IVATURI VEERA SUBRAMANYAM Vs. PRESIDENT, DISTRICT BOARD

JUDGEMENT

(1.) The plaintiffs, a father and his three minor children, have brought this suit for damages under the Fatal Accidents Act on account of an accident alleged to have been caused by the negligence of the defendants, which was responsible for the fall of a tree on a cart passing along the Narasapur Nidadavole Road, with the result that the wife and two small sons, aged three years and one year, of plaintiff 1 were killed. The amount of damages claimed was Rs. 6000. The Subordinate Judge of Ellore, who tried this suit, found that the District Board of West Godavari had been negligent in the sense that the attention of the Board had been drawn from time to time to the dangerous condition of some of the trees on this road and that they had taken no steps in spite of the complaints to out down the trees. The District Board, which was the contesting defendant, set up a plea of vis major and contributory negligence, it being alleged that the accident occurred during a very heavy storm, and that the plaintiffs were negligent in travelling along the road while such a heavy storm was raging, knowing that trees were likely to fall. Both these issues were very rightly decided against the Board. The defendant, however, succeeded on three grounds. The first was that the Board was not liable for any act of mere nonfeasance; the second that the suit was barred by limitation, in that it had not been preferred within six months of the accident; and the third was that the plaintiff had not proved that he had sustained any damage of a pecuniary nature.

(2.) The question whether the defendant can avoid liability merely on the ground that the failure to cut down the tree, which was an act of nonfeasance, is not actionable is a difficult one. We have been taken through a large number of English cases which deal with somewhat similar questions; and there seems to us little doubt that the present law in England is that the only exception in favour of a statutory body to the general principle that a person or body must so control the property under its control that it does not cause injury to others, is that a statutory body charged with the maintenance and upkeep of a highway is not liable for damages for not performing its duty of keeping the highway in proper repair. At one time it was considered that statutory bodies, with respect to common obligations, were in precisely the same position as private persons; but later, an exception was recognised, and Courts consistently held that a statutory body responsible for the repair of roads was not liable for damages if it did not do so. There can be no doubt that the principle of non-liability for non-feasance was extended to other omissions of a corporate body at one time; but the trend of decisions in England later narrowed the exceptions to the one case of non-repair of highways. Bevan, in his book on "Negligence," after discussing all the authorities on. the question of liability of statutory bodies for breaches of common law obligations sums up by saying: The liability to repair in the case of highways and bridges is an exception from the general law. At common law the remedy for want of repair is highways and bridges was not by suit against the surveyor or justices but by presentment or indictment against the county or against some individuals thereof for or in the name of all the rest.

(3.) There was thus a historic reason for making an exception in favour of corporate bodies in this connexion; because when roads were vested in the vestry or hundred or justices as the case may be, they were not made liable for an action for non repair, one of the reasons being the impracticability of making a large number of persons liable for acts of non-feasance. When later the repair of the roads became the duty of the surveyor and of local bodies, the legislation which introduced these changes imposed no liability either on the surveyor or on the local bodies. It was therefore held that as there was no right of action for non- repair of roads against the vestry or hundred or justices and the Legislature had not created any right of action by the legislation which introduced the changes, it must be assumed that even after the roads were vested in the surveyor or the corporate bodies, there was no right of action against either the surveyor or the local body.