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

3. A consumer complaint in regard to an alleged deficiency of service of the Kerala Tourism Development Corporation Ltd. was instituted by Ms Deepti Singh for and on behalf of herself and her two minor children. The complainants had booked accommodation at Hotel Samudra at Kovalam for a family holiday. On 21 March 2006 between 6.30 and 7 p.m., Satyendra Pratap Singh, the spouse of the first complainant and father of the two minor children entered the swimming pool of the hotel with his brother. Other guests of the hotel were present in the pool at that time. All of a sudden, Satyendra Pratap Singh became unconscious and sank into the pool. It was alleged by the complainants that on witnessing the incident, a foreigner who was in the vicinity in the pool lifted him out of the water. The incident is not in dispute. However, according to KTDC, the lifeguard on duty also jumped into the swimming pool. The victim was pulled out of the water and was taken to hospital. He died at 9.30 p.m. on the same day4. A First Information Report was lodged at about 2 p.m. on 22 March 2006 at the Medical College Police Station. Eventually, a complaint was filed before the NCDRC. The NCDRC has 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 had also been assigned the task of being a Bartender. The NCDRC placed reliance on safety guidelines for water sports issued by the National Institute of Water Sports, Ministry of Tourism, Government of India. Insofar as they are material and as extracted in the impugned order of the NCDRC, the instructions read as follows:The regulations contained below are applicable for lifeguarding at swimming pool, Water Park and Lake front. The stipulations are being framed to ensure that the people/participants enjoy swimming/water borne activities and are free from fear of safety and security;Duties should not exceed 4 hours at a timeArea under observation should not exceed 50 meters. More than, one observation post must be provided for longer/bigger swimming pools or water parksLife guard on active duty should not be distracted while on duty. No other job shall be assigned to while they are on pool dutyLifeguard should be familiar with standard communication signalsThe NCDRC held that assigning a lifeguard with an additional duty of attending to the Bar was liable to distract his attention, since he may not be able to keep a close watch on the guests swimming in the pool. Moreover, while attending to his duties as a Bartender, the employee would necessarily have to leave the pool, even for a short period of time, to attend to guests outside the pool.

Reasoning:
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.