BADAR DURREZ AHMED, J

1. The plaintiff has prayed for a decree of ` 2,00,00,000/- (rupees two crores) by way of damages as also interest at the rate of 18% p.a. on the said amount from the date of presentation of the plaint till actual payment. The plaintiff has made the said claim on the basis of an incident which happened on 05.05.1978 in the swimming pool of Akbar Hotel which was managed and maintained by the defendant —

India Tourism Development Corporation Limited. The plaintiff, who was staying in the said hotel along with her parents and brother, was injured in the said swimming pool as a result of which she became a quadriplegic. According to the plaintiff, the injury which had been caused to her was on account of the negligence on the part of the defendant in the maintenance of the swimming pool. Insofar as the defendant is concerned, while the fact that the plaintiff received the injury on 05.05.1978 in the said swimming pool is not denied, it has been contended that the injury was a result of the plaintiff‘s own negligence and the defendant cannot be held liable for the same.

2. Briefly put, the case hinges upon three facets. The first being that according to the plaintiff the injury was caused when she jumped into the swimming pool at the shallow end and her feet slipped on the tiled floor of the swimming pool. As a result, she hit her head on the vertical wall of the swimming pool and incurred the injury which led to her becoming a quadriplegic. On the other hand, the defendant contends that the plaintiff received the injury as a result of diving at the shallow end and not as a result of jumping. Consequently, no negligence could be attributed to the defendant. The second facet, which is connected with the first, is the issue as to whether the tiles of the floor of the swimming pool were slippery because of algae formation? It is the plaintiff‘s case that they were and, therefore, there was clear negligence on the part of the defendant inasmuch as the swimming pool had not been properly maintained and kept safe for the residents of the hotel. The defendant, on the other hand, contended that the swimming pool was properly maintained and that, in any event, the injury which resulted was because of the plaintiff diving into the pool and not because of her jumping as suggested by the plaintiff. The third facet is that, in case there is a finding in favour of the plaintiff that the injury caused to her was because of the defendant‘s negligence, the quantum of compensation is to be determined. These are the broad parameters of this case. Averments in the Plaint:

3. In the plaint, it is alleged that in May, 1978, the plaintiff was on vacation in India along with her parents and stayed in Akbar hotel situated at New Delhi which was being run and managed by the defendant. On 05.05.1978, during her stay in the hotel, the plaintiff went to the swimming pool at about 5:15 pm for a swim. It is stated that the plaintiff was an experienced swimmer, having been a Queensland (Australia) underage champion and was also a member of the Queensland Women‘s Water Polo Team for a number of years. It is averred that in the beginning of 1978, the plaintiff had also been invited to join the Australian Women‘s Water Polo Team and was expected to travel to Germany with the Australian Team in August, 1979.

4. On the fateful day, that is, on 05.05.1978, at about 5:15 pm, the plaintiff jumped into the swimming pool from the shallow end, opposite the diving board. According to the plaint, the plaintiff had reason to believe that the bottom of the pool was not slippery and had been kept clean of all slimy material which otherwise accumulates if the pool is not properly cleaned. According to the plaintiff, it is an implied representation by the owner of the swimming pool that the floor of the pool is not slippery and is safe for persons using the pool to stand on the floor of the pool without slipping. According to the plaintiff, the defend