IMPORTANT POINT
Elephant is a dangerous animal and the owner/keeper of an elephant is strictly liable, independently of negligence, for the damage caused by the elephant.

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 foot-path; the abovesaid 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 someone 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 t