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2016 (5) TMI 1572 - SUPREME COURTFlood due to release of water in the dam - non-maintenance of particular level of water in the dam by the Respondents - Act of god or not - Whether the act of releasing the water from the dam would amount to negligence on the part of the Respondents or it was inevitable due to heavy rains and is to be treated as an 'act of God'? - entitlement to some compensation even in the absence of proof of actual/exact damage caused - HELD THAT:- There are two exceptions to the Rule of strict liability, which were recognized in Rylands v. Fletcher itself, viz.: (a) where it can be shown that the escape was owing to the Plaintiff's default, or (b) the escape was the consequence of vis major or the act of God. An act of God is that which is a direct, violent, sudden and irresistible act of nature as 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. Generally, those acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause will come under the category of acts of God. Examples are: storm, tempest, lightning, extraordinary fall of rain, extraordinary high tide, extraordinary severe frost, or a tidal bore which sweeps a ship in mid-water. What is important here is that it is not necessary that it should be unique or that it should happen for the first time. It is enough that it is extraordinary and such as could not reasonably be anticipated. What needs to be examined is as to whether the damage to the property of the Appellant herein was the result of an inevitable accident or unavoidable accident which could not possibly be prevented by the exercise of ordinary care, caution and skill, i.e. it was an accident physically unavoidable? - HELD THAT:- Undoubtedly, it has come on record that the overflow of dam was occasioned by torrential and heavy rains. However, as pointed out above, the Appellants specifically pleaded that the Respondent authorities did not keep the level of water in the dam sufficiently low to take care of the ensuing monsoon rains. They have, thus, set up the case that there was a negligence on the part of the Respondents in not taking care of the forthcoming monsoon season and keeping the water level in the dam at sufficiently low level to absorb the rainfall which was going to rise the water level in the dam. It is a matter of common knowledge that with advanced technology available with the Meteorological Department in the form of satellite signals etc, there is a possibility of precise prediction of the extant of rainfall in the monsoon season. In view of the principle laid down in Rylands v. Fletcher, onus was on the Respondents to discharge such a burden, and it has miserably failed to discharge the same. On that basis, we are constrained to hold that there is a negligence on the part of the Respondents which caused damage to the fields of the Appellants - In the instant case, it is found that the loss is not only on account of rain, though a part thereof can be attributed to the nature, but also due to the negligence on the part of the Respondent authorities in not taking due precautions in time which could have avoided some loss/damage, if not entirely. If damage has resulted from two or three causes, namely, from an act of God as well as a negligent act of a party, the award of damages can be apportioned to compensate only the injury that can be attributed to the negligent act of the Respondents. The Appellants claimed damages to the tune of ₹ 21,50,000, for which no specific proof/evidence is given. At the same time, we find that one Mohemmed Ikbal Mohemmedalam Galivala, who is an agriculturist, had appeared as the Plaintiffs' witness and deposed that he was having the agriculture experience for the last 20 years, particularly experience of cultivation of boar as well as its profit and income - it is not in dispute that loss has occurred and, therefore, a reasonable compensation can still be awarded. Exercising the power under Article 142 of the Constitution, it is opined that ends of justice would be met in awarding damages to the tune of ₹ 5,00,000. Appeal allowed - decided in favor of appellant.
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