Posted On by &filed under High Court, Madras High Court.

Madras High Court
Ramanuja Mudali vs M. Gangan on 24 January, 1983
Equivalent citations: AIR 1984 Mad 103
Bench: Swamikkannu


1. This petition coming on for hearing on this day the Court delivered the following Judgment:_

2. The defendant is the revision petitioner. The plaintiff-respondent filed a suit for recovery of Rs. 3,000/- by way of damages and for costs.

3. It is an admitted fact that the plaintiff-respondent and the defendant-revision petitioner are the natives of 11 Vazhapandal villages. In the plaint, the plaintiff-respondent has averred that the defendant-revision petitioner herein in his evidence. The evidence of P. W. 2 is that be is cultivating the land of the village Munsif an waran basis and that he bas to cross the river channel to go to that land and that the said river channel is south of the lands of the defendant-revision petitioner herein. The further evidence of P. W. 2 is that he used to go through the land of the defendant-revision petitioner to reach the river channel to divort the river channel water to his lands for irrigation at nights, The specific evidence of P. W. 2 is that on the day in question i. e. 11-4-1979 at 10 P.M while he was going along the river channel he trod upon the live electric wire with the result he got electric shock. The further evidence of P W2 is that for the Protection of his lands the defendant revision petitioner had set up the live electric wire on, river channel. The further evidence o P. W. 2 is that the trod upon the said, electric wire and got electric shock with the result that he was thrown out and that he sustained charred injuries on his legs. The defendant-revision petitioner in his evidence has stated that he did not know anything about the occurrence. P. W. 3 Venkatadri states in his evidence that he went and saw the plaintiff lying down having been thrown out due to electric shock P. W. 1 Dr. A. P. Ramasamy Medical Officer attached to the Government Hospital Arni has deposed that it he examined the Plaintiff. P. W. 2 on 12-4-1979 at 3.40 A. M. and found injuries on him which were caused according to him at about 10 P. M. on 11-4-1979due to electric shock, The doctor found the following injuries on the ‘person of the Plaintiff-respondent herein :-

(1) A deep charred injury 3″ x 1/2″ 11/2″ over the front of, the left ankle joint:

(2) A deep charred injury 3″ x 2″ x” over the back of right ankle:

(3) A tender swelling 3// x 2″ over left wrist. X-ray of left fore-arm and left ankle was taken. X-ray of left/forearm reveals fracture of lower end of radius. X-ray of left ankle reveals bony lesion. The further evidence of P. W. I is that the plaintiff-respondent here in was admitted in the Government Hospital Arni on 12-4-1979 for treatment and he’ was discharged from the hospital on 12-5-1979. The wound certificate issued by P. W I for the injuries found on the plaintiff-it respondent is Ex. A. 1. P W 1 has opined that injuries 1 and 3 are grievous in nature and injury No. 2 is simple in nature. He has further opined that the injuries could have been caused in the manner and time alleged. Injuries Nos. I and 2 could be possible due to electric shock. Ex A. 2 discharge certificate shows that the plaintiff was Admitted in the hospital on 12-4-1979 and he was discharged on 12-5-197. The evidence of P. W. 2 is that he had spent Rs. 3,000/- for medical expenses. P. W. 1 has found on examination the front left ankle joint and the back of the right ankle of the plaintiff deeply charred. Therefore oil a consideration of the entire evidence the lower Court was of the opinion that the occurrence alleged by the plaintiff-respondent herein in the plaint was true. So it had held that on the day in question the plaintiff got electric shock when lie was going along the river channel where he trod upon the live wire trap set up by the defendant-revision petitioner herein.

4. The lower court had awarded Rs. 500/- as damages for the injuries caused by laying a live wire in the lands.

Belonging to the revision petitioner herein, This fact had been found by the lower Court after analysing the evidence on record, The revision petition has been fled in view of the amendment under Sec. 96(4) of the Code of Civil Procedure. Though it has a revisional jurisdiction that is being exercised this Court had the benefit of hearing comprehensively the various contentions raised a behalf of the revision petitioner through Mr. T.V. Balakrishnan learned counsel for the revision petitioner. In his interesting and thought provoking argument. Mr. T. V. Balakrishnan has submitted that there to granting damage in favour of the plaintiff-respondent herein inasmuch as it is not in dispute that there is a channel flowing on the northern side of the land in question. This Court had gone through the evidence comprehensively as well as by Mr. Mohan learned counsel for the respondent herein.

5. It is common ground that the plaintiff-respondent herein got injured, due to the live wire in his legs and his movements have been affected subsequent to the shock that he experienced due to the electric energy that was passing in the live wire. That the live wire was found inside the premises of the defendants is not in dispute. But what is suppressed (sic) now before this Court in is no ground available this revision is that as and. when the Plaintiff-respondent herein had passed through the lands belonging to the defendant-revision petitioner herein he ought to have exercised his discretion in applying his mind whether there could have been any preventive force made available so as to prevent trespassers from entering into the land and as much as he had gone and entered the land of the Plaintiff-respondent without applying his mind, mechanically he had actually suffered the injury if at all proved to be found it was at the instance of the plaintiff-respondent herein that the said live wire had been made to rest in the land belonging to the revision Petitioner.

6. Mr. Mohan, learned counsel for the respondent herein would also bring to the notice of this Court the decision British Railway Board v. Herrington (1972 AC 877) wherein it was held as follows:-

“Per Lord, Pearson. The rule in Addie’s case (1929 AC 358) has been rendered obsolete by changes in physical and social conditions. With the increase in the population and the greater Proportion living in towns where there is less space for children to play, there is a greater temptation for them to trespass. With the progress of technology there are more and greater dangers and there is considerably more need for occupiers to take reasonable steps to deter persons especially children, from trespassing in dangerous places ”

In the instant case it is common ground that it is only in the land belonging to the defendant-revision petitioner herein that those live wires were found and that there was no visible warning or notice regarding the existence of such live wires in the landing question I am able to appreciate the analogous position submitted by Mr. T. V. Balakrishnan learned counsel for the revision petitioner that no doubt that in a case of a person having a land without fence but yet left he well in the said land without constructing a parapet wall and due to that failure on the part of the land owner if any cattle strayed and fell down he cannot necessarily sustain a plea that the said cattle had been allowed to stray in his land without permission .So this proposition thus mentioned 1.) Mr. T. V. Balakrishnan the Position of law in also enlighten that it is the duty of the land owner to make it known if he has to lay a live wire as a sort of fence because it may be only in a concealed Position that there could have been any live’ energy passing in it. In the instant case it is common ground that the injured got the shock from the live wire lying in the land belonging to the defendant-revision petitioner herein at about 10 P.M when there was no light available in the neighbourhood. In this regard it is, relevant to note that at page 905 of the above decision, the observation of Be-t J., is to the following effect :-

“Humanity requires that the fullest notice possible should be given. and the law of England will not sanction what is inconsistent with humanity.”

7. In India also we follow the principles of law of Torts mostly propounded by the English Courts as Per the law of England and when there is no specific enactment in India relevant to the Tortious Act it is but necessary that we have to follow the principles laid down in the English decisions also in appreciating the facts of a case in which a claim is made on the basis of a Tortious Act. In this regard the decisions of the Supreme Court of India as well as the other High Courts are also guiding as to appreciate the evidence available on record in each case.

8. In Illot v. Wilkes (1820) 3 B. & Aid. 304 referred to at page 905 of the decision cited supra, it is held:-

“A trespasser who knew that 6ere were spring guns in a wood (without knowing the actual particular spots where they were placed) was injured when he trod on a talent wire and caused a gun to be fired. On the principle volenti non fit injuria he failed in his claim for damages.”

Baylav, Balay J. observed at page 312:

“……… although it may be lawful to put these instruments on a man’s own ground yet as they are calculated to produce great bodily injury to innocent Persons (for many trespassers are comparatively innocent it is necessary to give as much notice to the public as you can so as to Put people on their guard against the danger.”

In this regard Mr. Mohan. Learned counsel for the respondent would also point out the following observation of the House of Lords in British Railway Board v. Herrington (1972 AC 8771 at Page 906 which runs as follows:-

“If the passage’s to which I have referred show that ever in days when property rights were jealously safeguarded it was, firmly recognised that the dictates of humanity must guide conduct even towards trespassers such recognition must surely be no less firm today. ”

9. Hann sxiffered voluntarily does not constitute a legal injury and is not actionable. This principle is embodied in the maxim volenti non fit injuria (where the sufferer is willing no injury is done). A man cannot complain of harm to the chances of which he has exposed himself with knowledge and of his free will. The,-maxim, volenti non fit iniuria is founded on good sense and iustice. One who has invited or assent ed to an act being done towards him cannot, when he suffers from it. com plain of it as a wrong. The maxim applies in the first place to intentional acts which would otherwise be tortious.

10. In England the Occupiers’ Liability Act 1937 came into force on January. 1. 1958. The first and main change effected by the Act is that the rules which it contains replace the rules of the common law under which the duty of an occupier differs according as the visitor is an invitee or a licensee. Section 2(1) Provides that an occupier of premises owes the same duty, “the common duty of care,” to all his lawful visitors. except in so far as isfree to and does extend restrict modify or exclude his duty to any visitor or visitors by agreement or otherwise.The common duty of care is not owed to trespassers (Vide the. Decision in British O Railway Board v.Herrington(1972) AC 877).

11. Law of Torts recognises even duty to a trespasser. Ramasamv Iyer deals with this aspect of law in “The Law of Torts”. Seventh edition 1975 at page 381 which can be usefully extracted to appreciate the position of law in the instant case it runs as follows.-

“15. Duty to a trespasser. A trespasser is one who has no leave or license to enter another’, premises. He trespasses at his own risk. There is no duty, on an occupier to ensure that no trespasser enters his land nor to survey his land to discover the existence of danger., of which he is not aware since a trespasser trespasses at his peril (British Rly. Board V. Herrington 1972

A. C. 877), the occupier has no duty to warn him of existing defects, much less to take precautions for his safety. A railway company has been held not liable to a Person traveling without a ticket and injured by a collision (Grand Trunk Ry. of Canada v. Barnett. (1911) A. C. 361: Cf. G. N. Ry. Co v. Harrison (18541 10 Ex. 376: Twine v. Bean’s Express. Ltd.. (1946) 1 All ER 202 (unauthorised passenger in motor van), Conway v. George Wimpoy & Co. Ltd.. (1951) 2 KB 266 (CA) (similar facts); G. G. in Council v. Bibi Salma (1949) ILR 27 Pat 207: AIR 1949 Pat 38U A policeman who entered the defendant’s premises at night suspecting something wrong and fell into a sawpit was held to have no remedy. as he had no right to enter (G. C. Ry. Co., v. Bates (1921) 3 KB 578: Coffee v. Me Evey (1912) 2 Ir. R. 290. 296 H. M. S. Glatton (1923) P 215: Murley v. Groove, (1882) 46 J. P. 360). Even if he should be regarded not as a trespasser but as having a legal right to enter the defendant could not be held negligent in failing to make his premises safe for such an unexpected visitor (G. G. By. Co. v. Bates (1921) 3 K * B. 578. Vudean v. British Transport Commission (1963) 2 All ER 860). But a trespasser though he has no fight to active protection is not an outlaw and the occupier has some obligations even towards him. While the occupier is not under the same duty of care, which he owes to a visitor, he owes a trespasser a duty to take such steps as commonsense or common h1lamanity would indicate to exclude or to warn. or otherwise within reasonable and Practicable limits to reduce or avert danger (British Rly. Board v. Herrington 1972 AC 877). The occupier owes a duty not to cause wilful injury except what is reasonably necessary to avoid the entry of a trespasser or expel him after entry (Addle v. Dumbreck (1929) AC 358 at P. 368, Latham v. Johnson (1913) 1 KB 398 at 1) 411: Davis’ V. Lisle, 0 936) 2 All ER 213). The occupier for instance shoots or belabours an intruder or sets man-trap like a spring-gun (Bird v. Halbrook (1828) 4 Bing. 628; Begg v. Midland Rly. Co., (1857) 1 H & N 773 at P. 780 Per Bramwell. 13. to set a spring gun not dangerous to life but intended to cause alarm is not an offence. Wootton v. Dawkine ((1857) 2

CBNS 412). He may however adopt reasonable measures for prevention of trespass (The Calgarh (1927) p. 93~ e. 9., putting up a barbed wire fence. a gate with iron spikes or a wall with broken glass (Dane v. Clayton. (1870) 7 Taunt, P. 521: as to keeping a dog accustomed to bite men. Sareh v. Blackburn (1830)4 C&P 297 at P. 300: Brock v. Copeland (1794) 1 Esp. 203. Lennon v. Fizher (19231 25 Bom LR 873: (AIR 1924Bom 207) (plaintiff. an invitee bite by adog). A trespasser or a thief hurt bysuch things cannot obviously make complaint. The occupier owes a duty not todo any act involving danger to trespassers in the premises with knowledge oftheir Presence or its ikelihood. With such knowledge, the occupier cannot for instance cause a dangerous explosion or Practice shooting in his (For, an illustration of a trespasser whose Presence was unsuspected being able to sue. see Restatement.. para (2) . A driver of a rail way engine who sees a trespasser on the line is bound to use reasonable care to avoid running over him by way of whistling and warning or if need be by slowing or stopping the train Ismaily V.BB. & C. 1. Ry. Co., (1932) 34 Born LR 826. 831. (AIR 1932 Born 452. 4241 per defendants, Beaumont. C. J. The decision was however against the plaintiff on the facts .See also Commissioner for Railways v Francis John Quinlan. ((19641 2 WLR a tree817) (PC). In a case concerned with a level crossing lawfully and necessarily used to a substantiate extent by all the inhabitants of the village and their staving in guests and persons having business with them, it was held that they were not trespassers but licensees. The plaintiff on had somehow fallen on a railway track a few feet from a level crossing. She was living there presumably unconscious or dazed with the rest of her body safely within the four-foot space between the rails, but with her feet over me of the rails. In the darkness the train came round a curve in the railway line, traveling at over 40 miles an hour. The fireman with the aid of the engine light saw her lying there173 but by that time the train was only 150 feet away and could not be brought to a halt in time. The train passed over her amputating her feet. The residents of the village could enter or leave the village only by a crossing the lines. The crossing was in the canter partly paved with disused sleepers. There, was evidence that the sleepers were not level with each other or with the rails and was held liable to a boy injured they did not lie firmly. Evidence 1 was by a wall falling on him though he given that persons crossing over sleepers was a trespasser and the occupier might fall and instances of actual not be liable to him).The electricity undertakers were held liable the duty of care at common law arising for the death of a girl aged 13 who from the relationship of occupier and was electrocuted by contact with licensee, there was another relationship derived from inherently dangerous live wire which passed over nature of activity of running fast trains through a level crossing law which she climbed and which was climbable. The tree was in a field near a farm and was about 90 yards from a footpath She was staying in a children’s camp about a mile off and children were sometimes, taken to the farm by arrangement though not that Occasion. Even if she was regarded as a trespasser on the land the danger to such People should have been anticipated. On this ground the defendants were held liable. The owner was not used and his liability was not therefore in question but similar considerations would apply to it Knowledge of the trespassers Presence or its likelihood is essential to make the occupier liable Lowerv v. Walker. (1910) 1KB 173 Petrie v. Rostrevor. ( (1898) 2 Ir R 556). He is not bound to assume the contrary. But an occupier of premises with a ‘source of danger like an unfenced ed excavation near a highway is bound to expect that persons may stray off the highway by mistake at night time and would be liable to a person who thus sustains injury (Barnes v. Ward,(1850) 9 CB 392).The British Railways owners of an electrified line which was fenced off from meadow Children played ]awfully in this meadow .The fence was in a dilapidated condition to the knowledge of the Railways .A child trespassed on to the ra4lwayline through the fence and was injured on the live rail. The Railways were held negligent (British RY. Boardv. Herrington.1972 AC 877). A Person about to do in his remises some act or work of an unusual and extra hazardous nature is bound to warn outsiders against danger (Lowery v. Walker( (1910) 1 KB 173) (leaving a horse in a field was held not of that type. The duty to a child trespasser is not different in principle from that to an adult-trespasser (Addie v. Dum break. (1929) AC 358: Edward v Ry .Executive. (1952) AC 737 (a boy of nine got through a fence and climbed up a railway embankment to fetch a bail he could not recover): Videan v.British Transport Commission. (1963) 3WLR 374 (CA). Action on behalf of child of station-master straying on Railway line and injured by trolley failed but where the father was killed in trying to rescue his child, his widow’s claim was allowed as he was not a trespasser).Cf. Williams V. G. W.Ry.Co. (1874) LR 9 Ex. 157 (where the child was not a trespasser). But what is a danger to the one may not, be so to the-other and the occupier may be found to take greater precautions to avoid dangers to straying children than in the case of adults. It may be observed from the above summary of the case I that the liability of an occupier to a trespasser cannot be fitted into any legal formula or Pattern but depends on the application of the test of due care to different sets of facts. Indeed .the question whether a person should be regarded as a trespasser or a licensee is itself one of fact inter-connected with the degree of care expected of the occupier in the particular circumstances”.

12. On a careful and anxious scrutiny of the evidence available on record this court finds that the lower court had properly appreciated the evidence available on record and come to the correct conclusion and as such the order under revision 6 not revisable under S. 115 read with S. 102 of the Code of Civil Procedure. The amount awarded by wav of damages viz., Rs. 500 cannot also be excessive in the circumstances. Therefore there is no) merit in the civil revision Petition, it deserves to be and is hereby dismissed. In the circumstances there is no order as to costs.

13. Revision dismissed.

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