G.B. Pattanaik JUDGMENT
K. Ramaswamy, J.
1. Leave granted.
2. This appeal by special leave arising from the judgment of the Division Bench of the Gujarat High Court, dated March 20, 1991 in First Appeal No. 259 of 1980, gives rise to an important question of law of liability for negligence in causing the death of one Jayantilal, the husband of the respondent No. 1 and father of the respondents Nos. 2 to 4 due to sudden fall of a tree while he was passing on the road in Kothi compound of Collectorate on his way to attend to his duties as a Clerk in the office of the Director of Industries, Rajkot.
3. The admitted facts are that the deceased Jayantilal was residing in Padadhri. He used to daily come on a railway season ticket to Rajkot to attend to his office work. On March 25,1975, while he was walking on footpath on way to his office, a road-side tree suddenly fell on him as a result of which he sustained injuries on his head and other parts of body and later died in the hospital. The respondents filed the suit for damages in a sum of Rs. 1 lakh from the appellant-Corporation. The trial Court decreed the suit for a sum of Rs. 45,000 finding that the appellant had failed in its statutory duty to check the healthy condition of trees and to protect the deceased from the tree falling on him resulting in his death On appeal, the Division Bench has held that the appellant has statutory duty to plant trees on the road-sides as also the corresponding duty to maintain trees in proper condition. While the tree was in still condition, it had suddenly fallen on the deceased Jayantilal who was passing on the footpath. The statutory duty gives rise to tortious liability on the State and as its agent, the appellant-Corporation being a statutory authority was guilty of negligence on its part in not taking care to protect the life of the deceased. The respondent cannot be called upon to prove that the tree had fallen due to appellant's negligence. Statutory obligation to maintain trees being absolute, and since the tree had fallen due to its decay, the appellant has failed to prove that the occurrence had taken place without negligence on its part. The appellant failed to make periodical inspection whether the trees were in good and healthy condition subjecting them to seasonal and periodical treatment and examination. Therefore, the appellant had not taken care to foresee the risk of the tree's falling and causing damage to the passers-by. Thus the appellant is liable to pay damages for the death of Jayantilal. The Division Bench accordingly confirmed the decree of the trial Court. Thus this appeal, by special leave.
4. Shri T.U. Mehta, learned senior counsel for the Corporation, contended that the High Court is not right in its conclusion that the appellant is having unqualified and absolute duty to maintain the trees and was guilty of not taking reasonable care in maintaining the trees in healthy condition. The burden of proof is on the respondents to prove that there was breach of duty on its part and that the occurrence had taken place for not taking reasonable care. In the nature of the things, it is difficult for the Corporation to inspect every tree to find out whether it is in a healthy or decaying conditio........