1. This is an appeal by the defendants from the decree and judgment dated 25-8-1951 of the Additional District Judge, Jabalpur, in Civil Suit No. 2-B of 1950. The appellants are owners of a house in the Lord Ganj locality of Jabalpur, the southern wall of which adjoined a highway. For several years past Thelas (cycle-wheel stalls) used to be kept on this highway near the said wall. On 25-8-1947 at 5 to 5-30 p. m., when it was raining the southern wall of the first storey of the appellants' house suddenly collapsed crushing the Thela of respondent 1 and immediately killing his son, Vijay Kumar, aged 6 1/2 years, and his daughter Suraj Bai aged 10 years, whom the respondent 1 had entrusted the Thela containing hosiery goods while going home to take his meals. These children used to help their father in his business.
The police prosecuted appellants Kaloolal and Chhuttanlal under Section 304A of the Indian Penal Code, but they were acquitted. The respondent Hemchand and his wife Mst. Raorant, then brought this suit in forma pauperis claiming Rs. 15,950 as damages. Mst. Raorani died on 30-9-1948 during the pendency of the suit and her children Sureshchand (aged 2 years) and Haspatali (aged 1 year) were brought on record as plaintiffs.
The appellants resisted the suit on the ground that the said house was not in a bad or dangerous condition so as to constitute danger to life; that the said wall or any portion of the house was not In a dilapidated condition and that the wall did not fall down for want of due care, attention and repairs by the defendants. It was contended that the house was in good condition and kept in proper repairs; that though the defendants were the owners of the house in question, it was occupied by tenants and the situation and circumstances were such that no reasonable person could say that the unfortunate deaths of persons were caused by any wrongful act, neglect or default of defendants. It was added that it ought to be taken to be an act of God.
2. The trial Court came to the conclusion that the said wall was in a dilapidated and dangerous condition, that there were three cracks in it that the appellants never cared for getting it repaired and that the said wall collapsed on 25-8-1947 due to the gross carelessness and negligence of the defendants. Holding that the appellants were responsible to the persons going on or standing on the highway, the Court passed a decree for Rs. 11,400 as damages.
3. Shri Bobde, learned counsel for the appellants, challenges before us the findings of facts regarding cracks in the wall and regarding the appellants' knowledge about them. He urged that the house in question being occupied by the tenants, the owners could not be held liable for the loss occasioned by the fall of the wall. He also raised several points regarding burden of proof, Vis Major, volenti non fit injuria and contributory negligence.' He also attacked the basis and the quantum of damages awarded.
4. It is well settled that buildings adjoining the highway must be maintained in such a condition as not to be dangerous to users of the highway. A nuisance is created if there is negligence in maintaining buildings adjoining the highway so that they get into a dangerous state of disrepair. The occupier (and sometimes the owner) of the premises is liable for creating the nuisance and for continuing the nuisance after knowledge or presumed knowledge of its existence. (Sedleigh Denfield v. St. Joseph's Society for Foreign Missions, 1940 AC S80 (A).
The mere fact that their disrepair causes damage to a person in the highway, as by a slate coming off a roof or the collapse of a wall, is itself evidence of negligence throwing the burden of disproving it on the occupier or the owner, (See Charlesworth on Negligence, page 162, para 274, 3rd Edn.)
5. The trial Court thought that the doctrine res ipsa loquitur applies in the instant case, and I agree with him on this point. The falling down of the wall (13 X 15 feet) from the first storey on the highway, in itself, affords prima facie evidence that the wall was in a bad condition and that it was the result of want of due care on the part of the appellants. It is observed at page 399, para 647 of Clerk and Lindsell on Torts (11th Edn.) :--
'The expression res ipsa loquitur does not state any principle of law. It is only a convenient label to apply to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the Part of the defendant. He merely proves a result, not any particular act or omission producing the result. If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability.'
6. The burden of proof was on the defendants to establish that they were not negligent in getting the wall repaired. In my opinion, they have failed to establish any such thing. Jai Ram (D.W. 3), who had been working as Mukhtiar Am of the defendants-appellants for the last twenty years or so and had been looking after this house, admitted that the house in question is nearly 50 years old, that it was purchased from one Narbada Bai in 1919, but till its collapse in 1947, no money had been spent on repairs to this wall.
He only stated that the wall was being whitewashed every year which, however, does not mean that it was repaired annually. Even the fact that the wall was being white-washed was denied by Tanu (D.W. 4), who had been a mason for the houses of the appellants. According to him, the wall was neither repaired nor white-washed from outside. It is thus obvious that no care was ever taken by the appellants to repair the wall and the burden that was on the appellants could not be discharged.
On the other hand, the evidence of the plaintiff Hemchand (P.W. 1) that the wall in question had three verticle cracks was fully supported by Hemchand (P.W. 2), Santulal (P. W 3), Kapoor Chand (P.W. 4), Abdul Gafoor (P. W. 5) and Chaitram (P.W. 6). But the exact dimensions of the cracks have not been given by any witness, nor has their nature been disclosed.
7. It was, then, urged that the cause of the falling down of the wall was not its inherent condition out the excessive rains on and prior to the date when it collapsed. The occurrence took place during the rainy season. The daily rainfall from 22-8-1947: to 26-8-1947 was as follows :--
DateRainfall in inches. 220.0123 0.10 24 2.66 25 2.26 26 3.25
During the rainy, season, a rainfall of 2.26 or 3 inches in one day cannot be said to be a heavy one so as to constitute Vis Major or act of God. In Corporation of Greenock v. Caledonion Railway 1917 AC 556 at p. 577 (B) even a rainfall of extraordinary violence was not held by the House of Lords to constitute an act of God. At p. 572 of this ruling the dictum of Lord Westbury in Tennent v. Earl of Glasgow 1864-2 Macph (HL) 22 (C), has been quoted which defined the nature of damnum fatale (which is equivalent to act of God) as
'circumstances which no human foresight can provide against, and of which human prudence is not bound to recognise the possibility, and which when they do occur, therefore, are calamities which do not involve the obligation of paying for the consequences that may result from them.' It is also observed in this case that Lord Cockburn expressed the same idea in the following picturesque phrase in Samuel v. Edinburgh and Glasgow Co. Rly. 1850-13 Dunl 312 (D) at p 314 : --
I think he is bound to provide against the ordinary operation of nature, but not against her miracles.' The rule of law as deduced from the English cases has been succinctly stated at page 259 in Charles-worth on Negligence (3rd Edn.) in the following words :--
'To be an act of God an occurrence must be,
(a) due to natural causes exclusively,
(b) of an extraordinary nature, and
(c) such that it could not be anticipated or provided against.'
Applying the rule to the facts of the instant case T find that the rainfall of 25-8-1947 did not constitute an act of God and ought to have been anticipated and provided against.
8. The arguments advanced regarding contributory negligence and volenti non fit injuria may be disposed of summarily, as these points were not taken in the written statement and no issue had been framed thereon. So far as the deceased were concerned, they had no perception of any danger from the wall, and there is nothing on record to show that they committed any mischief which could contribute to the collapse of the wall. So far as the question of negligence is concerned, it is the positive duty of the owner of a building adjoining a highway not to permit the existence of a danger therein &s; the public has an absolute right of access to' the highway. In such a case, notice to the plaintiff, however ample, and however clearly it may bring home the extent of the danger to his mind, does not get rid of the duty towards him so as to raise a defence on the ground of volenti non fit injuria (Clerk and Lindsell, on Torts, page 61, para 92 11th Edn.).
9. Shri Bobde, then, urged that the appellants do not reside in the house in question which is let out to tenants, and if a stranger on the high-way is injured by the fall of a wall the liability should fail on the occupiers. The learned counsel placed reliance on para 849, page 598, Vol. 23, Halsbury's Laws of England (Hallsham Edn.) for this proposition, which no doubt supports him so far as the duty of the occupiers in the sole charge of a building is concerned. But in the same paragraph it is also added that an owner may become liable to the stranger : (1) where he has undertaken to do the repairs at the premises in question, and for this purpose has a partial control of those premises, and an injury is caused to a passer-by; (2) where, though he has not undertaken to repair, he has reserved to himself the right to enter and do repairs and has failed to do them after notice and an injury is caused to a person on the highway. In the instant case, from the evidence of the defendants' witnesses Jai Ram (D. W. 3) and the mason Tanu (D.W. 4) it seems that the repairs to the house in question were to be done only by the owners i.e., the appellants, and the tenants were not at all concerned with the repairs. In this view, the duty of keeping the house in proper repairs was exclusively that of the appellants, and accordingly no question of contributory negligence arises in the case.
10. In Wilchick v. Marks; Silverstone in re, (1934) 2 KB 56 (E), it was held by Goddard J. (as he then was) that where a third party has been injured by the lack of repair of a house, and the landlords had not covenanted to do the repairs but had reserved a right to enter and do the repairs if they think fit, that was sufficient to give the third party who had been damaged a direct right of action against the landlord, and he was not limited to a right against the occupier. In that case landlords were held liable for injury to the plaintiff owing to the fall of a defective shutter from their house when the plaintiff was on the highway. At page 67 the learned Judge stated ;
'If I use a highway the duty I am under not to injure other persons is not special or contractual, but general, arising from what Lord Esher used to call proximity. A property-owner knows that his house if not repaired must at some time get into a dangerous state. He lets it to a tenant and puts him under no obligation to keep it repaired: it may be, the tenant is one who from lack of means could not do any repairs. The landlord has expressly reserved to himself the right to enter and do necessary repairs; why then should he be under no duty to make it safe for passers-by when he knows that the property is dangerous. The proximity is there; he has the right to enter and remedy a known danger. Is the injured person to be left in such a case only to a remedy against the tenant?'
11. The words 'when he knows that the property is dangerous' in the above abstract are important, and from this at one time it was inferred that it was the duty of the plaintiff to prove that the landlord had knowledge of the state of disrepair before he can be made liable.
12. This proposition was disapproved by the Court of Appeal in Wringe v. Cohen, (1940) 1 KB 229 (F). In that case the defendant had let his premises to a tenant, who had occupied them for about two years. Then, one day, during the tenancy, the gable end of the defendant's house collapsed owing to a storm and felt through the roof of the plaintiff's shop. According to the evidence the wall at the game end of the defendant's house had been in defective repair for three years. The tenant was under no obligation as between her and the defendant to repair. The defendant admitted that he was liable to repair, but had always done the repairs. The County Court Judge entered judgment for the plaintiff for damages and costs. The defendant appealed on the ground that in the absence of proof of knowledge on his part that the premises were in a dangerous state, he ought not to be held liable.
13. After reviewing the entire case law on the point, the Court of Appeal laid down the rule that if, owing to want of repair, premises on a highway become dangerous and, therefore a nuisance, and a passer-by or an adjoining owner suffers damage by their collapse, the occupier, or the owner, if he had undertaken the duty of repair, is answerable whether he knew or ought to have known of the danger or not. It was, however, added that if the nuisance is created not by want of repair, but, for example, by the act of a trespasser, or by a secret and unobservable operation of nature, such as a subsidence under or near the foundations of the premises, neither occupier nor an owner responsible for repair is answerable, unless with knowledge or means of knowledge he allows the danger to continue.
14. The reasoning in the above-mentioned case and the proposition that the liability of the landlord would exist even if he neither knew nor had the means of knowledge of the defect have been criticised by jurists in England (vide page 557, Winfield on Torts, Sixth Edn., page 324, Pollock on Torts, Fifteenth Edn. and notes in 56 LQR, Page 1 and page 140 etc.). Even in Salmond, on Torts, at page 270 of the Eleventh Edn., it is observed that 'the decision is inconsistent with the assumptions in the 1940 AC 880 (A), and though binding except in the House of Lords, cannot be regarded as in accord with true principle, being based on a strained interpretation of authorities.'
15. The decision in Wringe v. Cohen (P), (cit. supra) has since been followed by the Court of Appeal in another case, Heap v. Ind. Coope & Allsopp Ltd., (1940) 2 KB 476 (G), where a cellar flap in the highway had collapsed owing to lack of repair and the plaintiff fell into the cellar and sustained serious injuries.
16. In a recent case, Mint v. Good, (1951) 1 KB 517 (H), the plaintiff wag injured by the collapse of a wall which separated the highway, on which it abutted, from the fore-court of a house owned by the defendant. The house was let on weekly tenancy. No right to enter was expressly reserved by the owner. The trial judge found that the wall was a nuisance and that its defective condition could have been ascertained with reasonable examination by a competent person, but that as the owner had not specifically reserved the right to enter the premises, he was not liable for the injuries caused by the nuisance. The plaintiff appealed and it was allowed by the Court of Apoeal holding that a right to enter must be implied in the circumstances, and that the owner was liable for the injury caused by the nuisance. The principle enunciated in Wringe v. Cohen (F), (cit supra) and Heap v. Ind, Coope & Allsopp Ltd. (G), (cit supra) was followed and applied to the facts of the case. It was argued in this appeal that wringe v. Cohen (P) (cit. supra) could not stand with the decision of the House of Lords in Sedleigh-Denfield's case (A), (cit. supra). Somervell L.J. in his judgment at pages 524-525 repelled this contention by distinguishing the facts of the Sedleigh-Denfield's case (A), from that of Wringe v. Cohen (F), (cit. supra). The latter was a case in which a nuisance arose from a failure to maintain property in repair, whether one is considering the tenant or the landlord. The former was a case where nuisance originally came into existence by the act of a trespasser; and the question there was in what circumstances, that having happened, the occupier became liable. It was pointed out that those two different classes of cases may raise different principles; and it was obvious that in the case of a nuisance created by a trespasser, it would be very hard if the occupier were held liable if he had no opportunity of knowing, and in fact, had no knowledge of the existence of any danger. Having regard to the subject-matter, it was held that Sedleigh-Denfleld's case (A), could not be treated as overruling (1940) 1 KB 229 (P).
17. This decision sets the controversy at rest. It follows that so far as a house let out to tenants is concerned, if the house-owner is directly or indirectly responsible for the repairs of the house adjoining a highway and if a passer-by is injured by the structure being in a dangerous state of disrepair, the house-owner will remain liable for damages irrespective of the question whether he had knowledge of the state of disrepair or not. No decision from any High Court in India has come to my notice, which has taken a contrary view. In my opinion, it is a correct statement of law. In the instant case, so far as the question of the liability of the appellants is concerned, on the basis of the principle stated above, the appeal must fail.
18. Now, the question of damages remains to be disposed of. In Secretary of State v. Mt. Rukhmini Bai, AIR 1937 Nag 354 (I), it was observed by Stone C.J., and Pollock J., that an appellate Court should be slow to interfere with the finding as to the quantum of damages made by the trial Court, unless the trial Court has gone wrong in fixing the basis upon which the figure is founded. It is, however, difficult to lay down a definite rule for the calculation of the amount of compensation that should be decreed upon the basis of the income of the deceased in cases under the Fatal Accidents Act, (AXIII of 1855). There is bound to be certain amount of guess-work in estimating a reasonable expectation of pecuniary benefit, as various factors have to be considered, which cannot be expresed exactly in terms of money. But this much is certain that sentimental damages cannot be awarded merely for the loss of a son or of a daughter, unless actual financial damages have been suffered. iD the instant case, the deceased children were helping their father in his business which owing to their death he had to close down in the town and leave for his village. This is, therefore, a case of pecuniary loss to the father resulting from the death of his children 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 age of the deceased and their expectation of life are matters to be considered in assessing the loss. The fact of cast contribution may, in this connection, be important in strengthening the palpability of future pecuniary advantage. Some of these factors have been considered by the trial Court, which calculated damages in the following manner:
(1) For loss of Thela .. ..
(2) For loss of hosiery goods ..
(3) For loss of daughter Suraj Bai
I do not think any interference is called for so far as the above items are concerned. The main criticism of Shri Bobde was directed against the award of Rs. 10,100 as damages for the loss of son Vijay Kumar, who was only 6 1/2 years of age at the time of his death and was studying in the first Hindi standard. There is evidence that the father of plaintiff No. 1 died at the age of 90 and that his mother is still alive at 80. The trial Court has taken the view that the family is very long-lived, obviously overlooking the fact that the plaintiff's wife (i.e. mother of the deceased children) died at an early age, at nearly 30. In some cases, the average life of an Indian has been taken to be 45 years only : Secretary of State v. Bharibahu, AIR 1926 Nag 271 (J), I think that, in the circumstances of this case, it will be fair and just to take the view that the boy would have lived up to 50 years of age.
19. The trial court then says :
'He would not have been able to earn more than Rs. 30 to 40 per month on an average for the period till he attained his majority; but all his income up to that period would have been consumed by his maintenance, education and marriage. He would have earned much more, say Rs. 75 per month on coming of age and would have been the support and crutches of his aging father and of his brothers. Consequently the loss of earning capacity on this account would not have been less than what is claimed and I accordingly allow Rs. 10,100 on that account.'
This reasoning does not appear to be sound. Plaintiff No. 1 (i.e. the father of the deceased) was only 32 at the time of his deposition. At the time of attainment of majority of the deceased he would have been only 44, and would not be an 'aging father.' Then Section 1 of the Fatal Accidents Act of 1855 speaks of 'suit.... ...for the benefit of the wife, husband, parent and child' of the deceased. The case of brothers and sisters of the deceased cannot at all be taken into consideration. The trial Court has also missed the point that after attainment of the age of majority the boy would have been married and would have had his own family, and, therefore, would not have been able to spare all his income (i.e. Rs. 75 per month) for his father. Taking a modest view, and, considering the circumstances of the family, I think that, if he had remained alive, the boy would have contributed on the average Rs. 10 per month till his coming of age and Rs. 20 per month to his father for 10 years thereafter. I think that so far as this boy's death is concerned, the damages should amount to Rs. 1,440 plus Rs'. 2,400 is equal to Rs. 3.840. The total damages will thus amount to Rs. 5,140.
20. I would, therefore, allow this appeal to this extent that the decree for Rs. 11,400 passed by the trial Court will be reduced to that of Rs. 5,140 and that will be in favour of plaintiff No. 1 alone. Plaintiff No. 1 will get his proportionate costs from the appellants. The appellants would bear their own costs throughout. The court-fees on the claim decreed shall be recovered from the appellants, while court-fees On the claim dismissed shall be recovered from plaintiff No. 1. All the appellants will be liable for the decretal amount and for paying costs to plaintiff No. 1. The Court below will take steps for recovery of the court-fees by the Collector.
I agree respectfully with the order proposed by my learned brother (Chaturvedi, J.). I would, however, base the decision on the principle laid down in 1940 AC 880 (A). In my opinion,the evidence on record establishes a state of disrepair of the wall with the presumed knowledge ofthe defendants. They Were residing in the samelocality and must have known the existence ofthe cracks which were visible from outside. Thesecracks were apparently the basic cause of thedamage, as the rains, which were not excessive,had not affected the adjoining house of the defendants, albeit requiring repairs. The defendants, therefore, were clearly guilty of negligencein keeping the wall in a dangerous state of disrepair and are accordingly liable to compensatethe parent of the deceased children for loss oftheir service.