Judgement This appeal has been filed by the defendant. A suit was filed for realisation of compensation and damages. 2. The brief facts of the case are as follows: 3. That the suit houses and premises which have been fully described in the Schedule A, belonged to the plaintiff. It has been stated that the suit houses along with premises and some furniture like Godrej, iron safe, Jute Bail press machine etc. were let out to the defendant under two separate agreements. It has been stated that under the agreement dated 26-12-80, the godown on the North Western corner was let out to the defendant at a monthly rent of Rs. 220/-. It has been stated that the defendant took possession of the godown on 4th July, 1980, though the formal written agreement was executed afterwards. It has been stated that the other godown which consisted of a two storeyed Assam Type house, kitchen, labour quarters, and some furniture etc. was let out at a monthly rent of Rs. 916.00 under an agreement dated 16-8-80, though the defendant took the actual possession of it on 1-7-79. 4. It has been stated that on 26-11-85 at about 7.30 p.m. fire caught the said godown which completely burnt down it causing huge loss and damage to the plaintiff. It has been contended that the entire area was well protected and no outsider could enter into the suit premises; and only the defendants men and employees were staying inside the campus and fire took place due to their careless and negligent acts. It has been alleged that the employees of the defendant residing therein at the time of fire mishap, did not take prompt action to inform the fire-brigade or the local police about the fire havoc. It has been stated that the plaintiff whose house was situated at a short distance from the side of fire mishap, heard some shouts while the fire caught; and he rushed to the spot and then he himself informed the accident to the police, informed the fire brigade which came but could not save the suit houses from fire. It has been alleged that even after the incident, the defendant; and its officers did not care to intimate about the fire accident and its cause; and the defendant side remain completely silent about the entire incident. It has been alleged that even after the incident, the defendant; and its officers did not care to intimate about the fire accident and its cause; and the defendant side remain completely silent about the entire incident. It has been stated that even after that fire accident, the defendant kept the suit premises in their occupation and did not handover possession to the plaintiff. 5. It has been stated that the plaintiff by a notice dated 23-12-95 intimated the defendant about the damage caused by the fire accident on 26-11-85 with an inventor of the damages so caused; but in spite of having received the notice the defendant kept silent and did not disown its liability to pay compensation. It has been stated that the plaintiff issued another notice dt. 7-4-86 intimating that due to the negligence of the staff of the defendant the houses were gutted and thereby he suffered damages to the tune of Rs. 5,70,000.00 and entitled to compensation; but this time also in spite of having received the notice, the defendant remained unresponsive. It has been contended that is why, the plaintiff has been compelled to bring this suit for recovery of compensation. 6. On the other hand, the case of the defendant side in brief is that the Branch Manager of the defendant, rented godown house from the plaintiff who claimed to be the owner of the suit premises by executing katcha writing and exchange of letters. It has been contended that it was stipulated that the plaintiff would insure the godown; but he failed to insure and thereby violated the terms of arrangement and due to that the plaintiff himself is liable for the loss. It has also been contended that various litigation are going on between the plaintiff and his relatives regarding the ownership of the suit houses and land; and the defendant is ready to pay the rent to the owner, if their dispute is settled. 7. It has also been contended that various litigation are going on between the plaintiff and his relatives regarding the ownership of the suit houses and land; and the defendant is ready to pay the rent to the owner, if their dispute is settled. 7. It has stated that the fire accident that took place on 26-11-1985 was solely due to some unforeseen accident, probably due to short circuit of electric connection which was installed by the plaintiff himself and there is no cause of fire to any lapse, negligence on the part of the defendant, and its employee; and the accident can be termed as the act of God; and as such the defendant is not liable to any compensation or damage to the plaintiff. 8. Following are the issues : i) Whether is any cause of action for this suit ? ii) Whether the suit is maintainable in the present form ? iii) Whether the suit is barred by limitation? iv) Whether the fire which gutted the godown completely was the result of the carelessness and negligent act of the defendant and its employees ? v) Whether the plaintiff is entitled to a decree of compensation of the loss of his godown rented to the defendant ? vi) Whether the loss was due to non-insuring of the godown by the plaintiff? vii) Whether the rental godown fell into the share of the plaintiff or on the pro forma defendant No, 22 and 23 ? viii) To what relief any of the parties are entitled to? 9. The plaintiff examined three witnesses and the defendant examined one witness. The Learned Asstt. District Judge, Barpeta decreed the suit for a sum of Rs. 2,00,000/- with full cost with future interest @6% PA from the date of order till final payment of the decretal amount. Hence this appeal. 10. I have heard Mr. PC Deka, Learned Advocate for the appellant and Mr. NM Lahiri, Learned Advocate for the respondents. 11. In pursuance of the earlier order of this Court on 21-12-1995 a cheque for an amount of Rs. 1,00,000.00 was paid and the plaintiff/respondent has withdrawn the money. The case for negligence of the plaintiff has been made out in paragraphs 4, 5 and 6 of the plaint. NM Lahiri, Learned Advocate for the respondents. 11. In pursuance of the earlier order of this Court on 21-12-1995 a cheque for an amount of Rs. 1,00,000.00 was paid and the plaintiff/respondent has withdrawn the money. The case for negligence of the plaintiff has been made out in paragraphs 4, 5 and 6 of the plaint. That is quoted below : "Para 4 : That on 26-11-1985 at about 7.30 p.m. fire caught in the said godown which engulfed the entire campus and ultimately all the aforesaid godown were completely burnt down and were completely damaged causing a huge loss to the plaintiff. The defendants men and employees were inside the premises and the fire took place due to their careless and negligent act. Para 5 : That no attempt was made by the employees of the defendant residing and /or employed there to extinguish the fire when it started, nor did they inform the police or fire-brigade immediately. The plaintiff was resided at a very short distance from the suit premises rushed to the spot when he heard some shouts. The plaintiff immediately intimated the police in the police station which is very near to the place and the police immediately intimated the Fire-Brigade which came some time thereafter. When after the fire the defendant or its employees did not care to intimate the plaintiff about the said godown being gutted by fire or the cause of the fire which was best known to the Defendant and its employees, Neither the defendant took up the matter with the police and inform about the said incident. Even after the said incident the defendant kept the premises in its occupation and did not hand over the premises to the plaintiff. The fire to the said godowns was caused by the acts of commission and ommission and negligence of the defendant and its employee staying in the suit premises and the defendant is liable to pay compensation for the loss caused to the plaintiff for the destruction of the suit houses. Para 6 : That the defendant stored jutes in the godown and though it kept easily combustible goods like jute. It did not take the necessary precautions and measures to extinguish fire in case it take place. Further, it appears that at the relevant time the market price of jute had greatly gone down. Para 6 : That the defendant stored jutes in the godown and though it kept easily combustible goods like jute. It did not take the necessary precautions and measures to extinguish fire in case it take place. Further, it appears that at the relevant time the market price of jute had greatly gone down. There was a huge stock of jute of the defendant in the godown and it is learnt that the same was heavily insured for about Rupees fifteen lacs (Rs. 15,00,000/-) It is apparent that the fire was caused intentionally for illegal gain. There is no other fact or for the cause of the fire. It is learnt that the defendants claim against the Insurance Company has been satisfied." 12. As against that a reply has been given in paragraphs 10, 11 and 12 of the written statement. That is quoted below : Paragraph 10 : " That the statements made in paragraph 4 of the plaint that the entire area was well protected by walls and fencing and no outsiders could enter into the Godown premises and that the defendants men and employees were inside the premises and that the fire took place due to their careless and negligence act are also denied by the defendant." Para 11 : That the Statements made in paragraph 5 of the petition that no steps were made by the employees of the defendant to extinguish the fire, nor they inform the police station or fire-brigade immediately, and that the defendant or its employee did not care to intimate the plaintiff about the said godown being gutted by fire or the cause and the cause of fire was best known to the defendant and its employee etc.. and that the fire of the said godown was caused by the acts of commission and omission and negligence of the defendant and its employees and that the defendant is liable to pay compensation for the loss caused to the plaintiff for the destruction of the suit house are all denied by the defendant. Para 12 : The answering defendant specifically denies the statements made by the plaintiff in paragraph 6 of the plaint that the defendant did not take necessary precaution and measures to extinguish the fire in case it takes place. Para 12 : The answering defendant specifically denies the statements made by the plaintiff in paragraph 6 of the plaint that the defendant did not take necessary precaution and measures to extinguish the fire in case it takes place. The defendant also denies that the market price of jute went down in that period and that the jutes were insured for about Rs. 15 lakhs and that fire was caused intentionally for illegal gain and that there is no other fact or cause of the fire and that defendant claim against the insurance co. has been satisfied or has been stated by the plaintiff in the said paragraph." 13. Further it is sated in paragraph 13 that the plaintiff himself has admitted that the fire in godown was accidental one. Sri Deka, Learned Counsel for the appellant submits that the defendant cannot be made liable for compensation for an act of God. First let us have a look what is the meaning of accident. The accident means an unexpected incident. The idea of something fortuitous and unexpected is involved in the word accident. It is understood for mishap or untoward incidence which is not expected or designed. An accident is an equitable plea for relief in civil action for damages. Accident means inevitable or vide major act of God and not as a result of negligence or misconduct. An act is an accident when the act is caused and/or is not done with the intention of causing it and when the occurrence is consequence of such act and it has not shown properly that a person of ordinary prudence act under the circumstances in which it is done to take reasonable precautions against it. The Dictionary meaning of the word accident is chance occurrence, undesigned occurrence, unexpected, misfortune etc. in Blacks Law Dictionary accident has been defined as follows : "Accident. The word "accident" is derived from the Latin verb "accidere" signifying "fall upon, befall happen, chance." In an etymological sense anything that happens may be said to be an accident and in this sense, the word has been defined as befalling a change; a happening; an incident ; and occurrence or event. The word "accident" is derived from the Latin verb "accidere" signifying "fall upon, befall happen, chance." In an etymological sense anything that happens may be said to be an accident and in this sense, the word has been defined as befalling a change; a happening; an incident ; and occurrence or event. In its most commonly accepted meaning, or in its ordinary or popular sense, the word may be defined as meaning a fortuitous circumstances, event, or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens; an unusual, fortuitous, unexpected, unforeseen or unlooked for event, happening or occurrence; any unusual or unexpected result attending the operation or performance of a usual or necessary act event; chance or contingency; fortune; mishap; some sudden and unexpected event taking place without expectation, upon the instant, rather than something which continues, progresses or develops; something happening by chance; something unforeseen, unexpected, unusual, extraordinary or phenomenal, taking place not according to the usual course of things or events, out of the range of ordinary calculations; that which exists or occurs abnormally, or an uncommon occurrence. The word may be employed as denoting a calamity, casualty, catastrophe, disaster, an undesirable or unfortunate happening; any unexpected personal injury resulting from any unlooked for mishap or occurrence; any unpleasant or unfortunate occurrence, that causes injury, loss suffering or death; some untoward occurrence aside from the usual course of events. An event that takes place without ones foresight or expectation; an undesigned, sudden, and unexpected event." 14. In order to entitle a person to get damages for accident following things are required as pointed out by the different authorities; i) There must be reasonable evidence of negligence. ii) Accident is as such as in the ordinary course things does not happen if those who has the management used proper care. It is the principle that the accident must be such as would not in the ordinary course of things have happened without negligence. 15. As pointed out by Lord Dening in (1954) 2 QB 182 (Southport Corporation v. ESSO petroleum Company Limited), in ordinary action for negligence the legal burden of proof rest throughout upon the plaintiff. It is the principle that the accident must be such as would not in the ordinary course of things have happened without negligence. 15. As pointed out by Lord Dening in (1954) 2 QB 182 (Southport Corporation v. ESSO petroleum Company Limited), in ordinary action for negligence the legal burden of proof rest throughout upon the plaintiff. He may by his evidence rest a prima facie case in the sense that nothing happened in the course which might well infer that the defendant may be negligent and show some evidence therein. The answer is at the end of the trial, the Court must find out the answer as the pursuer to prove that the defendants were negligent. The mere fact that a fire breaks out is not sufficient to infer negligence. For as pointed out by Lord Goddard C.J. in Sachacki v. Sas (1947) ALL ER 344 "Every one knows fire occurs through accidents which happens without negligence on any bodys part" In deciding the question of negligence the Court is to decide whether the foresight of a reasonable man could have prevented the accident. 16. Duties are either imposed by the law or undertaken by contract. The ordinary rule of law is that the law creates a duty and the parties are to perform it without any default, if not intervened by the act of God. In such a situation the law excuses him. But when a party by his own contract imposes the duty on himself he is bound to make good notwithstanding any accident by inevitable things. The generally accepted principle is that what amounts on acts of God is something which cannot be prevented by taking all reasonable care by human agency. The act of God is the antithesis of the act of man. It generally means an inevitable accident occurred directly and exclusively by the natural causes without human intervention. It is an accident which is beyond the control of human agency. The circumstances of the case must be so that the person cannot fore see and prevent or resist or overt its consequences. The burning of a house by negligence is waste, but it will not something to get damage if the house is burnt by fire and if the fire was neither started nor spread by negligence of the defendant (See Breems Legal Maxim, 10th edition Page 153 and 154). 17. The burning of a house by negligence is waste, but it will not something to get damage if the house is burnt by fire and if the fire was neither started nor spread by negligence of the defendant (See Breems Legal Maxim, 10th edition Page 153 and 154). 17. What constitute an Act of God regarding that Halsburys Laws of England, Fourth Edition, Vol-9, Clause 458 states as follows : "458. What constitutes an act of God. In the legal sense of the term, an act of God may be defined as an extraordinary occurrence or circumstance which could not have been foreseen and which could not have been guarded against; or, more accurately, as an accident (i) due to natural causes, directly and exclusively without human intervention, and (2) which could not by any amount of ability have been foreseen, or, if foreseen, could not by any amount of human care and skill have been resisted. The occurrence need not be unique, nor need it be one that happens for the first time; it is enough that it is extraordinary, and such as could not reasonably have been anticipated. The mere fact that a phenomenon has happened once, when it does not carry with it or import any probability of a recurrence (which, in other words, it does not imply any law from which its recurrence can be inferred) does not prevent that phenomenon from being an act of God. It must, however, be something overwhelming, and not merely an ordinary accidental circumstance. The following, amongst other occurrences, have been said to be acts of God; a violent storm at sea, an extraordinarily high tide, an unprecedented rainfall, an extraordinary flood, and earthquake, fire caused by lighting, and extraordinary frost, an extraordinary snowfall, death, lunacy, and (in contracts of personal services) illness. On the other hand, it has been held that the gnawing by rats of a hole in a pipe of a ship, through which the sea water came in and damaged the cargo, a fog, an ordinary fall of snow, and fire not caused by lightning were not acts of God." 18. It is on the background of this law that we must decide this case to find out whether there was negligence on the part of the defendant. The pleading with regard to the plea of negligence has already been quoted above. It is on the background of this law that we must decide this case to find out whether there was negligence on the part of the defendant. The pleading with regard to the plea of negligence has already been quoted above. P.W. I deposed regarding this fire. This only statement is as follows : i) The fire broke because of the negligence of Statefed. ii) The fire extinguisher was not fitted in the godown. iii) At the time of fire there was no electricity in the house. iv) Jute as insured by the State fed and the Statefed had to pay huge amount to the traders and as such they deliberately set on fire in his jute and as a result fire broke. v) It is not a fact that there was electrification in the house. vi) It is not a fact that the owner of the house is to do the fire insurance for the house. vii) In the agreement with the State fed exhibited before the Court in the Clauses there is nothing which creates an obligation on the State Fed to cause fire insurance of the house. Since as the fire broke out many people gathered there and fire was extinguished. This is not a fact that the fire was not caused because of the negligence of the Statefed. viii) It is not fact that again and again I was reminded to cause repair of the house as well as electrical installation and I do not do it deliberately and as such there was electric short circuit and fire. ix) It is not a fact that the fire was by way of accident. x) P.W. 2 is a neighbour of the plaintiff. At the time of fire there was no electricity. I was not present at the side when the fire broke out. P.W. 3 is another neighbour. He deposed that there was no electric light in the godown. D.W. 1 is the Branch Manager of the Statefed. He deposed inter alia as follows : i) The fire did not occur because of our negligence this was an accident. ii) We did not insure the godown as that was the liability of the owner. The articles belonging to the Statefed in the godown were duly insured. (All these depositions are English translation from a Assamese) 19. Exhibit I is the agreement dt. 26-12-1980. ii) We did not insure the godown as that was the liability of the owner. The articles belonging to the Statefed in the godown were duly insured. (All these depositions are English translation from a Assamese) 19. Exhibit I is the agreement dt. 26-12-1980. In this agreement there (sic) nothing that the godown will have to be insured against the fire by a Statefed. It is also crystal clear from the perusal of this agreement that there was electric connection in the Godown and this document belies the statement of the plaintiff and the witnesses that there was no electric connection. Further Clause 6 of this agreement provides that landlord is to repair the Godown as and when necessary at his own cost including electric and telephone connection. Clause 9 further provides that the first party will bear the expenditure for consumption of the electricity of the Godown Expt. II is another agreement for the year 1981 and there was a clause that fire licence if required shall be obtained by the landlord and this also is mentioned in the clause 8 of this agreement which provides inter alia as follows : "8. The cost of Insurance of building and other Fixtures and necessary repairs to salls, floors, roofs, baling press, building, equipments and fixtures etc. as and when advised by the Branch Manager and considered necessary for the smooth functioning our operation in the premises will be on your account." 20. It is the case of the defendant that there was request from the defendant to repair the godown and to do necessary repair to the electric lines but that was not done. On the basis of this findings as quoted above both documentary and oral it is crystal clear that the plaintiff miserably failed to prove negligence on the part of the defendant for the accidental fire and once this finding is arrived at the plaintiff in view of the law as indicated above is not entitled to any damage or compensation. It must be deemed to be an unavoidable accident and for such an unavoidable accident the defendant shall not be liable for any compensation. That being the position this appeal is allowed. The impugned judgment and decree as indicated above stand quashed. 21. It must be deemed to be an unavoidable accident and for such an unavoidable accident the defendant shall not be liable for any compensation. That being the position this appeal is allowed. The impugned judgment and decree as indicated above stand quashed. 21. Before I part with the record I make it clear that in terms of the order of this Court the plaintiff has already received a sum of Rs. 1,00,000/- (Rupees one lac) as the appeal has been allowed and the judgment and decree of the trial Court has been set aside the defendant by way of restitution shall be entitled to that amount which was received by the plaintiff. The amount may be paid within a period of two months from the date of this judgment failing which the amount shall carry interest @18% from the date when it was withdrawn by the plaintiff and the defendant may realise the amount by executing the decree by way of restitution. 22. Accordingly, this appeal is allowed as indicated above with cost all throughout. Appeal allowed.