1. These two first appeals arise out of one and the same judgment delivered by the learned Second Joint Civil Judge (Senior Division) Nadiad on 8-12-1980 where by the original claims in special civil suit No. 272 of 1976 for damages came to be partly decreed against the original defendants 1, 2, 3 and 4 out of which original defendants Nos. 1, 2 and (sic) are the appellants in first appeal No. 637 of 1981 while the plaintiff in his turn is the appellant in cross appeal No.1189 Of 1981 wherein he claims larger damages against the concerned defendants. As the plaintiff as well as contesting parties are appellants in cross appeals, we will refer to the parties as the plaintiff and defendants in the same sequence in which they were arraigned 'before the trial court for the sake of convenience in the later part of this judgment.
2. x x x x
3. I. In order to appreciate the main grievance of the contesting parties in the present appeals, it is necessary to note a few relevant facts leading to the present proceedings. At village Vadeli, in Borsad taluka of Kaira district is situated a Shiv Temple styled as Nityanand Mahadev, temple. In the month of Shravan, Akhand Bhajan (continuous reciting of religious prayers) was being held at the said temple under the auspices of Bhakta Mandal consisting of residents of village Vadeli. For facilitating chanting of Bhajans in the said temple, electric, connection for fixing mike and lights in the temple was felt necessary. In Shravan of S. Y. 2032, such Bhajans were held and for that purpose, light and mike arrangements were made. Electric connection was therefore taken from the nearby electric pump situated on the well of original defendants Nos. 2 and 3. The said electric connection is said to have been taken by defendant No. 4 at the instance of and as per the directions of defendant No. 1 who was the trustee of the temple as well as Sarpanch of the said village. Defendants Nos. 5 and 6 are also alleged to have given suitable directions to defendant No. 4 to install the said connection. In the process, electric connection was taken by means of an iron wire admeasuring about 1200 feet which partly consisted of insulated wire and rest of the wire was open. The said wire through which electric connection was taken up to the temple, passed over various fields, one of the fields being that of the plaintiff. The said connection remained on spot for about 15 days without any untoward incident. However, on the day of the incident, that is on 10-8-1976 at about 10-30 a.m. in the morning, the plaintiff while he was working in his field got electric shock on account of the electricity escaping from the naked wire which was passing over his field. The plaintiff as a result, got electrocuted and suffered grievous injuries. It is in these circumstances that he filed the aforesaid special civil suit in the court of the 2nd Joint Civil Judge, Senior Division, Nadiad for recovering damages to the tune of Rs. 80,000/- from the concerned defendants 1 to 6. He contended that because of the negligence on the part of the concerned defendants in taking electric connection by open and naked wire from the well of defendants Nos. 2 and 3 on the one hand, to the temple on the other, the plaintiff suffered serious injuries because of the escaping of electricity through open wire which was passing over his field. As noted earlier, the learned trial Judge partly decreed the plaintiff's suit to the tune of Rs. 42,000/- with interest and cost against defendants Nos. 1 to 4 and dismissed the suit against defendants Nos. 5 and 6.
4 to 8. x x x x
9. Finding of the learned trial Judge: - The learned trial Judge on appreciation of the aforesaid evidence, came to the conclusion that the plaintiff established his case that defendant No. 4 through defendant No. 1 had taken the electric connection from the switch board of the water pump of the well of defendants Nos. 2 and 3 by means of uncovered iron wire passing over the fields of adjoining neighbours including the field of the plaintiff up to the temple of Nityanand Mahadev and the said act of the defendants was illegal and negligent. It was further found by the learned trial Judge that plaintiff had established his case that on 10-8-1976 he got electrocuted through open wire passing over his field and he got burnt as a result of the said electrocution. It was further held by the learned trial Judge that because of the aforesaid incident, the plaintiff suffered injuries on his hands and leg and he became invalid for the rest of his life. That, he suffered mental shock on account of these injuries. Accordingly, the learned trial Judge held defendants Nos. 1 to 4 to be guilty of tortious act and were held liable to meet the claim for damages. So far as defendants Nos. 5 and 6 were concerned, they were exonerated by the learned trial Judge of the allegations levelled against them by the plaintiff. The learned trial judge, therefore, held that defendants Nos. 1 to 4 only were liable to make good the plaintiff's claim for damages, So far as the quantum of damages was concerned, the learned trial Judge took the view that prior to the incident, the plaintiff was earning Rs. 6400/- per year and on that basis, his future economic loss was computed and adding the medical expenses incurred by the plaintiff as a result of the accidental injuries and hospitalisation and treatment, the learned trial Judge ultimately computed a total amount of Rs. 42,000/- by way of damages to be payable jointly and severally by defendants Nos. 1 to 4 to the plaintiff. So far as issue of interest on the claim was concerned, it was held by the learned trial Judge that the plaintiff was entitled to interest on the awarded amount from the date of the decree till payment at the rate of 6%. He was also awarded proportionate costs. The learned trial Judge negatived the contention taken on behalf of defendants Nos. 1 to 4 that the plaintiff was guilty of contributory negligence and that he could have saved himself from the accidental injuries by taking requisite care. As noted earlier the aforesaid decree of the trial court has resulted into the present two cross appeals.
10 to 12. x x x
13. VII. Proved and/or admitted and/or undisputed facts: - Before we deal with the main disputed questions between the parties, it would be profitable to keep in view certain well established and/or un, disputed facts which emerge on the record of the present proceedings. The plaintiff who is an agriculturist was aged 33 years on the day of the incident. He got injured on both his hands and right thigh as a result of electric shock which he received on account of escaping of electric current from the naked iron wire which was passing overhead above his field and through which wire electric current was taken from the electric motor near the Bamanwala well up to the temple which was at a distance of 1200 feet. As a result of the electric shock, the plaintiff had to be hospitalised for a couple of months and was left with severe after-effects of permanent nature, We shall deal with the nature of injuries received by the plaintiff in greater details later on when we come to the question of computation of damages, For the present, it is sufficient to note that the plaintiff undisputedly received severe electric shock on the date of the incident i.e, on 10-8-1976 while he was working and carrying on agricultural operations in his field. That shock was received by him and he got electrocuted on account of the fact that electric current escaped from the overhead open iron wire. The aforesaid electric connection was taken about 13 days prior to the incident in the month of Shravan of S. Y, 2032 i.e. 1976 A. D. for the purpose of having continuous religious prayers or Bhajans at the Nityanand temple. Defendant No. 1 was admittedly a trustee of the properties of the said temple. He was also the sitting Sarpanch of the village and was working as such for last number of years. At village Vadeli, a Bhakta Mandal was constituted consisting of residents of that village who used to arrange for Bhajans in the month of every Shravan. Defendant No. 4 who belong ed to a nearby village and who was serving as a helper in electricity board was called by the persons forming the Bhakta Mandal for installing the electric connection so that electric power could be taken up to the temple for facilitating light and mike arrangements for the purpose of continuous Bhajans. It may be opted that at the stage of written statement, defendant No. 4 adopted a posture of total denial of the plaintiffs case. But at the stage of trial, he admitted that he was instrumental in taking the connection from Bamanwala well up to Nityanand Mahadev temple for the purpose of having electric light and mike facilities at the temple and that was done 15 days. prior to the date of the incident. At present, we do not go into the question about the role played by defendants Nos. 1, 2 and 3 in getting electric connection installed through defendant No. 4 as a bitter controversy ranges round that question, but the fact remains that a loose electric line was installed by defendant No. 4 by way of overhead line up to a distance of 1200' from Bamanwata well to Nityanand temple arid a major part of the said overhead line i. e., about We feet consisted of open iron wire. It is also a well established fact that electric current which was taken through the aforesaid temporary connection was a high voltage current as the Bazaanwala well electric connection was to be utilised for agricultural operations for which heavy voltage of electric current was required. Accordingly, then was electric connection of 20 H. P. at the electric motor pump installed on the said well and it is that high voltage electric current which escaped from the open iron wire which was passing over the plaiatiffs field and injured the plaintiff in the process. It is also a well established fact that electric connection was tapped by defendant No. 4 from the meter installed on Bamanwala well with out the permission of the Gujarat Electricity Board. It was an illegal and unauthorised act and for that purpose. - defendants Nos. 2 and 3 were even fined by the Gujarat Electricity Board under the relevant provisions of the Indian Elecricity Act. -1910.
14 to 16. x x x
17. IX. Liability of defendant No. 1: Before we proceed to deal with this question, it will be necessary for us to deal with one anciliary submission made by Mr. Shah, learned Advocate for the plaintiff regarding the proof of Ex. 37/7. We have already mentioned earlier that with the list Ex. 37 at Item 7 was produced by the plaintiff a certified copy of the police statement of defendant No. 4. The said statement was recorded by the investigating officer in the crime can pertaining to the incident in question. When this document was shown to the witness in his cross-examinations, at the instance of the plaintiffs advocate, the witness in terms stated that he had given such a statement and what was stated therein was true. Taking a clue from this answer of the witness (defendant No. 4) Mr. Shah argued for the plaintiff that what was left out by the learned trial Judge was the giving of regular exhibit number to this document which was otherwise legally proved on record and as the learned trial Judge had missed to perform this formal act, we may give exhibit number to this document and may treat it as part of the record. To this submission of Mr. Shah, Mr. M. R. Patek learned Advocate for the contesting defendants joined issue and submitted that the plaintiff had not established his cage regarding production of secondary evidence by way of Ex 37/7 and hence this document was not admissible in evidence as secondary evidence of the original police statement of defendant No. 4. Mr. Patel further contended that before Ex. 37/7 can go in evidence as secondary evidence of the original, the plaintiff was required to show that the original was lost or destroyed or was not available for the reasons beyond his control. Mr. Patel further contended that even in that eventuality the plaintiff had to show that Ex. 37/7 was a true and proper copy of the original as required by the relevant provisions of the Evidence Act. Mr. Shah rejoined to the aforesaid argument of Mr. Patel by submitting that Ex. 37/7 was a certified copy of the police statement of witness-defendant No. 4 and as the police statement was a public document, certified copy was legally admissible in evidence as secondary evidence. In view of the aforesaid rival contentions of the learned Advocates of the respective parties, it is necessary for us to consider whether Ex. 37/7 can legally be admitted in evidence as secondary evidence of the original document. It must be noted at the outset that the plaintiff for the reasons best known to him has not thought it fit to examine the investigation officer who recorded the statement of the witness defendant NO. 4 during the course of investigation. A certified copy of the said statement was sought to be produced at Ex. 37/7. It is true that the contesting defendants have no where contended in the trial court that secondary evidence of the police statement of the witness cannot go in evidence without establishing the proof of the loss of the original. It is equally true that no endorsement was made one way or the other below Ex. 37 by the learned Advocates of the contesting defendants. However, it is now well settled that the party by its own conduct may waive the objection about the production of secondary evidence by not raising the relevant contention at the time when the secondary evidence of the original is sought to be tendered before the trial court. There is nothing on record to show that the contesting defendants had at any stage submitted that Ex. 37/7 cannot be tendered by way of secondary evidence. Hence, they must be treated to have waived their objection about the production of secondary evidence of the original police statement of defendant No. 4. Consequently, the plaintiff is not required to prove the loss, destruction or, unavailability of the original police statement. However, that does not help matters for the plaintiff. Even assuming that Ex. 37/7 can go in as secondary evidence, it must be further shown by the plaintiff that it represents a legally permissible secondary evidence. It is true that Ex. 37/7 is a certified copy of the statement of the witness before the police during the course of the investigation. However, before it can go in as secondary evidence, it has to be further shown by the plaintiff that it is a properly prepared copy of the original. It is at this stage that Mr. Shah contended that because it was a certified copy of a public document, no further question in that connection survived for consideration. In order to resolve the controversy whether Ex 37/7 is a copy of a public document, it must be first ascertained as to whether a statement given before the police during the course of investigation can be treated as a public document or not. A few relevant sections of the Evidence Act 1872 are required to be noted in this connection. Section 61 of the Act is placed in Chapter V which deals with production of evidence. It provides that the contents of documents may be proved either by primary or by secondary evidence. Section 62 deals with production of primary evidence which deals with original document itself. Section 63 is the definition section dealing with different. types of documents which can go in as secondary evidence. Sub-section (1) thereof provides that certified copes given under the provisions of the Act. can be received as secondary evidence. Ex. 37/7 can go in as secondary evidence under sub-section (1) of S. 63 provided it is shown that it is a certified copy given under the provisions of the Evidence Act. Mr. Shah, in this connection, heavily relied upon S. 74 read with S. 76 and submitted that the aforesaid are the express provisions contained in the Evidence Act itself which enable certified copy to be produced as secondary evidence. A combined reading of Ss. 74 and 76 indicates that before a public officer can be required to give a certified copy of the public document, it must be shown that the concerned document is a document forming the acts or records of the acts of the sovereign authority, of officials bodies and tribunals and of public officers, legislative, judicial and executive of any part of India or of the Commonwealth or of a foreign country or a public record kept in any State of private documents. It cannot be gain said that the investigating officer was acting as a public officer in which capacity recorded the statement of the concerned witness and the certified copy is issued by the P.S.I. Thus, certified copy Ex. 37/7 has been issued by a public officer. However, before it can go in evidence as secondary evidence of the original, it must be shown that it was a certified copy of a public document, which was issued by the concerned public officer. Once this is established, certified copy itself would become admissible under S. 63(1) as it would be a certified copy even under the relevant provisions of the Evidence Act. But unfortunately for the Plaintiff, the legal position appears to be- unhelpful in this connection. Ex. 37/7 is a certified copy of the police statement given by the witness before the investigating officer and which was recorded by him during the course of investigation. Such a police statement is held not to be a public document within the meaning of the relevant provisions of the Evidence Act. As laid down by a Division Bench of the Calcutta , High Court in Sunil Kumar v. State of West Bengal, AIR 1936 Cal 431, a statement recorded by the police officer in the course of investigation is not a public document within the meaning of Section 74 of the Evidence Act and the question of granting copy thereof does not arise. For arriving at the said conclusion, Sen, J. speaking for the Calcutta High Court in the aforesaid case heavily leaned on an earlier decision of the Calcutta High Court in Isab Mandal v. Queen Empress, (1901) ILR 28 Cal 348. In the latter decision rendered by the Calcutta High Court, the Division Bench had an occasion to consider whether written statement recorded by the police officer during police investigation was a public document. Stevens, J. speaking for the Division Bench in the above case has made the following pertinent observations: -
'On the first point, there is nothing in S. 162 which limits the prohibition of the use of such document as evidence to the matter of the charge, which is actually under investigation by the police officer when the statement is made and, to our mind, it extends also to the use of such a document against the person . who is alleged to have made the statement. We think that it was intended to recognise the danger of placing implicit confidence in a record more or less imperfectly made by a police officer who would not necessarily be competent to make an exactly correct record of the statement of a witness with due regard to the provisions of the law of evidence and who might, possibly in some cases, not be entirely free from an inclination (perhaps unconscious) to take the statement as being somewhat more definite and precise in a particular direction than the witness had intended it to be. We are unable to see that S, 35 of the Evidence Act has any application in the matter, for we do not consider that a document of this nature, which moreover is not necessarily a part of the official duty of a police officer to prepare at all comes within the description of a 'record' within the meaning of that section, nor, even if it did are the provisions of the section capable of being applied, so as to make the document to be used in evidence in the manner in which the Deputy Magistrate has used it'.
We are in respectful agreement with the aforesaid view expressed by the Division Bench of the Calcutta High Court. Once that conclusion is reached that Ex. 37/7 is not a public document, its certified copy cannot go in as secondary evidence under S. 63(1) of the Evidence Act. Under these circumstances, Mr. Shah had to fall back upon other provisions of Section 63 which lay down, that copies made from the original by mechanical process or copies compared with such copies can go in as secondary evidence of the original. However, sub-section (2) of S. 63 contemplating the aforesaid type of the secondary evidence also cannot help the plaintiff in the present case as defendant NO. 4 has nowhere stated in his evidence that Ex. 37/7 was a copy made from the original by mechanical process or was compared with such a copy. In fact, a mere look at the said document shows that it is a hand-written copy of the original issued as true copy under the signature of the concerned officer. Consequently, sub-section (2) of S. 63 is out of picture. Then, remains only sub-section (3) of S. 63 which, if at all, can be pressed in service by Mr. Shah. The said provision lays down that copies made from or compared with the original can go in as secondary evidence of original. Defendant No. 4 nowhere states in his evidence that document Ex. 37/7 is a copy made from the original or was compared with the original. In fact, he has stated nothing about the said requirement. Consequently, Ex. 37/7 cannot go in as secondary evidence of the original statement under sub-9. (3) of S. 63. No other sub-section of S. 63 would be pressed in service by Mr. Shah. Under these circumstances, it must be held that Ex. 3717 is not legally admissible as secondary evidence of the original. As we have indicated above, for the purpose of the present discussion, we have assumed that the plaintiff has made out a case for leading secondary evidence of the original and that initially all the conditions for leading secondary evidence as provided by Section 65 are dispensed with as the contesting defendants have nowhere contended before the trial court that there is no occasion for the plaintiff to lead secondary evidence of the original of document Ex. 3.7/7 and the contesting defendants may be treated to have waived that objection. Thus, the plaintiff at the highest may be absolved from the requirement of due compliance with the provisions of S. 65 which provides that secondary evidence may be given of the existence, condition or contents of a document in certain cases. However, it still remains the bounden duty of the plaintiff to show how document Ex. 3717 can go in evidence as a legally permissible secondary evidence, even on the assumption that case for leading secondary evidence has been made out by the plaintiff. As we have shown above, Ex. 37/7 cannot be received as secondary evidence under S. 63(1) nor is there anything on record to show that Ex. 37/7 can go in evidence as secondary evidence under Ss. 63(2) or 63(3) of the Evidence Act. Consequently, the said document was rightly not exhibited by the learned trial Judge as legally admissible evidence on record. It is not as if that by mere inadvertent error, the learned trial Judge missed to exhibit the document which was otherwise legally proved on record and was legally admissible on record. We are, therefore, not in a position to agree with the submission of Mr. Shah that the documents Ex. 37/7 should be exhibited as a properly proved and admitted document on record and should be taken into consideration for deciding the case.
18 to 28. x x x
29. X. Legal position regarding liability Of defendant No. 1 for the acts of defendant No. 4:- In Winfield and Jolowiez on Tort, 1lth edition, by, Sweet and Maxwell, 1979 edition, liability of the main contracting party for the work of an independent contractor has been discussed at page 571. A distinction has been drawn between an employer and his. independent contractor. It has been stated therein: -
'In principle an employer is not responsible for the torts of his independent contractor. It is no exception to say that he is liable (a) for torts authorised or ratified by him or where the contractor is employed to do an illegal act, for here they are both liable as joint tort-feasors, or (b) for his own negligence.. (c) cases of strict liability are sometimes treated as exceptions ........
So far as cases of strict liability are concerned, at page 573, it has been mentioned under the caption 'Other cases of strict liability' as under: -
'The rule in Rylands v. Fletcher (1868LR 3 HL 330), damage by fire and, in some cases, nuisance, impose a liability for the default of an independent contractor. Analogous to these instances is a class of 'extra hazardous acts, that is, acts which, in their very nature, involve in the eye of the law special danger to others such as acts causing fire and explosion where an employer cannot escape liability by delegating their performance to an independent contractor. He has not merely a duty to take care, but a duty to provide that care is taken, where implements or substances dangerous in themselves, such as flame bearing instruments or explosives are necessarily incidental to the work to be performed'. It is, therefore, well settled that for the tortious act of an independent contractor, his employer would be responsible at least in three categories of cases; (i) where the tortious act of the independent contractor is authorised or ratified by the employer (ii) where the independent contractor is employed to do an illegal act (iii) or where strict liability of the employer at common law arises on account of extra hazardous work undertaken by the independent contractor. On the facts of the present case, even assuming that defendant No. 4 was an independent contractor whose services were requisitioned by defendant No. 1, the latter would remain liable for the tortious act of defendant No. 4 as the case would squarely fall within the categories Nos. 2 and 3 as indicated above. In the present case, the very act of diverting electric power from the connection strictly meant for agricultural purpose, as installed at Bamanwala well, was in itself an illegal and impermissible act. As deposed to by witness Manubhai Patel mex. 73, electric power ,given for running agricultural operations cannot be utilised for any other purpose. Still, electricity was tried to be diverted to other use viz. for having light and mike in the temple. If defendant No. 4 was instructed by defendant No. 1 to carry out such an illegal act, then assuming that defendant No. 4 was an independent contractor, defendant No. 1 would remain liable if any tortuous liability arose out of such an illegal act on the part of defendant No. 4.
It has to be appreciated that consumers of high tension electric power were defendants Nos. 2 and 3 to whom the GEB had granted electric connection at their well for drawing well water with the help of pump for utilizing the said water for agricultural operation. Such energy could not have been diverted to any other use. Defendant No. 1 by employing defendant No. 4 managed to see that energy was diverted to the domestic use by means of having light and electric connection in the temple whose management was being done by him as the main trustee. It is interesting to refer to some of the statutory provisions of the Indian Electricity Act, 1910 in this connection.
Section 39 says-
'Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code, and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction'.
Section 40 provides-
'Whoever maliciously causes energy to be wasted or diverted, or, with. intent to cut off the supplying of energy, cuts, or injures, or attempts to cut or injure, and electric supply line or works, shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees. or with both'.
Under Section 44, a penalty is provided for interference with meters or licensee's works and for improper use of energy.
The said section reads: -
(a) connects any meter referred to in Section 26, sub-section (1) or any meter, indicator or apparatus referred to in Section 26 sub-section (7), with any electric supply line through which energy is supplied by a licensee or disconnects the same from any such electric supply line, or
(b) lays, or causes to be laid or connects up any works for the purpose of communicating with any other works belonging to a licensee, or
(c) maliciously injures any meter referred to in Section 26 sub-section (1), or any meter, indicator or apparatus referred to in Section 26, sub-section (7), or wilfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duty registering; or
(d) improperly uses the energy of a licensee: shall be punishable with fine which may extend to five hundred rupees and in the case of continuing offence, with a daily fine which may extend to fifty rupees; and if it is proved that any artificial means exist by making such connection as is referred to in clause (a), or such communication as is referred to in clause (b) or for causing such alteration or prevention as is referred to in clause (c), or for facilitating such improper use as is referred to in clause (d), and that the meter indicator or apparatus is under the custody or control of the consumer, whether it is his property or not it shall be presumed, until the contrary is proved, that such connection, communication, alteration, prevention or improper use as the case may be, has been knowingly and wilfully caused by such consumer. The aforesaid statutory provisions clearly indicate that if unauthorised user is made of electricity supplied to the consumer by the licensee, the said act is to be treated as an illegal act. It is true that we are not dirtectly concerned with criminal liability of the concerned delinquent and we express no opinion thereon. However, it is sufficient for the present purpose to note that act of defendant No. 1 in employing defendant No. 4 to divert electric energy from the wel1 of defendants - Nos. 2 and 3 even with their consent to which aspect we will turn letter on, without informing the G.E.B. was an illegal act and for that purpose, if defendant No. 1 requisitioned the services of defendant No. 4 as an independent contractor, the tortious liability incurred by defendant No. 4 can certainly be foisted also on the shoulders of defendant No. 1 as an employer of such independent contractor for such an illegal act, as seen from the aforesaid observations in Winfield and Jolowicz on Tort, which observations in their turn are based on various judgments mentioned in the footnote. We make it clear that our present observations regarding liabitity of defendant No. 1 for the act of defendant No.4 are strictly confined to determination of the question of tortious liability and we have nothing to say about the statutory liability and penalty, if any, which might have been incurred by the concerned defendants in the light of the aforesaid provisions of the Indian Elecity Act.
30. Even apart from the aforesaid act of an independent contractor viz. defendant No. 4 who committed an illegal act at the behest of defendant No. 1 and hence defendant No. 1 became liable to bear -the burden of tortious liability along with defendant No. 4, further aspect of the case is that the act of an independent contractor would also make defendant No. 1 liable and answerable on the additional ground that defendant NO. 4 had carried out the work assigned to him in a palpably hazardous and dangerous manner and hence the facts of the present case would also fall in the class of cases contemplated by category No. 3 as stated earlier. The evidence of defendant No. 4 as supported by independent evidence of other witnesses, viz. plaintiff, Ex. 33, Bhikhabhai Khodibhai, Ex. 59, . v. Lankin Brothers (London's Commercial Photographers) Ltd. (1934), 1 KB 191. The facts of that case were that the plaintiffs who were specialists in acoustic work, had installed a sound reproduction apparatus at a cinematograph theatre owned by one Deaman Picture Houses Ltd. The plaintiffs then obtained permission from the owners to have photographs taken of the interior of the theatre, for their own business Purposes, and they employed the defendants to take the photographs. These defendants were independent contractors. They first took a photograph without flashlight but as it was not satisfactory, they took photographs of the interior with flashlight which, according to their evidence, was the usual method of photographing interiors. The use of flashlight involved the ignition of a certain amount of magnesium powder in a metal tray or holder held above the lens. That powder on being ignited flared up and developed an intense heat. and hence was dangerous if brought near fabrics or other inflammable material, so that not only must precautions be taken against draughts, but there must be no inflammable material too close when the Rash was fired. At the time of the incident, the operator took the photograph by placing the camera on the stage in the space between the footlights and the curtain and ignited the magnesium powder at a distance of not more than four feet from the curtain. The result was that there was fire resulting in damage to the theatre. The cinema company which had suffered on account of the fire sought to recover damages from the plaintiff. The plaintiffs, acting under advice, paid the cinema company the amount claimed as cost of repairing the damage caused by the fire, and claimed to recover the same amount from the defendants who were independent contractors. The defence of the defendants was that the plaintiffs were not liable to pay damages to the cinema company and the act of the defendants was that of independent contractors and if any damage was caused to the company, the plaintiff was nowhere in the picture for meeting the claim for damages and that as the plaintiffs had voluntarily paid the damages, they cannot get reimbursement from the defendants. The trial court accepted the said defence and dismissed the plaintiffs' action. First appeal was allowed by the Court of Appeal in England. Slesser, L. J. speaking for the Appellate Court made the following pertinent observations while allowing the appeal of, the appellants against the defendants; the independent contractors whom the plaintiffs had appointed for taking photographs: -
'It is well established as a general rule of English law that an employer is not liable for the acts of his independent contractor in the same way as he is for the acts of his servants or agents, even though these acts are done in carrying out the work for his benefit under the con-tract. The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent, but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility. Attaching on him of seeing that duty performed by delegating it to a contactor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it. But there are exceptions to this ride: it may be that, as in other cases of vicarious liability, the tendency of the English law, as it has developed since the dates of the cases just mentioned, has been rather to enlarge the scope of these exceptions but the development has followed certain broad lines. It is clear that the ultimate employer is not responsible for the acts of an independent contractor merely because what is to be done will involve danger to others if negligently done. The incidence of this liability is Limited to certain defined classes and for the purpose of this case. It is only necessary to consider that part of this rule of liability which has reference to extra-hazardous acts, that is, acts which, in their very nature, involve in the eyes of the-law special danger to others; of such acts the causing of fire and explosion are obvious and established instances.'
31. Slesser, L. J. after referring to various decisions. Further held as under: _
'The decision in this case in our judgment, does not depend merely on the fact that the defendants were doing work on the highway, but primarily on its dangerous character, which imposes on the ultimate employers an obligation to take special precautions, and they cannot delegate this obligation by having the work carries out by independent contractors. This is equally true when the work being done by the independent contractor for the ultimate employer is being done on another person's premises.'
It was further held ---
'To take the photograph in the cinema with a flashlight was on the evidence stated above, a dangerous operation in its intrinsic nature, involving the creation of fire and explosion on another persons premises, that is in the cinema, the property of the cinema company. The appellants, in procuring this work to be performed by their contractors, the respondents, assumed an obligation to the cinema company which was, as we think, absolute, but which was at least an obligation to use reasonable precautions, to see that no damage resulted to the cinema company from these dangerous operations; that obligation they could not delegate by employing the respondents as independent contractors, but they were liable in this regard for the respondents, acts. For the damage actually caused the appellants were accordingly liable in law to the cinema company, and are entitled to claim and recover from the respondents damages for their breach of contract, or negligence in performing their contract to take the photographs.' The aforesaid decision of the Court of Appeal in England fully supports the case of the plaintiffs that even assuming defendant No. 1 had employed defendant No. 4 who was an independent contractor, as the defendant No. 4 had taken M a dangerous and extra-hazardous operation by installing an. open iron wire over the fields of different persons including the plaintiff and through which high voltage electric current was to pass, defendant No. 1 would remain liable to the victim of the consequences of such a hazardous act even though that might have been done by an independent contractor like defendant No. 4. We must make' it clear that this is the alternative ground on which we are foisting liability on defendant No. 1. But as we have already held earlier, in our view, defendant No. 4 was not in the strict sense, an independent contractor employed by defendant No. 1, as it was defendant No. 1 who had to take electric connection by utilising open iron wire so that Bhajans could be held in time as deposed to by defendant No. 4. Thus, the manner of taking electric connection was also directed by defendant No. 1 and hence defendant No. 4 was a constituted simple agent or employee of defendant No. 1 in the matter of taking electric connection In question, and for whose tortious act, the employer i.e. defendant No. 1 would remain vicariously liable. However, even if another view is taken and even if defendant No. 4 is treated as an independent contractor, even then, defendant No. 1 would remain liable for the negligent act of defendant No. 4 on the two grounds mentioned earlier. The aforesaid decision of the Court of Appeal in England fully supports the view, which we are inclined to take even on this alternative ground.
32 and 33. x. x. x x
34. (b) Legal position regarding liability of defendants Nos. 2 and 3: _ We may at this stage note one submission of Mr. Patel learned Advocate for defendants Nos. 2 and 3. It was submitted by Mr. Patel that defendants Nos. 2 and 3 had no privity of contract with defendant No. 4. That defendant No. 4 of his own and even at the behest, of defendant No. 1, had taken electric connection from their well up to the temple but they had no control over the said action of defendant No. 4. That he was a helper in G. E. R He, therefore, knew his job well. Defendants Nos. 2 and 3 could not have imagined that defendant No. 4 would do his work in such a rash and negligent manner so that he would tap the energy from the motor by means of an open iron wire and consequently, defendants Nos. 2 and 3 in no case can be held liable for the tortious injuries suffered by the plaintiff on account of the escaping of electric current from the open wire. The aforesaid submission would have been justified if the accident had taken place within a short span of I or 2 days after the beginning of the Shravan month. Then, it could have been urged with greater emphasis that the installation was done without knowledge of defendants Nos. 2 and 3 and that open wire was utilised. But the wry fact that the installation had continued since last 15 days prior to the date of the incident, it is impossible to believe that defendants Nos. 2 and 3 would not be inquisitive enough to find out as to what type of wire was utilised by defendant No. 4. The panchanama, Ex. 65 shows that open wire was utilised right from the meter of defendants Nos. 2 and 3 up to a long distance while at the' temple end, insulated wire was used as seen from the evidence of defendant No. 4. Consequently, it must be held that defendants Nos. 2 and 3 also knew that defendant No. 4 had taken connection in a hazardous manner. At least that knowledge must have, dawned upon them within the span of 15 days which elapsed between installation of the connection and the date of the incident. Still they were totally negligent and careless and never persisted or never insisted on disconnection of the electric power from -their meter till an insulated wire was replaced. It is further interesting to note that even a small boy named Punambhai could run on spot and stop the mischief of further escaping of electric energy by switching off the current from the main meter installed in the meter room, on the well of defendants Nos. 2 and 3. If defendants Nos. 2 and 3 would have been careful enough, they could have certainly refused to supply electric current for continuous Bhajans at the temple till proper wire was utilised by defendant No. 4 or at least replaced by him after installation was made and Bhajans were permitted to start by the first day of Shravan month. But they did nothing of the kind. It is impossible to believe that they would not care to visit their own we 11 for 15 days in the month of Shravan on the excuse that in rainy season, they never used to go to the field. That version of defendant No. 2 before the trial court has to be stated to be rejected. It is totally improbable. Therefore, an inescapable inference arises on the evidence of this case that defendants Nos. 2 and 3 willingly and of their own accord permitted defendant No. 4 to take electric energy from their own meter for a non-agricultural purpose contrary to the provisions of the Indian Electricity Act. Not only they permitted such illegal act to be done but they al lowed it to be done in a rash and negligent manner by defendant No. 4 and stood by the same for all 15 days within which time they must have known the health hazards which the temporary electric connection had posed to the adjoining occupiers who were cultivating the intervening fields and who were likely to be injured on account of the escape of electric current of high voltage from the loose overhanging open electric iron wire. It is now time for us to consider the nature of liability with~ which defendants Nos. 2 and 3 can be saddled in the present case.
35. It is now well settled over more than a century from the time the famous case of Rylands v. Pletcher came to be decided by the House of Loords in England in 1868 that where the owner of the land without wilfulness or negligence, uses his land in the ordinary manner of its use, though mischief should truly be occasioned to his neighbours, he will not be liable in damages, That, if he brings upon his land anything which would not naturally come upon it, and which is in itself dangerous and may become mischievous if not kept under proper control, though in so doing he may act without personal wilfulness or negligence, he will be liable in damages for any mischief thereby occasioned. In the aforesaid case, reported in (1868 LR 3 HL 330, the facts were that 'B' a mill owner employed independent contractors who were apparently competent to construct a reservoir on his land to provide water for his mill. In the course of the work, the contractors came upon some old shafts and passages on B's land. They communicated with the mines of A, a neighbour of 'B', although no one suspected this, for the shafts appeared to be filled with earth. The contractors did not block them up and when the reservoir was filled the water from it burst through the old shafts and flooded A's mines. It was found as a fact that B had not been negligent although the contractors had been. 'A' sued 'B' and the House of Lord6c held 'B' liable.
36. In 11th Edition of Winfield and Jolowicz on Tort by Sweet and Maxwell to which we have made a reference earlier a chapter is devoted to strict liability pertaining to the rule in Rylands v. Fletcher. The observations of Blackburn, J. at the House of Lords in this case of Rylands v. Fletcher ((1968) LR 3 HL 330) has been reproduced at page 398 of the work as under: -
'We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keep 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 13'the natural consequence of its escape.'
At page 404, it has been observed. -
'The rule as originally formulated refers to a person who for ' us own purposes brings on to his lands and collects and keeps there anything likely to do mischief it it escapes'.
At page 412, under the caption 'Act of Stranger', it has been observed-
'If the escape was caused by the unforeseeable act of a stranger, the rule does not apply.'
At page 413, it has been observed-
'While, it is clear that a trespasser is 4 stranger for this purpose, we can only conjecture who else is included in the term. For the defaults of his servants in the course of their employment, the occupier is of course liable, he is also liable for the negligence of an independent contractor unless it is, entirely collateral; for the folly of a lawful visitor in tampering with a potentially dangerous machine provided -for his amusement.'
'Moreover, it has been argued that he ought to be responsible for guests or licensees on his land. But perhaps a distinction, ought to be taken here. it would be harsh to hold a person liable for the act of every casual visitor who has bare permission to enter his land and of whose propensities to avail he may know nothing e.g. an afternoon caller who leaves the garden gate open or a tramp who asks for a can of water and leaves the tap on. Possibly the test is, 'can it be inferred from the facts of the particular case that the occupier had such control over the licensee or over the circumstances which made his act possible that he ought to have prevented it? If so, the occupier is liable, otherwise not.'
At page 414, it has been observed as under--
'It is evident from the Northwestern Utilities Case (1936 AC 108) that once the defendant proves the act of, a stranger, the point is reached when - a claim based on the rule' in Rylands v. Fletcher merges into a claim in negligence, so that a plaintiff who cannot prove fault will not succeed. The original basis of liability under the rule was re-. Possibility for the creation of an exceptional risk which happened to ripen into injury. By means of the defence of act of a stranger the basis of the liability is shifted to responsibility for culpable failure to control the risk.'
37. In this connection, we may also usefully refer to the observations found in Salmond on the Law of Torts, 7th Edition (1977) by R. F.'V. Heuston, at page 328 of the said volume, while discussing the third exception to the rule in Rylands's ' case (1868) LR 3 HL 330) (supra), it has been observed as under: -
'It does not clearly appear, however who~ is a stranger within the meaning Of this rule. The term Certainly includes a trespasser, and also any person who6 without entering on the defendant's premises at all, wrongfully and without the defendant's authority causes the escape, of dangerous things from Arose premises,'
38. We may also profitably refer to the observations found in Charlesworth on -Negligence, 6th edition by R. A, Percy, (1977 edition). At page 303. while, considering the defence to the rule enunciated in Rylands's case (supra) the author has considered the liability of the occupier of the land for the independent act of a third party. It has been observed-
'The rule in Rylands v. Fletcher doos not apply when the damage is due to the independent act of a third party, which could not reasonably have been foreseen and guarded against.'
At page 304, meaning of 'third party', is discussed and it' has been observed as under: -
'There is no authority defining the meaning of 'third party' or 'stranger; in this connection. It is clear that the owner is liable for the acts of his servants and agents in the course of their employment. He is also. liable for the acts of independent contractors and of any other persons whom he authorises to interfere with the dangerous thing.'
At page 306, it has been further observed: -
'Even if' the damage has been caused by the act of a third party, the owner of the dangerous thing is liable if there be negligence on his part. Negligence in this connection means that the act of a stronger is one which the owner ought reasonably to have foreseen and guarded against, but has failed to do so.'
In chapter 9 of the same work is discussed the principle underlying the decision in Rylands's case ((1868) LR 3 HL 330) (supra). While discussing the principle of liability pertaining to dangerous things, it has been observed: -
'The duty imposed on those who control or interfere with dangerous things goes beyond a mere duty to take care. Before considering the extent of the duty an attempt will be made to ascertain the things to which it applies, in other words, what is the legal meaning of the expression 'dangerous things'.
It has been further observed-
'Most things are sources of danger it they are used negligently, such as a stick, a loose slate on the roof of a building and an unlighted heap of stones in the highway.'
At page 352, one of the varieties of danger6us things to shown to be electricity. It has been observed on placing reliance on, a judgment given by the English courts as under: -
'Electricity, is a dangerous thing and consequently the duty of those who own or control it is that laid down in Rylands v. Fletcher ((1868) LR 3 HL 330). The liability for electricity is precisely the same as for gas.
At page 358, while discussing about installing electrical equipment,' it has been observed: -
'Proof that an installation has to come within a special category of things inherently dangerous, before an injured person can have a remedy, is no longer necessary since the decision of the House of Lords in A. C. Billings and Sons v. Riden. (1958) AC 340, hence persons installing or disconnecting electrical equipment are only liable for negligence, but a high degree of care is required. Their liability is the same as that of persons who install or disconnect gas.'
39. In Clerk and Lindsell on Torts, 14th Edition, 1975, similar observations are found, In Chapter 19, dealing with Rylands v. Fletcher (0868) LR 3 HL 330) liability, exceptions. To the rule of strict liability have been discussed at page 866, wherein independent act of third party has been dealt with as under: -
'In the absence of such a defence the rule would make-a householder liable for the consequences of an explosion caused by a burglar, breaking into his house during the night and leaving a gas tap open. If the defendant established that the escape was caused by the act of a third party, he avoids liability, unless the plaintiff can go on to show that the act was of the kind which the defendant could reasonably have foreseen and guarded against.'
While dealing with the topic of liability of occupier for the acts of his licensees, it has been observed at page 884: _
'An occupier of land who authorises, expressly or by implication persons to enter on his land for the purposes of carrying on a dangerous operation which involves or may involve the creation of fire or of an act likely to cause fire on the land is liable for the damage caused to third parties. On the other hand, he in not liable for fire caused by a dangerou3 operation carried out by persons lawfully on his land purely for their own purposes and outside any authority given to them. -
The topic regarding electricity being a dangerous object has been dealt with at page 889 and it has been observed as under: _
'Liability for electricity is the same as for gas. It has been decided that the principle of Rylands v. Fletcher ((1868) LR 3 HL 330) applies to electricity, and consequently the owners of wires or cables through which an electric current is passing must keep them innocuous at their peril.'
The aforesaid observations in the standard works on Tort and Negligence based as they are on various decided cases of English courts leave no room for doubt that storing of electricity on one's premises amounts to storing of a dangerous object. Defendants Nos. 2 and 3 in the present case stored heavy voltage electricity for agricultural purposes. They were given this facility by the GEB for that purpose. They allowed that electricity to escape from their premises by permitting defendant No. 4 to enter upon their premises and to instal electric connection through open iron wire and to take it up to the temple. Thus, not only defendants Nos. 2 and 3 stored electric energy being a dangerous object at their premises, but they allowed it to escape in a dangerous, rash and negligent manner. They themselves were so negligent and careless that they never bothered about the safety of persons who might come in contact with such live electric wire through which electric current was to pass. Defendant No. 4 was certainly their licensee. But for their permission, he could not have dared to enter the meter room situated on the well of defendants Nos. 2 and 3
and he could not have openly taken tapping electric connection up to the temple. Therefore, the licensee-defendant No. 4, even though a third party, acted in a rash and negligent manner in taking the electric connection through open iron, wire of 800'. Defendants Nos. 2 and 3 were in a position to stop the mischief by switching off their electric current till sufficient safety measures were taken, by replacement of insulated wire for the open iron wire, by defendant No. 4 and for that matter by, defendant No. 1. But they were totally oblivious of their duty when they went on permitting such a dangerous object at. high voltage to escape from their premises. They were therefore, equally guilty for their own negligent act in permitting their licensee defendant No. 4 to take tapping connection of electric energy from their premises in a rash and negligent manner and without taking proper precautions and safeguards for the safety of innocent persons like the plaintiff. Defendants Nos. 2 and 3 were, therefore. Equally liable to answer the claim of the Plaintilff along with. defendants Nos. 4 and 1.
40. It is now time for us to have a look at the ratios of decided cases of English courts on the basis of which the observations in the standard works as seen above, have been made. In National Telephone Company v. Baker, (1893) 2 Ch 186, the Court of Chancery Division made the following pertinent observations regarding application of rule in Rylands v. Fletcher ( (1868) LR 3 JiL 330) (supra) to cases pertaining to discharge of electric current: -
'But after reflecting much on the novelty of the case, on the argument addressed to me, and on the peculiarity of an electric current as distinguished from every other power, I fail to see any reason why the principle should not be applied to it. I cannot see my way to hold that a man who has created, or, if that be inaccurate, called into 9pecial existence, an electric current for his own purposes, and who discharges it into the earth beyond his control, is not as responsible for damage which that current does to his neighbour, as he would have been if, instead, he had discharged a stream of water. The electric current may be more erratic than water, and it may be more difficult to calculate or to control its direction or force; but when once it is established that the particular current is the creation of or owes 'its special existence to the defendant, and is discharged by him, I hold that if it finds its way on to a neighbour's land, and there, damages the neighbour, the latter has a cause of action.'
The aforesaid decision of Chancery Court rendered in 1893 squarely applies to the facts of the present case. The, rule enunciated in Rylands's case ((1868) LR 3 HL 330) (supra) clearly gets attracted to the facts of the present case, and the exception to the said rule about independent act of third party is also not available to defendants Nos. 2 and 3 as they were clearly in a position to nip the mischief in the bud if they were so minded and careful enough.
41. In Northwestern Utilities Ltd. v. London Guarantee and Accident Company Ltd., (1936) AC 108 the Privy Council on appeal from the Supreme Court of Alberta (Appellate Division), Canada, had to consider a question similar to the one, which has been posed for our decision. The facts of the said case before the Privy Council were that a hotel belonging to and insured by the concerned- respondents respectively was destroyed by fire caused by the escape and ignition of natural gas which percolated through the soft and penetrated into the hotel basement from a fractured welded joint in a 12-ins intermediate pressure main, 3 -ft. 6 ins. below the street level belonging to the appellants, a public ' utility company which supplied natural gas to consumers in the City of Edmonton, Alberta. The cause of the break in the welded joint through which the gas leaked was found to be the operations of the City of Edmonton in constructing a storm sewer, involving underground work immediately beneath the appellants' main. On a claim for damages by the respondents against the appellants, it was held: -
'As the appellants were carrying gas at high pressure which was very dangerous. if it should escape, they owed a duty to the owners of the hotel, to exercise reasonable care and skill that the owners should not be damaged.'
It is interesting to note that on the facts of the aforesaid case, it was on account of the act of a third party like city of Edmonton in constructing a storm sewer that dangerous gas had escaped from beneath' the appellants, main and it had damaged*the hotel which was belonging to and insured by the respondents. St-11 the appellants before the Privy Council were held responsible to answer the claim of the respondents on the Principe of Rylands's case ((1868) LR 3 HL 330) (supra). Considering these aspects of the case, the following pertinent observations have been found at page 126 of the report: -
'The gas is carried at high pressure, is very dangerous if it escapes and calculated if it does escape to damage, as it did, the owners' property. The appellants accordingly owed a duty to the respondents, even though the case falls outside the rule of strict or absolute liability, to exercise all care and skill that these owners should not be damaged. The degree of care which that duty involves must be' proportioned to the degree of risk involved if the duty should not be fulfilled. It has been found both by the trial judge and by the appellate division that the appellants were put on enquiry, at least, as to the operations which the city were 'conducting in the vicinity of their mains, in particular of the 12-inch intermediate pressure main, where the pressure of the case was 40 lbs. to the inch. Even if the operations at manhole B were, so far as above ground, in a direction opposite to manhole A, and even though the tunnel from manhole B to manhole A was underground, still manhole B was only 20 feet from manhole A; but of particular moment was the fact that the building of the weir chamber, which involved men working on it and carrying down bricks and cement, cannot but have been obvious to the appellants' employees if they were! taking any interest in what the city did in the vicinity of the appellants' main..... In truth, the grave men of the charge against the appellants in this matter is that though they had tremendous responsibility of carrying this highly inflammable gas under the streets of a city, they did nothing at all in all the facts of this case. If they did not know of the city works, their system of inspection must have been very deficient. If they did know they should have been on their guard; they -might have ascertained what work was being done and carefully investigated the position, or they might have examined the, pipes likely to be affected so as to satisfy themselves that 'the bed on which they lay was not being disturbed. 'Their duty to the respondents was at the lowest to be on the watch and to be vigilant; they do not even pretend to have done as much as that. In fact, so far as appears, they gave no-thought to the matter. They left it all to chance. It is in their Lordships' judgment, impossible now for them to protest that they have done nothing effective to, prevent the accident and in any case their Lordships cannot accept that as the true -view'.
The aforesaid decision clearly lays down that even for the act of third parties, the person carrying or storing dangerous object on his premises would be responsible if it escapes because of the act of third parties if the person storing dangerous object is not careful enough about its, consequences and does not exercise due can - and caution in the matter. In the present case also, there was ample opportunity for defendants Nos. 2 and 3 to find out in what dangerous manner the electric connection was taken through their own meter up to the temple by defendant No. 4. They simply ignored that particular aspect of the matter and never cared to take sufficient precaution in connection with tapping of their electric energy for bringing it to the door steps of the temple. Apart from the fact that they were permitting an illegal act to be done and for which they themselves were fined by the G. E. B, as seen above, they negligently allowed defendant No. 4 to take connection in a rash and negligent manner and for that' act, they by their negligence are equally responsible. It is not necessary for us to multiply authorities on the point save and except referring to one decision of the Court of Appeal in England in H. & N. Emanuel Ltd. v. Greaer London Council, (1971) 2 All ER 835. In that case. The. London County Council, the predecessors in title of the Greater London Council-, (the council) owned a site on which two pre-fabricated bungalows had been erected during the second world war. The council, as they were entitled to do. asked the Ministry of Housing for the bungalows to be removed. Accordingly, arrangements were made for them to be removed by an independent contractor K, who was engaged for the purpose by the Ministry of Works. The written agreement. between the Ministry of Works and X provided for the removal of the bungalows and all materials and rubbish from the site. It also provided that rubbish was to be burnt on the site. In the course of their work of demolition K's men in accordance with their usual practice, started a fire on the site in order to burn unwanted timber and debris. The Ministry of Works were well aware of this practice for they had trouble with K before over it and there was no evidence that the council's foreman in charge of the site was not aware of it. Sparks from the fire were blown on to the neighbouring premises which belonged to the plain-tiff. The plaintiff brought an action in negligence against the council for damage caused by the ensuing fire. The plaintiff's suit was decreed. The appeal by the first defendant came to be dismissed by the Court of Appeal. It was held by the appeal court that an occupier was liable for the escape of fire caused by the negligence not only of his servants but also of his independent contractor and anyone else who was on his land with. his leave and licence; the only occasion when the occupier would not be liable for negligence was when the negligence was the negligence of a stranger, although (per Lord Denning MR) for this purpose a stranger would include a person on the land with. The occupier's permission who, In lighting a fire or allowing it to escape, acted contrary to anything which the occupier could anticipate that he would do, It was held In that case before the court of appeal, that the council were occupiers of the premises because they, had a sufficient degree of control over the activities of persons thereon and K's men were not strangers because although they were forbidden to burn rubbish, it was their regular 'practice to do so and the council could reasonably have anticipated that.
The men would light a fire and ought to have taken more effective steps to prevent them and as they had failed to, do so, they were held liable to answer the claim of the plaintiff for damages. In the present case, therefore, there is no escape from the conclusion that defendants Nos.2 and 3 who had stored dangerous object like electricity at high voltage permitted it to escape by the act of defendant. No. 4 and the said act of defendant No. 4 was apparently negligent and rash and defendants Nos. 2 and 3 having sufficient knowledge, about the same permitted the said hazardous act to be done and contained in that reckless fashion by defendant No. 4 and even though they -were in a Position to avoid the said mischief, they did not take any remedial measure and remained totally negligent and consequently they would remain liable to answer the claim of the plaintiff even though it directly arose out of the rash and negligent act of defendant No. 4 who was a licensee on the premises of defendants Nos. 2 and 3.
42-43. xx xx xx
44. Before we switch over to the consideration of other points involved in this appeal, we may mention one additional argument advanced on behalf of the plaintiff by their learned Advocate Mr. M. C. Shah so far as liability of defendants Nos. 2 and 3 is concerned. He submitted that defendants Nos. 2 and 3 who had taken electric connection from the G. E. B. had committed breach of the statutory obligation' under the relevant provisions of the Indian Electricity Act. Consequently, without anything more, these defendants will be liable to answer any claim arising out of these defendant's liability on the ground of breach of statutory obligation and that it is not necessary for the plaintiff to go further and prove that defendants Nos. 2 and 3 were negligent in permitting defendant No. 4 to take electric connection from their meter in a dangerous manner. The aforesaid contention was not canvassed on, behalf of the plaintiff in, the trial court. However. as Mr. Shah relied upon statutory provisions and a legal submission was sought to be raised there from, we have permitted him to advance that contention for the first time in this appeal. Mr. Shah invited our attention to S. 44 of the Indian Electricity Act 1910 especially cl, (d) thereof to submit that as defendants Nos. 2 and 3 had improperly used the energy of the licensee which was supplied to them as a consumer. they were liable to be fined. We have already reproduced the aforesaid pr,)visions in the earlier part of this judgment. The said provision only states that whoever improperly uses the energy of a licensee shall be. punishable with fine. It is difficult to appreciate how from the said provision any statutory obligation can be culled out for the concerned wrong-doer vis-a-vis any third party like the plaintiff. We do not find any statutory obligation from the said statutory provision, which is cast on the concerned user of energy visa-vis any third -party who may be likely to suffer on account of such improper use. It is, therefore, not to agree with the alternative contention of Mr. Shah for the plaintiff at that by establishing a mere breach of S. 44 of- the Indian Electricity Act, the plaintiff can succeed against defendants Nos. 2 and 3 without anything more. In this connection, Mr. Shah heavily leaned on the observations found in chapter 2 in Winfield and Jolowicz on Tort, 11th edition, page 45. The observations on which reliance was placed read as under: -
'Liability for breach of a statutory duty is not, as a rule, dependent on. ' proof ,of negligence and where an Act require something to be done without qualification contravention of the statute automatically establishes liability'.
The aforesaid observations are based on two English decisions in Galashiels Gai Co. Ltd. v. O'Donnell or Millar (1949) AC 2715 at 288 and Carroll v. Andrew Barclay and So Ltd. (1948) AC 477. In the case of Carroll (supra), the House of Lords was considering the statutory requirements of S. 13(1) of the Factories Act, 1937 under which it was provided that every part of the transmission machinery shall be securely fenced in the factory. On the basis of the said provision, it was held that the aforesaid statutory provision imposed on occupiers of factories a duty to erect a barricade to prevent any employee from making contact with the machinery, and did not in ordinary cases oblige them to erect an enclosure to prevent broken machinery from flying out and injuring him, and they were liable to meet the claim arising out of the breach of this statutory duty if any employee was injured on account of the said breach. Similarly, in case of Galashierls Gas Co. Ltd. (supra), the House of Lords was concerned with another provision of the Factories Act, 1937 viz. S. 22(1) which laid down that every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained. As this provision was held to be imposing an absolute and continuing obligation, proof of any failure in the mechanism of a hoist or lift established a breach of the statutory duty and consequently any user of the lift became entitled to action against all the persons liable to maintain the lift as per the statutory provision, if a person suffered any injury on account of the breach of sons maintaining the lift. We fail to understand how these judgments can be, of any real assistance to Mr. Shah for the plaintiff. The aforesaid judgments of the Privy Council established a legal principle that if a statutory duty is cast on a person with implied corresponding right to the other side for whom the statutory provision is made, if breach of statutory duty resulted into any injury to the victim for whose protection the statutory provision is made, the victim will be entitled to get proper relief against the person committing breach of the statutory obligation without showing anything more. In the present case, Mr, Shah could not point out any provision from the Indian Electricity Act imposing any obligation on the consumer of electric energy with any corresponding right to the third parties who may suffer on account of the breach of the concerned statutory provision by the consumer of electric energy. It cannot be said, as was the situation under the relevant provisions of the' English Factories Act, that Indian Electricity Act, '1910 imposes any statutory obligation especially with a specific intention to protect the rights of third parties. Consequently, on the scheme of S. 44 of the Indian Electricity Act on which strong reliance was placed by Mr. Shah in support of his contention, it cannot be -said that any strict - statutory liability had got foisted on defendants Nos. 2 and 3 with any corresponding right in the plaintiff and that the plaintiff can succeed without showing any negligence on the farmer's part by simply alleging and proving that they had committed breach of the provisions of S. 44 of the said Act. In this connection, it is profitable. to have a look at the observations found in chapter 15 of Charles worth on Negligence, 6th edition in connection with statutory duty- and breach. At Page 654 is found an extract from the ,famous passage regarding breach of statutory duty as classified by Willes, J. in Wolver Hampton New Waterworks Co. v. Hawke ford. (1859) '6 CB (NS) 336: -
'There are three classes of cases in which a liabitity may be established founded upon a statute. One is, - where there was a liability- existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy, The second clan of cans is, where the statute gives the right to sue merely; but provides no particular form of remedy, there, the party can only proceed by action at common law. But there is a third class., viz. where a liability not existing at common law is created by. a statute which at the same time gives a special and particular remedy for enforcing it'.
It is clear that in the last type of cases where a statute itself creates right and gives special remedy, no other remedy can be culled out save and except the one contemplated by the statute. In the present case S. 44 of the Indian Electricity Act imposes a statutory obligation and also provides for penalty in cases contemplated 'by the said section. As it nowhere contemplates any corresponding right of third party or any obligation to them upon the alleged wrong-doer, it is not possible to agree with Mr. Shah that mere breach of S. 44 by itself on the part of defendants Nos. 2 and 3 should be enough for the -plaintiff to succeed and that the plaintiff need not go further and prove negligence on the part of defendants Nos. 2 and 3. We, therefore, reject the alternative contention of Mr. Shah. However, liability of defendants Nos. 2 and 3 to meet the plaintiffs claim will remain all the same as there is sufficient evidence on record to show that they were negligent and consequently, they were liable to meet the claim of the plaintiff in tort.
45. Order accordingly.