High Court
Case Details
WP(C) 2953/2008 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER
Legal Reasoning
Heard Mr. SK Barkataki, learned counsel appearing on behalf of the petit ioner. Also heard Ms HM Phukan, learned State counsel appearing for the responde nts.
Decision
2. This writ petition has been filed by the petitioner whose husband ended his life unfortunately at the Assam State Zoo due to fatal attack by two enclose d Royal Bengal Tigers. The pleading of the writ petition reveals that on 19.12.2 007, the husband of the petitioner Late Jayprakash Bezbaruah along with the peti tioner and their two sons as well as a relative went to visit the State Zoo by p urchasing tickets. As they were passing by the enclosures where the tigers are k ept they could see a huge crowd gathered there. At that time, the husband of the petitioner who was carrying a still camera wanted to take few snaps of the tige r went in front of the said gathering in order to catch the tigers in his camera . He took a photograph of one tiger and after taking that photograph, he saw ano ther tiger approaching towards the grill of the enclosure in front of which the husband of the petitioner along with other visitors were standing. As he was abo ut to take the photograph of the 2nd tiger, the tiger came roaring towards the g rill of the enclosure due to which there was an abrupt movement among the crowd and such physical movement of the crowd pushed Bezbaruah forward towards the enc losure while he was viewing the tiger through camera lens as a result of which t he husband of the petitioner fell down in a bend position in front of the grill of the enclosure with the left hand resting inside the grill. The camera also fe ll on the ground outside the enclosure. As soon as the shoulder of Joyprakash re sted in the grill, one of the tiger caught hold of the hand of the husband of th e petitioner with his big jaws and as Bezbaruah made desperate attempt to free h imself from the said tiger, another tiger also came and joined the former. While the tiger dragged the husband of the petitioner by holding his left shoulder, n o rescue staff from the zoo was seen by the son of the petitioner. The eldest so n himself tried to rescue his father from the clutches of the tiger by pulling t he belt of his father’s trouser from the back and thereafter pulling his legs. T he effort of the son was not enough and he shouted for help but there was nobody to help him to save his father. In the meantime, the tigers on the other hand h ad successfully torn the left hand of their father from the shoulder joint with their sharp teeth due to which Bezbaruah started bleeding profusely. Apart from that, he was also bleeding profusely from injuries caused in his face, head and neck by the big claws of the enclosed tigers. At that point of time, some person s came to help his son with lathi to free and pull back their father from the cl utches of the tigers and with such assistance, their father was freed from the j aws of the tiger. However, till then, enough injuries were sustained by their fa ther and there was heavy bleeding. Thereafter, the sons as well as other visitor s asked the zoo personnel present at the site for arranging an ambulance to carr y the victim immediately to a hospital. Though they waited for more than half an hour, no ambulance could be seen coming to their rescue. At last, they had to b ring their father to a hospital with the help of a Maruti Van. Such delay in arr anging a vehicle caused heavy loss of blood for which the condition of the husba nd of the petitioner deteriorated and he ultimately succumbed to his injuries an d he was brought dead to the hospital. 3. It is the allegation of the petitioner that sufficient safety measures a nd warning signals was not put up in the zoo. Moreover, the openings of the gril l of the enclosure are wide enough through which the tigers can pass their legs without any hurdle. Further, there is no iron mesh upon a man’s height across th e grill of the tigers’ enclosure. There are grills over the permanent wall of ab out 3 ft. height and that a tiger from behind the wall could easily attack a per son. It is further alleged that had there been an ambulance at service in the si te of the accident through which the injured husband of the petitioner could be immediately rushed to hospital, the unfortunate death of husband of the petition er could have been averted. That with regard to the statements made in paragraph 3 of the writ petit 4. Per contra, an affidavit-in-opposition has been filed by the Respondent No. 3, the Divisional Forest Officer, Assam, State Zoo Division. The factual ass ertion of the respondents are available at Paragraph 4 of the said affidavit whi ch is reproduced herein below: (cid:28)4. ion, the deponent begs to state that on 19.12.07 one Shri Joyprakash Bezbaruah a ged about 50 years visited the Assam State Zoo along with his wife and children. They went to Tiger enclosure of the Zoo to see the Tigers on the day. During th eir visit to the tiger enclosure many other visitors were also present near the tiger enclosure, in the specified tiger view point, for viewing the tigers. Out of 9 tigers housed in the Zoo, one pair of tiger is kept in an enclosure for pub lic viewing. There is a specified viewpoints made available for visitors in safe r location near the enclosure to view the tigers. The tiger viewpoint is located in a safer location surrounded by barrier. That apart, there is stand of barrie r made up of iron around the grill wall of the enclosure, so that, visitors don’ t go closure to the enclosure for their safety. One person namely Shri Bhagirath Baishya, was posted at the enclosure to look after the enclosure and to control the visitors on that day. However, at the time of the incident three more offic ers and staff of the zoo namely Dr. Bijoy Kr. Gogoi, Shri Joynur Ali and Sri Bap ukon Baishya were also present near the enclosure to attend some other works. Sr i Joyprakash Bezbaruah who visited the site of the enclosure together with his f amily to view the tigers did not view the tiger from the specified tiger view po int but tried to cross the stand of barrier of the enclosure with a camera to ta ke photograph of the tiger. The staff present at the enclosure warned him by sho uting not to cross the nattier. But, ignoring the warning of the staff, the pers on crossed the barrier and put his left hand inside the enclosure to take photog raph with his camera. All of a sudden the tigress of the enclosure attack and ca ught hold of his left hand with her mouth. Immediately the staff posted in the e nclosure and the visitors present there started shouting. In the meantime, the o ther tiger of the enclosure also joined and started mauling the victim. The staf f posted at the enclosure tried to chase the tiger by hitting with a bamboo. Hea ring the shouting of the people all other staff available near the enclosure rus hed to the spot and also tried to chase the tigers. The tiger unfortunately seve red the left hand of the victim; as a result, the victim started bleeding profus ely. Getting information from Dr. B.K. Gogoi from the site of incident, regardin g the incident over phone, I Shri N. Mahanta, Divisional Forest Officer, Assam S tate Zoo rushed to the spot. Along with two of our officials I took the victim t ogether with his wife to the Gauhati Medical College Hospital immediately in a d epartmental Maruti Van. In the Guwahati Medical College Hospital Doctors attende d the injured person and declared him dead. (cid:29) 5. While admitting that there was no ambulance at the State Zoo, the Respon dent No. 3 has asserted that he himself rushed to the spot immediately with the departmental Maruti Van and took the victim with his wife to the Gauhati Medical College & Hospital (’GMCH’ for short). It is further stated that there is stand of barriers made up of iron round the grill wall of the enclosure so that visit ors don’t go closure to the enclosure for their safety. There is always a staff deployed in the enclosure to look after the animals as well as the visitors. Fur ther, there are several warning signage in different locations in the zoo direct ing to see the animals from distant places and not to go closure to the enclosur es. These apart, there are signage on relevant sections of Wildlife Protection A ct, 1972 in different locations directing not to feed animals etc. It is also st ated that the enclosure is there for last several years and there is no instance of incident of that kind that tigers ever put out his legs out of the enclosure and caused harm to anybody including the Animal Keepers who are all the time wo rking and looking after the animals. However, as precautionary measures, there i s a stand barrier made up of iron, created all round the grill wall for safety o f the visitors. Those apart, visitors are not to go near the stand of barrier as there is specified (cid:28)tiger viewing point (cid:29) to view the tigers. 6. It is the specific case of the Zoo authorities that on the day of the in cident also there were sufficient staff deployed in the enclosure to look after the visitors as well as the animals and that had the victim followed the warning signals put at the different locations of the Zoo and the instruction of the Zo o personnel, the unfortunate incident would not have happened. 7. the denials made by the Respondent No. 3 on oath. No rejoinder affidavit has been filed by the writ petitioner to counter 8. Howsoever tragic the death of a human being may be and howsoever severe the loss of petitioner might have been due to the untimely death of her husband due to such tragic incident, a writ court while deciding the question of neglige nce and liability of the respondents is circumscribed within the facts which are brought before it on oath. In the instant case, the assertions of the writ peti tioner regarding factors imputing negligence and failure on the part of the resp ondents and its resultant nexus to the death of the husband of the petitioner ar e not only disputed but denied by the respondent No. 3. That apart there are mat erials brought before this Court by the Respondent No. 3 by his Affidavit to ref ute the allegation of any failure of duty by the Zoo authorities. The statements made regarding putting up of sufficient warning signals, adequate barriers so a s to debar any onlooker from approaching the tigers’ enclosure within vulnerable distance and posting of sufficient guards by the Zoo authorities are not encoun tered by the writ petitioner. The pleadings on record rather suggests that the d eceased had voluntarily exposed himself to the danger by coming within closed pr oximity of the tigers’ enclosure, that too from a place not fixed as visitors’ g allery, thereby bringing himself within the attack range of the tigers which wer e admittedly on the other side of the iron fence of the enclosure. The facts at hand leading to the death of the husband of the petitioner are unfortunate but t he same do not lead this Court to even a preponderance of probability regarding existence of any negligence of failure of duty on the part of the zoo authoritie s so as to hold them liable for the death of the husband of the petitioner and c onsequently to pay her any compensation for the same. Even by a generous extensi on of the equitable jurisdiction of this Court, the mandate of Article 226 of th e Constitution of India does not permit a writ court to translate human sympathy to impute negligence and failure of duty on the part of State authorities so as to entail the State exchequer or even personal coffer of an officer to compensa te the loss of the writ petitioner. 9. A judgment of the Supreme Court of India reported in 1987 SCR (1) 819 (M C Mehta and anr. vs. Union of India and Ors.), has been pressed at service by Mr . Barkataki, learned counsel for the petitioner. Apart from the facts of the sai d case being entirely different, i.e., the liability of an industrial unit carry ing inherently dangerous activity to maintain safety measures and its liability to compensate persons harmed on account of such hazardous or inherently dangerou s activity carried out by the enterprise, in the said case the Apex Court held t hat when a person is harmed due to an accident in the said industrial unit by wa y of escape of toxic gas, the said enterprise is strictly and absolutely liable to compensate all those who are affected by the accident. The facts of the prese nt case at hand do not lead this Court to any legally permissible conclusion reg arding any accident caused due to any negligence on the part of the respondent a uthorities. The question can be formulated and answered in yet another manner. Wheth 10. In the next judgment pressed by the writ petitioner as reported in AIR 2 001 Delhi 140 (Nitin Walia -vs- Union of India & Ors.), there was clear conclusi on of negligence on the part of the Zoo authorities due to which a three years t oddler was killed. The exact words appearing in paragraph 13 of the said judgmen t may be beneficially quoted herein below: (cid:28)13. er it was the duty of the respondents to take care i.e. to protect the visitors from any such mishap and, if so, whether the respondents observed the standard o f care required in the circumstances of the case. It cannot be denied nor was it denied by the respondents that it was and is their duty to ensure that the anim als kept in the Zoo, particularly, dangerous animals, are confined behind the ba rs in such a manner that they do not cause any injury, or harm to the persons wh o visits the Zoo. The principle propounded by Lord Atkin in Donoghue v. Stevenso n, (1932) AC 562 has been expanded from time to time by adding new duty to the e xisting list of admitted duties. The neighbour principle formulated in the afore said judgment was extended to the cases where persons who suffer injury while on another’s premises were held entitled to claim damages from the occupier of the premises, particularly, in the case of dangerous premises because the duty of o ccupier of dangerous premises is to take care is more in contra-distinction to t he case where plaintiff who is injured on the highway and adjoining land. The oc cupier of the premises is expected to reasonable foresee the danger to which the premises are exposed to the visitors and therefore, he is expected to take prop er care to ensure that the visitors to this premises do not suffer injury. We ha ve no hesitation in extending this principle to the case in hand. As stated abov e, as a reasonable person respondents were required to keep in mind that there a re dangerous animals kept in the Zoo and that visitors may include small and ver y young children as well who may not be in a position to understand as to what i s right or what is wrong. The appellant, in this case, was only three years of a ge. The tigress inside the cage was attractive and tempting to such a child and it was in fact an invitation to him to respond to its move. (cid:28)In the case of an i nfant there are moral as well as physical traps. There may, accordingly, be a du ty towards infants nor merely not to die pitfalls for them, but not to lead them into temptation (cid:29) (Lathanm v. Johnson, (1913) KB 398). There is nothing upon whi ch a toddler cannot hurt itself. The danger may be obvious to its eyes but conce aled from its understanding. Therefore, the respondents ought to have foreseen a danger in not putting the barbed wire. The standard of duty required in the cir cumstances was much more and respondent clearly failed in their duty. Only after the incident respondents realized their failure and made amends to ensure that no such incident recurs. (cid:29) The facts at hand, I am afraid, do not lead this Court to such conclusion of lap se on the part of the authorities so as to make them liable to pay damages/compe nsation. The third case i.e., Cowles V. Balac, reported in 2005 Can LII 2038 (ON 11. SC) relates to an incident which happened in the African Lion Safari where there is no barrier demarcating the visitors from the animals. A reading of the judgm ent revels the elaborate evidence on record through which the court could apprec iate the contention regarding the sustainability of award of damage to the victi m and thereafter could proceed to consider the liability of the respondent; ulti mately culminating in payment of compensation under the Insurance Act etc. There is also a clear finding that the Lion Safari authorities failed to provide adeq uate staff while displaying the tigers. This judgment does not render any assist ance to this court while deciding the case, far less augment the case of the wri t petitioner. 12. For all that has been discussed above, this Court is constrained to clos e this proceeding without granting the relief as prayed for. However, the interi m order passed on 14.9.2011 by this Court for payment of compensation of Rs.1,00 ,000/- to the petitioner is made absolute considering the tragic circumstances l eading to the filing of the writ petition. It has been submitted by Mr. Barkataki that pursuant to the order dated 13. 14.9.2011, the State respondent has deposited an amount of Rs.1,00,000/- on 23.2 .2012 vide Bankers Cheque No.184707 dated 20.1.2012 (State Bank of India) before the Registry of this Court, but the same has not been disbursed to the petition er till date. Registry is, therefore, directed to release the aforesaid amount t o the writ petitioner forthwith with interest accrued thereon on being proper id entification and verification of the petitioner by her engaged counsel to the sa tisfaction of the Registrar General of this Court. Needless to say that nothing shall debar the writ petitioner to approach appropriate forum of law to adduce p roper evidence and claim damages and compensation, as permissible under the law of the land. 14. sts. The writ petition is disposed of finally on the aforesaid grounds. No co