What constitutes Negligence

Supreme Court of India
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Author: .....J.
Bench: T.S. Thakur, Gyan Sudha Misra
 REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICITION
 CRIMINAL APPEAL NO.597 OF 2010
Sushil Ansal Appellant
 Versus
State Through CBI Respondent
(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)
 J U D G M E N T
T.S. THAKUR, J.

Enforcement of laws is as important as their enactment, especially where such laws deal with safety
and security of citizens and create continuing obligations that call for constant vigil by those
entrusted with their administration. Callous indifference and apathy, extraneous influence or
considerations and the cynical Chalta Hai attitude more often than not costs the society dearly in
man-made tragedies whether in the form of fire incidents, collapse of buildings and bridges,
poisonous gas leaks or the like. Short-lived media attention followed by investigations that at times
leave the end result flawed and a long winding criminal trial in which the witnesses predecease their
depositions or switch sides under pressure or for gain and where even the victims or their families
lose interest brings the sad saga to an uncertain end. A somewhat similar story is presented in these
appeals by special leave arising out of a common judgment and order dated 19th December, 2008
passed by a Single Judge of High Court of Delhi whereby a batch of criminal appeals filed by those
convicted by the trial Court for commission of different offences and the sentences awarded to them
were disposed of alongwith criminal revision petition no.17 of 2008 filed by the Association of
Victims of Uphaar Tragedy (hereinafter, AVUT) that led to the death of 59 persons besides injuries
to nearly 100 others

...
(1) The Trial Court held that the management of the cinema had disregarded the requirements of
law and the sanctioned plan, thereby putting the lives of the patrons at risk. The Court found that
there was nothing on record to show that the Ansal brothers (A-1 and A-2) or the Managers of the
cinema for that matter had impressed upon the contractor appointed by them the legal and safety
requirements of maintaining a safe distance between vehicles and the transformer room when they
entered into a parking contract in the year 1988. This, according to the Court, was gross negligence
that contributed to the death of a large number of patrons and injuries to many more. T

....
(j) That the owners of Uphaar Cinema who carried out the structural deviations, the officers of the
MCD who granted 'No Objection certificates for running the cinema hall for the years 1995-96 and
1996-97 respectively despite the structural deviations existing in the cinema building and the
managers of Uphaar Cinema who turned a blind eye to the said deviations and the threat to public
safety caused by them, were the direct cause of death of 59 persons and 100 injured in the cinema
hall. The act of the gatekeeper in fleeing from the cinema hall without unbolting the door of balcony
was also found to be a direct cause of the death of persons inside the balcony

.....
xiii) The managers being directly responsible for the daily functioning of the cinema failed in their
duty to ensure the safety of the patrons seated inside. They grossly neglected their duties to take
measures to prevent fires and follow fire safety regulations, which caused the death of patrons
trapped inside.
xiv) It is writ large that the failure of the owners and management of Uphaar Cinema to adhere to
provisions relating to fire safety caused the death/injury of those who had gone to view the film in
the cinema

....


37. The High Court on the above findings upheld the conviction of Sushil Ansal (A-1) and Gopal
Ansal (A-2). It also upheld the conviction of H.S. Panwar (A-15) for offences punishable under
Sections 304A, 337 and 338 read with Section 36 of the IPC but reduced the sentence awarded to
them under Section 304A to one year rigorous imprisonment without interfering with the fine
imposed by the Trial Court. The High Court also reduced the sentence awarded to the
aforementioned three appellants under Section 337 to three months rigorous imprisonment and
under Section 338 to one year rigorous imprisonment with the direction that the sentences shall run
concurrently including the sentence awarded to Ansal brothers (A-1 and A-2) under Section 14 of the
Cinematograph Act for which too the said two accused persons were convicted.

.....
43. Since this question has several facets to it, we propose to deal with the same under the following
sub-headings to ensure clarity and avoid any possible confusion or repetition:
i) Scope of a criminal appeal by special leave
ii) Rash or Negligent  Meaning of
iii) What constitutes negligence?
iv) Difference between Negligence in civil actions and that in criminal cases.
v) The doctrine of causa causans.
vi) Whether Ansal brothers were occupiers of Uphaar Cinema building?
vii) Degree and nature of care expected of an occupier of a cinema building.
viii) Whether the accused were negligent and if so, whether the negligence was gross?
ix) Contentions urged in defence and the findings thereon.

......

iii) What constitutes Negligence?:
50. The expression negligence has also not been defined in the Penal Code, but, that has not
deterred the Courts from giving what has been widely acknowledged as a reasonably acceptable
meaning to the term. We may before referring to the judicial pronouncements on the subject refer to
the dictionary meaning of the term negligence.
51. Blacks Law Dictionary defines negligence as under:
The failure to exercise the standard of care that a reasonably prudent person would
have exercised in a similar situation; any conduct that falls below the legal standard
established to protect others against unreasonable risk of harm, except for conduct
that is intentionally, wantonly, or willfully disregardful of others rights.
52. Charlesworth and Percy on Negligence (Twelfth Edition) gives three meanings to negligence in
forensic speech viz: (i) in referring to a state of mind, when it is distinguished in particular from
intention; (ii) in describing conduct of a careless type; and (iii) as the breach of a duty to take care
imposed by either common law or statute. The three meanings are then explained thus:
The first meaning: Negligence as a state of mind can be contrasted with intention.
An act is intentional when it is purposeful and done with the desire or object of
producing a particular result. In contrast, negligence in the present sense arises
where someone either fails to consider a risk of particular action, or having
considered it, fails to give the risk appropriate weight.
The second meaning: Negligence can also be used as a way to characterize conduct,
although such a use may lead to imprecision when considering negligence as a tort.
Careless conduct does not necessarily give rise to breach of a duty of care, the
defining characteristic of the tort of negligence. The extent of a duty of care and the
standard of care required in performance of that duty are both relevant in
considering whether, on any given facts conduct which can be characterized as
careless, is actionable in law.
The third meaning: The third meaning of negligence, and the one with which this
volume is principally concerned, is conduct which, objectively considered, amounts
to breach of a duty to take care.
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53. Clerk & Lindsell on Torts (Eighteenth Edition) sets out the following four separate requirements
of the tort of negligence:
(1) the existence in law of a duty of care situation, i.e. one in which the law attaches
liability to carelessness. There has to be recognition by law that the careless infliction
of the kind of damages in suit on the class of person to which the claimant belongs by
the class of person to which the defendant belongs is actionable;
(2) breach of the duty of care by the defendant, i.e., that it failed to measure up to the
standard set by law;
(3) a casual connection between the defendant's careless conduct and the damage;
(4) that the particular kind of damage to the particular claimant is not so
unforeseeable as to be too remote.
54. Law of Torts by Rattanlal & Dhirajlal, explains negligence in the following words:
Negligence is the breach of a duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent and
reasonable man would not do. Actionable negligence consists in the neglect of the use
of ordinary care or skill towards a person to whom the defendant owes the duty of
observing ordinary care and skill, by which neglect the plaintiff has suffered injury to
his person or property. According to Winfield, negligence as a tort is the breach of a
legal duty to take care which results in damage, undesired by the defendant to the
plaintiff. The definition involves three constituents of negligence: (1) A legal duty to
exercise due care on the part of the party complained of towards the party
complaining the formers conduct within the scope of the duty; (2) Breach of the said
duty; and (3) consequential damage. Cause of action for negligence arises only when
damage occurs for damage is a necessary ingredient of this tort. But as damage may
occur before it is discovered; it is the occurrence of damage which is the starting
point of the cause of action.
55. The above was approved by this Court in Jacob Mathew v. State of Punjab and Another (2005) 6
SCC 1.
56. The duty to care in cases whether civil or criminal including injury arising out of use of buildings
is examined by courts, vis--vis occupiers of such bindings. In Palsgraf v. Long Island Railroad, 248
NY 339, Justice Cardozo explained the orbit of the duty of care of an occupier as under:
If no hazard was apparent to the eye of ordinary vigilance, an act innocent and
harmless, at least to outward seeming with reference to her, did not take to itself the
quality of a tort because it happened to be a wrong, though apparently not one
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involving the risk of bodily insecurity, with reference to someone else...Even then, the
orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit
of the duty.
57. To the same effect is the decision in Hartwell v. Grayson Rollo and Clover Docks Limited and
Others (1947) KB 901 where the duty of an occupier who invites people to a premises, to take
reasonable care that the place does not contain any danger or to inform those coming to the
premises of the hidden dangers, if any, was explained thus:
In my opinion the true view is that when a person invites another to a place where
they both have business, the invitation creates a duty on the part of the invitor to take
reasonable care that the place does not contain or to give warning of hidden dangers,
no matter whether the place belongs to the invitor or is in his exclusive occupation.
58. The duty of a theatre owner to his patrons was outlined as follows in Rosston v. Sullivan, 278
Mass 31 (1932):
The general duty to use ordinary care and diligence to put and keep this theatre in a
reasonably safe condition, having regard to the construction of the place, character of
the entertainment given and the customary conduct of persons attending.
59. The above case was cited with approval in Helen Upham v. Chateau De Ville Theatre Inc 380
Mass 350 (1980).
60. The Supreme Court of Wyoming in Mostert v. CBL & Associates, et. Al., 741 P.2d 1090 (Wyo.
1987) held that the owner of a theatre, AMC owed an affirmative duty to patrons as business visitor
invitees to inform them of off-premises dangers (in that case a flash flood) which were reasonably
foreseeable:
We conclude that appellee AMC owed the Mostert family an affirmative duty to
exercise reasonable or ordinary care for their safety which includes an obligation to
advise them of off- premises danger that might reasonably be foreseeable. We are not
suggesting by our determination that AMC had a duty to restrain its patrons or even a
duty to advise them what to do. The duty as we see it is only to reveal what AMC
knew to its customers.
61. In Brown v. B & F Theatres Ltd., (1947) S.C.R. 486, the Supreme Court of Canada held the
liability of a theatre owner to be 90% and the contributory negligence of the appellant to be 10% in a
case with the following facts:
The appellant, Margaret Brown, was injured by falling down a stairway in a theatre
in Toronto. After passing through a brightly lighted lobby, she entered the foyer,
intending to go to the ladies room. This was on the left of the entrance and was
indicated by a short electric sign 7 high facing her as she turned. In the foyer, a
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narrow corridor, the lights were dimmed; and, proceeding along the wall at her left,
she opened what she took to be the door to the waiting room. A fire extinguisher 2
long and 4 from the floor hung on the wall next to the left side of the door; and at the
right side was a post or panel 7 wide, projecting about 4 out from the wall; the door,
31 wide, swinging toward the left, on which the word Private was printed in faint
letters, was between three and four feet in front of the sign and led to a stairway into
the basement. The platform or landing was about 24 deep and the door must have
swung somewhat before the edge would be brought into view. Immediately inside on
the wall at the right and on a level with her eyes, was a light which, on her story,
momentarily blinded her. The entrance to the ladies room was separated from this
door by the post or panel.
62. Holding that the theatre owner had breached the duty owed by a proprietor of premises to his
invitee, the Court held as follows:
Here, Mrs. Brown paid a consideration for the privileges of the theatre, including
that of making use of the ladies room. There was a contractual relation between her
and the theatre management that exercising prudence herself she might enjoy those
privileges without risk of danger so far as reasonable care could make the premises
safe. (emphasis supplied)
63. In Dabwali Fire Tragedy Victims Association v. Union of India and Ors., (2001) 1 ILR Punjab &
Haryana 368 to which one of us (Thakur J.) was a party, the High Court of Punjab & Haryana held
that both the school, as well as the owners of a premises on which the school function was held, were
liable as occupiers for the tragic death of 406 persons, most of them children, caused by a fire which
broke out on the premises during the function. In dealing with the question whether the owners of
the premises, Rajiv Marriage Palace, being agents of the school could be held accountable, the High
Court held as follows:
..The School ought to have known that in a function which is open to general public,
a Pandal with a capacity of 500 to 600 persons spread over no more than an area
measuring 100 x 70, a gathering of 1200 to 1500 persons could result in a stampede
and expose to harm everyone participating in the function especially the children
who were otherwise incapable of taking care of their safety. The school ought to have
known that the availability of only one exit gate from the Marriage Palace and one
from the Pandal would prove insufficient in the event ofany untoward incident taking
place in the course of function. The School ought to have taken care to restrict the
number of invitees to what could be reasonably accommodated instead of allowing all
and sundry to attend and in the process increase the chances of a stampede. The
School ought to have seen that sufficient circulation space in and around the seating
area was provided so that the people could quickly move out of the place in case the
need so arose. Suffice it to say that a reasonably prudent School Management
organizing an annual function could and indeed was duty bound to take care and
ensure that no harm came to anyone who attended the function whether as an invitee
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or otherwise, by taking appropriate steps to provide for safety measures like fire
fighting arrangements, exit points, space for circulation, crowd control and the like.
And that obligation remained unmitigated regardless whether the function was held
within the School premises or at another place chosen by the Management of the
School, because the children continued to be under the care of the School and so did
the obligation of the School to prevent any harm coming to them. The principle of
proximity creating an obligation for the School qua its students and invitees to the
function would make the School liable for any negligence in either the choice of the
venue of the function or the degree of care that ought to have been taken to prevent
any harm coming to those who had come to watch and/or participate in the event.
Even the test of foreseeability of the harm must be held to have been satisfied from
the point of view of an ordinary and reasonably prudent person. That is because a
reasonably prudent person could foresee danger to those attending a function in a
place big enough to accommodate only 500 to 600 people but stretched beyond its
capacity to accommodate double that number. It could also be foreseen that there
was hardly any space for circulation within the Pandal. In the event of any mishap, a
stampede was inevitable in which women and children who were attending in large
number would be worst sufferers as indeed they turned out to be. Loose electric
connections, crude lighting arrangements and an electric load heavier than what the
entire system was geared to take was a recipe for a human tragedy to occur. Absence
of any fire extinguishing arrangements within the Pandal and a single exit from the
Pandal hardly enough for the people to run out in the event of fire could have put any
prudent person handling such an event to serious thought about the safety of those
attending the functioning especially the small children who had been brought to the
venue in large numbers
64. Referring to the English decisions in Wheat v. E. Lacon & Co. (1966) 1 All ER 582, Hartwell v.
Grayson Rollo (supra), Thomson v. Cremin (1953) 2 All ER 1185 and H & N Emanuel Ltd. v. Greater
London Council & Anr. (1971) 2 All ER 835, the High Court went on to hold as follows:
93. In the instant case while the School had the absolute right to restrict the entry to
the venue of the function being organized by it and everything that would make the
function go as per its requirements, the owners had not completely given up their
control over the premises, and were indeed present at the time the incident occurred.
The facts and circumstances brought on record in the course of the enquiry establish
that the School and the Marriage Palace owners were both occupying the premises
and were, therefore, under an obligation to take care for the safety of not only the
students, but everyone who entered the premises on their invitation or with their
permission specific or implied. As to the obligation of an occupier to take care qua his
invitees a long line of English decisions have settled the legal position...
xx xx xx
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97. In the light of the above, we have no hesitation in holding that the One Man
Commission of Inquiry was perfectly justified in holding the School and the Marriage
Palace liable for the act of tort arising out of their negligence and duty to take care
about the safety of all those invited to the function at Dabwali. Question No. 2 is
answered accordingly.
65. In R. v. Gurphal Singh [1999] CrimLR 582, the Court of Appeal in England dealt with a case
where a person staying at a lodging house occupied and managed by the Singh family died in his
sleep due to carbon monoxide poisoning. The cause of the carbon monoxide was the blocking of the
chimney in the room of the lodger, as well as in the neighbouring room due to which the smoke from
a fire in the room could not escape. While determining whether the Singh family had breached their
duty of care, the Court held as follows:
...In substance this is a case where those living in the room in which Mr. Foster died
in a lodging house managed by Singh family. They were led to believe that the
appellant and his father would take care that they were not poisoned by equipments
provided by the family. The appellant was possessed of sufficient information to
make him aware of a danger of death from gas. He may not have had sufficient skill
to be able to discover how that danger arose but he was responsible for taking
reasonable steps to deal with that danger if need by calling in expert help. In those
circumstances the judge was right to hold that there was a sufficient proximity
between the lodgers on the one side and the father and son on the other side to place
a duty of care on the latter.
66. To sum up, negligence signifies the breach of a duty to do something which a reasonably prudent
man would under the circumstances have done or doing something which when judged from
reasonably prudent standards should not have been done. The essence of negligence whether arising
from an act of commission or omission lies in neglect of care towards a person to whom the
defendant or the accused as the case may be owes a duty of care to prevent damage or injury to the
property or the person of the victim. The existence of a duty to care is thus the first and most
fundamental of ingredients in any civil or criminal action brought on the basis of negligence, breach
of such duty and consequences flowing from the same being the other two. It follows that in any
forensic exercise aimed at finding out whether there was any negligence on the part of the
defendant/accused, the Courts will have to address the above three aspects to find a correct answer
to the charge.