Tort law

Mr. Saini Sharma a senior Scientist in a renowned Chemical Laboratory, Bangalore, aged 45 years, checked in Hotel Continental International, Pune on 31 December, 2013. He landed at Pune on 31 December, 2013 and was scheduled to continue his journey to Frankfurt on 2 January, 2014 to attend a World Science Congress between 5 and 8 of January 2014 at Munich, where he was invited to present his research paper. In the evening of 1 January, 2014, Mr. Sharma decided to take a plunge in the swimming pool maintained by the Hotel. He reached the poolside counter at 9.00 pm. There was no one at the counter. He entered the doors leading to the pool, and swiftly walked to the pool, threw his towel and personal belongings on a chair, and dived straight in. The Hotel security guard ran after him shouting at him that the pool was closed. Mr Sharma hit his head on the bottom of the swimming pool, and suffered grievous injuries, long hospitalization and prolonged treatment. The following facts are revealed: The swimming pool closed every-day at 7.00 pm. The brochures and documents about hotel facilities kept in hotel rooms stated that the swimming pool shall close at 9.00 pm. The counter, near the pool, that kept record of persons entering the pool and kept custody of their things, was closed when Mr Sharma went for swimming. A board placed near the counter gave instructions regarding usage of the pool. One such instruction stated that the pool closed at 7.00 .pm. The board was strategically placed that anyone who entered the place could see the board. It is mandatory for five star hotels to close swimming pools after 7.00 p.m. The door leading to the pool was wide open when Mr Sharma walked towards the pool. Mr Sharma did not keep his personal belongings at the counter since the counter was closed, but carried them with him and kept them on a chair near the pool. There was no one in the pool when Mr Sharma dived in. Mr Sharma dived into the shallow side of the pool. There was only one security guard sitting close to the pool. The security guard had closed most of the lights on the pool, except those that would were necessary for keeping the place lighted for security reasons. M Sharma had taken a swim on 31 December, 2013 between 6.30 to 7.00 pm. He had full knowledge about the rules and regulations of the Hotel. On 1 July, 2014 Mr Sharma filed a suit against Hotel Continental International for recovery of an amount of Rs.75 lakhs, by way of damages and interest calculated @ 12% from the date of the filing of the suit until payment and costs. While the suit was pending, Mr. Sharma died of heart attack while undergoing treatment for the accident. His wife and 2 minor children, a girl and a boy, were brought on record as his legal representatives. The claim was amended, and an additional clause seeking compensation arising to dependants from his death was included. Hotel Continental International has approached you. The following queries arise for your consideration: Questions 1 Was Hotel Continental International negligent? 2 Whether Mr Sharma, the plaintiff, failed to take reasonable care of himself? 3 Is Mr Sharma is guilty of contributory negligence ? If so, to what extent and effect? 4 Did Mr Sharma have the last opportunity to avoid accident? 5 Whether the wife and children of Mr Sharma could continue the suit after his death (Refer to section 306 of the Succession Act, judgment of the Supreme Court of 1988 in M Veerappan v Evelyn Sequiera, and Fatal Accidents Act 1855) ? 6 Will the Hotel be liable for losses arising from death of Mr Sharma? 7 What heads of loss are likely to be awarded after death of Mr Sharma? What is the significance of the fact and nature of Mr Sharma’s employment?