IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 AS.No. 43 of 1998() ----------------------------- OS.1125/1994 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S): DEFENDANT ---------------------- KERALA SHIPPING & INLAND NAVIGATION CORPORATION LTD., RAMAN CENTRE, VALANJAMBALAM, KOCHI 16, REP.BY ITS MANAGING DIRECTOR. BY ADV. SRI.K.P.DANDAPANI SMT.SUNITHA VINOD, SC, KS & INC LTD. SRI.P.C.IYPE, SC.,KS & INC LTD. SRI.VAKKOM N.VIJAYAN,SC,KS & INC LTD. SRI.V.J.MATHEW,SC,KSINC(KERALA SHIPPING RESPONDENT(S): PLAINTIFF ------------------------ SHRI. PHILIP ABRAHAM, S/O. K.M.ABRAHAM, KUREEKATTIL HOUSE, VELLAKKINOR, ALAPPUZHA. BY ADV.SRI.S.SREEKUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/05/2010, ALONG WITH CROSS OBJECTION THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.398/1998 IN AS. NO.43/1998 DISMISSED 20/05/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.43 OF 1998 & CROSS OBJECTION ............................................. Dated this the 20th day of May, 2010. J U D G M E N T This appeal is preferred against the judgment and decree of the Subordinate Judge, Ernakulam in O.S.No.1125/1994. The short facts necessary for the disposal of the appeal are stated as follows: 2. The plaintiff in the suit had taken a barge on hire from the defendant on 8.6.1993. The barge according to the plaintiff was returned on 14.6.1993 and on 9.6.1993 due to some technical snag, the barge could not move and therefore, the plaintiff had used the barge only for a period of 98 days and for the same had paid Rs.3,92,000/= as hire charges. There is an amount of Rs.60,000/= which has been given as advance and the suit is instituted for the recovery of the said amount with interest. On the other hand, the defendant Corporation would contend that as per the terms of the contract, hire charges have to be paid from the moment the barge is handed over from the destination of : 2 : A.S.NO.43 OF 1998 & CROSS OBJECTION the defendant till it reaches back the destination. It is also contended that the plaintiff has not reported about any snag on 9.6.1993. It is the further contention that the barge could reached the destination only on 20.9.1993 and therefore the hire has to be paid for 105 days. It is also contended that as per the terms of the agreement when a propeller is fixed, rate of rent is increased by Rs.1,000/= per day. As propeller had been fixed from 24.7.1993, amount is claimed at the rate of Rs.5,000/= for 46 days or in other words, the rent is claimed at the rate of Rs.4,000/= for 59 days and Rs.5,000/= for 46 days. It is also contended that hire charges of the boat also had to be given back besides compensation granted to the fishermen and the hire charges of the pump. Though the defendant arrived at an amount of Rs.65,000/=, but had restricted the counter claim to Rs.17,500/=. 3. After analysis of the materials, the trial court granted a decree in favour of the plaintiff for a sum of Rs.36,746/= less Rs.1979.50 and it is against that decision, : 3 : A.S.NO.43 OF 1998 & CROSS OBJECTION the defendant has come up in appeal and a the plaintiff has come with cross objection. 4. It has to be stated that the whole issue has to depend upon the following: namely (1) what is the number of days that has to be taken for calculating the hire (2) whether there was fixation of any propeller so as to claim hire charge at the rate of Rs.5,000/= per day, (3) whether the damages paid to the fishermen is liable to be reimbursed. Admittedly, as per the terms of the contract the hire charges for the barge have to be given from a date of handing over of the barge from the point of the defendant till it is handed over back at the destination of the defendant. With propeller, the hire is Rs.5,000/= per day and without payment the hire is Rs.4,000/= per day. What are the number of days that has to be reckoned is the first question to be resolved. So far as the plaintiff is concerned, though he got possession of the barge on 8.6.1993, according to him, on account of some technical snag the barge could not move on 9.6.1993 and it reached the : 4 : A.S.NO.43 OF 1998 & CROSS OBJECTION plaintiff's destination only on 10.6.1993 and therefore 9.6.1993 has to be excluded. It is equally contended that the barge has been handed over to the station master of the defendant at 7 p.m on 14.6.1993 and therefore, the liability to pay rent thereafter does not arise and so the plaintiff is to pay only for 98 days. The defendant on the contra would deny this fact. So far as 9.6.1993 is concerned, no evidence forthcoming to support the case of the plaintiff. Similarly the terms of the contract also does not envisage situation of that nature. So, in the absence of any evidence the contention of the plaintiff to exclude 9.6.1993 has been properly rejected by the Subordinate Judge. So far as 14.9.1993 to 20.9.1993 is concerned, it is true that the barge had been handed over to the official of the defendant Corporation. Learned counsel for the plaintiff would contend before me that by virtue of Clause 14 of Ext.B1 agreement, a power is conferred upon the Corporation to take possession of the barge. The contingency explained therein are non payment of the rent or loss to the : 5 : A.S.NO.43 OF 1998 & CROSS OBJECTION Corporation. There is no case for the plaintiff that the barge was handed over to the station master on account of the reasons stated in Clause 14 of Ext.B1. On the other hand, the defendant would contend that though the plaintiff was bound under the terms of contract to put back the barge in the destination from where it was given, the station master had taken possession on 14.9.1993 and had without any delay proceeded to reach back the destination. Unfortunately by intervention of an accident whereby the barge or the boat which was towed, hit on some fishermen's boat. There was a criminal case initiated which prevented the movement of the barge for some days. It was on account of that fact the barge could reach back the destination only on 20.9.1993. It has to be borne in mind by giving real interpretation to the terms of the contract that liability of the plaintiff is to pay the hire charges till it reaches back the destination from where it has been taken possession of. There had not been any deliberate or any contumacious conduct on the part of the defendant to : 6 : A.S.NO.43 OF 1998 & CROSS OBJECTION protract the return journey so as to cause damages to the plaintiff. It was beyond the control of the Corporation that there was some delay. So giving strict interpretation to the agreement it has to be held that the plaintiff is liable to pay hire charges for 105 days as found by the trial court. 5. The next question is whether there is any evidence to prove the fixation of the propeller. In the counter claim, the defendant would contend that propeller was fixed and it was used from 24.7.1993 to 7.9.1993. There is absolutely no scrap of paper to evidence that propeller has been fixed on that day except the interested assertion of the witness of the defendant as well as some unacceptable entries. If really the barge was fixed with a propeller and the rent was Rs.5,000/=, it is certain that the defendant would not have accepted the amount at the rate of Rs.4,000/= without any objection. No evidence in writing or any complaint of arrears had been made at all. So as correctly analysed by the court below, there is no acceptable evidence to prove the working of the propeller especially in the background : 7 : A.S.NO.43 OF 1998 & CROSS OBJECTION that at the time of handing over of the barge there was no propeller. So I find that the rent due is at the rate of Rs.4,000/= for 105 days. When it is calculated, it would come to Rs.4,20,000/= out of which Rs.3,92,000/= had been given. So, the rent due from the plaintiff to the Corporation was Rs.28,000/=. Admittedly, the defendant is having a sum of Rs.60,000/= received as advance. When the amount of Rs.28,000/= is deducted, then the balance amount due to the plaintiff from the defendant would be Rs.32,000/=. The court has granted interest also. Similarly the court was also pleased to grant the amount given for the boatman whose boats were hit by the barge. It was in the process of returning back and really as the liability to pay the rent is there till handing over at the destination, that amount also has been given as a counter claim. Therefore from the materials available, it has to be held that the court below has proceeded in the correct perspective and had arrived at the decision and therefore the judgment and decree of the trial court do not call for any : 8 : A.S.NO.43 OF 1998 & CROSS OBJECTION interference and so the appeal as well as the cross objection are dismissed but without costs. M.N. KRISHNAN, JUDGE. cl : 9 : A.S.NO.43 OF 1998 & CROSS OBJECTION M.N. KRISHNAN, J. ..................................... A.S.NO.43 OF 1998 & CROSS OBJECTION ................................... 20th day of May, 2010. J U D G M E N T