1. Though this second appeal has been argued at some length and some decisions have also been cited. I do not find much force in the case. The second appeal arises out of a suit for damages by the first respondent, a minor represented by his father, for injuries caused to him by the explosion of a minnal gundu at the Trichur Pooram in April 1959. The second respondent is the 20th defendant, the independent contractor who attended to the exhibition of fire works; and the appellants are some of the members of the Pooram Celebration Committee They were members of the Paramekkavu Devaswom Committee as well alone with some others who were also impleaded as defendants in the suit: I may add that the Paramekkavu Devaswom itself was the first defendant. Both the lower courts have decreed the suit; and there is no dispute now regarding the quantum of damages or regarding the finding that the injury was caused by the negligence of the 20th defendant. The trial court made the appellants and the Devaswom liable: it held that it was the Celebration Committee that was responsible for the conduct of the Pooram and not the Devaswom Committee. On appeal the District Judge held that in view of the finding of the trial judge that the Devaswom Committee was not responsible, the Devaswom could not also be made responsible. Ultimately, the liability was confined to the appellants, who were members of the Pooram Celebration Committee.
2. A minnal gundu is an explosive made out of a coconut shell by filling it with an explosive substance. The coconut shell itself is placed in a bamboo tube with gun powder beneath; and the tube is kept upright tied to an iron peg driven into the ground. When the gun powder in the tube is ignited through a small hole on the side of the tube, the coconut shell is ejected vertically several feet into the sky where it explodes producing a flash or lightning like light and a loud report. Two processions of elephants bearing the deity or Poorams organised by two Devaswoms, the Paramekkavu and the Thiruvambadi Devaswoms, meet at the southern gopuram of the Vadakkunnatha Temple in the evening at about 5 or 5.30 in the Thekkumkad Maidan around the temple; and just as the elephant of the Paramekkavu Devaswom bearing the deity emerges through the southern gopuram before this important event, a few hundreds of olappadakkams interspersed with about 20 or 25 minnal gundus are fired. (Olappadakams are a type of fire works made with gun powder wrapped in small parcels of palm leaves.) The accident is said to have happened when this was done.
3. The finding of both the lower courts is that the minnal gundu instead of rising into the sky and exploding there, ran at a tangent fell amidst the crowd and exploded causing serious injuries to the first respondent. The further finding is that the accident was caused by the negligence of the 20th defendant in not properly securing the bamboo tube containing the coconut shell to the iron peg and was also due to his negligence in not choosing strong tubes, because the tube in question burst on the basis of these findings which cannot be questioned, the accident could have happened in one of two ways: either the coconut shell containing the explosive substance was not ejected sufficiently high into the sky due to the burst-ins of the bamboo tube, so that it fell among the crowd before it burst; or it ran at a tangent due to the tilting of the tube and exploded in the midst of the crowd. In either event, the negligence was of the 20th defendant, the independant contractor.
4. It may not probably be necessary to consider, in view of the finding that the 20th defendant was negligent, whether the principle of res ipsa loquitur applies to this case. Even if the negligence of the 20th defendant is not established, the principle that the thing itself speaks must apply to this case, because minnal gundus are normally to fly sufficiently high into the sky perpendicularly before they explode and not to fly at a tangent, fall amidst of the crowd and burst. Since the gundu in question fell in the midst of the crowd and burst, there must have been negligence on the part of the 20th defendant, who was responsible for making and firing it. This presumption of law is rebuttable; but there is admittedly no evidence to rebut it. There-lore, even on this principle the finding of the power courts that the 20th defendant was negligent can be sustained.
5. The further question for consideration is whether the appellants, who engaged the independent contractor, would also be liable. The minnal gundu is an explosive and is therefore an “extra-hazardous” object; and persons who use such an object, which, in its very nature, involves special danger to others, must be liable for the negligence of their independent contractor. The duty to keep such a substance without causing injury to others is a “non-delegable” duty: the appellants could not have escaped liability for the breach of such a duty by engaging an independent contractor. The liability of the appellants can also be based on the rule enunciated by Blackburn, J. in the famous case of Rylands v. Fletcher. (1868-3 HL 330). The rule is that:
“the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”
6. The person's liability arising out of such “non-natural” user of the land is absolute, or strict as some decisions say
7. Sri. V.K.K Menon, on behalf of the appellants, argues that in this case there was no “non-natural” user of the land where the minnal gundus were exploded his argument is that it is only a natural user of the Thekkumkad Maidan during the day of the Pooram festival to collect minnal gundus and explode them there. I do not agree, because under the Indian Explosives Act for making and storing explosive substances even on the Thekkumkad Maidan on the Pooram day licences have to be taken from the prescribed authorities. It is admitted that for exhibiting fire works permission has to be obtained from the District Magistrate. The accident took place in this case at 5.30 p.m when the two Poorams organised by the two Devaswoms were about to meet before the southern gopuram of the temple. It is also admitted that for the exhibition of fire works during the day no licence was taken, though a licence was taken for the night. It is therefore obvious that this argument of Mr. V.K.K Menon has no substance.
8. The next contention urged by the counsel of the appellants is that the principle of volunti non fit injuria must apply to the case. The argument is that since the first respondent voluntarily came to witness the Pooram and the fire works, he is a volunteer and therefore not entitled to damages. What the evidence discloses is that the volunteers who helped the 20th defendant kept a cordon round a particular area and the gundus were kept and exploded within that area. The gundu that caused injury to the first respondent fell outside this area and exploded. The counsel argues that even this would not have made the first respondent any the less a volunteer. I have asked Mr. V.K.K Menon whether every one in the big crowd of a few lakhs witnessing the fire works anywhere in the Thekkumkad Maidan would be a volunteer, and he has answered in the affirmative. This answer alone is sufficient to reject this contention if the first respondent entered the area within the cordon and sustained injuries, he might be considered to be a volunteer: but to argue that every one who stood anywhere in the Thekkumkad Maidan, a very extensive and large area open to the public, is a volunteer is to contend for something bordering on the preposterous.
9. The third argument of Mr. V.K.K Menon is that the Pooram was conducted for the benefit of the public and those who witnessed the fire works were also benefited, so that no one in the crowd could have claimed damages if he was injured by the fire works in support of this argument some decisions have been cited, where water, gas etc. were stored for the common use of several tenants and the landlord in a building and such water or gas escaped and caused damage to one of the tenants. Obviously these cases cannot have any application to the case before me. I am of opinion that the Pooram is not conducted for the benefit of everyone who comes there to witness the fire works in the same sense as water or gas is stored for the common use of the tenant and the landlord living in adjoining tenements or flats therefore, this argument has also to be rejected
10. Lastly it is urged that since the other defendants who were members of the Devaswom Committee and the Devaswom were held not liable the appellants who were members of the Pooram Committee should also have been exonerated. If the Devaswom was conducting the Pooram and if it can be said that the 20th defendant was engaged by the Devaswom, then the Devaswom should also have been made liable along with the members of the Devaswom Committee, who represented the Devaswom. However, the trial court felt that the Pooram was being conducted by the Celebration Committee, who it was that engaged the independent contractor. In this view, it refused to grant a decree against the members of the Devaswom Committee: still it passed a decree against the Devaswom. The lower appellate court exonerated the Devaswom only on the ground that since there was no appeal by the first respondent against the members of the Devaswom Committee, the Devaswom itself could not be made liable. In fact, the Devaswom, the members of the Devaswom Committee, the members of the Celebration Committee including the appellants and the 20th defendant were all joint tortfeasors and each of them was jointly and severally liable in damages. Therefore, the omission to grant a decree against some of the joint tortfeasors is no reason for exonerating the others.
11. I do not think I need refer to the decisions cited by the counsel on both sides: the position in law appears to be clear beyond doubt. The concurrent decision of the lower courts is confirmed; and the second appeal is dismissed with costs of the first respondent.
AGJ/D.V.C
12. Appeal dismissed.
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