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Pauline D'souza Vs. Cassamalli Jairajbhoy (03.02.1933 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberO.C.J. suit No. 2743 of 1926
Judge
Reported inAIR1933Bom465; (1933)35BOMLR1007; 147Ind.Cas.354
AppellantPauline D'souza
RespondentCassamalli Jairajbhoy
Excerpt:
.....regard to the facts and circumstances relating to the defendant's negligence. there must be some reasonable evidence of negligence. the plaintiff may rely on the undisputed facts and ask the court to draw the presumption of negligence in his favour, or he may in addition lead such evidence as ha likes relating to the defendant's negligence, but ho should not as a rule be allowed to lead evidence in rebuttal after the defendant has led his evidence and closed his case. that does not in any way lessen the burden that may be held to lie on the defendant. if there is some reasonable evidence of negligence, and there are also facts supporting the presumption of negligence, it is for the defendant to prove facts inconsistent with the negligence or facts which rebut the presumption.;an owner..........hung by a chain falling upon him. the rule was thus stated by erle c.j. at p. 601:-'there must be reasonable evidence of negligence.'but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.'it was held in byrne v. boadle (1863) 2 h. & c. 722 that there was prima facie evidence of negligence where a person going along a high way was injured by the fall of a barrel of flour from out of the window of the defendant's warehouse, and that such evidence was sufficient to cast upon the defendant the onus of proving.....
Judgment:

B.J. Wadia, J.

1. The plaintiffs have filed this suit to recover from the defendant the sum of Rs. 4,499-8-0 for the loss and damage caused by the destruction of a Taxi Ford Car No. Y 899 on July 21, 1926. The first plaintiff says in the plaint that she was the owner of the car, and that it was insured with the second plaintiff company. The defendant is the owner of a building called 'Khalakdina Terrace' situate at Gowalia Tank Road, Bombay, and on the day in question a portion of the terrace of the said building consisting of an ornamental structure made of Porebunder stone and resting over the parapet wall on the southern side of the building gave way and fell on the said car which was stationary at the stand on Tejpal Road to the south of the building. The car was completely destroyed, and the driver received serious injuries to which he ultimately succumbed. The plaintiffs contend that the portion of the terrace fell down owing to the defendant's negligence, and that he is liable in damages. The defendant denies negligence, and says that the fall was due to an inevitable accident, and that he is not liable to pay any damages to the plaintiffs or either of them.

2. The principal issue in the case is one of negligence. Generally speaking, it is for the plaintiff in an action for negligence to establish (a) that the defendant was under a duty to take care towards the complaining party to avoid the damage complained of, (6) that there was a breach of that duty on the part of the defendant, and (c) that the breach was the direct and the proximate cause of the damage complained of, The onus of proving negligence is on the plaintiff, and the mere proof of the happening of an accident is not as a general rule sufficient evidence to support the action. An exception to the general rule, however, occurs whenever the facts established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence. Whenever there is a duty cast upon the defendant to exercise care, and the circumstances under which the injury happened are such that with the exercise of the requisite care no risk would have ensued in the ordinary course of events, the burden is shifted to the defendant to disprove his liability. Every accident does not warrant an inference of negligence, but there may be accidents of such a nature that negligence is presumed from the mere fact of their having happened. The presumption depends upon the nature of the accident. It is usual to refer to such cases under the maxim, res ipsa loquitur. A leading illustration of such cases is Scott v. London and St. Katherine Docks Co., (1865) 3 H. & C. 596 in which the plaintiff, a customs officer, went to the defendants' docks on business, and in passing from one door-way to another was injured by six bags of sugar which were hung by a chain falling upon him. The rule was thus stated by Erle C.J. at p. 601:-

'There must be reasonable evidence of negligence.

'But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.'

It was held in Byrne v. Boadle (1863) 2 H. & C. 722 that there was prima facie evidence of negligence where a person going along a high way was injured by the fall of a barrel of flour from out of the window of the defendant's warehouse, and that such evidence was sufficient to cast upon the defendant the onus of proving that the accident was not caused by his negligence. In Kearney v. London, Brighton &C.;, Railway Co. (1870) L.R. 5 Q.B. 411 the plaintiff was injured by the fall of a brick from the defendant's bridge. Cockburn C.J. laid down the rule at p. 415 as follows:-

Where it is the duty of persons to do their bast to keep premises, or a structure of whatever kind it may be, in a proper condition, and we find it out of condition, and an accident happens therefrom, it is incumbent upon them to show that they Used that reasonable care and diligence which they were bound to use, and the absence of which it seems to me may fairly be presumed from the fact that there was the defect from which the accident has arisen. Therefore, there was some evidence to go to the jury, however slight it may have been, of this accident having arisen from the negligence of the defendants; and it was incumbent on the defendants to give evidence rebutting the inference arising from the undisputed facts;...

This case was confirmed in appeal (1871) L.R. 6 Q.B. 759 All these cases have been discussed by Pollock in his Law of Torts, 13th. Edn., and at p. 539 he states the rule as follows:-

Where damage is done by the falling of objects into a highway from a building, the modern rule is that the accident, in the absence of explanation, is of itself evidence of negligence, In other words, the burden of proof is on the occupier of the building. If he cannot show that the accident was due to some causa consistent with the due repair and careful management of the structure, he is liable.

It follows, therefore, that if the cause of the injury is explicable, the explanation must be given by the defendant. An application was made to me in this case that liberty should be reserved to the plaintiffs to call their evidence in rebuttal after the defendant had led his evidence to disprove his liability, but I was not referred to any case in which evidence in rebuttal was allowed to be led. It is for the plaintiff to lead whatever evidence he wants to with regard to the facts and circumstances relating to the defendant's negligence. There must be some reasonable evidence of negligence. The plaintiff may rely on the undisputed facts and ask the Court to draw the presumption of negligence in his favour, or he may in addition lead such evidence as he likes relating to the defendant's negligence, but he should not as a rule be allowed to lead evidence in rebuttal after the defendant has led his evidence and closed his case. That, however, will not in, any way lessen the burden that may be held to lie upon the defendant. If there is some reasonable evidence of negligence, and there are also facts supporting the presumption of negligence, it is for the defendant to prove facts inconsistent with the negligence or facts which rebut the presumption.

3. The next question is, whether the first plaintiff was at all material times the owner of the car in suit. The first plaintiff entered into a hire-purchase agreement in respect of the car with the Otto Supply Company, Ltd., on October 28, 1925, and under the agreement she agreed to pay to the company Rs. 686-8-0 before delivery of possession of the car, and the balance by twelve monthly instalments of Rs. 125 each. She, however, paid in all, at first Rs. 1,000-8-0 which included the sum of Rs. 686-8-0, the excess amount being paid for insurance premium and other charges, and passed twelve hundis of Rs. 125 each in favour of the company, the first being payable one month after date, the second payable two months after date, and so on. She paid in all eight instalments before the date of the accident, and got back the eight hundis which have been put in. After the accident the Otto Supply Company recovered on October 9, 1926, the sum of Rs. 1,537-8-0 from the second plaintiff company with which the car had been insured, and deducting Rs. 500 in respect of the remaining four hundis, the Otto Supply Company paid the balance to the first plaintiff on or before October 18, 1926. The suit was filed on November 25, 1926. Under the hire-purchase agreement the first plaintiff was entitled to terminate the agreement before the car became her property, and it could become her property only after payment of all the instalments per month or on payment of all of them or those that remained payable in a lump. Until then the first plaintiff acknowledged the Otto Supply Company, Ltd., as the owners of the car. She had admittedly not paid all the instalments before the date of the accident, viz., July 21, 1926, so that at that date the car was not her property, and in fact the Otto Supply Co. carried on correspondence with her as owners. On the day of the accident the car was smashed and was a total wreck, and was disposed of on October 6, 1926, by the Otto Supply Co. on behalf of the second plaintiff company for a sum of Rs. 50, which sum counsel for the defendant admitted was the best price that could be obtained for the salvage. On October 18, 1926, the first plaintiff's solicitors on her behalf purported to assign all rights in, and the ownership of, the car to the second plaintiff company. The first plaintiff was, therefore, not, strictly speaking, the owner at the date of the accident, and though she paid off the remaining instalments by October 18, 1926, the car had been sold off and did not belong to her at the date of the suit. The first plaintiff was, therefore, not the owner, strictly speaking, at the date of the suit either. The cause of action, however, accrued to her on the date of the accident, and at that date she was in the position of a bailee. As such she is entitled to maintain an action against a third party who does not claim under the bailor according to Section 180 of the Indian Contract Act. As a bailee she is not the agent of the bailor, and she can sue and claim the full damages for loss due to the alleged negligence of the defendant without prejudice to the rights of the bailor to adjust with her the amount of damages when recovered: see Halsbury, Vol. 1, 2nd Edn., pp. 766, 777; Ramnath Gagoi v. Pitambar Deb Goswami I.L.R. (1915) Cal. 733 Counsel for the defendant argued that it was not pleaded in the plaint that the first plaintiff was a bailee, but her legal position is a point of law. Even if she was merely the hirer, she had engaged a chauffeur and purchased accessories to ply the car for hire in Bombay, and under the circumstances, as was pointed out in Croft v. Alison (1821) 4 B. & Ald. 590 she could be properly described in the plaint as the owner of the car. As bailee she was in possession. Possession is a title against the wrong-doer, and the presumption of law is that the person who has the possession has also the property. I, therefore, hold that the first plaintiff could maintain this suit as 'the owner' of the car.

4. I will now deal with the important question in the suit, viz., whether the fall of the ornamental structure on the terrace of the defendant's building was due to the defendant's negligence. It is a rule of the English common law that an owner or occupier of property must keep it in a reasonably safe condition and repair as regards the persons being or passing near the property as of right, and he is liable for negligence to person or property or both if the injury is caused by want of such condition and repair. He is liable if the injurious agency is entirely under his control, and especially if that agency is inanimate. I have already held that it was for the plaintiffs to lead all their evidence first, if they relied on any, relating to the defendant's negligence. Plaintiffs led all their evidence accordingly, and apart from the facts they sought to establish, there is, in my opinion, a presumption of negligence against the defendant according to the maxim, res ipsa, loquitur. It has been said that 'buildings properly constructed do not fall without adequate cause,' and it is, therefore, for the defendant to rebut the presumption and give a reasonable explanation for the collapse which caused the damage. In the course of the correspondence that passed between the first plaintiff and the defendant after the suit the first plaintiff was asked to give particulars of the defend ant's negligence, and by her attorney's letter dated February 9, 1927, she gave some of the particulars of negligence on which she wished to rely, viz., (a) neglect to supervise to keep the ornamental structure in proper condition, (6) neglect to keep it safe for those lawfully using the road, (c) absence of dowels (iron pieces) by which two stones can be held together, and (d) weakness of the joints between the stones and also want of proper cementing of the stones. The first plaintiff promised to send further particulars, but failed to do so. An issue was raised, whether the fall of the portion of the terrace was due to the defendant's negligence particulars whereof are given in the said letter, and counsel for the defendant argued that the plaintiffs must be confined to the said particulars. The plaintiffs, however, raised an additional issue, whether the fall of the portion of the terrace was due to the defendant's negligence, meaning the defendant's negligence generally. It was contended that the evidence led by the plaintiffs went beyond those particulars, but, in my opinion, it only contains details which can be ultimately referred to the particulars given in the letter. According to the doctrine of res ipsa loquitur it is for the defendant to show some cause for the collapse consistent with reasonable care on his part, and even his evidence has travelled beyond the allegation contained in the written statement. Moreover, all the evidence is now before the Court, and it has to be considered in order to ascertain the liability of the defendant.

5. There were in all nine such ornamental structures on the terrace, of which four were on the south side, and the structure that fell was the easternmost on the south side. The length of the structure that fell was about twelve to thirteen feet. Its total height was ten feet six inches from the terrace level. Its thickness or width at the top was about three feet. Its thinnest part was only ten inches in width. It rested on a parapet wall which was three feet high and about ten inches thick. Its shape appears from the figure enclosed in red pencil in the south side elevation plan, Ex. K., and also from a rough drawing put in by the defendant's engineer which is Ex. 12. It was not exactly in the form of an arch, but it had an arch effect, as the two uppermost cornices which are also called winged consoles or flying consoles were worked up in the form of an arch. The central stone of the arch or the key of the arch is called the cartouche. The structure lay between two pillars going up from the first floor level. Two pilasters or square columns at each end were built in the parapet wall, and the outside face of the pilasters was carved out into S shape projections called consoles. These pilasters supported the arch. Each stone directly over the pilaster is the springing of the arch. The stones between the springing and the cartouche are called boussoirs. The stones forming the arch radiated towards the centre. The springing of the arch was supported by an abutment on each aide. Each pilaster was sixteen inches wide. The thinnest part of each console is six inches in width, and its thickest part from the back of the parapet wall up to the front is about twenty and a half inches, On each side of the pilasters is a corbel or bracket resting on the parapet wall.

6. [After discussing the oral evidence adduced in the case his Lordship proceeded.] I have now dealt with all the evidence which was led in order to determine the real cause of the collapse. All the causes mentioned were suggested as probable causes, but the evidence shows that the cause deposed to by Mr. Batley is the only probable cause and nearest the truth, viz., the breaking of the stones in one of the two consoles and the pilasters due to an internal flaw which led to the gradual disintegration of the inside material of the stone by being soaked in rain water. This inward disintegration could not be easily detected, especially if the stones were oilpainted, as in fact they were, In the case of Kearney v. London, Brighton, &c.;, Railway Co. (1870) L.R. 5 Q.B. 411 referred to before, in which the brick fell from a railway bridge built only about three years before the date of the accident, the plea of res ipsa loquitur put forward by the plaintiff was not met by any evidence on the side of the defendants at all, and one of the Judges who disagreed with the majority went so far as to say that it was for the plaintiff to have proved facts to show that any one might have seen on inspection that the brick was loosened and about to fall. In Tarry v. Ashton (1876) 1 Q.B.D. 314 the overhanging lamp weighed forty or fifty pounds and projected several feet across the pavement, and three or four months before it fell defendant was made aware that it was getting out of repair. In Pritchard v. Peto [1917] 2 K.B. 173 a piece of projecting cornice fell on the plaintiff who went to the defendant's house to collect money due to him, and it was held that the defendant was not liable, as it was not shown that she was aware or ought to have been aware of the defect. That was, however, the case of a duty of the owner or occupier of a house towards an invitee, and that duty has been defined by Willes J. in Indermaur v. Dames (1866) L.R. 1 C.P. 274 as follows, viz., to use reasonable care 'to prevent damage from unusual danger.' I have already stated that it was for the defendant to show that the happening of the accident was consistent with reasonable care on his part. In Fawkes v. Poulson (1892) 8 T.L.R. 725 the plaintiff was injured by the fall of one bale out of several which were let down by a crane, and Lindley L.J. held that he did not mean to say that it might not be possible to prevent the bales from slipping' if the lowering was conducted with all the care which would be applied to a scientific experiment, but the question was whether, looking at the matter from a business point of view, the slipping of the bale could have been prevented with any amount of reasonable care, whatever might have been the cause of the slipping..'. It was held in that case that the defendants were not liable. In my opinion, the defendant in this suit has answered the prima facie case made out Against him, and discharged the burden that lay upon him to disprove his liability. It was really unfortunate that the accident led not merely to loss of property but to the loss of human life; but it was an inevitable accident which could not have been prevented by the exercise of reasonable care, caution and skill.

7. In view of my finding on the issue of negligence, it is not necessary to go into the question of damages. The plaintiffs have annexed to the plaint a statement of the particulars of the damage caused by the collapse, but its correctness is disputed by the defendant.

8. The suit must, therefore, be dismissed.

9. I have now heard counsel on the question of costs. The main issue in the suit was one of negligence, and substantially the suit has been decided in favour of the defendant. With regard to the first issue counsel for the defendant argued in the beginning that the suit was not maintainable as the first plaintiff was not the owner of the car. It was at a later stage argued by counsel for the plaintiffs that even if the first plaintiff was not the owner, she was in the position of a bailee, and could be described as 'owner' and thus maintain the action That position, however, is not clearly indicated in the plaint, nor was it set up from the commencement of the hearing. Taking everything into consideration, the suit, in my opinion, must be dismissed with costs.


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