( 1 ) THIS regular first appeal has been preferred against the judgment and decree passed on 3/1/1997 by learned Single Judge of this Court decreeing the suit of the plaintiff against defendant/appellants for recovery of Rs. 50,00,000. 00 lacs. Cross objections have been filed by reepondents 1 and 2 representing the estate of the deceased plaintiff. facts in brief are that on 11/8/1970 Kalus mittelbachert, a national of the Federal Republic of Germany and employed as a Co-Pilot by Deuteche lufthansa Aktiengesellsschaft, a company organised under the laws of the Federal Republic of Germany filed a suit for the recovery of damages to the extent of Rs. 50,00,000. 00 lacs against the defendants/ appellants, inter alia, alleging that in the evening of 11/8/1972 he flew into New Delhi from bangkok with flight Lufthansa 647 and was to continue to Frankfurt with flight LUfthansa 649 on 14/8/1972. The plaintiff checked in and stayed at the appellant s hotel.

( 2 ) AS a part of the hotel the residents were offered facility of a Swimming Pool equipped with a diving board. In the afternoon of 13/8/1972 the plaintiff visited the pool with the purpose of using it. At about 6 p. m. he took from the diving board thereof a dive into it. However, he hit his head on the bottom thereof and became unconscious. He was pulled out of water. He was bleeding from the right ear and was admitted to Holy Family Hospital. He remained admitted and under treatment till 21/8/1972 on which day he was flown to Germany under medical escort. On 22/8/1972 the plaintiff was admitted for treatment at the orthopaedic Clinic and polyclinic of the University of Heidelberg. Treatment continued and ultimately on 24/3/1973 the plaintiff was discharged from the clinic. Though further treatment continued but the condition of the plaintiff did not improve. The plaintiff in the plaint narrated details of the physical sufferings he had to undergo. He also referred to the expert opinion about disability suffered by him stating that he had undergone immense pain and Sufferings and been deprived permanently of enjoyment of life.

( 3 ) IN this back ground, the plaintiff alleged that the accident was caused by what in the circumstances amounted to a trap. The diving board being placed where it was, was a suggestion that there was proper depth of water into which to dive. However, this was not the case. The defendants owned the plaintiff a duty to ensure his safety and having failed therein have been guilty of negligence and are, therefore, liable for the consequences of the said accident for which the plaintiff claimed rs. 25,000. 00 on account of doctors services and hospitalisation in India along with DM 56,22,500,00 (equivalent to Rs. 1,91,24,150. 00 at the rate of exchange prevailing at the time of filing of the suit) on account of damages and various other counts. The plaintiff, however, restricted his claim to Rs. 50,00,000. 00 lacs as on the date of filing of the suit towards damages reserving his right to enhance the claim, should the value of the Indian rupee in relation to the German Mark deteriorate between the time of the filling of the suit and payment of damages.

( 4 ) THE suit was resisted by defendants, who in their written statement denied their liability. The defendants/appellants pleaded that there was no negligence on their part and that it was the plaintiff who was negligent or in any case the plaintiff was equally negligent, therefore, under the doctrine of contributor negligence the plaintiff was not entitled to damages at all. In addition to the suit being persisted on merits, the defendants also raised of preliminary objection. On the basis of the pleadings of the parties on 4/1/1977 the following issued were framed :-

1. Whether defendants 2 and 4 were in control of the premises of Hotel Oberoi inter continental on 13/8/1972 if not, whether the suit is not bad for mis joinder of parties ? 2. Whether the plaintiff was a co-pilot of Lufthansa an