A. P. SAHI, J (PRESIDENT)

1. The Complainant is the father of his deceased son Neeraj Seth, who unfortunately drowned in the swimming pool of the OP No.1 (Hotel) on 26.06.2013.  This drowning led to the filing of a criminal case for criminal negligence against the OP No.1 and its employees and, thereafter the present Complaint was filed on the ground of negligence and deficiency in service claiming compensation.
2. A query had been raised way back by this Commission 29.08.2023 and again on 11.01.2024 and then once more on 21.05,2024 about the progress and conclusion of the criminal case as it was urged that the criminal case has ended up in acquittal of the accused.  Vide IA No. 8322 of 2024 filed on 24.05.2024, a copy of the judgment of the trial court dated 31.07.2019 alongwith its translation has been brought on record.  The final order as pronounced is extracted hereinunder:

FINAL ORDER

1. Accused of this case ( 1) Birendra Dhirendrdabhai Bhandary, Resi. Opp. Vishal International Hotel, Vishwakarma Engineering Works, Chamber Colony, in the house of Navinbhai, Jamnagar (2) Samitbhai Bhagvanbhai Barchha, Resi Vishal Interntational Hotel Room No.11, Jamnagar (3) Kirtibhai Mansukhbai Bhadra, Resi. Bhanushali near Parimal Petrol Pump ‘Om’ , Jamanagar (4) Samit Kasambhai Baloch, Resi. Andhashram, Chamerb Colony, Opp: Hira Park, Jamnagar, ( 5) Mitesh Mukeshbhai Kankhara, Resi. Digvijay Plot-8, Riddhi Siddhi, Opp: New School, Jamnagar are acquitted from the offence punishable under section 304 (A) 114 of IPC by giving benefit of doubt under section 255 (1) of Cr.PC.

Interim order about muddamal phone to be treated as final till appeal period is over and remaining muddamal be desposed off accordingly to law.

             2.Accused to give solvent surety and personal bond of Rs.500/- under section 437 (A) of Cr.P.C.

3. We have heard learned counsel for the Complainant as well as learned counsel for the OPs Ms. Anushree Kapadia.  Learned counsel for the Complainant urged that the main deficiency on the part of OP is that of not providing for  a life guard or any caretaker who were not present at the time of the accident.  It is this deficiency which could have saved the life of the deceased and the OP was under an obligation to take due care regarding the same.  It is urged that from the evidence that has been brought on record, it is clear that there was no medical or life-saving facilities available at the time when the accident occurred and consequently this serious lapse on the part of the OPs is clear negligence, hence is a deficiency in service and consequently, the complaint deserves to be allowed with full liabilities on the OPs.
4. Learned counsel has taken the Bench through the various documents including the statements that were recorded during the police investigation and the terms and conditions of the running of the swimming pool as also the facts stated in the written statement to urge that the factum of the attendant being missing at the time of incident is almost admitted.
5. Learned counsel for the OPs however, submitted that any statement made under section 161 of the old Cr.P.C. cannot be read as evidence, more so after the conclusion of the trial resulting in acquittal.  Learned counsel for the OPs urged that entire case of the complaint as set out in the allegations made including that in the FIR were suggesting foul play and murder that was ultimately found to have not been proved and no criminal negligence at all was established. The acquittal order which is on record and remains undisputed also indicates that accused were the very same staff of the Opposite Party Hotel against whom negligence is being alleged in the present case.  In the given circumstances, no case is made out for negligence.
6. It is further submitted that the swimming pool was fully equipped and the drowning took place after the closure time of 9.00 p.m. which was a violation of the terms, about which information is given to all the inmates and had also been made available to the deceased, who admittedly entered the swimming pool shortly before the closure and was found to have drowned after the closing hours.  It is, therefore, submitted that given the facts of the present case, there was no negligence or deficiency so as to hold the Opposite Party liable.
7. Learned counsel for the complainant also urged that no medical help or aid was given as soon as the body was seen floating and no attempt was made to revive the deceased.  It is urged that the assumption by the staff of the hotel that since the body appeared to be lifeless, therefore, there was no occasion to make any such attempt, is a wrong assumption in as much as apart from intimating the police, the hotel ought to have invoked its medical facilities and staff should not have assumed on their own that the deceased was dead.
8. To this argument, on behalf of the complainant, Ms. Kapadia urges that this is not a case where the deceased was struggling to save himself or was in a position where an attempt could have been made to that effect.  To the contrary, the situation appears to be that in such cases ordinarily the staff are scared to touch a dead body and consequently they took the right step to immediately inform the police.  It is urged that the fire brigade and police both came and the body was taken out on a stretcher within no time.  In such circumstances, these allegations and contentions of not reaching out to the deceased when he drowned are unfounded.
9.        Learned counsel for the complainant also urged that there were no CCTV cameras.  The terms and conditions as explained by the OP do indicate that there are CCTV cameras except in the swimming pool area that deserves to be kept secluded.
10. Learned counsel for the complainant heavily relied on the judgment in the case of Kerala State Tourism Development Corporation 2019 (16) SCC to substantiate his submissions urging that the OP’s have failed to take due care and hence the liability is writ large from which no escape can be pleaded by them.
11. Learned counsel for the OP’s has relied upon the following decisions with the propositions indicated herein:

1. Proposition :- Maxim – Volenti non fit injuria, and absence of any breach of duty.

1. 2011 SCC Online Guj 3254 ( Reenabhai Wd/o Ramsinh Valharia Gamit and Ors.Vs. Union of India , Para No. 5-6.

2. 1921 3 K B 578 – Great Central Railway Company Vs. Bates, Last Para

3. 1933 3 K B 297 – Cutler Vs. United Dairies ( London Limited) Page No. 303-306

4. 1965 AC 656 Imperial Chemical Industries Ltd. Vs. Shatwell Page No. 339, 342, 346, 350 and 354.

e.      Air 1956 TC 225 N Narayanan Bhattathirippad Vs. Trav. Go. Govt. Para No. 50-59

2. Proposition :- Mutually destructive pleas are not maintainable and the Complaint is therefore an abuse of process of law

Complaint under section 302 IPC, for murder (S.300 IPC) is contradictory to the belated allegation of ‘deficiency’ under Consumer Protection Act 1986. Such pleas are mutually destructive

1. 2006 12 SCC ( Steel Authority of India Ltd. Vs. Union of India ( UOI) and Ors.), Para No.28.

3.      Proposition : Filing of incomplete documents and suppression of material documents warrants drawing of an adverse inference against the Complainant :

a.      1968 3 SCR 862 ( Gopal Krishanji Ketkar Vs. Mohamed Haji Latif and Ors.) para No.5

b.      1961 SCC Online SC 10  - Kundan Lal Rallaram Vs. The Custodian, Evacutee Property Bombay, Para No. 5 and 7.

4.      Proposition : The onus of proof of deficiency in service is on the complaint

a.      2021 SCC Online SC 879 ( SGS India Ltd. Vs. Dolphin International Ltd.) Para No. 19 20 and 22.

5.      Proposition : A medical document cannot be admitted in evidence in proceedings  before the Hon’ble Commission under Consumer Protection Act, 1986  unless the same is proved in accordance with law.

a.      Order dated 24.09.2018 passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in FA No. 1045 of 2017 – PNB Metlife Insurance Co. Ltd. Vs. Vinita Devi, Para No.8.

b.      2012 1 CPJ 204 (NC)- Sushil Kumar Jain Vs. United India Insurance Co. Ltd., Para No.12.

6.      Proposition :     Pecuniary jurisdiction of the Hon’ble Commission  cannot be invoked without giving suitable particulars of the income and evidence in support thereof.  While computing the loss to Complainant -1, Multiplier system has been applied, which is not applicable to cases under the Consumer Protection Act, 1986.  2.  No deduction has been made for personal expenditure.  3. There is no deduction considering the age of the complainant, marriage of deceased, existing income of the complainant etc.

Judgments relied upon –

a.      Judgment dated 04.12.2015 passed by the Hon’ble Supreme Court of India in Civil Appeal No.19941-10942 / 2013 – New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Para no. 17-19.

b.      Order dated 14.10.2011 passed by the Hon’ble Supreme Court of India in Civil Appeal No. 864 – Sujata Nath Vs. Popular Nursing Home and Ors.

c.       Order dated 13.12.2012 passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in CC No. 196/2012 – Ms. Femy and Ors. Vs. Dr. Kavitha and Ors., Para No. 5-13.

d.      Order dated 30.03.2012 passed by National Consumer Disputes Redressal Commission, New Delhi in CC No. 135 of 2011 –Ramesh Kumar Sihan Hans Vs. Goyal Eye Institute and Ors., Para No.11.

e.      Order dated 08.07.2011 passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Consumer Case No. 60 of 2011 ( Sujata Nath Vs. Popular Nursing Home and Ors.), Para Nos. 3-5.

f.        Order dated 28.05.2009 passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 770 of 2009 ( Chl. Apollo Hospital and Anr. Vs. Dr. ( Mrs.) Jasbir Gupta and Ors., Last 2 paras

12. We have considered the submissions raised and what we find is that admittedly the closing hours of the swimming pool was stated to be 9.00 p.m. There were 3 people, who according to the OPs  were performing the duties attached to the swimming pool according to their time schedules.  The attendant and the Supervisor on duty at that point of time were also made an accused in the criminal case. The attendant is Samir Kasambhai Baloch and the management staff was Samir Bhai Bhagwanbhai Barcha. The written statement filed on behalf of OPs in paragraph 21 categorically states that the said attendant Mr. Baloch had gone to close the remaining club areas leaving the lights on near the pool at about 9.00 p.m.  The facts on record indicate that he had gone to the gymnasium area and after returning when he could not find the deceased, he walked around the pool and then saw the lifeless body of the deceased.  The paragraph also recites that the superiors were informed, which includes the supervisor, namely, Samir Bhai Bhagwanbhai Barcha.  It is, thus, clear that the swimming pool had staff on duty and was attended by these persons at the time of the accident. It is also evident from the narration contained in the complaint as well as the evidence of the complainant that admittedly the deceased was a very good swimmer.  The statement that was taken by the police, and which even though is not substantive evidence, also indicates that the attendant had seen the deceased entering the swimming pool and having covered three laps of the length of the pool while swimming.  This, therefore, does indicate that the contention of the complainants that the deceased was a swimmer and knew swimming is correct but at the same time, the cause of death which was alleged was suspected foul play.  The post mortem report indicates a few abrasions on the body but the cause of death is asphyxia due to drowning and not on account of any ante mortem injuries.  Nonetheless, this issue of criminal negligence has already been dealt with in the order of acquittal which h as become final as reportedly no appeal has been filed against it.  The findings recorded by the trial court even though are not binding in matters of negligence and deficiency of service under the Act, yet the said fact cannot be ignored as the primary charge alleged by the complainants was of foul play, which has not been established. 
13. It may be mentioned at this stage that an act of criminal negligence is distinct from a neglect of a duty cast on the service provider to take due care. A learned Single Judge of the Madhya Pradesh High Court in the case of B.P. Ram & Anr. Vs. State of Madhya Pradesh reported in 1989 SCC OnLine MP 199 observed in a case of loss of life in a swimming pool, paragraph 3 to 8 as follows:

“3. On 10-5-1988, one Rameshchandra, aged about 13 years, at 6-00 p.m., entered into the swimming pool on the basis of the admission card of his father. Another boy, by name Rishi Agarwal, aged about 17 years, surreptitiously entered into the premises. The Chowkidar could not have the knowledge of his entry into the swimming pool. Both the boys remained in the swimming pool for about an hour. About 18 to 20 persons were also present in the swimming pool. After a while, Rishi Agarwal was not seen and Rameshchandra became worried about him. The Luna Moped of Rishi and his clothes were in the premises, but Rishi could not be noticed. He, therefore, informed his parents and, subsequently, the parents of Rishi were informed. After a vigorous search, the dead body of Rishi was recovered from the swimming pool. The Police Station, Bhilai Nagar registered the Crime No. 22/88 under section 304-A of the Penal Code, 1860. Statements of number of persons were recorded and challan was presented in the Court of Judicial Magistrate First Class, Durg. From the charge-sheet, it appears, that the police is of the view that there was no life-saving guard, nor was there any notice of caution on the swimming pool. Hence, the applicants are alleged to be liable for their inaction hence their rash and negligent act.

4. The argument of the learned counsel for the applicants is that the applicants did not commit any act which could be said to be rash or negligent which has to be proximate and immediate cause of death. The learned counsel relied on the cases reported in A.D. Bhatta v. State of Gujarat, (1972) 3 SCC 525 : AIR 1972 SC 1150; Mohd. Rangawalla v. Maharashtra State. AIR 1965 SC 1616 and Suleman Rehiman v. State of Maharashtra, AIR 1968 SC 829. The deceased Rishi Agarwal entered into the swimming pool surreptitiously and without notice of the Chowkidar. Had the Chowkidar seen him entering into the premises, he would not have permitted his entry. The death of Rishi Agarwal was merely accidental and not because of any act of the applicants. There is a difference between a tort and crime. The alleged negligence may give a cause of action under a tort, but not an action under criminal law. It is finally submitted that, by proceeding against the applicants, there would be an abuse of the process of the Court. Hence, the entire proceedings are liable to be quashed.

5. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances with show that the actor has not exercised the caution incumbent upon him, and that, if he had, he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it is partly deliberate, it is done without due thought and caution. Illegal omission is “act” under this section and may constitute an offence if it is negligent. Death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causaus, it is not enough that it may have been the causa sine qua non.

6. The “rash or negligent act” referred to in the section means the act which is the immediate cause of death and not any act or omission, which can at most be said to be a remote cause of death. To render a person liable for neglect of duty there must be such a degree of culpability as to amount to gross negligence on his part. It is not every little trip of mistake that will make a man so liable. Where the accused, driving a motor-car at night, entered a road which being under repairs was closed to traffic and ran over and killed two coolies who were sleeping on the road with their bodies completely covered up except for their faces, it was held that, under the circumstances, the accused was not guilty of causing death by a rash and negligent act as it could not be said that he should have looked out for persons making such an abnormal use of the road.

7. In the case of A.D. Bhatta v. State of Gujarat, (1972) 3 SCC 525 : AIR 1972 SC 1150 : Cr. L.J. 727 it has been held as under:—

“8. — for an offence under section 304-A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the, acquittal of the appellant for contravention of the provisions of the Act and the Rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed but since that is not the criterial, we have to determine whether the appellant's act in giving only one batch number to all the four lots manufactured on 12-11-1962 in preparing batch No. 211105 was the cause of deaths and whether those deaths were direct consequences of the appellants' act, that is, whether the appellants' act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another's negligence.”

8. Applying the said principles, it has to be held that there is no possibility of the applicants being convicted for the alleged offence. It cannot be said that because there was no caution board or life-saving guard, the boy Rishi Agarwal surreptitiously entered into the swimming pool and drowned. The alleged negligence of the Club may make the Members of the Club liable under a tort, but, for the aforesaid omission, the applicants cannot be held liable under section 304-A of the Penal Code, 1860. It would be unnecessary harassment and a futile attempt if the prosecution is allowed to continue. I, therefore, exercise the powers under section 482 of the Code of Criminal Procedure, and quash the proceedings against the applicants in the Criminal case, State of M.P. v. B.P. Ram, pending in the Court of Judicial Magistrate, First Class, Durg.”

14. Thus, as in the present case also no criminal liability has been found and the accused have been absolved in the criminal case giving them the benefit of doubt but an accidental death can give a cause of action under a tort.
15. Coupled with this is the fact that the deceased was a very good swimmer and there is no indication that he was suffering from any disease or any trouble nor was he in an inebriated condition so as to raise a presumption of any contribution by the deceased towards the drowning.  The real cause of death, therefore, remained a mystery but the fact remains that at the moment, when the deceased drowned in the swimming pool, the attendant at the closing hours had for a short while gone away to attend the other areas of the club and close the gymnasium.
16. The question, therefore, is whether this short absence does amount to any negligence and as to whether the consequential conduct of the staff of the OPs led to deficiencies in service.
17. On the other hand, learned counsel for the OPs urged that if any injury has been caused on account of a voluntary act by the deceased himself, then it cannot be said to be a deficiency on the part of the staff of the OPs so as to construe a liability on the OPs.
18. The other issues that emerge are relating to the entry of the deceased shortly before the closing time of the pool and the absence of the attendant after the timings of the swimming pool were over.
19. In order to assess all the factors in a tortious liability connected with deficiency in service where neglect is alleged, the hotel entry sheet indicates the arrival of the deceased Mr. Neeraj Seth in the hotel who had checked in whereafter he did go to the swimming pool. The notice governing the club timings including the swimming pool have been displayed in a notice of Windsor club that has been named while describing the Opposite Party No.2 in the complaint. The notice recites as under:​

                                                               "THE

                                                               WINDSOR

                                                               NOTICE

                                                                                                                                                          DATE:01/04/2013

1) CLUB TIMING 07:00 TO 11:30 AND 15:00 ΤΟ 21:00.

2) PLEASE REGISTER YOUR SELF AT THE RECEPTION COUNTER BEFORE USING POOL.

3) THE HOTEL IS NOT RESPONSIBLE FOR ANY INJURY CAUSED TO THE GUEST AND MEMBER.

4) PLEASE REMOVE YOUR SHOES BEFORE GETTING INTO THE POOL.

5) PLEASE TAKE A SHOWER BEFORE ENTERING POOL.

6) DIVING IS PROHIBITED.

7) PLEASE RETURN USED TOWELS TO THE RECEPTION COUNTER.

8) FOR LADIES SHOWER CAP IS ESSENTIAL.

9) PERSON WITH SKIN DISEASES, EXTERNAL INFECTION OR INJURY ARE NOT PERMITTED TO ENTER THE POOL.

10) PLEASE DEPOSIT YOUR VALUABLES WITH THE POOL ATTENDANT. THE HOTEL IS NOT RESPONSIBLE FOR ANY LOSSES.

11) PLEASE MAINTAIN UTMOST HYGIENE.

12) UNACCOMPANIED CHILDREN, BEARERS, DIVERS OR SERVANT ARE NOT PERMITTED IN THE CLUB PREMISES.

13) THE MANAGEMENT RESERVES THE RIGHT TO RESTRICT FROM ENTERING OR TO REMOVE FROM THE HOTEL PREMISES ANY PERSON WHOSE CHARACTER, APPEARANCE OR MANNER OF CONDUCT IS FOUND UNACCEPTABLE FOUND UNACCEPTABLE. UNDER SUCH CIRCUMSTANCES, MEMBERSHIP MAY BE TERMINATED WITHOUT PRODUCING FURTHER CAUSES.

FOR THE WINDSOR CLUB

MANAGEMENT”

20. A perusal thereof displays the timings from 03:00 PM to 09:00 PM in the afternoon and evening hours. It also prescribes the registration at the reception counter before using the pool. It also recites that the hotel would not be responsible for any injury caused to the guest or to the member. The notice prohibits diving as well. The register of the club indicates the entry of the names of the users which includes the name of the deceased at serial No.8 on 26.06.2013. It is correct that all the names recorded in the extract of the register seem to be only in one hand writing but it is quite possible that the entries might have been made by the attendant himself after asking for the name of the user, but the fact is that the names of 8 users have been recorded on 26.06.2013. Thus, the available rules do prescribe the timings of the closure of the club facilities at 09:00 PM.  It is at this juncture that the timing of the entry of the deceased deserves notice as indicated in the evidence on record broadly at 08:45 PM. This timing of the entry of the deceased is in close proximity to the closure time of 09:00 PM and there is also a presumption about the knowledge of the timing being informed to the deceased. This fact has also been indicated in the statement of the witnesses of the criminal case where during cross-examination, this fact has been recorded.
21. The next fact which deserves notice is that the attendant at that point of time was Samir Kasambhai Baloch a boy of about 18 years of age. It is he who was attending to the swimming pool and had stated during investigation that he had gone to attend his duties at the gym at the time of the closure for a short while. To ascertain this fact an aid can be taken from the averments contained in paragraph 21 of the written statement filed by the Opposite Party extracted hereinunder:

“21. …………………..It is not true that there was no attendant, no security guard, or watch man, no hotel guest or that the pool was not under any supervision when the pool timing was not over. Such an allegation is baseless. In fact the deceased had been asked to leave the pool by 9:00 PM as that was the closing time. Thereafter the deceased continued to use the pool at his own risk. The attendant went to close the remaining club areas and left the lights near the pool on. When the attendant came to close the lights near the pool he could not see the deceased and on walking around the pool saw his lifeless body. He immediately called his superiors and they called the police. Had the deceased been alive at such time of discovery, there would have been some desperate movement. In case of a lifeless body in a pool, a cautious person would not endanger his innocence by disturbing any possible evidence around the body. It was imperative to call the police in the circumstances of the present case. The staff of the Opponent has been upright and straight forward all throughout. All persons present and even the staff that was not present in the hotel at the time of incident has made himself available for the police investigation. No one has avoided process of court even once, although the complainant is filing one case after the other baselessly and irrationally. There is no deficiency in services on part of the Opponent. ”

22. A perusal of the aforesaid statement of fact would indicate that the pool was being used by the deceased even after 09:00 PM when the attendant went to close the remaining club areas leaving the lights on near the pool. The attendant returned back and as narrated in the above quoted paragraph he saw the floating body of the deceased which was lifeless. The question is was there any negligence on the part of the attendant to have left the pool at the time when the deceased was in the swimming pool.  It is evident that there was no immediate drowning as soon as the deceased entered the pool whom the attendant in his statement before the police had said that he had seen him covering three laps of the swimming pool which must have taken some time after 08:45 PM. This also corroborates the fact that the Complainants have admitted that the deceased that was a good swimmer. There is therefore a scope for a reasonable presumption that the attendant had understandably left the pool to close the remaining club areas believing that the deceased was a swimmer and there was no expectation of his getting drowned. This is a preponderance of the probabilities that can be inferred. The timing is the closing time of the pool which is 09:00 PM and it is also reasonable to presume that the attendant was also incidentally performing the duties for closing the remaining club areas. Thus, there is a scope for a prudent inference that the attendant had for a short while left the pool which was the closing time of the pool and on having returned back at about 09:20 PM, he could not discover the deceased to be alive and swimming, rather after going round the pool, he found that he was drowned in a lifeless state inside the pool. This situation therefore was responded to by informing his supervisors immediately who rushed to the spot and immediately called on the fire brigade and the police who were there at the spot at about 09:30 PM. The servant, namely the attendant was performing the duties as assigned to him but the facts speak for themselves.
23.  It is here that the principles of res ipsa loquitur can be applied to assume that the absence for a short period witnessed the accident which has not been found to be an outcome of any foul play in the criminal case. Even otherwise on the facts narrated and the evidence led before this commission nowhere establishes any deliberate, overt or covert act to infer a deliberate act of negligence. The short absence of the attendant, however, does indicate a lapse of leaving the swimming pool with an inmate of the hotel inside fully knowing that the deceased was utilizing the pool even after the closing hours. As to how the deceased died and in what circumstances therefore remains a mystery except that the fact is that it is an accidental death due to drowning. The question is, should this lapse for a short time result in a liability, more so a vicarious liability on the hotel for compensating the loss of life of the deceased.
24. It is not a case proved that the swimming pool was either ill-kept or the members using it were not informed about the rules. The dimensions of the swimming pool and it having steel pipes inside to catch hold all around have been referred to in the statements of the witnesses that have been recorded by the trial Court. It has nowhere been indicated that the swimming pool was either ill-equipped and badly maintained. In such circumstances, the extent to which the hotel could be held vicariously liable, if at all, has to be assessed.
25. This has to be weighed as against the use of the pool by the deceased after the closure timing at 09:00 PM. This is not a case where the obligation to take due care was completely absent for those utilizing the swimming pool. The attendant was posted who at the time of the closing hours did move about when the accident happened. On this count, when the deceased happened to be a good swimmer, a fault cannot be imputed to the extent of gross negligence when the attendant was incidentally performing his duties of closing the other club areas.
26. In the above circumstances, the issue of vicarious liability if any has to be connected with other circumstances as alleged. This leads to the acts or the omissions as alleged post-discovery of the fact that the deceased had drowned. It is evident from the facts as stated in the written statement that no immediate attempt was made to provide any help to the deceased as the attendant and the other staff members according to the written statement found a lifeless body and therefore acting cautiously did not disturb any possible evidence around the body. The explanation given is that this caution was exercised and since it was an accident, it was imperative to call the police immediately which was done at the spur of the moment resulting in the arrival of the police within a very short time. It is here that we find, that this assumption that the body was lifeless, was made without attempting to touch the body or even calling for any medical aid of help. Straight away, the police was informed and there is nothing on record to evidence otherwise. Thus, no steps for attempting to save the life was undertaken nor any medical help was availed of. None of the staff including the attendant seem to be trained as paramedical personnel. This lack of attempt by treating the body to be lifeless therefore casts a questionable doubt on the role played by the staff of the hotel. They seem to have simply shook their shoulders off either in panic or in precaution as alleged in the written statement. This in our humble opinion amounts to shedding of responsibility and reflects negligence as well as absence of due care on the happening of such an emergency. The duty and care to attempt for saving the life of a person who had entered the swimming pool of the hotel is sought to be explained by the Opposite Parties that there was no sign of a desperate call of help coming forth from the deceased which was sufficient to conclude that he was lifeless. In our opinion when a person is drowning in some depth it may not be possible to perceive any vigorous physical movement and it is also quite possible that the deceased had gasped almost out of life, but possibly he may not have breathed his last breath. This could have been ascertained had anybody been present there at the time of the accident made an attempt to save his life. Thus, these circumstances coupled with the absence of the attendant do indicate breach of duty negligence on the part of the hotel management and to this extent the hotel management is vicariously liable for the lapses on the part of its staff including the attendant.
27. The contention of the learned Counsel for the Opposite Party relying on the proposition of volenti non fit injuria is therefore not applicable on the facts of the present case. The contention with the help of certain judgments on the proposition that there are mutually destructive pleas and therefore not maintainable is also not acceptable, inasmuch as, the pleas were alternative even though the allegations were of foul play which have not been found to be proved in the criminal case where the acquittal is on the benefit of doubt.
28. The deficiency in taking care when the inmate of the hotel was inside the swimming pool is to the aforesaid extent established and hence the contention on behalf of the Opposite Party on this score cannot be accepted in its entirety. The mitigating factors are the timings of the swimming pool being over and the pool being utilized by the deceased even after the closing hours but the same was almost at the of closing hours and it cannot be said to be overstepping to an extent so as to hold the deceased entirely responsible for his own act.
29. The staff of the hotel held itself back and made no attempt to reach out to the deceased in the circumstances indicated above, and therefore the absence of the attendant while performing an incidental duty of closing the other areas of the club establishes that there was breach of duty negligence of leaving behind the swimming pool unattended. The overall circumstances, even though do not establish deliberate gross negligence but an untimely absence and no effort to retrieve on the assumption of the body being lifeless, did lead to a negligent conduct on the part of the attendant and the other staff, whose presence could have possibly avoided the accident. Thus, the hotel is vicariously liable to the aforesaid extent for the negligent conduct of its employees.
30. The issue after fixing liability is about the compensation which can be claimed in the circumstances and which ought to be assessed given the facts of the case. The allegations of criminal negligence has ended up in acquittal on a benefit of doubt and the utilization of the swimming pool on the verge of the closing thereof by the deceased beyond 09:00 PM in spite of notice therefore in our opinion also mitigates the impact of the negligence in its entirety. Nonetheless, a life has been lost even if accidentally, was a foreseeable negligence. The hoteliers ought to have been more careful and exercised more vigilance through proper assignment of responsible and alert staff whereas it was left to an attendant who seems to have been performing multi-farious duties relating to the club. It can therefore be justifiably inferred that the services were lacking and deficient and consequently the loss deserves compensation that has to be assessed.
31. Coming to the quantum of the compensation claimed, the incident is unfortunate and the lapse and negligence to the extent indicated above calls for an award of compensation. The deceased was only 27 years old at the time of his death and was working as a management trainee as is evident from his letter of appointment dated 25.06.2012 that is on record. The basic pay as a management trainee was of Rs.12,600/- coupled with other facilities in the grade of 12,600-32,500/-. The training period was one year and after successful training, the placement was as a junior manager on the basic pay of Rs.16,400/- in the grade of 16,400-40,500/-. After completion of probation of one year, the services would be regularised. The prospects of future promotion were also stated by the Complainant and the deceased was the only son of his parents.
32. The Complainant claimed a sum of Rs.2.5 crores as compensated but there are no details of any calculation indicating the foundation of the said claim. It is true that such a loss cannot be compensated more than by assessing broadly about the contributions which the deceased could have made for himself and towards his family coupled with non-pecuniary losses. The written submissions filed on behalf of the Complainant also do not indicated as to what compensation was admissible and to what extent. The evidence by way of affidavit also does not indicate any calculation except that he had a promising career and was employed. The Opposite Parties in their written statement have taken objections that no breakup of the claim has been given even remotely suggesting the justification of the amount claimed which has been stated to be exaggerated
33. At the same time we have already indicated above that the allegation of foul play or of any intentional criminal act or negligence has not been proved that was alleged by the Complainant. The staff of the Opposite Party hotel had to suffer the ordeals of the criminal litigation where they have been eventually acquitted. The deceased had also overstayed in the swimming pool beyond the closing hours after 09:00 PM and was also stated to be a good swimmer. The entire negligence or vicarious liability in these circumstances cannot be weighed too heavily against the Opposite Party Hotel but the fact remains that there was an absence of the attendant at that moment when the accident seems to have taken place, and even thereafter, there is an absence of any effort or attempt to save the life of the deceased or provide him medical aid. Consequently, the deficiency in the services is established and for this act of negligence and deficiency, looking to the age of the deceased and his status and the surrounding circumstances, we find it appropriate, adequate and just to award a lump sum amount of Rs.25 lakhs as compensation to the Complainants in the light of what has been stated hereinabove. Any claim made by the Complainant of a higher amount as indicated in the complaint may not be proportionate to the circumstances in which the Opposite Party has been found to be vicariously liable for the acts and ommissions of their staff as reasoned out hereinabove.
34. The Complaint is therefore allowed with an award of Rs.25 lakhs as a lump sum compensation to the Complainant that shall be paid by the Opposite Party within a period of 3 months. In the event any failure to pay the said amount within the stipulated period, the same shall on default invite interest at the rate of 9%p.a. The complaint stands accordingly disposed of.