(2012) 273 KLR 648

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL

FRIDAY, THE 14TH DAY OF SEPTEMBER 2012/23RD BHADRA 1934

AFA.No. 59 of 2001

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AGAINST THE JUDGMENT IN AS.602/1997 DATED 06-04-2001 OF THIS COURT & O.S. NO. 30/1991 OF THE SUBORDINATE JUDGE'S COURT. THRISSUR

APPELLANT:

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RESPONDENTS:

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THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/08/2012, THE COURT ON 14/09/2012 DAY DELIVERED THE FOLLOWING:

C.R.

K.M. JOSEPH & K. HARILAL, JJ.

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A.F.A. NO. 59 OF 2001

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Dated this the 14th day of September 2012

Head Note:-

Strict Liability - Dangerous Animal - Elephant - Nature and extent of liability of the owner/keeper, for the damages caused by his dangerous animal - Elephant is a dangerous animal (ferae naturae) and the owner/keeper of an elephant is strictly liable, independently of negligence, for the damage caused by the elephant. The contentions that the dangerous animal was provoked by the wrongful act of a third party and thereby damage was caused, and this particular dangerous animal was well trained, tamed and never behaved violently or caused damage, are unsustainable defence in law. This line of defence does not make any difference in the application of strict liability.

JUDGMENT

K.Harilal,J.

An interesting as well as unusual issue that emerges in this intra court appeal is broadly the nature and extent of liability of the owner/keeper, for the damages caused by his dangerous animal. More precisely, the points that arise for our decision are :

(1) What is the law governing the nature and extent of liability of the owner/keeper, for the damage caused by a dangerous animal? 

(2) Whether an elephant is a dangerous animal? 

(3) Whether the owner/keeper of a dangerous animal is strictly liable, independently of negligence, for the damage caused by the dangerous animal? 

(4)Whether wrongful act of a third party can be a defence to liability for the damage caused by the dangerous animal? 

(5) Whether the defence that a particular dangerous animal was always quiet, well trained and tamed, makes any difference in the application of the doctrine of strict liability? 

2. This intra Court Appeal is directed against judgment and decree passed by the learned Single Judge of this Court in A.S.No. 602/1997 partly confirming the judgment and decree passed in O.S.No.30/1991 of the Sub Court, Thrissur. The appellant is the 1st defendant and the suit was one for damage.

3. Brief facts necessary for disposal of this appeal is as follows: According to the plaintiff, he was a coolie working in a tile factory and the first defendant is the owner of an elephant by name 'Sivan'. The second defendant was the Insurer of the elephant and the third defendant is the mahout who was employed by the first defendant. On 16/4/1989 at about 10.15 A.M. the first defendant's elephant was in the 'Pooram procession', proceeding from west to east through the M.G.Road, in Thrissur Town. It is alleged that while the plaintiff was walking through the footpath; the above said elephant suddenly moved towards the footpath and attacked the plaintiff and another person. The plaintiff stated that the elephant lifted him on its tusk to a height of 15' and threw away. Consequently, the plaintiff sustained grievous injuries on his right elbow and other parts of the body. By the fall, the bone on right elbow was broken. Immediately the plaintiff was admitted in the Medical College Hospital at Thrissur and he had undergone three surgeries and prolonged treatment. Though he was discharged on 7/6/1989, the treatment continued for a long time, he has lost his working capacity. Natural form of movement of his hand had been lost and now he is unable to pull or lift loads. The incident occurred due to the absolute negligence of the mahouts employed by the appellant. The elephant, being a ferocious wild animal should have been brought to the public with sufficient care and caution. Had they fixed necessary chains on the legs of the elephant, the incident could have been avoided. But in any manner, since the first defendant has got absolute liability, the plaintiff is entitled to get damages. He claimed a total sum of Rs.85,000/- as damages. The elephant was insured with the second defendant, the third defendant was employed by the first defendant and was acting as per the direction of the first defendant. Therefore, they are also liable to compensate the plaintiff for the damages sustained.

4. The first defendant filed a written statement denying the liability and disputing the plaint averments regarding the cause of incident. There was no negligence on the part of either the first defendant or the third defendant. The elephant was brought for 'Ezhunnellath' with all precautions required and was under full control. There was no rashness or negligence in controlling it. The 1st defendant reiterated his defence in the reply notice that some one caught hold of the tail of the elephant, when it turned suddenly, people started running and the plaintiff was injured in that stampede. That apart, the first defendant disputed the nature of liability alleged by the plaintiff and quantum of compensation claimed.

5. The second defendant initially contended that the policy was not alive on the date of incident as it was expired on 8/3/1989. But later by an additional written statement contended that, though a valid policy was issued for a period from 16/3/1989 to 15/3/1990, that policy covered the risk only for death of the elephant and does not cover liabilities if any arising out of the use of the elephant. The third defendant remained ex parte. The evidence consists of oral testimony of PWs 1 to 5 and DWs 1 to 3 and documentary evidence marked as Exts.A1 to A6 and Exts.B1 to B4. After trial, the learned Sub Judge decreed the suit as prayed for as against the 1st defendant on a finding that the first defendant alone is liable to pay the amount. In appeal the learned Single Judge of this Court partly allowed the appeal by fixing the compensation at Rs.53,000/- with interest at 6% from 25.01.1990 till realisation and full costs in the trial court. The impugned judgment and decree passed by the learned Single Judge is challenged in this appeal on various grounds.

6. The learned counsel for the 1st defendant submitted that the finding of the court below that the employees of the appellant were negligent is incompatible with the evidence on record, and unless negligence on the part of either the first defendant or the third defendant is proved, the plaintiff is not entitled to get damages from these defendants. He invited our attention to the defence version regarding the cause of incident that a third party from the people gathered there caught hold of the tail, and that culminated in a stampede causing injury on the plaintiff. Thus the incident was not caused by the negligence of defendants 1 and 3. He challenged the quantum of compensation decreed by the learned single Judge in appeal.

7. Per contra, the counsel for the first respondent submitted that no negligence need be proved to claim compensation as the incident was caused by a dangerous animal. Even if the alternative defence version is admitted at its entirety, the first defendant would be held liable, notwithstanding the cause of incident. According to him, the owner of a ferocious animal keeps the animal at his peril and is liable for all damages it does. To fortify the above argument, the learned counsel placed reliance in Madhavan v. Raja Raja Varma (1993(1) KLT 616) .

8. We have considered the arguments advanced by the counsel for the parties, in view of the authorities, on the question in controversy involved in this case. In view of the pleadings, evidence and the rival submissions advanced by both parties, factually the question in controversy centers around two versions regarding the cause of incident. According to the plaintiff, the elephant moved towards footpath, lifted him on his tusk to a height of 15', threw away and consequently he sustained injury. It was caused by the negligent attitude of the third defendant in controlling the elephant. Had he fixed necessary chains on legs, the incident could have been avoided. But according to the 1st defendant, somebody caught hold of the tail for taking hair, when it turned suddenly people started running and in that stampede he sustained injury. According to the first defendant, the elephant was brought with all precautions to control it and they were neither negligent nor rash in controlling it. Though it was not found in the pleadings, the case advanced by DW2, the son of the 1st defendant in evidence is that this particular elephant 'Sivan' was always quiet, well trained and tamed elephant and he never behaved violently or caused damage so far. The rest of the facts relating to the incident are not disputed.

9. Be that controversy as it may, first of all, we may consider the legal position, in view of the case advanced by the 1st defendant. What is the law governing the nature and extent of liability of the owner of a dangerous animal for the damage caused by such animal? In India, unlike in England, the law governing the nature and extent of liability of the owner/keeper, for the damage caused by the animal is being occupied, by English common law which are followed in decisions laid down by Indian Courts. In England now a new comprehensive and codified enactment, 'the Animal Act, 1971' is occupying the field. But in India a comprehensive legislation needs to be enacted to meet the needs of the day. The concept of legal duty and liability for the damage caused by a dangerous animal is enlarged by means of case law, by inventing the "doctrine of strict liability" (Reylands v. Fletcher (1908)2 K.B.825)). Under the principle of Reylands v. Fletcher "a person who brings dangerous substances upon premises and carries on a dangerous trade with them is liable if, though without negligence on his part, these substances cause injury to persons or property in their neighbourhood. It is immaterial whether he is or is not aware of the danger at the time when he brings and uses them".

10. Let us see the classification of an elephant in the species of animals. What is the nature and extent of liability of the owner for damage done by his elephant? Whether the elephant is a dangerous animal to man kind or not? Whether owner of the animal is strictly liable independently of negligence? These points can be considered jointly. Animals are classified according to experience of mankind. By experience, there are two classes of animals. (A)those that are of a dangerous character (Animals ferae naturae) and (B) those not normally of a dangerous nature (Animals mansuetae naturae). In Filburn v. People Palace and Aquarium Company Limited [(1890)25 Q.B.D.258], the Lord Esher M.R.lays down. 

"The Law of England recognises two distinct classes of animals; and as to one of those classes, it cannot be doubted that a person who keeps an animal belonging to that class must prevent it from doing injury, and it is immaterial whether he knows it to be dangerous or not. As to another class, the law assumes that animals belonging to it are not of a dangerous nature, and anyone who keeps an animal of this kind is not liable for the damage it may do, unless he knew that it was dangerous. What, then, is the best way of dealing generally with these different cases? I suppose there can be no dispute that there are some animals that every one must recognise as not being dangerous on account of their nature. Whether they are ferae naturae so far as rights of property are concerned is not the question; they certainly are not so in the sense that they are dangerous. There is another set of animals that the law has recognised in England as not being of a dangerous nature, such as sheep, horses, oxen, dogs, and others that I will not attempt to enumerate. I take it this recognition has come about from the fact that years ago, and continuously to the present time, the progeny of these classes has been found by experience to be harmless, and so the law assumes the result of this experience to be correct without further proof. Unless an animal is brought within one of these two descriptions- that is, unless it is shown to be either harmless by its very nature, or to belong to a class that has become so by what may be called cultivation-it falls within the class of animals as to which the rule is, that a man who keeps one must take the responsibility of keeping it safe. It cannot possibly be said that an elephant comes within the class of animals known to be harmless by nature, or within that shown by experience to be harmless in this country, and consequently it falls within the class of animals that a man keeps at his peril, and which he must prevent from doing injury under any circumstances, unless the person to whom the injury is done brings it on himself." 

(emphasis supplied)

11. In another English decision Stephen May v. Burdett [(1846) 9 Q.B.101], Lord Denman C.J. declared that 

"whoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous propensities. The negligence is in keeping such an animal after notice". 

(emphasis supplied)

12. Denman C.J. further held that 

"a person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril and that if it does mischief, negligence is presumed, without express averments".

13. In Read v. Lyons & Co. [1947 A.C.156, Q.B] held that "the keeper of a dangerous animal was under an absolute duty to confine and control it so that it should not do harm and where injury was caused by such an animal whilst out of control the rule of absolute liability will be applied".

14. In India the leading case is in Vedapuratti alias Valiya Thampuratti and Seven Others v. Koppan Nair [(1912)I.L.R.35 Madras 708], Justice Sankaran Nair and Justice Ayling relying on Filburn v. People Palace and Aquarium Company Limited [(1890)25 Q.B.D.258], held that 

"It is impossible to say, as the same learned judge points out, that an elephant is harmless by nature. The contention before us is that it falls within the same category as a horse. The test according to Lord Esher for determining this is whether years ago and continuously up to the present time the progeny of this class of animals has been found by experience to be harmless. In that case the law assumes the result of his experience to be correct. It is true that in ancient Rome it is said that elephants were bred in captivity and the Romans made use of them in war, in the amphitheatre and in military pageants. The results of their experience have not been handed down to us. Though common in those days, elephants are said to have been almost unknown for centuries in Europe after the decline of the Roman Empire. The kings of ancient India, like the Carthagenians, employed them in wars, but whether they were then bred in captivity, it does not appear. It is certain, however, that, though elephants have been known to breed in captivity, it is of the rarest occurrence in India, although in Burma it is said such births are common owing to the fact that domesticated females are allowed to roam in jungles. Domesticated or tamed animals in India have been reclaimed from the wild state-and it is conceded in this case that the Mankada elephant was caught when wild-even after they are tamed their nature often asserts itself. If therefore we apply the test laid down by Lord Esher, in India, we cannot presume that the elephant is not of a dangerous nature. LINDLEY, L.J., and BOWEN, L.J., also lay down that the question is whether the particular class of animals is dangerous, though individuals may be tamed, and if a person keeps an animal belonging to a class which is dangerous, he takes the risk of any damage it may do. Elephants undoubtedly as a class are dangerous though individuals may be tamed and perhaps domesticated". 

(emphasis supplied)

15. The above decision was followed in the decision reported in Madhavan v. Raja Raja Varma(1993(1) K.L.T.616). Thus English Law has been adopted and applied by High Court of Madras, High Court of Travancore and this Court also. If from the experience of the mankind a particular class of animal is dangerous, though individuals may be tamed, a person who keeps one of the class takes the risk of any damages, it may do. Thus lion, bear, wolf, monkey and elephant are regarded as savage animals. He who keeps savage animal does so at his peril. In the decision reported in Nitin Walia v. Union of India (AIR 2001 Delhi 140) the Supreme Court held that "Courts recognised that there are many activities which are so hazardous that they constitute constant danger to person or property of others. Such activities can either be prohibited altogether by law or can be allowed to be carried on for the sake of their social utility but in accordance with their statutory provision laying down safety measures and providing for sanctions of non-compliance. Law may allow them to be tolerated on condition that they pay their way regardless of any fault. Thus in such cases undertakers of the activities have to compensate for the damage caused irrespective of any carelessness on their part. The basis of liability is foreseeable risk inherent in the very nature of the activities. This is founded on the principle of Strict Liability where negligence based on foreseeable harm is presumed". (emphasis supplied)

16. Let us consider another defence advanced in pleadings by the 1st defendant. The points are (1) Whether wrongful act of a third party can be a defence to liability for the damage caused by a dangerous animal? (2) Whether defence that a particular animal was always quiet, well trained and tamed makes any difference in the application of strict liability? According to the 1st defendant, injury was the result of stampede and the elephant has not attacked the plaintiff directly. In short the injury was the result of an act of a third party. Similarly, another defence version advanced by DW2, the son of the 1st defendant is that this particular elephant 'Sivan' was always quiet, well trained and well tamed and never behaved violently or caused damages so far. He has given evidence, seeking an exception in general category of elephants. These issues are considered in an identical case, Behrens and another v. Beriram Mills Circus Ltd [(1957)2 Q.B.1]. There, the plaintiffs, husband and wife were midgets who were conducting a funfair booth adjoining to defendants' circus tents on licence granted by defendant circus company. Plaintiffs' manager had a small dog which had been introduced into the premises contrary to the defendants' rules. One day when six elephants of the circus company while passing the booth, the dog ran out barking and snapping at one of them. The elephants turned and went after the dog and plaintiffs' booth was knocked down, the female plaintiff was seriously injured by falling parts of the booth. None of the elephants directly attacked either of the plaintiffs. In the above factual matrix, three points were considered by the Queens Bench (1) none of the elephants directly attacked either of the plaintiff (2) the act of the elephant was caused by the wrongful act of a third party, the plaintiffs' manager in introducing the dog into the fun fair. (3) The midgets were conducting the booth on the licence given by the circus company with the knowledge that the elephants are being kept and brought to circus ring through the passage lying in front of the booth. After discussing various judicial precedents based on English common law, Queens Bench laid down following propositions:

1) The wrongful act of a third party afforded no defence to liability for injury done by a savage animal. The Queens Bench relied on Reylands' case (Supra). 

2) As a matter of law, all elephants were dangerous and that it made no difference that a particular elephant in question was a highly trained Burmese elephant and in fact tame, for the harmfulness of an offending animal was to be judged not by the particular training and habit, but by reference to the general habit of the species to which it belonged (Relied on Filburn v. Peoples Palace and Aquarium Company [(1890) 25 QBD 258]). 

3) The keeper of a dangerous animal is under an absolute duty to confine and control it so that it should do no harm, and hence injury was caused by such an animal whilst out of control, the rule of absolute liability will be applied whether or not the injury resulted from the animals vicious or savage propensity.

17. Therefore, relying on judicial precedents as stated above, it can be safely concluded that elephant is a dangerous animal(ferae naturae) and the owner/keeper of an elephant is strictly liable, independently of negligence, for the damage caused by the elephant. The contentions that the dangerous animal was provoked by the wrongful act of a third party and thereby damage was caused, and this particular dangerous animal was well trained, tamed and never behaved violently or caused damage, are unsustainable defence in law. This line of defence does not make any difference in the application of strict liability.

18. In the light of the above discussion, it could be held that the contentions raised by the defendant that the incident was caused by stampede, and not by the direct attack of the elephant, does not make any difference in the application of strict liability. Similarly another defence version that this particular elephant was quiet, well trained and never caused violence also does not give any exception to the elephant 'Sivan' from the category of dangerous animals, so as to escape from the liability. Therefore, we find that the defence version pleaded in the written statement, even if accepted and proved, that will not absolve the defendant from the clutches of strict liability to compensate the defendant, even if he is not negligent or careless in keeping the animal in the pooram procession, as elephant is a dangerous animal. To sum up, if a dangerous animal attacks, liability follows. The owner of a dangerous animal keeps it at his peril and is liable for all damages which it does , if it escapes.

19. Let us consider the merits of the case also. The learned counsel for the appellant contended that the plaintiff miserably failed to prove the incident as pleaded in the plaint and the compensation order is not justifiable. The medical evidence is not sufficient and the doctor who treated the plaintiff was not examined. He further contended that the trial court decreed the suit as prayed for, without considering the facts and evidence in its correct perspective. The plaintiff was allowed to realise an amount of Rs.85,000/- with interest at the rate of 12%. But in appeal, the learned Single Judge though concurred with the merits of the case except the quantum of compensation, reduced compensation to Rs.53,000/- with interest at the rate of 6%. The trial court granted Rs.20,000/- for pain and sufferings but the appellate Court reduced it to Rs.10,000/-. Similarly Rs.50,000/- was granted for 25% permanent disability. But the learned Single Judge reduced that amount to Rs.30,000/-. Thus considerable reduction was made mainly under the above counts.

20. On an evaluation of the evidence on record, it could be seen that the incident as alleged by the plaintiff is proved by the Evidence given by PW1 and PW3. PW3 is none other than a person who sustained injury in the very same incident. PW4 has also given evidence supporting the plaintiff as independent witness. Thus the evidence of PW1 was corroborated by PWs.3and 4. It is proved that the plaintiff was an inpatient in the hospital and treated for a period from 16-4-1989 to 7-6-1989. He had undergone three surgeries. Though, the Doctor who treated him was not available, PW2,another Doctor was examined and proved Ext.X1 inpatient records. Per contra, DW1 and DW2 were examined to prove defence version. DW1 is none other than the Accountant of the first defendant who has been working with the first defendant since the last 14 years. His evidence is unreliable. DW2, the son of the first defendant was examined to prove the defence version, which we have already discussed and ruled out under law. Thus in merit also, plaintiff's case is proved by cogent evidence. We have considered the method of fixing compensation by the courts below. Ext.A1 disability certificate shows that the plaintiff has sustained 25% disability. We see no grounds to interfere with the modified compensation awarded by the learned Single Judge of this Court. At all points, the appeal fails. We confirm the decree and judgment passed by the learned Single Judge of this Court. 

In the result, this appeal is dismissed. Parties are directed to bear their respective costs.

Sd/- K.M. JOSEPH, JUDGE

Sd/- K. HARILAL, JUDGE

True copy P.S. to Judge ks