Smt. Krishna Devi And Ors. vs Haryana State Electricity Board ...
2001 Latest Caselaw 1495 Del

ORDER

A.K. Sikri, J.

1. The plaintiff No. 1 is the widow of late Sh. Rambhaj. Plaintiffs 2 to 4 are her children. Plaintiff No. 5 is the mother of Sh. Rambhaj. These plaintiffs have filed this suit for recovery of Rs. 10 lacs impleading Haryana State Electricity Board as defendant No. 1 and M/s. Rajdhani Sales as defendant No. 2. The amount is claimed by way of damages on account of loss of life of Sh. Rambhaj who was an employee of defendant No. 1 and died in an accident which occurred in the premises of defendant No. 2. The facts as mentioned in the plaint may not be stated in brief.

2. Defendant No. 1 which is established by Government of Haryana to generate and supply electricity in the State of Haryana. One of its electricity generation plant is at Panipat. Defendant No. 2 is doing the business of manufacturing of various types of gases including H-2 gas which is required in the thermal plant. The case set out in the plaint is that defendant No. 1 had deputed Sh. Rambhaj to Delhi on or about 5th October, 1988 to the factory premises of defendant No. 2 for collection of H-2 gas for Panipat Thermal Plant since the same was required for some emergency work. When Sh. Rambhaj was in the premises of defendant No. 2 for the aforesaid purpose, there was an explosion of gas cylinder in the factory of defendant No. 2, on 6th October, 1988 and as a result whereof Sh. Rambhaj died on the spot. He is survived by the plaintiffs. He was on duty when the explosion took place. There was no fault of Sh. Rambhaj when he got killed while on duty. The plaintiffs approached the defendant No. 1 several times to pay compensation but nothing was paid. Sh. Rambhaj was a Junior Engineer aged only 42 years and was drawing salary of Rs. 2,798.50 paisa and still had 18 years of service ahead of him. He would have earned much more than he was earning at the time of his death. His untimely death caused mental shock and agony to the plaintiffs who have almost come on road and are living at the mercy of their close relatives with no source of income of livelihood. The accident occurred due to negligence of defendants. It is also stated that the defendant No. 2 was fully conscious of the hazardous and inherently dangerous nature of H-2 gas which had been stored in their plant. The activities of the defendant No. 2 and are potential threat to the health and safety of persons working in the factory, the person residing in the surrounding area and those who are near the site of the factory. The manufacturing plant of the defendant No. 2 at their aforesaid factory was old and dilapidated. The defendant No.2 has singularly failed to maintain these plants property and provide requisite safety standards having regard to the inherently dangerous nature of the products manufactured and stored therein. The defendants were fully aware of the shortcoming in the plant of defendant No. 2 and the hazardous nature of their activities. It is further stated that the defendants through their employees/agents were negligent for not taking adequate safety measure to prevent any such mishap which took the life of Sh. Rambhaj. The defendants employees/agents did not maintain safety standards as required by law. The defendants employees/agents did not maintain safety standards as required by law. The defendant No. 2 was also negligent in failing to maintain the plant properly. The conduct of the defendants was infact reckless and callous and they failed to maintain it properly and due to hazardous nature of their activities and the inadequate safety measures, there was an explosion resulting in death of Sh. Rambhaj. It is also stated that irrespective of the question of negligence of the defendants, the defendants have absolute liability in the matter. The defendants being engaged in hazardous and inherently dangerous industry which poses a threat to the health and safety of the persons employed, it becomes the absolute and non-delegable duty of the defendants to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature of their activities. The defendant No. 2 being engaged in manufacturing and storing activities of H-2 gas is required to compensate and indemnify all those who suffer on account of carrying of such hazardous or inherently dangerous activity regardless of whether it is carried on safely or negligently. It is further stated that had Sh. Rambhaj remained in service, he would have earned Rs. 6 lacs. The plaintiffs have suffered torture, mental agony and tension for which a further sum of Rs. 4 lacs by way of damages is claimed. This is how the suit is valued at Rs. 10 lacs. Interest at the rate of 21 per cent annum from the date of filing of the suit is also claimed.

3. Defendants 1 and 1(a) have filed the written statement stating that the plaintiffs have no cause of action against them. They have also not mentioned as to whether the plaintiffs received any compensation under the Workmen's Compensation Act, 1923. It is further admitted that Sh. Rambhaj was deputed by them on 6th October, 1988 to bring H-2 gas from the factory of defendant No. 2. It is also admitted that he died due to an explosion in the H-2 gas factory of defendant No. 2. However, it is denied that the accident occurred due to negligence of defendants 1 and 1(a) or that defendants 1 and 1(a) were fully aware of shortcoming in the plant of defendant No. 2. It is stated that to provide adequate safety measures for preventing any mishap and to maintain safety standards as required by law were the responsibility of defendant No. 2, and therefore, defendants 1 and 1(a) are not liable to make any payment. It is also stated that the defendants 1 and 1(a) have made the following payments to the plaintiffs:

a) Rs. 1,000/- for funeral ceremony.

b) Appointment of his wife as PTI in Thermal School Assan, Panipat.

c) D.C.R.G. - Rs. 20,076.30 paisa.

d) Ex-gratia amounting to Rs. 24,535/-.

4. In the written statement filed on behalf of defendant No. 2 apart from taking objections on the maintainability of the suit, it is stated that the plaintiffs have no cause of action qua the defendant No. 2 as the deceased who entered the hydrogen plant of the defendant No. 2 unauthorizedly through the back door after he was prevented by the watchman from entering the said plant from the main front gate. The deceased was neither invited in the hydrogen plant nor he had any occasion or reason to visit there nor he had any work there. The correct facts are that the deceased came for receiving the supply of hydrogen gas on behalf of the other defendants and came to the factory of the defendant No. 2 for this purpose which manufacture both oxygen and hydrogen gases. There is a separate administrative block for receiving the customers/outsiders and no outsider/visitor/customer is allowed to proceed beyond that and the deliveries are made in the trucks parked only in front of the administrative/office block. There is posted a regular chowkidar to prevent the outsiders/visitors from going beyond the office block. Immediately behind the office block oxygen plant is located and after that the hydrogen gas plant is located. Nobody is allowed to go even to the oxygen plant, let alone allowing any visitor to visit even near the hydrogen plant as this gas is highly inflammable even in case it comes in contact with the atmospheric air. The enclosure/portion of the factory where the hydrogen plant is located is enclosed by strong bricks walls. There are only two opening to this portion, one on the front side which is visible to the chowkidar and which is the main entrance while at the back side, there is small door for the workers of the factory itself coming the back side of the factory. After the hydrogen gas is filled in the cylinders, these are taken out by the factory workers from the front side on raised verandah for staking them and for onward delivery to the customers. Between the verandah and the hydrogen plant there is strong brick wall and it is so strong that even if there is an explosion inside the plant, persons standing on the verandah shall be beyond its impact or effect. It is also stated that reasons known to the deceased only and in any case not known to the defendant No. 2 and its employees the deceased who had absolutely no concern or reason or occasion to visit or enter the portion housing the hydrogen plant wanted to enter there. The chowkidar saw him and prevented him from going there. The deceased instead saying that he had to take delivery of hydrogen gas and wanted to see its filling but still the chowkidar prevented him from going inside. On this the deceased visibly agreed and did give up his attempt to enter the hydrogen gas plant and left the factory. Curiously enough it became evident later on after the unfortunate mishap, that he had some obsession of entering the hydrogen plant cell as after he was prevented from entering by the chowkidar as stated above, he stealthily, surreptitiously and unauthorizedly entered the factory which opens on the service lane side avoiding everybody and the moment he entered the hydrogen gas plant portion, the explosion occurred killing him and two employees of the defendant No. 2 who were working there. The findings of the enquiries made both by the police and explosive department of Government of India are that the explosion never occurred earlier and it happened only when the outsider Sh. Rambhaj, Junior Engineer arrived at the plant. Further findings were that the deceased Sh. Rambhaj was agitated as him cylinders were not filled and that it was possible that the deceased acted without responsibility which resulted in the leakage of hydrogen gas or his actions had diverted the attention of the operator who ultimately committed some mistake and the hydrogen gas leaked under pressure which caused self ignition and explosion. It was also found that deceased Sh. Rambhaj entered the plant unauthorizedly through the back door which was not meant for the outsiders despite the fact he was prevented and advised not to enter the hydrogen plant cell. There was no negligence on the part of the defendant No. 2 who had employed qualified operator for operating the plant and there was no defect or any mal-functioning of the plant.

5. On the basis of pleadings, following issues were framed:

1. Whether the explosion of gas cylinder had taken place in the premises of defendant No. 1 on account of negligence of defendant No. 2? If so, its effect?

2. Whether defendant Ram Bhoj, who dies in the explosion of gas cylinder at the premises of defendant No. 2, was a trespasser and his legal heirs are not entitled to claim any damages, as alleged in the written statement of defendant No. 2? OPD

3. To what damages, if any, are plaintiffs entitled to and from which defendants?

4. Whether defendants 1 and 1(a) are necessary and proper parties?

5. Relief.

6. Thereafter by order dated 4th July, 2000 issue No. 1 was re-framed as under:

1. Whether the explosion of gas cylinder had taken place in the premises of defendant No. 2 on account of negligence of defendant No. 2? If so, its effect?

7. In support of their case, plaintiffs have examined two witnesses: Sh. Shashipal as PW-1 and Mrs. Krishna Devi as PW-2. Defendant No. 2 examined four witnesses.

8. From the stage of recording of the evidence, counsel for defendants 1 and 1(a) stopped appearing. No evidence is led on their behalf.

9. Sh. Shashipal, PW-1 is the driver of defendants 1 and 1(a). He had accompanied Sh. Rambhaj when Sh. Rambhaj visited the factory of defendant No. 2 on 6th October, 1988. He has stated that entry of the departure is made in the lorry log book which he has proved as Ex. PW-1/1. He has further stated that there were two gates in the factory at Okhla; one is the main gate and the other is the back gate. He and Sh. Rambhaj had been coming to the factory of defendant No. 2 frequently and earlier also. They used to first park their vehicle on the back gate. After the gate is opened, the vehicle was taken inside and empty cylinders were removed and filled gas cylinders were loaded in the truck inside the factory. On 6th October, 1988 also they had parked their vehicle at the rear side of the factory. In the meantime the Manager also reached there. They were told that it will not be possible to load or unload the truck inside the factory premises and they were asked to go on the front side. He went inside to see the site and in the meantime there was explosion inside the factory and there was smoke all round. Sh. Rambhaj had died in that explosion, at the spot. The Manager of the factory had in the meantime gone to the office at upper floor. He was at a distance of about 10 to 12 feet when the explosion had taken place.

10. In his cross-examination he admitted that there is a service lane on the back side of the factory and a door opened in that service lane. He also admitted that gas plants are on the back side. He did not notice if there was office block on the front side of the ground floor. However, he admitted that there was office block on the first floor on the front side. He denied the suggestion that truck entered the factory from the front gate stating that their truck used to enter the factory from the back door. He admitted that there was a platform on the front side of the factory and voluntarily added that there was similar platform on the back side also. He denied the suggestion that all the cylinders were loaded and unloaded from the front platform. According to him loading and unloading used to take place from the back platform. He denied having seen any chowkidar on the front side adding that he had noticed chowkidar on the front side adding that he had noticed chowkidar on that back entrance. He also denied the suggestion that they were in hurry to load and unload the cylinders or that chowkidar on the front side refused to allow them to enter from the front gate. He also denied the suggestion that Sh. Rambhaj entered the factory from the back gate unathorizedly.

11. Mr. Krishna Devi, PW-2 in her evidence deposed to the effect that plaintiffs are the legal heirs of the deceased Sh. Rambhaj, who died on 6th October, 1988. He was employee of defendants 1 and 1(a) and was receiving a salary of Rs. 2,798/- p.m. at the time of his death when he was on duty. She also stated that the plaint had been drafted at her instructions and whatever was stated in the plaint was correct. She proved the death certificate as Ex. PW-2/1, FIR as Ex. PW-2/2 and Post mortem report as Ex. PW-2/3. There is no cross-examination of PW-2.

12. Defendant No. 2 examined four witnesses. Sh. P.K. Mukhopadhyay, who appeared as DW-1 is the Controller of Explosives. He brought the file relating to the explosion in question i.e. 6th October 1988. According to him accident was investigated both by police and his department through Sh. L.K. Srivastava. He stated that he had got the report of Sh. L.K. Srivastava. It was given to him by counsel for defendant No. 2 when he met him. In cross-examination he stated that according to the report, exact cause of accident could not be ascertained. Another witness of defendant No. 2 is Sh. Govind Ram who is the Managing Director of the defendant No. 2. He has stated that factory was constructed after taking a plot and factory is in the gases zone in Okhla Industrial Area. He was not present at the time of accident. He reached there after the accident. Body of Sh. Rambhaj was lying inside the factory premises. He was never challenged by the Explosive Department.

13. Mr. Rishi Lal is the other witness of defendants who had brought the record relating to the death of Sh. Rambhaj. He has testified the payments made to the plaintiffs on due dates. He has also stated that plaintiff No. 1 has been employed as Teacher and the pension is also being paid to her.In cross-examination, it is stated that he was not aware as to how much salary the plaintiff was drawing.

14. Sh. Govind Ram who was working as Manager of defendant No. 2 is another witness examined by the defendant. He has mainly deposed to the effect that the building was constructed according to specifications of Explosives Act. The plant portion was totally separate from the rest of the building. There were two entrances to the plant and one from the rear gate and one from the small passage from the back lane. Persons coming to have the gas refilled were not permitted to enter the premises. There used to be a watchman to ensure that nobody enters the building. He had asked Sh. Rambhaj not to go the main building. Thereafter he came to administrative block and the he heard an explosion. When he came to the factory area he found three persons dead inside the plant including Sh. Rambhaj and two of their employees. On his enquiry from the watchman, watchman told that he had tried to stop Sh. Rambhaj but he could not stop him. Police was informed. This was only the explosion that took place in the factory. Incross-examination he stated that Sh. Rambhaj had been visiting the factory in a period of 1 1/2 years prior to the accident. He had told him about not to visit the factory area. He did not remember who the watchman on the date of the explosion. he was unable to tell the exact cause of explosion. he was not a technical persons.

15. After recording the gist of evidence led by both the parties, let me record my findings on each issue.

16. These issues are overlapping, and therefore, taken up together for discussion. These issues are as under:

1. Whether the explosion of gas cylinder had taken place in the premises of defendant No. 2 on account of negligence of defendant No. 2? It so, its effect?

2. Whether defendant Ram Bhaj, who dies in the explosion of gas cylinder at the premises of defendant No. 2, was a trespasser and his legal heirs are not entitled to claim any damages, as alleged in the written statement of defendant No. 2? OPD

17. There is no dispute hat in the premises of Defendant No. 2 gas cylinders exploded on the fateful day which caused death of Sh. Ram Bhaj as well as two employees of defendant No. 2. The question which is therefore to be determined is whether the explosion was caused because of negligence on the part of the defendant No. 2. When the accident/explosion took place in the premises of defendant No. 2 and the entire portion relating to the filling of gas cylinders and delivery thereof was within the control of defendant No. 2, the burden would be on defendant No. 2 to prove that it was not negligent. It is sufficient for the plaintiffs to prove accident and nothing more and the moment the accident is proved, it is for the defendants to establish that the accident happened due to some other cause than its own negligence. (See: , Mst. Gaurabai and Anr. Vs. Jagdish Prasad and Anr.: (1974) 1 Madras Law Journal 37 (DB). In order to discharge the burden, the defendant No. 2 has taken the following defenses.

a) Building in question was constructed according to specifications of Explosives Act. The plant portion was totally separate from the rest of the building. There were two entrances to the plant; one from the rear gate and other from the small passage from the back lane. All possible measures to prevent mishap are taken by the defendant No. 2 in conformity with the specifications contained in Explosives Act. The factory was constructed after taking a plot in the gases zone in the Okhla Industrial Area. The defendant No. 2 was never challenged by the Explosive Department. This was the only accident which took place in the premises of the defendant No. 2.

b) The entire building is constructed and designed in such a way that any mishap of the kind happened in this case, is avoided. There is separate administration block for receiving the customers/outsiders and no outsider/visitor/customer is allowed to proceed beyond that and the deliveries are made in the trucks parked only in the front of the administrative/office block. A regular Chowkidar is posted to prevent the outsiders/customers from going beyond the office block. Immediately behind the office block oxygen plant is located and after that the hydrogen plant is located. Nobody is allowed to go even to the oxygen plant, let alone to visit near the hydrogen plant as this gas is highly inflammable even in case it comes in contact with the atmospheric air. The enclosure/portion of the factory where the hydrogen plant is located is enclosed by strong brick walls. There are only two openings to this portion; one on the front side which is visible to the chowkidar and which the main entrance a while at the back side, there is a small door for the workers of the factory itself coming to the back side of the factory itself. Sufficient measures are taken to ensure that even there is an explosion inside the plant, the person standing outside shall be beyond its impact or effect.

c) Although no customer/visitor is allowed to enter to the plant area, the deceased Sh. Rambhaj entered the hydrogen plant of the defendant No. 2 unauthorizedly through back door even after he was prevented by the watchman from entering the said plant. Since he was not supposed to enter the hydrogen plant and was a trespasser, the defendant No. 2 is not liable for the consequence of the accident which took place and killed Sh. Rambhaj.

d) The findings of the enquiries into the accident made both by the police and the Explosive Department of the Government of India are that the explosion never occurred earlier and it happened only when the deceased Sh. Rambhaj entered the plant. Further findings were that the deceased Sh. Rambhaj was agitated as his cylinders were not filled and that it was possible that the defendant acted without responsibility which resulted in the leakage of hydrogen gas or his action had diverted the attention of the operator who ultimately committed some mistake and the hydrogen gas leaked upon pressure which caused self-ignition and explosion. Therefore, negligence, if any, was that of the deceased Sh. Rambhaj due to which accident/explosion took place.

e) In any case, since the deceased Sh. Rambhaj was not supposed to enter the hydrogen plant and he entered the said hydrogen plant unauthorizedly even when he was prevented by and advised by the chowkidar not to enter, no liability can be fastened upon the defendant No. 2.

18. Learned counsel for the defendant No. 2 submitted that since no exact or precise reason was available as to why accident took place and that when the defendant No. 2 had taken all precautions in the construction of the plant and structure as well as maintenance thereof, the negligence could not be attributed to the defendant No. 2. Even if it is presumed that the deceased Sh. Rambhaj was not negligent, it can be a case of an accident and an accidental death. When there being no negligence on the part of the defendant No. 2, the defendant No. 2 cannot be held liable. Learned counsel for the defendant No. 2 also relied upon the following judgments in support of his submissions:

1. Governor-General of India in Council Vs. Bibi Saliman reported in AIR 1949 Patna 388:

"Para 13: In the present case there is no evidence that the defendant's negligence was the effective cause of the accident. Assuming but without deciding that the engine was being driven at 10 or 15 miles an hour and there was absence of constant whistling, it does not necessarily follow that these negligent acts were the sole or decisive reasons for the accident. In Wakelin V. L & S.W. Rly., (1986) 12 A.C. 41: (56 L.J.Q.B. 229), the dead body of a man was found on a railway line near a level crossing at night. He had been killed by a train which carried the usual head-lights but did not whistle or otherwise give warning of its approach. The level crossing was guarded by hand-gates. No evidence was given as to how the deceased had on the line. In an action under the Fatal Accidents act, 1846, the House of Lords held that even assuming that there was evidence of negligence on the defendants' part, yet there was no evidence to connect such negligence with the accident, and that there was no case to go to the jury. it was pointed out (1) that the deceased must have been taken to know that if he remained on a line where trains run at high speed, he was bound to be run over; (2) unless he were blind or deaf, the noise and glare of the approaching train gave him ample warning of its approach.

Para 14: In the present case it was incumbent on the plaintiff to establish by proof that her son's death could be attributed to some negligent act or some negligent omission on the part of the defendant. If that fact is not proved the plaintiff fails. If in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff again fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition; "Ei qui affirmat non ei qui negat incumbit probatio".

"If the evidence established only that the accident was possibly due to the negligence to which the plaintiffs seek to assign it, their case is not proved. To justify the verdict which they have obtained the evidence must be such that the attribution of the accident to that cause may reasonably be inferred. If a case such as this is left in the position that nothing has been proved to render more probable any one of two or more theories of the accident, then the plaintiff has failed to discharge the burden of proof incumbent upon him. He has left the case in equilibrium, and the court is not entitled to incline the balance one way or the other" (Lord Macmillan in Jones V. G.W. Rly. Co., (1931) 144 L.T. 194 at 201: (36 Com. Cas. 136)".

2. K.C. Kumaran Vs. Vallabhadas Vasanji & Ors. :

"Para 8: As observed by Lord Wensleydale in Morgan v. Sim, (1857) 11 Moo PC 307, 312:

"The party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales, and does not satisfy the court that it was occasioned by the negligence or default of the other party, he cannot succeed."

3. V. Krishnappa Naidu Vs. Union of India reported in AIR 1976 Madras 95. This case is on the proposition that when the person who suffer injuries due to accident is neither a invitee nor a licensee but is a trespasser, it was his willful negligence or recklessness and the owner of the premises had no liability.

"Para 10: The next question, in our opinion, which arises for determination is about the capacity in which P.W.3 drove his taxi over the level crossing on the occasion of the accident. There are three categories in which persons visiting premises belonging to another may fall. They are (1) by the invitation, express of implied, of the occupier, (2) with the leave and license of the occupier, and (3) as trespassers.

Para 11: The meaning of the word 'invitee' is given in the Shorter Oxford English Dictionary, III Edition. Volume 1, thus 'One who is invited'.

The meaning of the word 'invitee' is stated thus:

"To ask (a person) graciously, kindly or courteously.

(a) To come to (into etc.) a place or proceeding;

(b) To do something assumed to the agreeable;

(c) to request, (d) to try to attract or induce;

Of a thing: to present inducements to (a person) to do something or proceed to a place or action.

(e) To tend to bring on; to attract physically."

Para 12: The meaning of the word 'invitee' as given in Funk and Wanganall's New Standard Dictionary of the English Language, reads:

"(1) To ask to do some act or go to some place; request the presence or the action of, usually as a favor or courtesy;

(2) to draw by means of temptations or allurements."

Para 13: Stroud's Judicial Dictionary of Words and Phrases, IV Edition, Volume 3, at page 1423, gives, the definition of 'invitee' thus:

"An invitee means a 'person invited to the premises by the owner or occupier for purposes of business or of material interest'."

Para 14: In view of our finding that the taxi driver (P.W.3) entered into the level crossing in spite of the warnings given by the gateman, we hold that the taxi driver does not come under any of the definitions of the word 'invitee' mentioned above.

Para 17: Then we have to examine the duty of the occupier towards a trespasser. The House of Lords in Robert Addie and Sons Vs. Dumbrek, 1929 AC 258 has observed at page 365 thus:

"Towards a trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on the premises at his own risk. An occupier is in such a case liable only where the injury is due to some willful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser."

This principle has been followed in almost all the English cases. In Videan V. British Transport Commission, (19633) 2 QB 650 Lord Denning M.R. has observed:-

"The simple test of foreseeability is sufficient to explain all the reported cases on trespassers, though not all the statements contained in term. All the circumstances must be taken into account to seen whether the consequence is within the risk created by the negligence but that principle applies only where the occupier or a contractor or anyone else conducts activities on land and not where an occupier has done no work on land, for then his liability is as occupier and nothing else."

Lord Atkin in Hillen Andepettingrew V.I.C.I. (Alkali) Ltd. 1935 ALL ER Rep. 555 at p. 558 = (1963 AC 65 at p. 70) observes:

"I know of no duty to a trespasser owed by the occupier other than, when the trespasser is known to the present, to abstain from doing an act which, if done carelessly, must reasonably be contemplated as likely to injure him, and, of course, to abstain from doing acts which are intended to injure him."

In Commissioner for Railways V. Francis Joh Quinlan, 1964 AC 1054=(1964) 1 ALL ER 897 (PC) the respondent's truck which was loaded with building materials and which he was driving over the crossing, was struck by a train and the respondent was injured. The respondent had not obtained the permission to use the crossing. Their Lordships, while holding that he was a trespasser, approved of the rule of the English Common Law stated by Hamilton, L.J. with maximum brevity in Latham v. R. Johnson & Nephew Limited, (1913 - 1 KB 398, 411 = 239 TLR 124 C.A.

"The owner of the property is under a duty not to injure the trespasser willfully; not to do a willful act in towards him; but otherwise a man trespasses at his own risk."

Their Lordships felt that the above words laying down the content and limits of the duty owned by the occupier towards the trespasser did not admit of much qualification or invite the skill of the amplifier. Accordingly, the appellant was held not liable to the respondent in damages. The above principle is well considered in a recent decision of the Privy Council in Southern Portland Cement Limited V. Rodeny John Cooper, (1974) 2 WLR 152. It was held that since the duty of an occupier towards a trespasser was based not on the relationship forced upon him but on considerations of humanity, the occupier's duty only arose if he had knowledge of, or had created, the danger on his land; that no unreasonable burden was to be placed on an occupier and, accordingly, all the disadvantages to himself in taking action for the protection of trespasses and weigh them against the degree of likelihood or trespassers and the degree of hidden or unexpected danger to which trespassers might be exposed. But, since the trespasser in that case was child aged 11 years and since the occupier-appellant knew that children were likely to trespass on the land and of the likelihood of such children coming into contract with the danger on the land (electric cable on the sand-hill), their Lordships had to hold that the occupier was liable. However, the principle laid down in Commissioner for Railways V. Francis John Quinlan 1964 AC 1054 = (1964) 1 ALL ER 897) (PC) has been reiterated."

19. For the same proposition, the learned counsel relied upon the judgment of House of Lords in the case of Robert Addie And Sons (Collieries) Ltd. Vs. Dumbrek reported in 1929 AC 358.

20. At the end, the learned counsel also submitted that the deceased Sh. Rambhaj was only a customer who was permitted to enter the administrative block only and was not allowed to enter the plant area. Further as he was an Engineer, he should have acted wisely by not entering the plant area as he could foresee the danger there. He also submitted that the plaintiffs could claim damages only as per the Section 1A of the Fatal Accident's Act and since the ingredients of that section were not satisfied by the plaintiffs in the instant case, no liability fell on the defendants.

21. On the other hand, learned counsel for the plaintiffs submitted that the deceased Sh. Rambhaj was a regular visitor to the premises of defendant No. 2 and was authorised to go there and take the delivery of gas cylinders. Therefore, he could not be treated as trespasser. It was also submitted that the evidence produced by the plaintiffs, particularly that of the truck driver, who came Along with the deceased Sh. Rambhaj clearly showed that the deceased Sh. Rambhaj was always entering the premises from the back side and into the plant area and was always going inside the plant area to take the delivery of the gas cylinders. It was not his first visit. He had been visiting the premises of defendant No. 2 and the said area routinely and regularly and, therefore it cannot be said that he was a trespasser. His entry into the premises including the plant area was permissive and he was an 'invitee' to this area. It was also submitted that the defendant No. 2 had put up an afterthought plea to the effect that nobody was allowed to enter the plant area or that the deceased Sh. Rambhaj was prevented by the chowkidar not to enter that area. Admittedly, the

chowkidar was not produced by the defendants as a witness and, therefore, the version of the defendant No.2 should not be believed. Therefore, once it is proved that the deceased Sh. Rambhaj had entered the plant area with the express or tacit permission of the defendant No.2, and accident which resulted there from and caused death of Sh. Rambhaj would make the defendant No.2 liable for damages under the tort. The learned counsel also invoked the principle of 'res ispa loquitor' and submitted that the principle of strict liability would be applicable in such a case. In support, he cited the judgment of the Supreme Court in the case of M.C. Mehta and Anr. Vs. Union of India & Ors. and this court in the case of Boiron Vs. Sbl Pvt. Ltd. & Ors. reported in 1999 II AD(Delhi)23.

From the evidence produced on record by both the parties one thing becomes amply clear. it is that cause of accident/explosion is not known. It also cannot be denied that building in question was constructed by the defendant No.2 according to specifications of the Explosives Act. Therefore, all possible precautions as required under law are presumed to have been taken by the defendant No.2. After the incident, the matter was examined by police authorities as well as explosive department of the Government of India. They have not registered any case against the defendant N.2. Thus it could be inferred that the defendant No.2 had not violated any of the provisions of the Explosives Act and further that it had not acted in a manner which could be described as rash and negligent act on the part of the defendant no.2 which could fasten the defendant No.2 with criminal liability. In order to succeed in an action in tort, negligence of the defendant No.2 has to be established. From the evidence led by the plaintiff, the plaintiff has not been able to establish any such negligence. On the other hand, the defendant No.2 has produced the evidence on record to show that it had been taking all precautionary steps which the defendant No.2 is expected to take to avoid any such mishap. Supreme Court judgment in the case of Rajkot Municipal Corporation Vs. Manulben Jayantilal Nakum and Ors. explained in detail the meaning of 'negligence' in the field of tort. In this case, after analysing the plethora of English and Indian case law on this subject, the Supreme Court held that negligence is failure to use such care as a reasonable, prudent and careful person would use, under similar circumstances. It is the doing of some act which a person of ordinary prudence would not have done under similar circumstances of failure to do what a person of ordinary prudence would have done under similar circumstances. Negligence also is an omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing or something which a reasonable and prudent man would not do. Negligence would include both acts and omission involving unreasonable risk of having done harm to another. The breach of duty must cause damage. How much of the damage to be compensated by the defendant should be attributed to his willful conduct and how much to his willful negligence or careless conduct or remissness in performance of duty, are all relevant facts to be considered in a given act or omission in adjudging duty of care. The element of carelessness or the breach of duty and whether that duty is towards the plaintiff or the class of persons to which the plaintiff belongs are important components in tort of negligence. Negligence would, therefore, mean careless conduct in commission or omission of an at, whereby another to whom the plaintiff owed duty of care has suffered damage. The duty of care is crucial in understanding the nature and scope of tort of negligence.

It was also held that negligence connotes inadvertence to the consequences of his conduct which can be a measure of behaviors where one person had been careless in that he did not behave as a prudent man would have done whether by advertence or otherwise. The tort of negligence always requires some form of careless conduct which is usually, although not necessarily, the product of inadvertence. Not every careless conduct which causes damage, however, will give rise to an action in tort. The negligence lies in failure to take such steps as a reasonable, prudent man would have taken in the given circumstances. What constitutes carelessness is the conduct and not the result of inadvertence. Thus negligence in this sense is a ground for liability in tort.

In every case giving rise to tortious liability, tort consists of injury and damage due to negligence. Claim for injury and damage may be founded on breach of contract or tort. The liability in tort may be strict liability, absolute liability or special liability. The degree of liability depends on degree of mental element. The elements of tort of negligence consist in - (a) duty of care; (b) duty owed to the plaintiff; (c) careless breach of such duty. Negligence doe snot entail liability unless the law exacts a duty in the given circumstances to observe care. Duty is an obligation recognised by law to avoid conduct fraught with unreasonable risk of damage to others. The question whether duty exists in a particular situation involves determination of law.

Applying the aforesaid principles t the faces of this case, it cannot be said that the defendant No.2 acted negligently. Whatever duty was cast upon the defendant No.2 under the law was discharged by the defendants.

It may be that while filling the gas cylinders in the hydrogen plant., the employees of the defendant no.2 acted negligently and it resulted in the explosion of the gas cylinders. Such mishap can occur is quite understandable. Presumably for this reason no customer/visitor/outsider is allowed to enter the plant area. the defendant No.2 has produced the evidence explaining that the entire building is constructed and designed in such a way that any mishap of this kind is avoided. There is a separate administrative block for receiving the customer/outsider/visitor and no customer/visitor/outsider is allowed to proceed beyond that. Although it is correct that the defendant No.2 has to produced the chowkidar who allegedly stopped the deceased from entering the plant area, fact remains that as per the general instructions of the defendant no.2, no visitor/customer/outsider was allowed to enter the plant area. Therefore, even if it is presumed that the chowkidar did not specifically stop the deceased from entering the plant area, the deceased entered the prohibited area and that he did so at his own risk. He was not an invitee nor had he any license to enter the plant area. He had come to take the delivery of the gas cylinders from the defendant No.2 as an authorised agent of defendant No.1, and therefore, he had right to enter the premises of the defendant No.2 but this right was restricted to the administrative book only. There was no 'invitation' or 'license' to enter the plant area, and therefore, on the principles contained in the case of V. Krishnapa Naidu (supra) it would clearly be a case of deceased entering the plant area as a trespasser. The plea of the plaintiffs invoking the principles of 're ispa loquitor' cannot be accepted in view of the aforesaid discussion. The judgments cited by the plaintiffs are also not applicable as accident occurred within the plant area which was prohibited area. it is not a case where the dangerous goods escaped or cylinder bursted outside the premises thereby killing an outsider. Therefore, both the issues are decided against the plaintiffs and in favor of the defendants.

Issue No.3: To what damages, if any, are plaintiffs entitled to and from which defendants?

In view of the fact that the Issues 1 and 2 are decided against the plaintiffs, the plaintiffs are not entitled to any damages.

Issues No.4: Whether defendants 1 and 1(a) are necessary and proper parties?

In view of the findings recorded against Issues No.1 to 3, it is not necessary to deal with this issue. However, it may be mentioned that even the learned counsel for the plaintiffs during arguments did not argue that the defendants 1 and 1(a) were liable for any damages and made only defendant No.2 as his target.

Issues No.5: Relief:

The plaintiffs cannot be granted any relief. this suit is accordingly dismissed.

However, there shall be no order as to cost.