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1991 Supreme(Guj) 92
Gujarat High Court
Judgename :SHARAD D.DAVE, R.D.VYAS
MUNICIPAL CORPORATION, RAJKOT - Appellant
Versus
MAJULABEN JAYANTILAL nakum Wd./o.DECD.JAYANTILAL chhaganlal - Respondent
First Appeal 259 of 1980
Decided On : 03/20/1991
Headnote:
Corporations Act, 1949 – Sections 66, 202 – Damages for Negligence – A commuter gets down at Rajkot Railway Station – He paces towards his office through Kothi Compound – Though a "fine Weather Day" a tree suddenly falls upon and kills him –Heirs of the victim sue the rajkot Municipal Corporation in damages and that too successfully – Rajkot Municipal Corporation appeals – Question posed is - Could Corporation have been held liable in damages for negligence – Ultimate answer would depend upon a few offshoots - Was there a duty to take care – Was that duty breached by the Corporation – Was there a "reasonable Foreseeability" – Could the "risk" have been "foreseeable" by the Corporation by resorting to a reasonable standard of care – Held, Court feel no hesitation in coming to the conclusion that the unfortunate incident was the result of carelessness and negligence on the part of the defendant-Municipal Corporation – Therefore the judgment and decree under appeal require to be confirmed and upheld, though slightly on a different footing – Court incorporate, constitute and run the Corporations for the welfare of the citizens, and by passage of time new liabilities shall have to be shouldered by the corporations – Court also feel that the necessary man power and financial resources shall also have to be set apart for discharging such liabilities in a better manner – But court feel that, that shall have to be done because as stated above, court is emerging towards a Welfare State – Appeal Dismissed
Key Points: - The appeal was against a lower court decision holding a municipal corporation liable in damages when a tree fell and killed a commuter during fine weather. (!) - The judgment addresses the core legal question: "Could the Corporation have been held liable in damages for negligence?" (!) - For negligence, the plaintiff must establish: (1) a duty of care was owed, (2) that duty was breached, and (3) the plaintiff suffered damage causally connected to the breach. (!) (!) - The court found that under the Bombay Provincial Municipal Corporations Act, 1949, the duty to maintain trees on roadsides is a statutory duty, which can be an absolute duty. (!) (!) - For an absolute duty, the plaintiff does not need to show exactly how the failure to comply with the duty arose, only that the requirements of the statute have not been complied with. (!) - The court held that the doctrine of res ipsa loquitur can apply, meaning the event itself (a tree falling during fine weather) raises a presumption of negligence. (!) (!) - The municipal corporation failed to provide evidence that it took reasonable care in maintaining the tree, and it abandoned its defense that the tree fell due to a cyclone (Act of God). (!) (!) - The court concluded the incident was the result of carelessness and negligence on the part of the defendant-Municipal Corporation, upholding the lower court's decree. (!) (!)
What is the test for establishing negligence in cases involving the fall of a tree under a municipal corporation's care?
How to determine if a municipal corporation breached its statutory duty of care regarding tree maintenance?
What are the rights of the heirs of a victim killed by a falling tree to claim damages from a municipal corporation?
( 1 ) A commuter gets down at Rajkot Railway Station. He paces towards his office through Kothi Compound. Though a "fine Weather Day" a tree suddenly falls upon and kills him. The heirs of the victim sue the rajkot Municipal Corporation in damages and that too sucessfully. We understand, the amount has been paid. The Rajkot Municipal Corporation appeals. The question posed is - Could the Corporation have been held liable in damages for negligence ? The ultimate answer would depend upon a few offshoots - Was there a duty to take care ? Was that duty breached by the Corporation ? Was there a "reasonable Foreseeability" ? Could the "risk" have been "foreseeable" by the Corporation by resorting to a reasonable standard of care ? Let us examine :
( 2 ) ONE Jayantilal Nakum, a resident of village Padadhari used to work at rajkot as a clerk in the office of director of Industries situated in the Collectors office compound. The deceased used to commute between Padadhari and Rajkot by train. On 25-3-1975 at about 10 a. m. he had got down from the train at rajkot Railway Station and later on was proceeding towards his office. He was to cover an area known as Kothi Compound. While he was walking in the Kothi compound, a tree suddenly fell upon him and killed him. It is in the background of these facts that the widow and minor children had approached the Civil Court, senior Division, Rajkot, by filing the Special Civil Suit No. 11 of 1976. The case put forth by the plaintiffs in brief is to the effect that the deceased was quite healthy and that he was the bread-winner of the family. According to the plaintiffs, all the trees in the City of Rajkot are deemed to be of the ownership and under the maintenance and management of the defendant-Municipal Corporation and that, the Corporation was obliged to maintain the trees and look after them properly. It is also the case of the plaintiffs that the defendant-Corporation was careless and negligent in looking after the proper maintenance of the trees, including the tree which had fallen upon the deceased. It is also the case put forth by the plaintiff very clearly that the tree which had fallen down upon the deceased and had killed him was not a sound tree but was a decayed one. It is therefore the case of the plaintiff that the tree had suddenly fallen on the deceased during a fine weather. The case of the applicant therefore is that the defendant-Municipal Corporation had failed in discharge of the duty of maintenance of the tree in a proper fashion, resulting into the incident.
( 3 ) SO far as the case regarding the quantum of compensation is concerned, it is the case of the plaintiff that the deceased was aged about 28 years at the time of death and was expected to be in service up to the age of 60 years and that, therefore, making a reasonable assessment of the loss they would be entitled to the amount of Rs. 1,21,000. 00 from the defendant-Corporation together with the interest and cost. Any how they had made the claim in sum of Rs. 1,00,000. 00 against the defendant-Corporation together with the interest and cost.
( 4 ) THE defendant-Corporation had appeared and have challenged the case of the plaintiff by filing the W. S. at Ex. 5. It is inter alia contended that the suit is not maintainable and that the defendant-Corporation would not be liable for paying the damages as claimed by the plaintiff. The defendant have denied the case of the plaintiff that the unfortunate incident had taken place during the fine weather and have further contended that there was a heavy cyclone throughout the region of Saurashtra and that, several trees at various places had fallen down and the house property at various places damaged and the roofs were blown off. Thus according to the defendant-Corporation the reason of the fall of the tree was Vis Major, i. e. the Act of God, for which the defendant-Corporation cannot be made liable.
( 5 ) UNION the above said pleadings of the parties the learn
