This is a case law analysis on the case The Managing Director, Kerala Tourism Development Corporation Ltd. v. Deepti Singh and Ors. and it talks about the facts and the judgement of the case.
1. FACTS OF THE CASE
This case has been filed as an appeal against the initial order of National Consumer Disputes Resolution Commission before the Supreme Court of India. The complaint was instituted by Ms. Deepti Singh and on her behalf and her two minor sons against Kerala Tourism Development Corporation Ltd. for alleging a service failure. The complainants had planned a family vacation at Hotel Samudra in Kovalam.
On March 21, 2006, the first complainant’s spouse and father of two young children went to the hotel pool. There were other hotel guests in the pool at the time. Satyendra Pratap Singh got unconscious and slid into the water all of a sudden. The complainants said that after seeing the occurrence, a foreigner in the pool nearby helped him out of the water.
However, according to KTDC, the on-duty lifeguard also dived into the pool. The victim was rescued from the pool and sent to the hospital. On the same day, he passed away. It was decided to file a First Information Report and was filed on 22 March, 2006 at about 2 p.m. at the Medical College Police Station. A complaint was eventually filed with the NCDRC. The NCDRC found a failure in service on the side of the hotel’s management, especially because the lifeguard on duty was also assigned the role of being a bartender.
The National Institute of Water Sports, Ministry of Tourism, established safety recommendations for water sports, which NCDRC relied on. According to the NCDRC, assigning a lifeguard the extra responsibility of attending to bar was likely to divert his attention. This is as he would be unable to maintain a careful eye on people swimming in the pool.
2. DECISION OF THE MAJORITY
Certain cases were referred to while reaching the decision. In the case of Poonam Verma v. Aswin Patel[1], two judge bench clarified on the tort of negligence. The court propounded three elements of negligence which were (1) a legal duty to exercise due care; (2) breach of the duty; and (3) consequential damages. In Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum[2], Justice Ramaswamy opined that remoteness lays an important part in tort of negligence.
Three elements were considered by court in this case:
1. Existence of a duty of care
The court took the help of the case of India Tourism Development Corporation Limited v. Miss Susan Leigh Beer[3]. In this case, the Respondent slid into an Appellant-maintained swimming pool and suffered significant injuries as a result of algae development on the pool’s tiles.
It made the following observations: Guests at a swimming pool are immediately affected by the actions or omissions of individuals responsible for pool upkeep. Hence, the Respondent and Appellant were in close proximity in this instance. It is reasonable to expect that algae development on the pool’s surface will make the floor slippery, perhaps injuring pool visitors.
The court in present case held that complainant and deceased were guests at the hotel. Therefore, there was a proximate relationship between the management of safety of hotel swimming pool and guests using hotel pool.
A hotel that offers its guests access to a swimming pool owes a duty of care to them. The duty of care stems from the fact that unless the pool is adequately maintained and managed by trained persons, it is likely to become a source of risk and hazard. Every person who enters the pool may not have the same level of swimming ability. Allowing or assigning a life guard to conduct bartending responsibilities is clearly a breach of the duty of care.
Drinking and mixing beverages does not bode well for swimmers’ safety. The Appellant may have rationally predicted that the lack of a specialised lifeguard would create possible injury. The Appellant’s imposition of such a requirement can be regarded just, fair, and reasonable. Failure to meet this duty of care would be considered a service failure on the part of the hotel management.
2. Breach of duty
The court referred to BNM on her own behalf and on behalf of others v. National University of Singapore[4]. In this case, the Plaintiff’s spouse drowned while swimming in a pool owned by the National University of Singapore. While swimming, the deceased became stuck and was hauled out by a friend before the lifeguards arrived. The court ruled as follows: in evaluating whether the problems of a swimmer in the water should have been evident to the lifeguard on duty had he conducted his responsibilities conscientiously, a judgement of negligence would be based on a variety of criteria.
The pool’s size and the amount of swimmers in the pool, and the available illumination, such as whether it was day or night, would all be taken into account. There is no hard and fast rule that a lifeguard must wait a particular period of time before being accused of carelessness. What is obvious is that the longer it takes the lifeguard to reach a potentially fatal situation in the water, the more probable it is that carelessness is suspected.
In this case, the court observed that it is a proven truth that the on-duty lifeguard was also a bartender. Also, a foreigner was the first to spot the corpse drowning in the pool. The violation of the duty of care occurs because, while the hotel made a swimming pool available to its customers, it should have hired a lifeguard who would only fulfil his responsibilities as a lifeguard.
The Managing Director, who was named as a witness, was also not there when the incident occurred. His version was only based on hearsay. As a result, the court held that they have no hesitation in concluding that the appellant breached his duty of care.
3. Consequential damages
The third element is if there has been any damage due to the negligence. In the present case, in post mortem it is clearly mentioned that the cause of the death was drowning and there were no traces of alcohol found and therefore the court held that drowning of deceased was direct outcome of negligence.
The court therefore held that decision of NCRDC was correct in observing that drowning of deceased was due to negligence of management and therefore should be held liable.
Another question before court was that of amount of compensation. The court observed that he NCDRC’s assessment of compensation in the amount of Rs. 62,50,000/- cannot be faulted, taking into account the parties’ social status, the deceased’s income, the nature of the business, the prospects for future earnings, the loss of companionship for a spouse, and the guidance and support for the children.
The NCDRC ordered that the compensation be paid within six weeks of its ruling and failing which it would be subject to interest at the rate of 9% per year beginning six weeks from the judgment date. The court did not see no reason for the NCDRC to deny the complainants the benefit of interest from the time the complaint is filed until the decision is issued.
As a result, they amended the NCDRC’s ruling to require that the amount awarded by the NCDRC bear interest at the rate of 9% p.m. from the date of the consumer complaint until the date of payment.
3. DISEENTING OPINION
A dissenting opinion is one which is different from majority. There was no dissenting opinion in the present case and both the judges agreed on the same decision.
CONCLUSION
Negligence is a tort in civil law. If the duty of care is breached, it can be a case of negligence. From the above case, it can be concluded that if a person or authority owes duty of care and breaches it will be held liable for negligence. The core principle of negligence is that people should act with reasonable care, taking into consideration the possible harm that their actions may cause to other persons or property. Someone who suffers a loss as a result of another’s carelessness may be eligible to sue for compensation.
Physical injury, material damage, psychological illness, and economic loss are examples of such losses. From the above case also, we can see that the court observed all the three essentials and when the court was satisfied that all essentials were satisfied, the defendant was held liable
[1] Poonam Verma v. Aswin Patel (1997) 9 SCC 552.
[2] Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum (1997) 9 SCC 552.
[3] India Tourism Development Corporation Limited v. Miss Susan Leigh Beer MANU/DE/1370/2014.
[4] BNM on her own behalf and on behalf of others v. National University of Singapore (2014) 2 SLR 258.
