IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE20H DAY OF MAY201530TH VAISAKHA, 1937 SA.No. 1028 of 2001 ( ) ------------------------ AGAINST THE DECREE ANDJUDGMENT
IN A.S.NO. 457/2000 of I ADDITIONAL DISTRICT COURT,THRISSUR DATED1708.2001 AGAINST THE DECREE ANDJUDGMENT
IN O.S.NO. 778/1994 of ADDITIONAL SUB COURT, IRINJALAKUDA DATED2410.2000 APPELLANT(S)/APPELLANT/PLAINTIFF: ------------------------ RAMAN S/O.KIZHAKKOOTTU ITTAMAN, KALLUR DESOM AND VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S)/RESPONDENT/DEFENDANT: ---------------------------- COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, THRISSUR. BY ADV.SRI.KRISHNA MENON, STANDING COUNSEL, COCHIN DEVASWOM BOARD THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON1303.2015, THE COURT ON2005-2015 DELIVERED THE FOLLOWING: "C.R." A.HARIPRASAD, J.
-------------------------------------- S.A. No.1028 of 2001 -------------------------------------- Dated this the 20th day of May, 2015JUDGMENT
Caprisoned elephants add charisma and enchantment to many religious festivals and social functions of ours. Without being aware of the fact that an elephant is ferae naturae (of a wild nature or disposition) or the intricacies of the Scienter Rule, people freely mingle with the animal, occasionally resulting in casualties. Ordeal of two mahouts, who have been dragged into a long drawn legal battle on account of the unexpected and unpredictable behaviour of the animal resulting in the unnatural death of a lady. Facts relevant for decision of this case can be summarised thus: Appellant, his brother Madhavan and Cochin Devaswom Board (in short, "the Board") had been arrayed as defendants in a suit for compensation by the legal representatives of deceased Rajeswari Thampuran, who was killed by an elephant owned by the Board. On 29.05.1986 at about 7.30 a.m., the deceased went to Sree Poornathrayeesa Temple, Thripunithura to offer prayers. She entered the temple through "western gopuram". She saw the elephant by name Seetharaman standing on the northern side of "deepasthambam" and asked the appellant and his brother (the mahouts) SA No.1028/2001 2 whether she could proceed further. The mahouts showed an affirmative gesture. Then she moved forward. The elephant suddenly charged and knocked her down. Tusk of the elephant was thrust into her body causing fatal injuries. The appellant and his brother along with the Board were called up to answer the claim in a suit for compensation, which was decreed all throughout, including this Court. `1,00,000/- was allowed as compensation against the appellant and other defendants. Board paid the compensation amount in full pending the appeal filed by the appellant and initiated action to recover the said amount in moieties from the appellant and his brother Madhavan. Challenge raised in the present suit is against the right of the Board to recover any amount from the appellant on the contention that joint and several tortfeasors have no right to claim contribution between themselves.
2. It is an admitted case that the Board did not prefer any appeal against the decree passed in the suit for compensation. On 04.10.1990, the appellant was served with a notice by the Secretary of the Board intimating that the Board had decided to realise `50,000/- plus interest, each from the appellant and the co-mahout. No dispute, the appellant and the co-mahout were in care and custody of the animal at the time of the incident. Appellant and his brother preferred O.P.No.2306 of 1992 before this Court challenging validity of the order passed by the Board. However, SA No.1028/2001 3 it did not yield the desired result. Later, they approached this Court with a contempt case (C.C.No.164 of 1992) against the authorities alleging that the Board had defied the orders of this Court. The contempt case was disposed of by this Court without any positive result in favour of the appellant. Then the appellant filed the suit seeking a declaration that recovery of amounts by the Board from his salary was unlawful and arbitrary and also that the appellant is entitled to be exempted from paying any amount as contribution towards the liability under the decree in the compensation suit. Further, a permanent prohibitory injunction is also sought against the Board from recovering any money from his salary towards the decree amount in the compensation suit. Still further, a mandatory injunction decree is also prayed for directing the Board to pay back the entire amounts already recovered from the salary of the appellant for satisfying the decree.
3. The defendant/Board filed a written statement opposing the plaint claims. According to the defendant, the decree passed in O.S.No.263 of 1987 on the file of the Sub Court, Ernakulam, (the suit for compensation), was passed against all the three defendants jointly and severally. According to the Board, the co-defendants in the compensation suit are liable to contribute. In the earlier rounds of litigation, this Court held that the question of paying contribution inter se the defendants will SA No.1028/2001 4 have to be agitated separately. According to the Board, the contention of the appellant that the decree in the compensation suit, if at all to be executed, can be executed only in accordance with the terms in Section 60 CPC. is legally unsustainable. The prayers in the suit are not legally allowable.
4. After trial, the suit was dismissed by the trial court. The appellant took the matter in first appeal before the District Court. After re- appreciation of evidence, that court dismissed the appeal.
5. Heard the learned counsel for the appellant. I have carefully perused the records.
6. Following substantial questions of law are framed: i. Whether, in the facts and circumstances of the case, the appellant and the respondent Board can be said to be joint tortfeasors, especially when the relationship between them was one of master and servant? ii. Did the courts below commit any error in applying the principles in Section 7 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 (in short, "the Act 1976") to this case iii. Can the Board claim contribution from the appellant? Does the Board have a duty to indemnify the appellant on account of the master-servant relationship existed at the time of the tortious act SA No.1028/2001 5 7. Learned counsel for the appellant contended that the appellant has no legal obligation to pay contribution to the Board and the Board has no right to recover contribution from the appellant. It is also contended that the Board unilaterally discharged the decree debt, without referring to the appellant, that too during the pendency of the appeal and therefore, they have discharged the appellant from the obligation of paying contribution.
8. Plethora of judicial pronouncements touching the duty of persons keeping possession of wild animals are available. The Scienter Rule mentioned above is a special rule or formula evolved by English Courts in regard to an action for damages or compensation against a person, who knowingly keeps a dangerous animal. In other words, the rule applies to a case where a person keeps in his possession and control a dangerous animal and some other person sustains injury on account of that animal's action. The term "Scienter" literally means knowingly. In other words, it is the guilty knowledge that is sufficient to charge a person with the consequences of his/her action. The expression scienter has a broader application than mens rea in a criminal action, because it denotes a lesser degree of knowledge that is required to mulct with a liability in many civil actions. The law makes a distinction between species of animals, viz., "mansuetae naturae" or animals which can be tamed like a dog, horse, etc. and ferocious animals, also known as ferae naturae, like a lion, tiger, etc. SA No.1028/2001 6 Elephants are classified as ferae naturae and this proposition is fortified by the decision of this Court in the very same case during the previous round of litigation (see Madhavan v. Raja Raja Varma (1993 (1) KLT616. It is well settled law that in the case of animals which are ferocious species, especially that is known to mankind to be ferocious species, the plaintiff need not prove scienter, but can recover for any injury on proof that it was caused by an animal of that kind kept by the defendant.
9. The House of Lords evolved a principle called strict liability in Rylands v. Fletcher ((1866) L.R.1 Ex.265). The ratio of the decision delivered by Blackburn, J., reads as follows : " We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape." 10. This principle cannot be mechanically applied to all cases without having regard to the facts. The principle in Rylands v. Fletcher had been considered by a constitution bench of the Supreme Court in M.C Mehta and another v. Union of India and others (AIR1987SC1086. Apex Court noticed that the rule in Rylands v. Fletcher provides that a SA No.1028/2001 7 person, who for his own purpose brings on to his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The rule enunciated in Rylands v. Fletcher is said to be a strict one, still not an absolute liability. The said rule laid down a principle of liability to compensate for the damage caused by the escape of any harmful thing kept in one's land. Of course, the said rule applies only to non natural user of the land. It does not apply to things naturally occurring on the land or where the escape is due to an act of God or an act of a stranger or the default of the person injured or where the thing which escapes is present there by the consent of the person injured or in certain cases where there is a statutory authority available in defence. But the Supreme Court in M.C Mehta's case (mentioned above) held that an enterprise which is engaged in a hazardous or inherently dangerous industry, which poses a potential threat to the health and safety of the persons working in the factory and residing in the surroundings owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which is undertaken. It further held that the enterprise doing so must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and SA No.1028/2001 8 that the harm occurred without any negligence on its part. The said principle was later followed by the Apex Court in Union Carbide Corporation and Others v. Union of India and Others ((1991) 4 SCC584 and all later decisions thereunder. The principle in M.C.Mehta's case was reiterated by the Supreme Court in Indian Council for Enviro-Legal Action v. Union of India (AIR1996SC1446. However, the legal principle enunciated in the above decisions cannot be bodily lifted and applied to the facts of this case, except to the extent of noticing that the rule of strict liability propounded in Rylands v. Fletcher was modified, considering the need of the hour, to an absolute liability in some cases. The principle of absolute liability can be applied, according to me, even in the case of a tort committed by a dangerous animal, causing loss or damage to a third party.
11. Learned counsel for the appellant emphasised that there is no finding entered by any court during the first round of litigation between the same parties that the appellant and the other mahout were negligent. In other words, in the absence of any finding that the appellant and the co- mahout were negligent in handling the animal, resulting in the gruesome incident causing loss of human life, the court below erred in finding that the liability of the Board is only in the nature of a vicarious liability. It is true that the lower appellate court lost sight of the fact that the liability, which had arisen on account of the incident, cannot be treated as a vicarious liability, SA No.1028/2001 9 insofar as the Board is concerned. Actually, this can only be viewed as an absolute liability of the appellant, the co-mahout and the Board. I am of the view that the lower appellate court did not consider properly the scope of the liability arising out of a tortious act caused by a dangerous animal. Even if no negligence is alleged or proved against the keeper or the owner of a dangerous animal, the liability to pay compensation to an injured arises on account of the very nature of the animal. The concept of vicarious liability is to be understood correctly to appreciate the distinction between a tortious liability arising out of a negligent act or omission and a tortious liability arising out of the uncontrolled behaviour of a dangerous animal. A simple definition of the term "vicarious liability" is that it is the liability of a person for the tort of another in which the former had no part. It is also trite that a vicarious liability may arise either under common law or under a statute. The term "common law", according to Blackstone, means those done as legal custom and rules which received their binding powers and the force of law by long and immemorial usage and by their universal presumption through out the kingdom of England. As Indian legal system is also inspired, strengthened, guided and enriched by concepts and precepts of justice, equity and good-conscience, which are indeed hallmarks of common law as observed in Byram Pestonji Gariwala v. Union Bank of India (AIR1991SC2234. The term "common law" has to SA No.1028/2001 10 be understood in the same meaning and context. The leading instance of vicarious liability is the one mulcted on the master on account of the servant's tort. The liability springs out of the jural relationship between the master and the servant. The facts established in this case would clearly show that during the initial round of litigation, there was no finding that the mahouts were negligent in handling the elephant or wantonly failed to take proper care of the animal so that the accident could have averted. In the absence of any such finding, I am of the view that the question of vicarious liability does not arise in this case. As mentioned earlier, the very fact that the animal was of a ferocious nature and it caused the death of a person all by itself, without any negligence or mishandling attributable to the appellant and the co-mahout, the appellant, the co-mahout and the Board are liable to compensate as joint and several tortfeasors in equal measure. There is no legal basis for the finding that the Board is only vicariously labile in connection with the incident.
12. The expression "joint tortfeasors" will have to be understood in order to appreciate the extent and nature of liability. Where two or more people by their independent breaches of duty to the claimant caused him to suffer distinct injuries, each tortfeasor is liable for the damage which he caused and only for that damage. Where two or more persons by committing a tort in concert or in pursuance of an unlawful conspiracy, they SA No.1028/2001 11 are called joint tortfeasors. Learned Authors, Winfield and Jolowicz in their classic work on Tort, 18th Edition, say that persons are said to be joint tortfeasors when their separate shares in the commission of the tort are done in furtherance of a common design. It is well settled that persons who act independently of one another are not joint tortfeasors (joint wrong doers) merely because their acts caused some damage. A typical example for the said proposition is where two persons drive rashly and a collision of the vehicles causes injury to a passenger in one of them. In that case they are independent or several tortfeasors. From the evidence adduced while adjudicating the suit for compensation against the appellant and other defendants, the courts were of the definite view that the liability to pay compensation did not arise from any act or omission on the part of the appellant and the co-mahout. It was decided so for the reason that the responsibility of the owner and caretaker of an animal of a ferocious nature is some sort of an absolute liability. The earlier finding of this Court too is to the effect that the defendants in the suit for compensation are joint and several tortfeasors, rightly so, because they satisfied the definition of joint tortfeasors stated above. Even at the cost of repetition, I may mention that the earlier finding was not based on any proven negligence or on the basis of any vicarious liability.
13. Learned counsel for the appellant raised a contention that one SA No.1028/2001 12 of the defendants in the compensation suit is not entitled to claim contribution from other defendants. Stated differently, it is the argument of the appellant that the joint and several tortfeasors cannot inter se claim contribution. This contention is unacceptable in view of the law in Section 7 of the Act 1976. The Section reads as follows :
"7. Proceedings against, and contribution between, joint and several tortfeasors.- (1) Where damage is suffered by any person as a result of a tort (whether a crime or not),- (a) judgment obtained against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would; if sued, have been liable as a joint tortfeasor in respect of the same damage. (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of his estate, or of the dependants of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise), the sum recoverable under the judgments given in those action by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first SA No.1028/2001 13 given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for brining the action. (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so however that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought; (2) In any proceedings for contribution under this section, the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity." 14. A Division Bench of this Court in Anuradha Varma v. State of Kerala (1993 (2) KLT777 stated the principle in Section 7 of the SA No.1028/2001 14 Act 1976 in the context of a motor accident claim as follows: "...........From the provisions contained in S.7 of the Kerala Torts (Miscellaneous Provisions) Act, 1977 it is clear that a suit against one of the joint tortfeasors alone is maintainable, for that Section provides that the other joint tortfeasor will be entitled to contribution from the tortfeasor who was not a party to the proceeding. The Section also provides that the filing of a suit or other proceeding against one of the joint tortfeasors will not be a bar for the claimant for filing another claim or suit against the other tortfeasor. From this provision also it is clear that a claimant is entitled to sue one of the joint tortfeasors for relief without impleading the other joint tortfeasor. .........." 15. Learned counsel for the appellant laid emphasis on Section 7 (1)(c) of the Act 1976 to contend a proposition that the Board is under a legal obligation to indemnify the appellant and the other mahout for the loss sustained during the course of their employment. As mentioned earlier, in the absence of any finding that the appellant and the co-mahout were negligent at the time of the incident, it is contended by the learned counsel that the Board, being the owner of the elephant, cannot recover contribution from the appellant on account of the master-servant SA No.1028/2001 15 relationship then existed. According to him, in common law there existed an implied contract that the master should be held liable to indemnify the servant for the loss sustained by the latter during the course of employment. To buttress this contention, reliance is placed on the "Law of Master and Servant" by Francis Raleigh Batt (5th Edition, Page No.227). The following quotation may be useful for our purpose : " Where a servant incurs liability or loss or damage, or is put to expense on his master's behalf, he is entitled to an indemnity from his master to cover these obligations or losses. This is only an example of the general principle of law that an indemnity is owed whenever one person at the request of another does an act involving him in liability therefor." 16. In this context, following principles will have to be remembered. It is true that mutual rights and obligations between master and servant depend on the terms of the contract of employment. Although right of indemnity generally arises by a contract, express or implied, it has been said to exist whenever the relationship between the parties is such that either in law or in equity there is an obligation on one party to indemnify the other. The right to indemnify is not confined to cases of contract. The relevant provision of law in the Indian Contract Act, 1872 is Section 124, insofar as a contract is concerned. No doubt a right to SA No.1028/2001 16 indemnify exists where the relation between the parties is such that, either in law or in equity, there is an obligation upon one party to indemnify the other (see - Kadiresan Chettiar v. Sp.RMRm Ramaswami Chettiar (AIR1946Mad. 472). A right of indemnity may arise between a principal and agent, an employer and employee, in favour of a trustee from the trust fund, etc. Even in the absence of any specific term in a contract of employment, the servant should be afforded reasonable and adequate protection for discharging his duty by obeying the lawful orders of his master, provided he is not doing anything wrong or illegal. Nobody has a case that the Board had agreed to indemnify the mahouts, in case any loss is sustained by the latter persons, during the course of their employment. However, the question that crops up for decision, in the absence of any specific contract, is whether the appellant could claim indemnity against the Board for the loss sustained by a third party on account of the act of an elephant owned by the Board and kept by the appellant? 17. Macdowell's Law of Master & Servant (1908 Edition), in the chapter relating to master's duty to indemnify, says that a master is bound to indemnify his servant for all expenses incurred or loss sustained in obeying his lawful orders. It is also mentioned that no express contract of indemnity is required; the law will presume, from the relation of master and servant, an obligation to hold the latter harmless from the consequences of SA No.1028/2001 17 obedience to the lawful orders of the former.
18. In American Jurisprudence, II Edition (53 Am. Jur. 2d Master and Servant Para 132) the following proposition has been stated:
"32. Indemnification of employee. As a general rule, the employer is bound to indemnify his employee for all loss and injury sustained by the employee while discharging the duties of his employment. Accordingly, if a servant of a corporation upon which an injunction has been served, restraining it from doing certain acts, does those acts by order of the corporation, which imparts to him no notice of the injunction, but conceals its existence from him, the corporation is bound to indemnify him for the damages sustained by him as the natural result of his obedience to its orders. In order that such a recovery by the employee may be sustained, it must be made to appear that the plaintiff, at the time complained of, was acting for and in the place of his master, in accordance with and representing his master's will and not his own, and that the business which he was doing is strictly that of his employer, and not in any respect his own." 19. The common law principle stated above, according to me, should be borne in mind while interpreting Section 7(1)(c) of the Act 1976, especially when I find no indication in the statute to think otherwise. The SA No.1028/2001 18 spirit of Section 7(1)(c) of Act 1976 is that any tortfeasor liable in respect of any damage may recover contribution from any other tortfeasor, who is also liable in respect of the same damage. The liability to pay compensation by the tortfeasor is independent of the fact as to whether he is a joint tortfeasor or otherwise. The only exception carved out from the liability of paying contribution is in respect of a person, who is entitled to be indemnified by a tortfeasor in respect of the liability, in respect of which the contribution is sought. The phraseology "entitled to be indemnified" employed in Section 7(1)(c) of Act 1976, according to me, takes in not only persons entitled to be indemnified by the terms of a contract or by the provisions of any statute, but also by the common law principles. I may hasten to add here that I do not intend to propound a proposition that any and every joint and several tortfeasor can claim indemnity from the other by invoking the said provision. The tortfeasor claiming exemption from paying contribution to the other tortfeasor, based on the principle of indemnity contained in the Section, should establish a legal right to make such a claim based either on a statute or a contract or common law principles. In this case, the salient features prompting me to hold so are that the master- servant relationship between the Board and the appellant is an admitted fact, that there is no finding that negligence of the appellant and the co- mahout caused the incident and that the liability of the Board and the SA No.1028/2001 19 mahouts in owning and keeping an elephant respectively is in the nature of an absolute liability. That apart, the appellant was discharging his duty at the material time and there is no case that he, at any point of time, defied the lawful orders of the Board. True, I also agree that it is not possible in all cases to allow the claim of indemnity by a tortfeasor based on Section 7(1) (c) of Act 1976 without regard to the facts of the case and without examining the sustainability of the claim on the basis of some legal principles. According to me, the Board as employer (master) owes a duty to the appellant (servant) de hors any term in the contract of employment to indemnify the latter for any damage or loss sustained by third parties during the course of his employment, especially when there is no case against the appellant that he was discharging his duty without due care and attention. Therefore, in the facts of this case, the appellant can be considered to be a person entitled to be indemnified as per Section 7(1)(c) of Act 1976. The Board therefore should be prevented from recovering contribution from the appellant as he is entitled to be indemnified under common law principle in respect of the liability in question. Therefore, I hold that the Board cannot recover contribution from the appellant as the incident occurred during the course of employment of the appellant under the Board and in the absence of any contention that the appellant negligently handled the animal or he exceeded the limits of his authority under the terms of employment or he SA No.1028/2001 20 defied any lawful order of his master. The questions posed should be answered in the following manner. The Board and the appellant along with the co-mahout are joint tortfeasors. Their liability is in the nature of an absolute one. The Board is not entitled to seek contribution from the appellant for the damage caused by the elephant as the appellant is a person entitled to be indemnified by the Board as per Section 7(1)(c) of Act 1976. The courts below did not properly appreciate the provisions of the Act 1976. The Board owes a duty to indemnify the appellant, a servant of the Board, on account of the master-servant relationship existed at the time of the tortious act. In the result, the suit is decreed declaring that the Board's action of recovering the amounts from the appellant's salary as per notices dated 26-09-1990, 08-11-1990 and orders dated 04-06-1991 and 05-02- 1992 on its proceedings noted as M.I170286 was unlawful and also that the appellant is entitled to be exempted from paying any amount as contribution towards the liability under the decree in O.S No.263/87 on the file of the Subordinate Judge's Court, Ernakulam. There shall be a decree of permanent prohibitory injunction restraining the Board from making any further recoveries from the appellant's salary or other benefits payable to him towards the decree debt in O.S No.263/87 on the file of the Sub Court, Ernakulam. It is further decreed by way of a mandatory injunction directing SA No.1028/2001 21 the Board to return and pay back to the appellant the entire amounts already recovered by the Board from the appellant's salary towards the decree debt in the above suit. The Board shall pay costs of the appellant through out. All pending interlocutory applications will stand closed. A. HARIPRASAD, JUDGE. amk/cks SA No.1028/2001 22 A.Hariprasad, J.
S.A.No.1028 of 2001JUDGMENT
20h May, 2015