Municipal Council of Vizagapatam Vs. Foster - Court Judgment

Seshagiri Ayyar, J.

1. The plaintiff sued tie Municipality of Vizagapatam for compensation for injuries sustained by him owing to the negligent stacking of gravel in a municipal road The Subordinate Judge awarded damages to the extent of about Rs. 3,200 and odd. The amount was increased on appeal by the District Judge.

2. In this second appeal, I shall deal with the various questions involved in the case, in the order in which they were argued by Mr. Sarma.

3. The first contention for the appellant was that Municipalities in India have only delegated powers from the local Governments and that consequently their liability is subject to the same restrictions as that of the Government. This contention was raised with reference to an observation of mine in The Secretary of State v. Cockraft I.L.R. (1816) Mad. 351 where I pointed out that in laying out roads, the Municipal Corporations in America were exercising to some extent sovereign functions. I took care in that judgment to reserve my opinion whether the principle on which American Municipal Corporations are exempted from liability can apply to Indian Municipalities. The various sections to which Mr. Sarma drew our attention point to the conclusion that the Municipal Councils in India are statutory bodies whose powers are very much circumscribed. Section 21 as regards constitution, Sections 113, 114 and 115 as regards limitations in the application of funds and Section 4(b) which relates to the suspension of municipalities show that Indian Councils are not self-governing in the sense that Municipal Corporations in England are. As regards the latter, charters have been conferred upon various towns since the days of Henry VI empowering the inhabitants to govern themselves completely. They have power to make laws, they have jurisdiction to administer justice, and they have got their quarter sessions. In most respects the English Corporations are complete governing bodies. Although I do not wish it to be understood that Municipal Institutions in this country are a department of Government, there can be no doubt that their powers are derived from the Government and are controlled by the provisions of the District Municipalities Act. I may draw attention in this connexion to the Act which created the first municipality in this country. Act X of 1842 which was passed by the President of the Council of India was an enabling Act. The preamble shows that it was intended to enable the inhabitants of any place of public resort or residence under the Presidency of Fort William within the town of Calcutta to make better provision for purposes connected with public health and convenience. This Act was subsequently repealed and Act 26 of 1850 was passed. In this Act also the powers were very much limited. These enactments which have been subsequently repealed and re-enacted in a more comprehensive form show that the powers conferred upon municipalities are of a very restricted character; they therefore do not stand on the same footing as Municipal Corporations in England. To this extent I am in agreement with Mr. Sarma.

4. The further question is whether, in making roads, the Indian Municipalities are exercising sovereign functions. The extract quoted by the learned vakil for the appellant from 28 American Encyclopedia shows that it is only in certain States that the Municipalities in the United States are exempted from liability for injuries caused by the negligence of the Municipal Corporations in maintaining streets. In other States the liability has been enforced--vide page 1340 (19d).

5. The principle of liability in such cases was laid down in Parnaby v. The Lancaster Canal Company (1839) 11 Ad. & 223, In that case it was laid down that a canal company which levied tolls was liable for negligence. Tindal, C.J., said:

We concur with the Court of Queen's Bench in thinking that a duty of this nature is imposed upon the company, and that they are responsible for the breach of it upon a similar principle to that which makes a shopkeeper, who invites the public to his shop, liable for neglect on leaving a trap door open without any protection by which his customers suffer injury.

6. It was contended before us that it is only where a profit is derived by the levying of tolls that the principle enunciated in this case, can be held applicable. I find no justification for this distinction. In most cases where a Corporation is charged with liability for misfeasance in the discharge of its duty it would be almost impossible to prove that the particular department in administering which the misfeasance was committed was giving a surplus income to the Corporation. It is not denied that a road-cess is included in the general taxes levied by the Municipality. The question as to whether that cess resulted in giving an income over expenditure is not the criterion for enforcing liability. The only question is whether the laying of the road, as in The Secretary of State v. Cockraft I.L.R.(1916) Mad. 351, was a purely Governmental function for which no sort of tax is levied upon persons using that road or whether it is a road for using which some sort of consideration is being paid by persons frequenting it. In The Mersey Dock Trustee v. Gibbs (1886) L.R. 93, it was definitely laid down that a corporate body authorized to perform a work and receiving toils in respect of it, though obtaining no profit for itself from such tolls but collecting them for the maintenance of the work and the possible future benefit of the public is responsible for the injuries arising from the improper performance of that work; and that the funds thus obtained must be applied for the discharge of that liability. Lord Cransworth said that.

a body of trustees constituted by statute having the light to levy tolls for their own profit in consideration of making and maintaining a dock or a canal is no doubt under a liability to make good to the person using the deck or canal any damage occasioned by neglect in not keeping the works in proper repair.

7. The other learned Lords agreed with this view. Reference may also be made to Hartley v. Rochdale Corporation (1908) 2 K.B. 594, Geddis v. Proprietors of Bann Reservoir (1878) 3 A.C. 430, The Queen v. Williams (1884) 9 A.C. 418 Sanitary Commissioners of Gibraller v. Orfila (1890) 15 A.C. 400, Foreman v. Mayor of Canierbury (1871) 6 Q.B. 214, Gilbert v. Corporation of Trinity House (1886) 17 Q.B. 795, and to the latest judgment of Lush, J., in Mc'Chelland v. Manchester Corporation (1912) 1 .K.B., 118. The observation in Harris and wife v. Baker (1815) 4 M. & S. 27 that only an indictment lies has no application to this country and I doubt whether it is any longer law in England. In this country the principle of making Corporations liable for neglect of duty has been uniformly enforced. The decision in The Corporation of the Town of Calcutta v. Anderson I.L.R. (1884) Calc. 415 is a strong authority for that proposition; notwithstanding the criticisms of the learned vakil for the appellant that that decision turned on the language of the particular section therein commented on, I feel no doubt that is enunciated a general principle of liability for neglect by Corporation.

8. Rajendralal v. Surat City Municipality I.L.R. (1909) 33 Bom. 393, Dholka Town Municipality v. Patel Desaibhai I.L.R. (1914) 38 Bom.116 and McMerny v. Secretary of State for India I.L.R. (1911) Calc. 796 all point to the same conclusion. I am therefore of opinion that in laying and maintaining a road, municipalities in this country are not exercising purely sovereign functions and that consequently they are liable for misfeasance. In this view the decision in P. and O. Steamship Co. v. The Secretary of State (1861) 5 Bom. H.C.R. 1 which discriminates between the liability of the East India Company for purely sovereign functions and other functions which involve transactions which can be carried on by private individuals is fully satisfied in this case.

9. The next point argued by Mr. Sarma was that as there is no provision for damages in the District Municipalities Act, no claim for damages can lie. I see no force whatsoever in this contention. The Act no doubt directs the application of municipal funds in a particular manner. That is a direction given by the Government to the statutory body. That direction is not binding upon a person against whom a wrong has been committed by the statutory body. If authorities were necessary for this proposition I may refer to the case in Attorney-General v. Lewes Corporation (1911) 2 Ch. 495 where it was held by Swinfen Eady., J., that the fact that the Public Health Act of 1875 provides a statutory remedy by complaint to the Local Government Board in the case of a local authority making default.

10. 'in the maintenance of existing sewers does not preclude a private individual from obtaining damages and an injunction against that local authority in respect of a common law nuisances arising from that default': vide also Khagendra Nath Mitter v. Bhupendra Narain Dutt I.L.R. (1911) Calc. 296.

11. One other minor contention of Mr. Sarma may be disposed of in a few words. He argued that as the plaintiff did not obtain a licence under the Madras Motor Vehicles Act I of 1907, he is not entitled to damages. It would lead to startling results to hold that because a person passes in a vehicle in a public highway without obtaining a licence for that vehicle he can recover no damages for injuries caused to him by the negligence of the municipality. No authorities were quoted for this proposition nor is it possible to find any.

12. The next point on which a great deal of learned argument was addressed to us by Mr. Sarma and by Mr. Narayanamurti related to the question whether the municipality can be held liable, inasmuch as it had given a contract for the making of the road to a contractor. I am in agreement with Mr. Sarma that the contractor to whom the work was entrusted must be taken to be an independent contractor notwithstanding the finding of the learned District Judge that supervision was exercised over his work by municipal subordinates. In Evans v. The Trustees of the Port of Bombay (1871) 8 B.L.R. 265 and Ullman v. The Justices of the Peace for the Town of Calcutta I.L.R. (1887) 11 Bom. 329 it was held that an independent contractor would not be liable for torts. In Steel v. The South Eastern Railway Company (1855) 16 C.B. 550 Crowder, J., with the concurrence of the other Judges, said:

The circumstance of the work being done by Furness under a contract, negatives his being a servant of the Company.

13. The Full Bench laid down that where work is being done for a Railway Company under a contract (parol or otherwise), the company are not responsible for injury resulting to a third person from the negligent manner of doing the work, though they employ their own surveyor to superintend it, and to direct what shall be done. In Peachey v. Rowland (1853) 13 C.B. 1167, it was held that it one employs another to do an act which may be done in a lawful manner, and the latter in doing it unnecessarily commits a public nuisance whereby injury results to a third person, the employer is not responsible. The principle of these decisions is that an employer is entitled to expect of the contractor that he will perform the duty lawfully and without negligence. Therefore, if there has been illegality or neglect on the part of the contractor the employer is not ordinarily liable. Reference may also be made to 28 American Encyclopedia, page 1280. But there is an exception to this rule even in the case of private employers and that is this. That where the employer is aware that the doing of a contract work involved a public danger he ought to see that the contractor so discharges his duty as to avoid such a danger. That was the principle enunciated in The Corporation of the Town of Calcutta v. Anderson I.L.R. (1884) Calc. 445. There is another exception which is even more pertinent to the present case, namely, that in the case of statutory bodies entrusted with the performance of a public duty their liability cannot be shifted to a contractor. This principle is pointedly illustrated by the decision of Lindley, L.J., in Hardaker v. Idle District Council (1896) 1 Q.B. 335. The distinction between the liability of the contractor to the employer and the liability of the employee to the employer in the construction of public works is thus stated by the Lord Justice:

14. This principle lies at the root of the modern decisions on the subject, and the distinction between the two classes is well illustrated by comparing Reedie v. London and North-Western Railway Company (1849) 4 Ex. 244 with Hole v. Sittingbourne and Sheernes Railway Company (1861) 6 H. & S. 488. In the first of these cases the defendants employed contractor to build a bridge. One of his men carelessly let a stone fall on the plaintiff, and the defendants were held not liable. In the second case the defendants' duty was to build a bridge which would open and let vessels pass. They employed a contractor, who built a bridge which would not open. The plaintiff was injured thereby, and the defendants were held liable for the consequences. The principle to which I am referring is further illustrated by Pickard v. Smith (1861) 10 C.B. 470 (the coal-cellar case) and Gray v. Pullen (1864) 5 B. & S. 970, in which the Court of Exchequer Chamber, reversing the judgment of the Court of Queen's Bench, held the employer of a contractor liable for injury caused to the plaintiff by the contractor's failure to make good a payment under which he had constructed a drain.'

15. The learned Lord Justice quotes with approval a passage from Lord Blackburn's judgment in Dalton v. Angus (1881) 6 A.C. 710.

16. 'On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty, and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it.'

17. The present case comes within the principle above enunciated. Story on Agency, Section 454, enunciates the same principle.

18. The next point urged for the appellant was that the stacking of the gravel on the road was not the proximate cause of the injury done to the plaintiff. The finding of the District Judge in paragraph 7 is against this contention. Mr. Sarma referred to the fact that the road was 27 feet in width and that the projection of the stacked gravel only extended to nine feet from the base. Even though there was a large margin for travellers to go through, the liability of the municipality is not lessened by that circumstance. It was pointed out in Queen Empress v. Bolappa I.L.R. (1864) Mad 349 that the passer-by has a right to use the full breadth of the road: see also Wednesbury Corporation v. Lodge Holes Colliery Company (1905) 2 K.B. 823. The finding of the learned District Judge disposes of any contention regarding contributory negligence. It was not disputed that no red lights warning passers-by were fixed upon the gravel stacked in the road. I find no justification for reopening the question that the plaintiff was racing along the road when he sustained injury. I must therefore disallow this contention also.

19. The last point related to the amount of damages. A great deal of argument was addressed to us on this subject. There can be no doubt that for two months after the accident the plaintiff was normally discharging his duties. It seems also clear that be neglected a caution conveyed to him by his medical adviser in using his right hand. It was after two months that he was told that he must get his arm set right by a specialist in England. It is open to doubt whether the necessity for going to England would have risen had the plaintiff been more careful or had he been more prompt in getting his injuries redressed. I am therefore unable to agree with the District Judge that the cost of going to and returning from England should be charged against the Municipality. On the whole, considering the various items of charges, I have come to the conclusion that the plaintiff's damage should be reduced to Rs. 2,500. He will be entitled to cost upon the Rs. 2,500 from the appellant. The appellant will bear his own costs. The decree of the District Judge will be modified to this extent. In other respects the second appeal will be dismissed.

Napier, J.

20. This is an appeal from the decision of the District Judge of Vizagapatam, confirming the decision of the Temporary Subordinate Court of Vizagapatam awarding damages to the plaintiff against the Municipal Council of Vizagapatam, in respect of injuries received by the plaintiff through the faulty condition of the road under the defendant's control. The lower Appellate Court has found that the injuries were caused owing to the plaintiff being thrown from his motor-bicycle in consequence of collision with a heap of gravel projecting 9 feet into the roadway which was left unprotected by a light during the night It has also found that there was no contributory negligence in the plaintiff. The District Judge has awarded him damages to the amount of Rs. 4,180-15-0.

21. To these findings and to this amount of damages several objections have been raised in this Court. The first is, that no suit will lie against a Municipal Council in respect of any such injuries; the second is that even if a suit will lie, the liability is confined to a narrow class of public or private bodies to which the defendant Municipality does not belong; the third is, that the Council are protected by the fact that they employed a competent contractor and that the most that can be charged against them is a non-feasance; and the fourth is, that the greater part of the damages is too remote. The first objection is said to be based on the decision of this Court in The Secretary of State v. Cockraft I.L.R. (1916) Mad. 352, which, it is contended, lays down that the making of roads by Government is an act done in exercise of sovereign powers; and it is sought to apply that doctrine to the present case by the argument that Municipal bodies act only as agents of the State in respect of such matters. In my opinion the decision is not an authority for the broad proposition asserted. That case decided that the provision and maintenance of a military road is a function of Government carried on in exercise of sovereign powers and that accordingly a person who receives injuries owing to the negligence of a servant of Government in stacking gravel on such a road cannot recover in a suit against the Secretary of State. I am not prepared, without further argument, to accept the proposition that the making of all roads and the repairing of all roads by the State is necessarily an act in exercise of sovereign powers. But I reserve my opinion on this subject until the point comes for decision before me. But even if it be so, the proposed extension of the principle to the making and repairing of roads by a statutory body seems to be without foundation.

22. Mr. Sarma in his able argument before us, assumed, I think too lightly, that a statutory body acts as an agent of the State and thus comes within the protection accorded by that decision to the State and its servants. The foundation of this protection is set out in the case under consideration and in the decision in P. and O. Steamship Co. v. The Secretary of State (1861) 5 Bom. H.C.R.1, which was followed. The proposition shortly stated is, that by operation of statutes the same protection is given to the Secretary of State and his servants in respect of torts committed by them in the exercise of the functions of sovereign powers as is granted to the Crown and its servants in respect of all torts, and that a suit will no more lie against the former than a petition of right will lie against the Crown or a suit against its servants. During the course of the argument, I asked for any authority from England that statutory bodies, in whom roads and the right to repair are vested, came under the protection given to the servants of the Crown, and the learned vakil was unable to give me any. I am unable to see how a statutory body can be said to be either the servant or the agent of the Grown unless it is so constituted by the provisions in the Act.

23. It may be that prior to the introduction of legislation in this country, where the East India Company granted a charter to a body to exercise such functions, such body might be an agent or servant of the Company, but bearing in mind the cases in which such bodies holding charters from the Crown have been held responsible in England, I should be slow to accept even this proposition. I would especially refer to the case of the Mayor and Burgesses of Lyme Regis v. Henley (1831) 3 B. & Ad. 77. There the borough of Lyme Regis held by Letters Patent from the King a certain pier on condition among others, that they should repair and maintain it if necessary. The plaintiff's premises having been injured by the sea in consequence of the disrepair of the pier, he brought a suit against the Mayor and Burgesses. It was held that the obligation to repair being one which concerned the public, an indictment would lie in case of non-repair against the Mayor and Burgesses for their general default; and an action on the case for a direct and particular damage sustained in consequence by an individual. Throughout the argument of counsel I can find no trace of this theory of agency, nor is it suggested in the judgment of the Court.

24. With regard to a statutory body it seems to me to be impossible to suggest that they are servants or agents. They are not appointed by Government, but are created by the Legislature. Mr. Sarma argues from the language of the District Municipalities Act that Government has power to suspend. That is undoubtedly so, but that power, like the body itself, is the creation of the statute and must be exercised within the limits imposed. Without such a statutory power the Government could not dissolve or suspend a statutory body and it seems to me beside the question to examine, as the learned vakil has asked us to do, the sections of the Act for the purpose of ascertaining the rights that are vested in Government. I therefore hold that the doctrine pressed on us has no application to this case.

25. The next point is that only a narrow class of public or private bodies can be made liable. This argument is founded on observations in two old cases, Parnaby v. The Lancaster Canal Company (1839) 11 Ad. & Ell 223 and Gibbs v. The Mersey (1866) 11 H.L. 685. In the first case it was held that a common law liability arose in a Canal Company which took tolls for navigation to use reasonable care in making the navigation secure, and in the second case, that a private person or a company having a right to levy tolls in respect of performance of a particular work would be liable in damages for injuries occasioned by performing it improperly. In neither case however is it stated that the absence of profit or tolls would have made a difference in the decision of the case, and even assuming that that view was taken in these earlier cases, and even if that is good law at the present time, it can have no application to public bodies as appears from other decisions by the House of Lords to which I shall now refer. The first is a decision of the Privy Council in the Bathurst Borough v. William Macpherson (1879) 4 H.L. 256. That was a suit arising out of injuries caused to the plaintiff by a non-repair of a drain. Some doubt has been cast on this case in later decisions, but not on the point now under consideration. The next is another decision of the Privy Council in Orfila v. The Sanitary Commissioners of Gibraltar (1890) 15 A.C 400. In this case, the Board repudiated the liability of the commissioners, but in neither case did their Lordships consider the bearing of the question whether these public bodies levied a toll. Later cases are Cowley v. The New Market Local Board (1892) A.C. 315, Municipality of Pictou v. Geldert (1893) A.C. 524, and Burke v. The Sydney Municipal Council (1895) A.C. 433, the last two being decisions of the Privy Council. In none of these was this ground even argued. If therefore this principle has any application in these days, it must be confined to private bodies, such as the Canal Company and the Dock Company.

26. The next point taken was that the Municipality had been at most guilty of a mere nonfeasance for which they are not legally responsible, and that any misfeasance found was that of a contractor for which the Municipality was not responsible. Mr. Sarma argued that the only breach of duty which could be laid in this case was under Section 172 of the District Municipalities Act, which requires that a Municipal Council shall during the repair of any street take proper precaution for guarding against accidents and shall cause every such street during its repair to be sufficiently lighted and guarded during night. He wished us to read that section with Section 173 as applying to the facts of this case. Section 173 provides that no person shall cause any obstruction in any street, without the written permission of the Chairman and that when such permission is granted, such person shall take proper steps to prevent accidents. His argument was that a contractor executing repairs to a road under the orders of the Council was a person to whom Section 173 applied. I am clearly of opinion that this section has no application. It has reference to temporary obstructions to a thoroughfare by the erecting of pandals or arches by a private person, a procedure with which we are familiar. All the sections grouped together under Chapter IV, 'Streets (a)' refer to projections and obstructions created by private persons, and have nothing whatever to do with execution of repairs by employees of the Municipality itself. This argument therefore fails, and in this view I do not think it necessary to discuss at any length the difficult question whether a public body is liable for mere non-feasance. It was undoubtedly so held in a case above referred to, Bathurst Borough v. Macpherson (1879) 4 H.L. 266, where the liability was put on the broad proposition that neglect to repair a drain caused a nuisance in the highway for which the borough was liable, and their Lordships expressly say that there is no principle upon which a distinction in this respect between non-feasance and misfeasance can be supported. There are however later cases, such as the Pictou Municipality case and the Sydney Municipality case above referred to, which directly negative that view, and draw a distinction which the Board in the earlier case said, should not be drawn. The question will require fuller consideration in the light of the latest decisions of the Board when it arises necessarily for decision before this Court. In my opinion the liability of the Council must rest on the admitted fact that a heap of gravel was thrown on to the side of the road and allowed to project 9 feet into the roadway. This is an undoubted misfeasance. The question is, whether the fact that it was done by an independent contractor will protect the defendant. Mr. Sarma relied strongly on Daniel v. The Metropolitan Railway Co. 6 E. & I.A. 45. The injury caused to the plaintiff in that case was due to the fall of an iron girder on a train, which girder was being erected by a contractor. The decision was that the accident was not one which the company was bound to anticipate and against which it was bound to take precautions. Although there are observations in the judgment of the learned Lords about persons over whom the Railway contractors have no control, I have no doubt that the basis of the decision in that case was absence of any negligence, that being at all events the only ground on which Lord Colonsay bases his decision. At all events all the learned Lords agree in holding that there was no misfeasance by the contractor. The true proposition seems to me to be contained in the proposition laid down in Orfila v. The Sanitary Commissioners of Gibraltar (1890) 15 A.C. 400, with the corollary to be found in the language of Lord Blackburn in Dalton v. Angus (1881) 6 A.C. 740. The first case decides that the powers conferred on a body created by statute must be executed with due care. In the absence of contrary intention its duties and liabilities are the same as those imposed by the general law on a private person doing the same thing. And the corollary is as follows: A person causing something to be done, the doing of which casts on him a duty, cannot escape from responsibility attaching on him of seeing that duty performed by delegating that to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed. But he cannot thereby relieve himself from liability to those injured by the failure to perform it. This proposition of law was quoted by Lindley, L.J., in Hardaker v. Idle District Council (1896) 1 Q.B. 335, and treated as an authoritative exposition on the law. In that case the District Council employed a contractor to construct a certain sewer. In consequence of his negligence in carrying out the work a gas main was broken with the result that an explosion took place by which injury was caused to the wife of the plaintiff and to his premises. The Court of Appeal presided over by the eminent Judge mentioned held that the District Council were responsible for the contractor's negligence. Lindley, L.J., in paraphrasing Lord Blackburn's view says, that in Hughes v. Percival (1883) 8 A.C. 446., Lord Blackburn points out that the employer's duty was to see that his contractor did his work properly and adds:

Lord Watson, in the same case, said the same thing.

27. The doctrine was applied in a later case which is on all fours with the present case. That is Penny v. The Wimbledon Urban District Council (1899) 2 Q.B. 72, which is also a decision of the Court of Appeal. There, their Lordships pointed out the limitation to the doctrine which will also be found in Lord Blackburn's judgment. They say that where the act of negligence is a mere casual or collateral act, such as a workman employed on the work negligently leaving a pick-axe or such like on the road, the council would not be responsible for that negligence of the contractor's servant. That is the proposition of law stated in Pickard v. Smith (1861) 10 C.B. 470. But the Court held it had no application to a case where a statutory authority has power to do something to a road which will make it dangerous while it is being done, for then there is a duty cast upon them to take care that the Queen's subjects are not injured by any carelessness in the doing of that which has to be done, whether that action be the action of their own servants or of an independent contractor. This decision and the principles stated in it cover the present case exactly. I am therefore of opinion that the employment of a contractor did not relieve the council of their liability.

28. On the question of remoteness of damage I do not think it necessary to say anything more than that I agree with my learned brother on this point, that the damages should be reduced to the sum of Rs. 2,500. The decree will be in the terms proposed by him.