Kerala High Court
E.C.Cherian vs Bharat Sanchar Nigam Litd
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
MONDAY, THE 3RD DAY OF APRIL 2017/13TH CHAITHRA, 1939
RSA.No. 416 of 2010 (G)
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AGAINST THE JUDGMENT AND DECREE DATED 30-09-2009 IN AS 24/2007 of
ADDL.DISTRICT COURT(ADHOC-I), KOTTAYAM
AGAINST THE JUDGMENT AND DECREE DATED 09-11-2006 IN OS 262/2005
of MUNSIFF COURT,ETTUMANOOR
APPELLANT/RESPONDENT/DEFENDANT.:
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E.C.CHERIAN
S/O.CHERIAN
KUNNATHU CONSTRUCTIONS,
9/337, THELLAKOM P.O.,
KOTTAYAM.
BY ADVS.SRI.RAJEEV V.KURUP
SRI.ALEX.M.SCARIA
RESPONDENT/APPELLANT/PLAINTIFF.:
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BHARAT SANCHAR NIGAM LITD.
A COMPANY REGISTERED UNDER
THE COMPANIES ACT WITH ITS
CORPORATE OFFICE AT NEW DELHI
AND OFFICES ALL OVER INDIA
REPRESENTED BY ITS DIVISIONAL ENGINEER
ETTUMANOOR
BY ADV. SRI.MATHEWS K.PHILIP, SC, BSNL
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
03-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B. KEMAL PASHA, J.
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R.S.A. No.416 of 2010 G
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Dated this the 3rd day of April, 2017
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~ The defendant in O.S. No.262/2005 of the Munsiff's Court, Ettumanoor has come up by challenging the judgment and decree passed by the Additional District Court-I, Kottayam in A.S. No.24/2007.
2. The suit is one for damages. The Munsiff's Court, Ettumanoor partly decreed the suit by finding the entitlement of the plaintiff to get damages and at the same time, limiting the damages to nominal damages of 5,000/-. Aggrieved by the quantification made by the trial court, the plaintiff preferred A.S. No.24/2007 before the District Court, Kottayam. The Additional District Court-I, Kottayam allowed RSA.416/2010 : 2 : the appellant to realise an amount of 60,000/- with interest at the rate of 12% per annum from the date of suit till the date of realisation with costs, from the defendant and his assets and hence, this Second Appeal.
3. The plaintiff is Bharath Sanchar Nigam Limited (shortly called 'BSNL'). The case of the plaintiff is that the defendant, by exhibiting utter negligence, dug a portion of the road underneath which the BSNL optical fibre cable was drawn, thereby two numbers of hundred pair cables and four numbers of fifty pair cables were cut. The same had to be replaced. According to the plaintiff, standard rates all over India has been fixed for such damage to the optical fibre cables through Ext.A6, whereby the rates applicable to fifty pair cables and hundred pair cables is 10,000/- per cut as damages. Therefore, according to the plaintiff, an amount of 60,000/- by way of damages can be recovered from the defendant.
RSA.416/2010 : 3 :
4. The defendant contended that there was contributory negligence from the part of the plaintiff in laying the cables and the required minimum depth was not kept by the plaintiff in laying the cables. It has also been contended that the plaintiff has to prove actual damages sustained in order to claim damages in a case like this.
5. The trial court found that the plaintiff is entitled to realise damages from the defendant. At the same time, the trial court was of the view that the plaintiff ought to have proved actual damages by proving the amount actually spent by the plaintiff to replace the said cables and to set right the cables. Without relying on the standard rates fixed in Ext.A6, the trial court found that the plaintiff is entitled to nominal damages thereby fixing such damages at 5,000/-. The lower appellate court has found that the standard rates fixed as per Ext.A6 for all places all over India has to be applied in a case like this.
RSA.416/2010 : 4 :
6. This Court has admitted the Second Appeal on the following substantial questions of law raised in the Appeal Memorandum:
"A. Can the documents (Ext.A6 and
A7) which were intended to be used as an
internal departmental circular to have
uniformity in fixing the laying and repairing charges of the cable be used as an evidence to see as to what is the actual damages to be allowed in a suit on the destruction of cables? If not, is not the impugned first appellate judgment liable to be set aside?
B. Can an appellate court grant interest on the quantum of damages at a flat rate of 12% till realization, without considering the mandate of S.34 of the CPC that the interest after the decree should not exceed 6% especially when there is no claim for interest in the plaint in a suit for damages?
C. Is the appellate court justified in granting costs of the appeal when there were no grounds for the same against the RSA.416/2010 : 5 : defendant in an appeal for enhancement of compensation?"
7. The learned counsel for the appellant has argued that unless and until the actual damage is proved, no decree can be passed for an amount of 60,000/- in favour of the plaintiff. It has also been argued that even though a cross objection has not been filed, the aspect of contributory negligence can be decided in this appeal also. It has been further argued that under Order XLI Rule 33 CPC, the lower appellate court ought to have considered the aspect of contributory negligence and ought to have rendered a judgment on that aspect also.
8. Per contra, learned Standing Counsel for the respondent has argued that in the case of tortious liability, in order to fix the quantum, the lower appellate court has correctly applied the data given in Ext.A6, which is applicable all over India. The said standard rates ought to have been applied by the trial court and instead of that, the RSA.416/2010 : 6 : trial court, without relying the contents of Ext.A6, had fixed nominal damages. It has also been argued that in the absence of any cross objection before the lower appellate court from the part of the defendant, the appellant cannot be presently heard to say anything about contributory negligence or any aspect regarding negligence when entitlement of the plaintiff to realise damages has been concurrently found by the trial court as well as the lower appellate court.
9. It is true that even without a cross objection, such matters can be agitated by the defendant against whom such a finding has been entered in an appeal, within the meaning of Order XLI Rule 33 CPC. At the same time, the question to be considered in this particular case is that when the entitlement of the plaintiff to realise damages was found by the trial court, whether the present appeal is justified in not preferring a cross objection before the lower appellate RSA.416/2010 : 7 : court? When such a specific finding has been entered, it clearly invites the application of the Explanation to Order XLI Rule 22(1) CPC. In a case like this, when there was a specific finding with regard to the entitlement of the plaintiff to realise damages, the appellant ought to have challenged the said finding through a cross objection before the lower appellate court. The power under Order XLI Rule 33 CPC to decide such aspects also even in the absence of a cross objection, is a power given to the court and it is not a power given to the appellant. The appellant ought to have invoked their entitlement to have a cross objection adjudicated under the Explanation to Order XLI Rule 22(1) CPC. When concurrent findings of facts are made by both the courts below, this Court cannot interfere with such findings of facts in the Second Appeal.
10. Therefore, as rightly pointed out by the learned Standing Counsel for the respondent, the question at the RSA.416/2010 : 8 : most that can be considered in the Second Appeal is with regard to the quantum of damages allowed by the lower appellate court especially when it is a divergent finding. According to the learned counsel for the appellant, the plaintiff is entitled to actual damages only and nothing more.
11. At the same time, it has to be considered that here, the liability to pay damages has not arisen from any contributory negligence whereas, it is by way of tortious liability. BSNL had drawn cables underneath the road. That was cut on account of the negligence from the defendant. In such case, it gives rights to a tortious liability and not a contractual liability. There was no contract between the defendant and the plaintiff. The defendant is altogether a stranger as far as the plaintiff is concerned. Therefore, the liability regarding the actual damages within the meaning of the Indian Contract Act does not arise in a case like this.
12. At the same time, there must be some data to fix RSA.416/2010 : 9 : the damages to which the plaintiff is entitled. Ext.A6 is a circular issued by the plaintiff on 06.10.2003. The said circular is applicable to places all over India. Rates have been fixed when cables are cut. It shows that as per the standard rates, the damages to be paid in the case of cables cut is at the rate of 10,000/- per cut for fifty pair cables as well as hundred pair cables. There is no meaning in contending that the rates fixed in Ext.A6 cannot be granted without the proof of actual expenses incurred by the plaintiff for replacing cables. The said rates of damages are not fixed for the replacement of the cables whereas, the said rates have been fixed in the case of cut of cables. Admittedly, cables were cut. There is no dispute to the fact that two numbers of hundred pair cables and four numbers of fifty pair cables were cut. In such case, when cables were cut, the rates fixed in Ext.A6 is applicable when it is a case of tortious liability. There is absolutely nothing to RSA.416/2010 : 10 : interfere with the quantification made by the lower appellate court regarding damages in this case. The plaintiff is entitled to realise an amount of 60,000/- as on the date of suit as damages from the defendant and his assets.
13. The learned counsel for the appellant has pointed out that being a tortious liability, the plaintiff is not entitled to interest on the amount of damages. As stated above, the liability has not arisen from a contractual obligation. The amount claimed as 60,000/- by way of damages was the amount due to the plaintiff from the defendant as on the date of suit. Therefore, the plaintiff is entitled to interest for the said amount from the date of suit till date of realisation.
14. It seems that the lower appellate court has fixed the rate of interest at 12% per annum. The said rate, according to this Court, is on the higher side when there is no plea that the transaction is one of commercial in nature. In such case, the normal rate of interest alone can be RSA.416/2010 : 11 : charged. This Court is of the view that the plaintiff is entitled to realise an amount of 60,000/- with interest at the rate of 6% per annum from the date of suit till date of realisation from the defendant and his movable and immovable assets.
In the result, this Regular Second Appeal is allowed in part with the above modification in the judgment and decree of the lower appellate court regarding interest. In the nature of this appeal, parties shall bear their respective costs. All pending interlocutory applications in this appeal will stand closed.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/03/04 // True Copy // PA to Judge