Juhu hotel could be sued For civil damages: Experts

MUMBAI: Life came to a tragic standstill for the Dube family of Goregaon on Saturday, after Aditya Dube, 7, fell to his death through the floor of a rooftop restaurant in Juhu. A weekend family outing ended in tragedy, shocking many.
The police have booked the hotel management for death due to negligence under Section 304-A of the Indian Penal Code, but a criminal case aside, legal experts said the family ought to be compensated for a civil wrong too.For this, it would have to depend on the uncodified law of torts, which is not based on statutes, but is essentially common law.
While in the US and UK many cases are filed under the law of torts, the lack of cases in India in which people seek damages for civil wrongs, and lack of significant precedents, means that many service providers, organisations and managements get away with negligence, say consumer rights experts.
A tort is a wrongful act, whether intentional or negligent, which causes injury, and can be remedied through civil law, usually through awarding damages.
The Bombay high court has said, "The law of torts is founded and structured on morality, i.e. that no one has a right to injure or harm others intentionally or even innocently." It is not about motive, but the consequences of action to other human beings.
Said international corporate lawyer Swapnil Kothari, "The test of negligence here would be 'foreseeability' and in a hotel (where children often visit), the hotel cannot 'remotely' argue this as being unforeseeable. In Jolley vs Sutton London BC (Borough Council), the House of Lords held the council liable for a 14-year-old's spinal injuries caused by an abandoned boat, stating the council could have definitely seen the high risk, if not the exact injury, in leaving an abandoned boat. Naturally, the law stresses on the 'level of risk' and not the 'kind of injury', making it strongly arguable that the hotel has committed the tort of negligence by not erecting a higher fence or completely barring entry to the area."
While there were no signs warning people to stay away from the acrylic sheets through which Dube fell, civic officials have said the hotel had put up a two-foot fence around it. That the dangerous portion had no warning sign and a low barricade, over which even a child could step, speaks volumes for the attitude of the hotel's management, said a lawyer.
In the UK, a person who trips on a pavement can sue the local council, while the US has a huge number of personal injury claims.
Codifying the law
While in the UK the law of torts is not codified, and in the US it is largely uncodified, in India lawyers said codification would help victims. In India, the law of torts has takers only when it is well spelled out, as under the Consumer Protection Act. The Dube case highlights the need for a codified law in India, said experts. In fact, Union law minister V Moily had recently said that there are plans to codify the law of torts.