Gujarat High Court
Rajkot Municipal Corporation vs Manjulaben Jayantilal Nakum And Ors. on 20 March, 1991
Equivalent citations: 1992ACJ792, (1991)1GLR650
JUDGMENT R.D. Dave, J.
1. A commuter gets down at Rajkot Railway Station. He paces towards his office through Kothi Compound. Though a 'Fine Weather Day' a tree suddenly falls upon and kills him. The heirs of the victim sue the Rajkot Municipal Corporation for damages and that too successfully. We understand, the amount has been paid. The Rajkot Municipal Corporation appeals. The question posed is-Could the Corporation have been held liable in damages for the negligence? The ultimate answer would depend upon a few offshoots-Was there a duty to take care? Was that duty breached by the Corporation? Was there a 'reasonable foreseeability'? Could the 'risk' have been 'foreseeable' by the Corporation by resorting to a reasonable standard of care? Let us examine:
2. One Jayantilal Nakum, a resident of village Padadhari, used to work at Rajkot as a clerk in the office of Director of Industries situated in the Collector's office compound. The deceased used to commute between Padadhari and Rajkot by train. On 25.3.1975 at about 10 a.m. he had got down from the train at Rajkot Railway Station and later on was proceeding towards his office. He was to cover an area known as Kothi Compound. While he was walking in the Kothi Compound, a tree suddenly fell upon him and killed him. It is in the background of these facts that the widow and minor children had approached the Civil Court, Senior Division, Rajkot, by filing the Special Civil Suit No. 11 of 1976. The case put forth by the plaintiffs in brief is to the effect that the deceased was quite healthy and that he was the bread-winner of the family. According to the plaintiffs, all the trees in the city of Rajkot are deemed to be of the ownership and under the maintenance and management of the defendant Municipal Corporation and that the Corporation was obliged to maintain the trees and look after them properly. It is also the case of the plaintiffs that the defendant Corporation was careless and negligent in looking after the proper maintenance of the trees, including the tree which had fallen upon the deceased. It is also the case put forth by the plaintiffs very clearly that the tree which had fallen down upon the deceased and had killed him was not a sound tree but was a decayed one. It is, therefore, the case of the plaintiffs that the tree had suddenly fallen on the deceased during a fine weather. The case of the applicant therefore is that the defendant Municipal Corporation had failed in discharge of the duty of maintenance of the tree in a proper fashion, resulting into the incident.
3. So far as the case regarding the quantum of compensation is concerned, it is the case of the plaintiffs that the deceased was aged about 28 years at the time of his death and was expected to be in service up to the age of 60 years and that, therefore, making a reasonable assessment of the loss they would be entitled to the amount of Rs. 1,21,000/- from the defendant Corporation together with the interest and costs. Anyhow they had made the claim in a sum of Rs. 1,00,000/- against the defendant Corporation together with the interest and costs.
4. The defendant Corporation had appeared and has challenged the case of the plaintiffs by filing the written statement at Exh. 5. It is, inter alia, contended that the suit is not maintainable and that the defendant Corporation would not be liable for paying the damages as claimed by the plaintiffs. The defendant has denied the case of the plaintiffs that the unfortunate incident had taken place during the fine weather and has further contended that there was a heavy cyclone throughout the region of Saurashtra and that several trees at various places had fallen down and the house property at various places was damaged and the roofs were blown off. Thus according to the defendant Corporation the reason of the fall of the tree was vis major, i.e., the act of God, for which the defendant Corporation cannot be made liable.
5. Upon the abovesaid pleadings of the parties the learned trial Judge had come to the conclusion that the plaintiffs were able to establish that the deceased had died because of the fall of tree upon his person. The learned trial Judge had also accepted the case of the plaintiffs that the deceased had died because of the negligence on the part of the defendant Corporation. The learned trial Judge has taken the view that the defendant Corporation was not able to establish that the tree had suddenly fallen down on account of cyclone on that particular day. In view of this position the learned trial Judge had proceeded ahead to assess the compensation and ultimately he has made an award in a sum of Rs. 45,000/- together with the proportionate costs and interest. The abovesaid judgment dated 11th January, 1980 and the consequent decree are in appeal before us.
6. Mr. M.R. Gehani, the learned advocate, appears on behalf of the appellant Corporation. The respondents are served.
7. Mr. M.R. Gehani, the learned advocate who appears on behalf of the appellant Corporation, has urged that the learned trial Judge has erred in awarding the decree under challenge because in an action for damages in tort the plaintiffs were required to establish that: (1) the defendant owed some duty; (2) that the defendant acted in breach of the duty which would in common law be known as 'tort of negligence'; and (3) that the plaintiffs suffered some loss or damages which should be compensated by way of awarding damages or compensation. So far as the third aspect of the case regarding sufferance of loss or damages is concerned Mr. Gehani has clearly conceded that the poor victim had died because of the fall of the tree and therefore it. can never be disputed by the defendant Corporation that the plaintiffs have suffered some loss or damage. But posing a serious question for our consideration, Mr. Gehani has urged that in tort of negligence the defendant Corporation could never have been held liable for a breach of duty because the plaintiffs were required to establish that there was a duty cast upon the defendant Corporation and that the defendant Corporation had not taken the necessary care to find out as to whether there was any danger or risk to a pedestrian by the tree. It is also the contention raised by Mr. Gehani that the plaintiffs were required to establish with the help and support of cogent evidence on record that the damage which had ultimately resulted or the risk which has been ultimately suffered was foreseeable and that the same could have been foreseen by adopting a reasonable standard of care. Mr. Gehani has urged, while summing up his contention before us, that there is absolutely no evidence to arrive at a conclusion that the damage which has resulted was foreseeable by adopting a reasonable standard of care. In view of Mr. Gehani, therefore, no award or decree could have been made against the defendant Corporation.
8. The respondents who are the original plaintiffs are duly served but they have not appeared before us. In view of this position there are no submissions on behalf of the respondents.
9. At the outset we would like to make it clear that Mr. Gehani had at the final stage urged before us that he would like to place reliance upon certain English case-law because this part or the branch has not been yet covered by any decision rendered by the Supreme Court of India or any Indian High Court. In view of this position we had made it clear to Mr. Gehani that while studying the case papers and the case-law, if anything comes to our notice which could have been used against the defendant Corporation, we would invite Mr. Gehani's pointed attention towards the same and we would like to invite his views on that particular aspect of the case. Accordingly we had called upon Mr. Gehani to make his stand or position clear in light of certain materials on which we wanted to place reliance. Mr. Gehani has done that and, therefore, we proceed to decide the matter on merit.
10. As noticed above, the case of the plaintiffs is based on the general law of Torts. The case is also based upon the law of Tort of Negligence. In view of this position, we may have to bear in mind certain salient features or aspects regarding the general law of Torts and especially the tort of negligence. By now it is clear that the field of law of Torts speaks of the recognition of certain civil rights which are available to a victim or the heirs and legal representatives of the victim to claim stipulated amount as damages from the wrongdoer for the negligence. When we talk of negligence, the wrongdoer may be made liable because of a wrongful act or an omission to do something which the wrongdoer was required to do but has not done. The plaintiff who sues the wrongdoer in tort is required to prove and establish the negligence on the part of the wrongdoer and the resultant loss. In such cases the plaintiff would also be required to establish a reasonable proximate connection between the damages suffered and the wrong done. We are living in a complex world and, therefore, we have to notice that initially, at the inception, the concept of actionable tort was lying in a narrow compass. By the passage of time and by the increase of eventualities this narrow compass came to be widened, new concepts have been brought in and the domain of law of Torts is being extended daily. In a changed world, new duties, new liabilities and new responsibilities are being fastened on individuals, groups of persons, local authorities and body-corporates. These liabilities are also being fastened on the broad shoulders of the State and certain institutions, which could be said to be the instrumentalities of the State. The direct result of this process is that the area or the field of the law of Torts goes on increasing day by day. We have taken care to emphasize upon the abovesaid aspect because as urged by Mr. Gehani there are rare cases of the tree falling on persons and killing them instantaneously, giving rise to claim the compensation before the civil Tribunal. But as noticed above, in the present complex society the area or the field of the law of Torts is being extended day by day and the courts should not be shy to include any other branch of negligence in the arena of the law of Torts.
11. Making a reference to Halsbury's Laws of England, 4th Edition, Vol. 45 at paras 1201-1203, at pages 558 and 559, we would say that the abovesaid concept has been recognised in this classic work also. It is said very specifically that from time to time, in the past, the common law has recognised new duties and new liabilities of the common law with the capacity to do so in future in other such cases also.
12. We are dealing with a case which had initially arisen between the heirs and legal representatives of a victim, who was a citizen of the Municipal Corporation of Rajkot. We have, therefore, to take into consideration as to whether what would be the nature of the duty cast on the shoulders of the Corporation. The distinction shall have to be made between absolute duties and qualified duties. In a series of cases the English courts have accepted the principle that the statutory duties should be accepted as absolute duties. It is also an accepted proposition of law that in case of absolute duties the plaintiff will be called upon to prove a breach of the duty, but it would not be for the plaintiff to show how the failure to comply with the duty had arisen. It is not a must for the plaintiff in respect of a case arising from the breach of an absolute duty to show that the defendant was guilty of any failure to take reasonable care or to comply with a standard of reasonable care. We feel that the question as to whether any statutory duties have been cast upon the Municipal Corporation under the relevant statute shall have to be examined at a later juncture. But we think it proper to make it clear as stated above that in case of absolute duty, what is generally known as the onus of proof would be curtailed so far as the plaintiff in such cases is concerned. This distinction between qualified duties and absolute duties has been made possible on the basis that in a complex society as it stands today, there would be certain absolute duties cast upon certain institutions, the State and citizens as well. It would not be possible for the dependants of a victim to pinpoint exactly as to at what juncture the enormous machinery of the defendant had failed to take the necessary care and caution. If it is expected of the heirs and legal representatives of a victim to establish the point where the machinery had failed, it would not only be extremely difficult but rather impossible. Again looking to the complexity of the heavy machinery being employed by the Corporation, the State and such other institutions, the distinction shall have to be made between absolute and qualified duties. Let us see what Halsbury has to say in this respect. The reference requires to be made again to the same classic work of Halshury's Laws of England, 4th Edition, Vol. 45, para 1288, page 593. Halsbury says thus:
The duty imposed by a statute is in many cases absolute, that is to say, all that is necessary to prove a breach of the duty is to show that the requirements of the statute have not in fact been complied with, and it is not necessary for the plaintiff in an action for breach of duty to show how the failure to comply arose or that the defendant was guilty of any failure to take reasonable care to comply; nor is it normally a defence for the defendant to show that he took all reasonable precautions to secure compliance.
In the same para Halsbury again says, thus:
In particular, it has been held in a number of cases relating to the statutory duty of local authorities to maintain works that this duty is not absolute. On the other hand, duties to take safety precautions imposed by the factories legislation, the legislation relating to mines and quarries and similar protective statutes and statutory instruments made under them have been held in many instances to be absolute.
13. Therefore, looking to the abovesaid opinion expressed by Halsbury, which is again based upon the English case-law, it becomes clear that one shall have to make a distinction between absolute duties and duties which can be said to be qualified duties. Moreover, the English courts have taken the view that the duties to take safety precautions imposed under certain legislation have been held in many instances to be the absolute duties.
14. The plaintiff ordinarily shall have to establish that aspect of the case also, which is ordinarily known as 'causation'. The action may be either in negligence or in nuisance, but only such damages would be recoverable that are reasonably foreseeable consequence of the tortious act. But again the burden of proving the damages would be discharged on a balance of probabilities. If the plaintiff proves that the tortious act caused or contributed materially to the injury or the damage done the causation is established. In the instant case, we should say, without any hesitation, that the evidence on record goes to establish beyond any manner of doubt that the victim was killed by fall of the tree on his person. Therefore, this principle of causation would not be of much dispute so far as the present appeal is concerned. We have preferred to make a passing reference to the same with a view to make the picture clear.
15. That is all what one can say in nutshell regarding the general law of Torts. Coming to the principles of the law of Negligence, it can be said that what amounts to negligence would depend upon the facts of each case. Ordinarily, it is being stated often that the negligence would consist in omitting to do something which ought to be done or in doing something which is required to be done either in a different manner or not at all. When there is no duty to exercise then the negligence has no legal consequence. It is also true that wherever there is a duty to exercise, reasonable care must be taken to avoid risk or damage which could have been reasonably foreseen. Duty of care is owed only to those persons who are in the area of a foreseeable danger. An act of negligence may also constitute a nuisance, but here, as we are not concerned regarding the case of nuisance, it is not required of us to go in detail regarding the case for damages in nuisance. Suffice it to say that the term negligence has been taken up as that which ought to have been done and has not been done or in omitting to do something which ought to have been done in a different manner or not at all.
16. Charlesworth on Negligence, 6th Edition (The Common Law Library No. 6) also throws some light on this subject. According to the renowned author, in current forensic speech negligence has got three meanings. They are: (1) a state of mind, which is opposed to intention, (2) careless conduct, and (3) the breach of a duty to take care imposed by common or statute law. We are not concerned with first two meanings, and therefore the reference shall have to be concentrated on the third meaning alone. The third meaning of negligence is used in an objective sense and in reference to a breach of duty to take care imposed by common or statute law. There is nothing as negligence in abstract, but the idea of negligence and duty are strictly correlative.
17. So far as the essentials of actionable negligence are concerned, Charlesworth has preferred to put the same at para 20 at page 11, thus:
Accordingly the essential ingredients of actionable negligence are:
(1) the existence of a duty to take care owing to the complainant by the defendant;
(2) failure to attain that standard of care prescribed by the law; thus committing a breach of the duty to take care; and (3) damage suffered by the complainant, which is causally connected with the breach of duty to take care.
Therefore, it is clear that in the claim for the damages arising from the actionable negligence the plaintiff shall have to establish that there was the existence of duty to take care and there was a failure to adopt the standard of care prescribed by law, thus committing a breach of duty to take care and the damage suffered by the plaintiff which must again be connected with the breach of duty to take care. But it is again also very clear that to determine whether an act is negligent or not, it is relevant to determine whether any reasonable person would foresee that the act would cause damage. Therefore while examining this case also we would be required to consider the important question as to whether by adopting any standard of care the defendant Corporation could have foreseen the damage, which has ultimately caused to the victim and his heirs and legal representatives. We have stated that negligence occurs when there is the omission to do something which a man of ordinary prudence would reasonably do. It also occurs when something is done, which a prudent and reasonable man would not do. This proposition has been placed in almost simple language while defining negligence in Alderson B.'s classic words:
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do.
18. We have noticed that the link of causation in such cases shall have to be established. But again the question would be as to whether there was a reasonable foreseeability. This principle regarding the reasonable foreseeability has been made explicit by Charlesworth in abovesaid work at paras 317, 318 and 319 on pages 207, 208 and 209, by making a reference to three cases, namely, Re Polemis, The Wagon Mound (No. 1) and The Wagon Mound (No. 2). It is not necessary for us to go into details of the abovesaid case-law. It is made clear that the defendants would ordinarily not be made liable unless there was a reasonable foreseeability. According to us, this case-law would also go to show that the defendant would be liable if the plaintiffs were able to establish reasonable foreseeability. The absence of foreseeability would be a good defence on the part of the defendant in such cases. We lay stress on this principle of reasonable foreseeability because at this juncture we feel that the very question would crop up at a later juncture, with a view to ascertain as to whether the defendant Corporation can be said to be negligent in discharge of its duties cast upon it by the relevant statute.
19. Reverting back to the case on hand, we would like to recapitulate that the incident had taken place during a fine weather. The tree had suddenly fallen upon the victim killing him instantaneously or after some moments. The case of the plaintiffs is that tree had acquired some disease or decayance. The abovesaid case has been denied by the defendant Corporation and it has further contended that the tree had fallen down because of a heavy cyclone which had affected the entire region of Saurashtra. But it requires to be pertinently appreciated that this case taken up by the defendant Corporation in the pleadings was given a clear go-by. No evidence whatsoever was adduced by the defendant Corporation to prove or even rather to suggest that the city of Rajkot and other parts of the region of Saurashtra were affected by a cyclone on that particular day. No such suggestion was also made to the plaintiffs and their witnesses. The defendant witness also had not stated a word in respect of cyclone. It is, therefore, clear that the case which was pleaded in the pleadings was given a clear go-by and, therefore, the question which had remained for the consideration of the trial court was as to whether the tree had fallen down because of the negligence and carelessness on the part of the defendant Municipal Corporation. Having had a revised look at the respective case of the parties, we would like to revert to certain provisions under the Bombay Provincial Municipal Corporations Act, 1949 (now hereinafter referred to as 'the Act of 1949'). Section 66 of the Act of 1949 is in respect of certain matters which may be provided for by the Corporation at its discretion. Sub-clause (8) of Section 66 says that the Corporation may also provide with the planting and maintenance of trees on the roadsides and elsewhere. Section 202 of the Act of 1949 says very clearly that all the trees etc. shall vest in the Corporation and shall be under the control of the Commissioner of the Corporation. Section 2(63) of the Act of 1949 further says that the 'street' includes any highway, footway, subway, path or passage etc. Looking to these clear provisions Mr. Gehani has not contended that the tree was not under the care of the Municipal Corporation. The tree was on a pathway or a passage, which would be as a street within the meaning of Section 2(63) of the Act of 1949. The street vested in the Municipal Corporation by virtue of the provisions contained under Section 202 of the Act of 1949. The Corporation was required to provide from time to time for the planting and the maintenance of trees on roadsides and elsewhere, regard being had to the provisions contained under Section 66 of the Act of 1949.
20. Mr. Gehani has not urged before us that the term used in Section 66 of the Act of 1949 is 'may' and not 'must'. We think that Mr. Gehani has not done so possibly because the settled legal position was clear to him. We have got decisions saying very clearly that upon a proper construction the word 'may'' can be accepted or read as 'must' or 'shall'. This position is clear from a catena of decisions, but we would like to make a reference to some of these with a view to satisfy ourselves that in this case also the word 'may' means 'must'. The first case-law in this respect is the Supreme Court decision in State of Delhi v. I.K. Nagia, AIR 1979 SC 1977. It is made clear in this decision that the word 'may' means 'must', so far as the explanation to Section 17 of the provisions of Food Adulteration Act, 1954 is concerned. The same view has been taken by the Supreme Court in Rangaswami, the Textile Commissioner v. Sagar Textile Mills (P) Ltd., AIR 1977 SC 1516. In this decision not only it is said that the word 'may' is capable of meaning 'must' or 'shall' but it is said that when a discretion is conferred upon a public authority coupled with an obligation, the word 'may' should be construed to mean a command. This position therefore goes to strengthen and support what we want to say here at this juncture. We are dealing with certain duties etc. cast upon the defendant Municipal Corporation under a statute. The Municipal Corporation has been given certain authorities coupled with certain obligations and, therefore, in the context of this, it would be the best interpretation if we say that the word 'may' should be read and construed as 'must' or 'shall' signifying a command from the legislation. Practically the same view has been taken in respect of some other statutes in somewhat different facts and circumstances in two Supreme Court cases, namely, Superintendent and Remembrancer of Legal Affairs to Govt. of West Bengal v. Abani Maity, AIR 1979 SC 1029 and in Western India Match Co. Ltd. v. Workmen, AIR 1973 SC 2650.
21. In view of what has been stated above we feel no difficulty in coming to the conclusion that the word 'may' used in Section 66 of the Act of 1949 should be read and construed as 'shall'. If once this construction is accepted it should be believed that the planting and maintenance of trees on roadsides and elsewhere would be a matter which shall have to be provided from time to time either wholly or in part by the Municipal Corporation. Putting the same thing in other words, we would say that the maintenance of the trees on the roadsides and elsewhere within the jurisdiction of the Municipal Corporation of Rajkot was for the defendant and the trees, including the tree which had taken away life of the deceased, were required to be maintained by the defendant Municipal Corporation.
22. We have stated earlier that the case which was taken up by the defendant Corporation in the written statement at Exh. 5 was given a clear go-by during the course of the trial. This position has not been challenged by Mr. Gehani, the learned advocate who appears on behalf of the appellant Municipal Corporation. Anyhow, this position would crystallise when a reference is made to the sworn testimony of Manjulaben Nakum, the widow of the deceased, at Exh. 18. She has stated that there was no cyclone anywhere and there was 'no effect on normal weather'. Therefore, she has stated very clearly in her evidence before the trial court that there was nothing like a cyclone on that unfortunate day. We have noticed with pertinence that there is absolutely no cross-examination on this point by the learned advocate appearing on behalf of the defendant Corporation. At para 7 of her evidence, during the cross-examination Manjulaben has stated that the tree had fallen down at about 10.00 a.m. and that she does not know as to whether there was anybody with the deceased at the time when the unfortunate event had taken place. Thus, the reference to the oral testimony of Manjulaben goes to show very clearly that not a whisper was made before her that the tree had fallen down because of cyclone, which according to the defendant Corporation in the written statement was a widespread one. The plaintiffs had also examined one Chandrakant Limbar, a resident of Padadhari, who also used to work at Rajkot and to commute by the same train. He has stated that he and the deceased had alighted at Rajkot Railway Station from the train and, thereafter, they were walking on the road. According to him, Jayantilal was walking at a distance of about 20 to 25 ft. ahead of him and that he had died because of fall of a tree. Chandrakant has also stated in no uncertain terms that there was no cyclone or wind or rain on that particular day. The learned advocate representing the defendant Corporation had once again preferred not even to suggest to this witness Chandrakant that there was a cyclone as a result of which probably the tree had fallen down. The defendant Corpo- ration had examined one Rana Jadav, the garden supervisor, at Exh. 38. He has also not uttered a word in respect of the cyclone on that day. He has indeed stated that he works as a garden supervisor since last 22 years and that there is no record regarding the age of the tree which had fallen down. He has also stated that the defendant Corporation was not liable for sudden fall of the tree and that it has never received any complaint in respect of the condition of the tree. It therefore again becomes clear that the only witness which came to be examined by the defendant Corporation also does not say a word regarding the cyclone. In view of this position, it is abundantly clear that the case which was taken up by the defendant Corporation was given a clear go-by. Moreover, the defendant Corporation has not led any evidence in support of the steps being taken by the Municipal Corporation for the maintenance, upkeep, examination and felling of decayed trees. As noticed above, while referring to certain provisions of the Bombay Provincial Municipal Corporations Act, 1949, we have made it clear that the maintenance of the trees was one of the statutory duties cast upon the Municipal Corporation and that it was required to maintain the trees and upkeep them in a proper fashion.
23. In the very first line of our judgment we have stated that the tree had fallen down during a fine weather. Statute says that the defendant Corporation was required to maintain the trees etc. and it was one of its statutory liabilities. We have also noticed that, in case of absolute duties, it would not be necessary for the plaintiff to show how the failure to comply with the duty had arisen. We have also stated above with the assistance of Halsbury that there is no necessity to show that the defendant was guilty of any failure to take any reasonable care to comply with the duty. We have also made it explicitly clear that in variety of cases the statutory duties are accepted as absolute duties. We are dealing with a case against a Municipal Corporation, which is governed by the provisions of Bombay Provincial Municipal Corporations Act, 1949. The duty to maintain the trees is cast upon the Corporation and, therefore, the maintenance and upkeep of the trees was a statutory duty on the shoulders of the Corporation and, therefore, it being the absolute duty, the plaintiffs who are the widow and the minor children of the victim staying at a rural area at village Padadhari were not required to show as to how the failure to comply with the duty had arisen. In our view it was for the defendant Corporation to satisfy the trial court and us also with the support of cogent evidence mat they had taken the necessary care for the maintenance and the upkeep of the tree in question. This is especially so, because as noticed above, the defendant Corporation could not encourage itself to put up a case regarding cyclone during the course of the trial.
24. The contention raised by Mr. Gehani is that the plaintiffs were required to establish that there was a duty to take care and that there was a breach which would amount to negligence. We think that the evidence on record goes to show very clearly that the defendant Corporation had failed to bring any evidence to warrant a conclusion that it was maintaining the trees, including the tree in question, in a proper fashion. It is also the contention raised by Mr. Gehani that there should be a clear foreseeability and unless that is done, the defendant Corporation cannot be made liable. In support of his contention Mr. Gehani has pressed in service two decisions rendered by the English courts on this subject. Mr. Gehani has rightly urged that the abovesaid two decisions also say that the case-law in this field is scanty. So far as the English courts are concerned, the abovesaid are the only decisions on which Mr. Gehani wants to place reliance. It is also a statement made by Mr. Gehani that there is no case-law or a decision rendered by the Supreme Court of India or any other High Court of the country on this point. It is true that there is no case-law in respect of the claim made by the plaintiffs for the death or injury to be caused by a standing tree. It appears that such a question had once arisen in I.V. Subramanyam v. District Board, Narsapur, AIR 1941 Madras 733. But in this decision the Madras High Court had found that the case could have been decided on the question of limitation and, therefore, the Madras High Court had preferred to say thus:
It would be better if we do nor, express any opinion on this difficult question.
Anyhow, when the important aspect of the case has not been touched by the Madras High Court a detailed reference to the above-said case would not serve any useful purpose. But some guidance definitely can be had from the Supreme Court decision in Municipal Corporation of Delhi v. Subhagwanti 1966 ACJ 57 (SC). It was indeed a case of a collapse of Clock Tower owned by Municipal Corporation, which had collapsed and had killed three persons. While deciding the question in respect of the burden of proving negligence on the shoulders of the plaintiff the Supreme Court has preferred to say thus:
It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant's part.
25. Thus the Supreme Court has taken the view that though the normal rule is that it is for the plaintiff to prove the negligence and not for the defendant to disprove, but there is an exception to this rule and it would apply when the circumstances would go to show that the happening is such as does not occur in the ordinary course of things without negligence on the defendant's part. While coming to the abovesaid conclusion the Supreme Court had placed reliance upon Halsbury's Laws of England, 2nd Edition, Vol. 23, page 671. The relevant observations are as follows:
An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part.
26. Therefore, looking to what came to be said by Halsbury and again what came to be ruled by the Supreme Court of India, we would say without much difficulty on our part that, though the normal rule is that it would be for the plaintiff to prove the negligence, in some peculiar cases, when the happening is such that it does not occur in ordinary course of things without negligence on the defendant's part, there is an exception to the normal rule, i.e., the plaintiff cannot be called upon to prove where the negligence had occurred.
27. In view of the abovesaid decision rendered by the Supreme Court of India, it becomes clear that so far as the question regarding the onus of proof in such cases is concerned, the law of the land has been settled. Anyhow, we would not like to conclude without making a reference to two English decisions on which Mr. Gehani has placed reliance. In our view, though the abovesaid two decisions appear to help or assist Mr. Gehani in his submission, in fact and in reality they express the same proposition which we wanted to propound herein. We shall, therefore, make a detailed reference to the facts and evidence in the abovesaid two cases. The first decision on which Mr. Gehani has placed reliance is the decision in Cunliffe v. Bankes, (1945) 1 All ER 459. It was a case wherein a tree growing on the defendant's estate had fallen down owing to its diseased condition, across a highway running beside the estate and the plaintiff's husband who was riding a motor cycle along this highway without any negligence on his part had collided with the tree and died because of the injuries. The plaintiff's case was based both on negligence and nuisance. It was found out as a fact that the defendant had taken all reasonable steps to ascertain the condition of the tree and that he could not have realised that it was likely to fall.
28. The editorial note goes to suggest that there is little authority on the question of liability for accident caused by the trees falling on the highway from the adjoining property. Anyhow there is some mention of some other case also. But again going to this case, it becomes clear that the plaintiff Cunliffe, the widow of the deceased who had claimed the damages, both under negligence and nuisance had firstly examined one Ingham, the agent of the Huntroyde Estate in East Lancashire, who was also a fellow of the Chartered Surveyors Institute and a member of the Land Agents Society. He had told the court that the tree had died in his opinion as a result of an attack by 'honey fungus' and it was in an advanced state of decay. Therefore Ingham the agent, who can be said to be an expert on the subject, has stated that the tree had died as a result of an attack by a disease known as 'honey fungus'. He had added by saying that the tree has been in a decayed state for some years and 'he would say about five years'. He had also stated that the evidence of decay has been visible for anything upto five years. The learned Judge had said it very clearly that he could gather from Ingham's evidence that in his view the duty of an agent of the estate was that he should make such an inspection each year when the trees were in foliage, and he had also stated that as an agent of the defendant he was performing his duty in that respect. Therefore in this case when there was a clear evidence coming from the mouth of Ingham that the inspection of the trees was to be made each year during the foliage, it can be said that the agent of the defendant was performing his duty completely in that respect.
29. The plaintiff had also called a police constable who had seen the tree just after it had fallen. But the learned Judge has not placed much reliance on this witness. So far as the evidence on the part of the defendant is concerned, one Bradley was examined. At the relevant time he was in charge of the estate of the defendant Bankes since last about two years and he had stated that each year in the summer he made an inspection of the trees of the estate, and if he saw any trees which were showing signs of decay he would mark them. He had also said that the proper time for the examination would be when the trees are in foliage. This witness has also stated that in that part where there is a belt of trees he did casual inspection more frequently than the yearly inspection. The witness has not assigned any reason for this frequent inspection, but the Judge has concluded that as the trees were fairly close to the road, possibly the agent had thought that there was some additional responsibility and, therefore, he wanted to have frequent examination.
30. The abovesaid evidence therefore showed very clearly that the agent of the defendant used to examine the trees during foliage every season and that diseased and decayed trees were marked out and later on they were got felled. This witness had also stated that if a tree were to be found to be dead, he would have it felled in a week or so.
31. Therefore the abovesaid case-law on which Mr. Gehani had placed reliance deals with a case in which the necessary care was being taken by the agent of the defendant by examining of the trees in season and also by frequently examining those trees which were on the roadside. In view of this position the view has been taken by the court that the tree had died because of 'honey fungus' and it could have affected the tree in a time after the last seasonal examination.
32. The second case-law which Mr. Gehani has pressed in service is the King's Bench decision in Noble v. Harrison, (1926) 2 KB 332. In this decision a branch of a tree growing on the defendant's land overhung a highway at a height of 30 ft. above the ground and in a fine weather the branch suddenly broke and fell upon the plaintiff's vehicle and damaged it. In an action by the plaintiff, claiming the damages in respect of the damage done to his vehicle, the county court Judge had found that neither the defendant nor his servants knew that the branch was dangerous and that the fracture was due to "a latent defect not discoverable by any reasonably careful inspection.
33. The King's Bench Judge has dismissed the appeal, confirming the judgment rendered by the county court, on the ground that fracture of the branch was due to a latent defect not discoverable by any reasonably careful inspection. Therefore in both the abovesaid decisions, on which Mr. Gehani has placed reliance, the evidence was brought forth by the defendant showing it very clearly that the respective defendant was taking all the necessary care of the tree and that the trees were being subjected to seasonal and frequent check-up as the necessity may be and that there was nothing which could have been seen by the examination that the tree or branch, as the case may be, is likely to fall down.
34. Here in the case on hand the defendant Corporation had satisfied by raising a plea of vis major or an act of God and later on abandoning the same during the course of trial. It was for the Municipal Corporation to show that it was taking the necessary care for the maintenance and upkeep of the tree and that the examination or inspection had never shown any defect or disease in the tree, which would go to fall suddenly during a fine weather. Needless it is to repeat that the Corporation has clearly failed to do so.
The conclusion, therefore, would be as under:
(1) That the tree in question was standing on a subway.
(2) That the subway vests in the defendant Municipal Corporation.
(3) That the maintenance of the trees is the statutory obligation of the defendant Corporation.
(4) That the duty to maintain cast upon the Corporation was an absolute duty.
(5) That the case of the plaintiffs is that the tree was decayed and had fallen down due to the decayance with which it was taken.
(6) That the case of the defendant Corporation in defence in the pleadings was that the tree had fallen down due to a cyclone which was widespread within the western part of the State, namely, Saurashtra.
(7) That the said case of defence in pleadings has been given a clear go-by during the trial.
(8) That thus it is established that the tree had fallen down during a fine weather.
(9) That the tree was in maintenance and upkeep of the defendant Corporation and the happening is such as does not occur in ordinary course of things.
(10) That the burden was on the defendant Corporation to show as to how the act complained of could have reasonably happened without negligence on its part.
(11) That the two English case-law relied upon by the defendant Corporation would not be able to render any assistance to it because the said two decisions based upon facts show that either:
(a) defendant had taken care to make it sure that the trees are in good health by subjecting them to seasonal and casual frequent examination and had taken care to foresee the risk; or
(b) the fracture of the branch of the tree was unforeseeable.
35. Looking to the abovesaid proposition and further looking to the facts that in case of the absolute duty the onus of proof on the shoulders of the plaintiffs would be limited in scope, we feel no hesitation in coming to the conclusion that the unfortunate incident was the result of carelessness and negligence on the part of the defendant Municipal Corporation. Therefore, the judgment and decree under appeal require to be confirmed and upheld, though slightly on a different footing. The appeal therefore requires to be dismissed with costs.
36. Mr. Gehani has tried to urge that the view which we are going to take would add extra liabilities on the shoulders of not only the defendant Corporation but other Corporations also in the State. We agree with him. So far as this decision rendered by us holds the field, the same would be the consequence as has been apprehended by Mr. Gehani. But we incorporate, constitute and run the Corporations for the welfare of the citizens, and by passage of time new liabilities shall have to be shouldered by the Corporations. We also feel that the necessary manpower and financial resources shall also have to be set apart for discharging such liabilities in a better manner. But we feel that, that shall have to be done because, as stated above, we are emerging towards a welfare State.
37. Thus on overall consideration we have satisfied ourselves that the appeal requires to be dismissed with costs and we do hereby accordingly dismiss the same with costs, confirming the judgment and decree under challenge.