Dr Dhananjaya Y Chandrachud, J
1 The Appeals are admitted.
2 These appeals arise from the judgment of the National Consumer Disputes
NEELAM GULATIDate: Redressal2019.03.27 Commission1 dated 28 April 2015.
3 A consumer complaint in regard to an alleged deficiency of service of the Kerala
1 “National Commission”
Tourism Development Corporation Ltd.2 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 day.
4 A First Information Report3 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:
“Pool Lifeguard:
“Scope: 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;
Life Guarding Instructions:
Duties should not exceed 4 hours at a time.
2 “KTDC” 3 “FIR”
Area under observation should not exceed 50 meters. More
than, one observation post must be provided for longer/bigger
swimming pools or water parks.
Life guard on active duty should not be distracted while
on duty. No other job shall be assigned to while they are
on pool duty.
Lifeguard should be familiar with standard communication
signals.” (Emphasis supplied)
The 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.
5 Mr Gopal Sankarnarayanan, learned Counsel appearing on behalf of the
appellant, highlighted two facets: Firstly, he urged that appellant disputes the factual
position that the deceased was lifted out of the water by another guest who was using
the pool. According to the appellant, the lifeguard on duty also assisted in doing this
exercise. Secondly, it is inexplicable as to how a 35 year old able-bodied individual
suddenly drowned in the pool. On these grounds, learned Counsel submitted that the
order of the NCDRC needs to be revisited in the present appeal.
6 On the other hand, Mr U R Lalit, learned Senior Counsel appearing on behalf of
the respondents submitted :
(i) The finding of fact by the NCDRC that there was a breach of the duty of care is
based on cogent material on the record and does not warrant interference in
appeal; and
(ii) As a matter of fact, the complainants before the NCDRC are entitled to an en-
hancement of the compensation awarded in their appeal. The deceased was a
businessman with agricultural income, in addition. There were excellent future
prospects for the enhancement of his income. His family has sustained a serious
tragedy consequent on his death. Hence, the compensation which has been
awarded should be enhanced.
7 It is an admitted position that initially, it was a guest who noticed that the
deceased was drowning. There is a dispute on whether the deceased was pulled
out of the pool only by the foreigner, as the complainants contend, or both by the
foreigner and the life guard, as was contended by the Management. The issue
before the court is whether there was negligence on the part of the appellant
arising from a breach of the duty of care it owed the deceased.
8 In Poonam Verma v Aswin Patel4, a two judge Bench of this Court
elucidated on the elements of the tort of negligence. Justice S Saghir Ahmad held
thus:
“14. Negligence as a tort is the breach of a duty caused by
omission to do something which a reasonable man would do,
or doing something which a prudent and reasonable man
would not do.”
The Court listed the following elements which constitute ‘negligence’:
“15. … (1) a legal duty to exercise due care;
(2) breach of the duty; and
(3) consequential damages.”
4 (1996) 4 SCC 332
9 In Rajkot Municipal Corporation v Manjulben Jayantilal Nakum5
(“Rajkot Municipal Corporation”), a two judge bench of this Court characterized
the tort of negligence as “careless conduct in commission or omission of an act”.
Justice Ramaswamy opined thus:
“12... The elements of tort of negligence consist in — (a) duty
of care; (b) duty is owed to the plaintiff; (c) the duty has been
carelessly breached. Negligence does not entail liability
unless the law exacts a duty in the given circumstances to
observe care. Duty is an obligation recognised by law to avoid
conduct fraught with unreasonable risk of damage to others.
The question whether duty exists in a particular situation
involves determination of law. Negligence would in such acts
and omissions involve an unreasonable risk of harm to
others. The breach of duty causes damage and how much is
the damage should be comprehended by the defendant.
Remoteness is relevant and compensation on proof thereof
requires consideration. The element of carelessness in the
breach of the duty and those duties towards the plaintiff are
important components in the tort of negligence. Negligence
would mean careless conduct in commission or omission of
an act connoting duty, breach and the damage thereby
suffered by the person to whom the plaintiff owes. Duty of
care is, therefore, crucial to understand the nature and scope
of the tort of negligence.
10 The ingredients of the tort of negligence are: (i) existence of a duty of care;
(ii) a breach of the duty through action or omission; and (iii) damages arising as a
consequence of the breach.
11 We shall now determine if these elements have been satisfied in the present
case.
12 (i) Existence of a duty of care
In Caparo Industries plc v Dickman6, the House of Lords observed that three
5 (1997) 9 SCC 552 6 [1990] 2 AC 605
ingredients are necessary for the existence of a duty of care: (i) foreseeability of
the damage; (ii) proximity of relationship between the parties; and (iii) whether it is
‘just, fair and reasonable’ that the law should impose a duty of care. Lord Bridge
stated thus:
“What emerges is that, in addition to the foreseeability of
damage, necessary ingredients in any situation giving rise to
a duty of care are that there should exist between the party
owing the duty and the party to whom it is owed a relationship
characterised by the law as one of "proximity" or
"neighbourhood" and that the situation should be one in which
the court considers it fair, just and reasonable that the law
should impose a duty of a given scope upon the one party for
the benefit of the other.”
13 In Rajkot Municipal Corporation (supra), this Court, relied on Michael. A.
Jonas’s treatise7 on the Law of Torts and observed thus:
“33… as a tort, negligence consists of a legal duty to take
care and breach of that duty by the defendant causes dam-
age to the plaintiff. Duty determines whether the type of loss
suffered by the plaintiff in the particular way in which it oc-
curred can ever be actionable. Breach of duty is concerned
with the standard of care that ought to have been adopted in
the circumstances, and whether the defendant's conduct fell
below that standard, i.e., whether he was careless. The divi-
sion of negligence into duty, breach and consequent damage
is convenient for the purpose of exposition but it can be con-
fusing because the issues will often overlap. He has elabo-
rated the general principles, viz., the neighbourhood principle
as laid down in Donoghue v. Stevenson and has stated at p.
27 that the result would seem to be that factors which for-
merly might have been considered at the second stage of
Lord Wilberforce's test, policy considerations which ought to
“negative, or to reduce or to limit the scope of the duty”,
should be taken into account at an earlier point when deciding
whether a relationship of proximity between plaintiff and de-
fendant exists. The second stage of the test will apply only
rarely, i.e., in a limited category of cases where, notwithstand-
ing that a case of negligence is made out on the proximity ba-
sis, public policy requires that there should be no liability.
This new approach represents a shift of emphasis rather
than a new substantive test for the existence of a duty of
care. In future, rather than starting from a prima facie as-
sumption that where a defendant's carelessness causes
7 4th Edition, (1995).
foreseeable damage, a duty of care will exist, subject to
policy considerations which may negative such a duty.
The courts will determine the duty issue on a case-by-
case basis, looking in particular at the nature of the rela-
tionship between parties to determine whether it is suffi-
ciently proximate. That question is of an intensely prag-
matic character, well suited for gradual development but
requiring most careful analysis. The following require-
ments must be satisfied before a duty of care is held to
exist:
(i) Foreseeability of the damage;
(ii) a sufficiently proximate relationship between the
parties; and
(iii) even where (i) and (ii) are satisfied it must be just
and reasonable to impose such a duty.”
14 In India Tourism Development Corporation Limited v
Miss Susan Leigh Beer8, the respondent had slipped into a swimming pool maintained
by the appellant on account of the growth of algae on the tiles of the swimming pool and
sustained serious injuries. A Division Bench of the Delhi High Court held that the
appellant did owe a duty of care to the respondent. It observed as follows:
“80…Guests at the swimming pool are closely and directly
affected by acts or omissions of those responsible for the
maintenance of a pool; proximity of the respondent to
appellant thus existed in this case. It is reasonably
foreseeable that algale growth on the floor of the pool is likely
to make the floor slippery, thus likely to injure guests at the
pool.”
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 and
8 2014 SCC OnLine Del 3376
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 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
management.
16 (ii) Breach of duty
In Winfield & Jolowicz on Torts9, it has been observed that the following conditions
must be satisfied in order to prove a breach of the duty of care:
“The process of determining whether there has been a breach
of duty involves three steps. These steps are often not neatly
separated from each other, but it is essential to distinguish
between them if one is to understand properly this area of the
law. First, it is necessary to ascertain the qualities of the
reasonable person. This is a question of law. Secondly, it
must be asked how much care the reasonable person, given
the qualities attributed to him, would have taken in the
circumstances. The factors that are permissible to take into
account in this regard are prescribed by the law, but the
amount of care that the reasonable person would have taken
given those factors is a question of fact. Thirdly, it must be
determined whether the defendant took less care of the
claimant's interests than the reasonable person would have
taken. This is a question of fact. If the defendant took less
care than the reasonable person would have taken, the
defendant will be found to have acted negligently, and the
breach element of the tort of negligence will be satisfied.”
9 19th edition, 2014, pg 144
17 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. The role of a lifeguard has been succinctly set out by the
National Commission thus:
“We need to keep in mind that the lifeguard is not an ordinary
swimmer. As per the norms laid down in the above referred
regulation, he should be able to swim 100 meter in two minutes
without resting, by way of crawl or breast stroke; he should be
able to dive 08 inch deep and bring up a 5 Kg. weight to the
poolside/bank and he should be able to tread without moving the
legs for minimum 01 minute. The person who get appointed as a
lifeguard needs to possess a valid Lifesaving Technique
Certification from the agencies like National Pool and Water
Parks and Association and Safety Council. Such certification is
granted after a two day Revalidation course to confirm that he
meets the stipulated physical fitness and rescue standards.”
18 The Court of Appeal in Singapore, in BNM on her own behalf and on behalf of
others v National University of Singapore10, dealt with a case where the plaintiff's
husband drowned while swimming in a pool owned by the National University of
Singapore. The deceased got into difficulties while swimming and his friend pulled him
out before the lifeguards came to the rescue. The court held:
“48…A finding of negligence would depend on a number of
factors in determining whether the difficulties of a swimmer
in the water should have been apparent to the lifeguard on
duty had he performed his duties diligently. The view of the
lifeguard would be particularly material in this assessment
and that would in turn depend on a number of factors such
as the size of the pool, the number of swimmers in the pool and
the available lighting, ie, whether it was day or night. Other
relevant considerations would include whether there were shouts
for help by the swimmer in distress or other users of the pool,
whether there was unusual splashing, whether the swimmer was
10 [2014] 2 SLR 258
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…”
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 Police11, 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.”
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
11 [2000] 1 A.C. 360
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.
25 The NCDRC directed that the compensation should be paid within a period of six
weeks from its decision, failing which it would carry interest at the rate of 9 per
cent per annum with effect from six weeks from the date of the judgment.
We find no justification for the NCDRC to deprive the complainants of the benefit
of interest from the date of filing of the complaint until the date
of the decision. We, accordingly, modify the order of the NCDRC by directing that
the amount which has been awarded by the NCDRC shall carry interest at the rate of
9% p.m. from the date of the institution of the consumer complaint till the date of
payment. The amount which has been deposited in this Court in pursuance of the
interim order passed in these proceedings is permitted to be withdrawn by the
respondents. The balance, in terms of the present direction, shall be paid over by the
KTDC to the complainants within a period of four months from the date of this order.
26 Civil appeal No. 6038 of 2015 shall stand dismissed and Civil Appeal No. 8000 of
2016 shall stand allowed to the extent indicated in the judgment. There shall be no
order as to costs.
..
[Dr Dhananjaya Y Chandrachud]
[Hemant Gupta]