ibid
23
Section 14, The consumer Protection Act, 1986.

15
and fast meaning and has been held synonymous with or equivalent to, damage, damages,
deprivation, detriment, injury and privation.

The school shall be made vicariously liable to pay as in the case of Poonam Sharma v. Union
of India24 The government was held liable to pay compensation for the negligence of Doctors in
the Government Hospital. In the same manner the School shall be liable to pay for negligence of
its staff.

A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of
the offender cannot give much solace to the family of the victim civil action for damages is a
long drawn and a cumbersome judicial process. Monetary compensation for redressed by the
court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful
and at time perhaps the only effective remedy to apply balm to the wounds of the family
members of the victim.

The multiplier method is logically sound and legally well-established method of ensuring a just
compensation which will make for uniformity and certainty of the awards. A departure from this
method can only be justified in rare and extraordinary circumstances and very exceptional
cases.25

In the case of Gobald Motor Service Ltd. v. R..M.K. Veluswami26 the Supreme Court held
that Claim is usually made for mental pain and suffering

Further the NCDRC in the case of B.N.M. Educational Institutions v. Kum Akshatha27 held
the School vicariously liable for negligence on part of teachers accompanying students on study
tour, compensation of Rs 50 lakh was imposed.

In the case of C.K. Subramania Iyer and Others v. T. Kunhikuttan Nair and Six Others28
the court held that the measure of damages is the economic loss sustained by the estate. There

24
AIR 2003 SC 467.
25
Lata Wadhwa and Others vs. State of Bihar & Others, Civil Writ Petition No. 232 of 1991
General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and Ors., 1994 (2)
SCC 176.
26
AIR 1962 SC 1
27
2016 SCC OnLine NCDRC 1116

16
can be no exact uniform rule for measuring the value of the human life and the measure of
damages cannot be arrived at by precise mathematical calculations but the amount recoverable
depends on the particular facts and circumstances of each case.29

It is humbly submitted before the Hon’ble Forum that School shall be held completely liable and
shall be made to pay damages as well as compensation to the family of the child due to the gross
negligence on their part.

28
[(1969) 3 SCC 64].
Franklin v. The South East Railway Company (157 English Reports 3 H & N, p.448).
29
Taff Vale Railway Company v. Jenkins [(1913) AC 1].
Railway Company of Canada v. Jennings (13 Appeal Cases 800).

17
 PRAYER

In the light of the facts of the case, issues raised, arguments advanced and authorities cited, the
counsel for the Claimant humbly prays before this Hon’ble District Forum of Chandigarh to
adjudge and declare:-

1. That the District Forum is competent to adjudge the matter.

2. That the school shall be made liable to pay all the medical expenses as well as the
compensation of Rs. 1,50,000.
3. That the school shall be allowing the injured child to rejoin 5th grade after his complete
recovery.

And pass any other order as this Hon’ble Court may deem fit and for this act of kindness, the
counsel for the Claimant, as in duty bound shall forever pray.

HUMBLY SUBMITTED
SD/-
COUNSEL FOR THE CLAIMANT

18