Uma Naresh vs J.S. Prabhakar

V.K. Jain, J

The son of the complainant namely Gowrav P. was studying in the 8th standard in Auden School, Banagalore. On 09.04.2015, he, alongwith his friend Bharat, went to the swimming pool of the petitioner, paying a sum of Rs.50/- as the swimming charges. He having drowned in the swimming pool, his friend Bharat shouted on hearing which, the employees of the petitioner namely Mr. Kale Gowda, Mr. Dennis and Mr. Mahendran ran towards the swimming pool and took him to nearby hospital where he was declared dead. Alleging negligence on the part of the petitioner, the complainant approached the concerned District Forum by way of a Consumer Complaint claiming compensation quantified at Rs.19,80,000/-.

The complaint was opposed by the petitioner which admitted in its reply that Gowrav P. had come to the pool owned and maintained by them and had paid Rs.50/- as swimming charges. It was alleged in the written version filed by the petitioner that after hearing the shout of Bharat, the employees namely Mr. Kale Gowda, Mr. Dennis and Mr. Mahendran rushed to the spot and took the child to the hospital, where he was declared dead. It was also alleged in the written version that the deceased and his friend had started fighting while swimming and the said fight was also captured in the CCTV maintained at the pool. It was also alleged that despite warning given by the employees of the petitioner, the children had continued swimming and drowned in the water.

The District Forum having dismissed the Consumer Complaint, the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 21.12.2018, the State Commission allowed the appeal and directed the petitioner to pay a sum of Rs.9,15,000/- as compensation alongwith interest @ 8% per annum from the institution of the complaint and the cost of litigation quantified at Rs.5,000/-. Being aggrieved from the order passed by the State Commission, the petitioner is before this Commission.

The only issue involved in this revision petition is as to whether there was any negligence on the part of the petitioner which was managing and maintaining the swimming pool. It is not in dispute that having paid Rs.50/- as the swimming charges, the deceased child was a consumer of the petitioner.

Though the submission of the learned counsel for the petitioner is that they had posted as many as three employees at the swimming pool, no such specific averment is made in the written version. In fact, para 5 of the written version shows that the employees of the petitioner had rushed to the spot only on hearing the shout of Bharat after the child had drowned in the pool. This, in my opinion, indicates that the above referred three persons were not present at the pool in which the children were swimming and they had reached there only on hearing the shouting raised by Bharat, friend of the deceased. Had they been present at the pool itself, they would have jumped into the pool, the moment they saw the child drowning and there would have been no occasion for them to "rush to the spot on hearing shouting of Bharat". In fact had they been right at the pool, they could have prevented the children from fighting in the pool. More importantly, neither of the above referred three persons namely Mr. Kale Gowda, Mr. Dennis and Mr. Mahendran were produced as witnesses before the District Forum nor were their affidavits filed by way of evidence, to prove that they were present at the pool, at the time the son of the complainant got drowned in the pool. Therefore, the inevitable conclusion would be that they were not present right at the pool, at the time the child got drowned.

In Civil Appeal No.6038 of 2015, The Managing Director, Kerala Tourism Development Corporation Ltd. Vs. Deepti Singh & Ors. decided on 15.03.2019, one Satyendra Pratap Singh who was staying in Hotel Samudra of Kerala Development Corporation Ltd., entered the swimming pool of the hotel with his brother. Other guests of the hotel were also present at the pool at that time. All of a sudden, he became unconscious and sank into the pool. Alleging negligence on the part of the hotel, the complainants approached this Commission by way of a Consumer Complaint. It was held by this Commission that since no lifeguard had been posted at the pool, the person assigned the duty of lifeguard having been assigned additional duty of attending to the bar, there was negligence on the part of the hotel. Maintaining the order passed by this Commission and dismissing the appeal preferred by Kerala Development Corporation Ltd., the Hon'ble Supreme Court interalia observed and held as under:

................ 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 3376supervised 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.

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.

In the present case, this is not even the case of the petitioner that she had posted a lifeguard at the pool where the children were swimming. Since the pool was meant for swimming by children, it was absolutely necessary for the petitioner to keep at least one lifeguard posted throughout the time the pool was open for use by the children. This is also not the case of the petitioner that any of the three persons referred above was a lifeguard. A lay person cannot be treated at par with a trained lifeguard, since in the event of an incident of drowning, he may not be in a position to rescue the drowning child, whereas a trained lifeguard is expected to be able to bring the swimmer out and save his life. In any case, as noted earlier, there is no evidence to prove that even the above referred three persons were actually present at the pool itself at the time the child got drowned. Therefore, this was a clear cut case of negligence on the part of the petitioner. Even if the cause of drowning was the fighting amongst the children, that would be of no consequence since, in my opinion, had a lifeguard been present at the pool, he would have, in all probability, been able to save the life of the child.

For the reasons stated hereinabove, the order passed by the State Commission does not call for any interference by this Commission in exercise of its revisional jurisdiction. The Revision Petition, being devoid of any merits, is hereby dismissed.