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The Corporation of Kozhikode who is the defendant in O.S.No.622/1991 on the file of the II Additional Sub Court, Kozhikode is the appellant. Appeal is filed against a decree and judgment passed by the court below by which a decree was granted in favour of respondent allowing her to recover an amount of Rs.5,500/- as damages from the date of suit till the date of realisation.

2. The respondent filed the suit as an indigent person claiming damages against the appellant on the following averments. The respondent was residing in building belonging to one Apputty situated at Division No.45 of Panniyankara amsom and desom. She was studying in the first shift of 5th standard in Thiruvannur Government U.P.School. On 13.7.1990, at about 1.15 p.m. she was returning to her home from the School. When she reached near the steps leading to her house from the lane situated on the eastern side of her house a stray dog came barking and bit her. Thereafter it ran away. Hearing the hue and cry of the respondent the neighbours rushed to the spot and took her to Medical College Hospital at Kozhikode. Doctor advised the respondent to take antirabies injunction. At that time father of the first respondent was not in station. On account of dog bite the respondent suffered intense pain and she fell ill. She was unable to attend the classes. When she started attending the school her friends  neglected her which caused mental tension and fear in her mind. Her father had spent more than Rs.10,000/- for treatment and transportation to hospital for undergoing treatment. A statutory duty is cast upon the appellant to dispose of the stray dogs without owners. The appellant failed to discharge that duty and respondent sustained dog bite only because of the failure on the part of the appellant to discharge the statutory functions. So appellant is liable to pay compensation. There was increasing attacks by dogs having rabies. Malayala Manorama daily published news items every day to attract the attention of the appellant. But the appellant ignored those news items and hence the incident occurred. First antirabies injunction was administered on 14.7.1990 and the last injunction on 14.10.1990. Respondent was directed to take rest for 90 days after last vaccination of antirabies. Respondent who is the daughter of a labourer found it difficult to raise the necessary funds for undergoing treatment. The medicine administered to the respondent was very costly and her father had spent a lot of amount for securing the medicines and hence the appellant is liable to pay damages to the respondent. She claimed Rs.10,000/- as treatment expenses and Rs.15,000/- for the mental tension and strain she suffered on account of the neglect from her friends. She issued notice claiming a total compensation of Rs.25,000/-. The appellant issued a reply notice raising false and untenable contentions. Hence the suit for compensation.

3. Appellant filed a written statement raising the following contentions.  Suit was not maintainable. Suit was filed without any bonafides. The respondent was not residing in the house of Apputty. No incident as described in the plaint had taken place and there was no stray dogs wandering in that area. No complaint was received from anybody alleging that there was any stray dog wandering at that area or any person of that area had sustained dog bite. The respondent might have bitten by a dog at a place outside the Corporation limits. There was a special machinery to eliminate the stray dogs and that Office was working very efficiently. The possibility of respondent sustaining bite of a dog which was being termed as a domestic animal in a neighbouring house cannot be ruled out. The quantum of compensation claimed was denied.

6. Learned counsel appearing for the respondent has argued that a mandatory duty is cast upon the appellant to catch and kill all stray dogs. It is argued that there is total failure on the part of the Corporation to discharge the mandatory duty and that any person who sustains the dog bite inside the Corporation area is entitled to get damages.

7. The main point arising for consideration is whether the appellant is liable to pay compensation. In the plaint it was averred that the respondent was walking through a private lane leading to her house. It was further averred that  when she reached near the steps leading to her house a stray dog came there and bit her. Thereafter it ran away. It was further averred that on hearing the hue and cry the neighbours rushed to the spot and took the respondent to the Medical College Hospital, Kozhikode. In paragraph 4 of the plaint it was averred that the attack on people by wandering dogs suffering from rabies had become a frequent incident and number of news items appeared in Malayalam Dailies like Malayala Manorama.

13. The materials on record show that it was an unfortunate and isolated incident by which a 10 year old girl sustained dog bite caused by a stray dog which suddenly appeared from nowhere and thereafter vanished. It cannot be held that this particular incident took place on account of the failure on the part of the officers of the Corporation. Even if the Corporation takes all possible precautions to prevent the stray dogs in the Corporation area still animals from the neighbouring areas may stray in to Corporation area and cause such incident. Though the incident was very unfortunate, it is not possible to hold that there was any failure to discharge statutory duty cast upon the Corporation. Learned Subordinate Judge did not consider any of these aspects. Only on account of the  fact that such an incident took place within the limits of the Corporation, he directed the appellant to pay compensation. That decree is unsustainable and liable to be set aside.