Arun Mishra, J.
1. The appellant being aggrieved by dismissal of the suit filed for claiming compensation of Rs. 5,00,500/- on account of loss of left eye due to the injuries sustained while watching a drama when one of the artists threw a glass of brass, that hit the left eye causing bleeding injury. District Court, Bhopal has dismissed the suit as per judgment and decree dated 20th December, 1999 passed in Civil Suit No. 25-B/99.
2. The plaintiff Saroj Basotia along with others went to watch drama 'Skandgupt' of 7.00 p.m. show at Bharat Bhawan. While she was watching the drama one of the actors threw a glass of brass rashly and negligently, that hit the eye of the plaintiff causing bleeding injury. Immediately the information was given to Javed Jaidi, Manager of Bharat Bhawan, who was present at that time. The plaintiff was initially treated by Dr. P.S. Bindra. She was referred for further treatment to Dr. Raizada. Dr. Raizada examined her eye at 9:30 a.m. and came to the conclusion that the plaintiff had lost the total vision of left eye. She has suffered physical pain and mental suffering. Report was lodged at P.S. Taliya by the plaintiffs husband on 27-4-1991. She obtained further treatment at Sewa Sadan Eye Hospital, Bairagarh, Eye Hospital, New Sindhi Colony, Berasiya road. Ultimately she was referred to Shankar Netralaya, Madras. She went on 14-6-91 and remained admitted till 19-6-1991. Dr. L. Gopal opined that the plaintiff was going to lose the total vision. Plaintiff has spent a lot of money. The defendants failed to make security measures necessary for organizing such a drama. She has lost the opportunity of obtaining, employment. She ultimately served a notice for claiming compensation of Rs. 5,00,000/-. In spite of that compensation was not paid by the defendants. Hence, the suit was filed.
3. In the written statement filed by defendant No. 3 the averments made in the plaint were denied. Arrangement was made for sitting of the audience at 30 feet distance, consequently it was not possible for the glass of brass to rebound and hit the eye. 'Skandgupt' was organized by Bharat Bhawan 25 times prior to it, however, no damage was caused to anybody. Plaintiff did not lodge any complaint when injury was caused while she was watching the drama. Other facts were also denied. Thus, the liability to pay the compensation was repudiated.
4. On behalf of plaintiff Smt. Saroj Basotia (P.W. 1), B.C. Basotia (P.W. 2), S.K. Ganguli (P.W. 3), P.S. Bindra (P.W. 4) have been examined whereas on behalf of defendants Javed Jaidi (D.W. 1) was examined.
5. Trial Court has found that while the plaintiff was watching the drama one of the actors threw a glass of brass, that hit the left eye resulting into grievous hurt. She lost the vision of left eye, however, as the arrangement was made for sitting of the audience at 30 feet distance, it was not a case of rash and negligent act on the part of the defendants. There was no possibility of glass rebounding and hitting any person in the audience, apart from that main tort-feasor, the actor was not impleaded as defendant, it was necessary to implead the actor who threw the glass. The suit was not maintainable without his impleadment. Thus, for want of the proof of rash and negligent act and non-joinder of the main tort-feasor the suit has been dismissed. Consequently this appeal has been preferred.
6. It was submitted by Shri R.K. Sanghi, learned Counsel for the appellant, that it was not necessary to implead the joint tort feasor, the actor who threw the glass of brass. The play was organized by Bharat Bhawan and Bharat Bhawan being master paid the amount to the actor for performing the play. Bharat Bhawan has been established by State of M.P. Master was vicariously liable for the negligence attributable to the actor. Test of foreseeability has not been applied. It was a case of rash and negligent act due to that the eye was hit by the glass of brass. The defendants ought to know the consequences of throwing away of the glass in the play performed and ought to have foreseen the risk, thus, ought to have maintained safe distance between the audience and the place from where the glass used to be thrown, while organizing a play involving throwing away of the object it was necessary to the defendants to take all the precautions necessary to ensure that no damage was caused to any person in the audience, thus, the defendants have failed to act with due precaution and glass of brass was thrown with so much force, that was act of sheer negligence, hence, the compensation ought to have been paid for loss of total vision of left eye.
7. It was submitted by Shri Sudesh Verma, learned Govt. Advocate appearing on behalf of respondents, that it was not a case of negligence. It was not possible to foresee that glass of brass would hit any person of the audience, thus, it was not a case of rash and negligent act on the part of actor who performed in the play. It was necessary to implead him as party to the suit, due to the non-joinder suit was not maintainable.
7-A. First we consider question as to the degree of care which was necessary while organizing/performing such a play involving throwing of glass of brass and whether test of foreseeability applies and whether it was possible to prevent such an accident by the exercise of ordinary care, caution and skill.
8. In Rylands v. Fletcher (1868) LR 3 HL 3 30, one of the important examples of strict liability was considered laying down that the occupier of land who brings and keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent its escape and is liable for the direct consequences of its escape even if he has not been guilty of any negligence. In M.C. Mehta v. Union of India : [1987]1SCR819 , the Apex Court laid down that an enterprise engaged in a hazardous or inherently dangerous activity is strictly and absolutely liable for the harm resulting from the operation of such activity. Another example of liability without fault is the liability of a master for the tort committed by his servants in the course of employment. There has to be seen the facts of each case what are duties and liabilities. In Davis v. Radcliffe (1990) 2 All. ER 536, the Privy Council inter alia laid down that it is considered preferable that the law should develop categories of negligence incrementally and by analogy with decided categories. It is also settled that defendant can excuse himself by showing that the escape was owing to the plaintiffs default; or perhaps that the escape was the consequence of vis major, or the act of God, a person is not liable if the damage is owing to vis majors, wrongful act of a third party, plaintiff's own default. In Williams v. Clough (1838) 3 H and N 258, a master ordered a servant to take a bag of corn up a ladder which the master knew, and the servant did not know, to be unsafe, the ladder broke, and the servant was injured, the master was held liable. In Davies v. England (1864) 33 LJ QB 321, where the defendants, well knowing that certain carcasses were diseased and infectious, employed the plaintiff, who was ignorant of that fact, to cut them up whereby the plaintiff was infected by the disease and suffered injury therefrom, it was held that the defendants were liable. In Paris v. Stepney Borough Council (1951) AC 367, a workman employed as a garage hand had, to the knowledge of his employers, only one good eye. While working on the back axle of a vehicle to remove a U-bolt which had rusted in, he struck it with a hammer and a metal chip flew off seriously injuring his good eye. He was not wearing goggles. He claimed damages against his employers in respect of that injury on the ground that they were negligent in failing to provide and require the use of goggles as part of the system of work. It was held that the employers were negligent in failing to provide the workman with protective goggles for work of this description, and that he was entitled to damages.
In a case where for want of safety appliances, the plaintiff, a window cleaner, was employed by the defendants, a firm of contractors, to clean the windows of a club, in General Cleaning Contractors v. Christmas (1952) 2 All. ER 1110, it was held that the defendants were under an obligation to ensure that the system that was adopted was as reasonably safe as it could be made and that their employees were instructed as to the steps to be taken to avoid accidents; the defendants had not discharged their duty in this respect towards the plaintiff; and, therefore, they were liable to him in respect of his injury.
In the case of dangerous employee causing injury to the plaintiff, in a claim by the plaintiff against the defendants for damages on the ground that they had failed to maintain such discipline among their employees as would protect him from dangerous horse play, in Hudson v. Ridge . (1957) 2 QB 348, it was held that as this potentially dangerous misbehaviour had been known to the employers for a long time, and as they had failed to prevent it or remove the source of it, they were liable to the plaintiff for failing to take proper care of his safety.
9. The basis of the rule of foreseeability of the intervening act seems to be that if such act was foreseeable, it does not of itself eclipse the wrong of the defendant who should have, but did not provide against it. Wherever any intervening factor was itself foreseen or reasonably foreseeable by the actor, the person responsible for the act which initiated the chain of causes leading to the final result, that intervening cause is not itself, in the legal sense, a novus actus interveniens breaking the chain of causation and isolating the initial act from the final result. The test of foreseeability was applied in Knightly v. Johns (1982) WLR 349, the foreseeability is a test, not the test. Thus, in the first place, the intervening act may have been foreseeable, but it could still be a novus actus if sufficiently unreasonable. The negligence of a child was considered in the case of Staley v. Suffolk Country Council and Dean Mason (unreported), in November 26, 1985 at the Norwich High Court referred to in Law of Torts, by Clerk 16th Edition, at Page 491. The midday break in a school was supervised by 'dinner ladies', one of whom was injured by a tennis ball hurled inside a classroom by a boy aged between 12 and 13, who had intended to hit another boy. Both the Country Council and the boy were held liable. With regard to the latter, the test adopted by the Judge was the standard of care to be expected of a boy of that age, and on the evidence he was held liable. In the case of physical damage as long as there is foreseeability of some damage to the plaintiff of the kind of which he complaints, no matter how less it may, there need not be any foreseeability to the extent of the damage which he sustains, defendant is liable for the full extent of it, it is not necessary that extent or precise manner of incidents was foreseeable, in case there is initial negligence, how much damage has been caused, it not the test which is required to be foreseen.
In the case of inadvertent (simple) negligence, the actor is not aware of the unreasonable risk that he or she is creating, but should have foreseen and avoided it, that is also called inadvertent and simple negligence as defined in Black's Law Dictionary. Negligence has been considered in M.S. Grewal and Anr. v. Deep Chand Sood and Ors. : AIR2001SC3660 . The Apex Court has laid down thus:
'14. Negligence in common parlance means and implies 'failure to exercise due care, expected of a reasonable prudent person'. It is a breach of duty and negligence in law ranging from advertence to shameful disregard of the safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do {vide Black's Law Dictionary). Though sometimes the word 'inadvertence' stands and is used as a synonym to negligence, but in effect negligence represents a state of the mind which, however, is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions-- whereas inadvertence is a milder form of negligence, 'negligence' by itself means and implies a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow. Clerk and Lindsell on Torts (18th Edn.) sets out four several requirements of the tort of negligence and the same read as below:
(1) The existence in law of a duty of care situation, Le., one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable.
(2) Breach of the duty of care by the defendant, Le., that it failed to measure up to the standard set by law.
(3) A causal connection between the defendant's careless conduct and the damage.
(4) That the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.
The Apex Court inter alia has laid down that it has to be considered that inadvertence is a milder form of negligence and that the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.
10. Considering the facts of the instant case, staging of a play involving throwing a glass of brass, a metal object, it could not be said to be 'too remote', a possibility that an object thrown would not hit the person in the audience, thus, it was incumbent upon to take reasonable care and caution so as to prevent happening of such an incident. It is apparent that glass of brass thrown hit the eye of plaintiff causing serious injury to the left eye. Plaintiff has stated that glass of brass thrown hit the eye directly, resulting into serious injury and loss of total vision of her left eye. The plaintiff was sitting in the first row. She has denied the suggestion that injury was not caused by the glass of brass. B.C. Basotia (P.W. 2), husband of plaintiff, has stated that during the play actor was supposed to drink alcohol and thereafter to throw the glass in which he consumed the liquor as per the sequence, thus, it was incumbent upon the actor to ensure that metal object thrown by him fell in the nearby area. S.K. Ganguli (P.W. 3) has stated that after the glass was thrown, it initially fell down on the stage, thereafter was rebounded and hit the eye of plaintiff. It is apparent that due to rash and negligent act actor had thrown glass of brass with such a force resulting into serious injury to the person sitting in the audience, thus, it was an act of sheer negligence on the part of the actor. He threw away the glass recklessly, when such play was organized where in drunken condition an object was to be thrown, it was to be done sensibly and safely, not actually like a person who was really intoxicated having no control over the senses, it was incumbent upon the organizer to ensure that if an object was thrown, the audience was kept at the safe distance so as to oust the possibility of causing injury to any of the person. The safe distance was not maintained, possibility of such an incident ought to have been foreseen by the respondents. When an object had to be thrown, it could have hit any person sitting on the front row, thus, it is apparent that safe distance was also not maintained which was necessary as per the sequence in the case. Merely by the fact that on earlier occasions no such incident happened, as per test of foreseeability the negligence on the part of the defendants is not ousted. It was foreseeable that there was possibility that glass of brass thrown, may hit any person in the audience directly or after rebounding, thus, when such an object was necessary to be thrown, it was incumbent upon the respondents to assess the possibility of incident resulting from it. Whether damage was lesser or more, it was not the requirement of foreseeability. When damage was suffered, it was necessary to the defendants to pay the entire damage.
11. The illustration given by the Trial Court referred in Law of Torts, Ratanlal and Dhirajlal, Chapter II, Page 25 that if stone was thrown on a tree, it rebounds and causes injuries to someone else, the defendant was not liable to pay the compensation to the plaintiff. In that case, it could not have been foreseen, however, in the instant case, we find that when such a play was organized involving throwing of metal glass etc. with audience nearby, it was necessary to observe due precautions to oust such a possibility and to act with circumspection to prevent such an accident in which the defendants have failed.
12. Coming to the question of non-joinder of actor, we find on record the statement of Javed Jaidi (D.W. 1) examined on behalf of the defendants, that defendant Karant was Director of 'Skandgupt' play. Every actor used to be paid to participate in the play by Bharat Bhawan, thus, there was master and servant relationship between Bharat Bhawan, an establishment of State of M.P. with the actor as actor used to be paid for participation. In Savita Garg (Smt.) v. Director National Heart Institute : AIR2004SC5088 , the Apex Court has laid down that when hospital was impleaded as party, treating Surgeon or the nursing staff were not impleaded, the original petition could not have been dismissed, hospital was held responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. In Umrao Lal v. Ganesh 1971 MPLJ SN 117, it was held that any of the joint tort-feasors can be sued for the damage for the wrongful action. The Apex Court in MS. Grewal and Anr. v. Deep Chand Sood and Ors. (supra), has observed that tendency has been towards more liberal precaution of the third party and so in establishing a particular 'course of employment' the Court should not dissect the employee's basic task into component parts but should ask in a general sense; what was the job at which he was engaged for this employer? The Apex Court has laid down thus:
18. Be it noted that the doctrine of 'vicarious liability' has had a fair amount of judicial attention in the English Courts. By the end of the 18th Century, the idea began to grow that some special importance ought to be attached to the relationship of master and servant and in 1849 it was officially held that existence of that relationship was essential. Thereafter, though primary liability on the part of anyone could be established on proof of direct participation in the tort, such direct participation was not even theoretically required to make a master liable for his servant's torts. The liability is derived from the relationship and is truly vicarious. At the same time, the phrase 'implied authority' which had been the cornerstone of the master's primary liability gives way gradually to the modern 'course of employment' (vide Winfield and Jolowicz on Tort, 15 th Edn.).
19. In recent years, the tendency has been however, towards more liberal protection of the third party and so in establishing a particular 'course of employment' the Court should not dissect the employee's basic task into component parts but should ask in a general sense; what was the job at which he was engaged for his employer? And it is on this perspective Lord Wilberforce in Koorangang Investments Pty. Ltd. v. Richardson and Wrench Ltd. 1982 AC 462 : (1981) 3 All ER 65 (PC) stated : All ER p. 69 a-e.
Negligence is a method of performing an act: instead of it being done carefully, it is done negligently. So liability for negligent acts in the course of employment is clear. Cases of fraud present at first sight more difficulty, for if fraudulent acts are not directly forbidden, most relationships would carry an implied prohibition against them. If committed for the benefit of the employer and while doing his business, principle and logic demand that the employer should be held liable, and for some time the law rested at this point. The classic judgment of Willes, J. Barwick v. English Joint Stock Bank (1867) LR 2 Exch. 259 : 36 LJ Ex 147 : 16 LT 461, Exch. at p. 266 stated the principle thus:
In all these cases it may be said...that the master has not authorized the act. It is true, he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in.
That was a case where the wrong was committed for the master's (viz. the bank's) benefit, and Willes, J. stated this as an ingredient of liability (Exch at p. 265):.the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved.
13. In the instant case, Bharat Bhawan has been established by the State of M.P. to organize the cultural events, thus, when the actors used to be paid by it, it was vicariously liable, thus, non-impleadment of the actor who threw the object was not fatal to the case considering the vicarious liability of the defendants organizing such event. Consequently we set aside the finding of the Trial Court in this regard also.
14. Coming to the question of quantum of compensation, it is apparent from the statement of Dr. P.S. Bindra (P.W. 4) that ratina was found to be detached and the plaintiff was able to see the light of the torch only, that is referred as Exh. P-34. There was no possibility of improvement in the vision. The plaintiff obtained the treatment not only at Bhopal but at Shankar Netralaya, Madras as apparent from Identity Card (Exhs. P-3 and P-4) of Shankar Netralaya and prescriptions (Exhs. P-5 and P-6) of the clinic at Madras. It is apparent from Exh. P-34 that there was permanent loss of vision of left eye. Age of the plaintiff was about 39 years as disclosed in the plaint. In the treatment she must have spent at least a sum of Rs. 5,000/-. There are vouchers on record (Exhs. P-12 to P-23) evincing the expenditure of the amount in purchase of medicines, beside that she must have paid the fee to the treating Physician. Treatment was obtained at Bhopal and Madras. We award a sum of Rs. 7,500/- towards conveyance charges. For physical pain and mental suffering we award a sum of Rs. 5,000/-. For loss of one eye as provided in Workmen's Compensation Act, permanent disability prescribed is 40%. We do not find the statement of plaintiff reliable that she would have obtained employment considering her age to be 39 years at the time of accident, however, as she has lost vision of the left eye, she is entitled to be suitably compensated, with the aforesaid disability she has to live with remaining part of life, we assess the loss considering the age and also the fact that plaintiff was married, as incident is pretty old, we assume her contribution to the house hold affairs at Rs. 15,000/- per annum loss comes to Rs. 6,000/- per annum, taking a clue from Motor Vehicles Act, multiplier of 15 is applicable at the aforesaid age thus, we assess the compensation (6,000 x 15) of Rs. 90,000/-. Thus, total compensation comes (5000 + 7500 + 5000 + 90000) to Rs. 1,07,500/- (Rupees One lac seven thousand five hundred only). The compensation is ordered to carry interest at the rate of 6% per annum from the date of filing of suit till realization.
15. Resultantly, appeal is allowed to the aforesaid extent. No order as to costs.