Delhi High Court
Fatima & Ors vs National Zoological Park & Ors on 13 July, 2016
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 25.05.2016
% Judgment Pronounced on: 13.07.2016
+ W.P.(C) 7223/2014
FATIMA & ORS ..... Petitioners
Through Mohd.Faisal, Advocate
Versus
NATIONAL ZOOLOGICAL PARK & ORS ..... Respondents
Through Mr.Jasmeet Singh, CGSC for UOI.
Mr.Gautam Narayan, ASC with
Mr.R.A.Iyer, Advocate for the
GNCTD.
SI Ashok Kumar, PS- Hazarat
Nijamuddin.
Dr.Saif Mahmood, Mr.Sumant De &
Mr.Vivek Agarwal, Advocates for
R-6.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. The present writ petition is filed by the petitioners, the legal
representatives of the deceased Maqsood who died in an unfortunate
incident on 23.09.2014 in the National Zoological Park, Mathura Road, New
Delhi. Petitioner No.1 is the wife of the deceased, petitioner No.2 is the
mother and petitioner No.3 is the younger brother aged 18 years of the
deceased.
2. On 23.09.2014, deceased Maqsood visited the Zoo. At around 1.00
PM, he suddenly fell into the dry moat, i.e. the white tiger‟s enclosure. It is
stated that on account of the fall, his leg got fractured and he was unable to
move. On seeing the white tiger which was roaming nearby, Maqsood called
for help. The tiger sniffed him and kept sniffing him for about 15 minutes.
Thereafter, it attacked Maqsood and dragged him away to the other end of
the enclosure and mauled him to death. His lifeless body was dragged
around for some time. FIR No. 543/14 of the said incident was registered
under Section 304A of IPC against un-named persons. It is the contention of
the petitioners that the Zoo Authorities committed gross negligence and did
not follow the guidelines, rules and norms under the Wild Life (Protection)
Act, 1972. It is urged that for 15 minutes Maqsood was alive in the cage of
the tiger yet the Zoo Authorities failed to rescue him. Timely intervention
could have saved his life.
3. The following submissions are made to support the contention about
the negligence on the part of the Zoo Authorities:
(a) Only one untrained guard was on duty for controlling the large
crowd of daily visitors for such a large area like the white tiger‟s
enclosure. Considering the number of visitors, more guards were
required to control the crowd.
(b) The moat which acts as a barrier had not been filled with water.
Had there been water, it would have prevented the tiger to come close
to the deceased.
(c) The guard on duty must have been trained to use tranquilizer
guns but there was no arrangement for immediate use of the
tranquilizer gun.
(d) For an emergency situation, ladders, water supply, tranquilizer
guns, alarms, etc. should have been kept handy. Had there been a
collapsible ladder near the spot, the guard could have saved
Maqsood‟s life by pulling him out of the enclosure.
(e) The tiger‟s enclosure is guarded by a three-tier fencing
comprising a 2.5 feet high metal fence, a shrub area and finally a
cemented wall. The fencing is hardly 2.5 feet high. Even a child can
cross such barricading. It is urged that anybody could fall into the
enclosure, if he looks down and loses his balance. The Zoo authorities
were obliged to take better precautions to avert such a happening.
(f) As per the guidelines of the Central Zoo Authority for keeping
an effective watch on the animals and visitors, at least one watch
tower of 5 meter height has to be provided. There was none.
(g) The Zoo Authorities had no emergency plan and the only
option, they had when Maqsood fell in the moat was to try to call the
animal back inside his cage by making noises.
4. Hence, based on the above it is urged that the life of Maqsood was
lost because the Zoo Authorities who had the responsibility to protect and
take care of the visitors to the Zoo had failed to discharge their duties.
5. Based on the above allegations, the petitioners have prayed for
suitable compensation and damages with special costs and penalties to the
petitioners i.e. estimated at Rs.50 lacs for the negligent acts of respondents
No.1 to 4.
6. Delhi Police have filed their counter affidavit. They have not
mentioned the exact cause of the incident in the counter affidavit. It is
however stated that as per the post-mortem report, the cause of the death
was neurogenic shock consequent to multiple injuries over the neck leading
to crushing and severance of cervical spine and cord. It is further stated that
as per the post-mortem report, no fracture in the leg of the deceased was
found. It is stated that no eye witness has come forward to join in
investigation of the case.
7. Delhi Zoo which is under the control of respondent No.3 has also
filed their counter affidavit. It is their contention that the deceased was
suffering from schizophrenia and undergoing treatment in the hospital. It is
stated that the deceased climbed and crossed the fencing and climbed on the
wall of the moat on his own and slipped. He hence fell 25 feet deep into the
moat. Therefore, it is stated that the Delhi Zoo cannot be blamed for the
incident. It is further stated that the attack by the tiger took place within four
minutes and 27 seconds of the deceased slipping into the cage. The period of
15 minutes mentioned by the petitioners has been denied. It is further stated
that the animal keeper who was on duty on seeing Maqsood, tried to call the
animal to close the tiger into a cell. However, some of the visitors reacted
and started pelting the animal with stones. A big stone hit the tiger on the
neck because of which the animal got irritated and attacked Maqsood. It is
urged that the answering respondent has put lot of sign boards containing
warnings. The victim was not in a good mental state and was getting
treatment from hospital. The victim was said to be crazy about tigers and
often used to question his family about a tiger incident that occurred in
Kolkata Zoo. The security staff warned Maqsood twice when he tried to
cross the barricade and climb the wall. When the security staff was engaged
with other visitors, Maqsood jumped in the cage. Hence, it is urged that the
unfortunate incident took place due to the own acts of negligence of the
deceased and the respondents cannot be held liable for any amount. The
allegations being made about negligence of the zoo authorities have been
denied claiming that all adequate precautions have been taken by the Zoo.
As a goodwill gesture, it is stated, a payment of Rs.1 lac has been made to
the victim‟s family i.e. petitioners.
8. In the rejoinder, the petitioners have denied that the deceased was
suffering from any poor mental condition or schizophrenia. The allegations,
it is stated, are false and highly defamatory.
9. We have heard the learned counsel for the parties and gone through
the records. The petitioners have also filed written submissions relying upon
various judgments.
10. The issue which first seeks answer from this court is as to whether in
these facts this court could grant compensation to the petitioners in the
present writ petition. The legal position in this regard may be looked at. The
Supreme Court in the case of Nilabati Behera Alias Lalita Behera vs. State
of Orissa & Ors., 1993 (2) SCC 746/(MANU/SC/0307/1993) was dealing
with the issue of award of compensation in proceedings under Article
32/226 of the Constitution. The court noted that the remedy is available in
public law based on strict liability for contravention of fundamental rights.
The court further held that this right is distinct from and in addition to the
remedy in private law for damages for the tort resulting from contravention
of the fundamental rights. The court also held that the Supreme Court and
the High Courts have wide powers under Article 32 and Article 226
respectively to forge new tools that may be necessary for doing complete
justice and enforcing the fundamental rights guaranteed in the Constitution.
The relevant portion of the judgment reads as follows:-
"22. We respectfully concur with the view that the court is not
helpless and the wide powers given to this Court by Article 32,
which itself is a fundamental right, imposes a constitutional
obligation on this Court to forge such new tools, which may be
necessary for doing complete justice and enforcing the
fundamental rights guaranteed in the Constitution, which
enable the award of monetary compensation in appropriate
cases, where that is the only mode of redress available. The
power available to this Court under Article 142 is also an
enabling provision in this behalf. The contrary view would not
merely render the court powerless and the constitutional
guarantee a mirage, but may, in certain situations, be an
incentive to extinguish life, if for the extreme contravention the
court is powerless to grant any relief against the State, except
by punishment of the wrongdoer for the resulting offence, and
recovery of damages under private law, by the ordinary
process. It the guarantee that deprivation of life and personal
liberty cannot be made except in accordance with law, is to be
real, the enforcement of the right in case of every
contravention must also be possible in the constitutional
scheme, the mode of redress being that which is appropriate in
the facts of each case. This remedy in public law has to be
more readily available when invoked by the have nots, who are
not possessed of the wherewithal for enforcement of their
rights in private law, even though its exercise is to be tempered
by judicial restraint to avoid circumvention of private law
remedies, where more appropriate.
xxx
24. The above discussion indicates the principles on which the
Court's power under Articles 32 and 226 of the Constitution is
exercised to award monetary compensation for contravention
of a fundamental right............"
11. In Air India Statutory Corporation & Ors. vs. United Labour Union
& Ors., (1997) 9 SCC 377 the Supreme Court held that there is no limitation
or fetters on the powers of the High Court under Article 226 of the
Constitution except self-imposed limitations. The Supreme Court held as
follows:-
"59. The founding fathers placed no limitation or fetters on the
power of the High Court under Article 226 of the Constitution
except self-imposed limitations. The arm of the Court is long
enough to reach injustice wherever it is found. The Court as
sentinel in the qui vive is to mete out justice in given facts. On
finding that either the workmen were engaged in violation of
the provisions of the Act or were continued as contract labour,
despite prohibition of the contract labour under Section 10(1),
the High Court has, by judicial review as the basic structure,
constitutional duty to enforce the law by appropriate directions.
The right to judicial review is now a basic structure of the
Constitution by catena of decisions of this Court starting from
Indira Gandhi v. Raj Narayan to Bommai's case. It would,
therefore, be necessary that instead of leaving the workmen in
the lurch, the Court would properly mould the relief and grant
the same in accordance with law."
12. The judgment of the Supreme Court in the case of Municipal
Corporation of Delhi, Delhi v. Association of Victims of Uphaar Tragedy
& Ors, (2011) 14 SCC 481/(MANU/SC/1255/2011), dealt with a case
relating to a fire tragedy at Uphaar Cinema Theatre. 59 patrons died while
the movie was on due to a fire in the transformer installed by Delhi Vidyut
Board (DVB). The Supreme Court noted that damages can be awarded for
direct negligence on the part of a statutory authority in cases involving
doctrine of strict liability. In the case of DVB, it was held that direct
negligence was established as a proximate cause for the injuries to and death
of victims. Hence, all the victims were entitled to damages under public law
liability. Further the court held that compensation under public law remedy
need not only be a nominal amount but something more. It can be by way of
making monetary amounts for the wrong done or by way of exemplary
damages, exclusive of any amount recoverable in a civil action based on
tortuous liability.
13. We may now have a look at the position of visitors to the zoo i.e. in
case any visitor suffers an injury or dies due to acts connected with a visit to
the zoo. The rule of strict liability was propounded by English Law as laid
down in the noted case of Rylands vs. Fletcher, (1868) LR 3 HL 330. That
English case was a case in which „B‟ a mill owner employed contractors to
construct a reservoir on his land to provide water for his mill. In the course
of the work, the contractor of the mill owner found some old shafts and
pathways while digging the reservoir. The shafts appeared to be filled with
earth and were not blocked. They were connected to the mines of the
neighbor. When the reservoir was filled with water it passed through the old
shafts and flooded the mines of the neighbors. It was found that „B‟ was not
negligent. The mine owners sued the mill owner B and B was held liable.
The judgment is the classical exposition of doctrine of absolute liability,
namely, that the person who for his own purposes brings on his lands and
collects there, anything likely to do mischief if it escapes, must keep it in at
his peril, and if he does not do so, is prima facie answerable for all the
damages. However, the rule provided some exceptions, i.e. he could escape
liability if he showed that the escape was due to the plaintiff‟s default or as a
consequence of vis major or the act of God etc.
14. In M.C. Mehta & Anr. vs. Union of India & Ors., (1987) 1 SCC
395/(MANU/SC/0092/1986), the Supreme Court commenting on the rule of
Rylands v. Fletcher held that the rule was evolved in the 19th century when
development of science and technology had not taken place. There was no
need to feel inhibited by this rule which was evolved in a totally different
kind of economy. The said rule would not be applicable with the stated
exceptions. The Supreme Court held as follows:
"31. We must also deal with one other question which was
seriously debated before us and that question is as to what is the
measure of liability of an enterprise which is engaged in an
hazardous or inherently dangerous industry, if by reason of an
accident occurring in such industry, persons die or are injured.
Does the rule in Rylands v. Fletcher apply or is there any other
principle on which the liability can be determined? .....We
would therefore hold that where an enterprise is engaged in a
hazardous or inherently dangerous activity and harm results to
anyone on account of an accident in the operation of such
hazardous or inherently dangerous activity resulting, for
example, in escape of toxic gas the enterprise is strictly and
absolutely liable to compensate all those who are affected by
the accident and such liability is not subject to any of the
exceptions which operate vis-a-vis the tortious principle of
strict liability under the rule in Rylands v. Fletcher (supra).
32. We would also like to point out that the measure of
compensation in the kind of cases referred to in the preceding
paragraph must be co-related to the magnitude and capacity of
the enterprise because such compensation must have a deterrent
effect. The larger and more prosperous the enterprise, the
greater must be the amount of compensation payable by it for
the harm caused on account of an accident in the carrying on of
the hazardous or inherently dangerous activity by the enterprise.
"
15. The above legal position was reiterated by the Supreme Court in the
case of Indian Council for Enviro-Legal Action, etc. vs. Union of India &
Ors., AIR 1996 SC 1446/(MANU/SC/1112/1996) wherein para 65 the
Supreme Court held as follows:-
"65. On a consideration of the two lines of thought [one
adopted by the English Courts and the other by the Australian
High Court], we are of the opinion that any principle evolved in
this behalf should be simple, practical and suited to the
conditions obtaining in this country. We are convinced that the
law stated by this Court in Oleum Gas Leak Case [M.C.Mehta
v. UOI (supra)] is by far the more appropriate one - apart from
the fact that it is binding upon us. [We have disagreed with the
view that the law stated in the said decision is obiter.]
According to this rule, once the activity carried on is hazardous
or inherently dangerous, the person carrying on such activity is
liable to make good the loss caused to any other person by his
activity irrespective of the fact whether he took reasonable care
while carrying on his activity. The rule is premised upon the
very nature of the activity carried on. In the words of the
Constitution Bench, such an activity "can be tolerated only on
the condition that the enterprise engaged in such hazardous or
inherently dangerous activity indemnifies all those who suffer
on account of the carrying on of such hazardous or inherently
dangerous activity regardless of whether it is carried on
carefully or not." The Constitution Bench has also assigned the
reason for stating the law in the said terms. It is that the
enterprise [carrying on the hazardous or inherently dangerous
activity] alone has the resource to discover and guard against
hazards or dangers - and not the person affected and the
practical difficulty [on the part of the affected person] in
establishing the absence of reasonable care or that the damage
to him was foreseeable by the enterprise."
16. Reference may also be had to the judgment of the Division Bench of
this court in the case of Nitin Walia Minor vs. Union of India and Ors.,
AIR 2001 Delhi 140/(MANU/DE/1257/2000). That was a case where a
young child of three years visited the Delhi Zoo. When he reached the
enclosure of the white tigress, the boy was exhilarated. He 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. By the time the
child could be rescued, irreversible harm and damage had been done and the
tigress had bitten the right arm of the appellant. The petitioner was rendered
permanently disabled to the extent to 100%. In those facts a suit was filed.
In appeal, this court held that the liability of the respondent could be the
basis of an action in torts which can be compartmentalized under three
different heads, i.e. i) duty to take care and negligence on the part of the
respondent; ii) liability as keeper of dangerous animals; and iii) liability as
occupier of the premises. The court noted that the concept of legal duty was
enlarged by means of case law in certain circumstances by the doctrine of
"strict liability". The court noted as follows:-
"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
have treated the white tigress as a toy to play with, fell prey to
the horrific incident.
xxx
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 Judgment
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
reasonably 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."
An SLP was filed against the above judgment being SLP(Civil)
No.4161/2001 which was dismissed on 10.08.2001.
17. The legal position that follows is that doctrine of strict liability would
apply in the case of an injury or death of a visitor to the zoo due to acts of a
wild or dangerous animal in the zoo. As dangerous animals are kept in the
zoo, it would be the absolute responsibility of the zoo to ensure that the
dangerous and ferocious animals do not cause damage or injury to any
visitors. It is the responsibility of the zoo and its staff to ensure and upkeep
the place in a manner that no untoward incident takes place and all necessary
precautions and steps have to be taken to ensure that the visitors remain safe.
The zoo cannot escape responsibility on the plea that the visitor did not
adhere to relevant safety precautions, which he was obliged to or would
have normally followed.
18. Regarding the responsibility of the Zoo, we may also look at some of
the statutory regulations. In exercise of powers under Section 63(1)(f) and
(g) of the Wild Life (Protection) Act, 1972, the Central Govt. has framed the
Recognition of Zoo Rules 2009. Rule 4 (3) and Rule 4 (9) of the Rules read
as follows:-
"4. Animal housing, display of animals and animal
enclosures.-
...
(3) The zoo shall ensure that the enclosure is safe and secure for
the animals, animal keepers and the visitors and has requisite
space for free movement, exercise and expression of natural
behavior by the animals.
...
(9) Every zoo shall provide appropriately designed and
effective standoff barriers at every animal display enclosure to
regulate the movement of visitors in the zoo in a manner that
facilitates the visitors in getting unobstructed view of wild
animals, without reaching in the vicinity or proximity of the
animals and getting the opportunity to physically touch or
provoke the animals and shall also display adequate sign boards
so as to give warning to the visitors to keep a safe distance from
the animals."
19. The above rules recognize that the Zoo has to ensure that the
enclosures of animals are safe for the visitors and that the stand off barriers
are constructed in a manner that the viewers are unable to reach in the
vicinity or the proximity of the animals.
20. Similarly, respondent No.2 has for the purpose of providing technical
guidance and procedural details issued "Guidelines of the Central Zoo
Authority for Facilitating Effective and Scientific Management of zoos in
India". One of the guideline stipulates that a master plan for the Zoo has to
be prepared which would be a comprehensive document giving a detailed
road map for 20 years with a provision for review every 10 years regarding
development, improvement and upgradation of the facilities. Annexure-I to
the Guidelines provides the format on the basis of which the comprehensive
master plan map may be prepared. Clause 5 Chapter II of the Format
provides for the following contingency plan:
"5. Contingency plan
(1) ...
(2) ...
(3) ...
(4) ...
(5) ...
(6) Visitors getting injured/visitors falling inside enclosure."
21. There can be no doubt that the statutory provisions/rules provide that
the respondent Zoo was obliged to ensure safety of visitors who would be
visiting the Zoo.
22. We may now see whether the facts as stated by the parties on record
would show in any manner a breach of the obligations by the Zoo
authorities. No conclusion can possibly be drawn from the pleadings. The
only facts that clearly emerge from the pleadings are that the deceased had
fallen into the moat of the tiger after having possibly climbed the standoff
barrier which has on the visitors side a height of only 2.5 feet or so. The
deceased fell into the moat which was from the top of the barrier has a depth
of approximately 25 feet below. Thereafter no rescue could be organized by
the Zoo till the point when the tiger mauled and killed the deceased.
23. The Central Zoo authority, Ministry of Environment, Forests and
Climate Change, Government of India respondent No.2 appointed an
Enquiry Committee to investigate the incident. The Committee comprised
of Sh.S.C.Sharma, retired Additional Director General (Forest), Ministry of
Environment and Forest, Former Member Secretary Central Zoo Authority
and Dr. Himanshu Malhotra, Member, Committee on Zoo Design. The said
Committee gave its enquiry report about the death of the visitor in the white
tiger enclosure on 23.09.2014. The report was filed in W.P.(C) 6677/2014
which was heard with this petition and disposed off on 25.05.2016. The
conclusions of the Committee are revealing and read as follows:-
"The zoo staff did their best in the given circumstances. They
were seriously handicapped in the absence of clear and self-
contained and self-explanatory protocol on dealing with the
situation and availability of equipment. They did their best in
the prevailing circumstances and cannot be faulted for not being
able to save the life of Late Shri Maqsood. However, once such
an accident has taken place, concrete plans to prevent any such
happening have to be prepared and implemented. In preparing
these plans, help of experts on such matters i.e. Delhi Fire
Service and National Disaster Management Authority be taken.
In the interim period, zoo should establish:
a) A command line to handle such situations so that people
can approach the right person in shortest possible time.
b) Mock drills to reach the emergency site in shortest
possible time and handling the situation, should be conducted
periodically.
c) Providing the zoo hospital a dedicated vehicle for dealing
with contingencies both regarding to the animal escape and
human safety. There should be an earmarked room for the
rescue team where all material and equipment for rescue
operation is available under the charge of the head of the rescue
team, who should be a veterinarian. One such rescue centre is
doing very nice work at Sasan, Gir Forests, Gujarat. Arignar
Anna Zoological Park, Vandalur also has a similar arrangement
in place.
d) Alarm system from every enclosure and from the gate to
the emergency room created for the purpose.
xxx
Point (d) Preparedness on contingency/emergency and
action thereof.
The preparedness of zoo for handling
contingencies/emergencies. As already stated, in para 2, lot of
effort is needed to bring the preparedness of the staff up to
desired level.
Services of Firefighting wing of Delhi Government or
National Disaster Management Authority should be availed and
a mechanism for regular communication and up-gradation
needs to be in place.
Available equipment also needs to be upgraded.
Installation of public address system and emergency siren
should be done on priority basis.
Post of Joint Director and Veterinary Assistant to be
filled on priority basis.
Security staff strength need to be augmented. One mobile
patrolling party should always be on round.
Conclusion
The Zoo is yet not in a stage of preparedness to deal with such
emergencies in a professional manner. Lots of technical
expertise and implementation of well-developed plans are
required to reach the desired level of preparedness. However,
zoo authorities cannot be blamed for this as the process of
evolving such strategies has started only recently."
(emphasis provided)
24. It is also noteworthy that subsequent to the incident, the respondents
themselves have taken a policy decision to carry out changes and
improvements to respond to such situations. These changes and steps were
listed by respondent No.1 in an affidavit dated 1.12.2015 and have been
noted by this court in a public interest litigation being W.P.(C) 6677/2014
titled as „Avadh Kaushik. vs. National Zoological Park' which was heard
alongwith this petition. This court in that public interest litigation (W.P.(C)
6677/2016) passed the following order on 25.05.2016:-
"1. The issues relating to ensuring safety and security for the
people who visit the National Zoological Park, Delhi is sought
to be espoused in this petition filed by way of public interest
litigation following the unfortunate incident happened on
23.09.2014 resulting in the death of a visitor inside the
enclosure of a white tiger.
2. It is brought to our notice that during the pendency of this
writ petition a Quick Response Team (QRT) has been
constituted by the National Zoological Park, Delhi vide order
dated 09.09.2015 to deal with any emergency situation in the
Zoo and an emergency protocol has been developed, apart from
providing in-house training to staff at the National Institute of
Disaster Management. The said order shows that in case of any
emergency the QRT will rush to the spot and deal with the
emergency situation in accordance with the emergency
protocol. 16 number of emergency situations have also been
identified and listed therein. In the affidavit dated 01.12.2015
filed on behalf of the National Zoological Park, it has further
been explained as under:-
"3. .... It is further submitted that the QRT is
always battle ready and all the equipments are in
best working conditions. In addition, constituting
the Quick Response Team and developing an
emergency protocol the following steps have also
been taken to enhance the security of the visitors in
the National Zoological Park:
i. All the exhibits housing Tigers, Lions,
Bears, Hyena and other animals with deep moats
are provided with a folded rope ladder for
emergency use. At each point, a private security
guard has been posted during visiting hours of the
zoo.
ii. At the entry gate for the visitors who are
visiting the National Zoological Park
announcement are being done more frequently for
`dos and don‟ts` though it exists before the
incident.
iii. Number of warning signages is increased
and installed in front of all dangerous animal
enclosures alongwith dos and don‟ts in the zoo.
iv. On 19.12.2014 all the zoo staff attended a
one day workshop on National Disaster
Management Plan at National Institute of Disaster
Management, New Delhi. In this workshop the zoo
staff got valuable information about the safety of
visitors, staff and zoo animals.
v. A mock drill was conducted on 11.11.2014.
During this an escaped Jaguar male got captured
quickly by the QRT.
vi. A centralised Hooter System installed at
range office (approximately central part of the zoo)
for any emergency use.
vii. Number of security guards increased during
visiting hours of the zoo.
viii. First Aid facility enhanced and provided at
two more places in the zoo, earlier it was at three
places.
ix. One tranquilization equipment kept in ready
in Veterinary Hospital with zoo ambulance for use
for tranquilization of animal on urgent necessity.
x. To increase awareness among zoo visitors
more zoo volunteers got deployed in front of
animal enclosures particularly during weekends
when the number of visitors is more. Through
these volunteers mass awareness programme is
being conducted alongwith an animal keeper as a
keeper‟s talk.
xi. Dos and don‟ts got printed on the back of
the zoo entry ticket and these tickets got started
from 01.04.2015.
xii. To enhance the functioning of QRT the team
got reorganized on 09.09.2015."
3. Having regard to the above-mentioned steps taken by the
respondents, the petitioner- Sh.Avadh Kaushik appearing in
person states that the matter needs no further adjudication.
4. The writ petition is accordingly disposed of."
25. The above inquiry report of the committee appointed by respondent
No.2 and the affidavit dated 01.12.2015 of respondent No.1 filed in W.P.(C)
6677/2014 titled as „Avadh Kaushik. vs. National Zoological Park' clearly
show serious gaps/lack of precautions on the part of respondent No.1 to
ensure full protection of the visitors visiting the zoo especially in relation to
the enclosure of dangerous animals like tigers, lions, bears etc. Adequate
precautions were not taken to prevent a visitor falling in the moat. More
guards needed to be deployed near such an enclosure to avert any untoward
incident. It is also clear that there was no procedure in place to handle any
emergent situation. No protocol was in place to ensure quick response to an
emergent situation like a Quick Response Team trained to act and rescue.
Necessary rescue equipment in the form of collapsible ladders/rope ladders,
emergency siren/centralized hooter system were not in place.
26. In our opinion, there were inadequate precautions taken by respondent
No.1 to guard against any visitor climbing the stand off barrier which is not
very high. Further, there was enough time, which as per the zoo authority
was five minutes during which the zoo authority could have reacted to
rescue and to save the life of Maqsood after he fell in the moat. In fact when
Maqsood fell the only option available with the zoo authorities was for the
keeper of the animal to try to entice the animal to go back to his cage so that
rescue could be planned. This was not possible on account of the commotion
created by other visitors who reacted and started pelting the tiger with
stones. The animal got irritated and attacked Maqsood. A collapsible rope
ladder could have been dropped to help Maqsood climb up the moat wall.
There was none available. A trained rescue if available could have taken
other steps to rescue the victim.
27. There is a clear breach of the statutory duties by respondent No.1 as
provided by the Wild Life (Protection) Act, 1972 and other regulations
enacted thereunder as stated above.
28. It is also a fit case to hold respondent No.1 liable under the principles
of "Absolute liability". The zoo was aware that a tiger is a dangerous animal
capable of causing injuries or death to a visitor. The zoo would be liable for
any injury or death caused to a visitor by the tiger under the principles of
Strict Liability. Respondent No.1 is, in these facts, liable to compensate the
petitioner for the unfortunate death of Maqsood and the monetary loss as a
consequence thereof.
29. Unfortunately, for the purpose of computing compensation the facts
placed on record by the petitioners are very sketchy. As per the petition, the
deceased was 22 years old. Petitioner No.1 his wife was 19 years old and
who at that stage was 7 months pregnant. She has subsequently given birth
to a baby girl on 11.01.2015. Petitioner No.2, the mother of the deceased is
said to be a 43 year old lady. Petitioner No.3 is said to be an 18 year old
younger brother of the deceased. It was averred that all the three petitioners
were residing together and were dependent on the deceased Maqsood. Father
of the deceased had been separated from his mother for the last 15 years and
was not living with the family. Other than this, there is no other information
provided about the manner in which the Maqsood was earning his livelihood
or the income that he was earning. No details are given of his educational
qualification or any special skills that he may have acquired to enable him to
earn.
30. Respondent No.1 the zoo would not normally be a profitable
organization, being an institution to spread awareness and education about
the wild animals. In the light of the facts placed on record by the petitioner
and the stated facts, we award a sum of Rs. 6 lacs to the petitioners against
respondent Nos.1 and 3. Respondent Nos.1 and 3 would be entitled to
deduct a sum of Rs.1 lac already paid to the petitioners from the awarded
sum. The balance amount will be deposited in court with the Registrar
General. He will release the funds as stated herein. A sum of Rs.2 lacs
would be paid to petitioner No.1 while a sum of Rs.1 lac would be paid to
petitioner No.2. A balance sum of Rs. 2 lacs would be kept in a fixed deposit
in a nationalized bank in the name of the newly born daughter of the
deceased. The money should be kept in a fixed deposit of a Nationalized
bank till the daughter attains the age of 18 years. However, petitioner No.1
shall be entitled to receive interest on the said fixed deposit periodically. The
necessary payment shall be deposited by respondent No.1 within a period
six weeks from today. In case of delay in depositing the payment, the
petitioners shall be entitled to interest @ 10% per annum from the date of
default till deposit of payment. The petition is disposed of.
(JAYANT NATH)
JUDGE
CHIEF JUSTICE
July 13, 2016
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