T.C. BALKRISHNAN MENON AND ORS. V. T.R.SUBRAMANIAN AND ANR.

IN THE HON’BLE
HIGH COURT OF KERELA

In the matter of

T.C. Balkrishnan Menon andOrs.

(Appeallant)

vs.

T.R. Subramanian and Anr.

(Respondent)

On Submission to the Hon’ble Supreme Court

MEMORANDUM FOR THE APPEALLANT

COUNSEL ON BEHALF OF APPEALLANT

MEGHA PALESHWAR

(ROLL NO.- 98 SEM : III)

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

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 T.C. BALKRISHNAN MENON AND ORS. V. T.R.SUBRAMANIAN AND ANR.

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………….……………………………3

INDEX OF AUTHORITIES ………………………………………………..………………4

STATEMENT OF FACT…….…………………….………………………………………. 5

QUESTION PRESENTED ………………………..……………………….………………..6

SUMMARY OF PLEADINGS…………………..………………..…………………………7

CONTENTIONS………………...………………………………………….…………….….9

PRAYER FOR RELIEF....................................................................................................... 13

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T.C. BALKRISHNAN MENON AND ORS. V. T.R.SUBRAMANIAN AND ANR.

LIST OF ABBREVIATIONS

1. A.I.R……………………………………………………...……………All India Report

2. H.C…………………………………………………………………..…High Court
3. V……………………………………………………………………….Versus
4. Anr…………………………………………………………………….Another
5. Ors……………………………………………………………………..Others
6. &……………………………………………………………………….and
7. i.e./………………………………………………..……………………that is
8. www…………………………………………………………...………world wide web
9. H.C.R……………………………………………………..…….High Court Report

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 T.C. BALKRISHNAN MENON AND ORS. V. T.R.SUBRAMANIAN AND ANR.

INDEX OF AUTHORITIES
ACTS AND STATUTES :

 Indian Explosives Act

JUDICIAL DECISIONS:

 Morgan v. Incorporated Central Council

 Hall v. Brooklands Auto Racing Club
 Wooldrige v. Summer

BOOKS :

 Torts- R.K. Bangia

WEBSITES REFERRED:

 www.manupatra.com

 www.westlaw.com
 www.indiankanoon.com

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 T.C. BALKRISHNAN MENON AND ORS. V. T.R.SUBRAMANIAN AND ANR.

STATEMENT OF FACT

The second appeal was filed 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 Paranwkkavu 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.

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.

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QUESTIONS PRESENTED

1. WHETHER THE INDEPENDENT CONTRACTOR(20TH DEFENDANT) WAS

NEGLIGENT IN PERFORMING HIS DUTY.

2. WHETHER THE APPELLANTS, WHO ENGAGED THE INDEPENDENT

CONTRACTOR, WOULD BE LIABLE FOR THE LATTER’S ACT.

3. WHETHER THE PRINCIPLE OF VOLENTI NON FIT INJURIA WOULD APPLY

TO THE CASE.

4. WHETHER THE EXONERATION OF SOME DEFENDANTS WOULD RESULT

THE EXONERATION OF OTHERS.

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SUMMARY OF PLEADINGS

1. WHETHER THE INDEPENDENT CONTRACTOR(20TH DEFENDANT) WAS

NEGLIGENT IN PERFORMING HIS DUTY.

The 20th defendant i.e. independent contractor was negligent in performing his duty. 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.

2. WHETHER THE APPELLANTS, WHO ENGAGED THE INDEPENDENT

CONTRACTOR, WOULD BE LIABLE FOR THE LATTER’S ACT.

The appellants who engaged the independent contractor would not be liable for the

latter’s act. As an independent contractor is not subject to any such control. He is his

own master and exercise his own discretion. So he will be alone liable for his

negligance and the appellants would not be liable.

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3. WHETHER THE PRINCIPLE OF VOLENTI NON FIT INJURIA WOULD APPLY

TO THE CASE.

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. 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.

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WRITTEN SUBMISSION

CONTENTION 1- WHETHER THE INDEPENDENT CONTRACTOR(20TH

DEFENDANT) WAS NEGLIGENT IN PERFORMING HIS DUTY

Firstly lets know what is an independent contractor, An independent contractor is not subject
to any such control. He undertakes to do certain work and regarding the manner in which the
work is to be done. He is his own master and exercise his own discretion. An independent
contractor is one “who undertakes to produce a given result, but so that inthe actual execution
of the work, he is not under the control of the person for whom he does it, and may use his
own discretion in things not specified beforehand.”

The independent contractor who is the 20th defendant was negligent in performing his duty.

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 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. 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 bursting 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 independent contractor.

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.

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CONTENTION 2: WHETHER THE APPELLANTS, WHO ENGAGED THE

INDEPENDENT CONTRACTOR, WOULD BE LIABLE FOR THE LATTER’S ACT.

The appellants who engaged the independent contractor would not be liable for the latter act.

An employer is not liable for the torts committed by an independent contractor employed by
him. An independent contractor is not under any control of any person for whom he does it.

Suppose,My car driver is my servant. If he negligently knocks down X, I will be liable for
that. But if I hire a taxi for going to railway station and the taxi driver negligently hits X, I
will not be liable towrds X because the driver is an independent contractor not my servant.

The negligence of the Independent contractor (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. Therefore the appellant who
engaged the independent contractor would not be held liable for the explosion.

There was also no "non-natural" user of the land where the minnal gundus were exploded. 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.

In Morgan v. Incorporated Central Council1, the plaintiff while he was in a lawful visit to the
defendant’s premises, fell down from an poen lift shaft and got injured. The defendant had
entrusted the job of keeping the lift safe and in proper order to certain independent
contractors. It was held that this act of negligence on the part of the independent contractors
in not keeping the lift in safe condition, the defendants could not be made liable.

Similarly in this case the appellants would also not be liable for the negligence of the
independent contractor because it was the independent contractor negligence and the
appellants does not know that the 20th defendent has not properly done his work and since he
is an independent contractor, he will only be the one responsible for his negligance and not
the persons who engaged the independent contractor.

1
(1936) 1 All E.R. 404

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CONTENTION 3: WHETHER THE PRINCIPLE OF VOLENTI NON FIT INJURIA

WOULD APPLY TO THE CASE.

VOLENTI NON FIT INJURIA- When a person consents to the infliction of some harm upon
himself, he has no remedyfor that in tort. In case if plaintiff voluntarily agrees to suffer some
harm, he is not allowed to complain for that and his consent serves as a good defence against
him.

Here, the principle of volenti non fit injuria must apply in this 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. He is voluntarily agrees to suffer the the
harm by voluntarily coming to watch fire works and he knows himself that their is a risk
while the fire works are done.The gundu that caused injury to the first respondent fell outside
this area and exploded. This would have made the first respondent a volunteer.

For example if a person ism going for a cricket match in stadium. He knows that he may got
injured from the ball while crickter hits the ball. But he goes which means he is voluntarily
taking the risk and he cannot held anyone liable for his injury.

In Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator at a motor car race
being held at Brooklands on a track owned by the defendant company. During the race, there
was a collision between two cars , one of which was thrown among the spectators, thereby
injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the
danger being inherent inthe sport which any spectator could foresee, the defendant was not
liable.

Similarly in Wooldrige v. Summer, the plaintiff who was a photographer, was taking
photographs at a horse show while he was standing at the boundary of the arena. One of the
horses belonging to the defendant, rounded the bend too fast. As the horse galloped furiously,
the plaintiff was frightened and he fell into the horses course and there he was seriously
injured by galloping horse. The horse in question won the competition. It was held that the
defendant was not liable and it was the plaintiff who has not taken due care. The spectator in
such game or competition takes the risk of such damages.

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Also, 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.

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PRAYER FOR RELIEF

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited.
This Honourable High Court of Kerela may be pleased to pass a decision and declare that:

1. The appeal to be allowed.

2. The quash the impunged order given by the respondent and provide relief for the
appellant.

Or pass any other order which can be deemed fit in the spirit of justice, equity and good
conscience.

All of which is humbly submitted before the Honourable High Court of Kerela.

Date: 26-09-2016 Counsel for Appellant

Megha Paleshwar

Section ‘B’

Semester III

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