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High Court Of Delhi
KLAUS MITTELBACHERT - Appellant
Versus
EAST INDIA HOTELS LIMITED - Respondent
Suit 506 of 1975
Decided On : 01/03/1997
Tort - Negligence — Duty to take care — Five star hotel maintaining and offering swimming pool to guests — Concept of duty to take care by hotel — Effect of five star charges on duty to take care and quantum of compensation — Swimming pool defective in design or structure is a trap — Liability in tort arising from use of such pool with a latent defect is strict and absolute.
Held:
A five star hotel charging a high or fancy price from its guests owes a high degree of care to its guests as regards quality and safety of its structure and services it offers and makes available. Any latent defect in its structure or service, which is hazardous to guests, would attract strict liability to compensate for consequences flowing from its breach of duty to take care. The five star price tag hanging on its service pack attracts and casts an obligation to pay exemplary damages if an occasion may arise for the purpose. A five star hotel can not be heard to say that its structure and services satisfied the standards of safety of the time when it was built or introduced. It has to update itself with the latest and advanced standard of safety. [ Pr.51 ]
Degree of care is not a phrase with static connotation. Its meaning would depend on given fact situation- the person who owes a duty to take care, the person whose care is to be taken and the subject matter by reference to which degree of cafe is to be determined. A person, who enters or walks into any premises, if the premises be open to accept entry, and there be nothing warning against his entry, has a right to assume that he is walking into a safe premises, [pr.34]
A person received in a hotel as a guest enjoys an implied assurance from the hotel that the proprietor by himself and through his servants, agents would take proper care of the safety of the customer. Not only the building structure but the services offered thereat have to be safe and immune from any danger inherent or otherwise. A hotel owner holds himself out as willing and also as capable to accommodate and entertain the guests. The quality and safety of the services offered increases with the quantum of the price paid for being guest at the hotel. Higher the charges, higher the degree to take care. [ Pr 36 ]
There is no difference between a five star hotel owner and insurer so far as the safety of the guest is concerned. In the hotel culture the stars assigned to a hotel are suggestive of the professional expertise, achievement and quality of the services available at the hotel and professed and projected by it to the public at large, holding out invitation to the prospective guests to stay at the hotel- an assurance as to quality, safety and hazardlessness of the services offered and available at the hotel. Such a higher degree of care cannot be permitted to be got rid of by merely putting a signboard or caution notice that the guest staying at the hotel does so at his own risk or a guest consuming or availing any of the services offered by the hotel does so at his own risk. The validity of an invitation to avail and enjoy a service and legal consequences including duty to take care and its degree flowing there from cannot be permitted to be softened by a general notice - at your own risk- which is hardly a deterrent. One who extends an invitation, tempting the invitee to accept the same cannot be heard to say that the invitee did so at his own risk.
A swimming pool in a hotel is an open invitation to the guests to swim in the pool either subject to payment of extra charges or if it be without any charges then an im-pliedly announcement that the charges were included in the overall charges for staying in the hotel. Presence of a diving board at the head of the swimming pool is an invitation for the guests to use it and dive in the swimming pool. In a hotel, the swimming pool filled with water carries an implied warranty as to safety- that the swimming pool is structurally and from architectural point of view so designed as to be safe, that the water is free from infection, that the depth of the water is safe for swimming. In the absence of a specific warning to the contrary, the swimming pool is an invitation not only to those who have learnt the art of swimming but also to amateurs who may like to take a plunge into water just for the pleasure of that. Availability of a diving board over the swimming pool is an invitation to the guests to take dives into the swimming pool with an implied warranty that the height and protrusion of the diving board or the spring board ( as the case may be ) are safe; and that the depth of water at the plummet point has been so maintained that any one taking a plunge into the water is not likely to suffer an injury.
The variation in the degree of care making it heavier co-relating the same with the charges fixed and realised in consideration of offering a service assumes significance in law for two purposes, Firstly, it has a bearing on the degree of care expected, either express or implied. Secondly, it has a bearing on the amount of compensation that would become payable in the event of failure to discharge the expected degree of care. Higher the degree of care, higher the quantum of compensation, both flowing from rise in charges realised for rendering the services. (Pr. 37, 38, 39)
Res ipsa loquitur — Doctrine of — Meaning — Applicability and impact of.
The phrase means the thing speaks for itself. Under the doctrine of rest ipsa loquitur a plaintiff establishes a prima facie case of negligence where (1) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident, and (2) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiffs safety. There must be reasonable evidence of negligence. However, where the thing which causes the accident is shown to be under the management of the defendant or his employees, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of Explanationn by the defendant, that the accident arose from want of care. Three conditions must be satisfied to attract applicability of rest ipsa loquitur : (i) the accident must be of a kind which does not ordinarily occur in the absence of someones negligence; (ii) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (iii) it must not have been due to any voluntary action or contribution on the part of the plaintiff. [ Pr 52 ]
As none knows what had really happened after the plaintiff had plunged into water and before he came out injured, coupled with the fact that the swimming pool was owned controlled and managed by defendants No. 1 and 3, in the absence of an Explanationn by them, inference based on rest ipsa loquitur stands drawn that the accident took place from want of care on their part. The facts of the case attract applicability of rest ipsa loquitur. [ Pr. 56 ]
Negligence — Contributory negligence — Meaning of — defense not available against hazardous premises — Does not bar claim for damages though may entail reduction or refusal of damages. [Pr. 58-59 ]
Negligence — Personal injury resulting from — Claim for damages, heads of — General and special damages awarded may be actual and prospective concept of exemplary damages. [Pr.63 to 80]
Personal injury may cause non-pecuniary as well as pecuniary loss to the plaintiff. Non-pecuniary loss includes damages on the heads of (i) pain and suffering; (ii) loss of amenities and (iii) loss of expectation of life. Pecuniary loss may cover damages calculable on the heads of (i) consequential expenses, (ii) cost of care and (Hi) loss of earnings. The earlier practice was to make a global award without indicating the sums under different heads but the current practice as witnessed in 60s is to itemise the award at least broadly. Having done so, at the end a total figure in the round shall have to be arrived at so as to eliminate the deficiency in the process ofcal-culative adjudication caused by overlapping or otherwise. [ Pr 63 ]
Succession Act - Section 306 — Injury resulting into death — Claim for compensation for injuries survives to legal representatives — It does not abate — Same cause of action may give rise to liability under contract and in tort. [ Pr. 137 ]
Words and Phrases - Death resulting from injury [Pr 129 ]
Injury Causing death.[ Pr 128]
If an injury hastens or accelerates the death, directly and not remotely, then in law the injury is one causing or resulting in death. [ Pr 131]
Maxims — Actio personalis moritur cum persona. [Pr. 118]
( 1 ). KLAUS Mittelbachert, the plaintiff, a German national born on 2nd September, 1942 was a co-pilot in Lufthansa. Little did he know that his flight from Bangkok to New Delhi in the evening of 11th August, 1972 was his last ever flight as a co-pilot. He landed at Delhi and was scheduled to continue the flight to Frankfurt on 14th August, 1972. For the intervening time, designated in the air-line terminology as lay- over-period, he checked into and stayed at the Hotel Oberoi Intercontinental.
( 2 ). HOTEL Oberoi Intercontinental, defendant No. 3 (hereinafter, the said Hotel) is a five star hotel located at Dr. Zakir Hussein Marg, New Delhi. It is owned by the defendant No. 1. The defendant No. 4 was its Chairman and it was allegedly being managed by defendant No. 2 at the material time. The Hotel had a swimming pool equipped with a diving board.
( 3 ). IN the afternoon of August 13, 1972 the plaintiff visited the swimming pool. At about 6. 00 p. m. while diving the plaintiff met with an accident. He had hit his head on the bottom of the swimming pool. He was taken out bleeding from right ear and appearing to have paralysed in the arms and the legs. He was taken to Holy Family Hospital, situted nearby, where he remained admitted and under treatment until August, 21, 1972 on which date he was flown to Germany under medical escort.
( 4 ). ON 22nd August, 1972 he was admitted for treatment at the Orthopaedic Clinic and Polyclinic of the University of Heidelberg. His treatment continued. On 24th March, 1973 he was discharged from the Clinic. Further treatment continued but the condition of the plaintiff did not improve. The physical suffering of the plaintiff and how he went on deteriorating from bad to worse would be noticed a little later, and not here, to avoid repetition. He was shifted back to his residence where his treatment continued.
( 5 ). ON 11. 8. 75, the present suit has been filed for recovery of an amount of Rs. 50 lacs by way of damages with interest calculated @ 12% from the date of the filing of the suit until payment and costs. Details of the heads under which the claim is being made would also be noticed little later at an appropriate place.
( 6 ). ACCORDING to the plaintiff, the accident was caused by what in the circumstances amounted to a trap. The diving board placed at the swimming pool suggested a proper depth of water into which a swimmer could dive. The defendant hotel owed the plaintiff a duty to take care and ensure his safety. Having failed therein the defendants are guilty of negligence and are, therefore, liable to compensate the plaintiff for the consequences flowing from the accident.
( 7 ). THE defendants have denied their liability. It is submitted that defendants No. 2 and 4 have been unnecessarily joined as parties to the suit as none of them can be held liable or personally liable. The defendants admit that defendant No. 1 is the owner of defendant No. 3 and is solely responsible for the acts of defendant No. 3.
( 8 ). ALL other material averments in the plaint to the extent to which liability flowing from the accident is sought to be fixed on the defendants have been denied. It is submitted that there was no negligence on the part of the hotel; that it is the plaintiff who was negligent; and that, in any case, the plaintiff was equally negligent and ,therefore, under the doctrine of contributory negligence the plaintiff is entitled to no damages at all.
( 9 ). ON 4. 1. 1977, the following issues have been framed by the Court on the pleadings of the parties and in the presence of the counsel for the parties :
(1)WHETHER defendants 2 and 4 were in control of the premises of Hotel Oberoi Inter-continental on 13th August, 1972 ? If not, whether the suit is not bad for misjoinder of parties ? (2)Whether the plaintiff was a co-pilot of Lufthansa and what was his age at the time of the accident ? (3)Whether the defendants were guilty of negligence ? If so, to what extent and to w
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