Zamoodiri Raja of Calicut, Trustee, Tali Temple, Kozhikode and Manager, Tali Temple, Kozhikode v. Puthiyaveettil Ayisha Beevi, Subaibath, Lizar, Mighdad, Farooq, Fahira, Oriental Insurance Company

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938** **AS.No. 335 of 1999 (C)** **--------------------------------** **AGAINST THE JUDGMENT & DECREE DATED 22-03-1999 IN OS (INDIGENT) 81/1993 of SUB COURT, TIRUR.** ## **APPELLANTS/DEFENDANTS 1 AND 2:** **---------------------------------------------------------** **1. ZAMOODIRI RAJA OF CALICUT, TRUSTEE, TALI TEMPLE, KOZHIKODE.** **2. MANAGER, TALI TEMPLE, KOZHIKODE.** **BY ADVS. SMT. SHAHNA KARTHIKEYAN SRI. M.P.SREEKRISHNAN** **RESPONDENTS/PLAINTIFFS AND 3RD DEFENDANT:** **------------------------------------------------------------------------------** **1. PUTHIYAVEETTIL AYISHA BEEVI, D/O. ABDULLA, MANGALAM AMSOM, KOOTAYI DESOM, TIRUR TALUK.** **2. SUBAIBATH, D/O. AYISHA BEEVI OF -DO-** **3. LIZAR, ABOUT 16 YEARS OLD (MINOR) OF -DO-** **4. MIGHDAD, AGED 14 YEARS (MINOR) OF -DO-** **5. FAROOQ, AGED 12 YEARS (MINOR) OF -DO-** **6. FAHIRA, AGED 10 YEARS (MINOR) OF -DOTHE MINOR RESPONDENTS 3 TO 6 ARE REPRESENTED BY THEIR MOTHER GUARDIAN 1ST RESPONDENT.** **7. ORIENTAL INSURANCE COMPANY, BRANCH OFFICE, P.B.NO.3, P.T.BROTHERS BUILDING, COURT ROAD, MANJERI.** - **R1 BY ADV. SRI.T.KRISHNAN UNNI (SR.) R7 BY ADV. SRI.MATHEWS JACOB (SR.)** **THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 30-09-2016, THE COURT ON 25-11-2016 DELIVERED THE FOLLOWING:** **NAN/** ## **V. CHITAMBARESH & K. HARILAL, JJ.** ## **--------------------------------------------------------A.S No.335 of 1999-C** **---------------------------------------------------------Dated this the 25[th] day of November, 2016** ## **JUDGMENT** ## **Harilal, J.** The appellants are the defendants and and the respondents are the plaintiffs in O.S.No.81/1993 on the files of the Sub Court, Tirur. The said suit was filed by the plaintiffs, claiming a sum of Rs.6 lakhs as damages from the defendants. The defendants are the Trustee and Manager respectively of Thali Devaswom. Thali Devaswom is the owner in possession of a tusker by name 'Neelakantan'. The 1[st] plaintiff is the widow and the plaintiffs 2 to 6 are the children of the deceased Mohammedkutty, who was done to death by the above said tusker on 6/1/1992 at 6.40 p.m. at the compound of a Mosque. ## **A.S No.335 of 1999** -: 2 :- The tusker Neelakandan was brought to Vakkad near Tirur in connection with the festival called 'Puthiyangadi Nercha' under the care and control of the employees of the defendants 1 and 2. As owners, the defendants were well aware of the fact that their elephant was disobedient and some times uncontrollable; but they have not cared to take effective precautionary measures, when it was taken to a place where a large crowd would assemble for 'Nercha'. The tusker was not given sufficient food and water when it was paraded for taking offering from the houses in around that locality in connection with the said 'Nercha' festival. The tusker went amok at about 4.30 p.m. on that day; but the mahouts could not control it at 7.45 p.m. and they did not make any attempt to get assistance of the experts to pacify the elephant by giving tranquillizer shots. At about 7.45 p.m., the infuriated tusker entered inside the compound of the Mosque at Vakkad and charged the deceased Mohammedkutty, who was inside the urinal **A.S No.335 of 1999** -: 3 :- shed, and gored him to death. It was gross negligence on the part of the defendants and their employees to have taken the tusker to a crowded place, without taking effective precautionary measures to chain and control the elephant in time, in case it went amok. If the defendants and the mahouts under them have taken timely action to get the assistance of the experts to give tranquillizer shots to pacify the elephant immediately after it went amok, the tragic end of Mohammedkutty could have been averted. 2. At the time of his death, deceased Mohammedkutty was aged only 35 years and he was very healthy and the 1[st] plaintiff was aged only 32 years. Due to sudden and unexpected death of Mohammedkutty, the 1[st] plaintiff has lost the company and consortium of her husband and the plaintiffs 2 to 6 have lost love and affection of their father. Mohammedkuty was an expert cook and at the time of tragic incident, he was employed as Chief Cook in a hotel at Vakkad and he was earning a daily income of ## **A.S No.335 of 1999** -: 4 :- Rs.80/- and apart from that, he used to prepare food items for marriage ceremonies and other functions in and around Vakkad. By the death of Mohammedkutty, the plaintiffs have lost their only sources of income to live. Therefore, they are entitled to get an aggregate amount of Rs.6 lakhs as compensation from the defendants towards loss of dependency and mental agony suffered by the plaintiffs and towards pain and sufferings endured by Mohammedkutty, after being attacked by the tusker. This is the claim of the plaintiffs in the suit. 3. The defendants 1 and 2 filed a written statement denying the claim in toto. According to them, the tusker Neelakandan was an obedient and tamed animal and people in that locality liked him very much. They admitted that Neelakandan was taken to Vakkad in connection with the 'Nercha' festival. He was taken to several houses for receiving offerings from them. When he was taken to one house, some body from the crowd pelted stone on its **A.S No.335 of 1999** -: 5 :- private part, when urinating. Enraged by the sudden hit on the sensitive part of the body, the tusker ran amok pulling down trees and uprooting coconut plants and areacanut plants and mahouts could not control him. After committing mischief in that house, the tusker entered into the compound of the Mosque. People followed him, continued to throw stones and lighted torches at the tusker. The frightened tusker in a bid to escape from the compound, demolished a portion of the compound wall and came to the road and on seeing that, the Sub Inspector of Police fired a bullet. During the course of his attempt to escape from the compound of the Mosque, through a narrow passage, at the western side of the Mosque, he demolished the compound wall of the Mosque, after pushing down the urinal shed wherein the deceased Mohammedkutty was urinating. Thus, he died as a result of the collapse of the urinal shed and the death was not caused by the tusker Neelakandan. The mahouts have taken all precautionary measures for **A.S No.335 of 1999** -: 6 :- controlling the tusker. The tusker was not musch at the time of incident and the entire incident occurred when the tusker was deliberately insulted by some miscreants and also due to the non-co-operation of the police party who have reached there at 4.30 p.m. and present there thereafter. Even though the tusker had reached ultimately the estuary of Ponnani river, after walking more than 9 Kms., he has not attacked anybody else in the road. But, at last, the tusker was shot down by the police party at the river before the arrival of the veterinary Doctors at the spot. The defendants have denied the averments that Mohammedkutty was gored to death by the tusker Neelakandan from the urinal shed of the Mosque. They have disputed the daily income of Mohammedkutty from his cooking service. According to them, the plaintiffs are not entitled to get any amount as compensation from them. The 3[rd] defendant, Insurance Company, also filed a written statement disputing the income of the **A.S No.335 of 1999** -: 7 :- deceased and the amount claimed, as compensation. But, admitted that the 3[rd] defendant has the liability to indemnify the insured against a claim arising out of the death for an amount of Rs.5,000/- per person. The amount of Rs.6,00,000/- claimed in the suit is without any factual or material basis, besides being highly inflated, grossly exaggerated and disproportionately excessive. Thus, all the defendants prayed for dismissal of the suit. 4. The trial court framed four issues. P.Ws.1 to 6 were examined and Exts.A1 to A4 were marked on the side of the plaintiffs. D.Ws.1 and 2 were examined and Exts.D1 to D4 were marked on the part of the defendants. Ext.X1 was marked on the side of the witness. After considering the evidence on record, the court below decreed the suit and passed the decree directing the 1[st] defendant to pay an amount of Rs.2,01,700/- less the amount of Rs.5,000/- covered by the insurance policy with interest at the rate of 12% per annum on a finding that the death of ## **A.S No.335 of 1999** -: 8 :- Mohammedkutty was caused by the tusker 'Neelakantan' and the amount was fixed on a finding that the deceased Mohammedkutty was having a daily average income of Rs.65/- per day. The legality and propriety of the aforesaid finding under which the impugned decree has been granted to the plaintiffs, are assailed in this Regular First Appeal. 5. Heard the learned counsel for the appellants and the learned counsel for the respondents. 6. The impugned judgment and decree granting compensation of Rs.2,01,700/- to the plaintiffs rests on two findings. (i) The death of Mohammedkutty was caused by the tusker Neelakantan (ii) The defendants, being the owners of a dangerous animal, are liable to compensate the loss caused to the plaintiffs, as principles of strict liability would apply against the defendants, notwithstanding the cause for provocation of the animal or the character of this particular animal. 7. Therefore, the first question is what was the **A.S No.335 of 1999** -: 9 :- cause of death of Mohammedkutty? It is not disputed that the death of Mohammedkutty occurred during the course of violent acts committed by the tusker Neelakantan. But, the only difference of opinion is that according to the plaintiffs, the tusker went amok, entered inside the Mosque, charged Mohammedkutty and gored him to death, while he was inside of the urinal shed and thereafter, demolished the shed also in that course. But, according to the defendants, Mohammedkutty was inside the urinal shed and as a result of collapse of the urinal shed, when the tusker pulled down the same, he had somehow sustained injury and later he succumbed to his injuries. 8. Both parties adduced evidence to fortify their versions and laboured much to substantiate their respective stand. But, we are of the opinion that this dispute whether the death was occurred due to goering with tusk or by falling of the urinal shed is of no consequence or significance at all, because in both cases we have no hesitation to hold that the death **A.S No.335 of 1999** -: 10 :- was caused by the tusker Neelakantan. In the case of goering to death, the death is the direct result of the act done by the tusker. But, in the case of collapsing of shed, death is the indirect result of the act done by the violent tusker. Even in the case of death due to collapse of the shed, it is not disputed that the shed collapsed, when the tusker pulled down the same. Whether the tusker has intention to kill Mohammedkutty or not is immaterial and irrelevant in a suit for damages for the damage or loss caused by a dangerous animal. To sum up, in so far as death is concerned, it was caused by the tusker Neelakantan. Had the tusker not gone amok and pulled the urinal shed, the same would have remained there, as such, and Mohammedkutty could have been alive, as such, unless he died otherwise. Thus, even if the death was caused due to the collapse of the shed, the owner of the tusker cannot escape from the liability, if he is liable for the act done by the tusker, under law. 9. Coming to the evidence, we find that the ## **A.S No.335 of 1999** -: 11 :- evidence both oral and documentary stand in conformity with the findings of the courts below that Mohammedkutty was gored to death. P.W.3 is an eye witness, who had seen the entire incident occurred within the compound of the Mosque, through the window of the Mosque. He unambiguously deposed that he saw the charging of the tusker towards Mohammedkutty, who was inside the urinal shed. Further, he deposed that the tusker gored Mohammedkutty to death with his tusk. It is pertinent to note that Mohammedkutty had sustained deep penetrating injuries on his face near eye ball only. The evidence of P.W.4 Doctor who conducted the autopsy and issued Ext.P3 postmortem certificate is consistent with the version that Mohammedkutty was done to death by the tusker by thrusting his tusk near the eyes of Mohammedkutty. Had he died due to collapse of urinal shed, certainly, he would have sustained injuries or at least tenderness all over the body. Even though D.Ws.1 and 2 were examined to prove the cause of ## **A.S No.335 of 1999** -: 12 :- death, as narrated by the defendants, D.W.1 during the cross-examination admitted that when the tusker entered inside, he didn't enter inside the compound and he remained in the Panchayat road only. If that be so, he was not an eye witness to the cause of death of Mohammedkutty. Admittedly, D.W.2 was not present in the scene of occurrence. In the above analysis, the plaintiffs have succeeded in proving that the deceased Mohammedkutty was gored to death by the tusker. So, the court below is justified in finding that the death of Mohammedkutty was the direct result of the violent act done by the tusker Neelakantan. 10. The next question to be considered is whether the owner of the elephant was liable for the death of the human being or damages to the property caused by his elephant. In other words, whether the owner is liable to pay compensation to the legal heirs of the deceased Mohammedkutty, in case the same was caused by his elephant. ## **A.S No.335 of 1999** -: 13 :- 11. The learned counsel for the appellants advanced arguments to drive out the following points to escape from the liability: (i) The tusker Neelakandan was an obedient harmless animal, loved and reared by the people in the locality. (ii) The tusker went amok, when somebody pelted stone at his sensitive part, when he was urinating. (iii) The people collected around the compound wall started pelting stones and lighted torches at the elephant. (iv) The police force has not taken steps to remove the people gathered around the Mosque and road. The police fired bullet at the leg before entering into the Mosque and the elephant got fearsome. 12. We have examined the evidence on record and meticulously analysed the findings of the court below, in view of the aforesaid arguments. Absolutely, there is no evidence to show that the tusker was an **A.S No.335 of 1999** -: 14 :- obedient harmless one loved everybody in the locality, as claimed by the defendants. But, D.W.1 himself, in the cross-examination, admitted that he is well aware of the fact that elephant is a wild animal and no one including the mahouts can predict the behaviour and reaction of the elephant, when it becomes violent and firstly it will turn against the mahouts. It has come out in evidence of D.W.2, who is the Manager of the Devaswom, that this particular elephant had a previous history of having been given tranquillizer shots to pacify, when it has become violent earlier. Therefore, the claim of the defendants that this particular elephant was harmless and obedient elephant is an unfounded false story only. 13. Coming to the cause of violence, it is the case of the defendants that somebody pelted stones at the private part of the elephant, while urinating and that made him violent. But, D.W.1 the only witness who had spoken to the above incident had not seen the incident, as he went inside the house for receiving the ## **A.S No.335 of 1999** -: 15 :- offerings. Thus, D.W.2 is admittedly a hearsay witness only, in this respect. The defendants further contended that the incident was so happened due to non-cooperation of the policemen. But, it has come out in evidence that immediately on receipt of the information, the Sub Inspector of Police reached at the spot with police force and they were following the animal till the shooting of the tusker at 11 O' clock and in the meantime, Reserved Police Force battalion also joined with the local police force. 14. Apart from the interested testimony of D.W.1, there is no evidence on record to show that the people pelted stones or lighted torches at the tusker, while the mahouts were trying to pacify the animal. No independent witness from the people, who gathered there and witnessed the incident, had been examined to substantiate the defence version. 15. In this context, the specific case of the plaintiffs that the tusker was not property cared or fed by the mahouts during the previous days assumes **A.S No.335 of 1999** -: 16 :- much significance and relevance. The evidence brought on record by the examination of D.W.1 shows that the tusker was continuously put in parade for three days till previous day mid-night and thereafter, the tusker reached there by walking more than 50 Kms. Needless to say, there was negligence on the part of the mahouts in parading the animal exhaustively for receiving offers from 50 houses, without giving rest. It is to be remembered that elephants usually mis-behaves when they are sick, exhausted and hungry. 16. We further find that all the aforesaid defence versions are taken its face value and admitted at its entirety, the defendants cannot escape from the liability in view of the law settled by this Court in Veeramani Chettiar v. Davis and Others [2012 (4) KHC 114 (DB)]. 17. The liability of the owner for the damages caused by the elephant was the subject matter of litigation from centuries back and the law fixing the **A.S No.335 of 1999** -: 17 :- liability on the owner of the elephant is well settled by various courts in England as well as in India. In this respect, the courts in India relied on various landmark judgments rendered by the Apex Court of England. In the aforesaid decision, this Court adopted and followed the law laid down by the Courts in England in this subject matter. It is apposite and proper to extract the relevant paragraph of the aforesaid decision which reads as follows: “16. Let us consider another defence advanced in pleadings by the 1st defendant. The points are (1) Whether wrongful act of a third party can be a defence to liability for the damage caused by a dangerous animal? (2) Whether defence that a particular animal was always quiet, well trained and tamed makes any difference in the application of strict liability? According to the 1st defendant, injury was the result of stampede and the elephant has not attacked the plaintiff directly. In short the **A.S No.335 of 1999** -: 18 :- injury was the result of an act of a third party. Similarly, another defence version advanced by DW2, the son of the 1st defendant is that this particular elephant 'Sivan' was always quiet, well trained and well tamed and never behaved violently or caused damages so far. He has given evidence, seeking an exception in general category of elephants. These issues are considered in an identical case, Behrens and another v. Bertram Mills Circus Ltd. ((1957) 2 Q.B.1). There, the plaintiffs, husband and wife were midgets who were conducting a funfair booth adjoining to defendants' circus tents on licence granted by defendant circus company. Plaintiffs' manager had a small dog which had been introduced into the premises contrary to the defendants' rules. One day when six elephants of the circus company while passing the booth, the dog ran out barking and snapping at one of them. The **A.S No.335 of 1999** -: 19 :- elephants turned and went after the dog and plaintiffs' booth was knocked down, the female plaintiff was seriously injured by falling parts of the booth. None of the elephants directly attacked either of the plaintiffs. In the above factual matrix, three points were considered by the Queens Bench (1) none of the elephants directly attacked either of the plaintiff (2) the act of the elephant was caused by the wrongful act of a third party, the plaintiffs' manager in introducing the dog into the fun fair. (3) The midgets were conducting the booth on the licence given by the circus company with the knowledge that the elephants are being kept and brought to circus ring through the passage lying in front of the booth. After discussing various judicial precedents based on English common law, Queens Bench laid down following propositions: **A.S No.335 of 1999** -: 20 :- 1) The wrongful act of a third party afforded no defence to liability for injury done by a savage animal. The Queens Bench relied on Reylands' case (supra). 2) As a matter of law, all elephants were dangerous and that it made no difference that a particular elephant in question was a highly trained Burmese elephant and in fact tame, for the harmfulness of an offending animal was to be judged not by the particular training and habit, but by reference to the general habit of the species to which it belonged (Relied on Filburn v. Peoples Palace and Aquarium Company ((1890) 25 QBD 2581). 3) The keeper of a dangerous animal is under an absolute duty to confine and control it so that it should do no harm, and hence injury was caused by such an animal whilst out of control, the rule of absolute liability will be applied whether or not the injury **A.S No.335 of 1999** -: 21 :- resulted from the animals vicious or savage propensity. 17. Therefore, relying on judicial precedents as stated above, it can be safely concluded that elephant is a dangerous animal (ferae naturae) and the owner/keeper of an elephant is strictly liable, independently of negligence, for the damage caused by the elephant. The contentions that the dangerous animal was provoked by the wrongful act of a third party and thereby damage was caused, and this particular dangerous animal was well trained, tamed and never behaved violently or caused damage, are unsustainable defence in law. This line of defence does not make any difference in the application of strict liability. 18. In the light of the above decision, we find that the defence version pleaded in the written statement and argued before us, even if accepted and ## **A.S No.335 of 1999** -: 22 :- proved, will not absolve the defendants from the clutches of strict liability to compensate the plaintiffs, even if the defendants or the mahouts were not negligent or careless in controlling the tusker. To sum up, if a dangerous animal attacks, liability follows independently of negligence. So, the defendants are liable to compensate the plaintiffs for the loss caused by the elephant by the death of Mohammedkutty. 19. Then the next question to be considered is whether the court below is justified in fixing the quantum of compensation. There is no documentary evidence to show the income of the deceased. Being a cook in a private hotel, the absence of documentary evidence is well understandable. So, the only available evidence is the testimony of P.Ws.1 to 3. According to P.W.1, deceased Mohammedkutty was a cook in the hotel of P.W.2 and, besides, he used to prepare food items to marriage parties and other functions and the total monthly income was Rs.4,000/-. She claimed that he was getting Rs.90/- ## **A.S No.335 of 1999** -: 23 :- per day. The said evidence was corroborated by the oral testimony of P.W.2, the owner of the hotel, who had paid the wages to the deceased. P.W.3 has testified that Mohammedkutty used to prepare food items for marriage parties, in addition to his employment in the hotel. In the light of the oral testimonies of P.Ws.1 to 3, the court below is justified in taking Rs.65/- as his daily wage. The evidence of P.W.1 would show that at the time of his death Mohammedkutty was aged 35 years and P.W.1 was aged 30 years. In the light of the decision in K.S.R.T.C. v. Susamma Thomas [1994 (1) KLT 67 (SC)], the court below is justified in capitalising the annual contribution of the deceased to his family with a multiplier of 12 to arrive at a proper compensation of Rs.1,87,200/-. So also, the court below is justified in granting Rs.5,000/- towards pain and sufferings, Rs.12,500/- towards loss of consortium and Rs.2,000/towards funeral expenses. Thus, we find that the court below is justified in granting a total **A.S No.335 of 1999** -: 24 :- compensation of Rs.2,01,700/-. We do not find any reason to interfere with the quantum of compensation as it is just and adequate. Thus, the impugned judgment does not call for any interference. We do not find any kind of illegality or impropriety in any of the findings. Thus, this appeal is devoid of merits and dismissed accordingly. Sd/- ## **(V. CHITAMBARESH, JUDGE)** Sd/- - **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge