JUDGMENT A.K. Sikri, J.
1. At the tender age of three years, Nitin Walia, applicant in the present case lost his right arm in an unfortunate incident. It has crippled him for life. It happened on 20th March, 1988. This boy of three years of age-was feeling excited and jubilant when he visited National Zoological Park, Delhi along with his family members to see various animals kept in zoo. His joy was boundless when he reached the enclosure where the white tigress was being kept. He was with his father and other family members. All family members were keenly watching the tigress. The boy, at that age, who had never seen such an animal was exhilarated. It was wonder for him. The white tigress was kept inside iron bars. There was railing before that. Appellant reached near the railing without realizing as to what was in store for him. The tigress all of a sudden grabbed his hand through the railing and pulled it in. Other family members reached to the rescue of the appellant and tried to put the tigress away. However, by that time irreversible harm had been done. Tigress had bit the right arm of the appellant. Profusely bleeding, in severe pain and agony the child was taken to the hospital situated in the zoo but the Doctors in the zoo expressed their inability to provide any treatment for want of any medicine or facilities for that purpose. It is irony that the Zoological Park of National fame where large species of animals are kept, which include ferocious ones, there are no medical facilities to meet such eventualities. Traumatic and tensed, father of the appellant rushed the appellant to All India Institute of Medical Sciences (AIIMS) and got the appellant admitted there. Right arm of the appellant had to be amputated up to two and a half inches from the shoulder to avoid further loss of any of the limbs or child's life. Appellant remained an indoor patient for more than one month and was discharged only on 25th April, 1988. Appellant has now to spend rest of his life without a vital organ of the body which impairs and affects the proper functioning of a person. He has been rendered permanently disabled. Disability is to the extent of 100%. Due to such incident he had to suffer at very tender age, physical pain, trauma and agony. Mental pain would remain through out his life and it may be difficult for him to forget such a horrific incident.
2. As the appellant (or for that matter his father and guardian) considered respondent, namely, Zoo Authorities responsible for the incident in not taking proper care to confine wild animals in the Zoo. Suit for damages was filed, Initially claim was made for damages to the tune of Rs. 7,10,000/-. However, claim was thereafter confined 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. During the pendency of the proceedings an interim compensation of Rs. 40, OOO/- was granted to the appellant. On filing the requisite Court Fee this amount was allowed to be withdrawn by him.
3. The respondents filed the written statement and took part in the proceedings. However, they chose to remain absent after the issues were framed. Father of the appellant stepped into witness box and testified. Neither the plaintiffs witness was crossed examined nor respondent/defendant led any evidence in defense. Arguments were heard and impugned judgement and decree dated 15th January, 1996 was passed by learned Additional District Judge, Delhi. The Trial Court found that unfortunate incident stands admitted by the respondents in the written statement. However, it held that there was negligence on the part of plaintiff also who had crossed the railing and had put his hand into iron bars where the tigress had pulled out the right arm of the plaintiff. In his wisdom, therefore, he thought it proper that interim compensation of Rs. 40,000/- which had already been awarded in this case would be adequate and no further compensation was warranted.
4. Aggrieved by the aforesaid judgement, appellant has approached this Court by way of present appeal filed under Section 96 of the Code of Civil Procedure. This appeal was also filed as an indigent person. CM. 603/96 seeking to file the appeal as an indigent person was allowed by order dated 19th April, 1996. Appeal was registered and admitted.
5. It was argued by Mr. M.L. Mahajan, learned counsel appearing for the appellant that in case of dangerous animals, the liability to take care is absolute and it is only on account of carelessness of the authorities of the Zoological Park of the Government of India, Mathura Road, New Delhi in not providing fine wire mesh in the cage that resulted in appellant putting his hand through the bars and losing his arm for which he was entitled to damages. He cited following judgements in support of his submissions:
1. Shashendra Lahiri v. UNICEF and others 1998 ACJ 859.
2. Rattan Lal Mehta v. Rajinder Kapoor and another 1996 ACJ 372.
3. Nagesha v. m.s. Krishna and another 1998 ACJ 467.
6. On the other hand the counsel for the respondent tried to justify the reasoning and conclusion in the impugned judgement.
7. The question to be decided is as to whether it was the negligence of three years old boy in reaching up to the railing and exposing himself to the risk of being attacked by the tigress or it was the negligence of Zoo authorities in not taking proper care to ensure that such incidents do not take place. We have no hesitation in holding that the brunt has to be faced by the Zoo authorities. It is their bounden duty to ensure that wild animals in the Zoo are kept and confined in such a manner that they are incapable of causing damage or injury to the visitors to the Zoo. Zoological Park is a place where animals and birds, which may be brought from all parts of the world, are kept. The purpose of visiting Zoo and see these animals is not only entertainment but education to the visitors. They are able to see, amuse themselves and learn about these animals without having the trouble of going to different places where these animals are the natural habitants. Animals are of various species. They include wild and ferocious animals as well. Zoo authorities are well aware of the fact that people of all ages would visit the Zoo. They are well aware about the habits of various animals. They are also well aware of the danger in letting loose wild animals i.e. the reason that wild and ferocious animals are kept behind iron bars and in cages. The Zoo authorities have to keep these animals in such a manner that under no circumstances these animals are able to cause any damage or injury to any visitors. The respondents and their employees were aware of the mischievous propensity of the white tigress kept in the Zoo. It was, therefore, their responsibility to keep it in such a manner that no such untoward incident takes place. After this incident respondents have fenced the area by putting wire mesh on iron bars. This itself shows that type of caution which was required was not taken earlier. Resultantly a child of three years of age which could not have thought of the impeding danger and may nave treated the white tigress as a toy to play with, fell prey to the horrific incident.
8. The aforesaid liability of the respondents can be easily couched in legal language. The basis is the action under the Torts. It can be compartmentalized in three different heads :-
1. Duty to take care and negligence on the part of the respondents.
2. Liability as keeper of dangerous animals.
3. Liability as occupier of the premises, viz., Zoological Park.
1, Duly to take care
9. Not able to keep the required caution and safeguards would clearly amount to negligence and such negligence is actionable under the Law of Torts. In Jay Laxmi Salt works (P) Ltd. v. Sate of Gujarat, JT 1994 (3) SC 492, the Supreme Court quoted the meaning of negligence as defined by Winfield in the following words "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. Therefore, negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. In Poonam Verma v. Ashwin Patel, , 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. As already observed above and discussed in detail at subsequent stage as well, it is the bounden duty of the respondents to ensure that wild animals in the Zoo are kept and confined in such a manner that they are incapable of causing damage or injury to the visitors.
1. Strict liability: As keeper of dangerous animals :
The concept of legal duty was enlarged, by means of case law, in certain circumstances by inventing the doctrine of Strict Liability. Courts recognised that there are many activities which are so hazardous that they constitute constant danger to person or property of others. Such activities can either be prohibited altogether by law or can be allowed to be carried on for the sake of their social utility but in accordance with their statutory provision laying down safety measures and providing for sanctions of non-compliance. Law may allow them to be tolerated on condition that they pay their way regardless of any fault. Thus in such cases undertakers of the activities have to compensate for the damage caused irrespective of any carelessness on their part. The basis of liability is foreseeable risk inherent in the very nature of the activities. This is founded on the principle of Strict Liability where negligence based on foreseeable harm is presumed. The doctrine of Strict 'Liability originated in the case of Rylands v. Fletcher, (1868) LR 3 HL 330. Under the principle of Rylands v. Fletcher a person who brings dangerous substances upon premises and carries on a dangerous trade with them is liable if, though without negligence on his part, these substances cause injury to persons or property in their neighbourhood. It is immaterial whether he is or is not aware of the danger at the time when he brings and uses them.
10. With the passage of time, the rule has been expanded. A person who owns or is in possession of control of an animal may become liable for damage caused by the animal under the common law in three ways. He may become liable under the ordinary law of torts; he may become liable without any fault when the animal is of a dangerous character or when the animal though generally not of a dangerous character is in particular of dangerous character to the defendant's knowledge; and he may become liable for cattle trespass. Case law categories the animals in two categorizes : (A) those that are of a dangerous character (animals ferae naturea); and (B) those not normally of a dangerous nature (animals mansuetae naturea). As lord Simonds remarked in Read v. Lyons, (1947) AC 156 "The Law of Torts has grown up historically in separate compartments, and beast have travelled in a compartment of their own". If from the experience of mankind a particular Class of animals is dangerous, though individuals may be tamed, a person who keeps one of the Class takes the risk of any damage it may do. 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. If the animal escapes and hurts any one, it is not necessary for the party injured to show that the owner knew the animal to be specially dangerous. It is immaterial whether the owner knows it to be dangerous or not. In May v. Burdett, (1846) 9 QB 101, DENMAN, C.J. dealt with the liability of owner, in respect of ferocious animals, by observing as under :
"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".
11. It may be relevant to point out here that in England Legislature has even codified the law relating to harm caused by animals, including dangerous animals, by enacting the Animals Act, 1971. The provisions of this Act are founded on the Rules of Common Law, to a large extent. In the absence of such legislation in India, one may bank upon the Rules of Common Law as per which it is almost a Strict Liability of the keeper of animals of dangerous character in case of injury suffered from such an animal.
1. Duty as occupier of the premises, viz. Zoological Park.
12. It is thus the absolute liability of the owner of the dangerous animal to keep the animal within safe bounds so that it is not able to cause any injury to any visitor. If such injury is caused, the presumption would be that it was the Zoo authorities who were negligent. In fact Zoo Authorities are the occupier of the premises in question. By purchasing entry ticket any visitor may visit the Zoo. It is, therefore, an invitation by Zoo authorities to the public at large to visit the Zoo. Thus Zoo Authorities as occupier of the premises also owe duty of care towards the visitors. The common duty of care which an occupier owes to all his visitors "is 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 whish he is invited or permitted by the occupier to be there". While ascertaining this duty to take care, one has to keep in mind the difference between an adult visitor and a child visitor. The child will meddle where the adult will not and so what is safe for an adult may not be safe for a child, and this factor must be kept in view in deciding whether the occupier has been wanting in the duty of care required. Here again one may notice that in England the Occupier's Liability Act, 1957 has been enacted again founded primarily on the Common Law Principles on Torts. In this connection one may refer to the judgement of Appeal Court in Britain in the case of Glasgow Corporation v. Taylor, (1922) 1 AC 44. The facts were that a garden maintained by the Corporation was much frequented by children. There were poisonous shrubs in a part of the garden which was accessible by a gate which could be easily opened by young children. A child who entered with other children are some berries of the poisonous shrubs which presented a tempting appearance to the children and died. The Corporation had known of the existence of the poisonous shrubs and had taken no steps to warn the children or to prevent them in reaching that part of the garden. In a suit by the father of the deceased child, the Corporation was held liable for want of due care to the children. It has been aptly said that so far as infants are concerned, there is a duty "not merely not to dig pitfalls for them, but not to lead them into temptation". Similarly in the case of Kumari Alka v. Union of India, , this Court imputed negligence on the authorities where the accident was caused by running motor of water pump and the victim was a girl of tender age of six years. In fact the Court even applied the doctrine of Res Ipsa Loquitun brushing aside the explanation of the respondents that the children used to trespass into the premises and the authorities were not liable. It was hold that a trespassing child of a tender age of six years would not be knowing the implication and gravity of putting her hand in a running motor and it was for the authorities to give ample protection in this regard. The detailed judgement given in this case after quoting various English and Indian authorities is almost approximate to the facts of the present case and is squarely applicable. In fact present case is even on stronger footing. It is not a case of trespass but of invitation by zoo authorities to enter the Zoo premises.
13. The question can be formulated and answered in yet another manner. Whether it was the duty of the respondents to take care i.e. to protect the visitors from any such mishap and, if so, whether the respondents observed the standard of care required in the circumstances of the case. It cannot be denied nor was it denied by the respondents that it was and is their duty to ensure that the animals kept in the Zoo, particularly, dangerous animals, are confined behind the bars in such a manner that they . do not cause any injury, or harm to the persons who visits the Zoo. The principle propounded by Lord Atkin in Donoghue v. Stevenson, (1932) AC 562 has been expanded from time to time by adding new duty to the existing list of admitted duties. The neighbour principle formulated in the aforesaid judgement was extended to the cases where persons who suffer injury while on another's premises were held entitled to claim damages from the occupier of the premises, particularly, in the case of dangerous premises because the duty of occupier of dangerous premises is to take care is more in contra- distinction to the case where plaintiff who is injured on the highway and adjoining land. The occupier of the premises is expected to reasonable foresee the danger to which the premises are exposed to the visitors and therefore, he is expected to take proper care to ensure that the visitors to this premises do not suffer injury. We have no hesitation in extending this principle to the case in hand. As stated above, as a reasonable person respondents were required to keep in mind that there are dangerous animals kept in the Zoo and that visitors may include small and very young children as well who may not be in a position to understand as to what is right or what is wrong. The appellant, in this case, was only three years of age. The tigress inside the cage was attractive and tempting to such a child and it was in fact an invitation to him to respond to its move. "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. Johnson, (1913) KB 398). There is nothing upon which a toddler cannot hurt itself. The danger may be obvious to its eyes but concealed from its understanding. Therefore, the respondents ought to have foreseen a danger in not putting the barbed wire. The standard of duty required in the circumstances was much more and respondent clearly failed in their duty. Only after the incident respondents realized their failure and made amends to ensure that no such incident recurs.
QUANTUM OF COMPENSATION
14. Having held that the respondents are liable to pay damages/compensation to the appellant for the injury suffered by him, we now address ourselves to the quantum of compensation.
15. Keeping in view the gravity of injury caused to the appellants when he was only three years of age and also keeping in view physical pain and mental agony suffered by him coupled with the fact that right arm of the appellant has been amputated rendering him incapacitated for whole of his life, amount of compensation of Rs. 5 lacs as claimed by appellant is not unreasonable. In Shashendra Lahiri v. UNICEF and Ors., 1998 ACJ 859, the victim had suffered several fractures in leg resulting in shortening of leg by three inches. Injured was aged 17, brilliant student of B.Com and the shortening of leg resulted in permanent disability. He had undergone bone-grafting and hospitalization for quite some time in different hospitals. Tribunal awarded him compensation of Rs. 33,000/- which was enhanced to Rs. 58,000/- in appeal. The apex Court further enhanced the compensation to Rs. 4 lacs in addition to Rs. 58,000/- already awarded and also awarded interest at the rate of 12% P.A. from the date of claim till date of payment.
16. There is illuminated discussion found in the Division Bench Judgement of this Court in the case of Rattan Lal Mehta v. Rajinder Kapoor and Anr., 1996 ACJ 372. The quantum of compensation to be awarded to the victim after analysing Indian and foreign case law as well as scanning through various celebrated articles and books on the subject, the Court deduced the principles therefrom and restated the same in this judgement. It is not necessary to reproduce these principles here. Suffice it is to State that the Division Bench not only enhanced the compensation awarded by the Tribunal, compensation was allowed for pain and suffering, loss of amenities or happiness, loss of expectation of life, for disfigurement, medical expenses, loss of leave etc. That was a case, where injured had lost his right eye and suffered permanent facial disfigurement due to accident.
17. In Nagesha v. M.S. Krishna and another, 1998 ACJ 467, injured who was 23 years of age, due to injury has suffered permanent disability of 95% despite hospitalisation of four months and undergoing serious surgical operations. Subordinate Court had awarded compensation of Rs. 2,85,000/-. In appeal Supreme Court enhanced the same to Rs. 6 lacs and also awarded interest at the rate of 12% P.A. While enhancing the compensation the Court took into consideration the fact that on account of permanent disability the appellant would require medical attention for the rest of his life and con-slant care of some other person even for his ordinary needs and observed that "these are the facts which are too obvious to require adducing any evidence since these are the evident facts". This case applies here in all fours.
18. Keeping in view the principles laid down in the aforesaid judgments and applying the same to the instant case. We are of the opinion that appellant could easily be awarded Rs. 75,000/- for pain and suffering, Rs. 75,000/- for loss of amenities or happi-ness, Rs. 1,00,000/- towards disfigurement, Rs. 1,00,000/- for loss of expectation of life. Insofar as pecuniary damages are concerned, the appellant produced the evidence to show that medical expenses to the tune of Rs. 8,000/- were incurred. Another expense of Rs. 10,000/- is stated to have been incurred. Evidence is also provided to the effect that plaintiff was provided a maid for bringing the child from the school and for looking after the child and expenses of Rs. 3,000/- per month were incurred on the maid. It was also stated in evidence that electronic limb was not available in India and the same was available in Germany, which has also to be taken into consideration although no cost has been mentioned of the same. Even if the appellant is paid the expenses incurred on the maid at the rate of Rs. 1000/- per month and till he attained the age of 12 years after he started going to the school at the age of 5 years, he would be entitled to a sum of Rs. 84,0007- on this account. In this wa'y the pecuniary damages would come to Rs. 8,000/- & Rs. 10,000/- + Rs. 84,0007- i.e. Rs. 1,02,000/- in addition to cost of electronic limb. Insofar as the loss of income is concerned, it cannot be measured by any yardstick inasmuch the appellant was only three years of age at the time of accident. The loss of his arm would not only adversely affect him in pursuing his studies but also in grooming as a multi-dimensional personality (e.g. he cannot become a sportsmen). Due to such handicaps his future career itself would be affected. In such circumstances, even if a sum of Rs. 3,00,000/- is awarded under this head, it would be peanuts, Thus, seen from any angle, the amount to which the appellant is entitled to as compensation comes to much more than Rs. 5,00,000/-. However, since the appellant has limited his claim to Rs. 5,00,000/- It would be but reasonable and proper to award the appellant a sum of Rs. 5,00,000/- by way of compensation.
19. Appellant shall also be entitled to interest at the rate of 12% P.A. from the date of institution of the suit till realisation. Appellant shall also be entitled to cost of the suit as well as this appeal. Counsel fee is fixed at Rs. 10,000/-. Since the appellant was allowed to file the appeal as indigent person, court fee payable in appeal would be recovered from the respondents as provided by Rule 10 of order XXXIII CPC. The appeal, accordingly, succeeds judgement and decree of the Trial Court is 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. The decree be prepared in the aforesaid terms.