IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 13TH MAY 2010 / 23RD VAISAKHA 1932 AS.No. 173 of 1998(C) ------------------------------ [OS.NO.320/1995 OF ADDL.SUB COURT, THALASSERY] .................... APPELLANT/PLAINTIFF: ----------------------------------- THE KERALA STATE CIVIL SUPPLIES CORPORATION LTD., COCHIN, REPRESENTED BY ITS REGIONAL MANAGER, CALICUT. BY ADVS. SRI.GEORGE POONTHOTTAM,SC, KSCSC, SRI.JOY GEORGE, SC, SUPPLYCO, SMT.MOLLY JACOB,SC,SUPPLYCO. RESPONDENTS/DEFENDANTS 1 & 2: ----------------------------------------------------- 1. P.P. ABDUL RASHEED, S/O. ABDUL KHADER, BUSINESSMAN, RESIDING IN MADAKKANDY HOUSE, CHIRAKKAL KULAM, THAYATHERA, KANNUR. 2. K.P. IBRAHIMKUTTY, S/O. MUHAMMED KUNHI, RESIDING AT KUNHALI MANZIL, CHIRAKKAL, KANNUR. R1 & R2 BY ADV. SRI.A.MOHAMED MUSTAQUE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/06/2009,THE COURT ON 13/05/2010 DELIVERED THE FOLLOWING: prv. K. SURENDRA MOHAN, J. ------------------------------------------------------------ A.S. NO: 173 OF 1998 ----------------------------------------------------------- Dated this the 13th May, 2010. JUDGMENT The Kerala State Civil Supplies Corporation Limited, the plaintiff in O.S.No:320/95 of the Sub Court, Thalasserry has filed this appeal challenging the dismissal of their suit as per judgment and decree dated 28.7.1997. The defendants in the suit are the respondents in the appeal. 2. The appellant/plaintiff filed the suit O.S.320/1995 before the Sub Court, Thalasserry for the recovery of an amount of Rs.49,518 as damages from the defendants. According to the plaintiff, the building belonging to the first defendant was taken on rent by the plaintiff for running a Maveli Store, No: II, Plaza, Kannur. The building was taken on lease in the year 1983 and the store is functioning in the said building even now. 3. The Maveli Store was closed on the 28th and 29th of August, 1994, since 28th was a Sunday and the 29th being the Sri Krishna Jayanthi day. When the store was opened on the 30th, it was found that water had flowed into the room from the top and had damaged the articles stored there. After giving information to the superiors, an estimate was taken in the presence of the AS 173/1998 2 Assistant Manager and the Quality Controller of the Civil Supplies Corporation, Kozhikode, of the articles so damaged. It was noticed that water from the room upstairs had flowed into room below, through the ceiling. The water was seen collected on the floor. It was alleged that the incident happened due to the negligence and carelessness of the defendant in not covering the ceiling and not closing the water tap fitted in the room upstairs. It was alleged that the damage was caused only on account of the water flowing from the ceiling. 4. A notice was therefore issued to the second defendant through the plaintiff's Advocate. However, the defendants caused the issue of a reply to the same refuting the claim. According to the plaintiff, the statements in the reply notice are incorrect and the defendants are liable for the damage that has been caused due to their negligence and carelessness. Therefore, the amount was claimed with interest. 5. The suit was contested by the defendants. They admitted that the building bearing door No: CC.29/1730 belonged to the first defendant and the same was taken on lease by the plaintiff from the second defendant who is the power of attorney holder of the first defendant in 1983. They also admitted that the Maveli AS 173/1998 3 Store was functioning in the said building. However, they denied that the first floor portion of the room was in the possession of the first defendant. It belonged to a third party and the defendants have no right or possession over the same. They denied the averment that the Maveli store was closed on 28th and 29th of August, 1994 and that on the 30th when the store was opened, it was found that water had flowed from the top and damaged the articles stored there. The defendants have pleaded ignorance of the assessment of damage conducted by the superior officers to the plaintiff Corporation. They also denied that water from the room upstairs had flowed into the room below through the ceiling and had entered the Maveli store and collected on the floor of the said room. They denied any negligence or carelessness on their part. The second defendant is running a restaurant in the next door of the building which is in the possession of the plaintiff. He had no information about the alleged incident and the damage caused. According to the defendants the damage or loss if any would have been caused due to the negligence or carelessness of the staff of the plaintiff and the suit was filed for putting the blame on the defendants. They claimed that the suit is frivolous and vexatious and prayed for dismissal of the same with costs. AS 173/1998 4 6. The court below framed six issues on the above pleadings and tried the suit. P.Ws 1 to 4 were examined as witnesses on the side of the plaintiff and Exts.A1 to A10 documents were marked. For the defence, the second defendant was examined as D.W.1. After considering the contentions of the parties in the light of the evidence on record, the court below came to the conclusion that the plaintiff had not sustained any loss due to the negligence of the defendants. Therefore, the plaintiff was held not entitled to claim any compensation from the defendants. Accordingly, the suit was dismissed. The appellant challenges the said judgment and decree of the court below. 7. According to the counsel for the appellant, the premises occupied by the appellant were taken on rent from the defendants. Therefore, they are the owners of the building and hence, they are liable to compensate the plaintiff for the loss that was caused. It is pointed out that the case of the defendants that the upper portion belongs to another person is not pleaded in Ext.A10 reply notice. In view of the fact that the defendants have not produced any evidence regarding the ownership of the building, their case that they are not owners of the upper portion was liable to be rejected. According to the counsel, the evidence on record clearly AS 173/1998 5 established that damage was caused to the articles stored in the Maveli store by the overflow of water from the upper floor, for which the defendants were bound to compensate the plaintiff. Therefore, the court below seriously went wrong in dismissing the suit. 8. The counsel for the respondents on the other hand contends that there are no grounds to interfere with the judgment and decree of the court below. All the relevant aspects of the case have been considered by the court elaborately. The conduct of the plaintiff in not notifying the defendants of the damage before the issue of Ext.A9 notice shows that there is no bonafides in the claim put forward by the plaintiff. According to the counsel for the respondents, there is no evidence that any damage as alleged was suffered by the plaintiff and that the same was caused by the leakage of water as claimed. The alleged assessment of damage was also not done with notice to the defendant. Therefore, the counsel prayed for dismissal of the appeal. 9. I have perused the records of the case as well as the evidence adduced before the trial court. 10. The point that arises for consideration is:- AS 173/1998 6 “Whether the appellant has sustained heavy loss or damage due to any act or omission on the part of the respondents for which the appellant is entitled to be compensated? 11. The appellant is a statutory corporation and it is an admitted fact that the Maveli store of the appellant is functioning from the ground floor of the building by name Plaza at Kannur. The store has been functioning from the said premises since 1983. On 30.8.1994 when the store was opened it was found that water had flowed into the room from the first floor portion of the building and had damaged the articles stored there. According to the appellant water had flowed into the Maveli Store due to the negligence and carelessness on the part of the defendants. The definite case of the appellant is that they are not liable for the damage or loss, if any caused to the plaintiff. 12. In the above circumstances, the appellant had to prove not only that damage had been caused to the articles stored in the Maveli store, but also that the damage was caused by water that had flowed into the Maveli store from the upstair portion of the building and also that the upstair portion of the building belonged to the defendants or that the same was under their use and occupation. AS 173/1998 7 13. Ext.A9 is the notice issued on behalf of the appellant to the defendants. It is stated therein that when the store was opened after the holidays, the consumer goods kept in the store were found damaged due to roof leakage. According to the averments in the plaint, the leakage of water had occurred because the water tap in the room upstairs had been left open and consequently, water had flowed from the pipe and later it started dripping from the ceiling into the Maveli store. The above discrepancy is pointed out by the counsel for the respondents to show that the appellant does not have a consistent case regarding the cause of the leakage. The plaintiff has examined P.Ws 1 to 4 as witnesses and has also marked Exts.A1 to A10 documents. The witnesses have deposed that the articles were damaged due to contact with water. Consequently a loss of Rs.49,518/- has been caused to the plaintiff. P.W.1 is the person who had allegedly detected the damage on 30.8.1994. Thereafter the Asst. Manager also inspected the premises. Though P.W.2 claims that he had inspected the godown on 1.9.1994 and had prepared a list of the damaged stock and submitted the same, the said report is not seen produced. In cross examination, he has deposed that there is no record to show that he had made such an inspection. P.W.3 is a helper at the AS 173/1998 8 Maveli store. He has deposed that the stock kept in the Maveli store was damaged due to flow of water from the first floor portion of the building. He does not know who the owner of the first floor portion was or who was in occupation thereof. P.W.4 is the Assistant Manager of the plaintiff. He had instructed their lawyer to issue a notice against the first defendant because he was the owner of the building. The evidence of P.Ws 1 to 4 does not show that the actual cause for the leakage or flow of water was ascertained by anybody. Though the second defendant is running a restaurant on the next door of the Maveli store, no intimation regarding any such incident is seen to have been given to him at any time. The entire allegations of the appellant against the defendants are based on the mere fact that the first defendant is the owner of the ground floor portion and that the second defendant is his power of attorney. However, the allegations are denied by the respondents. Therefore, it was incumbent on the plaintiff to have proved the allegations. In the absence of any proof regarding the same, it cannot be found that the defendants are the owners of the upper floor of the building. 14. According to P.W.1, the damage was caused by the carelessness of the persons who were residing upstairs, who had AS 173/1998 9 left the water tap open, causing the water to flow into the Maveli store. Therefore, the allegations of carelessness and negligence are matters that are required to be proved by evidence. In the present case, there is a total lack of evidence regarding any carelessness or negligence on the part of the defendants. The contention that since the ground floor portion of the building had been taken on rent from the defendants, they are liable for the loss caused, is not sustainable. The further case of the appellant that since there is no case for the defence in Ext.A10 reply notice that the upper portion of the building was owned by some other person, the said contention was without bonafides also is not sustainable. It is true that in Ext.A10, there is only a general denial of the allegation that the damage caused was due to the negligence and carelessness on the part of the defendants. However, in the written statement it has been clearly pleaded that the upper portion of the building belongs to a third party. Since the said contention has been taken by the defendants at the appropriate time, they cannot be found fault with for not mentioning the said fact in their reply notice. 15. The evidence in the case shows that no attempt was made by the appellant to prove the ownership of the upper portion AS 173/1998 10 of the building. Just because the ground floor portion belongs to the first defendant, it cannot be presumed that the upper portion also belongs to him. In the above circumstances, it is found that the plaintiff has not been able to connect defendants 1 and 2 to the damage that is alleged to have been caused to the consumer goods of the plaintiff stored in the Maveli store. The evidence is not sufficient to make the respondents liable for the damage caused to the appellant. Therefore, the suit has been rightly dismissed by the court below. For the foregoing reasons, I find no grounds to interfere with the judgment and decree under appeal. The appeal is dismissed, confirming the judgment and decree of the Sub Court, Thalasserry in O.S.320/1995. In the circumstances of the case there will be no order as to costs. K. SURENDRA MOHAN Judge jj AS 173/1998 11 K. SURENDRA MOHAN, J. --------------------------------------- A.S. NO: 173 OF 1998 --------------------------------------- JUDGMENT Dated: 13th May, 2010.