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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25"'DAx or AUGUST, 2019;
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUfifiTHTS'R
AND ."
THE HON'BLE MR. JUsTIcE"D~fi&NQH§§DVT57n
R.F.A.No.1482}2OO3
BETWEEN:
1 THE CHIEF ENGINEER;"m*3
HEMAVATHI CANAL ZONEg'Vu
KUNIGAL ROAD, Tumunsg
2 THE ExDcDT:vE{EN§iNEEfi5g_' f
HEMAVATHI CANAL ZONE,jV' ""
KUNI$ALjRGAD,bTGMUE,"D.,
3 THE CHifi?flSEC§EEfiRY'
GovT;%oF,KAaNATDKA"
vIDHAxA_soUDHA,_DANGALoRE.
4 ;THE sEcRETARY_
.« *--DEPT:.oE Maébn IRRIGATION,
V*»_vTDnADA,soUDHA,
5, THE Dy} COMMISSIONER
'TUMKUR DIsT., ... APPELLANTS
C=D{3y_sii:RAMAcHANDRA R.NAIK,HCGP)
:?,AuD~£
._*~- 1 AMJATHULLA
S/OIDRIS BAIG
36 YRS, PWD CLASSW3, CONTRACTOR,
1ST CLASS, P.G.LAYOUT,
TUMKUR. ... RESPONDENT
$7″
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(By Sri: BASAVRRAJ M MEKKI, ADV.)
THIS RFA FILED U/3.96 0:-3* CPC AGAINsf.i::””1faE:
JUDGMENT AND DEGREE DATED 16.8.2883 pAsssD_”.:1;
o.s.No.94/2002 ox THE. FILE of THE ADDL–…’VV’c:v;f_Lw~.
JUDGE ($R.DN.) & CJM., TUMKUR, DEc:3EE1.1s:Gva.’*1*L1:~;–a”
SUIT FOR RECOVERY OF MONEY. r~«_ti
THIS APPEAL comma 03151 E’.QRj;.
DAY, MANJUNATI-i J, DELIvERED”<.fr;é:g "FoLLoW1;es:'v
A it i
The legality» and ~a$;réctnaas- ofi the
Judgment and decree hpassed din Q s.NO.94/2002
on the file o£_AddlH$fii§il_dfidee% (Sr.Dn.) &
CJM, Tumhfir}dtai§}é3%@Q§ is ealled in question
by
' was plaintiff in the
Suifi}¥'Thé~$ui£ has instituted for recovery of
' wWR$3g}§5,23$/witofiards the damage caused to the
d.§laintififdfand another sum of Rs.88,000/–
towards~_bfitstanding bills payable by the
d"uWrealisation.
3. The facts leading to this case are
hereunder: é%/
The plaintiff is a registered contractor.
Pursuant to the tender invited by
defendant for construction of a hridgeMi§:?M>
Hemavathi canal, he submitted his tenderto. ”
construct a bridge in a plecehknown as M fiaiii
Gadi Bridge. His tender was accepted and Qsigig
order was issued vide agreement Mo i720p0;2001
dt .11 . 4 . 2000 at . 902«-«-10
ps. The work was agreed to be cognleted within
six monthsg from rthef date “cit handing over
possessionibf the site. The site in question
was handed over to the tlaintiff on 22.4.2000
and he commenced the work. According to him,
,, g”fi/g .
LmbE~
_, he had” caused slab of the bridge and slab was
»requiredgto_be cured for a period of 26 days
from the date of c ‘
Cwfiaw $/
. He had used 370
Centering sheets and poles for supporting and
2*,otherN materials like, iron sheets, wood,
aplates, runners, etc., on both the sides.
uflifinfortunately on 11.7.2000 Irrigation
Department had released the water in the
Hemavathy canal as a result of the velocity of
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the water force, centering sheets along with
the poles were washed away and as a result of
which he claimed damage by issuingj'”a«’Qjlegavl’~.A
notice to the defendants. He also elaieed au.h
sum of Rs.80,000/- tO:’»’:fa1′:d..’S,’A:. F;;;a;’.1.’an’¢e’~..egg_”daft’
outstanding bill by issuingTnctice§ aflon the 3
ground that his claim fies not honoured, the
suit was filed ,te -recoV§h[,the aforesaid
amount. __ emit; i
4. ;’.Ehe_««._V::’de_fe11da;nts'”_ ‘ézmztested the suit
accepting *thehhtender ofw the plaintiff and
entrusting the jw¢r£~.o£ construction of the
bridge b§_ the hplaintiffé for a cost of
‘ 3’ if 2 Law”-
.~Wrg3;§)23,9g2_2Ohfisr According to hem, there was
1,no.water”faree aid since Irrigation Department
has4’1’rg1.¢”a.séd only 3.32 quesex and that 270
VVcentering sheets each weighing 29 kgs. cannot
hfiflofifin the water on account of the velocity
rwwsmof the water force. Therefore, the defendants
denied ‘the loss caused ‘to ‘the plaintiff on
account of release of the water. It was also
contended that the defendants are not liable
«V
to pay any amount. In the circumstances they
request the court to dismiss the sqit:.jfj% ”
5. Based on the above’ pleadings,3 thei
following issues were framed; by ‘the fconrt
below:
1) Whether plaintiff r_proves that” defts,
negligently .fiithohtp’enyfhinformation to
plaintiff have released water to the canal
on 11.7.2000 due ” to”a which centering
materialsawashed”eflayaand caused damage?
2) Whethefg iplaintiff ;”proves the alleged
negligent “act Vof *the} officials of the
defts?,f~V “V “«_,_=
efts,W proves that by the time
3) whether bfl
plaintiff ‘tried “to remove the centering
sheets at the time they were fallen down?
4) $0 what relief the parties are entitled?
l’n, 6.’.In” order to prove the respective
éehfenfieesg on behalf of the plaintiff, in
VV_ all three nitnesses were examined. Among the
.u”three witnesses, PW1 is the plaintiff, PW2 and
P20. On behalf of the defendants, one
<3"
K.T.Govindaraju, Asst. Executive Engineer was
examined. The Trial Court after considering
the evidence, held issues-1 and”*i2eg:%nxp
affirmative and issue–3 in»~_negativef
Accordingly, the suit of the p.J.aint»iifAf’~.ceme’Vto
be decreed for a su1nfo__£ Re_,.’s*,2o,e,o”bQ/if
interest at 12% p.a. frefi the date of suit
till the date of realisationgl This judgement
. and decree is called. in_’§ueetion in this
aPPeaJ.. _.
7. iwe have heard the iearned counsel for
both the parties; “I”
8. The_nain contention of the appellants
befere* us dis that the Trial Court has
‘d§mittfiQipaa serious error in holding that
‘there was e loss of 370 centering sheets and
‘V woodena poles worth Rs.60,000/~ and further
V’?qcommitted a serious error in granting a decree
h for Rs.5,20,000/- and also committed an error
twin awarding interest at 12% p.a. ‘He further
contends the Trial Court did not notice that
the plaintiff did not prove that he had
é/,
utilised 370 centering sheets as a supporting
_ a, c d
material to é%§gt’ the slab and he fiurther
contends that out of 370 Qenteringinfiteriale
270 sheets were supplied by the dé£e$aafits.to”
the plaintiff. He further contends*thafl pkg
Trial Court also did net consider the value ofal
each sheet as on the date éf the alleged loss
said to have been caused to the plaintiff. In
the circumstances{Mne;reguestgdthe court to
set aside »thef:JnddmentdIendl decree as the
plaint_i..fV.fA to prove the
actual loss su%tai§§a_by him and the value of
the centerinc”sheetsgi’
.f{§;~ Per vcontra, the learned. counsel for
»the plaintiff, Mr.Basavaraj M. Mekki contends
‘that lthe_fdefendants have denied the loss
causedp to the plaintiff and similarly the
‘r,defendants also did not question the value of
“thei centering sheets or the value of the
hmvooden poles which were erected to support the
slab of the bridge. In the circumstances he
requests the court to dismiss the appeal.
€’-»/
10. Having heard the counsel for the
parties, the following points are to The
considered by us in this appeal:
1)Whether the Trial Court is justified, inusd
holding that the plaintiff haa_su§§aaad*a:
loss of Rs.5,20,000/W?
2)Whether the Trial ‘court his gjusti£ied§ in– ”
awarding interest at lit p,a.§<.g"'
11. So fard ass the” first point is
concerned, itv isg”not:VinQddis§ute that the
constructifiiiofijthechridge was entrusted by
the defendants to the plaintiff. It is also
not in _disputetd£hat_ the plaintiff as a
‘°.” ” rfadkafi .
contractor had caused the slab of the bridge.
“* The actual dis ute is whether there was loss
d1 of 370 centering sheets and wooden poles worth
of Rs.fiQ}OQ§/– on account of excess release of
sgthe ~water by the Irrigation Department in
‘dfleeavathy canal which resulted in washing away
‘d the wooden poles along with the centering
iv materials. So far as this point is concerned,
it is an admitted fact that 270 sheets were
supplied by the defendants, on account of the
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release of excess water by the Irrigation
Department into the Hemevathy Canal, at hest
the plaintiff can contend. that there» is fnoa
liability of him to return 270 ‘_+-.-:vie«i
defendants. Then the question«;
there is a loss of centering sheets in exdesslé
of 270, then what waVs».,V:.V”t’.he V”val”u*e the
centering sheets fies jongitheiasaidiidate of
“incident. Unfortunately hoth the filaintiff as
well as the Ydefendants “did}~not focus their
attention to the’acthalwregpirement of sheets
considering the width and length of the roof
of the Bridge endflalso the authorities also
__ did not foods the requirement of wooden poles
ll toVsupport the width and length of the bridge.
Similarlff the parties have also not let in
— evidence in regard to the cost of the wooden
kgpoles tor the cost of the centering materials.
–llThofigh the parties have not concentrated their
‘g’cese on these points which are vital in nature
in order to assess the loss of damages, the
Trial Court has also not applied its mind
A <%/
while decreeing the suit. Without any basis
the Trial Court has come to the conclusion
there was an actual loss of 370
sheets and wooden poles worth
and awarded a sum of as'
Therefore, on this short dghround
Judgment and decree Court
required to be :vaivvir'1s.werin§;;VAvVpoint–1
in favour of V the the
Respondent
3.2. in findings on point-1,
we not proper for us to give
our finding 2" point, namely, in
rega;¢rdiA'to the.___a_warding of interest from the
ovf'.suVit___till the date of realisation.
circumstances, we are of the
j opinizovna as there is no proper evidence let in
the parties, considering the actual
sustained by the Respondent–plaintiff,
"the matter requires to be remanded to the
Trial Court for fresh consideration.
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