R.L. Khurana, J.
1. The respondent, hereinafter referred to as the plaintiff, a resident of village Rohla, Pargana Bathri. Tehsil Bhatiyat of District Chamba, on 27-3-1989 while going to her cattle-shed for the purpose of feeding her cows, was attacked by a black bear as a result of which she sustained the following injuries :--
(i) Loss of complete eye sight (left eye);
(ii) Compound fracture of left mandible;
(iii) Fracture of nasal bone;
(iv) Fracture of right frontal bone, frontal sinus, maxillary sinus with very severe facial disfigurement;
(v) Facture both bones left forearm.
2. Consequent upon such Injuries, her permanent disability was assessed at 100% by the medical authorities vide certificate Ex. PW3/A. Under the scheme formulated by the State Government vide notification dated 25-2-1988 (Copy Ex. DB) a relief of Rs. 5,000/- was granted to the plaintiff.
3. The plaintiff on 9-12-1991 filed a suit. as an indigent person, for the recovery of damages of Rs. 1,00,000/- on account of personal injuries sustained by her. It was averred that the Divisional Forest Officer, defendant No. 4, under the scheme for the preservation of wild life, had let loose bears and other protected wild animals in the jungles. Killing of such wild animals is prohibited by the State Government. As a result of attack by the black bear, she suffered grievous injuries and sustained 100% permanent disability. She has spent about Rs. 50,000/- on her medical treatment. Another sum of Rs. 50,000/- would further be required by her for future treatment. In claiming damages, she has averred that she suffered due to the acts of omission and commission of the defendants.
4. The defendants, while resisting the suit admitted that the plaintiff was attacked by a bear and had sustained the injuries. They however, denied their liability for the damages. They also admitted that killing of wild animals is prohibited under Wild Life (Protection) Act, 1972. They denied that the black bear was let loose by them. Various legal objections as to the maintainability of the suit, absence of locus stand! of the plaintiffs, limitation, jurisdiction of the civil Court and mis-joinder of parties were further raised.
5. On the pleadings of the parties, follow-ing issues were framed by the learned trial Court (Sub Judge 1st Class, Dalhousie) :
1. Whether the plaintiff is entitled to recover the suit amount from the defendants? OPP
2. Whether the suit is not maintainable in the present form? OPP
3. Whether the plaintiff has locus standi to institute the suit? OPP
4. Whether the suit is bad for mis-joinder? OPD
5. Whether the suit is within time? OPP
6. Whether this Court has no jurisdiction to try the suit? OPD
7. Relief.
6. Vide judgment and decree dated 29-7-1995, the learned trial Court dismissed the suit. The learned trial Court came to the conclusion that the plaintiff was not entitled to any damages/compensation as she failed to prove that the black bear, which had attacked her. was let loose by the defendants in the jungle.
7. On appeal by the plaintiff, the learned District Judge, Chamba. on 20-8-1997. reversed the findings of the learned trial Court and decreed the suit of the plaintiff for damages to the tune of Rs. 50,000/- with costs. The amount of Rs. 5000/- already received by the plaintiff by way of relief from the State Government was to be adjusted towards the decretal amount.
8. Feeling aggrieved, the defendants are before this Court by way of the present second appeal, which was admitted for hearing on 17-3-1998.
9. At the time of admission of the present appeal, no substantial qucstion(s) of law was formulated. Having heard the learned counsel for the parties, the following two substantial questions of law arise in the present case :
1. Whether the jurisdiction of the Court is barred under Section 60 of the Wild Life (Protection) Act, 1972?
2. Whether the State is liable for damages in the event of a person being killed or injured by a wild animal? Question No. 1.
10. Section 60 of the Wild Life (Protection) Act, 1972, provides :--
'Protection of action taken in good faith.--(1) No suit, prosecution or other legal proceeding shall lie against any officer or other employee of the Central Government or the State Government for anything which is in good faith done or intended to be done under (his Act.
(2) No suit or other legal proceeding shall lie against the Central Government or the State Government or any of its officers or other employee for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.
(3) No suit or other legal proceeding shall lie against the Authority referred to in Chapter IV-A and its chairperson, members, member-secretary, officers and other employees for anything which is in good faith done or intended to be done under this Act.
11. According to the learned Deputy Advocate General, the present suit is hit by Sub-section (2) of Section 60.
12. Section 60, as quoted above. Is not applicable to the present case. Under subsection (2) what is barred is a suit against the Central Government or the State Government or any of its officers/employees for any damage-Caused or likely to be caused by anything which is in good faith done or intended to be done under the Act.
13. Claiming damages for the injuries sustained as a result of attack by a wild animal would not be an action for damages caused by an act which has been done in good faith by the State or its officers/employees under the Act. Therefore, the jurisdiction of the Civil Court is not barred. The question is as such answered in the negative. Question No. 2
14. Damages, under the law, represent the pecuniary recompense recoverable by process of law, by a person who sustained an injury through the wrongful act or omission of another. 'Damage' may be defined as the disadvantage which is suffered by a person as a result of the act or default of another. 'Injuria' is damage which gives rise to a legal right to recompense. If the law given no remedy, there is DAMNUM ABSQUE INJURIA, that is, damage without the right to recompense. In considering the legal import of the term 'damage', it is necessary to bear in mind that the injury, for which pecuniary compensation is awarded in an action in law, may have been caused by the defendant or by anyone for whose acts or omissions the law holds the defendant re-sponsible and that the injury complained of may be the result of a breach of contract or tort.
15. In the present case, the plaintiff is claiming damages under tort. It is not a case of breach of any contract. The plaintiff, while claiming damages, has averred in paragraph 3 of her plaint as under :--
'That the D.F.O. Wildlife who has under the scheme to preserve wild life, has let loose bears and other protected wild animals in the jungle and the killing of these animals is prohibited by Government of H.P.'
16. In paragraph 8 of the plaint, it has been averred :--
'That the defendant paid a sum of Rs. 5000/- only as compensation under the orders of Government of H.P. but has refused to pay the actual loss suffered by the plaintiff for the acts of omission and commission of the defendants in letting loose ferocious animal of the nature of black bear.'
17. A combined reading of the pleadings as contained in the above cited two para-graphs, shows that the acts of omission and commission attributed to the defendants is 'letting loose of the ferocious animals of the nature of black bear.
18. No evidence is forthcoming on behalf of the plaintiff that ferocious animals like black bears were let loose in the jungle by the defendants. The plaintiff herself as PW 1 is silent on this aspect. She has rather gone to state that the bear which attacked her did not belong to the state.
19. Relying upon the provision contained in Section 39 read with Section 2(36) of the Wild Life (Protection) Act, 1972. it has been contended by the learned counsel for the plaintiff that all wild animals arc the property of the State Government and any damage caused by wild animals would be the liability of the State.
20. Section 39 insofar as it is material for the present case, reads :--
'(1) Every--
(a) wild animal, other than vermin, which is hunted under Section 11 or Sub-section (1) of Section 29 or Sub-section (6) of Section 35 or kept or bred in captivity or hunted in contravention of an provision of this Act or any rule or order made thereunder or found dead, or killed by mistake; and
(b) to (d) ......
shall be property of the State Government, and, where such animal is hunted in a sanctuary on National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such animal or any vehicle, vessel, weapon, trap or tool used in such hunting shall be the property of the Central Government.'
21. A bare reading of the above provision shows that the same would not apply to the wild animals roaming in the jungle. The more fact that killing such wild animals is prohibited under the law and protection is provided to them would not mean that the state is the owner of such wild animals so as to make it liable for the damage caused by such wild animals.
22. There is yet another aspect of the case. Section 2(36) of the Wild Life (Protection) Act, 1972, defines 'wild animal' as meaning any animal found wild in nature and includes any animal specified in Sched-ule-I to Schedule-V of the Act wherever found.
23. Only two species of bears have been specified in the Schedules, namely. Sloth bear (Melursus Ursmus) at item No. 31-B, Part-I of Schedule-I and 'Himalayan Black Bear (Selenarctos Thibetanus)' at item No. 3-B, Part-I of Schedule-II.
24. Assuming that the State is liable for the damage caused due to wild animals as defined under Section 2(36) of the Act, there is nothing on the record to show that the black bear which attacked the plaintiff and caused injuries to her was of the species specified in the Schedules to the Act. Therefore, in the absence of such evidence, the defendants cannot be held liable.
25. A contention was further raised on behalf of the plaintiff that by framing the scheme Ex. DB for providing of compensation for the death or injuries caused by a wild animal, the State has in fact admitted its liability. Such liability cannot be limited and restricted to the extent of the amounts specified therein. The liability would extend to the extent of damage actually sustained,
26. There is no force in the contention of the learned counsel for the plaintiff. There is no provision under the Wild Life (Protection) Act, 1972, for providing of reliefs to a victim of wild animal. Under the scheme Ex. DB, the State Government decided to grant gratuitous relief to the persons sustaining injuries or to the dependants of the person killed by the wild animals as defined under Wild Life (Protection) Act, 1972. Providing of such reliefs would not tantamount to admission of liability.
27. In order to succeed in claiming damages under the tortious liability of the defendants, the onus was heavily on the plaintiff to show that damage, was sustained by her due to some act of omission or commission of the defendants. The plaintiff has miserably failed to discharge such onus. Therefore, the defendants cannot be held liable. The question is answered in the negative.
Final order.
28. As a result of the discussion, thepresent appeal succeeds and decree dated29-8-1987 of the learned District Judge,Chamba, are set aside, while the judgmentand decree dated 29-7-1995 of the trialCourt dismissing the suit of the plaintiff arerestored. Parties are left to bear their owncosts.