actual/exact proof of damage is not given by the appellants. At
the same time, we find that the trial court had appointed Court
Commissioners to verify the position of agricultural lands of the
appellants. The said Court Commissioners, also known as
panchas, had visited the site and submitted their report for
inspection confirming the loss suffered by the appellants due to
submergence of the agricultural fields of the appellants. In this
report, they specifically pointed out that as many as 1500 boar
trees were uprooted and washed away as a result of the release
of water from the dam which flooded the fields of the appellants.
Several photographs were also annexed along with the report to
support the aforesaid conclusion. This kind of evidence, which
went unrebutted, proves that the appellants have, in fact, suffered
damages. No doubt, the appellants have not led any evidence to
show actual cost of each tree, in order to arrive at the precise
quantum of damages. However, even in the absence of such an
evidence showing exact loss suffered, the appellants would still
be entitled to reasonable compensation once factum of suffering
loss stands proved. Where a wrong has been committed, the
wrong-doer must suffer from the impossibility of accurately
ascertaining the amount of damages. Likewise, the party claiming
compensation must give the best evidence to prove damages. In
the instant case, we find that the loss is not only on account of
rain, though a part thereof can be attributed to the nature, but also
due to the negligence on the part of the respondent authorities in
not taking due precautions in time which could have avoided
some loss/damage, if not entirely. If damage has resulted from
two or three causes, namely, from an act of God as well as a
negligent act of a party, the award of damages can be
apportioned to compensate only the injury that can be attributed
to the negligent act of the respondents {See Workman v. G.N.
Ry. Co.11}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1866 OF 2016
VOHRA SADIKBHAI RAJAKBHAI Vs STATE OF GUJARAT & ORS.
Dated: MAY 10, 2016.
The essence of the issue that needs to be decided in the
instant appeal is captured by the appellants by formulating the
following substantial question of law; though the same is not
appropriately framed:
“Whether gross negligence in not maintaining
particular level of water in the dam by the
respondents; that has resulted into damage and
destruction to the plantation of the appellants,
causing loss of livelihood, could be said to be an
'Act of God'?”
2) It so happened that the respondents had constructed and
maintained a dam. 60,000 cusecs of water from this dam was
released, which flooded the land of the appellants and destroyed
the plantation therein. As per the respondents, the water had to
be released from the dam as it reached alarming level because of
heavy rains and non-release would have breached the dam. The
action was, thus, taken in public interest and it was occasioned
because of the rains, which was an act of God. The appellants,
on the other hand, contend that it was sheer negligence on the
part of the respondents in not maintaining low level of the water
keeping in mind the ensuing monsoon season and, therefore, the
damage which the appellants have suffered has direct nexus or
causal connection with the aforesaid act of negligence and it
cannot be attributed to the rains. It is, thus, pleaded that the
respondents cannot term it as an act of God and excuse
themselves from the tortious liability.
3) There is hardly any dispute on the factual matrix under which the
aforesaid issue has cropped up for determination.
4) The appellants herein are the owners of land, which is proximate
to the Mazum dam that has been built over river Mazum. They
had grown hybrid berry trees over the said land which, they claim,
belong to their ancestors and were earning their livelihood from
the fruits of the said trees. Respondents have built a dam over
River Mazum in the nearby area for supplying water for irrigational
purpose and thereby to earn revenue. In June 1997, there were
heavy rains in the said area which resulted in overflowing of the
water in the dam. In order to save the dam, the respondents
released nearly 60,000 cusecs of water. This release of water
flooded the fields of the appellants. With the submerging of the
land of the appellants, all the trees standing on the land got
uprooted resulting in destroying the whole cultivation of hybrid
berries. According to the appellants, there entire 8 bighas of
agricultural land became part of the river Mazum and the only
source of livelihood was lost.
5) The appellants claimed compensation for the damage done to the
trees standing on the said land by serving legal notice to the
respondents under Section 80 of the Code of Civil Procedure,
1908. Damages and compensation to the extent of ₹21,50,000
was claimed alleging that it happened due to gross negligence
and lack of administration on the part of the respondents. The
case set up in the notice was that the respondents had stored
more than the retention capacity of the water in the dam during
the month of June 1997 despite knowing fully well that during the
ensuing rainy season there would be more flow of water in the
dam. This act on the part of the respondents was termed as an
act of gross negligence and lack of good administration. No reply
to the notice was given by the respondents, which forced the
appellants to file a civil suit in April 1998 against the respondents
for a compensation of 21,50,000. ₹
6) The trial court appointed Court Commissioners to verify the
position of the agricultural land of the appellants and report the
ground situation to the Court. The team of Court Commissioners,
known as panchas, who visited the site, submitted their report for
inspection confirming the submergence of the agricultural fields of
the appellants. They also reported that due to this submergence,
the trees of the appellants grown on the said land were uprooted
and were lying amidst the mud and sand brought by the river
water. In this report, they also mentioned that as many as 1500
boar trees were uprooted and washed away due to the said
floods. Several photographs were also annexed with the report in
respect of the aforesaid inspection carried out by the Court
Commissioners.
7) Respondents contested the suit inter alia on the ground that the
place where the said dam, known as Mazum dam Water Scheme,
is constructed was situated nearby the village Volva of Modasa,
which is 33 kms. away from the place of the appellants. It was
further stated that due to heavy rains the water level of the dam
had gone abnormally high and, therefore, there was no option but
to release further water flow from the dam in the river to control
the floods. For this purpose, advance information was given to
the offices such as the Head of Departments, Revenue
Authorities, etc. It was also stated that during the monsoon
season at what level the capacity of the water is to be filled in the
Mazum dam is decided in advance. But in the eventuality of the
heavy rain fall at the upper side areas, to maintain the level of the
water dam, the additional water received from the upper areas are
released into the river by opening the doors of the dam so that
any damage to the dam can be prevented. This decision of how
much water has to be released into the river is taken by the
Competent Officer. On that basis, it was pleaded that no
compensation was payable as the respondents were forced to
take the decision to avert natural calamity and this decision was
occasioned because of excessive rain, which was an act of God.
8) On the basis of pleadings, following issues were framed by the
trial court:
“(i) Whether plaintiff proves the suit claim?
(ii) Whether plaintiffs are entitled to get the interest
on suit claim? If yes, at what rate?
(iii) Whether plaintiffs prove that they have given
legal notice to the defendants?
(iv) What order and decree?”
9) Though Issue No.3 was decided in favour of the appellants
holding that a proper notice was served upon the respondents
under Section 80 of the Code of Civil Procedure, 1908 before
filing the suit, insofar as Issue No.1 is concerned, the findings of
the trial court went against the appellants. The trial court held that
the respondents were forced to release the water due to the
heavy rains. The trial court also found that land of the appellants
is situated adjacent to the river bank and, therefore, due to heavy
rain, the river could have overflown resulting in entering of the
water into the fields of the appellants in any case. It further held
that action of the respondents in releasing the water from dam
was a prudent action keeping in view that minimum damage is
caused to the public at large because of the heavy rains, which is
dependent upon the nature. The trial court further held that the
appellants had not given specific evidence about the actual loss,
i.e. how many trees the appellants were having and how many
out of those trees were washed away in the water. Likewise, the
appellants had also failed to produce the evidence with regard to
the price of the produce allegedly destroyed by obtaining the
information in this regard from the Agricultural Produce Marketing
Committee. Though the appellants had examined one witness,
he had given only oral testimony without any documentary
support. The trial court also concluded that the appellants could
not prove that they had suffered damage and loss due to the
negligence on the part of the respondents. On the basis of the
aforesaid findings, the suit of the appellants was dismissed. The
appellants preferred an appeal against the said judgment, which
has also been dismissed by the High Court vide judgment dated
June 27, 2011, which is impugned in the instant appeal.
10) A perusal of the judgment in appeal would reflect that since the
water had to be released from the dam, as a result of excessive
rain, in order to see that less damage is caused, it was a force
majeure circumstance and, therefore, the appellants were not
entitled to any compensation.
11) We may state at the outset that there is no dispute on basic facts.
It is admitted by the respondents that a decision was taken to
release the water from the dam. It has also come on record that
the respondents had decided to release 60,000 cusecs of water.
Because of the release of this water, land of the appellants with
standing fruit bearing trees got submerged. It resulted in
uprooting and destroying many trees. The panchas, who were
appointed by the Court to visit the site have submitted their report
to this effect stating that almost 1500 trees were damaged. On
these facts, two aspects need consideration, which are:
(a) Whether the act of releasing the water from the dam would amount
to negligence on the part of the respondents or it was inevitable
due to heavy rains and is to be treated as an 'act of God'?
(b) If the answer to the aforesaid question is in the affirmative, whether
the appellants would be entitled to some compensation even in
the absence of proof of actual/exact damage caused?
12) We may state at the outset that neither the appellants prosecuted
their case properly nor the respondents contested it appropriately.
No doubt, the appellants submitted that there was negligence on
the part of the respondents in not ensuring that the water level is
maintained at sufficiently low level to meet the exigency of
accumulation of further water because of the ensuing rains as
they have also pleaded that the plantations in their fields got
damaged because of the release of water by the appellants.
However, they have not led any specific evidence to show the
loss. It has also not come on record as to at what level the water
was in the dam before the rains. On the other hand, the
respondents took the plea that the water level in the dam rose
because of torrential rains which has resulted in overflowing of the
water in the dam and the decision to release the water became
necessary in the larger public interest. However, the respondents
have also not properly controverted the allegations of the
appellants that water was not maintained at an appropriate level
to take care of ensuing monsoons. They have also not supported
their plea by leading any evidence to the effect that had the water
been not released it would have breached the dam and that act
would have caused more public harm. The courts below also
took a myopic view by simply going by the fact that the action on
the part of the respondents in releasing the water from the dam
was necessitated because of heavy rains and those heavy rains
are an 'act of God'.
13) No doubt, both the parties agree that the overflowing of the dam
was caused due to heavy rains. However, the question is as to
whether the respondents were supposed to take reasonable care
in this behalf by keeping the level of water in the dam sufficiently
low in order to meet the exigency of ensuing monsoon? This
would have depended upon another factor, namely, whether the
rains in the said season were much more than normal and
Civil Appeal No. 1866 of 2016 Page 9 of 25Page 10
beyond the expected level or it was known before hand, as per
the prediction of the Meteorological Department that there would
be heavy rains? It is only on that basis one can find out as to
whether there was negligence on the part of the respondents in
keeping the particular level of water in the dam by not taking into
consideration the possible flow of the water as a result of
expected rains.
14) The admitted facts on record are that the damage to the trees and
plantation of the appellants is caused due to the release of water
from the dam by the respondents. A specific plea is raised that
the respondents had stored more than the retention capacity of
the water in the dam during the month of June 1997 despite
knowing fully well that during the ensuing monsoon season there
would be more flow of water in the dam.
15) Since the dam is constructed and maintained by the respondents
and the appellants suffered losses as a result of release of water
from the said dam, onus was on the respondents to prove that
they had taken proper care in maintaining appropriate level of
water in the dam taking into account the provision for the water
that can get accumulated in the said dam due to the forthcoming
rainy season. The respondents are the owners of the dam in
question. They are expected to keep the said dam in such a
condition which avoids any loss or damage of any nature to the
neighbours or passers by. The doctrine of strict liability, which has
its origin in the case of Rylands v. Fletcher1
, will have application
in the instant case. Following observations of Blackburn, J. state
the principle of strict liability:
“The rule of law is that the person who, for his own
purpose, brings on his land and collects and keeps
there anything likely to do mischief if it escapes,
must keep it in at his peril; and if he does not do so
is prima facie answerable for all the damage which
is the natural consequence of its escape.”
The learned Judge went further to expound the aforesaid principle
in the following manner:
“The general rule as above stated seems on
principle just. The person whose grass or corn is
eaten down by the escaping cattle of his neighbour,
or whose mine is flooded by the water from his
neighbour's reservoir, or whose cellar is invaded by
the filth of his neighbour's privy, or whose
habitation is made unhealthy by the fumes and
noisome vapours of his neighbour's alkali work is
damnified without any fault of his own; and it
seems but reasonable and just that the neighbour,
who has brought something on his own property
which was not naturally there, harmless to other so
long as it is confined to his own property, but which
he knows to be mischievous if it gets on his
neighbour's, should be obliged to make good the
damage which ensues if he does not succeed in
confining it to his own property. But for his act in
bringing it there no mischief could have accrued,
and it seems but just that he should at his peril
keep it there so that no mischief may accrue, or
1 (1868) LR 3 HL 330
answer for the natural and anticipated
consequences.”
16) Lord Cairns, while agreeing with the aforesaid view of Blackburn,
J., clarified that this rule shall apply where there was non-natural
user of land. This concept of non-natural use of land was
succinctly brought out by the Privy Council in Rickards v.
Lothian2
, as is clear from the following formulation:
“It is not every use to which land is put that brings
into play this principle. It must be some special use
bringing with it increased danger to others, and
must not merely be the ordinary use of the land or
such a use as is proper for the general benefit of
the community.”
17) In Read v. J. Lyons & Co.3
, another qualification to the aforesaid
rule was added, namely, the non-natural use by the offending
party should result in 'escape' of the thing from his land which
causes damage and so in the absence of 'escape', the rule has
no application.
18) The aforesaid principle has withstood the test of time as it is not
only followed by the courts in England in subsequent judgments
repeatedly, even this Court has adopted in certain cases and
extended to cover accidents arising out of use of motor vehicles
on road. {See – State of Punjab v. Modern Cultivators4
; Indian
2 (1913) AC 263
3 (1947) AC 156 (HL)
4 AIR 1965 SC 17
Council for Enviro Legal Action v. Union of India5
; and
Kusuma Begum (Smt.) v. The New India Assurance Co. Ltd.6
}.
19) In Modern Cultivators' case referred to above, the damage was
caused by overflowing of water from a breach in a canal. This
Court held that use of land for construction of a canal system is
an ordinary use and not a non-natural use. The Court attributed
negligence on the part of the authorities and awarded damages to
the plaintiff therein on the said findings of negligence. In this
case, thus, the damages were awarded even when the use of
land for construction of a canal system was found to be an
ordinary use.
20) In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat7
, this Court
explained the ratio of Modern Cultivators in scholarly manner, as
follows:
“12. Was the ratio in Rylands v. Fletcher modified
by this Court in Modern Cultivators? If so to what
extent? What is its effect on facts of this case?
That was a case where the land of the plaintiff used
for silting operation was flooded due to escape of
canal water. It was claimed that in absence of
proof of negligence the suit was not liable to be
decreed. The Court did not apply the principle laid
down in Rylands v. Fletcher:
“That any occupier of land who brings or
keeps upon it anything likely to do damage if it
5 (1996) 2 Scale 44
6 JT 2001 (1) SC 37
7 (1994) 4 SCC 1
escapes is bound at his peril to prevent its
escape and is liable for all the direct
consequences of its escape, even if he has
been guilty of no negligence....a principle
derivatively created from the rule of 'strict
liability'....as canal systems are essential to the
life of a nation and land that is used as canals
is subjected to an ordinary use and not to
unnatural use.”
The Court preferred to rely on the principle
developed by American Courts on canal breaks
and applied the principle of 'fault liability' which may
even be inferred from circumstances. The view of
the High Court, therefore, that the rule of strict
liability was modified by this Court in Modern
Cultivators does not appear to be correct.
'Absolute liability', or 'strict liability' and 'fault liability'
do not go together.”
21) In Jay Laxmi's case, damage was caused by overflow of water
from a reclamation bundh constructed by the State of Gujarat for
reclamation of vast area of land from saltish water of sea. In this
case, this Court held the Government responsible as the said act
was treated as violation of public duty and negligence which lay in
defective planning and construction of the bundh. On that
premise, damages were awarded. The Court explained the
jurisprudence of liability in torts and also the two principles,
namely, 'strict liability' and 'fault liability', in paragraph 8 and
thereafter enumerated other circumstances which may fall
in-between 'strict liability' and 'fault liability', in paragraph 9. We
would like to quote hereinbelow these two paragaphs for our
benefit:
“8. Winfield has defined tortious law arising from
breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is
redressable by an action for unliquidated damages.
In general, torts consist of some act done without
just cause or excuse.
“The law of torts exists for the purpose of
preventing men from hurting one another
whether in respect of their property, their
presence, their reputations or anything which
is theirs.”
Injury and damage are two basic ingredients of tort.
Although these may be found in contract as well
but the violations which may result in tortious
liability are breach of duty primarily fixed by the law
while in contract they are fixed by the parties
themselves. Further in tort the duty is towards
persons generally. In contract it is towards specific
person or persons. An action for tort is usually a
claim for pecuniary compensation in respect of
damages suffered as a result of the invasion of a
legally protected interest. But law of torts being a
developing law its frontiers are incapable of being
strictly barricaded. Liability in tort which in course of
time has become known as ‘strict liability’, ‘absolute
liability’, ‘fault liability’ have all gradually grown and
with passage of time have become firmly
entrenched. ‘Absolute liability’ or “special use
bringing with it increased dangers to others”
(Rylands v. Fletcher [LR (1868) 3 HL 330 : 37 LJ
Ex 161 : [1861-73] All ER Rep 1] ) and ‘fault liability’
are different forms which give rise to action in torts.
The distance (sic difference) between ‘strict liability’
and ‘fault liability’ arises from presence and
absence of mental element. A breach of legal duty
wilfully, or deliberately or even maliciously is
negligence emanating from fault liability but injury
or damage resulting without any intention yet due
to lack of foresight etc. is strict liability. Since duty is
the primary yardstick to determine the tortious
liability its ambit keeps on widening on the
touchstone of fairness, practicality of the situation
etc. In Donoghue v. Stevenson[(1932) AC 562 :
1932 All ER Rep 1] a manufacturer was held to be
liable to ultimate consumer on the principle of duty
to care. In Anns v. Merton London Borough Council
[(1978) AC 728 : (1977) 2 All ER 492] it was, rightly,
observed:
“[T]he broad general principle of liability for
foreseeable damage is so widely applicable
that the function of the duty of care is not so
much to identify cases where liability is
imposed as to identify those where it is not,….”
Truly speaking entire law of torts is founded and
structured on morality that no one has a right to
injure or harm others intentionally or even
innocently. Therefore, it would be primitive to class
strictly or close finality (sic finally) the everexpanding
and growing horizon of tortious liability.
Even for social development, orderly growth of the
society and cultural refineness, the liberal approach
to tortious liability by courts is more conducive.
9. In between strict liability and fault liability there
may be numerous circumstances in which one may
be entitled to sue for damages. And it may be partly
one or the other or may be both. In a welfare
society construction of dam or bundh for the sake
of community is essential function and use of land
or accumulation of water for the benefit of society
cannot be non-natural user. But that cannot
absolve the State from its duty of being responsible
to its citizens for such violations as are actionable
and result in damage, loss or injury. What is
fundamental is injury and not the manner in which it
has been caused. ‘Strict liability’, ‘absolute liability’,
‘fault liability’ and ‘neighbour proximity’ are all
refinements and development of law by English
Courts for the benefit of society and the common
man. Once the occasion for loss or damage is
failure of duty, general or specific, the cause of
action under tort arises. It may be due to
negligence, nuisance, trespass, inevitable mistake
etc. It may be even otherwise. In a developed or
developing society the concept of duty keeps on
changing and may extend to even such matters as
was highlighted in Donoghue v. Stevenson [(1932)
AC 562 : 1932 All ER Rep 1] where a manufacturer
was held responsible for injury to a consumer. They
may individually or even collectively give rise to
tortious liability. Since the appellant suffered loss
on facts found due to action of respondent's
officers both at the stage of construction and failure
to take steps even at the last moment it was liable
to be compensated.”
The Court, thereafter, explained that in order to become a claim
as actionable claim, it is necessary to determine that the
defendant was guilty of negligence.
22) There are two exceptions to the aforesaid rule of strict liability,
which were recognized in Rylands v. Fletcher itself, viz.: (a)
where it can be shown that the escape was owing to the plaintiff's
default, or (b) the escape was the consequence of vis major or
the act of God. An act of God is that which is a direct, violent,
sudden and irresistible act of nature as could not, by any amount
of ability, have been foreseen, or if foreseen, could not by any
amount of human care and skill have been resisted. Generally,
those acts which are occasioned by the elementary forces of
nature, unconnected with the agency of man or other cause will
come under the category of acts of God. Examples are: storm,
tempest, lightning, extraordinary fall of rain, extraordinary high
tide, extraordinary severe frost, or a tidal bore which sweeps a
ship in mid-water. What is important here is that it is not
necessary that it should be unique or that it should happen for the
first time. It is enough that it is extraordinary and such as could
not reasonably be anticipated. We would like to discuss a few
cases having bearing on this issue with which we are confronted
in the instant appeal.
23) In Nicholas v. Marsland8
, the respondent owned a series of
artificial lakes on his land. In the construction and maintenance of
these lakes, there had been negligence. However, owing to a
most unusual fall of rain, which was so abnormal that could not
have been reasonably anticipated, some of the reservoirs burst
and carried away four country bridges. The respondent was held
not liable on the premise that the water escaped by the act of
God.
24) The aforesaid judgment in Nicholas's case was, however,
criticized by the House of Lords in Greenock Corporation v.
Caledonian Railway9
. In that case, the Corporation obstructed
and altered the course of a stream by constructing a concrete
paddling pool for children. Due to a rainfall of extraordinary
violence, a great volume of water which would normally have
been carried off by the stream overflowed the pad and caused
damage to plaintiff's property. The House of Lords held that the
8 (1875) LR 10 Ex.255
9 (1917) AC 556 (HL)
rainfall was not an act of God and the Corporation was liable to
pay damages as it was its duty 'so to work as to make proprietors
or occupiers on a lower level as secure against injury as they
would have been had nature not been interfered with”.
25) Such a situation came up before this Court as well in S.
Vedantacharya & Anr. v. Highways Department of South
Arcot & Ors.10. In this case, this Court held that before heavy
rain can be accepted as a defence for the collapse of a culvert,
the defendant must indicate what anticipatory prevention action
was taken. We would like to quote the following passage from the
said judgment:
“State Government erected a reservoir adjoining
the plaintiff's land in order to provide drinking water
facilities to a village in the State. The State
acquired a part of the plaintiff's land for the purpose
of constructing a channel for carrying the overflow
of water from the reservoir to a Nalla which was at
a distance of about 1500 feet from the waste-weir
of the reservoir. This channel was however not
constructed except to the extent of 250 feet on the
side of the Nalla. Due to very heavy rainfall the
water from the reservoir overflowed into the
waste-weir and thereafter flowed over the plaintiff's
land, causing considerable damage to the land and
the crops standing thereon. In a suit by the plaintiff
for damages they alleged that due to the
negligence of the State in not taking proper
precautions to guard against the overflow of water
they had sustained the loss. The State inter alia
contended that the loss was due to heavy rain
which was an act of God and therefore they were
not liable and further that the construction of the
10 (1987) 3 SCC 400
reservoir was an act of the State in the sovereign
capacity and, therefore, it was not liable for the
tortious or negligent acts of its servants. It was
held that the fact that the danger materialised
subsequently by an act of God was not a matter
which absolved the State from its liability for the
earlier negligence in that no proper channel for the
flow or overflow of water from the waster-weir was
constructed by it in time; that the act of the State in
constructing the reservoir for the supply of drinking
water to its citizens at best could be considered a
welfare act and not an act in its capacity as a
sovereign; and that, therefore, the State was liable
in negligence for the loss caused to the plaintiff.”
26) In nutshell, what needs to be examined is as to whether the
damage to the property of the appellant herein was the result of
an inevitable accident or unavoidable accident which could not
possibly be prevented by the exercise of ordinary care, caution
and skill, i.e. it was an accident physically unavoidable. While
examining this issue, we have to keep in mind that the onus was
on the respondents to satisfy the aforesaid requirements.
27) Undoubtedly, it has come on record that the overflow of dam was
occasioned by torrential and heavy rains. However, as pointed
out above, the appellants specifically pleaded that the respondent
authorities did not keep the level of water in the dam sufficiently
low to take care of the ensuing monsoon rains. They have, thus,
set up the case that there was a negligence on the part of the
respondents in not taking care of the forthcoming monsoon
season and keeping the water level in the dam at sufficiently low
level to absorb the rainfall which was going to rise the water level
in the dam.
28) The respondents have not refuted the aforesaid averment of the
appellants. The only defence put up by them was that the
overflow of the water in the dam was occasioned by the rains in
the monsoon season which compelled the authorities to release
the water from the dam in larger public interest. In such a
scenario, it was incumbent upon the respondents to demonstrate,
by adequate evidence, that the water in the dam was kept at
reasonable and proper level to take care of normal rains; the rains
in the said monsoon season were more than the ordinary rains
which could not be foreseen; and that the public purpose was
served in taking the decision to release the water which prevented
larger catastrophe. Merely by saying that the level of water in the
dam increased because of monsoon rains and that the water was
released in public interest cannot be treated as discharging the
burden on the part of the respondents in warding off the allegation
of negligence. It is a matter of common knowledge that with
advanced technology available with the Meteorological
Department in the form of satellite signals etc, there is a
possibility of precise prediction of the extant of rainfall in the
monsoon season. In view of the principle laid down in Rylands v.
Fletcher, onus was on the respondents to discharge such a
burden, and it has miserably failed to discharge the same. On
that basis, we are constrained to hold that there is a negligence
on the part of the respondents which caused damage to the fields
of the appellants.
29) This brings us to the question of quantum of damages. No doubt,
actual/exact proof of damage is not given by the appellants. At
the same time, we find that the trial court had appointed Court
Commissioners to verify the position of agricultural lands of the
appellants. The said Court Commissioners, also known as
panchas, had visited the site and submitted their report for
inspection confirming the loss suffered by the appellants due to
submergence of the agricultural fields of the appellants. In this
report, they specifically pointed out that as many as 1500 boar
trees were uprooted and washed away as a result of the release
of water from the dam which flooded the fields of the appellants.
Several photographs were also annexed along with the report to
support the aforesaid conclusion. This kind of evidence, which
went unrebutted, proves that the appellants have, in fact, suffered
damages. No doubt, the appellants have not led any evidence to
show actual cost of each tree, in order to arrive at the precise
quantum of damages. However, even in the absence of such an
evidence showing exact loss suffered, the appellants would still
be entitled to reasonable compensation once factum of suffering
loss stands proved. Where a wrong has been committed, the
wrong-doer must suffer from the impossibility of accurately
ascertaining the amount of damages. Likewise, the party claiming
compensation must give the best evidence to prove damages. In
the instant case, we find that the loss is not only on account of
rain, though a part thereof can be attributed to the nature, but also
due to the negligence on the part of the respondent authorities in
not taking due precautions in time which could have avoided
some loss/damage, if not entirely. If damage has resulted from
two or three causes, namely, from an act of God as well as a
negligent act of a party, the award of damages can be
apportioned to compensate only the injury that can be attributed
to the negligent act of the respondents {See Workman v. G.N.
Ry. Co.11}
30) The appellants claimed damages to the tune of ₹21,50,000, for
which no specific proof/evidence is given. At the same time, we
11 (1863) 32 LJQB 279
find that one Mohemmed Ikbal Mohemmedalam Galivala, who is
an agriculturist, had appeared as the plaintiffs' witness and
deposed that he was having the agriculture experience for the last
20 years, particularly experience of cultivation of boar as well as
its profit and income. He has given figures of losses which the
appellants had to suffer due to damage of plantation and loss of
income, etc. thereby trying to justify the claim of damages made
by the appellants, but those figures are not supported by any
evidence. However, it is not in dispute that loss has occurred
and, therefore, a reasonable compensation can still be awarded.
Exercising our power under Article 142 of the Constitution, we are
of the opinion that ends of justice would be met in awarding
damages to the tune of ₹5,00,000. We have arrived at the above
figure keeping in view the statement of Mohemmed Ikbal
Mohemmedalam Galivala, witness who appeared on behalf of the
appellants, though not accepting the figures given by him in its
entirety, and the cross-examination of the respondents of this
witness on this aspect. The appellants shall also be entitled to
interest from the date of judgment of the trial court, i.e. December
24, 2010 at the rate of 9% per annum and also the cost of the
present appeal.
31) The appeal is allowed in the aforesaid terms. Decree be drawn
accordingly.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R.K. AGRAWAL)
NEW DELHI;
MAY 10, 2016.
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