` IN THE HONBLE DISTRICT COURT OF PATNA

SOMESHWARI BHARGAVA V. SPRIHA TANTIA..

PETITIONER

RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER COUNSEL FOR THE PETITIONER

TABLE OF CONTENTS 1. TABLE OF CONTENTS2 2. LIST OF ABREVIATIONS3 3. INDEX OF AUTHORITIES..4-6 4. STATEMENT OF JURISDICTION7 5. STATEMENT OF FACTS....8 6. ISSUESRAISED.9 7. SUMMARY OF ARGUMENTS..10 8. ARGUMENTS ADVANCED11

LIST OF ABREVIATION 1. A.PAndhra Pradesh 2. AIR ..All India Reporter 3. All..Allahabad 4. ArtArticle 5. Cal.Calcutta 6. CoCompany 7. CJ. .Chief Justice 8. E.dedition 9. G.O...Government Order 10. HonbleHonourable 11. J&K..Jammu & Kashmir 12. 12. Ltd ..Limited 13. M.P..Madhya Pradesh 14. Mad.Madras 15. OrsOthers 16. P&H..Punjab & Haryana 17. p..page 18. Para Paragraph 19. Pat. Patna 20. Pvt...................................................................................................................Private 21. Raj...Rajasthan

22. S.C..Supreme Court 23. SCC......Supreme Court Cases 24. SCR Supreme Court Reporter 25. . SecSection 26. U.PUttar Pradesh 27. UOI.....Union of India 28. . US...United States 29. vversus 30. Vol..volume 31. Govt.government

STATEMENT OF FACTS 1. Spriha Tantia, a business woman runs a butcher shop. She had planned a ball dance party to celebrate Valentines Day with her friends and her husband on 14 February 2012. 2. Someshwari Bhargava is a Sprihas neighbour who sells plants and flowers in a green house located in her garden. Every year, Valentines day proves to be the most profitable day for Someshwari,s sale of flowers and plants. 3. While doing the preparation Spriha found that there was a leakage in the wash basin of her kitchen, bathroom and also in the pipe attached with the water tank in the terrace. In order to settle the problems permanently, Baidyanath, a retired plumber from Pipe Repairing Agency was called. 4. Spriha showed the plumber where the entire leak was located and left her house leaving the plumber to carry out the repairs. In carrying out the repair work, the plumber used some faulty equipments that he had brought along, which caused a huge flow of water in the main circuit of the house, that lead to fire in the house. This fire escaped on to the neighboring premises of Somseshwari destroying many of her plants and flowers in her garden, as a result of which she suffered extensive loss because she had already contracted for the sale of those flowers and plants impending Valentines Day. 5. Ergo, Someshwari brought an action for damages against Spriha Tantia claiming Rs 5,00,00 for the loss and damages she had suffered.

ISSUES RAISED

1. Whether the defendant can be held liable under the law of torts of negligence or not?

1.1Res ipsa loquitor

2. 3.

Whether the act of the defendant created a NUISANCE or not? Whether the defendant can be held vicariously liable or not?? {PRINCIPAL AGENT}

4. Whether the defendant can be held liable by applying the principle of strict liability and reasonable foreseenabiliy. 5. Whether the act of defendant is violating the fundamental rights or not?? {19(1)(g)}

SUMMARY OF ARGUMENTS

1. Whether the defendant can be held liable under the law of torts of negligence or not? The counsel on the behalf of the petitioner humbly submits before the Honble Court that the act of the defendant was reasonable enough to fasten the liability for damages under the law of torts of negligence.

2.

Whether the act of the defendant created a NUISANCE or not?

The counsel on the behalf of the petitioner humbly submits before the Honble Court that under the Law of Torts of Nuisance the interference done through act of the defendant is unreasonable enough which can amount to actionable Nuisance.

3. Whether the defendant can be held vicariously liable or not?

The counsel on the behalf of the petitioner humbly submits before the Honble Court that the defendant can be held vicariously liable for the wrongful act of the plumber because of the existing relationship of Principal Agent between them.

4. Whether the defendant can be held liable by applying the principle of strict liability and reasonable foreseenabiliy. The counsel on the behalf of the petitioner humbly submits before the Honble Court that the defendant can be held liable under the principle of Strict liability and reasonable foreseenability

5. Whether the act of defendant is violating the fundamental rights or not It is humbly submitted that the act of the defendant is the violation of article 19(1) (g) of the Contitution of India i.e. right to profession.

ARGUEMENT ADVANCED

1. WHETHER the defendant can be held liable under the law of torts of negligence or not? It is humbly submitted to the honble court that under the tort of Negligence, there are three essentials which the plaintiff is required to prove the liability for the damages. It must be proved that the defendant owed the specific LEGAL DUTY TO TAKE CARE which must be BREACHED and which lead to the DAMAGES. In order to establish the duty to take care, Lord Atkin propounded the rule that you must take reasonable care to avoid act or omissions which you can reasonably foresee would be likely to injure your neighbor. He then defined neighbour as persons so closely and directly affected by ones act that one ought reasonably to have them in contemplation as being so affected when one is directing his ones mind to the act or omission which are called in the question 1 Blyth v. Birmingham2 explains that negligence is not a legal obstruction, it is not an idea in the air but it is a failure to perform duty to take care. Breach of duty to take care takes place where plaintiff has a right to rely upon the defendants act or omission on the part of the defendant where the injury is foreseeable by the defendant and he takes no step to prevent it or where the cause creating injury is within the control of the defendant and he fails to control it. Since, the Petitioner was the neighbour of the Defendant, whose omission of the act reasonably affected the Plaintiff. The circumstances demanded A PROPER SUPERVISION from the part of the defended so that the work done by the plumber could be carried out in the best possible manner. Ergo, the defended owed the duty of care but was breached. The defended left the house and his agent on his own discretion and omtted her duty which caused the huge flow of water in the main circuit of the defendants premises which thereafter, escaped to the Plaintiffs premises destroying many of the plants and the flowers, as a result of which she had suffered extensive losses because she had already contracted for the sale of those flowers woing to the impending Valentines day. Ergo, for the injury to the plaintiff by this act, the Defendant should be held liable in Negligence
1 2

Donoghue v. Stevenson 1932 A.C. 562

1856 L.R. 11 Exch 784

2. Whether the act of the defendant created a NUISANCE or not?

The counsel on the behalf of the petitioner humbly submits before the Honble Court that to constitute the Tort of Nuisance or Private Nuisance, it is required to prove the there was an unreasonable interference by the defendant and that interference was with the use of the enjoyment of the land of the plaintiff which must caused damage to the plaintiff. Nuisance is a generally a continuing wrong but in number of cases 3, isolated act of escape of dangerous thing could entitle the plaintiff to recover the damage of the property. Thus whether the wrongful escape is continuous, intermittent or isolated, it is actionable. Dollman v. Himllan Ltd.,4 the plaintiff was slipped on a piece of fat lying on the pavement outside the defendants butchers shop. For the injury to the plaintiff by this isolated act, the defendant was held liable in Nuisance. As it was decided in Goldman v. Hargrave5 Nuisance arising from the escape of things naturally on ones land may also make the occupier liable if one has failed to take reasonable care with regard to them. As, the fire got escaped over the plaintiffs land from the defendants premises which lead to the unreasonable interference through the isolated act of escape of dangerous thing by Mrs Spriah Tantia and this interference was with the use of the enjoyment of the land of the Ms Someshwari who suffered extensive. Ergo, for the injury to the plaintiff by this isolated act, the Defendant should be held liable in Nuisance

3. Whether the defendant can be held vicariously liable or not The counsel on the behalf of the petitioner humbly submits before the Honble Court that the defendant can also be held liable on the basis of Vicarious liability as there existed the

3 4

See Ryland v. Fletcher, (1868) L. R. 1 Ex 265 : (1868) L.R. H.L. 330 [Escape of water] (1941) 1 A11 E.R. 355 5 1967 1 A.C. 645

relationship of PRINCIPL and AGENT. The Principal and Agent relationship is based on the general principle Qui facit per alium facit per se which means that the act of an agent is the act of an Principal. For any act authorized by the principal and done by the agent, both of them will be liable. In Barwick v. English Joint Bank6, it was decided that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and the masters or principals benefit though no express command or privity of the master is proved. As in Moris v. C.W. Martin and Sons Ltd7, it was also laid down that master/ principal is liabnle for the manner in which the servant or agent carries out his duty even if they are careless Vicarious liability can be imposed, as there existed the relationship of PRINCIPL and AGENT between Mrs Tantia and the Plumber. The plumber was authorized by the defendant to carry out the repairs in the pipes and was subjected to the CONTROL and the SUPERVISION of the defendant regarding the manner in which the work has to be done by the plumber.

4. Whether the defendant can be held liable by applying the principle of strict liability and reasonable foreseeabiliy. The counsel on the behalf of the petitioner humbly submits before the Honble Court that the defendant can also be held liable on the basis of Principle of strict liability. To apply the rule oin Ryland v. Fletcher8 three things must be proved, the person, who for his own purpose brought some dangerous thing on his premises and that must ESCAPE causing damage and it must be NON-NATURAL use of land. Leakages in the wash basin of the kitchen and, bathroom and ALSO in the pipe attached with WATER TANK at the terrace can reasonably be considered as the DANGERUOUS THING specially, if there the provision of electricity in the house. It, dangerousness was also proved through the facts of this very case as these leakages lead to the short circuit in the main circuit of the house contributing to the fire which burnt the flowershop and livelihood of the plaintiff into

6 7 8

(1869 ) 2 Ex 259 (265) A.I.R. 1987 S.C. 1089, at 1099

ashes. In Richard v. Lothian9, in similar fact situation the claim of strict liability was put forth. The waste pipes of a wash basin was blocked, which was in the control of the defendant, and opened the tap, because of the overflowing of the water plaintiffs goods were damaged.

5. Whether the act of defendant is violating the fundamental rights or not? . The counsel on the behalf of the petitioner humbly submits before the Honble Court that the It is humbly submitted that under article 19(1)g guarantees that all citizens shall have the right to practice any profession or to carry on any occupation, trade or business. It can be regulated and restricted by the authority of law. The state can: a) Impose reasonable restriction on this right, b) Prescribe professional or technical qualification necessary for practicing any Profession, trade or business. Because of the reckless and careless act of the defendant the livelihood of the plaintiff is burnt in to ashes. The plaintiff lost her right to profession. Her, flower shop is burnt .the fire, escaped to the Plaintiffs premises destroying many of the plants and the flowers, as a result of which she had suffered extensive losses because she had already contracted for the sale of those flowers owing to the impending Valentines day.

(1913) A.C. 263

PRAYER

In the light of the facts stated, arguments advanced and authorities cited the respondent, humbly prays before the honorable court, to be graciously pleased to: 1.