Q no.1 Mr.

Satish Narayan, Constable, Uttar Pradesh Police was deputed as personal

security officer to Mr. Gopal Singh, District Magistrate, Meerut. On 29.12.2020, Satish
reported for his duty at 09:00 A.M. In the compound of the District Magistrate’s office,
there was an old banyan tree which added to the grandeur of the office. At around 04:00
PM, there was a huge rainstorm which lasted for about 45 minutes. While leaving the
office after completing his duty, Satish fell victim to the old banyan tree, (in the
compound of the office of District Magistrate) which got uprooted and fell on the ground
thereby crushing him under it. The DM’s office has stated in their official reply that the
maintenance of the official compound is primarily the duty of municipal corporation of
the area concerned and hence the office of the District Magistrate is not liable for the
same. The Municipal Corporation has stated that on 29.12.2020, vis major or act of God
in the form of storm and heavy rainfall resulted in the fall of the tree and hence the
corporation was not liable. Further, the tree appeared to be green and healthy during
the last inspection carried out by the municipal corporation and it was very difficult to
foresee its fall.

Mrs. Renu Narayan, wife of the deceased wants to sue the municipal corporation. Advise
her as to whether she has any claims under torts, elaborating on the elements of defense
of vis major, counter defence applicable to the plaintiff, if any, liability of the municipal
corporation and the DM’s office, if any. Support your answer with, essentials, concepts
and judicial pronouncements.

Ans. This question deals with the concepts of Negligence, misfeasance and damages.

Negligence constitutes an independent basis of tort’s liability. It means which creates a

risk of causing damage, rather than state of mind.

According to Winfield, “negligence as a tort is the breach of a legal duty to take care
which results in damage, undesired by the defendant to the plaintiff.”

This is a felonious tort as it constitutes a tort and a crime. The term ‘misfeasance’
applies to this scenario here as there has been improper performance of some lawful act,
In this question, the maintenance of the official compound is primarily the duty of the
municipal corporation. The corporation has merely stated that they carried out
inspections but have not given any proof of the measures taken to prevent the fall of the
tree which injured the plaintiff.

In the case of Municipal Corporation of Delhi v. Subhagawanti, AIR 1966 SC

1750, it was held:

“Municipal Corporation, having control of a clock tower in the city does not keep it in
proper repairs and the falling of the same results in the death of a number of persons,
the corporation would be liable for its omission to take care in the matter”.

In another similar judgement – Glasgow Corporation v. Taylor, (1922) 1 A.C. 44 -

“If a corporation which maintains a public park, fails to put proper fencing to keep
children away from a poisonous tree and a child plucks and eats the fruits of the
poisonous tree and dies, the Corporation would be liable for such omission.”

Similarly, in this case Mrs. Renu Narayan, wife of deceased can successfully sue the
municipal corporation for negligence and mismanagement on their part to maintain the
compound, due to which an old banyan tree fell, killing her husband.

The municipal corporation of the area should have periodically checked for old trees, as
their fall can pose a huge risk to the general public causing serious harm and injuries.
They have stated that the tree appeared to be green and have no proof to substantiate
the fact that whether requisite tests were run on the tree to determine the health of the
tree.

The defence of Vis Major cannot be used by the municipal corporation. Vis Major or
“Act of God”- circumstances which no human foresight can provide against any of which
human prudence is not bound to recognise the possibility and which when they do
occur, therefore are calamities that do not involve the obligation of paying for the
consequences that result from them.” Despite the fact that the rainstorm was working of
natural occurrences without any intervention from human agency, it fails to fulfil the
other pre requisite to be considered an act of god.
The other requisite is that the occurrence must be extraordinary and not one which
could be anticipated and reasonably guarded against.

Rainstorms are a common occurrence and can be reasonably anticipated and guarded
against. In the impugned matter, the rainfall lasted for about 45 minutes and in the state
of Uttar Pradesh where the rainfall is a common occurrence. This was proved earlier in

,
the judgement of Greenock Cop v. Caledonian Rly [1917] AC 556. The House of

Lords held that the rainfall was not an act of god and the defendants were liable. It
was their duty so to work as to make proprietors or occupiers on a lower level as
secure against injury as they would have been had nature not been interfered with.

Hence, the defence of Vis Major cannot be taken by the Municipal Corporation.

Due to the loss of life of Mr. Satish Narayan, Mrs. Narayan must be awarded Exemplary
Damages as there has been a great injury by reason of aggravating circumstances
accompanying the wrong. This type of damage is not only to compensate the plaintiff
but also punish the defendant for the wrong on their part.

CONCLUSION:

Mrs. Renu Narayan, wife of the deceased Mr. Satish Narayan can successfully sue the
Municipal Corporation for Negligence, misfeasance thereby resulting in the death of her
husband.

The defence of Vis Major cannot be taken by the Corporation as the pre- requisite of
reasonable foreseeability is not fulfilled. Rainstorms are a normal occurrence with
nothing extraordinary as held by previous judgements.