Considering that allowing a claim for
damages is a matter which has to be established by cogent
and reliable evidence on record, I find that, considering the
said inconsistency in the evidence of PW1 it would not be
sufficient for the Court to come to the conclusion that on
account of the seepage of water into the premises of the
appellant he had suffered damages to the tune of the sum
claimed in the suit. The findings of the learned Judge that
the appellant has failed to establish that water had in fact
entered into the premises of the appellant on account of
water from the air conditioner installed by the respondent
no.3 cannot be faulted. Apart from that, it is not in dispute
that the air conditioner was installed at a distance of 2 feet
from the outer wall of the premises occupied by the
respondent no.3. In such circumstances, it is very difficult to
accept, unless there is cogent evidence on record, that the
water from such air conditioner could directly entered into
the premises of the appellant herein. In such circumstances,
I find that the findings of the learned Judge on that count
cannot be faulted.
In view of the findings rendered herein above,
otherwise the question of going into the quantum of
damages as claimed by the appellant would not arise but
however, the learned Judge on examining the evidence on
record has come to the conclusion that the appellant has
failed to establish the actual damages suffered by him on
account of such illegal acts committed by the respondent
no.3. Apart from that, producing an estimate would not by
itself establish the actual amount spent by the appellant to
replace such furniture. Besides that it is not in dispute that
the furniture equipment allegedly substituted was nearly 14
years old at the time of the alleged incident and about 17
years old when the suit was filed. Considering the normal
wear and tear of furniture equipment, the question of
claiming the amount as claimed by the appellant in the suit
would not arise. The learned Judge has rightly appreciated
the evidence on record and has come to the conclusion that
the appellant has failed to establish the actual damages
suffered by him to the furniture equipment installed in the
disputed shop. The findings of the learned Judge cannot be
faulted with that regard and as such, I find that the learned
Judge has rightly appreciated the evidence on record to
come to the conclusion that the appellant has failed to
establish his claim in the suit.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 316 OF 2007
Shri Uday M. Salkar,
Versus
The Chief Secretary,
CORAM : F. M. REIS, J
DATE : 28th March, 2014
Citation; AIR 2015 (NOC)49 Bom
The above appeal challenges the judgment and
decree dated 17.05.2007 passed by the District Court,
Panaji, in Civil Suit No. 175/2004 whereby a suit filed by the
appellant against the respondents for recovery of damages
came to be dismissed.
3.
Briefly, the case of the appellant is that he is
occupying the premises wherein he is running a jewellery
shop in a building belonging to the respondent no.2 wherein
the respondent no.3 also has a RTO office on the first floor.
It is further the case of the appellant that the respondent
no.3 had installed an air conditioner to their office premises
located immediately above the jewellery shop no.1 and
consequently, from Mach, 2003 to December, 2003 despite
of a series of the objections raised by the appellant that the
water from the air conditioner was percolating into the
premises occupied by the appellant, the respondent no.2
has failed to take any action which resulted in total
deterioration of the furniture equipment installed in the
premises of the appellant.
It is further the case of the
appellant that immediately after such water was entered
the premises occupied by the appellant, notices were issued
initially to the respondent no.2 who is the landlord of the
premises and thereafter to the respondent no.3 bringing to
their notice the nuisance of water of the air conditioner was
creating to the business premises occupied by the appellant.
It is further the case of the appellant that in April, 2003 a
specific notice was also issued to the respondent no.3
bringing to their notice such illegal acts which resulted in
damages to the business equipments in the shop of the
appellant. Despite of such warning, the respondent nos. 2
and 3 had failed to take any remedial measures which
resulted in totally deteriorating the furniture equipment
installed in the premises of the appellant. It is further his
case that in December, 2003 a drain pipe installed by the
respondent no.3 which was initially placed to the air
conditioner for allowing the water to be collected in a drain
was replaced and consequently, the water seeping into the
shop of the appellant came to a halt as the water was
diverted into their own premises. It is further his case that
on account of such acts on the part of the respondent nos. 2
and 3, the appellant was forced to substitute the furniture
equipment which resulted in damages to the tune of
Rs.2,11,920/-.
4.
The respondents disputed the said contention of
the appellant by filing their written statement inter-alia
contending that no such water had entered into the
premises of the appellant.
It is further disputed that on
account of such water from the air conditioner the appellant
had suffered any damages or that the furniture equipment
was destroyed. It is also contended by the respondents that
in any event, the furniture equipment was more than 14
years old and as such according to them the question of
paying any damages to the appellant would not arise. The
learned Trial Court after framing the issues and recording of
evidence by the impugned judgment dismissed the suit filed
by the appellant. The learned Judge has essentially rejected
the claim of the appellant on the ground that the appellant
has failed to establish any damages that had occasioned to
the appellant on account of any water having seeped into
the premises of the appellant from the air conditioner
installed by the respondent no.3. The learned Judge after
appreciating the evidence on record has also come to the
conclusion that the appellant had failed to establish the
actual damages claimed by him in the suit. Being aggrieved
by the said judgment and decree, the appellant has
preferred the present appeal.
5.
Mr. P. Rao, learned counsel appearing for the
appellant has pointed out that it is not in dispute that the
premises occupied by the respondent no.3 is located
immediately above the shop premises occupied by the
appellant.
It is further his contention that the respondent
no.3 installed an air conditioner immediately above the
premises occupied by the appellant to the outer wall and as
such the water from the air conditioner was passing through
the drain pipe into the shop of the appellant. The learned
counsel further pointed out that the fact that the water had
entered into the premises of the appellant has been
established by the appellant as the appellant has examined
the customers who have visited the shop as well as the
sweeper who has categorically stated that the water had
entered into the shop of the appellant which required
continuous cleaning of such shop. The learned counsel
further pointed out that on account of accumulation of such
water in the premises of the appellant, the furniture
equipment in the shop got deteriorated which forced the
:6:
appellant to get it substituted after December, 2003 after
the respondent no.3 took the remedial measures for
preventing such water from entering into the premises of
the appellant.
The learned counsel thereafter has pointed
out that the appellant has also examined the carpenter who
had given an estimate to carry out such work and who has
corroborated the contention of the appellant that he has
suffered such losses on account of water entering into the
shop of the appellant. The learned counsel has thereafter
taken me through the impugned judgment passed by the
learned Judge and pointed out that the learned Judge has
erroneously come to the conclusion that the appellant had
failed to establish that the water had entered into the shop
of the appellant and that this resulted in damages to the
appellant.
The learned counsel thereafter has taken me
through the evidence on record as well as the material
produced by the appellant and pointed out that the learned
Judge was not justified to pass the impugned judgment
which calls for interference by this Court in the present First
Appeal.
6.
On
the
other
hand,
Mr.
Salkar,
learned
Government Advocate appearing for the respondent nos. 1
and 3 has supported the impugned judgment. The learned
counsel pointed out that the appellant has examined PW1
who has taken inconsistent stand at the hearing and in the
evidence before the Trial Court which itself suggest that the
claim put forward by the appellant is fictitious and without
any basis. The learned counsel has thereafter taken me
through the plaint as well as the cross examination of PW1
and pointed out that in the plaint it is pleaded by the
appellant that there was a drain pipe installed to the air
conditioner for the water to lead to the existing drain but
however, in the cross examination of PW1, the said witness
has stated that prior to December, 2003 there was no pipe
installed by the respondent no.3 and only thereafter the
pipe was installed. The learned counsel further pointed out
that this inconsistent stand of the appellant itself disentitle
the
appellant
from
claiming
any
damages
from
the
respondents. The learned counsel further pointed out that it
is not in dispute that the furniture equipment allegedly
substituted by the appellant was 17 years old at the time of
the filing of the suit which itself suggest that the furniture
was affected by wear and tear and required replacement.
The
learned
counsel
further
pointed
out
that
the
photographs itself suggest that the premises occupied by
:8:
the appellant was not in a very good shape even in the year
1994 and as such the contention of the appellant that the
water had entered into the premises which resulted in
deterioration of the furniture equipment is totally without
any basis.
The learned counsel further pointed out that
there is no evidence on record to establish any damages
that had occasioned to the appellant on account of any
water entering into the premises due to the air conditioner
installed by the respondent no.3. The learned counsel has
thereafter taken me through the impugned judgment and
pointed out that there is no case made out by the appellant
for any interference in the impugned judgment.
7.
Mr. Kantak, learned counsel appearing for the
respondent no.2 has supported the submissions of the
learned Government Advocate appearing for the respondent
nos. 1 and 3 and further pointed out that any complaint
lodged by the appellant with regard to such water was
immediately transmitted by the respondent no.2 to the
respondent no.3. The learned counsel further pointed out
that according to the respondent no.2, there was no
damages suffered by the appellant on account of any
seepage of water as alleged by the appellant.
:9:
8.
Upon
hearing
the
learned
counsel
and
on
perusal of the records, the following point for determination
arises in the present appeal :
POINT FOR DETERMINATION
Whether
the
learned
Judge
was
justified to come to the conclusion that
the appellant has failed to establish
that the appellant has suffered the
damages due to water entering into the
premises
from
the
air
conditioner
installed by the respondent no.3 ?
9.
For the purpose of examining the said point for
determination, on perusal of the plaint, I find that it was the
specific case made out by the appellant in the pleadings at
paras 4, 5 and 9 inter-alia that a drain pipe was installed to
the air conditioner by the respondent no.3 in their own
premises to allow the flow of water to the drain on the
ground floor.
It is further their case that after the
complaints were lodged by the appellant, the respondent
no.3 took remedial measures and substituted the said pipe
and consequently collected the water in a bucket which
stopped the flow of water into the premises of the appellant.
But however, in the cross examination of PW1, the said
witness has stated that the air conditioner was installed
somewhere in March, 2003 and there was no drain pipe
installed by the respondent no.3 which resulted in water
entering into the premises of the appellant. This statement
of PW1 is contrary and inconsistent with the pleadings of the
appellant in the plaint. It is further found in the deposition
of PW1 that in December, 2003 the respondent no.3 had
installed a pipe which led the water into the premises
occupied by the respondent no.3 on the first floor which
stopped the flow of water into the premises of the appellant.
This statement
is also contrary to the pleadings of the
appellant. In such circumstances, though the pleadings of
the
parties
are
otherwise
to
be
liberally
construed,
nevertheless, I find that such inconsistency in the deposition
of PW1 and the pleading in the plaint would materially affect
the claim of the appellant for damages in the present suit.
Considering the evidence of PW1, I find that the contention
of the appellant that the water had entered into the
premises through the defective drain pipe has not been
established by the appellant by any evidence on record
though the oral evidence of the remaining witnesses
suggest that some water was found in the premises of the
appellant. These statements of the remaining witnesses do
not support the case of the appellant as stated by PW1
during his deposition. Considering that allowing a claim for
damages is a matter which has to be established by cogent
and reliable evidence on record, I find that, considering the
said inconsistency in the evidence of PW1 it would not be
sufficient for the Court to come to the conclusion that on
account of the seepage of water into the premises of the
appellant he had suffered damages to the tune of the sum
claimed in the suit. The findings of the learned Judge that
the appellant has failed to establish that water had in fact
entered into the premises of the appellant on account of
water from the air conditioner installed by the respondent
no.3 cannot be faulted. Apart from that, it is not in dispute
that the air conditioner was installed at a distance of 2 feet
from the outer wall of the premises occupied by the
respondent no.3. In such circumstances, it is very difficult to
accept, unless there is cogent evidence on record, that the
water from such air conditioner could directly entered into
the premises of the appellant herein. In such circumstances,
I find that the findings of the learned Judge on that count
cannot be faulted.
10.
In view of the findings rendered herein above,
otherwise the question of going into the quantum of
damages as claimed by the appellant would not arise but
however, the learned Judge on examining the evidence on
record has come to the conclusion that the appellant has
failed to establish the actual damages suffered by him on
account of such illegal acts committed by the respondent
no.3. Apart from that, producing an estimate would not by
itself establish the actual amount spent by the appellant to
replace such furniture. Besides that it is not in dispute that
the furniture equipment allegedly substituted was nearly 14
years old at the time of the alleged incident and about 17
years old when the suit was filed. Considering the normal
wear and tear of furniture equipment, the question of
claiming the amount as claimed by the appellant in the suit
would not arise. The learned Judge has rightly appreciated
the evidence on record and has come to the conclusion that
the appellant has failed to establish the actual damages
suffered by him to the furniture equipment installed in the
disputed shop. The findings of the learned Judge cannot be
faulted with that regard and as such, I find that the learned
Judge has rightly appreciated the evidence on record to
come to the conclusion that the appellant has failed to
establish his claim in the suit. The point for determination is
answered accordingly.
11.
In view of the above, the appeal stands dismissed
with no order as to costs.
F. M. REIS, J
No comments:
Post a Comment