Court: High Court of Madhya Pradesh
Case Type: First Appeal
Case No: 122 of 1951
Appellants: Kallulal
Respondents: Hemchand
Decided On: 17-04-1957
Statues Referred:
- Law of Torts
- Fatal Accidents Act of 1855
Case Referred:
- Sedleigh denfield v. St. Joseph’s Society for Foreign Missions
- greenock v. Caledonion Railway
- Secretary of State v. Bharibahu
- Secretary of State v. Mt. Rukhmini Bai
Bench: Justice Bhutt, Justice Chaturvedi
Facts:
The appellant was the owner of the house located in the Lord Ganj locality of Jabalpur, and the southern wall of the house adjoined a highway. Near the said wall, Thelas were used to be kept.
On 25-08-1947, while it was heavily raining the southern wall of the said building collapsed and crushed the Thela of respondent thereby killing the respondent’s son aged 6 ½ yr. and daughter aged 10 yr. These kids were entrusted with the Thela containing Hosiery goods.
The appellant was prosecuted U/S 304(A) of IPC, but were acquitted. Later the respondent filed a suit in forma pauperis whereby they claimed the damages amounting to 15,950. The appellant defended the suit by contending that the said house was not in a dilapidated condition as to constitute danger to life.
The situation and condition of the house were such that no reasonable person could contend that such unfortunate incident could take place. The defence of Act of God was pleaded by the appellant.
However the Trail Court was convinced about the dilapidated condition of the house and held that there were three cracks in the said wall to which the appellant never cared to get repaired and that the incident took place due gross negligence and carelessness of the appellant. A decree of 11,400 as damages was passed by the Court.
Aggrieved by the decision the appellant approached the High Court contending that the owner could not be held responsible for the unfortunate incident because the house in question was occupied by the tenants therefore several points regarding the burden of proof, volenti non fit imjurria and contributionary negligence was raised.
Issue:
Whether the Trail Court decree was correct or not.
Determination of quantum of damages.
Obiter Dicta:
The buildings adjoining the highway should be maintained in such a condition that it is not dangerous to the users of the highway. Negligence to do so amounts to nuisance.
And sometimes the occupier and the owner both are held liable for creating such nuisance despite having knowledge or presumed knowledge of its existence.
To constitute an Act of God, the occurrence must be
- Due to natural causes exclusively,
- Of an extraordinary nature, and
- Such that it could not be anticipated or provided against.
Ratio Decedendi:
The prima facie evidence of negligence lies in the fact that there was disrepair of the damaged wall due to which the roof came off or collapse of wall occurred and the burden to disprove it lied upon the owner or the occupier.
The collapse of 13 X 15 feet wall itself is a prime testimony of the fact that the wall was in grim/dilapidated condition which required due repair on the part of the appellant.
The doctrine of res ispa loquitur was applied by the Trail Court, the doctrine though does not lay dawn any principle of law but tags the appellant with negligence. For this doctrine to apply the plaintiff simply needs to prove the set of circumstances to prove his case without having to prove any act or omission on the part of the appellant.
Jai Ram one of the Mukhtiar Am of the appellant testified that the said house was 50years old and no money had been spent on repairs of the wall.
The Court held that the contention of heavy rainfall on the day on occurrence was the reason behind the unfortunate incident. But a rainfall of 2.26 or 4 inch could not be held to be a heavy one so as to constitute an Act of God.
Act of God is constituted when it is cause by natural forces out of human apprehension and control. But the rainfall on 25-08-1947 was held to be out of purview of Act of God because it ought be anticipated and provided against.
The arguments of volenti non fit injuria and contributory negligence failed as it was not taken in written statement and no issue had been framed thereon.
An owner becomes liable to stranger if the repair in question as to be done by himself or if he has himself the right to enter and do repair and upon serving a notice if he fails the owner shall always be liable.
So in the instant case the witness Jai Ram and manson Tanu, testified that the repair was to be undertaken by the owner itself and the owner showed no concern to do the repair.
So far as the estate let out to tenants was concerned, the High Court regarded that if the owner had the direct and indirect responsibility to repair the house adjoin a highway such that disrepair would lead to an unfortunate incident then the house owner will always remain liable for any mishappening irrespective of whether the owner had any knowledge of state of repair or not.
With regard to quantum damages the High Court observed that an appellate Court should be reluctant in reversing the decree of Trail Court on quantum of damages until and unless the Trail Court had erred in providing so.
To determine the damages a certain amount of guess-work is admissible as there are various factors that needs to be considered which cannot be equated in monetary terms. But it was certain that no sentimental damages could be awarded unless there was any financial damages occurred due to the incident.
The children who were deceased in the incident were contributing financially to their father and their decease has led to pecuniary losses. Their pecuniary savings, their contributions to the father, and, the assistance that they would have continued to give in business, all of which are estimable in terms of money.
The Trail Court’s decision about granting 10,100 as damages for loss of son Vijay Kumar who at the time death was 6 ½ years of age. The Court held that the average life of the Indian is expected to be 45 years whereas in the light of the present case the Court regarded that the boy could have lived 50 years of age.
The Trail Court erred in missing out the fact that the boy after the attainment of the majority would have married and raised his own family and in such scenario it would not have been feasible for the boy to spare all the money upon his father.
Judgment
The Madhya Pradesh High Court’s bench comprising of Justice Bhutt, Justice Chaturvedi held the following:
The liability of the owner does not extinguish on account of the fact that the estate in question was occupied by the tenant and therefore they are also equally liable for the mishap. If the estate in question is under the control of the owner himself and that the repair cannot be carried out without his permission then the onus is upon the owner itself to get the wall repaired. And negligence would be attracted on disrepair.
The question whether the owner is aware about the dilapidated condition of the wall is irrelevant. And hence the Trail Court decision was upheld and the appeal failed.
The quantum of damages for the death of the boy was taken as 1440 plus 2,400 is equal to 3. 840. And the total damages thus stood at 5140.
Therefore the appeal was allowed only to the extent that the decree passed by the Trail Court was reduced to 5140 from 11,400.
No order for cost was allowed.
Conclusion
Under law of torts the defence of Act of God is successful only when the incident is completely natural in nature and which must be beyond the power of human being to apprehend or control them. Such incident such be of extraordinary occurrence.
And therefore in the instant case the plea of heavy rainfall failed as a rainfall of 2.66 inches was held by the Court as a normal rainfall. And that the owner was negligent in making repair of the dilapidated wall. Hence the appellant was liable.
Kaushal Agarwal.