Holding

A hotel that provides a swimming pool owes a duty of care to its guests, and assigning the lifeguard to bartending duties breached that duty, making the hotel liable for the death and the compensation awarded by the NCDRC.

Summary

The first complainant booked a hotel stay at the Kerala Tourism Development Corporation (KTDC) where her husband drowned in the swimming pool. The lifeguard on duty was also assigned bartending duties, and a foreign guest initially rescued the victim. A consumer complaint was filed alleging deficiency of service, and the National Consumer Disputes Redressal Commission (NCDRC) held KTDC liable, awarding Rs.62,50,000 in compensation. On appeal, the Supreme Court affirmed that a hotel providing a pool owes a duty of care to its guests, that assigning the lifeguard additional duties breached that duty, and that the breach caused the death. The Court upheld the NCDRC’s finding of deficiency and the quantum of compensation, modifying the interest clause. Consequently, the appeal by KTDC (Civil Appeal No.6038) was dismissed, while the appeal by the complainants (Civil Appeal No.8000) was allowed in part.

Issues considered

The existence of a duty of care owed by a hotel providing a swimming pool to its guests
Whether assigning a lifeguard additional duties (bartending) constitutes a breach of that duty
Whether the breach caused the death of the deceased (causation)
Whether the compensation awarded by the NCDRC is appropriate

Subjects

Consumer ProtectionDeficiency of ServiceDuty of CareNegligenceSwimming Pool SafetyLifeguardCompensationDamages

Judgment

[2019] 5 S.C.R. 225 225

THE MANAGING DIRECTOR, KERALA TOURISM A
DEVELOPMENT CORPORATION LTD.
v.
DEEPTI SINGH & ORS.
(Civil Appeal No. 6038 of 2015) B
MARCH 15, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Consumer Protection – Deficiency of service – First
C
complainant had booked accommodation at a hotel for a family
holiday – First complainant’s spouse sank into the swimming pool
of the hotel and later died – FIR was registered – Also, a complaint
was filed before the National Consumer Disputes Redressal
Commission (‘NCDRC’) – NCDRC held that there was a deficiency
of service on the part of the management of the hotel, primarily for D
the reason that the lifeguard on duty was also assigned the task of
a Bartender and assessed the compensation in the amount of
Rs.62,50,000/- – On appeal, held: A hotel which provides a
swimming pool for its guests owes a duty of care – Allowing or
designating a lifeguard to perform the duties of a Bartender was a
E
clear deviation from the duty of care – 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 – In the instant case, there was a breach of duty of care
by the appellant – Insofar as damages are concerned, taking into F
account, the nature of the business, the prospects for future earnings,
the loss of companionship for a spouse and of the guidance and
support for the children, the assessment of compensation in the
amount of Rs.62,50,000/- by the NCDRC was faultless.
The first complainant had booked accommodation at a Hotel G
for a family holiday. Spouse of the first complainant entered the
swimming pool with his brother. All of sudden, he became
unconscious and sank into the pool. It was alleged that a
foreigner who was in the vicinity lifted him out of water. Later,
spouse of the first complainant died. An FIR was registered and
H
225
226 SUPREME COURT REPORTS [2019] 5 S.C.R.

A thereafter a complaint was filed before the NCDRC. The NCDRC
held that there was a deficiency of service on the part of the
management of the hotel. Appellant has filed this appeal against
the order of the NCDRC.
Disposing of the appeals, the Court
B HELD: 1. Existence of a duty of care
In the instant case, the deceased and the complainant were
guests in the hotel run by the appellant. 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
C 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 supervised by trained personnel, it is likely to
D 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
E over those who use the pool. Allowing or designating a lifeguard
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
F 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. [Para 15]
[234-B-E]

G 2. Breach of duty
In the present case, it is an admitted position of the 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
H
MANAGING DIRECTOR KERALA TOURISM DEV. CORPN. LTD. v. 227
DEEPTI SINGH .

swimming pool available for its guests, it ought to have assigned A
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. Hence, there is no difficulty
in holding that there was a breach of the duty of care owed by the
B
appellant. [Paras 19, 20] [236-E-F, G]
3. Consequential Damages
That leaves this Court with the question of damages.
Appeals have been filed against the decision both by the KTDC
as well as by the original complainants. The deceased was 35 C
years old. He was a partner in a firm engaged in the business of
trading in consumer goods and office automation along with two
other persons. The income tax return for the assessment year
2005-06 indicated that he had a gross income of Rs.1,91,000/-
The NCDRC has justifiably borne in mind the fact that the
deceased had ample future prospects. Material was produced D
on the record to indicate that the deceased was carrying on
business and also had agricultural income. The young children
have been deprived of the support and affection of their father.
Their mother has lost the companionship of a spouse. The nature
of the loss is incapable of being fully compensated in monetary E
terms. Therefore, taking into account the social status of the
parties, the income of the deceased, the nature of the business,
the prospects for future earnings, the loss of companionship for
a spouse and of the guidance and support for the children, the
assessment of compensation in the amount of Rs.62,50,000/- by
the NCDRC cannot be faulted. [Paras 21 and 24][237-A; F
238-D-G]
Poonam Verma v. Aswin Patel (1996) 4 SCC 332 :
[1996] 2 Suppl. SCR 671; Rajkot Municipal
Corporation v. Manjulben Jaynatilal Nakum (1997) 9
SCC 552 : [1997] 1 SCR 304; India Tourism G
Development Corporation Limited v. Miss Susan Leigh
Beer 2014 SCC Online Del 3376 – relied on.
Caparo Industries plc v. Dickman (1990) 2 AC 605;
BNM on her own and on behalf of Others v. National
H
228 SUPREME COURT REPORTS [2019] 5 S.C.R.

A University of Singapore [2014] 2 SLR 258 ; Reevs v.
Commissioner of Police (2000) 1 A.C. 360 –
referred to.
Winfield & Jolowicz on Torts 19th Edition, 2014 pg
144 – referred to.
B Case Law Reference
[1996] 2 Suppl. SCR 671 relied on Para 8
[1997] 1 SCR 304 relied on Para 9
CIVIL APPELLATE JURISDICTION: Civil Appeal No.6038 of
C 2015.
From the Judgment and Order dated 28.04.2015 of the National
Consumer Disputes Redressal Commission, New Delhi in Consumer
Complaint No.89 of 2006
With
D
Civil Appeal No.8000 of 2016.
U.R. Lalit, Sr. Adv., Gopal Sankar Narayan, E.M.S. Anam,
M.S. Vishnu Sankar, Ms. Ashivarya Kane, Ms. Gayatri Verma, Santosh
Kumar, Madhurendra Sharma, V. Sushant Gupta, Mushtaq Ahmad, Advs.
E for the Appellant.
U.R. Lalit, Sr. Adv., Ranbir Singh Yadav, Puran Mal Saini,
Ms. Anzu K. Varkey, Pati Raj Yadav, E.M.S. Anam, Advs. for the
Respondents.
The Judgment of the Court was delivered by
F
DR DHANANJAYA Y CHANDRACHUD, J.
1. The Appeals are admitted.
2. These appeals arise from the judgment of the National
Consumer Disputes Redressal Commission1 dated 28 April 2015.
G 3. A consumer complaint in regard to an alleged deficiency of
service of the Kerala Tourism Development Corporation Ltd.2 was
instituted by Ms Deepti Singh for and on behalf of herself and her two
minor children. The complainants had booked accommodation at Hotel
1
“National Commission”
H 2
“KTDC”
MANAGING DIRECTOR KERALA TOURISM DEV. CORPN. LTD. v. 229
DEEPTI SINGH [DR. DHANANJAYA Y. CHANDRACHUD, J.].

Samudra at Kovalam for a family holiday. On 21 March 2006 between A
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
B
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 Report3 was lodged at about 2 p.m. on 22 C
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 D
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: E
“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; F
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
G
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.
3
“FIR” H
230 SUPREME COURT REPORTS [2019] 5 S.C.R.

A 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
B 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
C 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
D 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 :

E (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
F appeal. The deceased was a businessman with agricultural income, in
addition. There were excellent future prospects for the enhancement of
his income. His family has sustained a serious tragedy consequent on
his death. Hence, the compensation which has been awarded should be
enhanced.
7. It is an admitted position that initially, it was a guest who noticed
G
that the deceased was drowning. There is a dispute on whether the
deceased was pulled out of the pool only by the foreigner, as the
complainants contend, or both by the foreigner and the life guard, as
was contended by the Management. The issue before the court is whether
there was negligence on the part of the appellant arising from a breach
H of the duty of care it owed the deceased.
MANAGING DIRECTOR KERALA TOURISM DEV. CORPN. LTD. v. 231
DEEPTI SINGH [DR. DHANANJAYA Y. CHANDRACHUD, J.].

8. In Poonam Verma v Aswin Patel4, a two judge Bench of this A
Court elucidated on the elements of the tort of negligence. Justice S
Saghir Ahmad held thus:
“14. Negligence as a tort is the breach of a duty caused by omission
to do something which a reasonable man would do, or doing
something which a prudent and reasonable man would not do.” B
The Court listed the following elements which constitute
‘negligence’:
“15. … (1) a legal duty to exercise due care;
(2) breach of the duty; and C
(3) consequential damages.”
9. In Rajkot Municipal Corporation v Manjulben Jayantilal
Nakum5 (“Rajkot Municipal Corporation”), a two judge bench of
this Court characterized the tort of negligence as “careless conduct in
commission or omission of an act”. Justice Ramaswamy opined thus: D
“12... The elements of tort of negligence consist in — (a) duty of
care; (b) duty is owed to the plaintiff; (c) the duty has been
carelessly breached. Negligence does not entail liability unless
the law exacts a duty in the given circumstances to observe care.
Duty is an obligation recognised by law to avoid conduct fraught E
with unreasonable risk of damage to others. The question whether
duty exists in a particular situation involves determination of law.
Negligence would in such acts and omissions involve an
unreasonable risk of harm to others. The breach of duty causes
damage and how much is the damage should be comprehended
F
by the defendant. Remoteness is relevant and compensation on
proof thereof requires consideration. The element of carelessness
in the breach of the duty and those duties towards the plaintiff are
important components in the tort of negligence. Negligence would
mean careless conduct in commission or omission of an act
connoting duty, breach and the damage thereby suffered by the G
person to whom the plaintiff owes. Duty of care is, therefore,
crucial to understand the nature and scope of the tort of
negligence.”
4
(1996) 4 SCC 332
5
(1997) 9 SCC 552 H
232 SUPREME COURT REPORTS [2019] 5 S.C.R.

A 10. The ingredients of the tort of negligence are: (i) existence of
a duty of care; (ii) a breach of the duty through action or omission; and
(iii) damages arising as a consequence of the breach.
11. We shall now determine if these elements have been satisfied
in the present case.
B 12 (i) Existence of a duty of care
In Caparo Industries plc v Dickman6, the House of Lords
observed that three ingredients are necessary for the existence of a
duty of care: (i) foreseeability of the damage; (ii) proximity of relationship
between the parties; and (iii) whether it is ‘just, fair and reasonable’ that
C the law should impose a duty of care. Lord Bridge stated thus:
“What emerges is that, in addition to the foreseeability of damage,
necessary ingredients in any situation giving rise to a duty of care
are that there should exist between the party owing the duty and
the party to whom it is owed a relationship characterised by the
D law as one of “proximity” or “neighbourhood” and that the situation
should be one in which the court considers it fair, just and
reasonable that the law should impose a duty of a given scope
upon the one party for the benefit of the other.”
13. In Rajkot Municipal Corporation(supra), this Court, relied
E on Michael. A. Jonas’s treatise7 on the Law of Torts and observed thus:
“33… as a tort, negligence consists of a legal duty to take care
and breach of that duty by the defendant causes damage to the
plaintiff. Duty determines whether the type of loss suffered by
the plaintiff in the particular way in which it occurred can ever be
F actionable. Breach of duty is concerned with the standard of care
that ought to have been adopted in the circumstances, and whether
the defendant’s conduct fell below that standard, i.e., whether he
was careless. The division of negligence into duty, breach and
consequent damage is convenient for the purpose of exposition
but it can be confusing because the issues will often overlap. He
G
has elaborated the general principles, viz., the neighbourhood
principle as laid down in Donoghue v. Stevenson and has stated
at p. 27 that the result would seem to be that factors which formerly
might have been considered at the second stage of Lord
6
[1990] 2 AC 605
H 7
4th Edition, (1995).
MANAGING DIRECTOR KERALA TOURISM DEV. CORPN. LTD. v. 233
DEEPTI SINGH [DR. DHANANJAYA Y. CHANDRACHUD, J.].

Wilberforce’s test, policy considerations which ought to “negative, A
or to reduce or to limit the scope of the duty”, should be taken into
account at an earlier point when deciding whether a relationship
of proximity between plaintiff and defendant exists. The second
stage of the test will apply only rarely, i.e., in a limited category of
cases where, notwithstanding that a case of negligence is made
B
out on the proximity basis, public policy requires that there should
be no liability. This new approach represents a shift of
emphasis rather than a new substantive test for the
existence of a duty of care. In future, rather than starting
from a prima facie assumption that where a defendant’s
carelessness causes foreseeable damage, a duty of care will C
exist, subject to policy considerations which may negative
such a duty. The courts will determine the duty issue on a
case-by-case basis, looking in particular at the nature of
the relationship between parties to determine whether it
is sufficiently proximate. That question is of an intensely
D
pragmatic character, well suited for gradual development
but requiring most careful analysis. The following
requirements must be satisfied before a duty of care is held
to exist:
(i) Foreseeability of the damage;
E
(ii) a sufficiently proximate relationship between the par-
ties; and
(iii) even where (i) and (ii) are satisfied it must be just and
reasonable to impose such a duty.”
(Emphasis supplied) F
14. In India Tourism Development Corporation Limited v
Miss Susan Leigh Beer8, the respondent had slipped into a swimming
pool maintained by the appellant on account of the growth of algae on
the tiles of the swimming pool and sustained serious injuries. A Division
Bench of the Delhi High Court held that the appellant did owe a duty of G
care to the respondent. It observed as follows:
“80…Guests at the swimming pool are closely and directly affected
by acts or omissions of those responsible for the maintenance of
8
2014 SCC OnLine Del 3376
H
234 SUPREME COURT REPORTS [2019] 5 S.C.R.

A a pool; proximity of the respondent to appellant thus existed in this
case. It is reasonably foreseeable that algale growth on the floor
of the pool is likely to make the floor slippery, thus likely to injure
guests at the pool.”
15. In the case before us, the deceased and the complainant were
B guests in the hotel run by the appellant. 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
C properly maintained and supervised 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
D 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
E 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.
16 (ii) Breach of duty
F
In Winfield & Jolowicz on Torts9, it has been observed that the
following conditions must be satisfied in order to prove a breach of the
duty of care:
“The process of determining whether there has been a breach of
G duty involves three steps. These steps are often not neatly
separated from each other, but it is essential to distinguish between
them if one is to understand properly this area of the law. First, it
is necessary to ascertain the qualities of the reasonable person.
9
19th edition, 2014, pg 144
H
MANAGING DIRECTOR KERALA TOURISM DEV. CORPN. LTD. v. 235
DEEPTI SINGH [DR. DHANANJAYA Y. CHANDRACHUD, J.].

This is a question of law. Secondly, it must be asked how much A
care the reasonable person, given the qualities attributed to him,
would have taken in the circumstances. The factors that are
permissible to take into account in this regard are prescribed by
the law, but the amount of care that the reasonable person would
have taken given those factors is a question of fact. Thirdly, it
B
must be determined whether the defendant took less care of the
claimant’s interests than the reasonable person would have taken.
This is a question of fact. If the defendant took less care than the
reasonable person would have taken, the defendant will be found
to have acted negligently, and the breach element of the tort of
negligence will be satisfied.” C
17. The safety norms for water sports prescribed by the National
Institute of Water Sports in the Ministry of Tourism of the Government
of India cast an obligation upon the person or entity which provides a
swimming pool in a hotel to appoint a lifeguard for the pool. The lifeguard
should not be given any other duties which would distract her from the D
work of a lifeguard. The role of a lifeguard has been succinctly set out
by the National Commission thus:
“We need to keep in mind that the lifeguard is not an ordinary
swimmer. As per the norms laid down in the above referred
regulation, he should be able to swim 100 meter in two minutes E
without resting, by way of crawl or breast stroke; he should be
able to dive 08 inch deep and bring up a 5 Kg. weight to the
poolside/bank and he should be able to tread without moving the
legs for minimum 01 minute. The person who get appointed as a
lifeguard needs to possess a valid Lifesaving Technique
Certification from the agencies like National Pool and Water Parks F
and Association and Safety Council. Such certification is granted
after a two day Revalidation course to confirm that he meets the
stipulated physical fitness and rescue standards.”
18. The Court of Appeal in Singapore, in BNM on her own
behalf and on behalf of others v National University of Singapore10, G
dealt with a case where the plaintiff’s husband drowned while swimming
in a pool owned by the National University of Singapore. The deceased

10
[2014] 2 SLR 258
H
236 SUPREME COURT REPORTS [2019] 5 S.C.R.

A got into difficulties while swimming and his friend pulled him out before
the lifeguards came to the rescue. The court held:
“48…A finding of negligence would depend on a number of
factors in determining whether the difficulties of a swimmer
in the water should have been apparent to the lifeguard on
B duty had he performed his duties diligently. The view of
the lifeguard would be particularly material in this
assessment and that would in turn depend on a number of
factors such as the size of the pool, the number of swimmers in
the pool and the available lighting, ie, whether it was day or night.
Other relevant considerations would include whether there were
C shouts for help by the swimmer in distress or other users of the
pool, whether there was unusual splashing, whether the swimmer
was struggling or motionless in the pool or whether there were
other distractions which the lifeguard was required to attend
to. There is no inflexible rule that the lifeguard is entitled to a
D certain amount of time to react before which an inference of
negligence can be drawn. What is clear is that the longer it takes
for a lifeguard to detect a swimmer in distress in the water, the
more likely an inference of negligence would be drawn. The lapse
of time before reacting is only one factor for consideration…”
E (Emphasis supplied)
19. 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
F 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.

G 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.
H
MANAGING DIRECTOR KERALA TOURISM DEV. CORPN. LTD. v. 237
DEEPTI SINGH [DR. DHANANJAYA Y. CHANDRACHUD, J.].

21 (iii) Consequential Damages A
The third limb would require us to analyze whether the death of
the deceased was caused by a breach of the duty and was not a remote
and unforeseeable damage. Mr Gopal Sankarnarayanan, learned Counsel
for the appellant contended that the death of the deceased was not due
to the absence of the lifeguard and that a healthy 35-year-old man could B
not have drowned without any cause. Before we get to the particular
facts of the case, it is important to elucidate on the concept of causation
in the law of torts. In Reeves v Commissioner of Police11, Lord
Hobhouse opined thus:
“My Lords, causation as discussed in the authorities has been C
complicated both by conflicting statements about whether
causation is a question of fact or of law or, even, “common sense”
and by the use of metaphor and Latin terminology, e.g., causa
sine qua non, causa causans, novus actus and volenti, which in
themselves provide little enlightenment and are not consistently
used. D

At one level causation is purely a question of fact…Any disputed
question of causation (factual or legal) will involve a number of
factual events or conditions which satisfy the “but for” test. A
process of evaluation and selection has then to take place. It may,
for example, be necessary to distinguish between what factually E
are necessary and sufficient causes…Thus certain causes will
be discarded as insignificant and one cause may be selected as
the cause. It is at this stage that legal concepts may enter in,
either in a way that is analogous to the factual assessment…or, in
a more specifically legal manner, in the attribution of responsibility F
(bearing in mind that responsibility may not be exclusive). In the
law of tort it is the attribution of responsibility to humans that is
the relevant legal consideration.”
22. In the case before us, the post-mortem report indicates the
following: G
“No injury was present on the body.
Brain was congested and oedematous. Air passages were
congested and contained blood stained fluid. Lungs were crepitant
11
[2000] 1 A.C. 360
H
238 SUPREME COURT REPORTS [2019] 5 S.C.R.

A and voluminous exuding copious amount of frothy blood stained
fluid on sectioning…
OPINION AS TO CAUSE OF DEATH: “Postmortem
appearances are consistent with death due to Drowning.”
(Emphasis supplied)
B The death of the deceased was due to drowning. Significantly,
there was no evidence of the presence of alcohol in the body of the
deceased. The death was due to drowning. Considering the delay in the
response by the life guard who was preoccupied with bartending duties,
the drowning of the deceased was a direct consequence of negligence.
C 23. On the above facts, we are of the view that the finding of a
deficiency of service which was arrived at by the NCDRC was correct
and was sustainable with reference to the material on the record. There
is no element of perversity or any failure to take material circumstances
into account in arriving at the decision.
D 24. That leaves this Court with the question of damages. Appeals
have been filed against the decision both by the KTDC as well as by the
original complainants. The deceased was 35 years old. He was a partner
in a firm engaged in the business of trading in consumer goods and
office automation along with two other persons. The income tax return
E for the assessment year 2005-06 indicated that he had a gross income of
Rs.1,91,000/- The NCDRC has justifiably borne in mind the fact that
the deceased had ample future prospects. Material was produced on
the record to indicate that the deceased was carrying on business and
also had agricultural income. The young children have been deprived of
the support and affection of their father. Their mother has lost the
F companionship of a spouse. The nature of the loss is incapable of being
fully compensated in monetary terms. In our view, taking into account
the social status of the parties, the income of the deceased, the nature of
the business, the prospects for future earnings, the loss of companionship
for a spouse and of the guidance and support for the children, the
G assessment of compensation in the amount of Rs.62,50,000/- by the
NCDRC cannot be faulted.
25. The NCDRC directed that the compensation should be paid
within a period of six weeks from its decision, failing which it would
carry interest at the rate of 9 per cent per annum with effect from six
H
MANAGING DIRECTOR KERALA TOURISM DEV. CORPN. LTD. v. 239
DEEPTI SINGH [DR. DHANANJAYA Y. CHANDRACHUD, J.].

weeks from the date of the judgment. We find no justification for the A
NCDRC to deprive the complainants of the benefit of interest from
the date of filing of the complaint until the date of the decision. We,
accordingly, modify the order of the NCDRC by directing that the
amount which has been awarded by the NCDRC shall carry interest at
the rate of 9% p.m. from the date of the institution of the consumer
B
complaint till the date of payment. The amount which has been deposited
in this Court in pursuance of the interim order passed in these proceedings
is permitted to be withdrawn by the respondents. The balance, in terms
of the present direction, shall be paid over by the KTDC to the
complainants within a period of four months from the date of this order.
26. Civil appeal No. 6038 of 2015 shall stand dismissed and Civil C
Appeal No. 8000 of 2016 shall stand allowed to the extent indicated in
the judgment. There shall be no order as to costs.

Ankit Gyan Appeals disposed of.
D

E

F

G

H