Karnataka High Court
Smt K S Nandini vs Bangalore Mahanagara Palike (Bmp) on 6 June, 2019
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
R.F.A.No.2094 OF 2006
BETWEEN:
Smt. K.S.Nandini,
Aged about 62 years,
W/o. Mr. K.R.Subramanya,
No.38/106, 11th Main,
12th Cross, Malleshwaram,
Bangalore-560 003. ...Appellant
(By Sri.Satyanarayana, Advocate)
AND:
Bangalore Mahanagara Palike (B.M.P.),
Formerly called as Bangalore
City Corporation (B.C.C.),
J.C.Road,
Bangalore-560 002.
Represented by its Commissioner. ...Respondent
(By Sri.H.S.Prashanth, Advocate)
This Regular First Appeal is filed under Section 96 of
the Code of Civil Procedure, 1908, against the Judgment and
Decree Dated:22.07.2006 passed in OS.No.393/2003 on the
file of the IX Additional City Civil Judge, Bangalore (CCH-10),
dismissing the suit for recovery of money.
2 RFA.No.2094/2006
This Regular First Appeal coming on for Hearing this
day, the Court delivered the following:
JUDGMENT
The present appellant as a plaintiff, had instituted a suit against the present respondent in the Court of learned IX Addl.City Civil Judge, (CCH-10), Bengaluru City, (hereinafter for brevity referred to as `trial Court'), in O.S.No.393/2003, seeking a direction to the defendant/respondent to pay a sum of `39,000/- towards the expenses said to have been incurred by her for reconstructing the compound wall, together with future interest at the rate of 18% p.a.
2. The summary of the case of the plaintiff in the trial Court is that she being the absolute owner of the residential premises bearing No.38/106, situated at 11th Main, 12th Cross, Malleswaram, Bengaluru-560 003, which is the suit schedule property, has been in occupation of the said property. On 12.6.2002, at about 3 RFA.No.2094/2006 3.30 p.m., the employees of the defendant-Corporation on the pretext of cleaning the drainage in front of the suit schedule property, removed the slabs covered on the drainage and while doing so, they damaged the foundation and compound wall of the schedule property. Due to the said act of the Corporation employees, the entire western side of the compound wall of the suit schedule property collapsed. On the very same day, the plaintiff lodged a police complaint.
On 13.6.2002, she also lodged a complaint with Assistant Executive Engineer of the defendant- Corporation requesting him to visit the spot and reconstruct the compound wall. Since the defendant- authority did not made any effort to reconstruct the compound wall, the plaintiff caused a legal notice to the defendant-Corporation on 17.6.2002, calling upon them to construct the compound wall, failing which, the 4 RFA.No.2094/2006 plaintiff would reconstruct the compound wall at her cost and would recover the same from the defendant- Corporation.
3. Since the defendant-Corporation once again failed to respond to the said notice, the plaintiff on 25.7.2002, issued one more legal notice calling upon the defendant-Corporation to reimburse her the expenses incurred by her in reconstructing the said compound wall, which was at `39,000/-. As the defendant- Corporation failed to comply the demand made in the legal notice, she was constrained to institute a suit against them before the trial Court in O.S.No.393/2003.
4. The defendant-Corporation appeared in the suit and filed its written statement, wherein, though it did not deny or dispute the collapse of the compound wall, but, it denied that the said falling of the compound wall was due to the negligent act on the part of the 5 RFA.No.2094/2006 Corporation workers. On the other hand, it took a contention that the construction of the foundation and compound wall was of a poor quality, as such, while the Mahanagara Palike workers were working near the said site, the foundation and the compound wall collapsed by themselves. As such, it refuted its alleged liability to compensate the plaintiff.
5. Based on the pleadings of the parties, the trial Court framed the following issues :
1) Whether the plaintiff proves that due to the negligent acts of the officials of the defendant, the western compound wall of her building collapsed?
2) Whether the plaintiff proves that she had to spent `39,000/- for the reconstruction of the damaged compound wall which was collapsed due to the negligent acts of the officials of the defendant?
3) Whether the plaintiff is entitled to the damages as claimed?6 RFA.No.2094/2006
4) Whether the plaintiff is entitled to interest on her claim of damages, if so at what rates?
5) What order or Decree?
The plaintiff got herself examined as PW-1 and got marked documents from Exs.P-1 to P.14(a). The defendant got examined one Sri.K.S.Kiran, its Assistant Executive Engineer, Malleshwaram, Bengaluru, as DW-1 and documents at Exs.D-1 to D-2 were marked. After hearing both side, the trial Court by its impugned judgment dated 22.7.2006, dismissed the suit of the plaintiff. It is against the said judgment, the plaintiff has preferred this appeal.
6. Lower Court records were summoned and the same are placed before this Court.
7.Heard the learned counsel for the appellant. In spite of granting sufficient opportunities, no arguments were addressed from the respondent's side. 7 RFA.No.2094/2006
8. Perused the memorandum of appeal, impugned judgment and the material placed before this Court.
9. The only point that arises for my consideration is :
Whether the judgment of the trial Court deserves to be set aside and the suit deserves to be decreed as prayed?
The plaintiff as PW-1 in her evidence has reiterated the contentions taken up by her in her plaint. She has specifically stated that it was because of the negligent act on the part of the Corporation workers, the foundation of her building, as well the compound wall got damaged and the entire compound wall on its western side collapsed. She has also stated that, in that connection, she has lodged a police complaint, which she has marked as Ex.P-1 and issued notice to the defendant/respondent Corporation, a copy of which is marked at Ex.P-3. The postal acknowledgements which 8 RFA.No.2094/2006 she has marked are at Exs.P-4 and P-5 and another notice said to have been sent to the defendant- Corporation also she has produced and got it marked at Ex.P-6 and the postal acknowledgements at Exs.P-7 to P-9. She has produced an estimation copy said to have been issued by a Civil Contractor by name Sri.V.Gangadhar and bills at Exs.P-10 and P-11 and she has also produced a receipt said to have been issued by the very same Contractor acknowledging the receipt of a consideration of `39,000/- for executing the compound wall erecting work at Ex.P-12. She has produced two photographs of the alleged portion of the foundation of the compound wall said to have been collapsed and marked them as Exs.P-13 and P-14.
10. The defendant-Corporation in its written statement has admitted that a repair work in the drainage adjoining to the suit schedule property was 9 RFA.No.2094/2006 undertaken by the defendant-Corporation through its employees on 12.6.2002. The defendant-Corporation in its written statement has also not denied that there was damage to the foundation of the suit schedule property and collapse at the western side of the compound wall of the said property. However, its contention in the written statement, as well in the evidence of DW-1 is only that, there is no fault of the Corporation employees in the said collapse of the compound wall and that the said wall has collapsed because of its poor quality.
Even in the cross-examination of PW-1 also, the defendant-Corporation has not denied that there was no cleaning work of the drainage, which is said to be adjacent to the suit schedule property. On the other hand, it was suggested that desilting work of the drainage was undertaken by the Corporation because of the rainy season and that the compound wall was 10 RFA.No.2094/2006 erected encroaching the Corporation property, particularly, the drainage, as such, while the Corporation officials were doing their work, because of the poor quality of the compound wall, it collapsed. The said suggestion made to PW-1 in her cross-examination was not admitted as true by her. Except making the said suggestion in its very brief cross-examination of PW-1, nothing was elicited in the cross-examination of PW-1 from the defendant's side.
11. On the other hand, DW-1 K.S.Kiran, who has reiterated the contentions taken up by the defendant- Corporation in his examination-in-chief filed in the form of affidavit, has in his cross-examination, clearly admitted a suggestion that he has no personal knowledge about the facts of this case and that only on the basis of the records maintained in the office, he has given his evidence in the suit. Therefore, even 11 RFA.No.2094/2006 according to DW-1, his evidence in the examination-in- chief that the alleged compound wall was built of a poor quality of material and so also the foundation, was said to be only based on the records said to have been maintained by his Corporation. If that were to be the case, then, it was required of him to produce those necessary documents said to have been maintained by the defendant-Corporation to show that the foundation, as well, the western side of compound wall of the suit schedule property was of poor quality. Admittedly, except a copy of the complaint lodged by the plaintiff with the Corporation, which is at Ex.D-1 and Inspection report at Ex.D-2, the defendant-Corporation has not produced any documents in support of its contention that the construction quality of the foundation and the compound wall was of poor quality.
12 RFA.No.2094/2006
12. A perusal of Ex.D-2 also would go to show that it is an internal note by one of its official who has stated about the extent of collapsing of the compound wall and stated that in the said western side of the compound wall, some of the workers of the Corporation have also sustained injuries and they were taken to the hospital. The spot inspection has shown that the compound wall was put up without any foundation to it. However, the plaintiff has disputed the correctness of the said document at Ex.D-2.
13. Admittedly, Ex.D-2 is an internal note by one section of the defendant-Corporation to his superior with respect to the alleged incident. The said note clearly admits the alleged incident of collapsing of the compound wall. However, it no where says as to when the alleged local inspection was made by the Corporation Officials and whether such an intimation of 13 RFA.No.2094/2006 the local inspection was given to the plaintiff who is said to be the owner of the premises and also whether any report with respect to the local inspection has been prepared. Neither the evidence of DW-1 throws any light in that regard nor any of the documents were produced by the defendant-Corporation as exhibits from its side. Even Ex.D-2 is also silent about the said aspect. Had really the Corporation authorities have visited the spot and conducted the inspection or enquiry in the matter, then, definitely there should have been some documentation in that regard and also furnishing a copy of the said inspection report was expected to have been made upon the plaintiff. Admittedly, no such document, including any report of the local inspection, has been placed by the Corporation in the matter. As such, mere production of Ex.D-2 would not by itself lead the Court to believe that any such local inspection was conducted by the Corporation in the presence of the 14 RFA.No.2094/2006 plaintiff and any report with respect to the damage caused to the property of the plaintiff was made/prepared or assessed from the Corporation side.
Secondly, it is also not in dispute that the Corporation was in receipt of both the notices issued by the plaintiff, which are marked at Exs.P-3 and P-6. When specific allegation is made in those two notices about the wrongful act on the part of the defendant- Corporation and the said act leading to collapsing of the compound wall and foundation of the suit schedule property and also plaintiff incurring expenses in rebuilding the compound wall, the Corporation has not bothered to respond to the said notices. As such, at a belated stage, the Corporation has come with a vague defence that the quality of the compound wall which collapsed was poor which shows that it is an after thought.
15 RFA.No.2094/2006
Thirdly, the contention of the Corporation that there was encroachment of compound wall on the Corporation drainage is also not accepted for the reason that, DW-1 in his cross-examination has admitted a clear suggestion that, in case of any alleged encroachment by any of the persons on the Corporation property, the Corporation would definitely issue a notice to the alleged encroacher with respect to the same. Admittedly, in the case on hand, the Corporation has not issued any such notice to the plaintiff.
In addition to the above, the Corporation also has not produced any material to show that there was any encroachment of the Corporation drainage or property by the plaintiff. Therefore, in the absence of any such material, mere contention that there was encroachment upon the Corporation drainage by the plaintiff also 16 RFA.No.2094/2006 cannot be accepted for the limited purpose of disposal of the suit.
Fourthly, the contention of the plaintiff that during the alleged desilting activity by the Corporation officials on 12.6.2002, the foundation of the suit schedule premises and also the compound wall built thereon got collapsed, has not been specifically denied in the written statement. Even in the evidence of their witness also, it is not denied that there was damage to the foundation and also to the compound wall. When it is not denied that there was damage to the foundation also, then, the very report at Ex.D-2 that there was no foundation and directly the compound wall was erected proves that the said report at Ex.D-2 is false within itself.
Added to that, the trial Court too has made an observation in its judgment that the foundation was laid with size stones. So, the said specific undisputed finding 17 RFA.No.2094/2006 of the trial Court also go to show that there was foundation beneath the land and both, foundation and the compound wall got damaged and collapsed in the alleged act of the defendant-Corporation. Thus, it is clearly proved that the suit schedule premise has got a compound wall built upon the foundation on its western side and the said compound wall and foundation got damaged resulting in collapsing of the compound wall due to the negligent act on the part of the defendant- Corporation officials on 12.6.2002. However, the trial Court confining its finding only to Exs.P-13 and P-14, on its own, came to a conclusion that the photographs depicts that instead of cement, it was only the clay that was used in erecting the compound, as such, it was because of the poor quality, the compound wall was collapsed.
18 RFA.No.2094/2006
14. The said reason given by the trial Court is not acceptable for the reason that, in the absence of any evidence and without there being any confrontation of the said document with PW-1 suggesting to the witness that the photographs shows the erecting of the compound wall with inappropriate and poor quality material, the trial Court by itself should not have been assumed the quality of the compound wall. As such, the finding of the trial Court that the compound wall was that of poor quality, as such, it got collapsed, cannot be accepted.
On the other hand, the evidence placed before the Court clearly go to show that the collapsing of the compound wall and damage to the foundation was clearly because of the negligent act on the part of the officials of the defendant-Corporation, for which, they are liable to pay compensation to the plaintiff. 19 RFA.No.2094/2006
15. The plaintiff also got produced Exs.P-10 to 12 in support of her contention that she has spent a sum of `39,000/- towards re-erection of the said portion of the compound wall. As already observed above, Exs.P-10 and 11 being the estimation and the report by a Civil Contractor and Ex.P-12 being a receipt for the payment made to him by the plaintiff for a sum of `39,000/-, those documents clearly go to show that the plaintiff has proceeded on getting an estimation report by a Civil Contractor before re-erecting the compound wall and since the defendant-Corporation did not take any step in re-erecting the compound, she proceeded with the work, for which, she has incurred an expense of `39,000/-. Those expenses have not been specifically disputed in the cross-examination of PW-1. As such, it is clearly proved that the plaintiff has incurred an expense of `39,000/- in the re-erection of the said portion of collapsed compound wall. The said amount is required 20 RFA.No.2094/2006 to be reimbursed to her by the defendant-Corporation, at whose negligent act, collapsing of the said compound wall had taken place.
16. However, the claim of interest made by the plaintiff at the rate of 18% p.a. on the said amount being very much on the higher side, I am of the view that, in the circumstances of the case and as the alleged damage is not being with respect to any commercial transaction, the rate of interest be confined to only 6% p.a.
17. Accordingly, I proceed to pass the following order:
ORDER The Appeal is allowed. The judgment and decree dated 22.7.2006, passed by the learned IX Addl.City Civil Judge, (CCH-10), Bengaluru, in O.S.No.393/2003, is set aside. The suit of the plaintiff is decreed. It is held that the plaintiff is entitled for a recovery of a sum 21 RFA.No.2094/2006 of `39,000/- with interest at the rate of 6% p.a. from the date of the suit till the date of its realisation from the defendant-Corporation.
Draw decree accordingly.
The refund of the Court fee to the appellant would be in accordance with law.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.
Sd/-
JUDGE bk/