Saliah Mahammad Haji Ibrahim vs N. Abdul Samath Sahib

Beasley, C.J.—This is an appeal from a judgment of the learned City Civil Judge. The suit before him was one in which damages were

claimed by the plaintiff from the defendant for negligence or rather the case proceeded on the footing that it was a suit in fort and not on contract

although a breach of a covenant was pleaded. The facts, quite shortly, are that the plaintiff had sub-let a portion of the premises of which he was

the tenant to the defendant. The defendant was a person who dealt in fireworks. He sold fireworks to the public. One day a fire started in a room

in the defendant''s part of the premises in which there were some fireworks stored and as a result of the fire which spread to other parts of the

premises some of the goods of the plaintiff which were there were damaged. Hence this suit against the defendant for damages which were caused

by that fire. The plaintiff called no evidence. Indeed it would be very difficult for the plaintiff affirmatively to give any evidence of specific acts of

negligence; all he was able to say was that the tire broke out in the defendant''s shop and, but for one paragraph in the written statement he might

possibly have found himself in a position of some difficulty because it might have been contended that the mere fact that a tire had taken place did

not raise the presumption of negligence against the defendant and that the case was not sufficiently Strong to invoke the principle of res ipsa

loquitur. He was, however, relieved of the burden of himself proving negligence because in the written statement the defendant pleaded as follows:

On that particular evening and in connection with the public demand for the ensuing ""Ayudhapuja"" festival a servant of the defendant was just

arranging a few packets out of the said cases for show as samples upon an adjoining shelf, when all of a sudden the supports whereon the said

shelf was placed accidentally gave way consequent upon which the said packets dropped down upon the said cases, which at the moment were

open, and the tartary caught fire by the impact.

That is how the case was put by the defendant in his written statement. One of his witnesses, namely, his servant, a boy aged sixteen, who was

present at the time, says that the accident was due to some of the crackers themselves falling down and not because the shelf did. In either case,

the plaintiff was entitled to succeed. Taking the case as put forward in the written statement, there was no defence whatever to this claim, because

first of all, a shelf does not give way until it is overloaded or is defective. If its giving way was due to its being overloaded, then there was clearly

negligence in overloading it. On the other hand, if it gave way because it Was defective, the defendant can only be absolved from liability on

showing that the defect was a latent one. Otherwise he is liable because he has no right to keep that which is defective in his possession which

defect causes injury to another person and he is responsible to that other person if an accident happens through its defective state. Putting it on the

other ground, according to the evidence of the defendants'' servant, some of the crackers fell down and caused the explosion. Clearly, crackers do

not fall from a shelf unless they are insecurely placed upon it and to place them in that manner upon the shelf is a negligent act; and it does not

matter whether it was the negligent act of the defendant''s servant or his own directly, the defendant is equally liable. Quite apart from these

reasons, fireworks are dangerous things to keep and one kind of firework kept in this case, namely the Tartary was a particularly dangerous thing

because it was apparently liable to explode on impact only unlike other fireworks to which fire has first to be applied. A person who keeps

dangerous articles such as these does so at his peril and is under a duty to others to see that they are stored in a place where they are not likely to

be set off by impact or any other means. If he fails to so store them, he has been guilty of negligence if an accident happens in consequence.

For these reasons, I am satisfied that the plaintiff was entitled to succeed on the defendant''s case on the admitted fact without himself giving any

particulars of negligence or indeed proving any negligence. Mr. V.V. Sreenivasa Ayyangar concedes that, if his client is liable by reason of his

negligence, he is not in a position to seriously attack the damages awarded by the learned trial Judge. This appeal must, therefore, be dismissed

with costs.

Cornish, J.

I agree.