Case: THE MANAGING DIRECTOR, KERALA TOURISM DEVELOPMENT CORPORATION LTD Vs. DEEPTI SINGH

help by the swimmer in distress or other users of the pool, whether there was unusual splashing, whether the swimmer was struggling or motionless in the pool or whether there were other distractions which the lifeguard was required to attend to. There is no inflexible rule that the lifeguard is entitled to a certain amount of time to react before which an inference of negligence can be drawn. What is clear is that the longer it takes for a lifeguard to detect a swimmer in distress in the water, the more likely an inference of negligence would be drawn. The lapse of time before reacting is only one factor for consideration… (Emphasis supplied) 19. In the present case, it is an admitted position of 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. 20. Moreover, the hotel did not adduce any evidence of the lifeguard in the present case who would have been the best person to make a disclosure of facts which were to his knowledge. The Managing Director, who appeared as a witness, was not present at the time of the incident. His version was hearsay evidence. Hence, we find no difficulty in holding that there was a breach of the duty of care owed by the appellant. 21. (iii) Consequential Damages The third limb would require us to analyze whether the death of the deceased was caused by a breach of the duty and was not a remote and unforeseeable damage. Mr Gopal Sankarnarayanan, learned Counsel for the appellant contended that the death of the deceased was not due to the absence of the lifeguard and that a healthy 35-year- old man could not have drowned without any cause. Before we get to the particular facts of the case, it is important to elucidate on the concept of causation in the law of torts. In Reeves v Commissioner of Police 2000] 1 A.C. 360 , Lord Hobhouse opined thus: My Lords, causation as discussed in the authorities has been complicated both by conflicting statements about whether causation is a question of fact or of law or, even, common sense and by the use of metaphor and Latin terminology, e.g., causa sine qua non, causa causans, novus actus and volenti, which in themselves provide little enlightenment and are not consistently used. At one level causation is purely a question of fact…Any disputed question of causation (factual or legal) will involve a number of factual events or conditions which satisfy the but for test. A process of evaluation and selection has then to take place. It may, for example, be necessary to distinguish between what factually are necessary and sufficient causes… Thus certain causes will be discarded as insignificant and one cause may be selected as the cause. It is at this stage that legal concepts may enter in, either in a way that is analogous to the factual assessment…or, in a more specifically legal manner, in the attribution of responsibility (bearing in mind that responsibility may not be exclusive). In the law of tort it is the attribution of responsibility to humans that is the relevant legal consideration. 22. In the case before us, the post-mortem report indicates the following: No injury was present on the body. Brain was congested and oedematous. Air passages were congested and contained blood stained fluid. Lungs were crepitant and voluminous exuding copious amount of frothy blood stained fluid on sectioning… OPINION AS TO CAUSE OF DEATH: Postmortem appearances are consistent with death due to Drowning. (Emphasis supplied) The death of the deceased was due to drowning. Significantly, there was no evidence of the presence of alcohol in the body of the deceased. The death was due to drowning. Considering the delay in the response by the life guard who was preoccupied with bartending duties, the drowning of the deceased was a direct consequence of negligence. 23. On the above facts, we are of the view that the finding of a deficiency of service which was arrived at by the NCDRC was correct and was sustainable with reference to the material on the record. There is no element of perversity or any failure to take material circumstances into account in arriving at the decision. 24. 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. In our view, 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]15. In the case before us, 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 andsupervised 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 life guard 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 management17. The safety norms for water sports prescribed by the National Institute of Water Sports in the Ministry of Tourism of the Government of India cast an obligation upon the person or entity which provides a swimming pool in a hotel to appoint a lifeguard for the pool. The lifeguard should not be given any other duties which would distract her from the work of a lifeguard.19. In the present case, it is an admitted position of 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 proper20. Moreover, the hotel did not adduce any evidence of the lifeguard in the present case who would have been the best person to make a disclosure of facts which were to his knowledge. The Managing Director, who appeared as a witness, was not present at the time of the incident. His version was hearsay evidence. Hence, we find no difficulty in holding that there was a breach of the duty of care owed by the appellantThe death of the deceased was due to drowning. Significantly, there was no evidence of the presence of alcohol in the body of the deceased. The death was due to drowning. Considering the delay in the response by the life guard who was preoccupied with bartending duties, the drowning of the deceased was a direct consequence of negligence23. On the above facts, we are of the view that the finding of a deficiency of service which was arrived at by the NCDRC was correct and was sustainable with reference to the material on the record. There is no element of perversity or any failure to take material circumstances into account in arriving at the decision24. 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. In our view, 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.