Karnataka High Court
Sai Consturctions Transmission Line vs Karnataka Power Transmission ... on 14 May, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14 T H DAY OF MAY, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.1715/2006(MON)
BETWEEN:
SAI CONSTURCTIONS,
TRANSMISSION LINE AND P.W.D. CONTRACTORS,
VERGHESE BUILDING,
PRAKASH COLONY, GADAG ROAD,
HUBLI
A PROPRIETORY CONCERN BY ITS PROPRIETOR
SRI MAHENDRA
S/O SUNDARLAL MAHAJAN,
AGED ABOUT 43 YEARS,
OCC: BUSINESS
HUBLI 580 020. ... APPELLANT
(BY SRI.DINESH M. KULKARNI, ADVOCATE)
AND:
1. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
REPRESENTED BY ITS SECRETARY,
CAUVERY BHAVAN,
BANGALORE 560 001.
2
2. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
MAJOR WORKS DIVISION,
HAVING AN OFFICE AT ELECTRIC GRID,
KARWAR ROAD, HUBLI
REPTD. BY ITS EXECUTIVE ENGINEER (ELE.)
HUBLI 580 021. ... RESPONDENTS
(BY SRI.SOMANATH M TONNE, ADVOCATE FOR
SRI. B.S. KAMATE, ADVOCATE FOR
RESPONDENT NOS.1 AND 2)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST
THE JUDGMENT & DECREE DT.16.3.2006 PASSED IN
R.A.NO.71/2004 ON THE FILE OF THE I ADDL.
DISTRICT AND SESSIONS JUDGE, DHARWAD,
SITTING AT HUBLI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE
DT.11.11.2003 PASSED IN O.S.NO.212/99 ON THE
FILE OF THE PRL. CIVIL JUDGE (SR.DN), HUBLI.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
JYOTI MULIMANI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and decree in RA No.71/2004 dated 16 t h March 2006 passed by the Court of the I Additional District and Sessions Judge, Dharwad, sitting at Hubli, whereby 3 the judgment and decree in O.S.No.212/1999 dated 11.11.2003 on the file of the Court of the Principal Civil Judge (Sr.Dn) Hubli, has been confirmed.
2. For the purpose of convenience, the ranking of the parties before the trial Court are retained.
3. Plaintiff filed the suit against the defendants No.1 and 2 for recovery of a sum of Rs.81,705.50/- with interest at the rate of 18% p.a. from the date of suit till realization.
4. It is the case of plaintiff that the second defendant had issued a work order in his favour on 19.10.1996 to carry out the work construction and erection of 110 KV DC TAP LINE to Belur, Industrial Area, Dharwad Taluk and District. The work order was issued at Hubli. An agreement was also entered into between the plaintiff and the defendants on 04.11.1996. As per the work order, plaintiff completed the construction and erection work of 7 4 towers and the same was inspected, certified and billed after making necessary entries in the measurement books by the defendants.
5. It is stated by plaintiff that all the erected 7 towers were in working condition when the Executive Engineer Electrical, KEB, certified the work.
It was stated by plaintiff that on 06.05.1998, the second tower of the suit towers from tapping 'A' type DC was found collapsed due to heavy wind and rains. The collapsing of the said tower was due to vis-major i.e., by the act of God. The damage was caused due to the heavy wind and rain and hence, he is not responsible for the collapse of second tower.
6. Plaintiff further stated that defendant No.2-KPTCL wrote letter on 12.05.1998 requesting him to carry out necessary repair works and to take up stub setting, erection and stringing etc., for the 5 collapsed tower. Considering the emergency, plaintiff took the work on top priority basis and completed the work and handed over the same to defendants - Authority. However, to keep good relation with the Authority and looking into the urgency and the nature of the work, plaintiff carried out the necessary work in the month of May, 1998. After completion of the work, he handed over the tower.
Hence, plaintiff urged that defendants are liable to pay for all such extra work that he had done in respect of collapsed second tower.
7. In this regard, plaintiff made request and demands to defendants to make payment of the bills. But defendants' officials went on postponing the settlement of bills on one or the other pretext and despite several requests; defendants neither prepared the estimation nor obtained necessary 6 sanction from the competent Authority for the payment of bills.
8. Therefore, plaintiff submitted details of cost of work done by him which was mentioned at Annexure-'A' and the cost has been worked out as per schedule of rates along with tender premium at 36.5% as prevailing on the date of execution of work.
Hence, it was the case of plaintiff that defendants are liable to make payment of amount of Rs.81,705.50/- along with interest at 18% per annum. Therefore, he initiated action against defendants by filing suit.
9. On service of summons, defendants appeared through their counsel and defendant No.2 filed written statement inter alia contended that the suit was not tenable under law and sought for framing of preliminary issue for the dismissal of the 7 suit as plaintiff had not exhausted the remedy of arbitration as provided under the agreement.
10. Defendant No.2 contended that the Assistant Executive Engineer Major Works wrote a letter to plaintiff on 23.03.1998 and pointed out uncalled work of 110 KV DC TAP LINE to Belur for the following uncalled work:
a. Providing armouring b. Revetting of lower bolts ends by heating by using oxy-Accty Line gas.
c. Grounding of towers and d. Coping works Thus, defendants repeatedly requested /intimated plaintiff to complete the work immediately. Defendant No.2 had also written a letter on 26.3.1998 directing plaintiff to complete the said uncalled work within 10 days. However, plaintiff did not attend and complete the work. 8
In view of the negligent act of plaintiff, the second tower from tapping 'A' type DC was collapsed probably on 06.05.1998. Other remaining 6 towers erected by plaintiff were unaffected.
It was also observed by defendants that some tower parts ('A' type tower) of the collapsed tower were found missing to the extent of 350 kgs and on account of this, the second tower was collapsed.
And it was also found that 12-15 numbers of connecting cross braces were found missing due to non-revetting of tower bolt ends by heating by using oxy-acetylene gas, non-grounding of tower etc., which was accessible to the miscreants to steal cross braces etc., which in turn resulted in weakening of the second tower and hence, the tower could not withstand the pressure of the natural calamities.
Therefore, defendants contended that it was purely an act of negligence on the part of plaintiff and hence, he is responsible and liable to re-erect 9 the collapsed tower at his own cost and risk as per the agreement.
Defendants specifically denied the fact that the tower was collapsed due to vis-major or by the act of God and that the contention of plaintiff that the collapse of tower was due to act of God was not accepted by defendants.
Therefore, defendants contended that plaintiff is not entitled to recover the suit claim as the collapse of tower was due to non-performance of his obligations / duties and responsibilities.
Defendants specifically urged that the Authority is not liable to pay any amount for the extra work done as alleged by plaintiff since plaintiff was expected to erect the towers properly and correct setting of towers as per the agreement. Since plaintiff has failed to carry the work properly, the second tower was collapsed. 10
Therefore, plaintiff has carried out the re-construction work and he is not entitled for extra expenditure as alleged by plaintiff. Thus, defendants contended that they are not at all liable to pay any amount in any manner. and accordingly prayed for dismissal of the suit with compensatory cost of Rs.5,000/-.
11. Based upon the above said pleadings, the trial Court has framed the following issues:
"1. Whether plaintiff establishes that as per work order and agreement present plaintiff has completed suit works as alleged in the plaint?
2. Whether plaintiff further establishes that one of the suit towers from tapping 'A' type DC was found collapsed due to heavy wind and rains hence plaintiff is neither responsible nor liable as alleged in the plaint?
3. Whether plaintiff establish that he has done extra work as per request of the 11 defendants, hence, plaintiff is entitled to recover to amount undertaken for extra work as alleged in the plaint?
4. Whether plaintiff proves that he is entitled for suit claim with interest?
5. Whether defendants establish that present suit is not maintainable without to relief to declaration as alleged in W.S.?
6. Whether defendants establish the present court does not have jurisdiction as alleged in W.S.?
7. Whether defendants establish that present suit is premature without exhausting the remedy of arbitration?
8. Whether defendants establish that due to negligence and fault of the plaintiff, said tower has collapsed, hence plaintiff shall re-construct the tower at his own risk and costs as alleged in W.S.?12
9. Whether defendants establish that suit tower has not collapsed by virtue of act of God?
10. Whether defendants are entitled for compensatory costs?
11. Whether plaintiff is entitled for reliefs sought?
12. What order or decree?"
12. On behalf of plaintiff, the owner of plaintiff's firm Shri.Mahendra was examined as PW-1 and has produced eight documents which were marked as Exs.P1to P8 and the officials of the Assistant Executive Engineers of the defendant were examined as DW-1 and DW-2 and they produced eleven documents which were marked as Exs.D1 to D11.
13. On appreciation of the materials on record, the trial court held issue Nos.1 to 7, 10 and 11 in the negative and issue Nos.8 and 9 in the affirmative. The trial Court dismissed the suit on the 11 t h day of November, 2003.
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14. Aggrieved by this judgment and decree, plaintiff preferred an appeal in R.A. No.71/2004 on the file of I Additional District and Sessions Judge, Dharwad, sitting at Hubli. The First Appellate Court has re-appreciated the entire materials on record and dismissed the appeal on the 16 t h day of March, 2006.
15. Therefore, plaintiff has filed this appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree of both the Courts below.
16. The appeal was admitted to consider the following substantial question of law:
"Whether the Courts below were justified in ignoring material documents
available in respect of plaintiff's case?"
17. Sri. Dinesh Kulkarni, learned counsel for appellant contended that the judgment and decree of 14 both the Courts below are against the facts and pleadings of the case.
18. He contended that both the Courts below have not properly read the terms of the agreement which is at Ex.P1. He submitted that both the Courts below have given much importance to Exs.D1 and D2 and erroneously come to the conclusion that there is lapse on the part of plaintiff.
19. He submitted that these documents are only instructions to plaintiff and after receiving the same, he has carried out work. Therefore, he submitted that the Courts below could not have relied upon Exs.D1 and D2.
20. It is submitted that defendants have certified the work of plaintiff and have even made necessary payments. The learned counsel for the appellant contended that both the Courts below have failed to appreciate Exs.D8, D11 and Ex.P4 and have 15 erroneously held that the tower had collapsed due to the negligence of the plaintiff.
21. It has been further contended that the Courts below have failed to notice that in Ex.D11, the Superintendent Engineer directed the second respondent to analyze the reasons for collapse of the second tower and if it is found that the cause for the collapse of tower was due to vis-major, then, the payment had to be made to the contractor and if the tower had collapsed on account of the negligent act of the contractor, i.e., plaintiff, the same has to be recovered by him.
Pursuant to that, the second respondent wrote a letter on 07.12.1999 and recommended for payment, but this aspect of the matter has not been appreciated by the Courts below and therefore, he submitted that the judgment and decree of both the Courts below are liable to be set aside. 16
22. Further submission was made that there is much variance and contradictions in the say of respondents which can be noticed from Exs.D1 to D10. There is a much discrepancy regarding quantity of theft and this shows doubt regarding the very fact of theft.
23. Lastly, he contended that the Courts below have failed to notice that DW-2 in his cross- examination at paragraph No.11 has admitted that plaintiff had completed the reconstruction work within two days from the date of collapse of tower and that is also evident from their own document Exs.D3 and D5, wherein it is stated that the plaintiff had commenced re-erection work on 11.05.1998 itself and completed on 12.05.1998, as the line had to be commissioned on 15.05.1998 as requested by the respondents- Authority.
On the other hand, the letter dated 12.05.1998, itself discloses that plaintiff had to carry out the 17 work at his cost with the assurance that the cost of reconstruction would be paid separately after the completion of the work.
24. Therefore, counsel for appellant submitted that the Courts below have totally misread the oral and documentary evidence on record and have erroneously proceeded to reject the claim of the plaintiff.
25. Hence, he prayed that this appeal raises a substantial question of law and accordingly, he prayed that the appeal may be allowed.
26. The learned counsel Sri Somanath M. Tonne appearing on behalf of Sri B.S. Kamate for the respondents submitted that defendants observed that some tower parts ('A' type tower) of the collapsed tower were found missing to the extent of 350 kgs.
18
On account of this, the tower was collapsed and further 12-15 connecting cross braces found missing due to non-revetting of tower bolt ends by heating by using oxy-acetylene gas, non-grounding of tower etc., which was accessible to the miscreants to steal cross braces etc., which weakened the tower. Hence, the tower could not withstand the pressure of the natural calamities.
Therefore, he submitted that it was obligatory on the part of the plaintiff to attend certain uncalled work and that he had to attend the same within 10 days. But plaintiff did not attend to the same. Therefore, defendant No.2 was constrained to write a letter on 26.3.1999 directing the plaintiff to complete the said uncalled work within 10 days.
27. However, plaintiff did not attend and complete the work. He submitted to the authorities that the second tower from tapping 'A' type DC was collapsed on 06.05.1998 and that the fall of the 19 second tower was purely on account of negligent act of the plaintiff and not by an Act of God as contended by plaintiff.
Further, it was also submitted that the work which was carried out by the plaintiff is not an extra work. And defendant/Authority has not admitted anywhere to pay the amount as alleged by plaintiff. Therefore, learned counsel submitted that plaintiff- appellant is not entitled to claim the amount from the defendants- Authority.
28. Lastly, he urged that both the trial Court and the First Appellate Court have appreciated all the material evidence on record and therefore, this appeal does not raise any question of law and prayed for the dismissal of the appeal.
29. I have considered the submissions and contentions urged by learned counsel for appellant and respondents. I have also perused materia l 20 evidence on record and the judgment and decree of both the Courts below.
30. I have carefully perused the substantial question of law framed by this Hon'ble court.
31. This is Regular Second Appeal filed under Section 100 of Civil Procedure code 1908. The substantial question of law framed by this Court relates to material documents available in respect of plaintiff's case.
Therefore, to answer the same, it would be relevant to consider and understand what facts we have here. It is also is necessary to consider the material documents available in respect of plaintiff's case.
32.There is no controversy that plaintiff is the proprietary concern and Electrical Contractor. In terms of the agreement dated 4.11.1996. 21 Plaintiff undertook to execute the work of construction of 110 KV DC TAP LINE to Belur, Industrial Area, Dharwad, as per the tender accepted for a sum of Rs.3,49,556/- which is 36.05% excess over the amount put to tender of Rs.2,56,085/- i.e., to execute the work at the sanctioned estimate rates plus accepted tender premium of 36.5%.
Plaintiff had to carry out the work as per the specification, design, drawing and instructions in writing as per the terms and conditions mentioned in the agreement of contract and then to hand over the same in satisfactory manner to defendant No.2 within 60 days from the date of actual line out given excluding the rainy season or the receipt of last material issued for the work whichever is later.
The contractor agreed to pay the penalty as per the board norms if the work is not completed within the stipulated time.
22
Plaintiff was informed about awarding of the work as per the letter dated 19.10.1996 vide Ex.P2. Plaintiff undertook to put up 8 towers to complete his work and accordingly, started the construction of towers.
On 06.05.1998, it was found that the second tower from tapping 'A' type DC was collapsed.
On 8.5.1998, 2nd defendant had informed regarding the collapse of the second tower over telephone to the higher authorities on 08.05.1998 and the same was even communicated through a letter. Ex.D-3 is dated 11.05.1998. The same discloses that the second tower collapsed on 6.5.1998 during evening hours.
On 12.5.1998, 2 n d defendant informed plaintiff about the collapse of second tower and informed plaintiff about the missing of 12-15 main side braces found missing, and on account of which, the tower was weakened and collapsed.
23
It was also informed to plaintiff to give a police complaint regarding missing braces and further requested the plaintiff to take up the work of stub setting, erection and stringing etc., for the collapsed tower at his own cost as the line was expected to be commissioned on 15.5.1998.
33. In furtherance to the communication, plaintiff complied with the re-construction work of the collapsed second tower at his own cost and raised the bill in a sum of Rs.81,705.48/- for repairing of the collapsed tower as per Ex.P6. Further, plaintiff also wrote a letter on 15.9.1998 and insisted defendant No.2 for the payment of the bill.
Defendant No.2 wrote a letter on 07.06.1999 (Ex.D.11) and directed the Assistant Executive Engineer to analyze the reasons for collapse of the tower. If it is found that the reason for the collapse of the second tower was wind and rain as alleged by 24 plaintiff, the cost may be charged off to works and if it is found that it is due to the negligent act of plaintiff/contract agency, then the cost may be recovered from him.
After a detailed inspection, defendants - Authority found that the reason for the collapse of second tower was on account of missing of connecting cross 12-15 main braces and therefore, the tower was collapsed. It was also found that the collapse of the second tower was not due vis-major or by the act of God as alleged by plaintiff.
As could be seen from the pleadings, it is the specific case of defendants that plaintiff had failed to take care of the entrusted work in particular with respect of the second tower as he did not rivet the bolts properly and that on account of non-reverting the bolts, 12-15 cross braces were found missing. In the result, the tower was collapsed and therefore, defendants contended that collapse of 25 second tower was purely on account of negligent act of plaintiff.
34.The evidence of PW-1 discloses that as per the agreement Ex.P-1, plaintiff was entrusted with the work of construction of 8 towers. The collapsed tower was one among them.
The evidence further discloses that he has re- constructed the collapsed tower at his own cost. He has spent a sum of Rs.81,705.50/- and he did not send the bill. Further, in the cross-examination, plaintiff admits that the Assistant Executive Engineer wrote a letter to complete and thereafter, he has completed the work.
The evidence of DW-1 and DW-2 disclose that plaintiff was entrusted with the work of the erection of 8 towers and the collapsed second tower was one among them and that the second tower was collapsed on account of the negligent act of the 26 contractor and the same was not due to vis-major or the act of God.
Further, the evidence of DW-2 also discloses that though the Executive Engineer had recommended and had sought approval for the payment with regard to the reconstruction of collapsed tower, but the higher authorities did not approve because the reason for the collapse of tower fact was a negligent act of the contractor.
35. Now let me consider what are the material documents which are available in respect of plaintiff's case. I have carefully perused the original records. Plaintiff has produced 8 documents and they are marked as Exs.P-1 to P-8.
Ex.P-1 is the agreement dated 4.11.1996, wherein, plaintiff undertook to execute the construction of 110 KV DC LINE to Belur Industrial Area Dharwad. Ex.P2 dated 19.10.1996 which is a communication issued by the Executive Engineer 27 (Electrical), North-West Division, KEB, Hubli, to plaintiff with regard to the entrustment of work for construction of 110 KV DC LINE to Belur Industrial Area Dharwad.
Ex.P6 is the work order details which is dated 19.10.1996. Exs.P7 and P8 dated 02.08.1997 and 11.08.1997 respectively, are the communications in respect of the entrustment of work of tower erection.
There is no controversy that the second tower was collapsed on 06.05.1998 during evening hours. The Executive Engineer (Electrical) therefore, intimated plaintiff that the second tower had collapsed on account of missing of 12-15 main side braces in the said tower by a letter on 12.05.1998 (Ex.P3).
Further, in the said communication, the Executive Engineer had also requested plaintiff to take up the work of stub setting, erection and 28 stringing etc., for the collapsed tower at his own cost. Further request was also made that the action should be taken immediately as the line was expected to be commissioned on 15.05.1998.
Plaintiff replied on 15.09.1998 (Ex.P-5) informing the officials of the defendants that the collapse of the second tower was on account of the heavy wind and rain i.e., by the act of God. Plaintiff intimated defendants that the damage caused due to natural calamities and the same has to be reconstructed at the cost of the Board.
As matter stood thus, plaintiff-initiated action against the defendant and the suit was instituted on the 27 t h of August 1999 claiming a sum of Rs.81,705.50/-. In the suit, summons was issued to defendants on the 8 t h of September 1999.
Subsequently, the Executive Engineer (Electrical), KPTCL North-West Division, Hubli, wrote a letter on 7.12.1999 (Ex.P4) to the Superintending 29 Engineer (Electrical), Major Work Circle, KPTCL, Karwar Road, Hubli, recommending that the contractor, to whom the work was entrusted to erect 8 towers, has re-erected the collapsed tower and that the contractor has since approached the court for payment, approval for the payment may be accorded.
It is necessary to notice that the communication at Ex.P4 is only a recommendation. And in that communication, the defendants have not admitted to pay the cost of reconstruction of the collapsed tower.
The officials of defendant did not approve the recommendation for the payment of the bill since the higher officials of the respondents found that the reason for the collapse of the second tower was purely on account of the negligent act of plaintiff.
Therefore, in my opinion, plaintiff cannot rely upon Ex.P4 to contend that defendants are liable to 30 pay the cost of reconstruction for the collapsed tower.
36. On the contrary, the documentary evidence produced by defendants (Exs.D-1 to D-11) coupled with oral evidence on record would show that the second tower had collapsed on account of the negligent act of plaintiff-Contractor.
Further, as per Ex.D-4, defendants informed plaintiff that since the second tower had collapsed due to non-revetting of the bolts and therefore, 12- 15 main side braces were missing. Hence, reconstruction work in respect of second tower had to be carried out at his own cost.
The defendants also informed plaintiff that he had not properly executed the work as he has failed to rivet the bolts properly with oxy-Acetylene gas.
Therefore, defendants - Authority informed the plaintiff to lodge a police complaint regarding 31 missing of braces. But strangely, plaintiff did not take any action to lodge a complaint.
The liability of defendants was only to provide the materials till the completion of the entire work and to make payments.
It was the responsibility of plaintiff to comply the terms of the agreement and complete the work to the satisfaction of defendants as per specifications at his own cost and risk and act in a prudent manner.
37.On careful perusal of the documentary evidence on record, it is very clear that defendants supplied the materials for the reconstruction of the tower in terms of the contract and the collapse of the second tower was purely on account of negligence on the part of the plaintiff.
38. The trial Court while answering issues Nos.1, 2, 3, 8 and 9 has rightly held that re-erection work 32 was conducted by plaintiff only after the receipt of letter dated 12.5.1998 (Ex.P-3) and plaintiff has re- erected the collapsed second tower at his own cost. There is no controversy about this. The trial Court has further held that said re- construction work was not a fresh or extra work since the work which was entrusted to plaintiff was not yet completed by plaintiff and the line was not commissioned. Therefore, the trial Judge is justified in holding that defendants are not liable to pay any amount much less the re-erection cost.
39.The First Appellate Court after re-appreciation of the entire material evidence on record, has also rightly come to the conclusion that plaintiff undertook to re-erect second tower at his own cost. But, subsequently, he made an attempt to fix the liability upon defendants in the absence of any undertaking by defendants.
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The First Appellate Court has also held that at no point of time, defendants - Authority had admitted their liability regarding reconstruction charges.
40. Both the Courts below after appreciating the material evidence on record have held that the second tower would not have collapsed if plaintiff had executed the work with proper care and caution.
Hence, both the Courts below have held that the collapse of second tower was purely on account of negligent act of plaintiff.
Both the Courts below have also recorded the finding of fact that revetting of the tower bolts by gas welding was the final stage of the entrusted work and in spite of repeated reminders, plaintiff neglected to carry out the work.
41. Therefore, both the courts below, after appreciating the material evidence on record, have 34 rightly held that plaintiff ought to have completed the work in a satisfactory manner i.e., as per the specification, design, drawing and the instruction in writing.
It is needless to observe that it was obligatory on the part of plaintiff to carry out the work as specified by defendant as the line was not yet commissioned. Therefore, the work which was carried out by plaintiff in respect of collapsed second tower would be part and parcel of the work under the agreement.
42. Keeping in view of the admitted facts and rival pleadings, I am of the considered view that both the Courts below have properly assessed the evidence placed on record and are justified in holding that plaintiff, being a contractor, was duty bound to complete the work which was entrusted to him in a satisfactory condition.
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43. It is pertinent to notice that defendants have specifically urged that the second tower had collapsed on account of negligent act of plaintiff and not by act of God as contended by plaintiff. Therefore, the duty to take care was casted upon plaintiff. It was also obligatory on the part of plaintiff to take reasonable and standard care while executing the work.
I am quite unable to see how the material documents furnished by plaintiff are helpful when he has miserably failed the test of reasonable care and has failed to establish that defendants have admitted the liability to pay the amount.
Therefore, this Court is of the view that the material documents furnished by the plaintiff are in no way helpful to claim amount from the defendants. The substantial question of law is answered accordingly.
36
44. During the course of arguments, learned counsel for appellant Sri. Dinesh. M Kulkarni vehemently contended that reason for the collapse of second tower was on account of the act of God and hence, plaintiff is not responsible for the collapse.
The archaic legal phrase "act of God" means an operation of natural forces (as opposed to an act of man). Plaintiff cannot rely upon the above legal phrase.
To say so, plaintiff must prove both (1) that the damage was caused by the act of God, and (2) that no negligence on the part of plaintiff or his employees contributed to the loss or damage to second tower.
It is needless to observe that where an injury results from natural causes which could not have been foreseen and could not have been avoided by any amount of foresight and care which could 37 reasonably have been expected, it may be said to result from the act of God.
The fact that plaintiff had complied with the reconstruction of the second tower would itself shows that plaintiff had not taken the standard care. As already observed above, plaintiff has failed to take reasonable care which he ought to have taken while executing the work. Therefore, plaintiff cannot contend that the collapse of the second tower is the result of the act of God.
45.The standard of care is a question of fact. Plaintiff being an electrical contractor ought to have foreseen the probability of harm resulting from his actions and should have taken reasonable care while executing the work.
46.The outcome of these facts and considerations which I have stated is that I have grave doubt as to whether the reason for the 38 collapse of the second tower was due to the act of God.
Further, we have to remember that this case is not related to tortious liability. And we are not deciding the rights of action in tort. Therefore, it is very difficult to accept the contention of learned counsel for appellant that the reason for the collapse of the second tower was due to the act of the God. I come, therefore, to the conclusion that plaintiff cannot rely upon the legal phrase of act of God.
I think the utmost significance and the real question to be determined is the nature of the duty, the degree of care, the measurement of risk and the degree of probability, gravity of harm, are important factors.
It is important to remember, however, that the standard of care to be expected will depend upon 39 the nature of the duty owed by plaintiff in the overall context of the case.
Therefore, it can be summarized by stating that plaintiff being an Electrical Contractor, who entered into an agreement with the Electricity Board, which is a public Authority, must have regard for the importance of the activity in which he was/is engaged.
He must have regard to the probability of harm resulting from his actions and to the probable seriousness of the harm. A higher degree of care is required. Plaintiff has failed the test of reasonable care.
47. Therefore, in the particular circumstances, the appropriate course was to repair the collapsed tower at the cost of plaintiff. Therefore, it would be improper to hold that defendants are liable to pay the amount.
40In my opinion, the trial Court and the First Appellate Court on proper appreciation of the material on record are justified in dismissing the suit of plaintiff. Therefore, there are no good reasons to reverse the findings of facts recorded by the Courts below.
48. I do not find any error in the judgment and decree passed by the Courts below. The appeal is dismissed with costs.
Sd/-
JUDGE gab/VMB-B