Normally, an employer owes no duty of care for the safety of his employee while the employee is proceeding to the place of employment from his house. The point, however, is whether the same rule prevails when the situation is abnormal and when as a result of outbreak of violence in the city, the law enforcement authorities promulgate curfew order requiring citizens to be within doors as the only means which can reasonably ensure their safety. In such a situation, when every citizen is expected to be within doors as a matter of safety, if an employer requires his employee, to come to the place of employment in early hours of the morning, it is reasonably foreseeable that the employee is likely to suffer injury at the hands of some ruffian while on the way to join his work unless adequate arrangements are made by the employer for the safety of the employee. Requiring an employee to come to work in such a situation is itself such an act from which harm to the employee is forseeable and the employee being closely and directly connected with the act of requiring him to join his work, the employer must have his safety in contemplation. On the principles enunciated by Lord Atkin in Donoghue v. Stevenson (quoted earlier) the employer must, in the circumstances prevailing in the instant case, be held to owe a duty of care to the employee while he was on his way to the place of work. The employer should have taken adequate care for the safety of the employee while he was on his way either by providing safe transport or some persons to accompany and guard him. In case it was not possible for the employer to make any arrangement for the safety of the employee, the employer should have temporarily closed down the business, as the only alternative of avoiding harm to the employee. It has also to be kept in view that the employee, in the instant case, unlike a police constable or a fireman, was not in such an employment where it was expected of him from the nature of employment to face the hazard of a riot.
Madhya Pradesh High Court
Madhya Pradesh State Road ... vs Mst. Basantibai And Ors. on 30 April, 1971
Equivalent citations: (1971) IILLJ 273 MP
Bench: S Bhargava, G Singh
1. This is an appeal by the defendants against whom a decree for payment of Rs. 21,500 has been passed by the Fifth Additional District Judge, Jabalpur, in favour of the plaintiffs-respondents under Section 1A of the Fatal Accidents Act.
2. The facts giving rise to the appeal are that one Chunnilal was a driver in the employment of Central Provinces Transport Services (C.P.T.S.). The C.P.T.S. was owned and run by the State Government till the formation of the Madhya Pradesh State Road Transport Corporation in 1962 under the provisions of Section 3 of the Road Transport Corporation Act, 1950. There were serious communal riots in September, 1956. During that period curfew was imposed and no person could move during curfew hours except under a pass issued by the District Authorities. On September 16, 1956, Chunnilal started from his house in the morning at about 6 O' clock for going to the Jabalpur depot of the C.P.T.S. for joining his duty. He had been given a curfew pass. Before he could reach the depot of the C.P.T.S. he was stabbed by some miscreant in the abdomen, as a result of which he died. The plaintiffs, who are his widow aged 32 years and three minor sons aged respectively 8, 4 and 1 years, instituted this suit in forma pauperis for recovery of damages under the Fatal Accidents Act. The suit was instituted against the C.P.T.S. and the State of Madhya Pradesh. During pendency of the suit, the Madhya Pradesh State Road Transport Corporation was formed and was substituted as defendant in place of the C.P.T.S. The case of the plaintiffs was that the management of the C.P.T.S. was negligent in not providing adequate arrangement for the safety of the deceased Chunnilal while going to join his duty as a result of which he was stabbed and died. It was also alleged that the accident arose out of and in the course of the employment. The plaintiffs claimed damages against both the defendants to the extent of Rs. 29,000. The defendants denied that the management of C.P.T.S. was in any way negligent or that the accident arose out of and in the course of employment. The circumstances in which Chunnilal died were also denied. It was pleaded by the State of Madhya Pradesh in a separate written statement that the liabilities of the C.P.T.S. were taken over by the Madhya Pradesh State Road Transport Corporation, and that the State, in any case, was not liable. The trial Court held that the management of the C.P.T.S. was negligent in not providing safety arrangement for the deceased while going to join his duty, and that the accident arose out of and in the course of employment. The trial Court assessed the damages to the extent of Rs. 21,500 and held that both the defendants were liable for payment of that amount to the plaintiffs.
3. In this appeal, learned Counsel for the appellants first disputed the circumstances under which Chunnilal died. It is, however, not disputed that from a few days before September 16, 1956, as also on that date, the situation in the city was not normal because of the communal riots and the District Authorities, had imposed curfew restricting movement of citizens without valid pass. It is also not disputed that Chunnilal was issued a curfew pass. The evidence of plaintiff No. 1 Basantibai, the widow of Chunnilal, is that on the morning of September 16 Chunnilal left his house for joining his duty. Thereafter, she came to know that he was stabbed and went to the hospital where he died. She also stated that Chunnilal had started at about 5-30 in the morning from the house. Gurudayal Singh (P.W. 2) stated that at about 6-00 or 6-30 a.m. he saw Chunnilal in a rickshaw at the C.P.T.S. bus stand. At that time the rickshaw-wala told him that some one stabbed Chunnilal in the abdomen. Gulab Singh (P.W. 3), who is also an employee of the C.P.T.S., Jabalpur, clearly stated that during the period of riots all the drivers including Chunnilal and the witness were required to reach the C.P.T.S depot at 6-00 or 6-30 a.m. where they were assigned different duties. He also stated that at about 6-30 a.m. Chunnilal came in a rickshaw to the depot; he, at that time, had stab injury in his stomach and was almost unconscious. The witness further stated that the curfew was imposed from four or five days before the date of the incident and the drivers were given passes for coming on duty. In addition to this evidence, there is a letter (Ex. D-4) issued by the Director of Transport Services, Madhya Pradesh, to the General Manager, C.P.T.S. in which it is mentioned that Chunnilal died in communal riots while on duty.
4. From all this evidence, the picture that emerges is that, due to communal riots, the movements of individuals in the city were not safe and, therefore, the district authorities had imposed curfew. Chunnilal and other drivers of the C.P.T.S. were issued passes permitting them to go to the C.P.T.S. depot for their duty. The drivers were required to attend the depot at about 6-00 or 6-30 a.m. where they were assigned work for the day. Chunnilal started from his house at about 5-30 or 6-00 a.m. for reporting at the depot. He was seen at the depot at about 6-00 or 6-30 a.m. with a stab injury in his abdomen. In all probability, he was injured while on way by some miscreant. From depot he was taken to the hospital, where he died.
5. The next and the important question is, whether on these facts, the management of the C.P.T.S. was liable under the tort of negligence for not providing any arrangement for the safety of Chunnilal while coming from his house to join duty. It is accepted by the appellants that no such arrangement was made. The contention, however, is that there was no duty on the management to make any such arrangement and, therefore, the appellants were not liable in negligence. It was also argued for the appellants that in the absence of any definite authority imposing or recognising a duty to take care in a situation as found in the instant case, existence of a duty cannot be inferred.
6. Negligence as a tort is defined by Win-field as "the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff". The existence of a duty-situation or a duty to take care is, therefore, essential before a person can be held liable in negligence. The existence of a duty-situation in a given case has normally to be decided on the basis of previous decisions. If previous decisions of recognised authority have accepted the existence of a duty in certain situations or have clearly ruled its non-existence, the decisions will normally be followed in subsequent cases where similar situations arise for consideration. The difficulty arises, as in the instant case, where there is no direct precedent to guide. The Judges then have to decide whether in the given situation, for which no precedent exists, a duty should be recognised. The general principle from which guidance can be sought in making the choice is to be found in the classical words of Lord Atkin:
At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa", is no doubt based upon a general public sentiment of moral wrong doing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer's question, who is my neighbour, receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be--persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.": Donoghue v. Stevenson [1932] A.C 562 at p.
580.
7. It is now an obsolete view that "the duty to be careful only exists where the wisdom of our ancestors has decreed that it shall exist". In Donoghue v. Stevenson [1932] A.C. 562 itself the House of Lords recognised a new duty-situation and a manufacturer was held to owe a duty of care not only to the wholesale dealer, but also to the ultimate consumer of his product. As stated by Lord Macmillan in that case:
The conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed." [p. 619].
Then in Hedley Bryne and Co. Ltd v. Heller and Partners Ltd. [1964] A.C. 465 (H.L.), again, a new duty-situation was recognised. It was held that the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care and that a negligent, though honest, misrepresentation in breach of this duty may give rise to an action for damages apart from contract or any fiduciary relationship. Lord Pearce in that case said:
How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the Courts' assessment of the demands of society for protection from the carelessness of others." [p. 536].
The principles governing the recognition of new duty-situations were more recently considered in the case of Home Office v. Dorset Yacht Co., Ltd. [1970] All E. R. 294 (HL). In that case some Borstal trainees escaped due to the negligence of Borstal Officers and caused damages to a yacht. The owner of the yacht sued the Home Office for damages and a preliminary issue was raised whether on the facts pleaded, the Home Office or its servants owed any duty of care to the owner of the yacht. It was held that the causing of damage to the yacht by the Borstal trainees ought to have been foreseen by the Borstal Officers as likely to occur if they failed to exercise proper control or supervision and, therefore, the officers prima facie owed a duty of care to the owner of the yacht. It was argued in that case that there was virtually no authority for imposing a duty. This argument was rejected and in that connection, Lord Reid made the following pertinent observations:
About the beginning of this century most eminent lawyers thought that there were a number of separate torts involving negligence each with its own rules, and they were most unwilling to add more. They were of course aware from a number of leading cases that in the past the Courts had from time to time recognised new duties and new grounds of action. But the heroic age was over, it was time to cultivate certainty and security in the law; the categories of negligence were virtually closed. The learned Attorney-General invited us to return to those halcyon days, but, attractive though it may be, I cannot accede to his invitation.
In later years there has been a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges one should ask not whether it is covered by authority but whether recognised principles apply to it. Donoghue v. Stevenson may be recorded as a milestone, and the well-known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.
8. These cases clearly establish that a new duty-situation can be recognised by Courts and that in determining whether in a given situation not covered by authority, a duty to take care exists, guidance is to be taken from the principles stated by Lord Atkin in Donoghue v. Stevenson (supra) which we have earlier extracted. We have, therefore, no hesitation in rejecting the argument that as no previous case has recognised a duty to take care in the situation prevailing in the instant case, the existence of a duty to take care cannot, for the first time, be recognised in this case.
9. Now, coming to the point whether a duty-situation existed in the circumstances of the instant case, it cannot be denied that an employer owes a duty of care for the safety of his employees. The general scope of this duty has been stated as follows:
The obligation is threefold--'the provision of a competent staff of men, adequate material and a proper system and effective supervision'. To these should be added; a safe place of work." [Clerk and Lindsell, 13th edition, p. 551.]
Normally, an employer owes no duty of care for the safety of his employee while the employee is proceeding to the place of employment from his house. The point, however, is whether the same rule prevails when the situation is abnormal and when as a result of outbreak of violence in the city, the law enforcement authorities promulgate curfew order requiring citizens to be within doors as the only means which can reasonably ensure their safety. In such a situation, when every citizen is expected to be within doors as a matter of safety, if an employer requires his employee, to come to the place of employment in early hours of the morning, it is reasonably foreseeable that the employee is likely to suffer injury at the hands of some ruffian while on the way to join his work unless adequate arrangements are made by the employer for the safety of the employee. Requiring an employee to come to work in such a situation is itself such an act from which harm to the employee is forseeable and the employee being closely and directly connected with the act of requiring him to join his work, the employer must have his safety in contemplation. On the principles enunciated by Lord Atkin in Donoghue v. Stevenson (quoted earlier) the employer must, in the circumstances prevailing in the instant case, be held to owe a duty of care to the employee while he was on his way to the place of work. The employer should have taken adequate care for the safety of the employee while he was on his way either by providing safe transport or some persons to accompany and guard him. In case it was not possible for the employer to make any arrangement for the safety of the employee, the employer should have temporarily closed down the business, as the only alternative of avoiding harm to the employee. It has also to be kept in view that the employee, in the instant case, unlike a police constable or a fireman, was not in such an employment where it was expected of him from the nature of employment to face the hazard of a riot.
10. From all these considerations, we are of opinion that in the facts and circumstances of this case, there existed a duty-situation and the management of the C.P.T.S. was liable in negligence in not taking adequate precautions for the safety of the deceased, either by making arrangement for his protection while he was on his way to join his work, or by closing the business temporarily, if no such arrangement for the protection of the deceased was possible.
11. The C.P.T.S. was a commercial undertaking owned by the State of Madhya Pradesh. On the principles stated in the Full Bench case of State of Madhya Pradesh v. Denial [1970] M.P.L.J. 148, (see proposition No. 4 in para. 21, p. 153), the State was clearly liable for. the negligence of the officers managing the undertaking.
12. The last question in this appeal which remains to be decided is the quantum of damages. The principles governing assessment of damages were stated by a Division Bench of this Court in Kamla Devi v. Kishanchand [1970] M.P.L.J. 273, at p. 278 as under:
The assessment of damages in ordinary cases thus resolves into estimating the proper annual dependency--the multiplicand--and selecting the number of years' purchase--the multiplier. There is not much difficulty in fixing the figure of annual dependency when the deceased is in employment with a steady salary which is likely to continue throughout his working life and when he does not leave behind any property likely to give any income to the dependents. The annual dependency at the time of his death may in such cases be taken as the basic or datum figure representing the multiplicand. As regards the selection of the number of years' purchase the multiplier, regard is to be had to the estimated remainder of working life of the deceased, the probable duration of dependency of the dependents and the fact that instead of yearly payments a lump-sum is to be awarded. It has been said that in an average case where the parties are not too old or ailing, the multiplier tends to be in the region of thirteen to eighteen.
13. The deceased Chunnilal was a young man of 32 years. He was earning about Rs. 200 p.m. and but for his death would have continued to earn the same amount till at least the age of 55. The plaintiffs, who are his dependents, are his widow aged 32 and three minor sons aged 8, 4 and 1 years. It can be reasonably expected that the deceased while he was alive must have been spending nearly Rs. 125 p.m. for maintenance of the dependants. The annual dependency thus works out to Rs. 1,500. Applying to it the multiplier of 15, the compensation works out to Rs. 22,500. The amount awarded by the trial Court is Rs. 21,500, which cannot in any way be said to be high.
14. It was also argued by the learned Counsel for the respondents that the injury was caused to the deceased Chunnilal by accident arising out of and in the course of his employment and the respondents were, in the alternative, entitled to recover compensation payable under the Workmen's Compensation Act, 1923. Since we are upholding the award of compensation under the Fatal Accidents Act, it is not necessary to consider this alternative argument put forward for the respondents.
15. The appeal fails and is dismissed with costs.
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