West Bengal

Bankura

CC/45/2019

Sri Chakradhar Pal - Complainant(s)

Versus

Sri Tapan Kumar Pati The Principal Vivekananda Mission Vidyapith - Opp.Party(s)

Kunal Kanti Ghosh

31 Oct 2023

ORDER

   IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA

  Consumer Complaint No. 45/2019

            Date of Filing: 11.09.2019

Before:                                        

1. Samiran Dutta                            Ld. President.      

2. Siddhartha Sankar Bhui            Ld. Member.                                   

 

For the Complainant:  Ld. Advocate Kunal Kanti Ghosh                                                                                                                                                                                                                                                                                                                                                               For the O.P. : Ld. Advocate Tapas Chowdhury / Sayanton Chowdhury

Complainant 

1. Sri Chakradhar Pal, S/O Anath Pal, Resident of Village & P.O. Ratanpur, P.S. Onda, Dist. - Bankura.

2. Smt. Sonali Pal, W/O Sri Chakradhar Pal, Resident of Village & P.O. Ratanpur, P.S. Onda, Dist. – Bankura

Opposite Party

1. Sri Tapan Kumar Pati, The Principal, Vivekananda Mission Vidyapith, Saradanagar, P.O. Bhagabandh, P.S. & Dist – Bankura.

2. The Secretary, Vivekananda Mission Vidyapith, Saradanagar, P.O. Bhagabandh, P.S. & Dist – Bankura.

3. Smt. Tanusree Dutta (Teacher), Vivekananda Mission Vidyapith, Saradanagar, P.O. Bhagabandh, P.S. & Dist – Bankura,

                      ………………………………………………………………....................................................

 

 JUDGEMENT  

Dated:31-10-2023

The case is fixed for delivery of Judgement.

The Complainant’s case is that his youngest son Rupam Pal was a student of Class-III of O.P. School and on 23/07/2019 he came to school as usual but after recess period he suddenly felt uneasy in the class and went to bath room for vomiting. O.P.3 teacher of that school took her class as usual without taking adequate steps or necessary medical assistance to the said ailing student. When the condition of Rupam Pal was deteriorating O.P.1 Principal of the said school informed over Mobile phone to the Complainant regarding his admission at BSMCH, Bankura and the Complainant was advised to come soon but the said information is alleged to have come through the Driver of the Complainant who used to drop his son to the school every day and take him back home. The ailing son of the Complainant was admitted at BSMCH, Bankura accompanied by the teachers of the O.P.2 school but his life could not be saved and he was at comma and ultimately expired on 01/08/2019. Criminal case Number being Bankura P.S. Case No.169/2019, dt.01/08/2019 u/s 304A-I.P.C. is pending for trial before the concerned Criminal Court and the Post Mortem Report has been submitted therein with opinion that the death was due to effect of head injury. The Complainant has therefore filed the instant case for adequate compensation alleging negligence on the part of O.P. School Authority   and the concerned teachers thereof for causing the unfortunate death of his son.                                                                                        

                                                                                                                                                                                         Contd……p/2

                                                                                                         Page: 2

All the O.P.s jointly submitted written version to contest the case denying all the material allegations made in the complaint contending inter alia that due care was taken by the School Authority and the teachers thereof as the victim was shifted to the BSMCH, Bankura by the concerned teachers after he fell ill with intimation to the guardian. CCTV footage installed at the different places of the School will go to show the real facts and there was nothing untoward incident of assault by any other student or by any teacher of the School upon deceased Rupam. None of the O.P.s has therefore any role and involvement or negligence for the cause of death of the deceased Rupam.

-: Decision with reasons: -

Having regard to the facts of the case, submission, contention and documents on both sides the Commission finds that admittedly deceased Rupam fell ill during his class and immediately he was shifted to BSMCH, Bankura by the concerned teachers after giving information to the Complainant. It should be borne in mind that O.P. School is a private Educational Institution catering educational service to the students and as such in view of the decision of the Supreme Court in Maharshi Dayanand University vs Surjeet Kaur reported in (2010) 11 SSC 159 where it has been held that the education is not a commodity and Educational Institution will not come within the purview of the Consumer Protection Act for providing any kind of service. The Complainant has therefore no locus standi to file the instant case as consumer. Even for argument’s sake it is assumed that it is an act of negligence on the part of the O.P. School Authority / Teachers within the definition of deficiency as provided in Section 2 (11) of the Consumer Protection Act, 2019 still the O.P. School Authority / Teachers could not be faulted with in any manner as they took due care of the ailing student by sending him to the Hospital immediately after giving the information to the Complainant. The facts and circumstances of the case do not suggest that there was any inordinate delay on the part of the O.P. School/Teachers in sending the ailing student to the Hospital. It is the pious duty of the School Authority / Teachers to send the ailing student to the Hospital immediately after the occurrence and the moment this duty is done they stand discharged from any sorts of negligence or deficiency in service.

A criminal case is already pending in the matter where the concerned Criminal Court will go into the merit of the case after taking evidence to find out the cause of death of the victim student and this Commission has no scope and authority to examine that aspect of the case and the involvement of the O.P. School / Teachers to the same.

If the alleged act of the O.P. School Authority/Teachers in not taking proper care and sending the victim student to the Hospital with delay is construed as a breach of duty it is then a tortuous liability which is a Civil remedy and the Commission has no jurisdiction to give any relief for redressal of any tortuous liability. Criminal liability if any of the O.P. School Authorty / Teachers is to be decided by the concerned Criminal Court.

                                                                                                                                                                                      Contd……p/3

                                                                                                       Page: 3

In view of the facts and circumstances of the case and the question of law involved thereto the Commission thinks that O.P. School Authority / Teachers has no sorts of negligence of service established in this case for the cause of death of the victim student and they cannot be held liable under the Consumer Protection Act for such unintended and uncalled for incident.

The case has therefore no merit to stand upon.

Accordingly it is ordered……..

That the case be and the same is dismissed on contest but without cost.

It is however made clear that this Order is passed without prejudice to the rights and contention of the parties and without any interference into the findings or observations to be made by any other competent Court of law.

Both parties be supplied copy of this order free of cost.

 

 ____________________                  _________________         

HON’BLE   PRESIDENT             HON’BLE MEMBER