Consumer protection: Hotel to face action over swimming pool death

The National Commission concluded that the absence of the attendant and the failure to attempt rescue and revive Neeraj constituted a breach of duty and negligence

Neeraj Seth was staying at Vishal International Hotel in Jamnagar. On June 26, 2013, while swimming in the hotel’s pool, he drowned.

 

The police filed a case against the hotel and its employees for criminal negligence. Meanwhile, Neeraj’s father, Krishan Seth, filed a complaint before the National Consumer Disputes Redressal Commission on the grounds of negligence and deficiency in service.

 

During the pendency of the consumer complaint, the criminal case was decided, and the hotel management and its employees were acquitted.

 

The National Commission framed two issues: firstly, whether the absence of a lifeguard constituted negligence; and secondly, whether the management could be held liable for the lack of trained medical staff or life-saving facilities.

 

 

Seth relied on the statements recorded during the police investigation to substantiate that no attendant was present when his son drowned. He also argued that no attempt was made to save his son because the hotel presumed that the latter was already dead since his body was found floating in the water.

 

The hotel objected to placing reliance on the statements recorded by the police, arguing that they were inadmissible in evidence under the provisions of the old Code of Criminal Procedure. The hotel also pointed out that the pool closed at 

 

9 pm, yet Seth continued swimming after hours in violation of the hotel’s terms and conditions. Therefore, it argued, there was no negligence on its part, and it could not be held liable for the mishap.

 

The National Commission distinguished between criminal liability and a claim for compensation for negligence. It observed that even if an accused is absolved in a criminal case, he could still be held liable under the law of torts. The Commission also noted that the hotel management had admitted that three staff members were on duty when the pool was due to be closed for the day and that it was an attendant who discovered the lifeless body floating in the water while taking a round of the pool.

 

The National Commission further noted that the deceased was a very good swimmer and that there was no indication he was suffering from any disease. He was also not in an inebriated condition that could have caused drowning. Even though the real cause of death remained a mystery, the fact was that the deceased drowned in the swimming pool while the attendant had gone briefly to close the gymnasium and returned to the pool to close it for the day.

 

The Commission posed the question whether there was negligence on the part of the attendant by leaving to close the gymnasium despite knowing that the deceased was still in the swimming pool. It also asked whether this short absence of the attendant and the subsequent conduct of the staff constituted a deficiency in service.

 

The Commission noted that the hotel had called the police without making any attempt to call for medical aid or revive Neeraj, presuming him to be dead. It also noted that none of the staff, including the attendant, had any paramedical training.

 

The Commission concluded that the absence of the attendant, and the failure to attempt rescue and revive Neeraj constituted a breach of duty and negligence on the part of the hotel staff and management. Considering that Neeraj was only 27 years old and working as a management trainee, the Commission awarded ~25 lakh as compensation to be paid within three months or with 9 per cent interest if delayed.

 

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The writer is a consumer activist