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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL   APPEAL No(s).  6038  OF 2015

THE MANAGING DIRECTOR, KERALA TOURISM DEVELOPMENT CORPORATION LTD.         …APPELLANT

VERSUS

DEEPTI SINGH  & ORS.                                                               …RESPONDENTS

WITH

CIVIL   APPEAL No(s).  8000 OF 2016

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1 The Appeals are admitted.

2 These  appeals  arise  from  the  judgment  of  the  National  Consumer  Disputes

Redressal Commission1 dated 28 April 2015.

  3 A consumer complaint in regard to an alleged deficiency of service of the Kerala

1 “National Commission”

2

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”

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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

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(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

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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

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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).

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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.” (Emphasis supplied)

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

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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

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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

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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…”

(Emphasis supplied)

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

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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.” (Emphasis supplied)

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

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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

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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.

.. …………................................................J.

      [Dr Dhananjaya Y Chandrachud]

….……......................................................J.           [Hemant Gupta]

NEW DELHI; MARCH 15, 2019