IMPORTANT POINT
Where there is a duty to care and there is a breach of this duty resulting in loss to consumer, it will entail damages.

JUDGMENT :

Dr Dhananjaya Y. Chandrachud, J

1. The Appeals are admitted.

2. These appeals arise from the judgment of the National Consumer Disputes Redressal Commission [“National Commission”] dated 28 April 2015.

3. A consumer complaint in regard to an alleged deficiency of service of the Kerala Tourism Development Corporation Ltd. [“KTDC”] 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 Report [“FIR”] 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.

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 enhancement of the compensation awarded in their appeal. The deceased was