Delhi District Court
M/S Mahanagar Telephone Nigam Ltd vs M/S Netware Infosys Pvt. Ltd on 9 May, 2018
IN THE COURT OF PRAVEEN KUMAR: ADDITIONAL DISTRICT
JUDGE05 :NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI.
Civil Suit No.64/17 (10 years old case)
In the matter of :
M/s Mahanagar Telephone Nigam Ltd.,
Having its office at Khurshid Lal
Bhavan, Janpath,
New Delhi110050 ..................Plaintiff
Versus
M/s Netware Infosys Pvt. Ltd.,
886, Sector 17B
Gurgaon, (Haryana) ..................Defendant
JUDGMENT:
1. This is a suit filed by the plaintiff against the defendant for permanent and mandatory injunctions as well as for damages. As the suit for permanent and mandatory injunctions has now become infructuous, the claim is restricted for damages against the defendant.
2. The case of the plaintiff, in brief, is that the plaintiff is a Govt. of India Undertaking and is registered under the Indian Companies Act, 1956 and is a Licencee of the Central Government in exercise of the powers of the Central Government under the Indian Telegraph Act. By virtue of the said licence dated 27.03.1986, the plaintiff is authorized and/or responsible to establish, maintain and work telephone/telegraph lines within the Metropolitan Cities of Delhi/New Delhi and Mumbai w.e.f. 01.04.1986. Defendant is a company incorporated under the Companies Act, 1956. The defendant has appointed various contractors for digging in different areas.
CS No.64/17MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 1 of 12 The defendant has the Road Cutting Permission from NDMC only upto 25th June, 2001. Defendant while carrying out the work at Tolstoy Marg, New Delhi has damaged the underground cables of the plaintiff on 26th June, 2001 late night and 27th June early morning. The plaintiff's representative immediately inspected the site at Tolstoy Marg for assessment of the damage. Trenching and digging machine was found situated at Pillar 29 and 29X at the crossing of Atul Grove Road and Tolstoy Marg. This particular pillar has termination of 1600 cable pairs, therefore, damage was bound to occur. As on persistent request the work was not stopped, the matter was informed to the police and PCR was called on or about 1300 hrs on 27.06.2001 who prevented defendant to carry out the work. After some time in the presence of the police, they stopped the work for some time. Again around 7.30 pm few yards away from the Tolstoy Marg, the defendant started the work hiding behind their parked lorry, to drill across the Tolstoy Road at the same spot where the cables had already been damaged. The plaintiff again called the police and the work was stopped on their insistence. The damage has been caused to cables affecting large number of subscribers of the plaintiff in the area of Connaught Place, Vandana Bldg., Himalaya House, American Center, ECE House, New Delhi House, Ashoka Estate, Akashdeep, Nirmal Tower, World Trade Centre, Jeevan Prakash and Scindia House. The place where the damage has occurred, about 10 underground cables of the plaintiff were available. Had defendant bothered to use the Ground Positioning Radar System (in short 'GPRS'), such kind of damage would not have occurred. This damage is nothing but an attempt to sabotage, the services of plaintiff and designed to tarnish its image with public at large. The cables of the plaintiff have been badly damaged and due CS No.64/17 MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 2 of 12 to this damage approximately 5400 pairs were completely affected and remained out of service causing tremendous hardship to the customers/subscribers of plaintiff and loss of profit and loss of goodwill to the plaintiff. Due to negligent and careless digging work carried out by the defendant, the plaintiff has suffered monitory loss besides loss of goodwill. The plaintiff has suffered loss and incurred expenses, inter alia, in terms of loss revenue, stores, labour charges, reinstatement charges and loss of goodwill. The plaintiff has prayed that the suit of the plaintiff be decreed for sum of Rs. 33 Lakhs towards damages against the defendant.
3. The defendant filed the written statement and has contested the suit. The defendant has taken preliminary objectionsthat the suit has not been properly signed and verified by competent person; that the suit is liable to be rejected under Order VII Rule 11 CPC inasmuch as proper court free has not been paid and that the suit is bad for misjoinder of parties. On merits, it is averred that the defendant did not carry out any work of digging after 25.06.2001. The defendant has denied that it damaged the cables of the plaintiff as alleged. It is averred that defendant was granted permission for road cutting in the areas including the area of Atul Grove Road and Tolstoy Marg by the competent authority till 25.06.2001 or till onset monsoon whichever was earlier. It is averred that the defendant had informed the plaintiff of its intention to carryout road cutting work and in this regard had sought information from J. C. Upadhya, Engineer of the plaintiff who personally visited the site on 20.06.2001 and identified the area and depth where the cables of the plaintiff were laid. It is averred that defendant laid down its cables well below 4.5 feet and were also using GPRS. It is averred that the defendant laid down the cables as per the CS No.64/17 MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 3 of 12 instructions of Mr. J. C. Upadhya. It is averred that the defendant did not cause any damage either to the properties/cables belonging to the plaintiff. It is averred that the alleged damage, if any, might have been caused by its own negligence/lack of maintenance etc. In para 4 of the written statement, it is stated, "Even though alleged damage to the cables of the plaintiff is not attributable to any action or inaction on the part of the answering defendant, the answering defendant immediately on coming to know of the damage to the cables of the plaintiff provided plaintiff with all assistance such as labour, tent to cover the area, equipments etc on its own even though the answering defendant was not obliged to do so in law or otherwise." It is averred that the defendant had at all times prior to commencing of digging work intimated to all utilities including plaintiff whose pipes/cables pass through the area requesting them to intimate where their cables were laid. Defendant has denied that due to the negligent and careless digging work carried out by it, the plaintiff has suffered monitory loss much less the loss of goodwill. The defendant has prayed that the suit of the plaintiff be dismissed with costs.
4. The plaintiff in its replication has denied the averments made by defendant in its written statement and has reiterated the contents of the plaint. The plaintiff has denied that defendant had ever sought information form Mr. J.C. Upadhyay, Engineer of the plaintiff or he (Mr. Upadhya) identified the area where the cables of the plaintiff were laid.
5. On the basis of the above pleadings, following issues were framed:
i). Whether the plaint is instituted, signed and verified by a duly authorized person? OPP.
CS No.64/17MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 4 of 12
ii). Whether the suit discloses any cause of action against the defendant no.1? OPP.
iii). Whether the suit has been properly filed for the purpose of court fees? OPD.
iv). Whether the suit is bad for misjoinder of parties? OPD.
v). Whether the plaintiff is entitled to damages, if so, for what amount? OPP.
vi). Relief.
6. Plaintiffcompany, in support of its case, has examined Sh. O.P. Chhabra, Chief Accounts Officer (Legal), MTNL, Khurshidlal Bhawan, Janpath, New Delhi as PW1 and Sh. M.M. Pathak, C.O. Sanchar Haat, Jor Bagh, Exchange, New Delhi and as PW2. The defendant did not examine any witness in their defence.
7. PW1 has deposed that the present suit is signed, verified and filed by Mr. Q. M. I Hussain for and on behalf of plaintiff company. He has proved power of attorney/notification in this regard as Ex. PW1/1. He has deposed on the lines of the averments made in the plaint. He has proved road cutting permissions dated 31.01.2001 and 12.06.2001 as Ex. PW1/2 and PW1/3 respectively; Photographs as Ex. PW1/4, Ex. PW1/4A to PW1/4H; MCD circular dated 22.06.2001 and NOC granted by DCP as Ex. PW1/5 and PW1/6 respectively; Copy of the code of conduct in respect of road maintenance as Ex. PW1/7 and Newspaper reports as Ex. PW1/8 and Ex. PW1/9.
8. During crossexamination, PW1 has admitted that he had not seen the alleged damage personally on 26.06.2001 and 27.06.2001. He has admitted that in Delhi apart from the defendant no. 1, the cables were being CS No.64/17 MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 5 of 12 laid by other companies also. He has admitted that the photographs on record were not taken by him personally or under his supervision. Photographs Ex. PW1/4, Ex. PW1/4A to PW1/4H were shown to the witness and he categorically deposed to the effect, "Ofcourse there is no indication of Tolstoy Marg on the STD. Volunteered but I am visiting in the vicinity for the last 10 years, so I can recognize the area." PW1 has admitted during his crossexamination that he did not file any supporting document whether in the form of invoices or otherwise including the payments made to any person with respect to the expenditure for the loss as stated in para 17 of the affidavit by way of evidence.
9. PW2 Sh. M. M. Pathak has deposed that during the year 2001 he was working as SDE (CableI) at KBN Division of plaintiffcompany and has personal knowledge of this case. He has corroborated the testimony of PW1.
10. During his crossexamination, he has denied the suggestion that the plaintiff has not deliberately filed drawings/plans to avoid on coming on record the fact regarding status or distances between two cables. He has admitted that he was not personally present when the alleged damage to the cables of the plaintiff took place. He has admitted that apart from defendant, other companies were also laying their cables on the same location. He has denied the suggestion that Bharti Telecom was carrying on its work on the same spot. He has admitted that after lodging the complaint to the police regarding the damage, they did not pursue the same. He has denied the suggestion that the work was done by defendant on the spot on the instructions of Sh. J. C. Upadhya. PW2 could not tell whether the defendant has used GPRS equipment and two cable locators while digging CS No.64/17 MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 6 of 12 so that no damage be caused to the other cables. PW2 has denied the suggestion that the damage to the cables of the plaintiff was caused by other agencies, who were working in the same area and not by defendant. He has further denied of having receipt any intimation from the defendant before the start of the work.
11. I have heard Ekta Sikri, Ld. Counsel for the plaintiff and Sh. Sanjay Gupta, Ld. Counsel for the defendant. Ld. Counsel for plaintiff has contended that defendant filed their evidence by way of affidavit. However, the defendant did not prove the same by tendering or producing witness before the court and, as such, the evidence by way of affidavit of defendant cannot be read as evidence. Secondly, it is contended that though defendant has denied in the written statement that the damage caused to the cables is not attributable to trenching/digging work, however, defendant has stated that they provided the plaintiff well assistance when they came to know about the damage to the plaintiff's cables even though they were not obliged to do so in law or otherwise. According to her, it amounts to admission on the part of defendant that plaintiff's cables were damaged. Thirdly, it is contended that plaintiff has been able to prove the negligence on the part of defendant which resulted in causing loss to the plaintiff. She has prayed that the suit of plaintiff be decreed with interest and costs. In support of her contentions, she has relied upon judgments Ripen Kumar Vs. Department of Customs, 2001 Criminal Law Journal 1288; Vohra Sadikbhai Vs. State of Gujarat, (2016) 12 SCC 1; Jay Lakshmi Salt Works (P) Ltd. Vs. State of Gujarat, JT 1994 (3) SC 492 and Saisudhir Energy Ltd. Vs. NTPC, (2016) 235 DLT (CN) 5.
12. On the other hand, Ld. Counsel for defenant has contended that CS No.64/17 MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 7 of 12 the defendant did not carry out any digging/trenching work after the date of expiry of the permission i.e. after 25.06.2001. Secondly, it is contended that the defendant was not the only company in the area who was permitted to lay cables and, as such, it has not been proved that alleged damage was caused by the defendant. Thirdly, Ld. Counsel has contended that neither the site has been identified nor any loss has been proved in accordance with law and, as such, the suit of plaintiff is liable to be dismissed with costs.
13. I have gone through the file. My issue wise findings are as under: ISSUE NO. 1
14. The onus of this issue is on the plaintiff. PW1 has deposed that the present suit has been signed, verified and filed by Mr. Q. M. I. Hussain for and on behalf of the plaintiffcompany. He has deposed that he was authorized to file the suit on behalf of the plaintiffcompany. He has proved the power of attorney/notification in this regard as Ex. PW1/1. Thus, its stands proved that the present suit has been filed by competent person. Hence, this issue is decided in favour of plaintiff and against the defendant.
ISSUE NO. 315. The onus of this issue is on the defendant. However, defendant has not examined any witness to prove this issue. Hence, this issue is decided against the defendant and in favour of plaintiff.
ISSUE NO. 416. The onus of this issue is on the defendant. However, defendant has not examined any witness to prove this issue. Hence, this issue is decided against the defendant and in favour of plaintiff.
CS No.64/17MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 8 of 12 ISSUE NO. 2 & 5
17. Since these issues are inter linked, they are being decided together. The onus of these issues is on the plaintiff.
18. A perusal of the plaint shows that loss caused to the plaintiff has not been specifically denied by the defendant in its written statement. Defendant has admitted the fact that the plaintiff's cables were damaged and the defendant company provided the plaintiff well assistance even though they were not obliged to do so in law or otherwise. Thus, it stands proved that the plaintiff's cables were damaged as claimed in the plaint.
19. Ld. counsel for defendant has vehemently contended that the site in question i.e. Tolstoy Marg, New Delhi has not been identified by the plaintiff inasmuch as the plaintiff has not filed the negatives of the photographs which are placed on record. A perusal of the record shows that plaintiff has exhibited the photographs of the area in question which are marked as Exhibit PW1/4 to Exhibit PW1/4H. The said photographs have been corroborated by PW1. PW1 in his crossexamination was repeatedly shown the aforesaid photographs by the counsel of the defendant and PW1 categorically identified the site in question and has stated since he was visiting the vicinity for the last 10 years, he could recognize the area. The relevant portion of the crossexamination is read as under: " Q. Is there anything to show in the photograph Ex, PW1/4, Ex. PW1/A to 4H to show that these photographs pertain to the area of Tolstoy Marg?
Ans. The staff quarters are shown in the photographs which are opposite to Tolstoy Marg which are near to Atul Grove Road. Q. Is there any indication that the words "Tolstoy Marg" is written by any Government Agency in these photographs. Ans. There is no indication depicted in any of the photographs showing any board or signage of Tolstoy Marg as put by the Government Agency. Volunteered: The pillar no. KBN 29 is CS No.64/17 MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 9 of 12 mentioned and shown in the photograph Ex. PW1/4C which number is given by the plaintiff in the area of Tolstoy Marg. Q. I put it to you that in no other photograph except Ex. PW1/4C there is no indication of the plaintiff that these are the photographs of Tolstoy Marg.
Ans. It is correct that there is no indication by the plaintiff of the Tolstoy Marg in any of the photographs. Volunteered: since my office is there in the vicinity I can recognize from Ex. PW1/4 that is of Tolstoy Marg.
Q. Is there any special construction with regard to quarters shown in Ex. PW1/4 by which you can say that these are of Tolstoy Marg? Ans. These are multistorey quarters and on the corner there is a STD/PCO.
Q. I again pout to you that there was no indication on the STD PCO that it is the Tolstoy Marg?
Ans.Of course there is no indication of Tolstoy Marg on the STD. Vol. but I am visiting in the vicinity for the last 10 years, so I can recognize the area."
(Emphasis mine)
20. Thus, from the testimony of PW1 it stands prove that the photographs pertain to the area of Tolstoy Marg as the witness has identified the same on the basis of his personal knowledge. The testimony of PW1 in this regard is reliable and trustworthy as the witness had been visiting the area on account of his posting/duty in MTNL. In these circumstances, non filing of the negatives of the photographs is of little consequence.
21. Defendant was supposed to undertake following duties/ statutory obligations
(i) Not to carry out digging/trenching work beyond 25.06.2001.
(ii) Use of GPRS Technique while carrying out trenching work.
(iii) To give prior Information/intimation to concerned officer before carrying out trenching work at Tolstoy Marg, New Delhi CS No.64/17 MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 10 of 12
22. The defendant in its entire written statement has not denied that it had to undertake the aforementioned duties. However, it is constant case of the defendant that they undertook the following acts:
(i) Did not carry out digging/trenching work beyond permitted date;
(ii) Used GPRS Technique; and
(iii) Informed Mr. J.C. Upadhyay, Concerned official of the
plaintiff.
23. The plaintiff has led its evidence in affirmative to prove that the defendant failed to undertake the statutory obligations/duties and, consequently, caused loss to the plaintiff. The onus, thereupon, shifted to the defendant to prove its defence. As per defendant, it had indeed undertaken the aforementioned obligations. However, defendant has failed to lead any evidence in support of its defence.
24. In judgment Vohra Sadikbhai Rajakbhai (supra), it has been held that even in the absence of evidence showing exact loss suffered, the plaintiff would still be entitled to reasonable compensation once factum of liability of defendant for loss suffered by plaintiff stands proved. It has been proved that the defendant carried on the digging/trenching work beyond the permitted date and because of their negligence, the plaintiff's cables were damaged. The plaintiff has not led any evidence to show the actual cost incurred by it for proving the loss suffered, in order to arrive at the precise quantum of damages. No bills/invoices have been proved by the plaintiff to prove the loss of Rs. 33 Lakhs as mentioned in para 17 and para 11 of evidence by way of affidavits of PW1 and PW2 respectively. However, even in the absence of such an evidence showing exact loss suffered, the CS No.64/17 MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 11 of 12 plaintiff would still be entitled to reasonable compensation once factum of suffering loss stands proved. Where a wrong has been committed, the wrongdoer must suffer from the impossibility of accurately ascertaining the amount of damages. The party claiming compensation must give the best evidence to prove the damages. The plaintiff has claimed damages of Rs. 33 Lakhs for which no specific proof/evidence is given. Newspaper reportings Ex. PW1/8 and PW1/9 show the inconvenience and hazard to life and property faced by the public. Therefore, it stands proved that the loss has occurred and, therefore, a reasonable compensation should be awarded to the plaintiff. I am of the opinion that ends of justice would be met in awarding damages to the tune of Rs.15 Lakhs (Rs.10 Lakhs for loss of goodwill and Rs.5 Lakhs for inconvenience).
RELIEF
25. As I have decided all the issues in favour of plaintiff and against the defendant, the suit of plaintiff is liable to be decreed. Hence, the suit of plaintiff is decreed for sum of Rs.15 Lakhs. The plaintiff shall also be entitled to interest from the date of judgment @ 9 % per annum till its realization with proportionate costs. Decree sheet be prepared accordingly.
File be consigned to record room. PRAVEEN Digitally signed by
PRAVEEN KUMAR
KUMAR Date: 2018.05.10
08:26:32 +0530
Dictated and announced in (PRAVEEN KUMAR)
open court today i.e. on 09.05.2018. Additional District Judge05, New Delhi District , Patiala House Courts, New Delhi. (R) CS No.64/17 MTNL VS. RELIANCE COMMUNICATION & ORS. Page no. 12 of 12