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Sushila Devi and ors. Vs. Municipal Corporation of Delhi - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal Nos. 23 and 28 of 1970
Reported inI(1985)ACC121; ILR1985Delhi746
ActsDelhi Municipal Corporation Act, 1957 - Sections 478(2)
AppellantSushila Devi and ors.
RespondentMunicipal Corporation of Delhi
Cases ReferredDavies v. Powell Duffryn Associated Collieries Ltd.
(i) delhi municipal corporation act, 1957 - section 478 (2)--the bar of limitation operates only for acts done in pursuance of the act.;(ii) law of torts--negligence--a public body can be made liable for negligence of rest ipsa loquitor--assessment of damages--the measure of damages has to be assessed according to the expectations of the deceased, and not of the plaintiff.;the deceased on his way home from office was injured when a branch of a neem tree fell on his head. he died the next morning and a piece of wood was found in his brain. the legal representatives of the deceased brought a suit for damages claiming rs. 3,00,000/- from the municipal corporation of delhi. a decree of rs. 90,000/- was passed in favor of the legal representatives. from the order of the single judge, both.....avadh behari rohatgi, j. (1) on 18/08/1964between 5 and 6 in the evening two brothers suresh chander(the deceased) and ramesh chander were going on a scooter from their office to their residence. they passed through alipurroad beyond kashmere gate. the deceased was driving the scooter and ramesh was a pillion passenger. when they reached20, alipur road, known as sant permanand blind relief mission building, opposite rai sahib bhola ram petrol pump, a branch of the neem tree standing there fell on the deceased. his head was crushed. he was rushed to irwin hospital where he died the following morning at about 11 a.m. inspire of a surgical operation. a piece of wood was found in his brain.(2) the deceased left behind a widow, three minor sons and a minor daughter besides his mother. all six.....

Avadh Behari Rohatgi, J.

(1) On 18/08/1964between 5 and 6 in the evening two brothers Suresh Chander(the deceased) and Ramesh Chander were going on a scooter from their office to their residence. They passed through AlipurRoad beyond Kashmere Gate. The deceased was driving the scooter and Ramesh was a pillion passenger. When they reached20, Alipur Road, known as Sant Permanand Blind Relief Mission Building, opposite Rai Sahib Bhola Ram Petrol Pump, a branch of the neem tree standing there fell on the deceased. His head was crushed. He was rushed to Irwin Hospital where he died the following morning at about 11 a.m. inspire of a surgical operation. A piece of wood was found in his brain.

(2) The deceased left behind a widow, three minor sons and a minor daughter besides his mother. All six of them brought a suit for damages claiming Rs. 3,00,000 from the defendants,namely, (1) Municipal .Corporation of Delhi, (2) Union ofIndia, and (3) Delhi Administration. The suit was partially decreed by a learned judge of this court on the original side. A decree of Rs. 90,000 was passed in favor of the widow and the children against Municipal Corporation (the Corporation).Against defendants 2 and 3 the suit was dismissed. From the order dated 29/05/1970 two appeals have been brought.In Rfa (OS) 23 of 1970 the Corporation claims that the suit be dismissed. In Rfa (OS) 28 of 1970 the plaintiffs claim that the decree for Rs. 3,00,000 be passed in place of Rs. 90,000.This judgment will govern them both.

(3) The defendants contested the plaintiffs' suit on a variety of grounds. A large number of issues were raised. But three main questions arise inthe suit. First whether the suit is barred by reasons of section 478 of the Delhi Municipal Corporation Act, 1957 (the Act). Second the question of fault andliability. Whether the defendant Corporation is liable in negligence. Third the amount of damages io oe awarded to The plaintiffs. We will take these three questions separately.The First Question

(4) On the first question it is convenient to set out section 478 of the Act at this stage:'Notice to be given of suits.

(1)No suit shall be instituted against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or byelaw made there under, until the expiration of two months after notice in writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at Ins office, or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed,and the name and place of residence of the intendingplaintiff, and unless the plaint contains a statement that such notice has been so left or delivered.

(2)No suit, such as is described in sub-section (1) shall.unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.

(3)Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.'

(5) Counsel for the Corporation says that the accident look place on 18-8-1964 and the original suit was filed on 13-7-1966.According to him the suit ought to have been filed under see.478(2) within six months from the date on which the cause of action arose i.e. on 19-8-64 when the victim of the fatal accident died. Now the critical words of section 478(!) are that' in respect of any act done or purporting to have been pursuance of this Act or any rule, regulation, or bye-law made there under', no suit against the Corporation shall be instituted after the expiry of six months from the date on which the cause of action arises, unless it is a suit for recovery of immovable property or for a declaration of title thereto. Counsel referred us to the decision of one of us (Avadh Behari, J.)in G. C. Sharma v. Municipal Corporation of Delhi. 2nd (1979)II Delhi 771(1) and the decision of the Judicial Committee in Commissioners for the Port of Calcutta v. Corporation of Calcutta, Air 193' Pc 306(2) and Prasaddas Sen v. Bonnerji : AIR1931Cal61 .

(6) Hardy, J. who tried this question as a preliminary issue opined that as the plaintiffs do not complain of any act, oromission, on the part of the Corporation in pursuance of the Act and base themselves on common law duty of care:, the bar of section 478(2) was not attracted. He held that Art. 82of the Limitation Act, 1963 applied and the suit was withintime.

(7) We think the learned judge was right. If any act done in pursuance of the Act or the rules is the subject matter of the suit the bar of limitation enacted in sub-section (2) willoperate. It must be referable to the specific provisions of the Act. The word 'act' will include 'illegal omission' by virtue of the General Clauses Act. So the sub-section will read thus: for any act done or omitted to be done or purported to be done or omitted to be done in pursuance of the Act the suit must be filed within six months of the cause of action.

(8) The plaintiffs' action was founded in tort. They alleged that the tree of which the overhanging branch fell on the deceased causing the fatal accident was a dead tree and thus a potential danger to the passers-by. The road vests in the Corporation and is maintainable at the public expense. The tree,being in a state of decay, was likely to cause danger to the roadusers. The suit was brought against the Corporation as a highway authority for damages resulting from its failure to maintain the highway in a reasonably safe conditions for traffic. In other words, the gist of the action is that the Corporation had not taken such care as in all the circumstances was reasonably required to secure that the road was not dangerous for traffic.

(9) The Act does not codify the law relating to highways,as has been done in England recently by the Highways Act,1980. The history of this tree' is that it was in existence in 1950or even earlier. At that time there was a local authority called the Notified Area Committee Civil Station which had jurisdiction over the area in question and was governed by the Punjab Municipal Act of 1911, as extended to Delhi, By section 56(g) read with section 3(30) all public streets and trees standing over them vested in the Notified Area Committee. On the passing of the Delhi Municipal Corporation Act, 1957, the Notified Area Committee was transferred to the Corporation by virtue of section 516(2)(d) of the Act. Hence the Corporation is the owner of the tree. That is what vesting means. And this is what the judge found.

(10) Counsel for Corporation contends that the tree vested only for management. Suppose it is so. The public body must manage it in accordance with the principles of good estate management so that the property may not be in a condition likely to cause damage to persons lawfully using the public roads. And, if good estate management involves inspection and trimming of trees from time to time, there is a duty on the Corporation to carry out those) operations.

(11) Section 43 defines the discretionary functions of the Corporation. Clause (d) says:

''the Corporation may in its discretion provide either'wholly or in part for all or any of the followingmatters, namely :(d) the planting and care of trees on roadsides andelsewhere.'

This provision speaks of the future. Not of the past. The tree in question was an old tree which the Corporation inherited from the Notified Area Committee because it was in existence before the passing of the Act. Admittedly the Corporation has not provided by means of bye-laws or regulations anything about taking care of trees. No specific duty of care is thus enjoined by the Act. So there is no 'codified negligence' or'statutory negligence' of which the plaintiffs could complain.Highway authorities are under a statutory duty to maintain the highway in England. But not so in India. The plaintiffs do not plead the specific breach of any provision of the Act. Their claim is founded on the general law of negligence. To such a case section 478 has no application.

(12) Section 43(d) says that the Corporation may provide for planting and care of trees. Until regulations or bye-laws are framed there is no statutory duty of care. On framing the regulation the common law duty of care will be transformed into a statutory duty. If reasonable care is not then taken the Corporation will be guilty of statutory' negligeence. Section 478(2)will then be applicable. Till then the common law will supply the omission of the statutory regulations.

(13) There can be an act done in pursuance of the Act.But it is difficult to see how there can be an omission in pursuance of the Act. What the legislature means is that if there is an act done by the Corporation or its officials in the exercise or purported exercise of a statutory power they will have the protection of the Act, namely, they cannot be sued after six months.Non-performance of a statutory duty is also on the same footing. Positive acts and neglect of duty are thus placed on the same footing provided they are in respect of statutory provisions. If it is an act of commission or an act of omission,and is traceable or referable to the statute, the bar of section 478(2) shall apply. Of positive acts the source must be statute.The Parliament must have conferred statutory powers to do the act. Similarly for faults of omission. If appeal has to be made to the statute the bar will apply.

(14) The decision in G.C. Sharma (supra) is an excellent illustration of a case where a person acting under statutory powers may erroneously exceed the powers given by the statute and yet he is acting or purporting to act in pursuance of the sta-tute. The act must have been done under colour of a statutoryduty. (Secy. of State v. Lodna Colliery Co. Ltd. Air 1936 Pat.513(4) per Courtney Terrel CJ). The difficulty is to draw a line between the class of cases that are within and those that are without the statute. But a court of construction must remember that sub-section (2) of section 478 is a restriction of ordinary rights and thereforee we cannot read anything more in the words used than what they express or of necessity imply.(Bradford Corp. v. Myers (1916) Ac 242(5), 251 per ViscountHaldane). In Selmes v. Judge 1871 Lr 724(6), 727Blackburn J. speaking of a similar provision said'

'IT has long been decided that such a provision as that contained in this section is intended to protect persons from the consequences of committing illegal acts, which are intended to be done under the authority of the Act of Parliament, but which,by some mistake, are not justified by its terms,and cannot be defended by its provisions.'

(15) Section 478 is enacted fur the benefit of the localauthority. By the limitation which it imposes it prevents belated and in many cases unfounded actions. The critical expression in see. 478(1) is 'in pursuance of'. 'Pursuant to' isdefined by the Oxford Dictionary to mean, inter alia, 'in accordance with', 'consequent and conformable to'. An act maybe said to be done in pursuance of the Act if the statute authorises that specific act. If the act complained of is within the terms of the statute, no protection is needed for the plaintiff has suffered no legal wrong.

(16) Can we link up the reason for what is done with the Act This is the test. The nature and the character of the act must have a statutory colour. It is the statute which givesshelter. See whether the act is enactment by the enactment. Ifso, go inside the act and see whether its execution is inconformity with the statute. Even if the doer lies acted in excess of his statutory power he can take shelter behind thestatute. When, for instance, a constable in the bona fide belief that an offence has been committed take-? into custody without warrant any disorderly person in pursuance of the power given to him by an Act of the legislature, he does so in purported pursuance of the Act, even though he may be mistaken as to his powers and the arrest may be a wrongful arrest. He will be entitled to the protection which the Act gives him.The constable through a bona fide mistake was acting colourofficii.

(17) What is done may bs done deliberately and in good faith and in the genuine belief that it is Justified by the statute.The same reasoning applies to an act omitted to be done in pursuance of the Act. If an act is done in disregard of the provisions of the statute or in breach of its provisions or in .a manner not authorised by the Act, to such an omission the protection of immunity from suit after six months will be available.

(18) The Privy Council decision in Calcutta Port Commissioners and the Calcutta ruling in Prasaddas Sen (supra), onwhich counsel for the Corporation relics, were considered by the Lahore Full Bench in Mohd. Sadat Ali Khan v. Administrator Corporation of City of Lahore. Air 1945 Lah. 324 (7)and distinguished. The Lahore Full Bench with respect, we follow here. It is, thereforee, unnecessary to say anything more on the aforesaid two rulings.

(19) This cae is different from G. C. Sharma (supra). The plaintiffs do not rest their case on any statutory duty. Nor on any act or neglect having reference to the statute. Nor on something founded on the Corporation's statutory powers orduties. The Corporation is not guilty of any neglect or default in the execution of any statutory duly, since no statutory duty rested upon them. On the plaintiffs' case the Corporation isguilty, and only guilty of a neglect or default, in the discharge of a duty imposed upon it by common law. namely, a duty to take care. But if the duties which the common law would ofitself impose are also imposed by statute, then the statutory provision such as section 478 would apply. This is the present position in England. Any user of the highway can complain of negligence of the highway authorities in the execution of their public duty or authority. G.C. Sharma was just such a case.In the discharge of a public duty or authority the corporation wrongly refused the license. It was held that the public body will enjoy the benefit of the stutute.

(20) All that section 478(2) says is that where proceedings are taken against the Corporation or a municipal official for any act done in pursuance of the Act, or any public duty imposed by the Act, or for any neglect or default in the execution of such statutory powers or duties, the ordinary right of the subject to the remedy is to be cut down by stringent provisions to time. If the action is commenced more than six months after neglect the statute will apply and it must be held thatthe action is too late and barred.

(21) On this view we cannot accept that a suit founded on the tort of negligence such as the present one will be barred under section 478(2). A strong court of five judges of Lahore High Court in Mohd. Sadat All Khan v. Administrator Corporation of City of Lahore, Air 1945 Lah. 324 has taken this view which we have expressed in our own words with no hope of improving their exposition of law. (See the opinion of Mahajan J.). The Lahore Full Bench has been expressly approved by the Supreme Court in State of Punjab v.Modern Cultivation, : [1964]8SCR273 .

(22) Section 478 covers cases of acts and omissions done in the process of execution of a statutory duty and are found to be in excess of statutory powers. 'It is confined to cases where any act is done in the honest belief that it is being done in pursuance of a statute or in the execution of an act an omission is made in the honest belief that such an act is not required to be done under the statute.' (Mohd. Sadat Ali, supraper Mahajan J. at p. 321). 'In execution of the commands of the legislature the officials are liable to act in excess of their statutory powers in the honest belief that they enjoy these powers, though in fact they do not do so.' To such officials section 478 gives protection. 'Section 478 has a limited scope and application and comes into play where specific acts undercover of the statute are being done or executed.' (Mohd. SadatAli p. 331).

(23) As we find nothing in the Act imposing any specific duty on the Corporation to take care of pre-existing trees we hold that section 478(2) does not operate as a bar to the suit.The Second Question

(24) After the preliminary issue was decided in favor of the plaintiffs the parties west to trial. They called witnesses.The case was decided by B. C. Misra J. he evaluated the evidence. He found as a fact that the tree in question was a deadtree. It had no bark, foliage or buds. He accepted the evidence of a botany professor called by the plaintiffs who gave to opinion that a tree which has no bark would dry up anddie. In the evidence of the garden superintendent of the Corporation he found sufficient materials to reach the conclusion that the tree was dead, dry and dangerous. He came to the conclusion that the Corporation was 'grossly negligent' in not.cutting it when as a dead tree it had become a source of potential danger.

(25) Before the learned judge it was argued that no person had made any complaint to the Corporation about the dangerous condition of the tree and they never knew about it. He rejected this argument. He deplored their conduct and said:'This would disclose a callous attitude on the part of the defendant which owned the tree and in older to perform its legal duty. stood in need of complainant from the members of the public instead of itself carrying cut regular careful inspection which would have revealed the source of danger.'

(26) We agree with the learned judge in his finding that the.Corporation was guilty of negligence. The photographs of The tree were taken. These were put in cross-examination to the Corporation witnesses. The Deputy Commissioner, horticulture{DW 4) admitted that the photographs showed that the tree had no leaves. 'It looks like a partly worn out tree', he saidS. L. Jindal, Superintendent Gardens, had to admit that. there was no bark or foliage on the tree. 'In case the tree is devoid of bark on all sides as shown in these photographs then this' may be a dead tree', he confessed in the cross-examination.

(27) One fact which is conspicuous in this case is that the horticulture department of the Corporation did not carry out any periodical inspection of trees in the locality and did not produce any record to show that they were taking any safety precaution to see that the road is safe for traffic. We think the judge was absolutely right when he said : 'I hold that the true in question was dry and dead and the same was tilling and dangerous and projection of its branch over the public road was a definite source of great danger to the passers by who were entitled to use, the road.'

(28) If a rotten tree falls causing damage to a user of Shehighway, the public body can be sued in negligence. The duty of the highway authority is to take such steps as a reasonable and prudent landowner would lake. and the question is one of fact whether the conduct of the Corporation infringed thisrequirement. There is a duty to lop. top and pollard the trees standing on the highway. The users of the road are entitied to pass and repass in safety and it is the duty of the Corporation to ensure it. They are a public authority and their duty is to maintain the public roads at public expense.

(29) Traffic cases raise questions of fact which are dependent on the circumstances of each case. The question 'whetherthere has been a breach of duty, though sometimes treated asa question of fact. is still a question of law whether the facts constitute sufficient evidence upon which to base a finding off act that there was in the circumstances at breach of duty to take care: a court empowered merely to reverse on points of law can do so in the ground that there is no evidence of want of reasonable care. [Street on torts (7th) (1953) ed, 113].

(30) The law is stated in Winfield and Jolowicz. On tort(12th) (1954) ed.p. 420 in these words :

'IF damage is done owing to the collapse of the projection on the highway or by some other mischief traceable to it. the occupier of the premises on which it stood is liable if lie knew of the direct orought. on investigation, to have known of it, At any rate this is the rule with respect to thing that is naturally on the premises, e.g. a tree.'

In Caminer v. Northern and London Trust (1950) 2 AllE.R. 486(9) at p. 497, Lord Reid said-

'I have no doubt that a person who has a tree which is in such a position that it or some of its branches may fall and injure some person passing along a busy thoroughfare is under some duty to those who pass ....I think that the respondents'duty was to take such steps to prevent dangers a reasonable man in the respondents position would have taken.'

In Clerk and Lindsll on torts (15th) (1982) od. at page 464 the law on trees is summarised as follows :

'THE fall of trees, branches and other forms of natural growth is governed by the rules of negligence.When trees on land adjoining a public highway fall upon it, the owner is liable if he knew or ought to have known that the falling tree was dangerous.He is not bound to call in an export to examine the trees, but he is bound to keep a look out and to take notice of such signs as would indicate to a prudent landowner that there was a danger of a tree falling.'

In Charles worth & Percy on Negligence (7th). (1983) pages 599-600 the law is stated in these terms :

'HOWEVER,when a tree, which had been dying for some years and should have been known to be dangerous by an ordinary landowner, fell and caused damage, the owner was held liable Brownv. Harrison (1947) W.N. 1911.

A local authority, which plants trees near the highway,is under a duty to cut them back, when they Growover the highway, so us to interfere with traffic.Such an authority was held liable on its failure to do this, when an overhanging branch broke a window in a bus and injured a passenger. [Halev. Hants Dorset Motor Services Ltd. (1947) 2All E.R. 628](10).By way of contrast, if a local authority in the course of road widening operations leaves a tree, adjoining the highway in such a danger of falling that it is both 'patent and imminent', liability will be established for damage, which is caused by its fall into persons and vehicles on the highway.' [Mackiev. Dumbartonshire C.C.. (1927) W.N. 247](ll).In Brown v. Harrison (1947) 63 LTR 484 (12) the plaintiff, while walking along a. public highway.was injured by the fall of a tree on the defendant.'s land. The tree was a dying tree. The Court of Appeal held that: the evidence established that there was a dangerous conditionwhich the defendants could and should have seen. they were held liable for the injury resulting to 11 is plaintiff from their failure to remedy it.In Quinn v. Scott (1965) 1 W.L.R. 1004(13) the owner of a tree on a highway who has means of knowing that it is diseased and may fall is liable in negligence if it falls and causes an accident.

(31) Applying these principles of law we find that the tree in question which had no bark mid leafage was a dead tree.It slowed no signs of life. It was well 'worn out' as the Corporation witness said. The tree w;)s dangerous. A tree is not in itself a dangerous object, though in decay it may become so. In the present case by reason of decay the tree had become a dangerous object. The danger was apparent to the ordinary layman. The test is whether an ordinary person would regard the danger as apparent. On the date of the accident there was no storg. No strong winds. It was a calm evening. Suddenly a branch fell and killed the man.In a dying tree the instability and likelihood of its falling are important matters.

(32) Road safety is of primary importance. Whether The tree is planted or self-sownthe highway authority has the duty of care. Section 43(d) of the Act emphases it. Care of trees' is the discretionary function of the Corporation,though it has not been provided for by means of regulations or bye-laws so far. If environmental pollution is to be reduced and ecological climate is to be improved by planting of trees It must be remembered that there is a corresponding liability on the tree planters to see that the trees do not become a hazard for the passers-by. 'Those who have property of this kind have to realise that there is a duty to the public.'

(33) The test is that the defendant knew or ought to haveknown, as an ordinary landowner, of the danger caused by the tree. That the tree had been planted many years before by the Corporation's predecessor-in-title is no ground to deny damages to the plaintiffs once it is established that the defendant has failed to take care of the tree.

(34) The Corporation has employed specialists in their horticulture department. They should have known the condition of the tree. The law imposes on them the duty of taking precautionary measures when the condition of the tree is sufficiently apparent prior to the accident.

(35) It is the duty of the Corporation employees to conduct periodical inspections of the trees standing on the public roads. There is no evidence in this case that inspections were efficiently and regularly done which would have revealed the dangerous condition of the tree. The danger was apparent,Prompt steps should have been taken to remove the tree.

(36) The learned judge was impressed by three important facts disclosed in the evidence. The first was the non-existence and non-production of inspection record', by the Corporation employees engaged in looking after the trees in this area.Secondly the branch which fell was admittedly removed by the Corporation employee on 19th August. There is no report about its condition. Third the tree in question was removed from the site by the Corporation employees sometimes later.So the direct evidence was in their possession,

(37) In this state of evidence the learned judge applied the doctrine of rest ipse loquitor. He came to the conclusion that the Corporation was negligent in performing its duty.They were under a legal obligation to maintain the tree and to cut it down when they found that it was a danger to thepasser-by. The Corporation was liable to pay damages to the plaintiffs. .

(38) Counsel for the Corporation submitted that. there was no liability of highway authorities under the commonlaw. He referred us to Dist. Board Manbhum v. Shyamapada. : AIR1955Pat432 and Ivaturi Subromanyam V. Dist.Board Naraspur Air 1941 Mad. 733(15). We do notagree. There has been a judicial cry against the doctrine ofimmunity. The law was unsatisfactory. It was an archaic and anomalous survival into modern times. It: would indeed be difficult to think of any sound reason why today highway authorities should enjoy this immunity. Before the Highways Acts in England they; enjoyed this .immunity. The Acts abrogated it. We do not see any good reason why we should follow the English common law in this country when it was found to be unjust in the country of origin and was finally abolished there. The Supreme Court decisions in Municipal Corporation of Delhi v.Subhagwanti and others, : [1966]3SCR649 and State of Punjab v. Modern Cultivators : [1964]8SCR273 clearly show that we ought to follow not the old common law but the modem law of negligence as developed by the judges. On the whole case we are not prepared to differ from the learned judge in his formulation of the law and the evaluation of facts as disclosed in evidence.

(39) The Corporation witness in his evidence said that 'any tree can be a dangerous one' and that I am not expected to sec each and every tree' (t)W 5). This attitude is typical of what the learned judge called 'callous' conduct. of Corporation employees. It is a part of their duly to inspect the trees in the neighbor hood for the purpose of causing removal of branches overhanging the roadway and to report any tree which they regard as a potential danger. 'Those who have properly of this kind have to realise that there is .a duty to the public'.They did not realise their duty. The appearance of the tree should have indicated to them the probability of danger. the Corporation has failed in its duly because its employees did nothing about the safety of the road users. Nothing for the protection of the public. In our opinion it has been satisfactorily proved that negligence was a cause of the accident by which the man died and the plaintiffs suffered the damage for which they sue.

(40) That trees rarely fall is no ground to a baste the public body from its liability. ''So the fact that the injury which has occurred is unique in character, or has happened previously ona minimal number of occasions or to a very few people, does not necessarily prove that the defendant is under no duty to take precautions against it.' [Salmond and Houston on the Law of torts (18th) ed. page 212].

(41) Donoughue v. Stevenson (1932) Ac 562 (17) marked a turning point in the history of the law of negligence. It established the 'neigh our' principle. It established negligence as an independent tort. The importance of this decision waists insistence upon the expansible nature of the action of negligence. Lord Macmillan said:

'THE grounds of action may be as various as humanerrancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The categories of negligence are never closed.'

(42) Before the law of negligence dominated the scene the judges found the defendant liable by applying the law of nuisance. A dead tree would be considered as a public nuisance.

(43) 'NUISANCE is a branch of the law of negligence. It merely adds to the list of duties of care.' (Williams & Hepple Foundations of the Law of torts 2nd ed. p. 124).. 'Nuisance we quote Pratt and Mackenzie on the Law of Highways (20thed.) p. 106-. 'may be defined, with reference to highways, as any wrongful act or omission upon or near a highway, whereby the public are prevented from freely, safely and conveniently passing along the highway'. This definition exactly fits in with the law of negligence. It was said by the Corporation that MallRoad is a highway but not Alipur Road. This is a distinction without a difference. Both are public thoroughfares and public roads.

(44) The leading case is Noble v. Harrison (1926) 2 K.B.332(18). The damage there was caused by the overhanging tree with a latent defect and the decision was against liability.The judgment of Rowlatt J. contains this passage:

'A person is liable for a nuisance constituted by the stale of his property:(1) if he causes it; (2) if by neglect of sonic duty he allowed it to arise: and (3) if. when it has arisen without his own act or default, he omits to remedy it within a reasonable time after he did or ought to have become aware of it.'

(45) As a general statement of law it was cited with approval by Dixon J. in torette House Proprietory v. Berkman (1939)62 C.L.R. 637(19) and Lord Wilberforce in the Privy Council case Goldman v. Hargrave (1967) A.C. 645(20).

(46) The real question is: Did the Corporation by the neglect of some duty allowed the danger to arise This question must be answered in the affirmative.

(47) What does the evidence establish in this case? A. dying tree was standing on a public thoroughfare. The Corporation employees should have foreseen the danger of its falling or ofits branches breaking away. They must be held liable because they ought to have envisaged danger. This is the basis of the judgment of B.C. Misra, J.

(48) The real question is about the liability of a tree owner.If there is a tree likely to cause damage to persons lawfully using a busy street it is the duty of the highway authority to see the soundness and safety of the tree. This course was the more imperative in the case of a tree standing near a public and well used road. If there is a potentially unsafe tree reasonable and proper precaution of a reasonable and prudent land owner must be taken for the protection of the public. Whether the suit is framed in negligence or nuisance the local authority must realise that there is a duty to the public.

(49) In an action for negligence, such as this, the plaintiff must establish either that the defendant, knew of the danger or ought to have known of it. 'Ought to have known' ;can not mean more than 'would have known if He had taken the precaution which a reasonable land owner would take,' It seems to us that the Corporation took no steps to remedy what we think was a danger to the public. The professor of Botany called by the plaintiff was, by the quality of his evidence, by far the most important witness. He found that there were no fringes in the tree which indicated that the tree was dead and dry.He did not give a clean chit of health to the tree. It was not standing upright. It was inclined. It was condemned as a potentially unsafe tree by the witness. It is the duty of the Corporation to take reasonable and proper precaution so that unsuspecting persons lawfully using the road are not injured.If they fail to take appropriate precautions they must bear theconsequence.

(50) The judge' imputed a want of care to the Corporation.They should have foreseen that the accident can happen. A layman would draw such a deduction from the position and the appearance of the tree. No one will call it safe and sound. Noon will count such a tree safe. The evidence of the Corporation employees throws a great suspicion on the soundness and safety of the tree. Such a tree was likely to cause damage to persons lawfully using the public road. They ought to have known that a dead tree can fall and injure and kill a man. As the duly of inspection and cutting of tree had not been performed the learned judge held the Corporation liable. We are not prepared to say that he was wrong in his assessment of evidence.

(51) On the application of the maxim rest ipsa loquitor, in..agreement with the learned judge, we think that it was. the duty of the Corporation to give an adequate Explanationn of the cause of the accident. This they have failed to do. The maxim is nomore than rule of evidence. It is based on common sense and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant arc at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant. [Barkway v. SouthWals Transport Co. Ltd. (1950) 1 All E.R. 392.The Third Question

(52) Now we have to assess damages on the basis of loss ofearnings. The measure of damages is the pecuniary loss suffered by the dependants as a result of the death. What the Court has to try to ascertain in these cases is : How much have the widow and the family lost by the father's death In 1858Pollock C.B. adopted the test which has been used ever since.that damages must be calculated 'in reference to a reasonable expectation of pecuniary benefit as of right, or otherwise, from the continuance of the life.' [Franklin v. S.E.Rly. (1858)157 E.R. 448] (22). In a case under the Fatal Accidents Act the Court is concerned with assessing what would have happened if the deceased had lived. When the income of the deceased was derived from his own earnings, it then becomes necessary to consider what, but for the accident which terminated his existence, would have been his reasonable prospects of life, work and remuneration, and also how far these, ifrealised, would have conducted to the benefit of the dependants claiming compensation. The chances, changes and uncertainties of life have also to be evaluated by the judge. The chances of shorter life and longer life are equal either way. All human life is not continuously an enjoyable thing. The. ups and downs of life, its pains and sorrows as well as its joys and pleasures all that make up life's fitful fever' have to be allowed for inthe estimate of compensation.

(53) The deceased was a youngman of 30 when he died.He left. behind a widow, three minor sons aged 8, 5 and 11/2 years and a daughter 11/2 years. His mother was also alive. The learned judge held that the mother was not dependant on thedeceased. Only the widow and the children were has dependants.

(54) The deceased- was a. graduate. He was employed in his 'family concern' at Rs. 650.00 per month as a salesman. The plaintiffs produced the accountant of the company. He said thatthe deceased 'was given a minimum of Rs. 650.00 per month plus 61/2% commission of the net profits of sales which ever was more.' In 1962-63 he was paid Rs. 8000.00 as his remuneration. In 1963-64 he got Rs. 13,394.00 as his remuneration for the period from 1-4-1964 to 18-8-1964 he was paid Rs. 8,218.00as his remuneration. This was the accountant's evidence.

(55) The learned judge accented the deceased's salary asRs. 650.00 per month but did not believe the evidence that he was getting any commission. Taking Rs. 650.00 as net income be deducted Rs. 1501' on account of personal expenses of the deceased. Rs. 5001- per month was fixed by him as the value of the dependency. He adopted the multiplier of 15. The annual dependency was Rs.6000.00Multiplying it by 15 he arrived at the figure of Rs. 90,000.00. This sum be awarded ascompensation. He passed a decree for Rs. 90,000 with interest at 6 per cent from the date of decree till payment and proportionate costs.

(56) We differ, with respect, from the learned judge on themultiplicand. On the multiplier of 15 we agree with him. In out opinion there is no good ground to discard the. evidence ofcommission. The accountant had brought the account books;of the limited company and his statement cannot be disbelieved in toto. The deceased was the bread winner of the family. It would be fair in all the circumstances to estimate the deceased'snet income at Rs. 1000.00 per month. Rs. 200.00 he would have spent on its maintenance. The multiplicand (basic figure) isRs. 800.00 per month. The multiplier in this case should be 15view of the increased life expectancy.

(57) What is the law and practice of multiplier the multiplier was devised because of the uncertainties of the future.Future prospects may be bright or dull. Life may be full of rewards and promotions. Or one may have unemployment and ill-health in store. Who knows. In determining tills multiplier,however, the court will not simply adopt the number of years from trial to retirement age or the age of death, for that would be to make no allowance for the 'general vicissitudes of life' nor for the accelerated receipt of wheat might otherwise have been spread over forty years. A reduction of the multiplier will thereforee be made to effect a discount in respect of those factors.In practice, there is a maximum of about 18 as the multiplier,but there is no automatic relationship between the multiplier andthe plaintiff's age : thus a multiplier of 15 or 16 would be the norm whether the plaintiff was aged 18 or 35, though it wouldbe a steady decline after that age. (Winfield p. 633).

(58) 'THE multiplier of annual loss of dependency is seldom fixed at more than 16 times that annual figure.' (Street on torts p. 218). 'Sixteen years' purchase is near the upper limit'(Salmond p. 585). For a plaintiff in his thirties, having a normal expectation of working life, a multiplier of fourteen or fifteen has often been taken. [Halsbury Laws of England 4th (Hailsham) addition volume 12 page 453]. See also Charles worth on Negligence p. 997-998; Clerk and Lindsell on torts [(15th ed.)(P. 267)].

(59) Our attention was drawn to Satyawati Pathak v. HariRam, : AIR1984Delhi106 . We do not think that a correct Multiplier was applied in that case. The deceased was a teacher.He was 39 at the time of the accident. His total remuneration was Rs. 499.85 per month. The learned judge awardedRs. 1,50,000.00 because the claim was confined to that amount. We do not agree with the learned judge when he says 'I have held above that the deceased would have earned more than rupees six lacs from the date of accident till the age of 75 years and thus he would have provided a sum of rupees 41 lacs to his heirs.The appellants thus may be held entitled to compensation to the extent of 41/2 lacs.' (p. 113-114).

(60) This is against all principles of assessment of damages.The method of assessment is by means of a multiplier andmultiplicand. Fatal Accident cases differ from the normal in that it is not the plaintiff's expectations that are in issue, but rather those of the deceased upon whose death the claim isbased. The question is, 'How long, and to what extent, wouldhe, had he lived, have been likely to provide for the dependent ?'The claim is loss of dependency and not for a solarium as in Scots law. The court has to assess, damages For pecuniary loss,present and prospective, resulting from death. A correctmultiplier has to be found, allowing for future uncertainties and for the factors of accelerated payment. These principles were laid down by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) A.C. 601(24). The Supreme Court has followed it in Subhagwanti's case (supra).

(61) The award should be liberal and not niggardly, the Supreme Court has said. as is observed by the learned judge.But that does not mean that the judges can be charitable atthe expense of the insurance company or the Corporation asis the case here (Williams & Happle p. 123). The judges are human beings and they do feel sympathy for the victim. But surely the idea of a wergild, death .price, or sop to bereaved relatives is primitive. (James and Brown Law of torts 4th ed.p. 405).

(62) The experience of the courts has evolved a system in which a 'multiplier' should be used as the normal and primary method of assessment of pecuniary loss, (Halsbury p. 453).On the amount of Rs. 1,50,000 actually awarded by the learned judge in Satyawati Pathak we say nothing advisedly.

(63) Counsel for the plaintiffs pressed upon us that we adopt multiplier of 25. We cannot do so. The usual multipliers between 14 and 16. Rarely it is 18. Never 25.

(64) On inflation the present English view is that the multiplier should not be increased to take account of inflation.(Salmond p. 586; Street p. 219).

(65) Now if the pecuniary loss of the dependants is Rs. 9600per year and the multiplier is 15 the amount of compensation works out to Rs. 1,44,000.

(66) Much of the calculations necessarily must be in there alms of hypothesis and in that region arithmetic is a good servant but a bad master, since there are so often many imponderables. In every case it is the overall picture that matter sand the court must try to assess as best as it can the loss suffered by each dependant having regard to all the circumstances but Subject to the fact that it is the wood that has to be looked at.and not the individual trees.(Charles worth on Negligencep. 999).

(67) There remains the question of interest.The trial judge passed the decree on 29-5-1970. The admitting bench ordered in appeal on 18-8-1970 that the plaintiffs may withdraw the amount on furbishing security. On 17-9-1970 the Corporation deposited the amount of Rs. 90,000 in Court. The plaintiffs could not furnish security. On 4-6-1974 the court ordered that the) amount be deposited in F.D.R. in bank. Unfortunately this was not done. The reason is not clear from the record.It appears to be a case of mistake of the office. The money remained idle in court. What is to be done in these circumstances The right order to make will be this. The Corporation shall pay interest at 6 per cent per annum on Rs. 1.14,000from the date of suit i.e. 5-8-1966 till 17-9-1970 wher they deposited the amount of Rs. 90,000 in court. They shall pay interest on Rs. 90,000 at 3 per cent per annum from the date of deposit till payment and interest on Rs. 54,000 at 6 per cent from 17-9-1970 till payment. We have allowed interest at3 per cent from date of deposit will payment on Rs. 90,000because the amount could not be deposited in bank in spite of order of court, and, thereforee, we think both parties should suffer the loss equally.

(68) The plaintiffs will be entitled to proportionate costs of the suit and appeal.R.F.A.(OS) 28 of 1970 is allowed to the extent indicatedabove.R.F.A. (OS) 23 of 1970 is dismissed with costs.RFA(OS)28/1970-partly allowed.

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