Karnataka High Court
Mukesh Textile Mills (P) Ltd. vs H.R. Subramanya Sastry And Ors. on 15 July, 1986
Equivalent citations: I(1987)ACC517, ILR1986KAR3170, 1986(2)KARLJ410, AIR 1987 KARNATAKA 87, (1987) 1 CIV LJ 664, (1987) 2 TAC 185, (1987) 1 ACC 517, ILR 1986 KANT 3170, (1986) 2 KANT LJ 410
Author: M.N. Venkatachaliah
Bench: M.N. Venkatachaliah
JUDGMENT Venkatachaliah, J.
1. Appellant Mukesh Textile Mills (P) Ltd., the defendant in the Court below, has a sugar factory in Harige Village, Tioga District. Adjacent to the sugar factory, on the north, the respondents-plaintiffs own several extents of land irrigated by a distributor channel of the Bard Reservoir canal. The water channel runs west to East, in between the premises of the sugar factory on the south and respondents' lands on the north.
Appellant stores molasses, a bye-product in the manufacture of sugar, in three tanks in the factory premises. Two of them are steel tanks and the third, a mud one with earthen embankment, is close to the respondents' land separated only by the said water channel. At the material point of time, some 8000 tones of molasses were stored in the earthen tank.
It would appear that the northern embankment of this earthen tank had become dilapidated having been dug into by rodents and as a result, on the night of 16th of April 1970, the northern embankment collapsed and a large quantity of molasses in the tank overflowed and emptied themselves into the water-channel and through the water channel, inundated and spread over respondents' land. The inundation of water, fully laden with the molasses, damaged the standing paddy and sugarcane crop raised by the respondents.
2. Respondents brought the present suit O.S. 26 of 1972 on the file of the Civil Judge, Shimoga, for damages of Rs. 35,000/- contending that extensive cultivation of paddy and sugarcane had been damaged.
Originally, the defense was one of denial that the molasses had so inundated respondents' land; but later the appellant sought, and was granted, leave to include by amendment the following defence:
"That in any event as the breach of the tank Northern the Molasses was stored was due to the burrowing activity of the rodents in the said tank precincts, this was an Act of God and the defendant is in no way liable to answer the suit claim even granting that the plaintiff has suffered damages by reason of his crops being destroyed. The defendant could not have seen this burrowing by Rodents."
3. On these pleadings, the Court below framed the necessary and relevant issues. On the plaintiff's side - P.W. 1 - a Revenue Inspector ; P.W. 2 a Photographer, P.W. 3 -the Shanbogue and P.W. 4 - the Patel of Haring Village were examined. The first plaintiff tendered evidence as P.W. 5.
On the side of the appellant-defendant, D.W.1 - the Chief Chemist of the Factory; P.W. 2 and P.W. 3 - the Cane Superintendent and the Manager, respectively of the factory, were examined. A number of documents were marked on either side.
4. On an appreciation of the evidence on record, the Court below held that as a result of a breach of the retaining wall of the mud tank molasses overflowed contaminated the water channel resulting in the inundation of respondents lands by molasses laden water and that the breach of the wall of the tank and the consequent damage suffered by respondents were attributable to actionable negligence on the part of the appellant. In regard to the quantum of damages the Court below held that the claim as put forward by the respondents was somewhat exa.1gerated and that the loss of crops was only in respect of 14 acres of paddy and 3 acres of sugarcane Rs. 10, 500/- and 4,200/- respectively, in all, Rs. , 14,700/- was awarded as damages.
5. We have heard Sri B. T. Parthasarathy, learned Counsel for appellant-defendant and Sri T. S. Ramachandra, learned Counsel for the respondents-plaintiffs. We have been taken through the judgment under appeal and the evidence on record.
On the contentions urged at the hearing, the following points fall for determination in this appeal :
(a) Whether the breach of the molasses tank and the inundation of crops by molasses laden water was the direct consequence of appellant's omission to keep the said tank in a state of good repair ?
(b) Even if the breach was attributable to appellant's neglect, whether the damage to the crop was too remote and the result of an independent cause ?
(c) Whether, at all events, the respondents ought to have mitigated the damages and their omission in this behalf disentitles them to relief ? and,
(d) Whether the damages of Rs. 14,700/awarded are supportable on the evidence on record ?
6. Re : Point (a) : It is to be pointed out, at the outset, that Sri Parthasarathy did not, quite rightly, press into service the plea of "Act of God". Such a defense is limited to occurrences which are outside human agency and could not reasonably be anticipated. It is an operation of natural forces so unexpected that any consequence arising from it must be regarded as too remote to be the foundation of legal liability. Here, there is no suggestion that any natural force, so unforeseen in its occurrence, so unexpected in its severity and so unanticipated in its range of consequences had come into play.
Sri T. S. Ramachandra put it as a simple application of a basic and well recognised principle of Lord Atkin's "neighbour" principle.
The liability of the appellant rests at least on two principles. One is that the appellant, who had stored large quantities of molasses in a mud tank had the duty to take reasonable care in the matter of maintenance, in a state of good repair, of the embankments of the tank. The duty, no doubt, is not simply to act carefully but not to cause injury carelessly. The doctrine of legal causation, in reference both to the creation of liability and to measurement of damages is much discussed. So is the place of 'causation' and foresee ability in the tort of 'negligence'.
But in this case it was virtually admitted that the rodents had burrowed holes into the earthen embankment of the tank rendering its walls weak. Both from the foresee ability test and of initial causation it must be held that the appellant is liable. Appellant could reasonably have foreseen that damage was likely to be caused if there was a breach of the tank. There was clearly a duty-situation and appellant had omitted to do what a reasonable man, in those circumstances, would have done or would not have omitted to do. The damage that was likely to occur to -the neighboring land by a breach of a tank in 'which were stored 8,000 tones ~ of molasses was reasonably foreseeable, engendering a duty-situation. No defense was forthcoming that the tank had been inspected periodically and all reasonable steps taken to keep it in a state of good repair.
In Donohue v. Stevenson, 1932 AC562, Lord Atkins stated the 'neighbor' principle and the duty of care thus:
"The rule that you are to ' love your neighbor becomes in law, you must not injure your neighbor; and the lawyers' question, who is my neighbor? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law my neighbour? The answer seems to be -persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question".
7. The second ground of liability is this: Appellant by storing a large quantity of molasses on the land had put the land to a non-natural user and if a person collects on his premises things which are intrinsically dangerous or might become dangerous, if they escape, he has a liability, if things so stored escape and cause damage. This is the rule in Rayland's v. Fletcher, (1868) LR 3 HL 330 in which Blackburn, J. enunciated the Rule thus:
"We think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for 'all the damages which is the natural consequence of its escape."
On either of the two principles, a duty-situation emerges and the appellant must be held liable for the consequence of the escape of the fluid from its tank.
There is yet another side. By storing of such large quantities of a liquid close to respondents boundary, appellant chose to assume a relationship with an outsider and the, law requires of him to conduct himself as a reasonable man with adequate skill, knowledge and resources would have conducted himself. In British Railway Board v. Herrington, 1972 AC 877 at p. 898. Lord Reid said :
"...... If a person chooses to assume a relationship with members of the public, say by setting out to drive a car or to erect a building fronting a highway, the law requires him to conduct himself as a reasonable man. with adequate skill, knowledge and resources would do. He will not be heard to say that in fact he could not attain that standard. If he cannot attain that standard he ought not to assume the responsibility which that relationship involves ......."
The obligation of the occupier of premises in relation to a trespasser might be somewhat different. The occupier is required only to act in humane manner. On this the learned Lord said:
".... But an occupier does not voluntarily assume a relationship with trespassers. By trespassing they force a "neighbor" relationship on him. When they do so he must act in a humane manner-that is not asking too much of him-but I do not see why he should be required to do more."
Looked at from any side, the present one is a clear case of a duty-situation and also one of omission to discharge it on the part of the appellant. Point (a) is held against the appellant.
8. Re: Point (b) - What Sri B. T. Parthasarathy suggests is, in substance, a defense of a "nevus acts intervenient." If damage results from the intervention of acts of an independent third-party, it may be very difficult to discover the causal-connection between such damage and the original wrongful act.
In the present case the molasses escaping into the water-channel - and through it to the respondents' land - is an unbroken chain of events. There was no conscious act of volition of an independent third-party superimposed on the chain of events. Of the circumstances where the chain of events can be said to have been broken, Salmon States (Salmon and Houston on the LAW OF TORTS, 18th End. at page 308):
"The rule in Rayland's v. Fletcher is not applicable to damage done by the act of a stranger. Thus if a trespasser lights a fire on my land I am not liable if it bums my neighbor's property, unless with knowledge or presumed knowledge of its existence I have failed to extinguish it within a reasonable time. So in Box v. Job, ((1879) 4 Ex D 76) the defendants were held not responsible for damage done through an overflow from their reservoir, when that overflow was caused by an act of a third person who emptied his own reservoir into the stream which fed that of the defendant. So in Richards v. Lothian, (1913 AC 263) it was held by the Judicial Committee on this ground that the occupier of an upper story of a block of flats was not liable for damage done to the occupier of a lower story by the escape of water from a lavatory, when the escape was caused by the malicious means a conscious or deliberate act which could not reasonably have been foreseen."
As to the circumstances in which the chain of events is not broken and liability is not so excepted, Charles worth says (Charles worth and Percy on' NEGLIGENCE' - 1983 End. Para 5.37 Page 332):
"In the Oropesa, a collision occurred at sea between the Oropesa and the Manchester Regiment, in consequence of the negligent navigation of the former vessel. The captain of the Manchester Regiment put out in a lifeboat, in order to consult with the captain of the Oropesa with a view to saving the damaged ship but the lifeboat capsized during the voyage in heavy seas, with loss of life. In the ensuing action against the Oropesa, it was contended that the death of the seamen was the result of the Manchester Regiment's captain's decision to put to sea in the lifeboat and not of the original negligence of the Oropesa, which had caused the collision. The Court of Appeal held that, since-the captain's decision was a reasonable one in the circumstances, it did not constitute a nevus acts intervenient."
In this case, the plea of 'novus acuts' has absolutely no foundation. The chain of events set into motion by the negligence of the appellant, in improper maintenance of the tank which resulted in the breach of the tank and the damage caused to the crops, constitutes a direct and uninterrupted chain of events. It all hampered hither night. The molasses contaminated the water in the channel and through it, the crops. The appeal to the principle of 'novus acts' appears to be somewhat misplaced. Point (b) is answered accordingly.
9. Reg. Point (c) : The contention of Sri B. T. Parthasarathy, pushed to its logical conclusions, is that though the respondents' land was infested with molasses, the respondents' remedy was simple enough - if fresh water had been allowed to further irrigate and inundate the lands, the contamination would have been washed out. Learned Counsel submitted that as the respondents had not shown that they had so taken the requisite care to mitigate the damages they are not entitled to any damages. This plea was not taken in the Court below. There is no material to show that such a process would have been really effective and practicable.
As to onus on this plea, McGregor on Damages says : (Page 154, para 216).
"The onus of proof on the issue of mitigation is on the defendant. If he fails to show that the plaintiff ought reasonably to have taken certain mitigating steps, then the normal measure will apply. This has been long settled, ever since the decision in Roper v. Johnson, (1873 LR 8 CP 167) and is now confirmed by Garnet Grain Co. v. Fare &Furlough, (1968 AC 1130)."
In view of the circumstances that there is no. plea of mitigation, much less any material placed before the Court, the appellant, as defendant must be held not to have discharged that burden. The damages must, therefore, be at large. Point (c) is also held against the appellant.
10. Re. Point (d): We have examined the evidence on record on this point. The Court below held that there was paddy crop on 14 acres and sugarcane crop on 3 acres. The Court below estimated the probable yield at 15 paellas of paddy per acre. Valuing paddy at Rs. 50/- per paella, Court below estimated the loss of paddy crop at Rs. 10,500/-. The yield from 3 acres of sugarcane was estimated at 60 tones valued at Rs. 70/- per ton. That brought in a further sum of Rs. 4200/-. D.W. 2 himself admitted&,' the existence of the paddy and sugarcane crop. There is other material also to support this finding apart from the evidence of the 1st plaintiff. (P.W. 5).
11. However there is some force in what Sri Parthasarathy said about the gross value of the crops having been taken while the crops had not been ready for harvest and required some more expenditure for their maintenance for sometime more before harvest and that the expenses for its upkeep and maintenance of the crops and expenses of harvest having to be deducted. We think that it is appropriate to deduct some amount from the damages awarded towards such expenditure, which was reasonably expected to be incurred. Accordingly, we deduct a sum of Rs. 2,500/- on this score. The damages awarded would, therefore, have to be scaled down to Rs. 12,200/- from Rs. 141700/-. This is our finding on Point (d).
12. In the result, this appeal is allowed in part, only in relation to the quantum of, damages. In modification of the judgment and decree under appeal, the suit is decreed in, a sum of Rs. 12,200/- on which respondent-plaintiff shall be entitled to interest at 6% from the date of suit till the date of realization. The respondents shall be entitled to their costs in the suit proportionate to their success. The appellant shall, however, bear and pay its own costs in the Court below. Both the parties are left to bear and pay their own costs in the appeal. Ordered accordingly.
13. Appeal partly allowed.