IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 AS.No. 373 of 1994(B) ------------------------------ [OS.NO.379/1989 OF PRINCIPAL SUB COURT,NORTH PARAVUR] .................... APPELLANT IN A.S/ DEFANDANT NO.5 IN SUIT: ------------------------------------------------------------------- P.K. KURIAN, SON OF ITTIAVIRA, RESIDING AT PANACHIYIL HOUSE, RAMAMANGALAM.P.O. BY ADVS. SRI.S.V.BALAKRISHNA IYER, SRI.K.JAYAKUMAR, SMT.M.M.TEENA. RESPONDENT NO.1 IN A.S - PLAINTIFF IN THE SUIT/RESPONDENTS 2 TO 5 IN A.S- DEFENDANTS 1 TO 4 IN THE SUIT: ----------------------------------------------------------------------------------------------------------------------- 1. VARGHESE, SON OF VARKEY, KOORLIYIL HOUSE, PARIYARAM KARA, AIKKARANADU SOUTH VILLAGE. 2. KERALA WATER AUTHORITY, REPRESENTED BY THE MANAGING DIRECTOR, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, WATER AUTHORITY, ALWAYE. 4. THE ASST. EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, WORLD BANK PROJECT, (SUB DIVISION), CHOONDY, PUTHENCRUZ. 5. M.J. THOMAS, CONTRACTOR, MALIEKAL HOUSE, EDAKOCHI, PIN – 686 006. R1 BY ADVS. SRI.K.R.B.KAIMAL, SRI. A.L.GEORGE, R2 TO R4 BY SRI.M.DINESH, S.C, K.W.A. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/07/2009, ALONG WITH A.S NO.574 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO. 373/1994-B: ORDER ON C.M.P. NO. 441/1995 IN A.S. NO. 373/1994-B DISMISSED 06/07/2009. SD/- K.SURENDRA MOHAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. K. SURENDRA MOHAN, J ------------------------------------------------------------ A.S. NOS: 373 /94 & 574 of 2001 ----------------------------------------------------------- Dated this the 6th July, 2009. JUDGMENT Both these appeals challenge the judgment and decree of the Principal Sub Judge, North Paravur dated 20.2.1993 in O.S.379/1989. A.S.373/94 is filed by the 5th defendant in the suit while A.S.574/2001 is filed by defendants 1 to 3 in the suit. A.S.No: 574/2001 was originally filed as A.S.29/94 before the Additional District Court, North Parur and was later withdrawn to this Court as per order dated 19.9.2001 in A.S.373/1994, to be heard along with the said appeal. Thereafter the appeal has been renumbered as 574/2001. The suit O.S.379/1989 was filed for a declaration and for recovery of damages. According to the plaintiff, damage was caused to the house of the first respondent/plaintiff by the blasting operations conducted by defendants 4 and 5 in the suit. 2. The plaintiff is the owner of the plaint schedule property. He had purchased the properties on 18.6.1987 as per sale deed No: 1143 of Aikkaranadu Sub Registry Office. After purchasing the property the plaintiff constructed an RCC building therein during 1986-87 and shifted residence to that house. The first defendant A.S.373/94 & 574/01 2 is the Water Authority and the second and third defendants are the Executive Engineer and Asst. Executive Engineer respectively of the said authority. Additional defendants 4 and 5 are contractors working under the first defendant. The defendants were in the process of laying pipelines on the southern side of the Ramamangalam-Ezhakkaranadu Road. The plaintiff's house is situate on the southern side of the road. According to the plaintiff the pipeline is laid at a distance of 10-12 ft away from the schedule property and the house therein. 3. In the process of laying pipelines a channel was constructed first. In the course of construction of the channel, granite stones were encountered and for removing said stones, blasting with gun powder was done. It started on 20.10.1989. Immediately on getting information, the plaintiff went and obstructed the blasting but, ignoring the objections of the plaintiff the workers continued the blasting operations. According to the plaintiff blasting was done on 20 occasions causing heavy vibrations due to which cracks developed on the house of the plaintiff. The defendants had no manner of rights to use gun power or explosives. They had no permission and licence to use such explosives. The explosions were conducted without taking A.S.373/94 & 574/01 3 any precautions, ignoring the protests of the plaintiff. Therefore, the plaintiff claimed that the defendants were liable to compensate him for the loss. Initially an amount of Rs.10,000/- was claimed as damages in the plaint. However, subsequently, after the loss was assessed with the assistance of an expert, the plaint was amended and the claim was enhanced to Rs.15,500/- . The plaintiffs sought to recover the amount from the defendants. He also sought a declaration that the defendants had no right to conduct blasting operations using explosives within a radius of 100 mtrs. of the schedule properties. A permanent injunction restraining the defendants from engaging in blasting operations was also sought. 4. A statement was filed by the counsel for defendants 1 and 2 stating that they were only formal parties and that the written statement filed by the third defendant would be sufficient to defend the plaint allegations and that no separate written statement on their behalf was necessary. The third defendant filed written statement contending that the Kerala Water Authority had undertaken two works, along the Choondy-Ramamangalam Road under the World Bank aided water supply scheme to Puthencruz. The work involved laying of the C.I. pumping main from Ramamangalam to Choondy and laying of distribution pipes of A.S.373/94 & 574/01 4 various sizes in Sub Zone 1 B . The work was given on contract to defendants 4 and 5. In order to avoid inconvenience to general public and the traffic on the road, both the works were done simultaneously. The work of laying pipelines was done on the southern side of the Choondy-Ramamangalam road. The plaintiff's house is situate on the southern side of Choondy-Ramamangalam road. The shortest distance from the road to his house is 20 mtrs. and the blasting point is at a distance of 27 Mtrs. from his house. Therefore, the allegation that it is at a distance of 10-12 ft. from the property was denied. The pipeline was laid in trenches which have a depth of 1.25 mtrs. When the trenches were being cut, at some places very hard narikkal stones were encountered. Removal of the stones by chiselting or by using pick axes would have consumed a lot of time and caused inconvenience to the general public. Therefore blasting was done after taking all precautionary measures to avoid damage to nearby residents and to properties. Blasting was not needed for the full depth because the top layer up to an average depth of 30-40 cms was soft. Wherever blasting was needed it was done in layers of 40-45 cms so as to avoid over excavation and vibration. The trenching operation by blasting was done up to a distance of 500 mtrs. from Choondy side, up to the A.S.373/94 & 574/01 5 house of the plaintiff. Granite stones were not found anywhere and only narikkal was present. Therefore blasting was not necessary for removing the same and was done only to save time. 5. When blasting was in progress the plaintiff made a complaint to the Police. On receiving information of the plaintiff's complaints, the third defendant gave instructions to stop blasting and accordingly it was stopped. According to the third defendant, blasting was not done on 20.10.1989 but, as alleged it started much earlier and was done for a distance of more than 500 mtrs. However, the allegation that cracks were caused to the building of the plaintiff by the blasting operations was denied. According to the third defendant, the cracks were caused either by settlement of the building or other natural causes or variation in temperature. There were many houses on either side of the road and no complaints of any damage was received from the owners of any of the houses. According to the third defendant immediately on receipt of a complaint from the plaintiff, the blasting operations were stopped and the house of the plaintiff was inspected. On physical verification, it was seen that the cracks on the walls of the house were not caused due to blasting. For the above reasons, the third defendant prayed for dismissal of the suit. A.S.373/94 & 574/01 6 6. Additional 4th and 5th defendants filed written statements contending that the suit was not maintainable and that there was no cause of action against them. They denied the allegation that blasting operation was done using gun powder and that because of the shake, major cracks developed on the house of the plaintiff. They contended that they had not done any act to cause loss to the plaintiff. The allegation that the plaintiff had suffered damages was denied and it was contended that the suit was filed without any bonafides. On the above grounds they prayed for dismissal of the suit. 7. The suit was tried by the court below on the above pleadings, after framing four issues. The evidence in the case consists of the oral testimonies of P.Ws. 1 to 6 and Exts.A1 and A2 on the side of the plaintiff, the oral testimonies of D.Ws 1 and 2 and Exts.B1 and B2 documents on the side of the defendants and Exts.C1, C2 and C3 commission reports marked as Court Exhibits. 8. On a consideration of the rival contentions and the evidence on record, the court below came to the conclusion that there were cracks on the house of the plaintiff which had formed immediately after the blasting at the disputed site and that the damage to the building can only be due to the blasting operations. A.S.373/94 & 574/01 7 The court went on to consider the quantum of damages to be awarded and came to the conclusion that an amount of Rs.11,907/- was the amount that the plaintiff was entitled to recover as damages. The prayer for declaration that was sought was declined. A permanent injunction restraining the defendants from using explosives without obtaining necessary licence and without taking necessary preventive measures has been granted. The plaintiff has also been held entitled to recover proportionate costs. It is the said judgment and decree that are assailed in the above appeals. 9. Counsel for the appellants in both the appeals addressed their submissions in great detail. According to the counsel, it cannot be disputed that there were cracks on the house of the plaintiff but there is no evidence available to show how the cracks were formed or when cracks had developed. It is true that blasting operations had been conducted by defendants 4 and 5 under the supervision of the third defendant, But, the explosives were only mild ones, they were used after taking sufficient precautions and considering the distance to the house of the plaintiff from the blasting point, there is not even a remote chance of cracks developing on the house of the plaintiff due to the said explosions. He relied on Ext.B2 site plan to point out that all along the road on A.S.373/94 & 574/01 8 both sides thereof, there were houses, many of them closer to the blasting point than the plaintiff's house. Right on the road side, there was a bus shelter. But no damage has been alleged to have been caused to any other house or to such structures that were even there on the road side. According to the counsel, since the house of the plaintff was on the southern side of the road and since blasting was done on the southern side of the road, the wall of the plaintiff's house nearest in point to the blasting area was the nothern wall which does not show any cracks. The cracks are on the walls that are further away, on the southern side. It is also contended that vibrations caused by blasting is transmitted only through the ground and therefore the starting point of the cracks has to be from the basement of the building. In the present case, the cracks are on the upper areas of the house indicating that they are either temperature cracks or cracks formed due to settlement. Counsel for the appellant also contended that the house of the plaintiff was constructed on a site obtained by filling a pond and therefore, chances of settlement was very great. According to him, though Exts.C2 and C3 reports have been submitted by Engineers, they have pleaded ignorance about specialised knowledge regarding explosives and have deposed that only an A.S.373/94 & 574/01 9 expert in explosives would be able to ascertain whether the cracks that are seen on the plaintiif's house were actually caused by the blasting operations conducted by the defendants. In the absence of any evidence to establish the above casual connection, it is contended that the judgment and decree of the court below cannot be sustained. 10. Counsel for the first respondent on the other hand submitted that Ext.C2 commission report of the Assistant Engineer, Public Works Department has clearly found that the damage caused to the house of the plaintiff was a direct result of the blasting operations conducted by the defendants. The oral evidence adduced in the case also clearly prove the damage. There being no other reason that could have caused the damage, the finding of the court below that the defendants are responsible for the same is correct and reasonable, it is contended. Therefore, the plaintiff prayed for dismissal of the appeal. 11. I have heard counsel for the appellants in both the appeals as well as counsel for the respondent. I have been taken through the evidence in the case both oral and documentary and the pleadings of the rival parties . I have also anxiously considered the respective contentions advanced before me. A.S.373/94 & 574/01 10 12. The point that arises for consideration in the above appeals is :- “Whether the finding of the court below that the cracks on the house of the plaintiff have been caused by the blasting operations conducted by the defendants is supported by the evidence on record.” 13. It is more or less admitted by the parties that the defendants had undertaken the work of cutting a trench along the southern side of the Choondy-Ramamangalam road for the purpose of laying pipelines. It is also fairly admitted that in undertaking the work of cutting the trench, blasting operations using explosives was resorted to. According to the defendants, blasting was done to remove hard narikkal stones that were uncountered while cutting the trench. According to the defendants only mild explosives were used and that too after exercising sufficient precautionary measures. According to them, no damage whatsoever has been caused to the house of the plaintiff by the blasting conducted by them. According to the plaintiff, the blasting was done on 20.10.1989. However, according to the defendants, it was done on a number of days prior to the said date but, was stopped on getting complaints from the plaintiff. 14. There are three commission reports in the above case. A.S.373/94 & 574/01 11 Ext.C1 is the report of the Advocate Commissioner Mr. N.K.Jinnan. He had visited the property on 26.10.1989. He has appended two sketches to his report Ext.C1. Ext.C1(b) is a rough sketch showing the location of the plaintiff's house, and the site where the trench was dug. The sketch shows that the trench was dug on northern side of the plaintiff's house, which is the southern side of the road. The house of the plaintiff is situated a little away from the road margin, separated by compound walls. Ext.C1(a) is another sketch that shows the position of the rooms in the house of the plaintiff. The commissioner has noticed a number of cracks on the house of the plaintiff which he has gone on to describe from paragraph 6 onwards of his report. Though he has referred to the cracks in each room, he has not given the measurement of each of the cracks except for the length. Therefore, it is not possible to say whether the cracks were of a serious nature or not. However, a few cracks are described to be extending through the wall to the opposite side and therefore, have to be considered as serious. Ext.C1 report shows that generally, all the cracks reported are seen close to the ceiling or at least above the windows. It is significant to note that there is no crack which has been reported to extend from the basement of the house upwards. It is also worth noticing A.S.373/94 & 574/01 12 that the cracks are considerably less on the northern wall of the building, which is closer to the blasting point than the other walls. The distance from the house to the blasting point has been found to be 18 mtrs. Regarding the cause of the alleged cracks, the Commissioner has reported that it would be possible to ascertain the same only with the assistance of an expert. 15. Ext.C2 is the report submitted by Mr. V.A. Abdul Raheem, Assistant Engineer, Public Works Department who inspected the house on 25.6.1991. He was accompanied by Mr. E.V.Paulose, Retired Executive Engineer, an expert. The Engineer has reported that the cracks on the top of the western side wall of room D in Ext.C1(a) is somewhat deep in the sketch produced by him. According to him, the extent of the cracks in the present case are so unusual that they are not attributable to normal circumstances. They are also not explosion cracks. As the foundation soil is hard laterite, damage due to sinkage of foundation is not expected, it is reported. According to him, there is no other reason for the development of cracks to such an extent on a newly constructed pucca building and therefore he has reported that, “It is presumed that this shall happen due to the blasting operation.” He has further reported that “I am not expected to be an authority on A.S.373/94 & 574/01 13 blasting operation and hence I am not in a position to report the extent of vibration load and the effects of such vibration on a nearby structure.”. Therefore, he has also not been able to express any definite opinion as to the cause of the cracks. He has worked out the cost for repairing the house and has estimated the cost of repairs to be Rs.15,267/-. 16. Ext.C3 is the report of Mr. E.V.Paulose who inspected the Plaintiff's house along with the Assistant Engineer, PWD on 25.6.1991. Ext.C3 is his report of inspection. Ext.C3 has reported that no maintenance work like, white washing, colour washing, painting etc. has been done to the plaintiff's house after the original finishing works. The expert has relied on the statement made by the plaintiff that the foundation work on the house was started from hard laterite (narikkal), which is just 50 to 100 cms below the existing ground level. The expert has noticed the cracks but, has not been able to give any definite answer as to the cause of the cracks. According to him cracks would be formed due to various reasons like poor foundation work, poor quality of materials used, poor workmanship etc. The cracks could be formed also due to temperature variations which would cause the expansion and contraction in the materials used for the A.S.373/94 & 574/01 14 construction work. Since the range of expansion and contraction of different materials are different, cracks would usually be formed. Such cracks are visible in a number of buildings. However, he goes on to say that the construction of the plaintiff's house has been done on foundation with rubble masonry and that the sub soil was firm. However, he was not in a position to say anything about the quality of materials used for the superstructure or about the workmanship. The temperature cracks on the building are harmless according to him. Though he accepts possibility of cracks developing due to use of explosives for cutting pipe line trenches at a distance of 20 mtrs. away from the building as one of the reasons for the formation of cracks, he has hastened to add that it would not be fair to come to a conclusion that the cracks werre caused only due to the explosions on the nearby road. According to him, the effect of the impact consequent to the alleged blasting on the upper building can be determined only by an expert in the field of explosives, after studying the strength of explosives used, the number of explosions, the type of rock on which blasting was done etc. He has further reported as follows:- “The present difficulties noted in the building are only some cracks in the walls in the walls, and can be rectified by impregnating cement A.S.373/94 & 574/01 15 mortar and by doing patch plastering. The estimate worked out to Rs.4,000/- for patch plastering. Further works like white washing, painting etc includes in the routine maintenance works and no estimation is taken for such works”. To a specific query put by the plaintiff to the expert, he has answered that another storey can be constructed on top of the existing structure of the plaintiff's house without any safety hazard. Therefore, the conclusion of the expert appears to be that there has not been any apparent shake that has affected the foundation. The Commissioners have been examined as P.Ws 4, 5 and 6. 17. Though it was reported in Ext.C3 that the exact cause of the cracks could be ascertained only with the assistance of an expert in explosives, no attempt was made to get an assessment done by such a person. Therefore, the evidence in the present case remains insufficient to connect the act of blasting with the cracks that have formed on the building in question. It is true that the building is not very old and the same has been constructed on foundation that is stable. However, the experts in the field have reported that the cause of the cracks could be ascertained only by an expert in explosives. For the purpose of ascertaining the exact cause, even an expert would have to study the nature and strength of explosives used, the type of rock on which the same was used, A.S.373/94 & 574/01 16 the nature of the sub soil and various other factors. However, no attempt to ascertain the exact cause has been attempted in the above case. Therefore, the fact remains that there is no evidence to connect the blasting operations to the cracks that have formed on the plaintiff's house. 18. Apart from the above, Ext.B1 which is the site plan of the area shows the road along which the pipeline was laid and blasting conducted. The point at which blasting was stopped is also shown in the plaint. It is to be noted that there are a number of houses on either side of the road along the entire stretch over which blasting was conducted. The sketch shows a waiting shed on the road side, a church, a tea shop, a number of houses, plastered walls, compound walls and other structures. It is significant to note that there is no complaint of any such cracks on any of the above structures or from any other person. As per the site plan, the plaintiff's house is at a distance of 20-27 mtrs. away from the blasting point. There is a house, well and other structures between the house of the plaintiff and the road. The plaintiff's house is also separated by a compound wall. It is to be noted that none of these structures show any cracks. The compound wall of the plaintiff also does not bear any cracks. It is not possible for A.S.373/94 & 574/01 17 cracks to form on the walls of the house which is situate inside a compound wall, with the compound wall remaining intact. Since it was not possible for even the Engineers who inspected the house to say with certainty as to how the cracks were formed, it is absolutely unsafe for an untrained person to hazard any such conclusion. Therefore, it is held that since there is no evidence connecting the blasting with the actual formation of cracks the cause of formation of the cracks is still uncertain. At any rate, it cannot be held that the cracks were formed due to the blasting conducted by the defendants. 19. The court below has gone on to examine the terms and conditions of the contract to find out