State cannot escape liability for harm caused by wild animals: Kerala HC

Kochi: The Kerala High Court has held that the State cannot escape liability for injuries caused by wild animals merely because it does not own or have physical control over them. The court observed that the State has a duty to take reasonable measures to prevent human-wildlife conflict and protect human habitations and agricultural properties.

Justice Mohammed Nias CP made the observation while dismissing a Regular Second Appeal filed by the State challenging concurrent findings of the Munsiff's Court, Kalpetta, and the Sub Court, Sulthanbathery, which had awarded compensation to a Wayanad resident injured in a wild elephant attack.

The court also reiterated that victims of wildlife attacks can approach civil courts for adequate compensation if the amount provided under the government's ex gratia compensation scheme is insufficient.

Wayanad farmer injured in elephant attack
The case arose from an incident in 2017, when the plaintiff, an agriculturist from Thariode in Wayanad district, was attacked by three wild elephants while stepping out of his house to milk his cow.

The attack left him with serious injuries, including multiple fractures, and required hospitalisation and surgery. He claimed to have incurred substantial medical expenses and suffered permanent disability that affected his ability to undertake physically demanding work. He also alleged that his left leg had become shorter than his right following the incident.

The plaintiff contended that the authorities had failed to put in place adequate protective measures, including electric fencing and trenches, along the boundary between forest land and private property.

Although the Forest Range Officer initially paid him ₹75,000 as emergency relief, the victim approached the civil court seeking ₹8 lakh in damages, arguing that the amount was inadequate and did not cover his remaining expenses.

State argues compensation limit applies
The State and forest officials contended that ₹75,000 was the maximum compensation payable under the Kerala Rules for Payment of Compensation to Victims of Attack by Wild Animals, 1980, read with a government order issued on March 22, 2013.

They also argued that wild animals roaming freely in forests were neither owned nor controlled by the State and that the authorities had taken reasonable steps to prevent such attacks.

The State further maintained that the doctrine of strict liability could not be applied in such cases, as the authorities did not own, possess or have custody of the animals. It argued that requiring the government to prevent every wildlife attack would be impractical and that such incidents could be treated as accidents or acts of God.

The Munsiff's Court, however, held that the compensation scheme did not prevent victims from pursuing civil claims for damages where the prescribed amount was inadequate.

It awarded the plaintiff ₹5,37,030, with interest at 8% per annum from the date of the suit until realisation. The award included compensation for loss of earnings, medical expenses, pain and suffering, permanent disability, transportation, clothing, bystander expenses and extra nourishment.

The Sub Court, Sulthan Bathery, upheld the decision, prompting the State to approach the High Court.

State has a duty to protect citizens
Rejecting the State's argument that the absence of ownership or physical custody of wild animals excluded liability, the High Court observed that the question of liability had to be determined based on the nature of the activity, the State's legal obligations and the principles governing compensation claims.

“The absence of ownership or physical custody of wild animals does not, by itself, exclude the application of the doctrine of strict liability,” the court observed.

The court clarified that the Supreme Court's decision in Centre for Environment Law, World Wide Fund India v. Union of India addressed the legal status of wildlife and the State's conservation obligations. It did not grant the State immunity from liability for damage caused by wild animals.

Referring to Article 48A of the Constitution and the Wild Life (Protection) Act, 1972, the High Court said the State had a statutory and public duty to take reasonable measures to prevent human-wildlife conflict.

“The State is therefore responsible for balancing wildlife protection with its constitutional obligation to protect citizens' fundamental rights, including the right to life under Article 21,” the court noted.

The court clarified that this obligation did not require the government to fence the entire forest. However, it had to take reasonable preventive measures to protect human habitations and agricultural properties.

It also observed that citizens could not be expected to bear the entire burden of protecting themselves and their property from wildlife attacks, particularly when the law restricts the measures they can take against wild animals.

Compensation scheme does not bar civil claims
The High Court relied on its decision in Wildlife Warden and Others v. Thadathil Saramma and Others, which held that the Kerala compensation rules provided for ex gratia relief but did not constitute the sole remedy available to victims.

The court reiterated that the right to seek just and adequate compensation for injuries or loss of life caused by wild animals could be traced to Article 21 of the Constitution and the common law principle of strict liability, independently of an executive compensation scheme.

The amount prescribed under a government scheme, therefore, could not restrict the jurisdiction of civil courts to award compensation based on the actual loss, pain and suffering sustained by a victim.

In the present case, the authorities claimed that solar fencing, trenches and a wall had been installed and that watchers had been appointed to prevent wildlife attacks. However, they failed to produce documentary or other supporting evidence to substantiate these claims.

Noting that the attack occurred at the plaintiff's residence and that the authorities had failed to establish the existence of adequate preventive measures, the High Court found no reason to interfere with the lower courts' finding on negligence.

Dismissing the State's appeal, the court upheld the compensation awarded to the Wayanad resident.
(With LiveLaw Inputs)