AVADH BEHARI ROHATGI ( 1 ) ON 18/08/1964between 5 and 6 in the evening two brothers Suresh Chander (the deceased) and Ramesh Chander were going on a scooterfrom their office to their residence. They passed through Alipurroad beyond Kashmere Gate. The deceased was driving thescooter and Ramesh was a pillien passenger. When they reached20, Alipur Road, known as Sant Permanand Blind Relief Mission Building, opposite Rai Sahib Bhola Ram Petrol Pump, abranch of the neem tree standing there fell on the deceased. Hishead was crushed. He was rushed to Irwin Hospital where hedied the following morning at about 11 a. m. inspite of a surgical operation. A piece of wood was found in his brain. ( 2 ) THE deceased left behind a widow, three minor sonsand a minor daughter besides his mother. All six of them broughta suit for damages claiming Rs. 3,00,000 from the defendants,namely, (1) Municipal. Corporation of Delhi, (2) Union ofindia, and (3) Delhi Administration. The suit was partially decreed by a learned judge of this court on the original side. Adecree of Rs. 90,000 was passed in favour of the widow andthe children against Municipal Corporation (the Corporation ). Against defendants 2 and 3 the suit was dismissed. From theorder dated 29/05/1970 two appeals have been brought. In RFA (OS) 23 of 1970 the Corporation claims that the suitbe dismissed. In RFA (OS) 28 of 1970 the plaintiffs claim thatthe decree for Rs. 3,00,000 be passed in place of Rs. 90,000. This judgment will govern them both. ( 3 ) THE defendants contested the plaintiffs suit on a varietyof grounds. A large number of issues were raised. But threemain questions arise in ths suit. First whether the suit is barred by reasons of section 478 of the Delhi Municipal Corporation Act, 1957 (the Act ). Second the question of fault andliability. Whether the defendent Corporation is liable in negligence. Third the amount of damages io oe awarded to theplaintiffs. We will take these three questions separately. The First Question ( 4 ) ON the first question it is convenient to set out section478 of the Act at this stage:"notice to be given of suits. Second the question of fault andliability. Whether the defendent Corporation is liable in negligence. Third the amount of damages io oe awarded to theplaintiffs. We will take these three questions separately. The First Question ( 4 ) ON the first question it is convenient to set out section478 of the Act at this stage:"notice to be given of suits. (1) No suit shall be instituted against the Corporationor against any municipal authority or against anymunicipal officer or other municipal employee oragainst any person acting under the order or direction of any municipal authority or any municipalofficer or other municipal employee, in respect ofany act done, or purporting to have been done, inpursuance of this Act or any rule, regulation or byelaw made thereunder, until the expiration of twomonths after notice in writing has been left at themunicipal office and, in the case of such officer, employee or person, unless notice in writing has alsobeen delivered to him or left at Ins office, orplace of residence, and unless such notice statesexplicitly the cause of action, the nature of therelief sought, the amount of compensation claimed,and the name and place of residence of the intendingplaintiff, and unless the plaint contains a statementthat such notice has been so left or delivered. (2) No suit, such as is described in sub-section (1) shall. unless it is a suit for the recovery of immovableproperty or for a declaration of title thereto, beinstituted after the expiry of six months from thedate on which the cause of action arises. (3) Nothing in sub-section (1) shall be deemed to applyto a suit in which the only relief claimed is aninjunction of which the object would be defeatedby the giving of the notice or the postponementof the institution of the suit. " ( 5 ) COUNSEL for the Corporation says that the accident lookplace on 18-8-1964 and the original suit was filed on 13-7-1966. According to him the suit ought to have been filed under see. 478 (2) within six months from the date on which the cause ofaction arose i. e. on 19-8-64 when the victim of the fatal accident died. Now the critical words of section 478 (!) are that"in respect of any act done or purporting to have been done. According to him the suit ought to have been filed under see. 478 (2) within six months from the date on which the cause ofaction arose i. e. on 19-8-64 when the victim of the fatal accident died. Now the critical words of section 478 (!) are that"in respect of any act done or purporting to have been done. in pursuance of this Act or any rule, regulation, or bye-lawmade thereunder", no suit against the Corporation shall be instituted after the expiry of six months from the date on whichthe cause of action arises, unless it is a suit for recovery ofimmovable property or for a declaration of title thereto. Counsel referred us to the decision of one of us (Avadh Behari, J.)in G. C. Sharma v. Municipal Corporation of Delhi. ILR (1979)II Delhi 771 (1) and the decision of the Judicial Committee incommissioners for the Port of Calcutta v. Corporation of Calcutta, AIR 193" PC 306 (2) and Prasaddas Sen v. Bonnerji, AIR1931 Cal. 61 (3 ). ( 6 ) HARDY, J. who tried this question as a preliminary issueopined that as the plaintiffs do not complain of any act, oromission, on the part of the Corporation in pursuance of theact and base themselves on common law duty of care:, thebar of section 478 (2) was not attracted. He held that Art. 82of the Limitation Act, 1963 applied and the suit was withintime. ( 7 ) WE think the learned judge was right. If any act donein pursuance of the Act or the rules is the subject matter ofthe suit the bar of limitation enacted in sub-section (2) willoperate. It must be referrable to the specific provisions of theact. The word act will include illegal omission by virtue ofthe General Clauses Act. So the sub-section will read thus: forany act done or omitted to be done or purported to be doneor omitted to be done in pursuance of the Act the suit must befiled within six months of the cause of action. ( 8 ) THE plaintiffs action was founded in tort. They allegedthat the tree of which the overhanging branch fell on the deceased causing the fatal accident was a dead tree and thus apotential danger to the passers-by. The road vests in the Corporation and is maintainable at the public expense. The tree,being in astate of decay, was likely to cause danger to the roadusers. They allegedthat the tree of which the overhanging branch fell on the deceased causing the fatal accident was a dead tree and thus apotential danger to the passers-by. The road vests in the Corporation and is maintainable at the public expense. The tree,being in astate of decay, was likely to cause danger to the roadusers. The suit was brought against the Corporation as a highway authority for damages resulting from its failure to maintain the highway in a reasonably safe conditions for traffic. Inother words, the gist of the action is that the Corporation hadnot taken such care as in all the circumstances was reasonablyrequired to secure that the road was not dangerous for traffic. ( 9 ) THE Act does not codify the law relating to highways,as has been done in England recently by the Highways Act,1980. The history of this tree is that it was in existence in 1950or even earlier. At that time there was a local authority calledthe Notified Area Committee Civil Station which had jurisdiction over the area in question and was governed by the Punjabmunicipal Act of 1911, as extended to Delhi, By section 56 (g)read with section 3 (30) all public streets and trees standingover them vested in the Notified Area Committee. On thepassing of the Delhi Municipal Corporation Act, 1957, thenotified Area Committee was transferred to the Corporationby virtue of section 516 (2) (d) of the Act. Hence the Corporation is the owner of the tree. That is what vesting means. Andthis is what the judge found. ( 10 ) COUNSEL for Corporation contends that the tree vestedonly for management. Suppose it is so. The public body mustmanage it in accordance with the principles of good estatemanagement so that the property may not be in a conditionlikely to cause damage to persons lawfully using the publicroads. And, if good estate management involves inspection andtrimning of trees from time to time, there is a duty on thecorporation to carry out those) operations. ( 11 ) SECTION 43 defines the discretionary functions of thecorporation. Clause (d) says: the Corporation may in its discretion provide either wholly or in part for all or any of the followingmatters, namely : (d) the planting and care of trees on roadsides andelsewhere. "this provision speaks of the future. Not of the past. ( 11 ) SECTION 43 defines the discretionary functions of thecorporation. Clause (d) says: the Corporation may in its discretion provide either wholly or in part for all or any of the followingmatters, namely : (d) the planting and care of trees on roadsides andelsewhere. "this provision speaks of the future. Not of the past. Thetree in question was an old tree which the Corporation inherted from the Notified Area Committee because it was in existence before the passing of the Act. Admittedly the Corporation has not provided by means of bye-laws or regulations anything about taking care of trees. No specific duty of care isthus enjoined by the Act. So there is no codified negligence or statutory negligence of which the plaintiffs could complain. Highway authorities are under astatutory duty to maintainthehighway in England. But not so in India. The plaintiffs donot plead the specific breach of any provision of the Act. Theirclaim is founded on the general law of negligence. To such acase sec. 478 has no application. ( 12 ) SEC. 43 (d) says that the Corporation may provide forplanting and care of trees. Until regulations or bye-laws areframed there is no statutory duty of care. On framing theregulation the common law duty of care will be transformedinto a statutory duty. If reasonable care is not then taken thecorporation will be guilty of statutory negligeence. Sec. 478 (2)will then be applicable. Till then the common law will supplythe omission of the statutory regulations. ( 13 ) THERE can be an act done in pursuance of the Act. But it is difficult to see how there can be an omission in pursuanceof the Act. What the legislature means is that if there is anact done by the Corporation or its officials in the exercise orpurported exercise of a statutory power they will have the protection of the Act, namely, they cannot be sued after six months. Non-performance of a statutory duty is also on the same footing. Positive acts and neglect of duty are thus placed on thesame footing provided they are in respect of statutoryprovisions. If it is an act of commission or an act of omission,and is traceable or referable to the statute, the bar of section478 (2) shall apply. Of positive acts the source must be statute. The Parliament must have conferred statutory powers to dothe act. Similarly for faults of omission. If it is an act of commission or an act of omission,and is traceable or referable to the statute, the bar of section478 (2) shall apply. Of positive acts the source must be statute. The Parliament must have conferred statutory powers to dothe act. Similarly for faults of omission. If appeal has to be madeto the statute the bar will apply. ( 14 ) THE decision in G. C. Sharma (supra) is an excellent illustration of a case where a person acting under statutory powersmay erroneously exceed the powers given by the statute andyet he is acting or purporting to act in pursuance of the sta-tute. The act must have been done under colour of a statutoryduty. (Secy. of State v. Lodna Colliery Co. Ltd. , AIR 1936 Pat. 513 (4) per Courtney Terrel CJ ). The difficulty is to draw aline between the class of cases that are within and those thatare without the statute. But a court of construction must remember that sub-section (2) of section 478 is a restriction ofordinary rights and therefore we cannot read anything morein the words used than what they express or of necessity imply. (Bradford Corp. v. Myers (1916) AC 242 (5), 251 per Viscounthaldane ). In Selmes v. Judge 1871 LR 6 QB 724 (6), 727blackburn J. speaking of a similar provision said" "it has long been decided that such a provision asthat contained in this section is intended to protect persons from the consequences of committingillegal acts, which are intended to be done underthe authority of the Act of Parliament, but which,by some mistake, are not justified by its terms,and cannot be defended by its provisions. " ( 15 ) SECTION 478 is enacted fur the benefit of the localauthority. By the limitation which it imposes it prevents belated and in many cases unfounded actions. The critical expression in see. 478 (1) is "in pursuance of". "pursuant to" isdefined by theOxford Dictionary to mean, inter alia, in accordance with , consequent and conformable to . An act maybe said to be done in pursuance of the Act if the statute authorises that specific act. If the act complained of is within theterms of the statute, no protection is needed for the plaintiffhas suffered no legal wrong. ( 16 ) CAN we link up the reason for what is done with theact ? This is the test. If the act complained of is within theterms of the statute, no protection is needed for the plaintiffhas suffered no legal wrong. ( 16 ) CAN we link up the reason for what is done with theact ? This is the test. The nature and the character of theact must have a statutory colour. It is the satute which givesshelter. See whether the act is enactment by the enactment. Ifso, go inside the act and see whether its execution is inconformity with the statute. Even if the doer lias acted inexcess of his statutory power he can take shelter behind thestatute. When, for instance, a constable in the bona fide beliefthat an offence has been committed take-? into custody without warrant any disorderly person in pursuance of the powergiven to him by an Act of the legislature, he does so in purported pursuance of the Act, even though he may be mistakenas to his powers and the arrest may be a wrongful arrest. He will be entitled to the protection which the Act gives him. The constable through a bona fide mistake was acting colourofficii. ( 17 ) WHAT is done may bs done deliberately and in good faith and in the genuine belief that it is Justified by the statute. The same reasoning applies to an act omitted to be done inpursuance of the Act. If an act is done in disregard of the provisions of the statute or in breach of its provisions or in. amanner not authorised by the Act, to such an omission the protection of immunity from suit after six months will be available. ( 18 ) THE Privy Council decision in Calcutta Port Commissioners and the Calcutta ruling in Prasaddas Sen (supra), onwhich counsel for the Corporation relics, were considered bythe Lahore Full Bench in Mohd. Sadat Ali Khan v. Administrator Corporation of City of Lahore. AIR 1945 Lah. 324 (7)and distinguished. The Lahore Full Bench with respect, wefollow here. It is, therefore, unnecessary to say anything moreon the aforesaid two rulings. ( 19 ) THIS cae is different from G. C. Sharma (supra ). Theplaintiffs do not rest their case on any statutory duty. Nor onany act or neglect having reference to the statute. Nor onsomething founded on the Corporation s statutory powers orduties. It is, therefore, unnecessary to say anything moreon the aforesaid two rulings. ( 19 ) THIS cae is different from G. C. Sharma (supra ). Theplaintiffs do not rest their case on any statutory duty. Nor onany act or neglect having reference to the statute. Nor onsomething founded on the Corporation s statutory powers orduties. The Corporation is not guilty of any neglect or defaultin the execution of any statutory duly, since no statutory dutyrested upon them. On the plaintiffs case the Corporation isguilty, and only guilty of a neglect or default, in the dischargeof a duty imposed upon it by common law. namely, a duty totake care. But if the duties which the common law would ofitself impose are also imposed by statute, then the statutoryprovision such as section 478 would apply. This is the presentposition in England. Any user of the highway can complain ofnegligence of the highway authorities in the execution of theirpublic duty or authority. G. C. Sharma was just such a case. In the discharge of a public duty or authority the corporationwrongly refused the license. It was held that the public bodywill enjoy the benefit of the stutute. ( 20 ) ALL that section 478 (2) says is that where proceedingsare taken against the Corporation or a municipal official forany act done in pursuance of the Act, or any public duty imposed by the Act, or for any neglect or default in the executionof such statutory powers or duties, the ordinary right of thesubject to the remedy is to be cut down by stringent provisionas to time. If the action is commenced more than six monthsafter neglect the statute will apply and it must be held thatthe action is too late and barred. ( 21 ) ON this view we cannot accept that a suit founded onthe tort of negligence such as the present one wiltbe barred under section 478 (2 ). A strong court of five judgesof Lahore High Court in Mohd. Sadat All Khan v. Administrator Corporation of City of Lahore, AIR 1945 Lah. 324 hastaken this view which we have expressed in our own wordswith no hope of improving their exposition of law. (See theopinion of Mahajan J. ). The Lahore Full Bench has been expressly approved by the Supreme Court in State of Punjab v. Modern Cultivation, AIR 1965 SC 17 (8 ). 324 hastaken this view which we have expressed in our own wordswith no hope of improving their exposition of law. (See theopinion of Mahajan J. ). The Lahore Full Bench has been expressly approved by the Supreme Court in State of Punjab v. Modern Cultivation, AIR 1965 SC 17 (8 ). ( 22 ) SECTION 478 covers cases of acts and omissions donein the process of execution of a statutory duty and are foundto be in excess of statutory powers. "it is confined to caseswhere any act is done in the honest belief that it is being donein pursuance of a satute- or in the execution of an act an omission is made in the honest belief that such an act is not required to be done under the statute. " (Mohd. Sadat Ali, supraper Mahajan J. at p. 321 ). "in execution of the commandsof the legislature the officials are liable to act in excess oftheir statutory powers in the honest belief that they enjoythese powers, though in fact they do not do so. " To such officials sec. 478 gives protection. "sec. 478 has a limited scopeand application and comes into play where specific acts undercover of the statute are being done or executed. " (Mohd. Sadatali p. 331 ). ( 23 ) AS we find nothing in the Act imposing any specificduty on the Corporation to take care of pre-existing trees wehold that section 478 (2) does not operate as a bar to the suit. The Second Question ( 24 ) AFTER the preliminary issue was decided in favour ofthe plaintiffs the parties west to trial. They called witnesses. The case was decided by B. C. Misra J. he evaluated the evidence. He found as a fact that the tree in question was a deadtree. It had no bark, foliage or buds. He acceptde the evidence of a botany professor called by the plaintiffs who gaveto opinion that a tree which has no bark would dry up anddie. In the evidence of the garden superintendent of the Corporation he found sufficient materials to reach the conclusionthat the tree was dead, dry and dangerous. He came to theconclusion that the Corporation was "grossly negligent" in not. cutting it when as a dead tree it had become a source of potontial danger. In the evidence of the garden superintendent of the Corporation he found sufficient materials to reach the conclusionthat the tree was dead, dry and dangerous. He came to theconclusion that the Corporation was "grossly negligent" in not. cutting it when as a dead tree it had become a source of potontial danger. ( 25 ) BEFORE the learned judge it was argued that no personhad made any complaint to the Corporation about the dangerous condition of the tree and they never knew about it. Herejected this argument. He deplored their conduct and said:"this would disclose a callous attitude on the part of the defendant which owned the tree and in older to perform itslegal duty. stood in need of complainant from the members ofthe public instead of itself carying cut regular careful inspection which would haverevealed the source of danger. " ( 26 ) WE agree with the learned judge in his finding that the. Corporation was guilty of negligence. The photographs of thetree were taken. These were put in cross-examination to thecorporation witnesses. The Deputy Commissioner, horticulture{dw 4) admitted that the photographs showed that the treehad no leaves. "it looks like a partly worn out tree", he saids. L. Jindal, Superintendent Gardens, had to admit that. therewas no bark or foliage on the tree. in case the tree is devoidof bark on all sides as shown in these photographs then this"nay be a dead tree", he confessed in the cross-examination. ( 27 ) ONE fact which is conspicuous in this case is that thehorticulture department of the Corporation did not carry outany periodical inspection of trees in the locality and did notproduce any record to show that they were taking any safetyprecaution to see that the road is safe for traffic. We thinkthe judge was absolutely right when he said : "i hold that thetrue in question was dry and dead and the same was tillingand dangerous and projection of its branch over the publicroad was a definite source of great danger to the passersbywho were entitled to use, the road. " ( 28 ) IF a rotten tree falls causing damage to a user of Shehighway, the public body can be sued in negligence. The dutyof the highway authority is to take such steps as a reasonableand prudent landowner would lake. and the queston is oneof fact whether the conduct of the Corporation infringed thisrequirement. " ( 28 ) IF a rotten tree falls causing damage to a user of Shehighway, the public body can be sued in negligence. The dutyof the highway authority is to take such steps as a reasonableand prudent landowner would lake. and the queston is oneof fact whether the conduct of the Corporation infringed thisrequirement. There is a duty to lop. top and pollard the treesstanding on the highway. The users of the road are entitiedto pass and repass in safety and it is the duty of the Corporation to ensure it. They are a public authority and their dutyis to maintain the public roads at public expense. ( 29 ) TRAFFIC cases raise questions of fact which are dependent on the circumstances of each case. The question whetherthere has been a breach of duty, though sometimes treated asa question of fact. is still a question of law whether the factsconstitute sufficient evidence upon which to base a finding offact that there was in the circumstances at breach of duty totake care: a court empowered merely to reverse on points oflaw can do so in the ground that there is no evidence of wantof reasonable care. [street on Torts (7th) (1953) ed, 113]. ( 30 ) THE law is stated in Winfield and Jolowicz. On Tort (12th) (1954) ed. p. 420 in these words : "if damage is done owing to the collapse of the projection on the highway or by some other mischieftraceable to it. the occupier of the premises onwhich it stood is liable if lie knew of the direct orought. on investigation, to have known of it, Atany rate this is the rule with respect to thing thatis naturally on the premises, e. g. a tree. "in Caminer v. Northern and London Trust (1950) 2 Alle. R. 486 (9) at p. 497, Lord Reid said- "i have no doubt that a person who has a tree whichis in such a position that it or some of its branchesmay fall and injure some person passingalong a busy thoroughfare is under some duty tothose who pass. . . . I think that the respondents duty was to take such steps to prevent dangeras a reasonable man in the respondents positionwould have taken. "in Clerk and Lindsll on Torts (15th) (1982) od. . . . I think that the respondents duty was to take such steps to prevent dangeras a reasonable man in the respondents positionwould have taken. "in Clerk and Lindsll on Torts (15th) (1982) od. atpage 464 the law on trees is summarised as follows : "the fall of trees, branches and other forms of naturalgrowth is governed by the rules of negligence. When trees on land adjoining a public highway fallupon it, the owner is liable if he knew or oughtto have known that the falling tree was dangerous. He is not bound to call in an export to examinethe trees, but he is bound to keep a look outand to take notice of such signs as would indicateto a prudent landowner that there was a dangerof a tree falling. "in Charlesworth and Percy on Negligence (7th ). (1983) ed. at pages 599-600 the law is stated in these terms : "however, when a tree, which had been dying forsome years and should have been known to bedangerous by an ordinary landowner, fell andcaused damage, the owner was held liable Brownv. Harrison (1947) W. N. 1911. A local authority, which plants trees near the highway,is under a duty to cut them back, when they growover the highway, so us to interfere with traffic. Such an authority was held liable on its failure todo this, when an overhanging branch broke awindow in a bus and injured a passenger. [halev. Hants Dorset Motor Services Ltd. (1947) 2all E. R. 628] (10 ). By way of contrast, if a local authority in the courseof road widening operations leaves a tree, adjoining the highway in such a danger of falling that itis both "patent and imminent", liability will beestablished for damage, which is caused by its fallinto persons and vehicles on the highway. " [mackiev. Dumbartonshire C. C. . (1927) W. N. 247] (ll ). In Brown v. Harrison (1947) 63 Law Times. Reports484 (12) the plaintiff, while walking along a. public highway. was injured by the fall of a tree on the defendant. s land. Thetree was a dying tree. The Court of Appeal held that: theevidence established that there was a dangerous conditionwhich the defendants could and should have seen. they wereheld liable for the injury resulting to 11 is plaintiff from theirfailure to remedy it. was injured by the fall of a tree on the defendant. s land. Thetree was a dying tree. The Court of Appeal held that: theevidence established that there was a dangerous conditionwhich the defendants could and should have seen. they wereheld liable for the injury resulting to 11 is plaintiff from theirfailure to remedy it. In Quinn v. Scott (1965) 1 W. L. R. 1004 (13) the ownerof a tree on a highway who has means of knowing that it isdiseased and may fall is liable in negligence if it falls andcauses an accident. ( 31 ) APPLYING these principles of law we find that the treein question which had no bark mid leafage was a dead tree. It slowed no signs of life. It was well "worn out" as thecorporation witness said. The tree w;)s dangerous. A treeis not in itself a dangerous object, though in decay it maybecome so. In the present case by reason of decay the treehad become a dangerous object. The danger was apparentto the ordinary layman. The test is whether an ordinary personwould regard the danger asapparent. On the date of theaccident there was no storg. No strong winds. It was acalm evening. Suddenly a branch fell and killed the man. In a dying tree the instability and likelihood of its falling areimportant matters. ( 32 ) ROAD safety is of primary importance. Whether thetree is planted or self-sown ths highway authority has theduty of care. Section 43 (d) of the Act emphaises it. Careof trees" is the discretionary function of the Corporation,though it has not been provided for by means of regulationsor bye-laws so far. If environmental pollution is to be reducedand ecological climate is to be improved by planting of treesit must be remembered that there is a corresponding liabilityon the tree planters to see that the trees do not become ahazard for the passers-by. "those who have property of thiskind have to realise that there is a duty to the public. " ( 33 ) THE test is that the defendant knew or ought to haveknown, as an ordinary landowner, of the danger caused bythe tree. That the tree had been planted many years beforeby the Corporation s predecessor-in-title is no ground to denydamages to the plaintiffs once it is established that the defendant has failed to take care of the tree. That the tree had been planted many years beforeby the Corporation s predecessor-in-title is no ground to denydamages to the plaintiffs once it is established that the defendant has failed to take care of the tree. ( 34 ) THE Corporation has employed specialists in theirhorticulture department. They should have known the condition of the tree. The law imposes on them the duty of takingprecautionary measures when the condition of the tree is sufficiently apparent prior to the accident. ( 35 ) IT is the duty of the Corporation employees to conduct periodical inspections of the trees standing on the publicroads. There is no evidence in this case that inspections wereefficiently and regularly done which would have revealed thedangerous condition of the tree. The danger was apparent,prompt steps should have been taken to remove the tree. ( 36 ) THE learned judge was impressed by three importantfacts disclosed in the evidence. The first was the non-existenceand non-production of inspection record , by the Corporationemployees engaged in looking after the trees in this area. Secondly the branch which fell was admittedly removed bythe Corporation employee on 19th August. There is no reportabout its condition. Third the tree in question was removedfrom the site by the Corporation employees sometimes later. So the direct evidence was in their possession, ( 37 ) IN this state of evidence the learned judge appliedthe doctrine of res ipse loquitor. He came to the conclusionthat the Corporation was negligent in performing its duty. They were under a legal obligation to maintain the tree andto cut it down when they found that it was a danger to thepasser-by. The Corporation was liable to pay damages tothe plaintiffs. . ( 38 ) COUNSEL for the Corporation submitted that. therewas no liability of highway authorities under the commonlaw. He referred us to Dist. Board Manbhum v. Shyamapada. AIR 1955 Pt. 432 (14) and Ivaturi Subromanyam V. Dist. Board Naraspur, AIR 1941 Mad. 733 (15 ). We do notagree. There has been a judicial cry against the doctrine ofimmunity. The law was unsatisfactory. It was an archaicand anamalous survival into modern times. It: would indeedbe difficult to think of any sound reason why today highwayauthorities should enjoy this immunity. Before the Highwaysacts in England they; enjoyed this. immunity. The Actsabrogated it. 733 (15 ). We do notagree. There has been a judicial cry against the doctrine ofimmunity. The law was unsatisfactory. It was an archaicand anamalous survival into modern times. It: would indeedbe difficult to think of any sound reason why today highwayauthorities should enjoy this immunity. Before the Highwaysacts in England they; enjoyed this. immunity. The Actsabrogated it. We do not see any good reason why we shouldfollow the English common law in this country when it wasfound to be unjust in the country of origin and was finallyabolished there. The Supreme Court decisions in Municipalcorporation of Delhi v. Subhagwanti and others, AIR 1966sc. 1750 (16) and State of Punjab v. Modern Cultivators AIR1965 SC (17) clearly show that we ought to follow not the oldcommon law but the modem law of negligence asdevelopedby the judges. On the whole case we are not prepared todiffer from the learned judge in his formulation of the lawand the evaluation of facts as disclosed in evidence. ( 39 ) THE Corporation witness in his evidence said that "anytree can be a dangerous one" and that I am not expected tosec each and every tree" (t)W 5 ). This attitude is typical ofwhat the learned judge called "callous" conduct. of Corporationemployees. It is a part of their duly to inspect the trees in theneighbourhood for the purpose of causing removal of branchesoverhanging the roadway and to report any tree which theyregard as a potential danger. "those who have properly ofthis kind have to realise that there is. a duty to the public". They did not realise their duty. The appearance of the treeshould have indicated to them the probability of danger. Thecorporation has failed in its duly because its employees didnothing about the safety of the road users. Nothing for theprotection of the public. In our opinion it has been satisfactorily proved that negligence was a cause of the accident bywhich the man died and the plaintiffs suffered the damage forwhich they sue. ( 40 ) THAT trees rarely fall is no ground to absctve the publicbody from its liability. so the fact that the injury which hasoccurred is unique in character, or has happened previously ona minimal number of occasions or to a very few people, doesnot necessarily prove that the defendant is under no duty totake precautions against it. " [salmond and Houston on thelaw of Torts (18th) ed. page 212]. so the fact that the injury which hasoccurred is unique in character, or has happened previously ona minimal number of occasions or to a very few people, doesnot necessarily prove that the defendant is under no duty totake precautions against it. " [salmond and Houston on thelaw of Torts (18th) ed. page 212]. ( 41 ) DONOUGHUE v. Stevenson (1932) AC 562 (17) markeda turning point in the history of the law of negligence. Itestablished the "neighour" principle. It established negligenceas an independent tort. The importance of this decision wasits insistence upon the expansible nature of the action of negligence. Lord Macmillan said: "the grounds of action may be as various as humanerrancy; and the conception of legal responsibilitymay develop in adaptation to altering social conditions and standards. The categories of negligenceare never closed. " ( 42 ) BEFORE the law of negligence dominated the scene thejudges found the defendant liable by applying the law of nuisance. A dead tree would be considered as a public nuisance. ( 43 ) "nuisance is a branch of the law of negligence. Itmerely adds to the list of duties of care. " (Williams and Hepplefoundationsof the Law of Torts 2nd ed. p. 124 ). . "nuisance"we quote Pratt and Mackenzie on the Law of Highways (20thed.) p. 106 -. "may be defined, with reference to highways, asany wrongful act or omission upon or near a highway, wherebythe public are prevented from freely, safely and convenientlypassing along the highway". This defintion exactly fits in withthe law of negligence. It was said by the Corporation that Mallroad is a highway but not Alipur Road. This is a distinctionwithout a difference. Both are public thoroughfares and publicroads. ( 44 ) THE leading case is Noble v. Harrison (1926) 2 K. B. 332 (18 ). The damage there was caused by the overhangingtree with a latent defect and the decision was against liability. The judgement of Rowlatt J. contains this passage: "a person is liable for a nuisance constituted by the staleof his property: (1) if he causes it; (2) if by neglect of sonic dutyhe allowed it to arise: and (3) if. when it has arisenwithout his own act or default, he omits to remedyit within a reasonable time after he did or oughtto have become aware of it. when it has arisenwithout his own act or default, he omits to remedyit within a reasonable time after he did or oughtto have become aware of it. " ( 45 ) AS a general statement of law it was citedi with approvalby Dixon J. in Torette House Proprietory v. Berkman (1939)62 C. L. R. 637, 652 (19) and Lord Wilberforce in the Privycouncil case Goldman v. Hargrave (1967) A. C. 645, 660 (20 ). ( 46 ) THE real question is: Did the Corporation by the neglectof some duty allowed the danger to arise ? This question mustbe answered in the affirmative. ( 47 ) WHAT does the evidence establish in this case? A. dyingtree was standing on a public thoroughfare. The Corporationemployees should have foreseen the danger of its falling or ofits branches breaking away. They must be held liable becausethey ought to have envisaged danger. This is the basis of thejudgment of B. C. Misra, J. ( 48 ) THE real question is about the liability of a tree owner. If there is a tree likely to cause damage to persons lawfullyusing a busy street it is the duty of the highway authority tosee the soundness and safety of the tree. This course was themore imperative in the case of a tree standing near a public andwell used road. If there is a potentially unsafe tree reasonableandproper precaution of a reasonable and prudent land ownermust be taken for the protection of the public. Whether thesuit is framed in negligence or nuisance the local authoritymust realise that there is a duty to the public. ( 49 ) IN an action for negligence, such as this, the plaintiffmust establish either that the defendant, knew of the danger orought to have known of it. "ought to have known" ;annotmean more than "would have known if He had taken the precaution which a reasonable land owner would take," It seems tous that the Corporation took no steps to remedy what we thinkwas a danger to the public. The professor of Botany calledby the plaintiff was, by the quality of his evidence, by far themost important witness. He found that there were no fringesin the tree which indicated that the tree was dead and dry. He did not give a clean chit of health to the tree. It was notstanding upright. It was inclined. The professor of Botany calledby the plaintiff was, by the quality of his evidence, by far themost important witness. He found that there were no fringesin the tree which indicated that the tree was dead and dry. He did not give a clean chit of health to the tree. It was notstanding upright. It was inclined. It was condemned as apotentially unsafe tree by the witness. It is the duty of thecorporation to take reasonable and proper precaution so thatunsuspecting persons lawfully using the road are not injured. If they fail to take appropriate precautions they must bear theconsequence. ( 50 ) THE judge imputed a want of care to the Corporation. They should have foreseen that the accident can happen. Alayman would draw such a deduction from the position and theappearance of the tree. No one will call it safe and sound. Noone will count such a tree safe. The evidence of the Corporationemployees throws a great suspicion on the soundness andsafety of the tree. Such a tree was likely to cause damage topersons lawfully using the public road. They ought to haveknown that a dead tree can fall and injure and kill a man. Asthe duly of inspection and cutting of tree had not been performedthe learned judge held the Corporation liable. We are not prepared to say that he was wrong in his assessment of evidence. ( 51 ) ON the application of the maxim res ipsa loquitor, in. . agreement with the learned judge, we think that it was. the dutyof the Corporation to give an adequate explanation of the causeof the accident. This they have failed to do. The maxim is nomore than rule of evidence. It is based on common sense andits purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendantarc at the outset unknown to the plaintiff and are or ought tobe within the knowledge of the defendant. [barkway v. Southwals Transport Co. Ltd. (1950) 1 All E. R. 392, 394] (21 ). The Third Quesiton ( 52 ) NOW we have to assess damages on the basis of loss ofearnings. The measure of damages is the pecuniary loss sufferedby the dependants as a result of the death. [barkway v. Southwals Transport Co. Ltd. (1950) 1 All E. R. 392, 394] (21 ). The Third Quesiton ( 52 ) NOW we have to assess damages on the basis of loss ofearnings. The measure of damages is the pecuniary loss sufferedby the dependants as a result of the death. What the Court hasto try to ascertain in these cases is : How much have thewidow and the family lost by the father's death ? In 1858pollock C. B. adopted the test which has been used ever since. that damages must be calculated "in reference to a reasonableexpectation of pecuniary benefit as of right, or otherwise, fromthe continuance of the life. " [franklin v. S. E. Rly. (1858)157 E. R. 448, 449] (22 ). In a case under the Fatal Accidentsact the Court is concerned with assessing what would havehappened if the deceased had lived. When the income of thedeceased was derived from his own earnings, it then becomesnecessary to consider what, but for the accident which terminated his existence, would have been his reasonable prospectsof life, work and remuneration, and also how far these, ifrealised, would have conducted to the benefit of the dependantsclaiming compensation. The chances, changes and uncertaintiesof life have also to be evaluated by the judge. The chances ofshorter life and longer life are equal either way. All human lifeis not continuously an enjoyable thing. The. ups and downsof life, its pains and sorrows as well as its joys and pleasures all that make up life's fitful fever' have to be allowed for inthe estimate of compensation. ( 53 ) THE deceased was a youngman of 30 when he died. He left. behind a widow, three minor sons aged 8, 5 and 1 yearsand a daughter 1 years. His mother was also alive. Thelearned judge held that the mother was not dependant on thedeceased. Only the widow and the children were has dependants. ( 54 ) THE deceased- was a. graduate. He was employed inhis "family concern" at Rs. 650. 00 per month as a salesman. Theplaintiffs produced the accountant of the company. He said thatthe deceased "was given a minimum of Rs. 650. 00 per monthplus 6% commission of the net profits of sales whicheverwas more. " In 1962-63 he was paid Rs. 8000. 00 as his remuneration. In 1963-64 he got Rs. 13,394. 650. 00 per month as a salesman. Theplaintiffs produced the accountant of the company. He said thatthe deceased "was given a minimum of Rs. 650. 00 per monthplus 6% commission of the net profits of sales whicheverwas more. " In 1962-63 he was paid Rs. 8000. 00 as his remuneration. In 1963-64 he got Rs. 13,394. 00 as his remuneration forthe period from 1-4-1964 to 18-8-1964 he was paid Rs. 8,218. 00as his remuneration. This was the accountant's evidence. ( 55 ) THE learned judge accented the deceased's salary asrs. 650. 00 per month but did not believe the evidence that hewas getting any commission. Taking Rs. 650. 00 as net incomebe deducted Rs. 1501" on account of personal expenses of the deceased. Rs. 5001- per month was fixed by him as the valueof the dependancy. He adopted the multiplier of 15. Theannual dependancy was Rs. 6000. 00multiplying it by 15 he arrived at the figure of Rs. 90,000. 00. This sumbe awarded ascompensation. He passed a decree for Rs. 90,000 with interestat 6 per cent from the date of decree till payment and proportionate costs. ( 56 ) WE differ, with respect, from the learned judge on themultiplicand. On the multiplier of 15 we agree with him. Inout opinion there is no good ground to discard the. evidence ofcommission. The accountant had brought the account books;of the limited company and his statement cannot be disbelievedin toto. The deceased was the bread winner of the family. Itwould be fair in all the circumstances to estimate the deceased'snet income at Rs. 1000. 00 per month. Rs. 200. 00 he would havespent on its maintenance. The multiplicand (basic figure) isrs. 800. 00 per month. The multiplier in this case should be 15view of the increased life expectancy. ( 57 ) WHAT is the law and practice of multiplier ? the multiplier was devised because of the uncertainties of the future. Future prospects may be bright or dull. Life may be full ofrewards and promotions. Or one may have unemployment andill-health in store. Who knows. In determining tils multiplier,however, the court will not simply adopt the number of yearsfrom trial to retirement age or the age of death, for that wouldbe to make no allowance for the "general vicissitudes of life"nor for the accelerated receipt of wheat might otherwise havebeen spread over forty years. Or one may have unemployment andill-health in store. Who knows. In determining tils multiplier,however, the court will not simply adopt the number of yearsfrom trial to retirement age or the age of death, for that wouldbe to make no allowance for the "general vicissitudes of life"nor for the accelerated receipt of wheat might otherwise havebeen spread over forty years. A reduction of the multiplier willtherefore be made to effect a discount in respect of those factors. In practice, there is a maximum of about 18 as the multiplier,but there is no automatic relationshi pbetween the multiplier andthe plaintiff's age : thus a multiplier of 15 or 16 would be thenorm whether the plaintiff was aged 18 or 35, though it wouldbe a steady decline after that age. (Winfield p. 633 ). ( 58 ) "the multiplier of annual loss of dependancy is seldomfixed at more than 16 times that annual figure. " (Street ontorts p. 218 ). "sixteen years' purchase is near the upper limit" (Salmond p. 585 ). For a plaintiff in his thirties, having a normalexpectation of working life, a multiplier of fourteen or fifteenhas often been taken. [halsbury Laws of England 4th (Hailsham) addition volume 12 page 453]. See also Charlesworth onnegligence p. 997-998; Clerk and Lindsell on Torts [ (15th ed.) (P. 267)]. ( 59 ) OUR attention was drawn to Satyawati Pathak v. Hariram, AIR 1984 Delhi 106 (23 ). We do not think that a correctmultiplier was applied in that case. The deceased was a teacher. He was 39 at the time of the accident. His total remunerationwas Rs. 499. 85 per month. The learned judge awardedrs. 1,50,000. 00 because the claim was confined to that amount. Wedo not agree with the learned judge when he says "i have heldabove that the deceased would have earned more than rupeessix lacs from the date of accident till the age of 75 years and thushe would have provided a sum of rupees 41 lacs to his heirs. The appellants thus may be held entitled to compensation tothe extent of 4 lacs. " (p. 113-114 ). ( 60 ) THIS is against all principles of assessment of damages. The method of assessment is by means of a multiplier andmultiplicand. The appellants thus may be held entitled to compensation tothe extent of 4 lacs. " (p. 113-114 ). ( 60 ) THIS is against all principles of assessment of damages. The method of assessment is by means of a multiplier andmultiplicand. Fatal Accident cases differ from the normal inthat it is not the plaintiff's expectations that are in issue, butrather those of the deceased upon whose death the claim isbased. The question is, "how long, and to what extent, wouldhe, had he lived, have been likely to provide for the dependent ?"the claim is loss of dependancy and not for a solatium as inscots law. The court has to assess, damages For pecuniary loss,present and prospective, resulting from death. A correctmultiplier has to be found, allowing for future uncertainties andfor the factors of accelerated payment. These principles werelaid down by the House of Lords in Davies v. Powell Duffrynassociated Collieries Ltd. , (1942) A. C. 601 (24 ). The Supremecourt has followed it in Subhagwanti's case (supra ). . ( 61 ) THE award should be liberal and not niggardly, thesupreme Court has said. as is observed by the learned judge. But that does not mean that the judges can be charitable atthe expense of the insurance company or the Corporation asis the case here (Williams and Happle p. 123 ). The judges arehuman beings and they do feel sympathy for the victim. Butsurely the idea of a wergild, death. price, or sop to bereavedrelatives is primitive. (James and Brown Law of Torts 4th ed. p. 405 ). ( 62 ) THE experience of the courts has evolved a system inwhich a "multiplier" should be used as the normal and primarymethod of assessment of pecuniary loss, (Halsbury p. 453 ). On the amouat of Rs. 1,50,000 actually awarded by the learnedjudge in Satyawati Pathak we say nothing advisedly. ( 63 ) COUNSEL for the plaintiffs pressed upon us that we adopta multiplier of 25. We cannot do so. The usual multiplieris between 14 and 16. Rarely it is 18. Never 25. ( 64 ) ON inflation the present English view is that the multiplier should not be increased to take account of inflation. (Salmond p. 586; Street p. 219 ). ( 65 ) NOW if the pecuniary loss of the dependants is Rs. 9600per year and the multiplier is 15 the amount of compensationworks out to Rs. 1,44,000. Never 25. ( 64 ) ON inflation the present English view is that the multiplier should not be increased to take account of inflation. (Salmond p. 586; Street p. 219 ). ( 65 ) NOW if the pecuniary loss of the dependants is Rs. 9600per year and the multiplier is 15 the amount of compensationworks out to Rs. 1,44,000. ( 66 ) MUCH of the calculations necessarily must be in therealms of hypothesis and in that region arithmetic is a goodservant but a bad master, since there are so often many imponderables. In every case it is the overall picture that mattersand the court must try to assess as best as it can the loss sufferedby each dependant having regard to all the cireumstances butsubject to the fact that it is the wood that has to be looked at. and not the individual trees. (Charlesworth on Negligencep. 999 ). ( 67 ) THERE remains the question of interest. The trial judgepassed the decree on 29-5-1970. The admitting bench orderedin appeal on 18-8-1970 that the plaintiffs may withdraw theamount on furishing security. On 17-9-1970 the Corporationdeposited the amount of Rs. 90,000 in Court. The plantiffscould not furnish security. On 4-6-1974 the court orderedthat the) amount be deposited in F. D. R. in bank. Unfortunatelythis was not done. The reason is not clear from the record. It appears to be a case of mistake of the office. The moneyremained idle in court. What is to be done in these cirecumstances ? The right order to make will be this. The Corporation shall pay interest at 6 per cent per annum on Rs. 1. 14,000from the date of suit i. e. 5-8-1966 till 17-9-1970 wher theydeposited the amount of Rs. 90,000 in court. They shalli payinterest on Rs. 90,000 at 3 per cent per annum from the dateof deposit till payment and interest on Rs. 54,000 at 6 per centfrom 17-9-1970 till payment. We have allowed interest at3 per cent from date of deposit will payment on Rs. 90,000because the amount could not be deposited in bank in spite oforder of court, and, therefore, we think both parties shouldsuffer the loss equally. ( 68 ) THE plaintiffs will be entitled to proportionate costs ofthe suit and appeal. R. F. A. (OS) 28 of 1970 is allowed to the extent indicatedabove. R. F. A. (OS) 23 of 1970 is dismissed with costs. ( 68 ) THE plaintiffs will be entitled to proportionate costs ofthe suit and appeal. R. F. A. (OS) 28 of 1970 is allowed to the extent indicatedabove. R. F. A. (OS) 23 of 1970 is dismissed with costs. RFA (OS)28/1970-partly allowed.