Consumer Protection – Deficiency of service – First complainant had booked accommodation at a hotel for a family holiday – First complainant’s spouse sank into the swimming pool of the hotel and later died – FIR was registered – Also, a complaint was filed before the National Consumer Disputes Redressal Commission (‘NCDRC’) – NCDRC held that there was a deficiency of service on the part of the management of the hotel, primarily for the reason that the lifeguard on duty was also assigned the task of a Bartender and assessed the compensation in the amount of Rs.62,50,000/- – On appeal, held: A hotel which provides a swimming pool for its guests owes a duty of care – Allowing or designating a lifeguard to perform the duties of a Bartender was a clear deviation from the duty of care – The appellant could have reasonably foreseen that there could be potential harm caused by the absence of a dedicated lifeguard – The imposition of such a duty upon the appellant can be considered to be just, fair and reasonable – In the instant case, there was a breach of duty of care by the appellant – Insofar as damages are concerned, taking into account, the nature of the business, the prospects for future earnings, the loss of companionship for a spouse and of the guidance and support for the children, the assessment of compensation in the amount of Rs.62,50,000/- by the NCDRC was faultless. The first complainant had booked accommodation at a Hotel for a family holiday. Spouse of the first complainant entered the swimming pool with his brother. All of sudden, he became unconscious and sank into the pool. It was alleged that a foreigner who was in the vicinity lifted him out of water. Later, spouse of the first complainant died. An FIR was registered and thereafter a complaint was filed before the NCDRC. The NCDRC held that there was a deficiency of service on the part of the management of the hotel. Appellant has filed this appeal against the order of the NCDRC.
Disposing of the appeals, the Court
HELD: 1. Existence of a duty of care
In the instant case, the deceased and the complainant were guests in the hotel run by the appellant. Since the facility of a swimming pool was available for use by the guests of the hotel, there was a close and proximate relationship between the management involving the maintenance of safe conditions in the pool and guests of the hotel using the pool. A hotel which provides a swimming pool for its guests owes a duty of care. The duty of care arises from the fact that unless the pool is properly maintained and supervised by trained personnel, it is likely to become a potential source of hazard and danger. Every guest who enters the pool may not have the same level of proficiency as a swimmer. The management of the hotel can reasonably foresee the consequence which may arise if the pool and its facilities are not properly maintained. The observance of safety requires good physical facilities but in addition, human supervision over those who use the pool. Allowing or designating a lifeguard to perform the duties of a Bartender is a clear deviation from the duty of care. Mixing drinks does not augur well in preserving the safety of swimmers. The appellant could have reasonably foreseen that there could be potential harm caused by the absence of a dedicated lifeguard. The imposition of such a duty upon the appellant can be considered to be just, fair and reasonable. The failure to satisfy this duty of care would amount to a deficiency of service on the part of the hotel management. [Para 15] [234-B-E]
2. Breach of duty
In the present case, it is an admitted position of the fact that the lifeguard on duty was also functioning as the Bartender, and that a foreigner was the first one to notice the deceased drowning in the swimming pool. The breach of the duty of care lies in the fact that while the hotel had made the facility of a swimming pool available for its guests, it ought to have assigned a lifeguard who would perform his duties only in that capacity. The reasoning of the NCDRC to the effect that a lifeguard on duty should not be distracted by virtue of being assigned other duties, is eminently fair and proper. Hence, there is no difficulty in holding that there was a breach of the duty of care owed by the appellant. [Paras 19, 20] [236-E-F, G]
3. Consequential Damages
That leaves this Court with the question of damages. Appeals have been filed against the decision both by the KTDC as well as by the original complainants. The deceased was 35 years old. He was a partner in a firm engaged in the business of trading in consumer goods and office automation along with two other persons. The income tax return for the assessment year 2005-06 indicated that he had a gross income of Rs.1,91,000/The NCDRC has justifiably borne in mind the fact that the deceased had ample future prospects. Material was produced on the record to indicate that the deceased was carrying on business and also had agricultural income. The young children have been deprived of the support and affection of their father. Their mother has lost the companionship of a spouse. The nature of the loss is incapable of being fully compensated in monetary terms. Therefore, taking into account the social status of the parties, the income of the deceased, the nature of the business, the prospects for future earnings, the loss of companionship for a spouse and of the guidance and support for the children, the assessment of compensation in the amount of Rs.62,50,000/- by the NCDRC cannot be faulted. [Paras 21 and 24][237-A; 238-D-G]
Poonam Verma v. Aswin Patel (1996) 4 SCC 332 : [1996] 2 Suppl. SCR 671; Rajkot Municipal
Corporation v. Manjulben Jaynatilal Nakum (1997) 9 SCC 552 : [1997] 1 SCR 304; India Tourism
Development Corporation Limited v. Miss Susan Leigh Beer 2014 SCC Online Del 3376 – relied on.
Caparo Industries plc v. Dickman (1990) 2 AC 605; BNM on her own and on behalf of Others v. National University of Singapore [2014] 2 SLR 258 ; Reevs v. Commissioner of Police (2000) 1 A.C. 360 –
referred to.
Winfield & Jolowicz on Torts 19th Edition, 2014 pg
144 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.