Klaus Mittelbachert v. East India Hotels Ltd.

AIR 1997 Delhi 201

COURT
THE HIGH COURT OF DELHI

JUDGES
Hon’ble
R. C. LAHOTI, J.

DATE OF JUDGEMENT
JANUARY 3, 1997

FACTS
1) Klaus Mittelbachert, the plaintiff, a German national born on 2nd September 1942 was a co-pilot
in Lufthansa. He landed in Delhi after his flight from Bangkok to New Delhi on the evening of
11th August 1972 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 was a five-star hotel located at Dr. Zakir Hussein
Marg, New Delhi. It was owned by defendant No. 1. Defendant No. 4 was its Chairman and it
was allegedly being managed by defendant No. 2 at the material time.
3) The Hotel had a swimming pool equipped with a diving board. In the afternoon of August 13,
1972, the plaintiff visited the swimming pool and while diving, the plaintiff hit his head on the
bottom of the swimming pool. He was taken out bleeding from his right ear and appeared to have
been paralysed in the arms and the legs. He was taken to Holy Family Hospital, situated 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 to the Orthopedic Clinic and Polyclinic of the University
of Heidelberg. His treatment continued and on 24th March, 1973 he was discharged from the
Clinic. He was shifted back to his residence where his treatment continued however his condition
worsened.

1
 5) On 11 August 1975, a suit was 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.
6) The plaintiff contended that 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 having failed to ensure his safety, the defendants were guilty of negligence and
therefore, liable to compensate the plaintiff for the consequences flowing from the accident.
7) The defendants denied their liability on the grounds that defendants No. 2 and 4 were
unnecessarily joined as parties to the suit as none of them could’ve been held liable or personally
liable. The defendants contended that defendant No. 1 was the owner of defendant No. 3 and was
solely responsible for the acts of defendant No. 3.
8) However, a material event occurred during the pendency of the suit. On 27 September 1985, the
plaintiff died of acute cardiac arrest and the case was moved for bringing the LRs on record with
liberty to prosecute the suit in place of the deceased alleging survival of the cause of action to the
legal representatives.

ISSUES
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 misguide 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 accident in the swimming pool of Hotel Oberoi Intercontinental on 13th August 1972
was on account of any trap laid by the defendants?
4) Whether there was any failure on the part of the plaintiff to take reasonable care of himself in his
own interest and who had the last opportunity of avoiding the accident?
5) Whether the suffering of the plaintiff was the direct result of his own negligence and inaction?
6) Whether the disabilities attributed to the plaintiff were the direct result of the accident which took
place at the swimming pool of the Hotel Oberoi Intercontinental on 13 August 1972?
7) Whether the plaintiff is guilty of contributory negligence? If so, to what extent and to what effect?
8) Whether the plaintiff cannot be indemnified for the injuries suffered by him on 13th August
1972?
9) To what amount, if any, is the plaintiff entitled?
10) Whether the plaintiff is entitled to any interest? If so, at what rate and what amount ?

2
ARGUMENTS

PLAINTIFF
The plaintiff contended that 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
having failed to ensure his safety, the defendants were guilty of negligence and therefore, liable to
compensate the plaintiff for the consequences flowing from the accident.

According to the plaintiff he had gone to the swimming pool at 2.30 pm. He swam twice or thrice, every
time taking an hour's rest in between. At about 6 pm he wanted to have a final swim with a dive from the
three-metre high diving board. On the diving board, he started by taking two-three steps and made a dive
with his head forward and the arms stretched and closed over the head. He sustained an injury in the first
dive itself. During cross-examination, he was confronted with the bill of the hotel and admitted having
ordered a beer. However, he stated that he did not take the beer as he had intended to take it after the
swim and before going for dinner. After the incident, one of the witnesses stayed at the hotel 8-9 weeks
later and found a big signboard near the stairs of the swimming pool cautioning the people that they could
dive at their own risk which was not there at the time of the accident. The hotel had also put some
flowerpots on the diving board so as to obstruct its user and also removed the flexible end thereof.

DEFENDANT
The defendants denied their liability on the grounds that defendants No. 2 and 4 were unnecessarily joined
as parties to the suit as none of them could’ve been held liable or personally liable. The defendants
contended that defendant No. 1 was the owner of defendant No. 3 and was solely responsible for the acts
of defendant No. 3.

The defendants in their written statements stated that the plaintiff was in the pool ever since 2.30 p.m. on
13.8.72. He had taken some drinks and was diving in the pool repeatedly till the evening right from the
afternoon. He was performing acrobatics, dangerous in tendency, and many a time he was warned by the
hotel staff not to do such dangerous acts from the diving board. Diving at a continuous stretch for about
one-and-a-half hours, the plaintiff was virtually exhausted. There was a notice also at the foot of the
diving board reading-- "dive at your own risk".

The defendants' other witnesses, went on to say that the plaintiff had taken heavy drinks and he was
performing acrobatics so as to show off. During cross-examination the witnesses explained that the
performance of the plaintiff during dives was erratic, meaning thereby the plaintiff was making such dives
as were not consistent and were being performed not in such a way as safe dives were expected to be

3
performed. The defendants also took a firm stand that the pool was designed in conformity with the
prevalent architectural standard so as to be safe for user.

JUDGEMENT
After referring the architectural standards for swimming pool building and expert’s testimony, the court
arrived at a finding that the design of the swimming pool was defective, the conclusion which necessarily
emerged was that the swimming pool of the defendant’s hotel was a trap. It was a `hazardous premises’
in the sense in which the term is used in the law of torts. The liability of the defendants for adverse
consequences flowing from the use of the swimming pool- an hazardous premises – would be absolute.

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 absolute 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

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.

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

4
of life. Pecuniary loss may cover damages calculable on the heads of (i) consequential expenses, (ii) cost
of care and loss of earnings.

CRITICAL OBSERVATION
The principle of absolute liability was considered as a tool of prevention of mass destruction or avoidance
of danger to life of masses. But with the transition of the concept of liability, courts started applying this
concept whenever and wherever wellbeing of any individual is concerned. Absolute liability can also be
upheld by the courts in case of a single death without any mass destruction of property or pollution of the
environment as in the present case, the plaintiff who was a German co-pilot suffered serious injuries after
he dived into the swimming pool of a five-star restaurant. After investigation, it was found out that the
pool had a defective design and also insufficient amount of water.

The court held that five-star hotels that charge hefty amounts owe a high degree of care to its guests. This
was violated by Hotel Oberoi Inter-continental, New Delhi where because of the defectively designed
swimming pool, the plaintiff died a painful death. This made the hotel absolutely liable for payment of
damages to the plaintiff. The compensation of Rs.50 lakhs was decided by the court for the plaintiff for
the accident caused.