Ramanuia Mudali vs M. Gangan

Swamikkannu, J.—This petition coming on for hearing on this day, the Court delivered the following Judgment:

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.

It is an admitted fact that the plaintiff-respondent and the defendant-revision petitioner are the natives of Vazhapandal village. In the plaint the

plaintiff-respondent has averred that the defendant-revision petitioner herein has got two acres and 15 cents of land in the suit village. This has been

admitted by the defendant-petitioner herein in his evidence. The evidence of P.W. 2 is that he is cultivating the land of the village Munsif on waran

basis and that he has 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 divert the river channel water to his lands for irrigation at nights. The specific evidence of P.W. 1 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.W. 2 is that for the protection of his lands, the defendant-revision petitioner herein had set up the live electric wire on the river

channel. The further evidence of P.W. 2 is that for the protection of his lands, the defendant-revision petitioner herein had set up the live electric

wire on the river channel. The further evidence of P.W. 2 is that he 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. Ramaswamy Medical Officer attached to the Government Hospital Arni has deposed that 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 11-4-1979 due

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"" 1 1/2"" 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 fore-arm reveals fracture of lower end of

radius. X-ray of left ankle reveals bony lesion. The further evidence of P.W. 1 is that the plaintiff-respondent herein was admitted in the

Government Hospital Ami on 12-4-1979 for treatment and he was discharged from the hospital on 12-5-1979. The wound certificate issued by

P.W. 1 for the injuries found on the plaintiff-respondent is Ex. A. 1. P.W. 1 has opined that the 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. 1 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 12-5-1979. 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 on 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 he was going along the river channel where he trod upon the live wire trap set up by the defendant-

revision petitioner herein.

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 filed in view of the

amendment u/s 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 on 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 are no grounds available for

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.

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 now before this Court in 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

inasmuch 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.

Mr. Mohan learned Counsel for the respondent herein would also bring to the notice of this Court the decision British Railway Board v.

Herring-ton 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 land in 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 the 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 by Mr. T.V. Balakrishnan also enlightened the position of law in that it is the duty of the land owner to make it

known if he has to lay a live wire as a sort offence, 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 Best 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.

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.

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

A trespasser who knew that there were spring guns in a wood (without knowing the actual particular spots where they were placed) was injured

when he trod on a latent wire and caused a gun to be fired. On the principle volenti non fit injuria he failed in his claim for damages.

Baylay, 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 877, which runs as follows:

If the passengers to which I have referred show that even 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.

Harm suffered 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 violenti non fit injuria is founded on good sense and justice. One who has invited or assented to an act being done

towards him cannot when he suffers from it, complain of it as a wrong. The maxim applies in the first place, to intentional acts Which'' would

otherwise be tortious.

In England, the Occupier''s Liability Act, 1957 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 he is free 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.

Law of Torts recognises even duty to a trespasser. This aspect of law is dealt with in ""The Law of Torts"" by Ramaswamy Iyer. 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:

Duty to a trespasser. A trespasser is one who has no leave or licence to enter another''s 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 dangers 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 travelling 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 (1854) 10 Ex. 376: Twine v. Bean''s

Express, Ltd. (1946) I All ER 202 (unauthorised passenger in motor, van), Conway v. George Wimpoy & Co. Ltd. (1951)2 KB 266(similar

facts); G.G. in Council v. Bibi Salima ILR (1949) Pat 207. A policeman who entered the defendent''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. Rp. Co., v.. Bates (1921)3 KB 578: Coffee v. Me

Every (1912)2 Ir. R. 290, 296 H.M.S. Gla (1923): Murky 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 falling to make his premises safe for such an unexpected visitor (G.G.

Ry. 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 right 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 humanity would indicate to exclude or to

warn or otherwise, within reasonable, and practicable limits, to reduce or avert danger (British Rly. Boards. Herrington 1972 A.C. 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

(Addie v. Dumbreck (1929) A.C. 358 , Latham v. Johnson (1913) 1 KB 398: Davis v. Lisle (1936) 2 All ER 213. The occupier for instance

shoots or belabour as 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 per Bramwell, B. to set a spring gun not dangerous to life but intended to cause alarm is not an offence. Woottom v. Dawkine (1857)2 CBNS

He may however adopt reasonable measures for prevention of trespass (The Calugha (1927) p. 221 as to putting up a bathed wire fence, a

code with iron applies or a wall with broken glass (Dase v. Clayton (1876) 7 Taunt, p. 521: as to keeping a dog accustomed to bite men. Sareh v.

Blackburn (1830) 4 C&P 297: Brock v. Copeland (1794)1 Exp. 203, Lennon v. Fizher (1923)25 Bom LR 673. A trespasser or a thief hurt by

such things cannot obviously make complaint. The occupier owes a duty not to do any act involving danger to trespassers in the premises with

knowledge of their presence or its likelihood. With such knowledge, the occupier cannot for instance cause a dangerous explosion or practice

shooting in his premises. A driver of a railway 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 IL Rly. Co. (1932)34 Bom IR 826. Beaumont,

C.J. The decision was however against the plaintiff on the facts. See also Commissioner for Railways v. Francis John Quinlan (1964)2 WLR 617.

In a case concerned with a level crossing lawfully and necessarily used to a substantial extent by all the inhabitants of the village and their guests

and persons having business with them, it was held that they were not trespassers but licensees. The plaintiff had somehow fallen on a railway track

a few feet from a level crossing. She was lying 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 one of the rails. In the darkness the train came round a curve in the railway line, travelling at over 40 miles

an hour. The fireman with the aid of the engine light saw her lying there 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 crossing the lines.

The crossing was in the centre partly paved with disused sleepers. There was evidence that the sleepers were not level with each other or with the

rails and they did not He firmly. Evidence was given that persons crossing over sleepers might fall and instances of actual or near falls were

deposed to by witnesses. It was held that in addition to the duty of care at common law arising from the relationship of occupier and licensee there

was another relationship derived from inherently dangerous nature of activity of running fast trains through a level crossing lawfully and reasonably

used by the inhabitants of the village, their guests and visitors. In the circumstances the defts were held negligent (Comms. for Rlys. v. Mc Dormolt

(1967)1 AC 169. A person who felled a tree was he liable for injury to children who were there to his knowledge though without permission

(Mourton v. Poulter (1930)2 KB 183. In another case Buckland v. Guildform Gas Light & Coke Co. (1948)2 All ER 1086. Davis v. St. Mary''s

Demolition and Excavation Co., Ltd. (1954)1 All ER 578. The defendants, electricity undertakers, were held liable for the death of a girl, aged 13,

who was electrocuted by contact with a live wire which passed over a tree which she climbed and which was easily 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 on that occasion. Even if she was regarded as a trespasser on the land and the danger to such people

should have been anticipated. On this ground the defendants were held liable. The owner was not sued and his liability was not therefore in

question but similar considerations would apply to it. Knowledge of the trespasser''s presence or its likelihood is essential to make the occupier

liable Lowery v. Walker (1910)1 KB 173 : Petrie v. Rostrevor (1898) 2 ILR 556. He is not bound to assume the contrary. But an occupier of

premises with a source of danger like an unfenced 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 were owners of an

electrified line which was fenced off from meadow. Children played lawfully in this meadow. The fence was in a dilapidated condition to the

knowledge of the Railways. A child trespassed on to the railway line through the fence and was injured on the live rail. The Railways were held

negligent (British Rly. Board v. Herrington, 1972 AC 877). A person about to do in his premises 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. Dumbreak (1929) AC 358 : Edward v.

Rly. Executive (1952) AC 737: Videan v. British Transport Commission (1963)3 WLR 374 Action on behalf of child of station-master straying on

Railway line and injured by trolley failed out where the father killed in trying to rescue his child, his widow''s claim was allowed as he was not a

trespasser Williams v. G W. Rly. 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 law 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.

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 is not revisable u/s 115 read with Section

102 of the Code of Civil Procedure. The amount awarded by way 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.