MANKARA KOVILAGAM MANAGER VEDAPURATTI ALIAS VALIA THAMPURATTI AVERGAL; MAUNNARGAHT MOOPPIL NAIR Vs. MALAMKATTIL KOPPAN NAIR

JUDGEMENT

(1.) The 1st defendant, Mannarghat Nair, had in his possession the elephants - both tuskers - of the plaintiff and of defendants Nos. 5 to 14 (who represent the Mankada Kovilagam) which he had obtained from them for processional purposes in a temple. The Mankada elephant gored the plaintiff s elephant to death. The plaintiff brought this suit for damages. The Subordinate Judge found that the Mankada elephant was known by the defendants to be vicious and accordingly awarded damages against the 1st defendant and the Mankada Kovilagam. In appeal the Judge, Mr. Munro, held that the Mankada elephant is an animal ferae naturae and that it was therefore unnecessary to consider whether it was vicious or there was any negligence, and confirmed the decree of the Subordinate Judge.

(2.) It is contended in appeal that this finding is not correct in law and in the absence of any negligence or knowledge on the part of the defendants of the vicious nature of the elephant, if it is vicious the defendants are not liable. There is also a further contention on the part of the 5th defendant that she is not liable in any event, as the elephant was in the possession of the 1st defendant when it killed the plaintiff s elephant.

(3.) The leading case is Filburm v. People s Palace Aquarium Co. (1890) 25 Q.B.D. 261. In that case Lord Esher lays down : "The law of England recognises two distinct classes of animals, and as to one of those classes, i) cannot be doubted that a person who keeps an animal belonging to that class must prevent it from doing injury, and it is immaterial whether he knows it to be dangerous are not. As to another class, the law assumes that animals belonging to it or not of a dangerous nature, and any one who keeps an animal of this kind is not liable for the damage it may do, unless he new that it was dangerous. As to the latter class he lays down that there are some animals which everybody recognises as not being dangerous on account of their nature thought they might be fera naturae so far as rights of property are concerned : there is another set which the law has recognized in England as not being of a dangerous character such as horses, dogs, oxen, etc : unless an animal falls within these two classes, the man who keeps it must take the responsibility of keeping it safe." It is impossible to say, as the same learned Judge points out, that an elephant is harmless by nature. The contention before us is that it falls within the same category as a horse. The test, according to Lord Esher; for determining this is whether years ago and continuously up to the present time the progeny of this class of animals has been found by experience to be harmless. In that case the law assumes the result of this experience to be correct. It is true that in ancient Rome it is said that elephants were bred in captivity and the Romans made use of them in war, in the amphitheatre and in military pageants. The results of their experience have not been handed down to us. Though common in those days elephants are said to have been almost unknown for centuries in Europe after the decline of the Roman Empire. The kings of ancient India, like the Carthagenians, employed them in wars but whether they were bred in captivity it does not appear. It is certain, however, that though elephants have been known to breed in captivity it is of the rarest occurence in India, although in Burma it is said such births or common, owing to the fact that domesticated females or allowed to aoam in jungles. Domesticated or tamed animals in India have been reclaimed from the wild states, and it is conceded in this case that the Mankada elephants when wild, even after they are tamed, their nature often asserts itself. If, therefore, we apply the test laid down by Lord Esher in India we cannot presume that the elephant is not of a dangerous nature. Lindley L.J. and Bowen L.J. also lay down that the question is whether the particular class of animals is dangerous, though individual animals may be tamed, and if a person keeps an animal belonging to a class which is dangerous, he takes the risk of any damage it may do. Elephants, undoubtedly, as a class, are dangerous, though individuals may be tamed and perhaps domesticated.