1. The defendant is the appellant. The suit is by the respondents for the recovery of Rs. 3328 towards principal and Interest in respect of damages caused to the plaintiffs' house and articles by fire, which is alleged to have been caused by the negligence of the defendant in his premises.
2. The plaintiffs' case is as follows:
The plaintiffs' house is south of the plot, where the defendant has installed his oil mill. On 27-6-1947 at about 6 a.m. the plaintiffs, who were temporarily staying at another house near their own, received intimation that a fire had broken out at No. 6, Geil's Street (the defendant's premises) and that huge smoke was spreading towards their premises. The plaintiffs rushed to the spot, and when they opened the rooms in the house they found that the fire had already burnt down the window in the northern wall of the western room in the back portion of their premises as also the wooden rafters, beams and reapers beneath the tiled roof of that room.
Before the arrival of the fire brigade the fire had spread to the koodam also. The whole superstructure except the front rooms, entrance and the small room in the eastern end of the house had crumbled down, the walls on the eastern and western sides of the house had also fallen down.
The estimate of the damages caused to the building as well as the articles belonging to the plaintiffs' family is set out in A schedule. Schedule B contains the value of the articles belonging to one S. N. Gopalakrishna Chetti, the plaintiffs' uncle's son, who kept them in the plaintiffs' house. They were also burnt down.
The claim is for the amount mentioned in the A and B Schedules. The plaintiffs' allegation is that the fire was caused due to gross negligence and wilful default on the part of the defendant and his assistants. The allegations in the plaint are that unskilled workmen were permitted by the defendant to work the mill and that no precautionary measures were taken by the defendant to prevent the spread of fire in the neighbourhood.
3. The defendant denied the allegations and stated that the plaintiffs were not staying temporarily in another place and that it is not true that on receipt of intimation they came to the spot.
The case of the defendant is that the fire originated in the plaintiffs' premises owing to their own negligence, and spread towards north destroying the property of the defendant to the extent of about Rs. 15,000. According to the defendant the fire broke out at 5-10 a.m. in the northern room on the western wing of the plaintiffs' house which was then locked, the plaintiffs having gone out at 5 a.m. to attend a function in the neighbourhood. One of the occupants In the plaintiffs' house noticed smoke coming out of the crevices from the doorways and windows of the said room and he rushed to the plaintiffs and Informed them about It. Soon the fire in the room blazed forth burning the rafters and beams of the roof over the room and koodam and destroyed the articles therein.
This fire spread to the defendant's premises and caused damage to his articles. The defendant denied that unskilled workmen were employed that day and stated that he himself came that morning at about 5-30 a.m. and that the mill was not started as his workmen did not turn up. In short, the defendant shifted the responsibility to the plaintiffs for the damages caused not only to his own articles, but also to the articles of the plaintiffs by stating that the fire originated in the plaintiffs' premises and spread to the defendant's premises.
4. On the contention of the parties, several issues were raised but the main question to be considered is, whether the fire broke out in the plaintiffs' room as alleged by the defendant or broke out in the defendant's premises either by accident or due to the negligence of the defendant and if the fire broke out in the defendant's premises accidentally, whether the defendant is liable for the damages caused to the plaintiffs' articles without any proof of further negligence on the part of the defendant. (His Lordship perused the evidence and continued). In the circumstances the trial Court has rightly come to the conclusion that the only possibility of the origin of the fire might be some defect in the electric system. We agree with the trial Court that the fire must have been caused by some accidental short circuit of the electric wires and that this could not have been anticipated and preventive measures could not have been taken for this by the defendant.
5. The fire having been caused by accident in the defendants' premises, the next question is how far the defendant is liable for the damage caused to the plaintiffs' property.
In England at common law the rule was this:
'There is a rule of law which says you must so enjoy your own property as not to injure that of another' ('Vaughan v. Menlove' (1837) 132 ER 490 (A)).
'A man was liable at common law for damage done by fire originating on his own property for the mere escape of the fire.'
Lord Denman C. J. in -- 'Filliter v. Phippard', (1848) 11 QB 347 (B), stated the law thus:
'The ancient law, or rather custom of England, appears to have been, that a person in whose house a fire originated, which afterwards spread to his neighbour's property and destroyed it, must make good the loss.'
This was the principle applied even in cases where the fire broke out accidentally. With a view to give protection in cases of accident 6 Ann. Clause 31, Section 6 was enacted. That was replaced by Section 86, Fires Prevention (Metropolis) Act, 1774.
This Act excluded the liability of a 'person in whose house, chamber, stable, barn, or other building, or on whose estate any fire shall accidentally begin.' This Act came for interpretation and application in -- 'Musgrove v. Pandelis', 1919 2 KB 43 (C).
The facts in the above case were these. The plaintiff occupied rooms over a garage. Part of the garage was let to the defendant, who kept a motor car there. The defendant's servant, who had little skill as a chauffeur, having occasion in the course of his employment to move the motor car, started the engine, and from some unexplained cause, and without negligence on the part of the servant, the petrol in the carburettor caught fire. If the servant had promptly turned off the tap leading from the petrol tank to the carburettor, the fire would have harmlessly burnt itself out. But he failed to do this; and the fire spread and burnt the car, the garage, and the plaintiff's rooms and furniture. The plaintiff brought an action for damages. The defendant pleaded that the fire 'accidentally began' within the meaning of the above enactment.
Finding that the defendant's servant was negligent in not promptly turning off the petrol tap, it was held that the Act did not protect a person who brought upon his premises an object likely to do damage if not kept in control, and that a motor car ready to start, or such a car in charge of an unskilled chauffeur, was an object of that kind, and that the fire which caused the damage was not that which took place in the carburettor, but was the fire which spread to the car owing to the negligence of the defendant's servant; and the defendant was made liable.
In dealing with the case Bankes L.J. observes as follows at page 48:
'In this case it is impossible to say that the spark which originally ignited the petrol, though no doubt it was the original cause of the fire, was the fire which caused the damage. As well might it be said that a house maid striking a match to light her master's fire causes the fire which ultimately consumes the house because it originated from the match she struck. In this case the fire which caused the damage began when the flaming petrol acquired such volume as to become a source of danger. So long as the fire was merely the ignition of a small amount of petrol, which if left to itself would have burnt itself out in the carburettor, it was like the house-maid's match; but when it became a raging fire supplied from the petrol tank so that it spread to parts of the car and from them to the property, this was the fire which caused the damage. It did not accidentally begin. It was the direct result of Coumis's negligence in not turning off the petrol tap. This was the view which Lush J. took of the facts, and I agree with him.'
Warrington L.J. who agreed with Bankes L.J. observes as follows at page 50:
'In the present case what was the fire which caused the damage? Not the fire in the carburettor while it was harmless and might have been stopped, but that which caught the inflammable parts of the car and then the garage. When did that fire begin? Not when the petrol caught fire in the carburettor but when that fire assumed such proportions that it enveloped the inflammable portions of the car. Did that fire begin accidentally? No; the learned Judge has found that Coumis was negligent in not preventing the outbreak of the fire. He could have prevented it by stopping the further flow of petrol vapour into the carburettor. If he had so done, there would have been no fire. As it was, the fire began not accidentally, but by the negligence of Coumis.'
Duke L.J. also concurred with the other two Judges that the defendant was liable.
Although neither the common law nor the enactment referred to above applies to this country, still the principles enunciated therein are based upon sound commonsense and are in accord with justice, equity and good conscience. Applying therefore the principles mentioned therein it has to be seen whether the defendant is liable.
On the evidence the following facts are established beyond doubt: (1) that the defendant had stored in the meter room and near about the switch board several bags containing oil seeds and also large number of tins of oil; (2) that there were also gunny bags containing oil seeds and the gunny bags were hanging near the window of the plaintiffs; house. The tying of gunny bags at the southern end of the defendant's house is admitted by the defendant. That there were gunny bags lying on the floor near the plaintiffs' house and that those gunny bags caught fire are also admitted by the defendant. We have already found that the fire broke out in the defendant's premises. This fire must have spread to the plaintiffs' room through the gunny bags, which were not only hung on the southern side of the defendant's roof but were also lying on the northern side of the plaintiffs' window.
If, as we think, the fire broke out on account of the short circuit in the electric wiring, which could not have been foreseen or anticipated and then the fire must have spread to the plaintiffs' house, it must have been through the gunny bags referred to above. There is no evidence that the defendant did anything to prevent the spread of fire even in his own premises, much less to that of his neighbour, the plaintiffs, The evidence of P. W. 4 is to the effect that at about 5-30 a.m. the whole mill was on fire and the flames were seen 5 or 6 feet above the roof of the mill. P. W. 6 also says that he saw huge flames in the mill and that the flames in the mill were going up high in the sky, and that the flames spread gradually all over the mill. p. W. 1 says that there was a fire extinguisher in the oil mill, which is not disputed.
At any rate there is not even a suggestion that there was no fire extinguisher. The defendant has not stated that he either used the fire extinguisher or made any attempt to stop the spreading of fire. He did not even go and inform at the police station to requisition the fire engines. In short, he made, no attempt whatsoever to stop the spreading of the-fire. The damage caused to the plaintiffs' property was not by the fire, which was due to accident, but the fire, which spread to the gunny bags on the northern side of the plaintiffs' window, to stop which, no attempt was made. If any attempt was made by the defendant, it is for him to prove it. The defence that he took up, viz., that the fire itself broke out in the plaintiffs' house, was such that he did not let in any evidence to show that he did his best to stop the spread of fire. On the evidence, we are satisfied that the damage caused to the plaintiffs' property was due to the negligence on the part of the defendant in not taking any steps to prevent the spread of fire. In this view we confirm the judgment of Basheer Ahmed Sayeed J.
As regards the amount of damage it is not disputed that what was granted by the learned Judge is correct. We, therefore, confirm the judgment and decree passed by Basheer Ahmed Sayeed J. and dismiss the appeal with costs.