THE MANAGING DIRECTOR, KERALA TOURISM DEVELOPMENT CORPORATION LTD. versus DEEPTI SINGH & ORS.

Citation: [2019] 5 S.C.R. 225 · Decided: 15-03-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

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Judgment (excerpt)

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THE MANAGING DIRECTOR, KERALA TOURISM
DEVELOPMENT CORPORATION LTD.
v.
DEEPTI SINGH & ORS.
(Civil Appeal No. 6038 of 2015)
MARCH 15, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
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
      [2019] 5 S.C.R. 225
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SUPREME COURT REPORTS
[2019] 5 S.C.R.
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
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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,

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