VOHRA SADIKBHAI RAJAKBHAI & ORS. Vs. STATE OF GUJARAT & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1866 of 2016, Judgment Date: May 10, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1866 OF 2016
VOHRA SADIKBHAI RAJAKBHAI & ORS. .....APPELLANT(S)
VERSUS
STATE OF GUJARAT & ORS. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
The essence of the issue that needs to be decided in the
instant appeal is captured by the appellants by formulating the following
substantial question of law; though the same is not appropriately framed:
“Whether gross negligence in not maintaining particular level of water in
the dam by the respondents; that has resulted into damage and destruction
to the plantation of the appellants, causing loss of livelihood, could be
said to be an 'Act of God'?”
It so happened that the respondents had constructed and maintained a dam.
60,000 cusecs of water from this dam was released, which flooded the land
of the appellants and destroyed the plantation therein. As per the
respondents, the water had to be released from the dam as it reached
alarming level because of heavy rains and non-release would have breached
the dam. The action was, thus, taken in public interest and it was
occasioned because of the rains, which was an act of God. The appellants,
on the other hand, contend that it was sheer negligence on the part of the
respondents in not maintaining low level of the water keeping in mind the
ensuing monsoon season and, therefore, the damage which the appellants have
suffered has direct nexus or causal connection with the aforesaid act of
negligence and it cannot be attributed to the rains. It is, thus, pleaded
that the respondents cannot term it as an act of God and excuse themselves
from the tortious liability.
There is hardly any dispute on the factual matrix under which the aforesaid
issue has cropped up for determination.
The appellants herein are the owners of land, which is proximate to the
Mazum dam that has been built over river Mazum. They had grown hybrid
berry trees over the said land which, they claim, belong to their ancestors
and were earning their livelihood from the fruits of the said trees.
Respondents have built a dam over River Mazum in the nearby area for
supplying water for irrigational purpose and thereby to earn revenue. In
June 1997, there were heavy rains in the said area which resulted in
overflowing of the water in the dam. In order to save the dam, the
respondents released nearly 60,000 cusecs of water. This release of water
flooded the fields of the appellants. With the submerging of the land of
the appellants, all the trees standing on the land got uprooted resulting
in destroying the whole cultivation of hybrid berries. According to the
appellants, there entire 8 bighas of agricultural land became part of the
river Mazum and the only source of livelihood was lost.
The appellants claimed compensation for the damage done to the trees
standing on the said land by serving legal notice to the respondents under
Section 80 of the Code of Civil Procedure, 1908. Damages and compensation
to the extent of ?21,50,000 was claimed alleging that it happened due to
gross negligence and lack of administration on the part of the respondents.
The case set up in the notice was that the respondents had stored more
than the retention capacity of the water in the dam during the month of
June 1997 despite knowing fully well that during the ensuing rainy season
there would be more flow of water in the dam. This act on the part of the
respondents was termed as an act of gross negligence and lack of good
administration. No reply to the notice was given by the respondents, which
forced the appellants to file a civil suit in April 1998 against the
respondents for a compensation of ?21,50,000.
The trial court appointed Court Commissioners to verify the position of the
agricultural land of the appellants and report the ground situation to the
Court. The team of Court Commissioners, known as panchas, who visited the
site, submitted their report for inspection confirming the submergence of
the agricultural fields of the appellants. They also reported that due to
this submergence, the trees of the appellants grown on the said land were
uprooted and were lying amidst the mud and sand brought by the river water.
In this report, they also mentioned that as many as 1500 boar trees were
uprooted and washed away due to the said floods. Several photographs were
also annexed with the report in respect of the aforesaid inspection carried
out by the Court Commissioners.
Respondents contested the suit inter alia on the ground that the place
where the said dam, known as Mazum dam Water Scheme, is constructed was
situated nearby the village Volva of Modasa, which is 33 kms. away from the
place of the appellants. It was further stated that due to heavy rains the
water level of the dam had gone abnormally high and, therefore, there was
no option but to release further water flow from the dam in the river to
control the floods. For this purpose, advance information was given to the
offices such as the Head of Departments, Revenue Authorities, etc. It was
also stated that during the monsoon season at what level the capacity of
the water is to be filled in the Mazum dam is decided in advance. But in
the eventuality of the heavy rain fall at the upper side areas, to maintain
the level of the water dam, the additional water received from the upper
areas are released into the river by opening the doors of the dam so that
any damage to the dam can be prevented. This decision of how much water
has to be released into the river is taken by the Competent Officer. On
that basis, it was pleaded that no compensation was payable as the
respondents were forced to take the decision to avert natural calamity and
this decision was occasioned because of excessive rain, which was an act of
God.
On the basis of pleadings, following issues were framed by the trial court:
“(i) Whether plaintiff proves the suit claim?
(ii) Whether plaintiffs are entitled to get the interest on suit claim?
If yes, at what rate?
(iii) Whether plaintiffs prove that they have given legal notice to the
defendants?
(iv) What order and decree?”
Though Issue No.3 was decided in favour of the appellants holding that a
proper notice was served upon the respondents under Section 80 of the Code
of Civil Procedure, 1908 before filing the suit, insofar as Issue No.1 is
concerned, the findings of the trial court went against the appellants.
The trial court held that the respondents were forced to release the water
due to the heavy rains. The trial court also found that land of the
appellants is situated adjacent to the river bank and, therefore, due to
heavy rain, the river could have overflown resulting in entering of the
water into the fields of the appellants in any case. It further held that
action of the respondents in releasing the water from dam was a prudent
action keeping in view that minimum damage is caused to the public at large
because of the heavy rains, which is dependent upon the nature. The trial
court further held that the appellants had not given specific evidence
about the actual loss, i.e. how many trees the appellants were having and
how many out of those trees were washed away in the water. Likewise, the
appellants had also failed to produce the evidence with regard to the price
of the produce allegedly destroyed by obtaining the information in this
regard from the Agricultural Produce Marketing Committee. Though the
appellants had examined one witness, he had given only oral testimony
without any documentary support. The trial court also concluded that the
appellants could not prove that they had suffered damage and loss due to
the negligence on the part of the respondents. On the basis of the
aforesaid findings, the suit of the appellants was dismissed. The
appellants preferred an appeal against the said judgment, which has also
been dismissed by the High Court vide judgment dated June 27, 2011, which
is impugned in the instant appeal.
A perusal of the judgment in appeal would reflect that since the water had
to be released from the dam, as a result of excessive rain, in order to see
that less damage is caused, it was a force majeure circumstance and,
therefore, the appellants were not entitled to any compensation.
We may state at the outset that there is no dispute on basic facts. It is
admitted by the respondents that a decision was taken to release the water
from the dam. It has also come on record that the respondents had decided
to release 60,000 cusecs of water. Because of the release of this water,
land of the appellants with standing fruit bearing trees got submerged. It
resulted in uprooting and destroying many trees. The panchas, who were
appointed by the Court to visit the site have submitted their report to
this effect stating that almost 1500 trees were damaged. On these facts,
two aspects need consideration, which are:
(a) Whether the act of releasing the water from the dam would amount to
negligence on the part of the respondents or it was inevitable due to heavy
rains and is to be treated as an 'act of God'?
(b) If the answer to the aforesaid question is in the affirmative, whether
the appellants would be entitled to some compensation even in the absence
of proof of actual/exact damage caused?
We may state at the outset that neither the appellants prosecuted their
case properly nor the respondents contested it appropriately. No doubt,
the appellants submitted that there was negligence on the part of the
respondents in not ensuring that the water level is maintained at
sufficiently low level to meet the exigency of accumulation of further
water because of the ensuing rains as they have also pleaded that the
plantations in their fields got damaged because of the release of water by
the appellants. However, they have not led any specific evidence to show
the loss. It has also not come on record as to at what level the water was
in the dam before the rains. On the other hand, the respondents took the
plea that the water level in the dam rose because of torrential rains which
has resulted in overflowing of the water in the dam and the decision to
release the water became necessary in the larger public interest. However,
the respondents have also not properly controverted the allegations of the
appellants that water was not maintained at an appropriate level to take
care of ensuing monsoons. They have also not supported their plea by
leading any evidence to the effect that had the water been not released it
would have breached the dam and that act would have caused more public
harm. The courts below also took a myopic view by simply going by the fact
that the action on the part of the respondents in releasing the water from
the dam was necessitated because of heavy rains and those heavy rains are
an 'act of God'.
No doubt, both the parties agree that the overflowing of the dam was caused
due to heavy rains. However, the question is as to whether the respondents
were supposed to take reasonable care in this behalf by keeping the level
of water in the dam sufficiently low in order to meet the exigency of
ensuing monsoon? This would have depended upon another factor, namely,
whether the rains in the said season were much more than normal and beyond
the expected level or it was known before hand, as per the prediction of
the Meteorological Department that there would be heavy rains? It is only
on that basis one can find out as to whether there was negligence on the
part of the respondents in keeping the particular level of water in the dam
by not taking into consideration the possible flow of the water as a result
of expected rains.
The admitted facts on record are that the damage to the trees and
plantation of the appellants is caused due to the release of water from the
dam by the respondents. A specific plea is raised that the respondents had
stored more than the retention capacity of the water in the dam during the
month of June 1997 despite knowing fully well that during the ensuing
monsoon season there would be more flow of water in the dam.
Since the dam is constructed and maintained by the respondents and the
appellants suffered losses as a result of release of water from the said
dam, onus was on the respondents to prove that they had taken proper care
in maintaining appropriate level of water in the dam taking into account
the provision for the water that can get accumulated in the said dam due to
the forthcoming rainy season. The respondents are the owners of the dam
in question. They are expected to keep the said dam in such a condition
which avoids any loss or damage of any nature to the neighbours or passers
by. The doctrine of strict liability, which has its origin in the case of
Rylands v. Fletcher[1], will have application in the instant case.
Following observations of Blackburn, J. state the principle of strict
liability:
“The rule of law is that the person who, for his own purpose, brings on his
land and collects and keeps 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 is the natural consequence of its
escape.”
The learned Judge went further to expound the aforesaid
principle in the following manner:
“The general rule as above stated seems on principle just. The person
whose grass or corn is eaten down by the escaping cattle of his neighbour,
or whose mine is flooded by the water from his neighbour's reservoir, or
whose cellar is invaded by the filth of his neighbour's privy, or whose
habitation is made unhealthy by the fumes and noisome vapours of his
neighbour's alkali work is damnified without any fault of his own; and it
seems but reasonable and just that the neighbour, who has brought something
on his own property which was not naturally there, harmless to other so
long as it is confined to his own property, but which he knows to be
mischievous if it gets on his neighbour's, should be obliged to make good
the damage which ensues if he does not succeed in confining it to his own
property. But for his act in bringing it there no mischief could have
accrued, and it seems but just that he should at his peril keep it there so
that no mischief may accrue, or answer for the natural and anticipated
consequences.”
Lord Cairns, while agreeing with the aforesaid view of Blackburn, J.,
clarified that this rule shall apply where there was non-natural user of
land. This concept of non-natural use of land was succinctly brought out
by the Privy Council in Rickards v. Lothian[2], as is clear from the
following formulation:
“It is not every use to which land is put that brings into play this
principle. It must be some special use bringing with it increased danger
to others, and must not merely be the ordinary use of the land or such a
use as is proper for the general benefit of the community.”
In Read v. J. Lyons & Co.[3], another qualification to the aforesaid rule
was added, namely, the non-natural use by the offending party should result
in 'escape' of the thing from his land which causes damage and so in the
absence of 'escape', the rule has no application.
The aforesaid principle has withstood the test of time as it is not only
followed by the courts in England in subsequent judgments repeatedly, even
this Court has adopted in certain cases and extended to cover accidents
arising out of use of motor vehicles on road. {See – State of Punjab v.
Modern Cultivators[4]; Indian Council for Enviro Legal Action v. Union of
India[5]; and Kusuma Begum (Smt.) v. The New India Assurance Co. Ltd.[6]}.
In Modern Cultivators' case referred to above, the damage was caused by
overflowing of water from a breach in a canal. This Court held that use of
land for construction of a canal system is an ordinary use and not a non-
natural use. The Court attributed negligence on the part of the
authorities and awarded damages to the plaintiff therein on the said
findings of negligence. In this case, thus, the damages were awarded even
when the use of land for construction of a canal system was found to be an
ordinary use.
In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat[7], this Court
explained the ratio of Modern Cultivators in scholarly manner, as follows:
“12. Was the ratio in Rylands v. Fletcher modified by this Court in Modern
Cultivators? If so to what extent? What is its effect on facts of this
case? That was a case where the land of the plaintiff used for silting
operation was flooded due to escape of canal water. It was claimed that in
absence of proof of negligence the suit was not liable to be decreed. The
Court did not apply the principle laid down in Rylands v. Fletcher:
“That any occupier of land who brings or keeps upon it anything likely to
do damage if it escapes is bound at his peril to prevent its escape and is
liable for all the direct consequences of its escape, even if he has been
guilty of no negligence....a principle derivatively created from the rule
of 'strict liability'....as canal systems are essential to the life of a
nation and land that is used as canals is subjected to an ordinary use and
not to unnatural use.”
The Court preferred to rely on the principle developed by American Courts
on canal breaks and applied the principle of 'fault liability' which may
even be inferred from circumstances. The view of the High Court,
therefore, that the rule of strict liability was modified by this Court in
Modern Cultivators does not appear to be correct. 'Absolute liability', or
'strict liability' and 'fault liability' do not go together.”
In Jay Laxmi's case, damage was caused by overflow of water from a
reclamation bundh constructed by the State of Gujarat for reclamation of
vast area of land from saltish water of sea. In this case, this Court held
the Government responsible as the said act was treated as violation of
public duty and negligence which lay in defective planning and construction
of the bundh. On that premise, damages were awarded. The Court explained
the jurisprudence of liability in torts and also the two principles,
namely, 'strict liability' and 'fault liability', in paragraph 8 and
thereafter enumerated other circumstances which may fall in-between 'strict
liability' and 'fault liability', in paragraph 9. We would like to quote
hereinbelow these two paragaphs for our benefit:
“8. Winfield has defined tortious law arising from breach of a duty
primarily fixed by law; this duty is towards persons generally and its
breach is redressable by an action for unliquidated damages. In general,
torts consist of some act done without just cause or excuse.
“The law of torts exists for the purpose of preventing men from hurting one
another whether in respect of their property, their presence, their
reputations or anything which is theirs.”
Injury and damage are two basic ingredients of tort. Although these may be
found in contract as well but the violations which may result in tortious
liability are breach of duty primarily fixed by the law while in contract
they are fixed by the parties themselves. Further in tort the duty is
towards persons generally. In contract it is towards specific person or
persons. An action for tort is usually a claim for pecuniary compensation
in respect of damages suffered as a result of the invasion of a legally
protected interest. But law of torts being a developing law its frontiers
are incapable of being strictly barricaded. Liability in tort which in
course of time has become known as ‘strict liability’, ‘absolute
liability’, ‘fault liability’ have all gradually grown and with passage of
time have become firmly entrenched. ‘Absolute liability’ or “special use
bringing with it increased dangers to others” (Rylands v. Fletcher [LR
(1868) 3 HL 330 : 37 LJ Ex 161 : [1861-73] All ER Rep 1] ) and ‘fault
liability’ are different forms which give rise to action in torts. The
distance (sic difference) between ‘strict liability’ and ‘fault liability’
arises from presence and absence of mental element. A breach of legal duty
wilfully, or deliberately or even maliciously is negligence emanating from
fault liability but injury or damage resulting without any intention yet
due to lack of foresight etc. is strict liability. Since duty is the
primary yardstick to determine the tortious liability its ambit keeps on
widening on the touchstone of fairness, practicality of the situation etc.
In Donoghue v. Stevenson[(1932) AC 562 : 1932 All ER Rep 1] a manufacturer
was held to be liable to ultimate consumer on the principle of duty to
care. In Anns v. Merton London Borough Council [(1978) AC 728 : (1977) 2
All ER 492] it was, rightly, observed:
“[T]he broad general principle of liability for foreseeable damage is so
widely applicable that the function of the duty of care is not so much to
identify cases where liability is imposed as to identify those where it is
not,….”
Truly speaking entire law of torts is founded and structured on morality
that no one has a right to injure or harm others intentionally or even
innocently. Therefore, it would be primitive to class strictly or close
finality (sic finally) the ever- expanding and growing horizon of tortious
liability. Even for social development, orderly growth of the society and
cultural refineness, the liberal approach to tortious liability by courts
is more conducive.
9. In between strict liability and fault liability there may be numerous
circumstances in which one may be entitled to sue for damages. And it may
be partly one or the other or may be both. In a welfare society
construction of dam or bundh for the sake of community is essential
function and use of land or accumulation of water for the benefit of
society cannot be non-natural user. But that cannot absolve the State from
its duty of being responsible to its citizens for such violations as are
actionable and result in damage, loss or injury. What is fundamental is
injury and not the manner in which it has been caused. ‘Strict liability’,
‘absolute liability’, ‘fault liability’ and ‘neighbour proximity’ are all
refinements and development of law by English Courts for the benefit of
society and the common man. Once the occasion for loss or damage is failure
of duty, general or specific, the cause of action under tort arises. It may
be due to negligence, nuisance, trespass, inevitable mistake etc. It may be
even otherwise. In a developed or developing society the concept of duty
keeps on changing and may extend to even such matters as was highlighted in
Donoghue v. Stevenson [(1932) AC 562 : 1932 All ER Rep 1] where a
manufacturer was held responsible for injury to a consumer. They may
individually or even collectively give rise to tortious liability. Since
the appellant suffered loss on facts found due to action of respondent's
officers both at the stage of construction and failure to take steps even
at the last moment it was liable to be compensated.”
The Court, thereafter, explained that in order to become a
claim as actionable claim, it is necessary to determine that the defendant
was guilty of negligence.
There are two exceptions to the aforesaid rule of strict liability, which
were recognized in Rylands v. Fletcher itself, viz.: (a) where it can be
shown that the escape was owing to the plaintiff's default, or (b) the
escape was the consequence of vis major or the act of God. An act of God
is that which is a direct, violent, sudden and irresistible act of nature
as could not, by any amount of ability, have been foreseen, or if foreseen,
could not by any amount of human care and skill have been resisted.
Generally, those acts which are occasioned by the elementary forces of
nature, unconnected with the agency of man or other cause will come under
the category of acts of God. Examples are: storm, tempest, lightning,
extraordinary fall of rain, extraordinary high tide, extraordinary severe
frost, or a tidal bore which sweeps a ship in mid-water. What is important
here is that it is not necessary that it should be unique or that it should
happen for the first time. It is enough that it is extraordinary and such
as could not reasonably be anticipated. We would like to discuss a few
cases having bearing on this issue with which we are confronted in the
instant appeal.
In Nicholas v. Marsland[8], the respondent owned a series of artificial
lakes on his land. In the construction and maintenance of these lakes,
there had been negligence. However, owing to a most unusual fall of rain,
which was so abnormal that could not have been reasonably anticipated, some
of the reservoirs burst and carried away four country bridges. The
respondent was held not liable on the premise that the water escaped by the
act of God.
The aforesaid judgment in Nicholas's case was, however, criticized by the
House of Lords in Greenock Corporation v. Caledonian Railway[9]. In that
case, the Corporation obstructed and altered the course of a stream by
constructing a concrete paddling pool for children. Due to a rainfall of
extraordinary violence, a great volume of water which would normally have
been carried off by the stream overflowed the pad and caused damage to
plaintiff's property. The House of Lords held that the rainfall was not an
act of God and the Corporation was liable to pay damages as it was its duty
'so to work as to make proprietors or occupiers on a lower level as secure
against injury as they would have been had nature not been interfered
with”.
Such a situation came up before this Court as well in S. Vedantacharya &
Anr. v. Highways Department of South Arcot & Ors.[10]. In this case, this
Court held that before heavy rain can be accepted as a defence for the
collapse of a culvert, the defendant must indicate what anticipatory
prevention action was taken. We would like to quote the following passage
from the said judgment:
“State Government erected a reservoir adjoining the plaintiff's land in
order to provide drinking water facilities to a village in the State. The
State acquired a part of the plaintiff's land for the purpose of
constructing a channel for carrying the overflow of water from the
reservoir to a Nalla which was at a distance of about 1500 feet from the
waste-weir of the reservoir. This channel was however not constructed
except to the extent of 250 feet on the side of the Nalla. Due to very
heavy rainfall the water from the reservoir overflowed into the waste-weir
and thereafter flowed over the plaintiff's land, causing considerable
damage to the land and the crops standing thereon. In a suit by the
plaintiff for damages they alleged that due to the negligence of the State
in not taking proper precautions to guard against the overflow of water
they had sustained the loss. The State inter alia contended that the loss
was due to heavy rain which was an act of God and therefore they were not
liable and further that the construction of the reservoir was an act of the
State in the sovereign capacity and, therefore, it was not liable for the
tortious or negligent acts of its servants. It was held that the fact that
the danger materialised subsequently by an act of God was not a matter
which absolved the State from its liability for the earlier negligence in
that no proper channel for the flow or overflow of water from the waster-
weir was constructed by it in time; that the act of the State in
constructing the reservoir for the supply of drinking water to its citizens
at best could be considered a welfare act and not an act in its capacity as
a sovereign; and that, therefore, the State was liable in negligence for
the loss caused to the plaintiff.”
In nutshell, what needs to be examined is as to whether the damage to the
property of the appellant herein was the result of an inevitable accident
or unavoidable accident which could not possibly be prevented by the
exercise of ordinary care, caution and skill, i.e. it was an accident
physically unavoidable. While examining this issue, we have to keep in
mind that the onus was on the respondents to satisfy the aforesaid
requirements.
Undoubtedly, it has come on record that the overflow of dam was occasioned
by torrential and heavy rains. However, as pointed out above, the
appellants specifically pleaded that the respondent authorities did not
keep the level of water in the dam sufficiently low to take care of the
ensuing monsoon rains. They have, thus, set up the case that there was a
negligence on the part of the respondents in not taking care of the
forthcoming monsoon season and keeping the water level in the dam at
sufficiently low level to absorb the rainfall which was going to rise the
water level in the dam.
The respondents have not refuted the aforesaid averment of the appellants.
The only defence put up by them was that the overflow of the water in the
dam was occasioned by the rains in the monsoon season which compelled the
authorities to release the water from the dam in larger public interest.
In such a scenario, it was incumbent upon the respondents to demonstrate,
by adequate evidence, that the water in the dam was kept at reasonable and
proper level to take care of normal rains; the rains in the said monsoon
season were more than the ordinary rains which could not be foreseen; and
that the public purpose was served in taking the decision to release the
water which prevented larger catastrophe. Merely by saying that the level
of water in the dam increased because of monsoon rains and that the water
was released in public interest cannot be treated as discharging the burden
on the part of the respondents in warding off the allegation of negligence.
It is a matter of common knowledge that with advanced technology available
with the Meteorological Department in the form of satellite signals etc,
there is a possibility of precise prediction of the extant of rainfall in
the monsoon season. In view of the principle laid down in Rylands v.
Fletcher, onus was on the respondents to discharge such a burden, and it
has miserably failed to discharge the same. On that basis, we are
constrained to hold that there is a negligence on the part of the
respondents which caused damage to the fields of the appellants.
This brings us to the question of quantum of damages. No doubt,
actual/exact proof of damage is not given by the appellants. At the same
time, we find that the trial court had appointed Court Commissioners to
verify the position of agricultural lands of the appellants. The said
Court Commissioners, also known as panchas, had visited the site and
submitted their report for inspection confirming the loss suffered by the
appellants due to submergence of the agricultural fields of the appellants.
In this report, they specifically pointed out that as many as 1500 boar
trees were uprooted and washed away as a result of the release of water
from the dam which flooded the fields of the appellants. Several
photographs were also annexed along with the report to support the
aforesaid conclusion. This kind of evidence, which went unrebutted, proves
that the appellants have, in fact, suffered damages. No doubt, the
appellants have not led any evidence to show actual cost of each tree, in
order to arrive at the precise quantum of damages. However, even in the
absence of such an evidence showing exact loss suffered, the appellants
would still be entitled to reasonable compensation once factum of suffering
loss stands proved. Where a wrong has been committed, the wrong-doer must
suffer from the impossibility of accurately ascertaining the amount of
damages. Likewise, the party claiming compensation must give the best
evidence to prove damages. In the instant case, we find that the loss is
not only on account of rain, though a part thereof can be attributed to the
nature, but also due to the negligence on the part of the respondent
authorities in not taking due precautions in time which could have avoided
some loss/damage, if not entirely. If damage has resulted from two or
three causes, namely, from an act of God as well as a negligent act of a
party, the award of damages can be apportioned to compensate only the
injury that can be attributed to the negligent act of the respondents {See
Workman v. G.N. Ry. Co.[11]}
The appellants claimed damages to the tune of ?21,50,000, for which no
specific proof/evidence is given. At the same time, we find that one
Mohemmed Ikbal Mohemmedalam Galivala, who is an agriculturist, had appeared
as the plaintiffs' witness and deposed that he was having the agriculture
experience for the last 20 years, particularly experience of cultivation of
boar as well as its profit and income. He has given figures of losses
which the appellants had to suffer due to damage of plantation and loss of
income, etc. thereby trying to justify the claim of damages made by the
appellants, but those figures are not supported by any evidence. However,
it is not in dispute that loss has occurred and, therefore, a reasonable
compensation can still be awarded. Exercising our power under Article 142
of the Constitution, we are of the opinion that ends of justice would be
met in awarding damages to the tune of ?5,00,000. We have arrived at the
above figure keeping in view the statement of Mohemmed Ikbal Mohemmedalam
Galivala, witness who appeared on behalf of the appellants, though not
accepting the figures given by him in its entirety, and the cross-
examination of the respondents of this witness on this aspect. The
appellants shall also be entitled to interest from the date of judgment of
the trial court, i.e. December 24, 2010 at the rate of 9% per annum and
also the cost of the present appeal.
The appeal is allowed in the aforesaid terms. Decree be drawn accordingly.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R.K. AGRAWAL)
NEW DELHI;
MAY 10, 2016.
-----------------------
[1] (1868) LR 3 HL 330
[2] (1913) AC 263
[3] (1947) AC 156 (HL)
[4] AIR 1965 SC 17
[5] (1996) 2 Scale 44
[6] JT 2001 (1) SC 37
[7] (1994) 4 SCC 1
[8] (1875) LR 10 Ex.255
[9] (1917) AC 556 (HL)
[10] (1987) 3 SCC 400
[11] (1863) 32 LJQB 279
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