IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA 56 of 2002. Date of decision March 18, 2008. Shri Narain Chand …..Appellant. Versus State of H.P. & others …..Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the appellant Mr. Ajay Kumar, Advocate. For the respondent Mr. R.K.Bawa, Advocate General, with Ms. Ruma Kaushik, Addl. AG. Dev Darshan Sud, J. (Oral) This appeal has been preferred by the plaintiff against the judgment and decree of the learned Additional District Judge decreeing the suit of the plaintiff for a sum of Rs.2,32,161/- with costs and interest @ 6% per annum from the date of filing the suit till realization of the entire decretal amount. 1 Whether Reporters of Local Papers are allowed to see the judgment? - 2 - The plaintiff instituted the suit for recovery of Rs.4,30,937.47 against the State on the ground that the respondent – State was responsible for causing damage to the suit property including the house of the plaintiff while constructing a road through the land. It was pleaded that earlier Civil Writ Petition No. 396/1986 was filed in this Court and on 23.9.1986, this Court observed that the plaintiff shall be at liberty to recover the damage caused to the property by instituting a civil suit and the State would not object to the institution of the suit on the ground of limitation. The plaintiff claimed the following amounts as damages: “ a) Cost of the House Rs.96,482.00 b) Cost of the other house Rs. 8,665.00 c) Cost of removal of debris Rs.57,904.00 d) Cost of Retaining and Breast Rs.49,110.00 Walls, Khalion, Okhli etc. e) Cost of 40 Trees of Kunash Rs.20,000.00 f) Loss/Damages on account of loss Rs.60,000/- of crop, mental agony and torture Total Rs.2,92,161.00 - 3 - along with interest @ 15% per annum from 5.10.1993 till 2.12.1996. The defendants resisted the suit admitting only damage to the extent of Rs.1,64,787/-. The plaintiff is now in appeal. Learned counsel for the appellant has contended that the learned trial Court was wrong in assessing the claim of the plaintiff on the lower side and not granting a decree for the amount as prayed for. He submits that the statement of PW-1 has remained unrebutted and that he is entitled to the claim on account of mental pain and suffering, costs of the trees and the damage caused to the retaining wall. According to him, the statement of the plaintiff is supported by PW-3 Shri Puran Chand and PW-4 Shri Gobind Singh, Kanungo, who prepared the report Ex.DB which was accepted by the defendants. He submits that Exs. DB, DM, DN, DL and DO acknowledge and accept the quantification of the loss as claimed by the appellant in the suit. Learned counsel has urged that the estimate of damage Ex.PW-2/B submitted by him has been admitted by Shri Raghuvir Singh DW-2. Learned Advocate General submits that the decreed amount cannot - 4 - exceed that which the learned District Judge has awarded and that it was after consideration of all these documents that such award was made. I have heard the learned counsel for the parties and gone through the record. A sum of Rs.60,000/- claimed by the plaintiff on account of loss to crops, mental agony and torture cannot be allowed as there is no evidence on record to justify this claim. The bare statement of the appellant that he suffered such loss and its quantification is his personal estimate, unsubstantiated by any other evidence on record. His bare statement cannot be accepted. The learned District Judge, on the evidence of DW-2 and the documents referred to above by the learned counsel appearing for the appellant, awarded a sum of Rs.2,32,161/- which included the costs of the house, costs of removing debris and damage caused to the retaining wall. I do not find that the assessment which has been made by the learned trial Court is perverse or that the amount has not been properly calculated. The defendants have also admitted a part of this loss which formed the basis of the amount awarded to the plaintiff. In the - 5 - circumstances, the submission made on behalf of the appellant that the learned District Judge has erred in excluding the entire amount as claimed for including mental pain and suffering, damage to retaining wall and crops cannot be accepted. Learned counsel then submits that the trial Court was wrong in not awarding interest at 15% as claimed. This submission of the learned counsel cannot be accepted. There is no material on record to show that the prevailing rate of interest was 15% as claimed. However, two circumstances may be noticed, namely that earlier the plaintiff had instituted a suit against the defendants in which an assurance was given by the defendants that they would rectify the damage which has been caused to the property of the plaintiff. Ex.PW-1/N are the statements and Court proceedings showing that the plaintiff had withdrawn the suit on the assurance that the damage caused to the property would be rectified. This statement was made on 5.10.2003. It is also undisputed that the plaintiff along with others had approached this Court by way of Civil Writ Petition 396 of 1986 in which a Division Bench of this Court had observed - 6 - that it would be open to the plaintiff to quantify his damage in a civil suit. The fact that such damage had been caused is undisputed. When considered in its totality, although the submissions of learned counsel for the appellant that interest be awarded at 15% cannot be accepted, yet his alternate prayer that the appellant be allowed interest on the awarded amount from the date when the damage was caused which was much prior to the institution of the suit, is accepted. It has been established on record that in 1986 and 1993, the appellant had approached this Court by way of a Civil Writ Petition and the Sub Judge Ist Class, Rohru by way of a regular suit claiming damages caused to his property. It is undisputed that such suit was withdrawn on the assurance of the defendants to rectify the damage. Under the circumstances, this appeal is partly allowed and the judgment and decree passed by the learned District Judge is modified to the extent that the plaintiff shall be entitled only to interest on the decretal amount from 1.1.1987, that is to say the amount of damages / compensation shall carry interest @ 6% per annum on simple basis - 7 - from 1.1.1987. The appeal is disposed of. There shall be no order as to costs. March 18, 2008 (PC). (Dev Darshan Sud), J.