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Shivkor Motasing Vs. Ramnaresh Munsising and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 246 of 1971
Judge
Reported inAIR1978Guj115; (1978)GLR713
ActsCode of Civil Procedure (CPC), 1908 - 0rder 22, Rule 2
AppellantShivkor Motasing
RespondentRamnaresh Munsising and ors.
Appellant Advocate R.N. Oza, Adv.
Respondent Advocate V.P. Shah, Adv. for; S.B. Vakil, Adv.
Cases ReferredC. K. Subramania Iyer v. T. Kunhi Kuttan Nair
Excerpt:
.....school boys including x (appellant's son) went to picnic spot and respondents were in charge of picnic party - x dead body found from river - appellant alleged that x killed on account of negligence by respondents - whether trial court justified in holding that respondents discharged sufficient care and no negligence on their part - danger to boys apparent because there was deep monsoon current in river - river was in close proximity to picnic spot - boys were young and immature - respondents had not discharged their duty to take sufficient care of boys - respondents liable for negligence - trial court's order set aside - held, respondents will pay sum of rs. 10000 to appellant with interest at 6% per annum from date of suit. - - by that time, the boys had finished their food and..........taking food, they heard noise from the river side and they rushed there. two boys who were in the river water were rescued by a fisherman mahavir raghu and his companions. the two boys, who had swallowed river water and who had, therefore, developed disorder in their physical systems reported that jagpalsing was still in the water. mahavir raghu and his companions were requested by defendants nos. 1 and 3 to find out jagpalsing. mahavir raghu and his companions thereafter jumped into the water, swam in the water and found out the dead body of jagpalsing. the plaintiffs, alleged that jagpalsing, was drowned and killed on account of the negligence shown by defendants nos. 1 and 3. they, therefore, instituted the present action in torts against the defendants for recovering a sum of rs......
Judgment:

S.H. Sheth, J.

1. The plaintiff filed the present suit against the defendants for recovering a sum of Rs. 15000/- under the following circumstances. Defendants Nos. 1 and 3 are the teachers in a Municipal School where one Jagpalsingh son of the plaintiffs was studying. Defendant No. 2 is the Head Master of the School. Defendant No. 4 is Ahmedabad Municipal Corporation which runs the school Jagpalsing, a boy of about 12 years of age was one amongst the sixty who constituted the picnic party. On 6th Sept. 1966 the picnic party of these young urchins was taken by defendants Nos. 1 and 3 to Bhadreshwar situate on the bank of river Sabarmati in the outskirts of the city of Ahmedabad. The party reached the picnic spot at about 9-30 A. M. It appears that after the party reached there, the picnic party took food. Thereafter, defendants Nos. 1 and 3 who were in charge of the picnic party had been taking their food. At about 11-30 A. M. when defendants Nos. 1 and 3 had been taking food, they heard noise from the river side and they rushed there. Two boys who were in the river water were rescued by a fisherman Mahavir Raghu and his companions. The two boys, who had swallowed river water and who had, therefore, developed disorder in their physical systems reported that Jagpalsing was still in the water. Mahavir Raghu and his companions were requested by defendants Nos. 1 and 3 to find out Jagpalsing. Mahavir Raghu and his companions thereafter jumped into the water, swam in the water and found out the dead body of Jagpalsing. The plaintiffs, alleged that Jagpalsing, was drowned and killed on account of the negligence shown by defendants Nos. 1 and 3. They, therefore, instituted the present action in torts against the defendants for recovering a sum of Rs. 15,000/- for damages.

2. Plaintiff No. 1, the father of Jagpalsing died during the pendency of this appeal. His name was ordered to be struck off by this Court on 5th Oct. 1973. The omission to bring his heirs on record is not fatal to the appeal because the appeal can proceed at the instance of plaintiff No. 2. the mother of Jagpalsing.

3. It was contended in defence that defendants Nos. 1 and 3 had given instructions to the boys not to go to the river side and that, therefore, they had discharged their duty towards those whom they had taken to Bhadreshwar for picnic.

4. The learned Trial Judge held that giving of instructions by defendants Nos. 1 and 3 to the picnic party was sufficient care taken by the teachers and that, therefore, there was no negligence on the part of defendants Nos. 1 and 3. He, therefore, dismissed the suit.

5. It is that decree which is challenged in this appeal by the plaintiff

6. The facts about which there is no dispute are that two boys were rescued and the dead body of Jagpalsing was brought out from the river by the plaintiff's witness Mahavir Raghu, a fisherman who was standing on the opposite bank across the river and who, on hearing a cry for help jumped into the water and ran to the rescue of those who were in distress. The evidence of Mahavir Raghu does not throw any light on the circumstances under which three boys including Jagpalsingh entered water. His evidence further shows that other boys of the picnic party were also there. The evidence of plaintiff No. 1 does not help us in determining the question of negligence because he had no personal knowledge of what happened at the picnic spot. Both the teachers have deposed before the Court. The evidence of Govindram Hariram Soni, Ex. 37 and the evidence of Ramnaresh, Ex. 38 the two teachers, show that they took the picnic party to Bhadreshwar temple situate at a distance of about 200 feet from the river bank. It also shows that the picnic was taken there on 6th Sept. 1966. It was a monsoon season. The evidence further shows that water in the river was 10 feet deep. The evidence of the two teachers next shows that they had given instructions to all the boys not to go to the river bank or anywhere near it. Their attention was attracted only after they heard shouts. When they heard the shouts from the river side they had been taking their food. By that time, the boys had finished their food and gone to a well to take water. They were instructed to do so. Their evidence further shows that three boys including Jagpalsing had surreptitiously and stealthily gone to the river bank. The evidence of Ramnaresh also shows that the teachers were not told by anyone that the three boys had gone to the river bank stealthily. It appears that part of their deposition is an inference drawn by them from the fact that these three boys amongst others had gone to the river bank even though they had instructed them not to do so.

7. The question which has been raised for our consideration is whether on these facts we can say that defendants Nos. 1 and 3 were negligent in supervising the boys. Mr. Oza who appears on behalf of the plaintiffs, has invited our attention to three decisions. The first decision is in Fryer v. Salford Corporation, (1937) 1 All E. R. 617. It was a case in which a child aged 11 was receiving instructions in cooking and while doing so her apron caught fire from a gas-cooker and she received injuries. It was found on facts that there was no guard round the cooker. It was held by the Court of Appeal that the danger, under those circumstances, was one which ought to have been reasonably anticipated and which a local authority ought to have taken precaution to prevent by providing a guard round the stove or otherwise. The test which is applied in such circumstances is what would a reasonably careful parent have done in like circumstances?

8. The next decision to which our attention has been invited is in Rawsthorne v. Ottley (1937) 3 All ER 902. It was a case in which the headmaster of 'a school had left the boys to play in the playground and had returned to the school premises. After he returned to the school premises a lorry arrived of which he had no knowledge. The lorry was in charge of a single driver and delivered coke in the school playground. After having unloaded the coke when the lorry was driving away, a number of boys jumped on to the rear of the lorry, which caused the tipping part to tip up. Another boy jumped on to the lorry immediately behind the driver's cab and when the tipping part of the lorry was suddenly released it came down on him and crushed his leg. On these facts, it was held by Mr. Justice Hilbery that there was no negligence on the part of the headmaster in leaving the boys in the playground without supervision and that he could not have taken steps to stop the lorry from coming during playtime. He, therefore, held that the headmaster and the management of the school were not liable. It was further held that the owners of the lorry had placed it in charge of a reasonable adult who could not have anticipated such an interference. He also held that the driver was not negligent in failing to notice whether any boys had jumped on to the lorry. Lastly, he held that a lorry as such is not allurement to children.

9. The last decision to which our attention has been invited is in Rich v. London County Council, (1953) 2 All ER 376. In that case as infant was a pupil at a school under the care and management of the defendants. An unfenced heap of coke lay in one of the playgrounds of the school and the infant was injured by a piece of coke thrown at him by another boy. In an action for damages for negligence it was found by the Court of Appeal that the school authorities had exercised adequate supervision over the boys. The principle which has been laid down is that the duty which the defendants owed to the boys was to take such care of them as a careful parent would take in like circumstances' Applying that principle the Court of Appeal held that the defendants were under no obligation to prevent the boys from having access to the coke by erecting fencing or by other similar means. The Court of Appeal further held that the supervision of the boys by the defendants was adequate and that they were not liable to the plaintiff.

10. The principle which these three decisions lay down is that, in a case of this type, the test which should be applied is the test of what a reasonably careful parent would have done in like circumstances. Between a teacher and a student, what a reasonably careful parent would have done in like circumstances is, in our opinion, a very good test to apply. Mr. Oza who appears on behalf of the plaintiff has argued that a reasonably careful parent, under the circumstances which attend upon this case would have taken into account the nature of the current, the depth of the water and the capacity of the boy to stand them if he went to the river bank and tried to play with water. A reasonably careful parent, according to him, ought to have anticipated all these things and prevented his boy from going to the river. He has also argued that river water is an allurement to young urchins and that therefore, greater care is necessary. We have no doubt in our minds that if the death of a student occurs on account of some overt act of negligence on the part of his teacher who is in charge, he would be held guilty of negligence and liable to compensate the parents. To illustrate, if a teacher who knows swimming enters river water and takes a young boy with him who does not know swimming ostensibly for the purpose of the boy's pleasure or for the purpose of showing him what swimming is, it would constitute an overt act of negligence if the boy dies of drowning in such an attempt because it is his duty to gauge the depth of water, assess the force of the current and reasonably apprehend whether a young untrained urchin who is placed in his charge would stand the exercise to which he subjects him. If there is any such overt act of negligence on the part of a teacher, we have no doubt in our mind that the teacher will be liable in damages to the claimant. Next even if there is no over act of negligence but if there is an act of gross negligence consisting of an omission, the teacher would be liable in damages to the claimant. If a teacher who takes a party of young boys or urchins to a picnic spot leaves the party alone after giving necessary instructions and goes away elsewhere from the picnic spot where the boys are camping, he would be liable in damages to the plaintiff if any one of them, under the aforesaid circumstances, sustains an injury or meets with death because going away from the place and depriving the boys of his supervision, in our opinion, would constitute an act of gross negligence. The difficulty of applying the test of what a reasonably careful parent would have done arises only in marginal cases. In case of a picnic party, we are required to take greater care in delimiting the contours of negligence because if, on one hand, we hold that there cannot be any negligence on the part of the supervising teacher in case of a picnic party, we would be rendering the teachers careless and exposing the urchins or young boys to uncalled for hazards. If, on the other hand, we hold that meticulous supervision should be exercised over each and every boy in the picnic party, picnics, which have great educational value, would come to an end. Therefore. in a case of this type, while applying the test of a reasonably careful parent we must confine the contours of negligence in such a manner that while picnics continue to be arranged, the young urchins are not left at the whim and caprice of the supervising teachers.

11. It cannot be gainsaid that where two teachers are in charge of 60 boys, as in the present case, the test of a reasonably careful parent would apply to them only in some details. A parent who takes out his boys to a picnic spot will ordinarily be looking after two or-three or four. Obviously, therefore, he would exercise greater and more intensive supervision over them than two teachers would exercise over 60 boys. In the aforesaid circumstances, the standard of applicability of the test is bound to vary in case of teachers who were in charge of as many as 60 boys. The question, therefore which arises for our consideration is what degree of care they ought to have taken and what degree of negligence was involved in the present incident. It cannot be gainsaid that to a young urchin such as Jagpalsing was, river water is an allurement and excessive enthusiasm on his part would prove, a trap for him as it did in the instant case. The river had a deep current at the material time because it was monsoon season. The boys including Jagpalsing were hardly 12 years of age. The danger of deep water in the river at this time was, apparent and obvious. It cannot, therefore, be gainsaid that a greater degree of supervision over 60 boys was necessary. The danger also could have been foreseen. However could they have foreseen one or two or three urchins straying away from the picnic spot against their instructions and playing with their lives in the river water? Miss Shah, who appears on behalf of the defendants, has argued that this is at the most a case of an omission on the part of defendants Nos. 1 and 3 and has pointed out to us the standard of proof required in case of an omission from Sir John Salmond's Jurisprudence. The first standard of proof is this: What could have been commonly done by others under like circumstances and did defendants Nos. 1 and 3 fail in doing so? The second aspect which she has pointed out is this; Did defendants Nos. 1 and 3 fail to do what they were obviously wanted to do? In other words, did they neglect to provide for what they ought to have done under foreseeable circumstances

12. In the instant case, the danger to the voting boys who had gone for picnic was apparent, obvious and foreseeablel because there was deep monsoon current in the river. The river was in close proximity to the picnic spot and is generally an attraction or allurement to boys of very young age. Next, the boys had gone to the picnic including Jagpalsing were very young and' highly immature. Therefore, reasonable care required that defendants Nos. 1 and 3 ought not to have started taking their food together. After all the boys had finished taking their food, one of two teachers could have, supervised the movements of these immature boys while the other was taking his food. It appears to us that the prime, cause of this incident is the simultaneous engagement of defendants Nos. 1 and 3 in taking their food. In our opinion in the facts and circumstances of this case, it constituted negligence. We have no doubt in our mind that if two parents had taken their children for picnic, both would not have been engaged in eating simultaneously while their children had finished their food and were away at the well to drink water. In our opinion, therefore the negligence in the instant case is proved. The finding recorded by the learned Trial Judge to the contrary cannot be sustained and is, therefore, set aside.

13. So far as liability is concerned, defendants Nos. 1 and 3 who had accompanied the picnic party are liable. Defendant No. 2, the headmaster of the school cannot be held liable because at the most what he did was to permit the picnic party to be taken out. He did nothing more. To permit a picnic party to be taken out from the school can never by itself constitute negligence. Therefore, defendant No. 2 cannot be held liable defendant No.4 the Municipal Corporation of Ahmedabad in its capacity as the employer of defendants Nos. 1 and 3 is vicariously liable for damages arising out of the present incident.

14. The next question, which we are required to consider, relates to the quantum of damages, which should be awarded to the plaintiffs. While computing the damages, we have to bear in mind how much he would have contributed to the estate of his parents. The evidence shows that there is longevity in the family. Secondly, Jagpalsing was healthy, intelligent and brave. He had also an aptitude for military career. It cannot be gainsaid that his parents would have been required to spend on him for some time until he was ready to take up the career. Taking all these factors into account, it would not be unreasonable for us to determine that the would have at least contributed a sum of Rs. 50/- per month to the estate of his parents. His parents are in fifties. His father, during the pendency of this appeal, died. The mother alone is alive. The loss of monetary benefit is to be determined on the basis of the period for which he would have been required to contribute to the estate of his parents. Taking into account the fact that the father is dead and the mother is in fiftys, twelve years' purchase factor can be reasonably applied to the present case. It works out the figure of damages at Rs. 7200/-. For loss of expectancy of life Rs. 3000/- are ordinarily awarded, and we do so in the instant case, That brings the total amount to Rs. 10,200/-. We think, a decree for Rs. 10,000/- would meet the ends of justice. While making this award for compensation, we have borne in mind the principles laid down by the Supreme Court in C. K. Subramania Iyer v. T. Kunhi Kuttan Nair, 1970 ACJ 110: (AIR 1970 SC 376).

15. We, therefore, set aside the decree passed by the learned Trial Judge and order defendants Nos. 1, 3 and 4 to pay the sum of Rs. 10,000/- to plaintiff No. 2 with interest at 6 per cent per annurn from the date of the suit. The suit against defendant No. 2 is dismissed. The costs of the suit and the appeal shall be paid by defendants Nos. 1, 3 and 4 to plaintiff No. 2.

16. The appeal was filed in forma pauperis. The Collector may recover the amount of Court-fees from defendants Nos. 1, 3 and 4. There will be no order as to costs of defendant No. 2.

17. After having considered the educational value of picnics and the hazards to which picnic parties would be exposed if adequate and sufficient degree of care to protect young boys and girls is not taken while they are picnicing, we have laid down the law. While doing so, we have no desire whatsoever to mar the career of defendants Nos. 1 and 3. We, therefore, strongly recommend to defendant No. 4 the Municipal Corporation of the City of Ahmedabad not to terminate the services of defendants Nos. 1 and 3 merely on account of this judgment but to continue them in service and not to claim the decretal amount from them. We are aware of the fact that if the Municipal Corporation defendant No. 4 claims the decretal amount from defendants Nos. 1 and 3, the two poor teachers will be ruined and thrown on to the Streets without bread. We, therefore, recommend that the Municipal Corporation defendant No. 4 will pay up the decretal amount to plaintiff No. 2 who is the only surviving plaintiff without claiming it from defendants Nos. 1 and 3.

18. Order accordingly.


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