Case Comment On: Nitin Walia, Minor Through Vijay Pal Walia Vs. Union Of India (UOI) And Ors. On 19th October 2000 (By: Gurasis Singh Grover)

Case Comment On: Nitin Walia, Minor Through Vijay Pal Walia Vs. Union Of India (UOI) And Ors. On 19th October 20001

Bench: A Kumar, A Sikri

Judgment A.K. Sikri, J.

 

Authored By: Gurasis Singh Grover

 

Abstract

 

In this case a three-year-old boy, Nitin Walia along with his family went to the National Zoological Park, New Delhi. Upon seeing a white tigress and amused by its beauty, the boy crossed the safety railing and put his hand through the cage to observe the beast from a closer distance. The tigress bit his hand off and the boy with his bleeding arm was taken to the medical facility present in the zoo by his father. When they went there the doctors refused to help as they did not have the required means to treat him. Owing to this the boy was rushed to AIIMS Delhi where his right arm had to amputated leaving him 100% disabled for his entire life.

 

The family sued the zoo authorities in trials court where the compensation of Rs. 5 Lakhs was reduced to a mere 40,000 as the court took into account contributory negligence on part of the appellant. Unsatisfied with this decision, the family appealed in the Delhi High Court where the facts were dwelled upon individually and ruling of district court was quashed and a compensation of Rs 5 Lakh was awarded at an interest rate of 12% per annum for a specific period.

 

 

 

 

 

 

 

 

 

 

 

 

 

Introduction

 

This is the case of a boy of age 3 visiting a zoo and having crossed the safety railing in order to observe a white tigress from a closer distance had his hand bit off due to absence of a wire mesh. The right arm of the boy had to be amputated to prevent the infection from spreading to other limbs. This rendered him 100% disabled at a very tender age. The authorities were sued in trial court and then High Court and the physical, emotional, mental trauma was taken into account while delivering the judgement. The issues to be resolved was whether the zoo had taken proper precautions to prevent such an accident and whether there was contributory negligence on part of the appellant who crossed the railing and exposed his hand thereafter.

Facts of the Case

 

In this case a minor who was three years old visited a zoo with his family members on 20th March 1988. The zoo was an established and a very famous site in Delhi named National Zoological Park

While the zoo hosted animals from various parts of the world, it is expected that any child specially the ones of a tender age would be wooed by them and the same happened here. The child was awestruck when he saw a white tigress who was kept in an enclosure.

After seeing the tigress, the child wanted to see it from a closer distance so he crossed the safety railing and reached to the iron bars where the tigress was kept unknowingly what wrong could happen to him

As soon as he stretched out his arm the tigress pulled it in and crushed it. By the time the family members could realise what was happening or could think of putting the beast away the harm had already been done which was understandably irreversible. His right arm had been bit off As the child was in excess agony and constantly bleeding, his father was compelled to take him to the hospital situated in the zoo but too his surprise the doctors there told him that were incapable of providing him with any treatment.

Even though the child and his father both were in great agony, he had to be taken to the All India Institute of Medical Sciences (AIIMS), New Delhi. The doctors there observed that his right arm had to be amputated to 2.5 inches from the glenoid cavity.

 

 

 

 

1 (2001) ACC 275, 2001 ACJ 462, AIR 2001 Delhi 140

 

The above step was taken so that the infection could have spread to other limbs or other parts of the body. As a result of this the child suffered 100% disability for the rest of his life that too at a tender age of 3 years.

Nitin was admitted to the hospital for no less than a month and was discharged on 25th April 1988. He lost a necessary organ and was rendered permanently disabled with disability to an extent of 100%. The metal and physical trauma of the boy was taken into consideration during the judgement.

Since the family considered the authorities at the zoo to be completely responsible for what happened they filed a suit against them for an amount of Rs. 7,10,000 which was brought down to Rs. 5 lacs and interest at the rate of 18% P.A. from the date of filing of the suit till realization.

Appellant/Plaintiff had filed the suit as an "indigent person" and he was allowed to sue as such by the Trial Court by order dated 14th March, 1991.

They were awarded a compensation of Rs.40,000, unsatisfied with which the plaintiff appealed in the Delhi High Court. The judgements of both the courts are discussed below

Issues Formulated By Both The Trial And The High Court

1. If the appellant was negligent in putting his hand through the mesh and exposing himself to such an accident?
2. Was the zoo authority negligent for not taking enough care to prevent such an incident from taking place?

Judgment Of The Trial Court And The Arguments By The Appellant And Respondents

 

After appealing to the trial court, the respondents filled a written statement but however chose to not being present when the points of discussion were framed.

The father did testify but there was no questioning that took place. Arguments did take place later and the judgement was passed on 15th January, 1996 by Additional District Judge, Delhi.

The judge proclaimed that there was wrong on the part of the respondents but there was contributory negligence on the part of the appellant as well who crossed the safety railing and put his arm in a position where it could have been bit by the tigress Therefore, the judge said that a compensation of Rs.40,000 be given to the appellant. This amount of Rs. 40,000 had already been given to the appellant during pendency of proceedings as an interim compensation.

So, no further compensation was to be given to the appellant according to the judge at the Trial Court.

Note:

 

The appellant was not satisfied with this judgement and approached the High Court of Delhi under Section 96 of CPC. Appeal was filed as an indigent person which was registered in the court dated 19th April 1996

 

Analysis Of The Judgment Of Trial Court

 

I believe that the judgement is not justified as the use of the concept of contributory negligence on a three-year-old boy I arbitrary. It is to be understood that any child would be excited to see such an animal and to have a closer look could cross the railing.

Hence it was the duty of the zoo to provide another level of safety like a barbed wire before the cage which they failed to do. They lacked the proper medical facilities which is another point proving their gross negligence

Had the question been regarding a boy of a mature age in his teen years the concept of contributory negligence would still have been reasonable but not here.

All these facts were considered in the judgement of the High Court which is discussed below

 

 

Judgement Of The High Court And Argument Between Both The Parties

 

Mr. ML Mahjan who represented Nitin told the court that when it comes to animals under ferae naturae, the zoo is absolutely liable for not providing a mesh which resulted in the appellant putting his hand through the cage. In order to support his argument, he cited the following judgements:

1. Shashendra Lahiri v. UNICEF and others2

 

1. Rattan Lal Mehta v. Rajinder Kapoor and another3

 

1. Nagesha v. m.s. Krishna and another4

 

 

 

 

The respondent’s lawyer tried to justify the reasoning.

 

The court decided that it was the erroneous actions of the zoo which led to this incident. The judge said that in a zoo there are a large number of species that are brought to it from many parts of the world and it is their duty to ensure that no harm is done to the people visiting the zoo. The park also served an educational purpose. Now the animals surely consist of wild and ferocious species as well so the authorities must be aware that people from all age groups visit and hence take necessary precautions. They must be aware of the habits of these wild animals and know the consequences if they are on loose.

The animals must be confined in such a way that no harm could be done to any visitor under any circumstance. The court then pointed out that the respondents and the authorities were well aware of the behaviour of the tigress so it was their brunt to ensure that no untoward incident could take place.

Even after the incident the authorities did fence the area by putting a wire mesh on the bars which shows that caution was not taken previously. So, a child of three years could not predict the consequences of putting his hand through the bars

Their act could be put under the subject of torts with three different headers

 

1. Duty to take care and negligence on the part of the respondents.

 

1. Liability as keeper of dangerous animals.

 

1. Liability as occupier of the premises, viz., Zoological Park.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

21998 ACJ 859

3 1996 ACJ 372, 1996 IAD Delhi 552, 1996 (36) DRJ 374

4 1998 ACJ 467, JT 1998 (4) SC 438, RLW 1999 (1) SC 24, (1997) 8 SCC 349

 

Under 1st header,

 

Since the authorities were unable to take caution this would amount to negligence on their part. The definition of negligence was dwelled upon in Jay Laxmi Salt works (P) Ltd. v. State of Gujarat5 as "negligence as a Tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.” So basically, negligence is an omission of a duty to take care which a reasonable man would not do.

 

“In Poonam Verma v. Ashwin Patel6, Supreme Court enumerated following three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) Breach of the said duty; and (3) consequential damage.” Elucidated the judge

Under 2nd header,

 

There are many activities which deal with hazardous substances now if there is any damage done to an individual or public in general the person responsible would be held liable regardless of the fact that due care had been taken and he had no involvement in the same.

This rule was established in Rylands vs Fletcher7 case in 1868.

 

Since this law was established a long time ago the court asserted that a person owning an animal can be liable for the damages caused by it in three ways: Liable under ordinary law of torts, liable without any fault when animal is of a dangerous category and liable for cattle trespass

People in possession of animals ferae nature will be liable if any damage is caused by them as remarked in Read v. Lyons8, "The Law of Torts has grown up historically in separate compartments, and beast have travelled in a compartment of their own".

“Thus, a lion, a bear, a wolf, a monkey, and an elephant, are regarded as savage animals. He who keeps a savage animal does so at his peril. He is bound to keep it so far under control as to prevent it indulging in its propensity and inflicting injury.”

 

 

 

 

 

5 JT 1994 (3) SC 492

6 (1996) AIR 2111, 1996 SCC (4) 332

 

7 (1868) LR 3 HL 330

8 (1947) AC 156

 

So, if the animal escapes and causes damage, the other party is not under compulsion to prove that it was of a dangerous nature or not. Giving an example of May Vs Burdett9 case of 1846, the judge quoted a line from the judgement

"Whoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping of the animal after knowledge of its mischievous propensities. The negligence is in keeping such an animal after notice".

The judge pointed out that the harm caused by animals was codified in common law under Animals Act of 1971 so in absence of any such enactment in India, one may agree to the rule of common law that a keeper of a dangerous animal is under the rule of strict liability if any harm is caused.

Under 3rd Header,

 

It was ascertained that the zoo authorities would be held absolutely liable if any animal causes a harm to anyone regardless of whether the authorities were negligent or not. If the authorities have the provisions of buying tickets to visit the zoo, it serves as an invitation to view all that is in the zoo so they have a duty of care towards the public at general

To the visitors they owe a duty as "a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there".

They should also be aware of the difference between an adult and a child visitor. A child would not be able to analyse what is safe and what is not like an adult does. In the judgement of the above case a line was quoted by Justice Sikri, “not merely not to dig pitfalls for them, but not to lead them into temptation."

In Nitin’s case, Justice Sikri mentioned that it was based on a stronger ground as the ticket served as an invitation and not just a mere case of trespass.

The issue could be framed in yet another way which said that if it was the duty of the respondent to take care and did the respondent stand on their expectations. It is not denied by the respondents that they did not do all they could. The principle formulated by Lord Atkin in

 

 

 

9 (1846) 9 Q. B. 101

 

Donoghue Vs Stevenson10 in 1932 and those that followed on similar lines could be put into use here. The neighbour principle could be used for the occupier of the land (zoo) and those who visit the land. The occupier is supposed to reasonably foresee the damages that could be done to the visitors and take proper care.

A reasonable person would have used a wire mesh before the cage to prevent any mishap which the authorities failed to do. The tigress seemed tempting to the boy of the tender age and was an invitation for him to move forward "In the case of an infant there are moral as well as physical traps. There may, accordingly, be a duty towards infants nor merely not to die pitfalls for them, but not to lead them into temptation" (Latham v. Johnson11).

 

 

“There was nothing upon which the toddler could not have hurt himself”

 

It was hence the duty of the authorities to understand the dangers of not putting up the wire mesh. They failed to exercise their duty to take care AND HENCE LIABLE TO PAY DAMAGES.

Quantum Of Compensation

 

The mental and physical agony of the appellant would be kept in mind while discussing the compensation. We cannot afford to forget the fact that his right arm was amputated at only three years of age so the amount of Rs 5 Lakh was not unreasonable.

Giving the example of Shashendra Lahiri Vs UNICEF And Ors12 in which the leg of the appellant (17 years of age) was shortened, the compensation was enhanced from 58,000 to 4 lakhs in addition of 58,000 with an interest rate of 12%.

The next example taken was of Rattan Lal Mehta Vs Rajinder Kapoor and Anr13 in which there was analysis from Indian and foreign precedents which were restated in the judgement by the SC. It was not necessary to re deduce the precedents in this case. The compensation given by the divisional bench was enhanced because of the pain and suffering.

 

 

 

10 (1932) AC 562

11 (1913) KB 398

12 (1998) ACJ 859

13 (1996) ACJ 372

 

Another example cited was of Nagesha Vs MS Krishna14 and another where the injured who was of 23 years suffered disability of 95%, the compensation was enhanced to 6 lakhs at an interest rate of 12% PA. The sufferings were taken into account in that judgement and so would be taken care of in this case as well

The court then mentioned certain amounts with their reasons. ALL AMOUNTS IN INDIAN RUPEES

• 75000-pain and suffering
• 75000 for loss of happiness
• 100000 for disfigurement
• 100000 for loss of expectation of life
• 8000 medical expenses
• 10000 for general expenses
• Maid to take care at 3000 per month
• 84000 for total expenses of maid till age of 12
• Medical cost of electronic arm to be brought from Germany
• 102000 if cost of electronic limb is added along with cost of maid
• 300000 as the child has limited job careers in future

 

Now this amount comes to more than 7 Lakh but since the appellant limited to 5 lakhs only, it would be reasonable to award him that amount by way of compensation.

Appellant would be entitled to an interest rate of 12% per annum from the date of institution of the suit till realisation. Since the appellant was indigent, the counsel fee of 10,000 would be recovered from respondent under rule 10 of order XXXIII CPC.

The appeal of the trial court is hence set aside

 

“Decree in the sum of Rs. 5 lacs along with interest at the rate of 12% P.a. in favour of the appellant / plaintiff and against the respondents/defendant is hereby passed. The defendant would be entitled to adjust a sum of Rs. 40,000/- already paid by way of interim compensation.”

 

 

 

 

 

 

 

 

14 (1988) ACJ 467

 

 

Analysis Of The Judgement

 

The judgement was absolutely justified and took into consideration all the necessary ingredients like mental state of child when he saw the tigress, mental sufferings in future, awarding compensation taking into account limited career opportunities, mental, emotional and physical trauma.

However, the judgment lacked one aspect which was that the zoo did not have proper medical facilities. This topic was not dealt in particular just that the general statement that the zoo did not take proper care. Had this topic been dealt in depth the court may have ordered them to tie up with a nearby hospital which unfortunately did not happen.

Since any zoo has a proper medical centre within the premises and the one in consideration was a very old and established zoo, having such expectations were reasonable but they lacked it. The court should have penalised them for the same

Other than this the HC could have increased the compensation to 7 Lakh which was the amount they only formulated but the compensation was limited to 5 Lakhs only.

Since in the aforementioned cases as well, the compensation was increased, the court could have followed similar lines considering the tender age of the boy and might have included the medical costs and the cost of the electronic arm along with the asked compensation

Other than the two above mentioned areas the judgment was complete, extensive and non- questionable.

 

 

 

 

 

 

 

 

 

 

 

 

Conclusion

 

It is concluded that he case though had brief facts but they required complete analysis which was taken care of by Justice Sikri in both the res judicata and obiter dicta.

The facts were made clear by the appellants side and were dwelled upon one-by-one by the High Court.

Also, the main turning point in the whole case was the addition of wire mesh to the cages even before the judgement was passed. This clearly shows that even the authorities knew that they lacked an essential item but it certainly took a child to be rendered permanently disabled to awaken the bulbs in their minds! Unfortunate it really was

The Trial Court’s judgement and the compensation given can never be justified as you could never expect such critical thinking of consequences from a three-year-old.

The main concern still remains whether it should be made compulsory for the zoos to have a tie up with a nearby hospital to ensure that certain incidents do not extend to the extreme level. These may include certain unforeseeable incidents which require quick medical supervision.