1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.342 OF 2005 State of Goa, through Executive Engineer, Government of Goa, Electricity Department, Elec. Division IX (KHV) Volvonem, Tivim, Bardez-Goa. …. Appellant V/s 1. The National Insurance Co. Ltd., 1st Floor, Gaunekar House, Ponda-Goa, 403 401. 2. M/s. G.M. Bhandare (Transport), C/10, 2nd Floor, Pt. Kossambe Building, Swatantra Path, Vasco-da-Gama, 402 801. …. Respondents Ms. Susan Linhares, Additional Government Advocate for the Appellant. Mr. E. Afonso, Advocate for Respondent No.1. CORAM : F.M. REIS, J. DATE : 10th JUNE, 2011 JUDGMENT : The above appeal challenges the judgment and decree dated 31/08/2005, passed by the learned Additional District Judge at Mapusa in Civil Suit No.6/2004. 2. The suit came to be filed by the appellants on the ground that 2 they had awarded a contract to transport 40KVA power transformer from Curti, Ponda to Tivim Sub-station vide order dated 22/01/1992, which came to be renewed from time to time. It is further their case that an agreement came to be executed between the appellants and respondent no.1 and a contract of insurance came to be executed which duly took out a marine cum erection policy upon payment of a sum of Rs.26,943/- vide receipt dated 22/01/1992. The Insurance policy was for a period from 22/01/1992 to 21/03/1992. The purpose of the said policy was that the dismantling of the transformer from the Electricity Department, Curti, Ponda, Goa and to transfer the same by road for erection at Tivim Sub-station. It is further their case that the respondent no.2 transported the dismantled transformer from Curti, Ponda and was destined to Tivim on 31/01/1992 and was due to reach its destination on 22/02/1992, but, however, during the transportation the transformer received extensive damages which are specified at para 5 of the plaint. In accordance with the terms of the contract, the respondent no.2 raised claims with respondent no.1 vide letter dated 15/01/1993 for an amount of Rs.3,40,242.32. It is further their case that the said claim was put forward without considering the internal damages which caused to the transformer and which 3 had to be carried out by an agency known as CPRI, Bangalore. It is further their contention that the appellants were thereafter informed vide letter dated 4/03/1992 by the respondent no.2 that it had met with an accident somewhere near Amona and Sankhalim and had sought for a claim form to put up an appropriate claim for damages. Accordingly, a further claim of Rs.10,08,920/- was put forward by the respondent no.2 with the respondent no.1. The marine surveyor deputed by respondent no.1 opined that they were entitled for a sum of Rs.1,09,684/- vide report dated 3/05/1993. Various correspondences were exchanged between the parties with regard to their respective stands in connection with the claim for such damages which resulted in considerable delay in setting the claim by the respondent no.1. Accordingly, vide letter dated 15/04/1994 the appellants addressed a letter to the respondent no.1 to settle their claim in respect of details as stated at para 13 of the plaint. But however, instead of meeting the claim put forward by the appellants, the respondents no.1 forwarded an amount of Rs.82,264/- to the appellants. Subsequent letters were exchanged with that regard and ultimately the respondent no.1 addressed a letter dated 16/05/1994 informing the appellants that the claim has been fixed on the basis of survey report and disputed the claim put 4 forward by the appellants. According to the appellants, as the transformer was damaged during the transportation, the respondent no.2 was called upon to carry out the said repairs. But however, as they failed to do so, the appellants claimed that the repairs were thereafter carried out and the claim was put forward by the respondent no.2 with the respondent no.1 and ultimately inspite of exchange of correspondence as the amounts were not paid by the respondent no.1, the appellants filed the suit praying, inter alia, for a sum of Rs.8,59,650/-. 3. The respondent no.1 filed their written statement disputing the claim put forward by the appellants. It was their case in the written statement that any internal damage if at all caused to the said transformer is not at all attributed to any damage caused during the transportation but the same had been caused entirely due to negligence on the part of appellants and his officers who kept the said transformer lying in the open and without repairs and any protection and exposed the same to rains during the monsoon season. They also disputed the claim put forward by the appellants for other damages and claimed that such damages which occurred did not value more than Rs.1 lac. It is further their case that the 5 appellants never put up their claim directly to the respondent no.1. For other reasons as stated in their said written statement the said respondent no.1 prayed that the suit be dismissed. 4. The respondent no.2 filed their written statement as well as their counter claim. It is their case that until the time the claim was put forward by the respondent no.2 with the respondent no.1, it was not possible for the said appellants to know the actual damage caused internally to the said transformer. Immediately after the said damages were noticed the claim was put forward by the respondent no.2 with the respondent no.1. But however, the respondent no.2 was lacking technical expertise with regard to such damage. It is further their case that they had no objection for any decree against the respondent no.1, but prayed in their counter claim that the appellants be directed to pay a sum of Rs.1,91,068/- to the said respondents. 5. The written statement to the said counter claim was filed by the appellants disputing the said claim. An additional written statement was also filed by the respondent no.1 as well as respondent no.2. After framing of the issues and recording of 6 evidence, the learned Judge by the impugned judgment dated 31/08/2005 partly decreed the suit and dismissed the counter claim and inter alia directed the respondents to pay jointly and severally to the appellants a sum of Rs.2,09,650/- together with interest thereof. Being aggrieved by the said judgment, the appellants/plaintiffs have filed present appeal. 6. Ms. Susan Linhares, learned Additional Government Advocate appearing for the appellants has assailed the impugned judgment and submitted that the learned Judge totally erred in partly decreeing the suit as according to her the appellants had conclusively established that they were entitled to claim the amount of damages sustained by the appellants on account of the expenses incurred to repair the transformer. The learned Counsel took me through the evidence on record and pointed out that the appellants have established by cogent evidence the amount spent by the appellants for repairing the damages sustained internally by the said transformer. The learned Counsel has further pointed out that the finding of the learned Judge to the effect that the appellants were not entitled for the compensation on account of the contamination of the oil and the internal damages caused to the 7 transformer on account of the said accident are totally erroneous. The learned Counsel further submitted that the appellants had to incur expenditure to engage competent person to repair the transformer which required technical expertise in the field and, as such, the appellants were compelled to claim the amount spent towards such repairs. The learned Counsel further submitted that on account of the moisture, the transformer suffered internal damages which resulted in total destruction of the winding as well as bushing of the said transformer and, as such, the respondent no.1 was liable to pay the amount spent towards such repairs. The learned Counsel, as such, submitted that the impugned judgment deserves to be modified and respondents be directed to pay the amount spent by the appellants towards the damages and a further sum of Rs.6,50,000/- spent for drying the transformer and damages thereto sustained. The learned Counsel, as such, pointed out that the appeal deserves to be allowed and the impugned judgment be modified. 7. On the other hand, Shri E. Afonso, the learned Counsel appearing for respondent no.1 has supported the impugned judgment. The learned Counsel has pointed out that the decree of 8 the learned Judge is much in excess than the amount assessed by the surveyor and as such, no interference is called for in the impugned judgment. The learned Counsel has taken me through the Insurance Policy and pointed out that it was incumbent upon the appellants to take precaution and care to ensure that no damages were sustained to the said transformer and considering the conduct of the appellants which discloses total negligence the respondent no.1 is exonerated from effecting any payment on such count to the appellants. The learned Counsel has taken me through the evidence on record and pointed out the admissions of the witnesses of the appellants to the effect that no care was taken to protect the transformer after the same was transported to Tivim Sub-station. The learned Counsel further submitted that in any event the appellants have failed to adduce any evidence in support of their alleged claim for the damages as no receipts have been produced to establish that any amount has been spent on such count by the appellants. The learned Counsel has taken me through the evidence and pointed out the inconsistencies in the deposition of the evidence of the appellants and, as such, submitted that the appeal deserves to be rejected. 9 8. Respondent no.2 though served failed to remain present at the hearing of the above appeal. 9. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: POINT FOR DETERMINATION: Whether the appellants are entitled for a sum of Rs.6,50,000/- towards the damages sustained due to internal damages to the transformer as claimed in the plaint. 10. Dealing with the said point for determination, the learned Judge whilst disposing off the suit filed by the appellants has noted that the appellants have claimed a sum of Rs.8,59,650/- towards the damages caused to the transformer along with interest accrued thereon. The learned Judge on appreciating the evidence on record adduced by the appellants has found that the appellants have failed to produce any evidence to substantiate their claim that they are entitled to a sum of Rs. 6,50,000/- for drying the transformer on the ground that the moisture entered the oil in the transformer because of the negligence on the part of the appellants. The learned Judge, 10 as such, found that besides the said amount the appellants were entitled for a sum of Rs.2,09,650/- towards such damages with interest at the rate of 6% per annum from the date of filing of the suit up to actual payment. 11. On perusal of the plaint filed by the appellants, the particulars of the damages claimed by the appellants have been enumerated at para 13 of the plaint. The particulars therein stipulate the expenses incurred on account of different heads including the costs for drying out the 40MVA transformer, work entrusted to M/s. Mahati Electrics, Pune for a total costs of Rs.6,50,000/-. The total amount claimed as specified therein is a sum of Rs.8,59,650/- and after deducting the said sum of Rs.6,50,000/-, the amount works out to Rs.2,09,650/- as decreed by the learned Judge by the impugned judgment. The only amount which has been refused is the said sum of Rs.6,50,000/-. 12. The plaint was thereafter amended to incorporate additional facts to the effect that respondent no.2 was called upon to carry out the repairs which he failed to do so. In the written statement filed by the respondent no.1 it is, inter alia, contended by the said 11 respondent that any internal damages if at all caused to the said transformer is not at all attributed to any damages allegedly caused to it during the transportation and that the same must have been caused entirely due to the negligence on the part of the appellants and its Officers who kept the said transformer lying in the open and without repairs and any protection and exposed to rains during the monsoon. Dealing with the claim of the appellants at para 13 of the plaint, the said respondent stated in his written statement that the details at item no.IV (which include the said claim of Rs.6,50,000/-) are not the damages caused during the course of transportation nor is the said cost incurred attributable to or can be said to have occasioned due to the alleged damages caused during the transportation and the same are not covered under the terms of Insurance Policy. In the written statement of respondent no.2, he has specifically admitted the contentions of the plaint and raised a counter claim which came to be dismissed by the impugned judgment. There is no challenge by the said respondents to the dismissal of the said counter claim. 13. From the foregoing pleadings of the parties the essential dispute raised by respondent no.1 to the claim of Rs.6,50,000/- of 12 the appellants is that such damages cannot be attributed to the accident and that in any event such damages, if any, were on account of the negligence on the part of the appellants and their Officers in not protecting the transformer. 14. On perusal of the Insurance Policy, clause 1 provides as under: It is the duty of the Assured and their Agents, in all cases, to take such measures as may be reasonable for the purpose of averting or minimising a loss and to ensure that all rights against Carriers, Bailees or other Third Parties are properly preserved and exercised. 15. On perusal of the said term of the policy it clearly provides that it is the duty of the appellants to take necessary care to protect as may be reasonably required for the purpose of averting any loss to the transformer. In the affidavit in evidence of PW2/Shri B.D. Kulkarni who was working as Assistant Engineer at Tivim Sub- station in the year 1991 when the order was issued he has stated that when the transformer was unloaded at Tivim Sub-station it was noticed that the said transformer received extensive damages. He has further stated at para 7 that the damages sustained to the transformer were that the bushings two in number of 110 KV(new) 13 were found broken. One number of 33KV bushing was found broken and one number of 33KV neutral bushing was also found broken. At para 9 of the said affidavit he has stated, inter alia, that the costs of drying out 40MVA transformer, work entrusted to M/s. Mahati Electrics, Pune at a total costs of Rs.6,50,000/-. In his cross-examination, he has stated that he does not remember the date when the transformer was entrusted to M/s. Mahati Electrics, Pune for drying out the transformer. He has further stated that the insulation value of the transformer was very low because of the moisture which had gone into the transformer and the oil was damaged. He has further stated that he does not think Insurance Company was intimated about entrusting the transformer for repair work to M/s. Mahati Electrics. He has further stated that he was not getting any document right then to show about the same. He has denied the suggestion that the work was not given to said M/s. Mahati Electrics, Pune. He has further stated that Mr. M.R. Shenvi, the surveyor of the respondent no.1 was not informed regarding the internal damages. He has further stated that he could not state exactly the date when internal damages had taken place to the said transformer. He has further admitted that the transformer was kept in the open space while it reached Tivim. He has further 14 stated that the transformer had to be kept in the open space. He has further admitted that transformer was split before the same was transported and the radiator and the conservator tank were transported in the separate truck of the department. He has further admitted that he has no record to show that before transportation which parts were removed of the transformer by the department. He has further admitted that when the radiators were removed from the transformer the openings are required to be sealed to avoid any moisture being entered to it through them. He has further stated that Department had sealed the said openings. He has further stated that there is no report to show that the side openings were sealed. He has further stated at page 14 of his cross-examination that at initial stage he had found that respondent no.2 had not taken due care and precaution while transporting the transformer from Curti. 16. On considering the evidence of the said witness, who was admittedly present at the time of transportation and involved in such work, I find that the admissions on his part that the transformer was kept in the open space at Tivim itself shows that proper care was not taken by the appellants to protect the 15 transformer. Apart from that, it is also admitted that the transformer was taken in dismantled state and that there were some parts detached from the main transformer. There is no appreciable evidence on record to show that the openings were sealed as claimed by PW2 to avoid the moisture and damages to the transformer. It is admitted fact that the internal damages have occasioned on account of the fact that moisture had entered the oil and caused damages to the internal parts of the said transformer. As proper precautions were not taken by the appellants the learned Judge was justified to come to the conclusion that such damages, if any, were occasioned by the appellants on account of the negligence on the part of the Officials of the appellants. I find that the findings of the learned Judge on that aspect cannot be faulted. 17. Apart from that there is serious dispute as to whether such repairs have in fact been carried out at M/s. Mahati Electrics in Pune. On perusal of the evidence on record, I find that nothing has been produced to establish that in fact any such work was carried out at Pune. The work order is not produced nor any receipts establishing that any such payments were effected by the appellants. No representative of the said electrical company was 16 examined by the appellants in support of their claim. 18. Considering the evidence on record there is nothing to accept that the appellants have spent a sum of Rs.6,50,000/- on account of the internal damages. The evidence further discloses that the surveyor appointed by respondent no.1 has not even appraised any such damages as having occurred to the transformer by the appellants. All these circumstances establish that the appellants have failed to prove that a sum of Rs.6,50,000/- was spent due to the internal damages sustained to the said transformer. I find no infirmity in the impugned judgment refusing the claim of the appellants of Rs.6,50,000/-. The learned Additional Government Advocate appearing for the appellants was unable to point out any piece of evidence to suggest that the appellants have established their claim of Rs.6,50,000/-. In fact, the learned Additional Government Advocate fairly conceded that no such evidence was adduced on record to establish that in fact any such amount was paid to M/s. Mahati Electrics, Pune. 19. As such, I find no reason to interfere in the impugned judgment refusing the claim of the appellants to the extent of 17 Rs.6,50,000/-. The point for determination is answered accordingly. 20. No interference is called for in the impugned judgment and, as such, the appeal stands dismissed with no orders as to costs. F.M. REIS, J. NH/-