IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.392 of 1998. Reserved on:11.09.2008. Decided on: Sept. 19, 2008. Pushpa Thakur …Appellant. VERSUS State of H.P. & Ors. ….Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yess For the Appellant: Mr G.D.Verma, Sr.Advocate with Mr.B.C.Verma, Advocate. For the respondents: Mr Anshul Bansal, Addl.A.G. Kuldip Singh, Judge This appeal has been directed for enhancement of compensation against the judgment, decree dated 30.3.1998 passed by learned Additional District Judge, Shimla in Civil Appeal No.51-S/13 of 1995/94 allowing Rs.40,000 compensation by modifying judgment, decree dated 13.5.1993 passed by learned Senior Sub Judge, Shimla in Civil Case No.455/1 of 1991. Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… 2. The facts, in brief, are that appellant on 18.3.1991 filed a suit for recovery of Rs.1,68,600 against the respondents on account of damage done to the house of appellant by respondents while widening the road. The case of the appellant is that she started running a dairy farm from a tenanted premises in January 1987 after shifting it from village Tal-Ka-Nal. She purchased a house and land in village Chamyana on 14.10.1987. She constructed a house after demolishing old structure at a cost of Rs.1,60,000 and the house of the appellant was situated at Shogi – Dhalli road supported by a retaining wall on the road side. She started running dairy farm in the suit property from March 1988 and was earning Rs.3000 to Rs.5000. She was also residing in the house after re-construction. On 31.7.1990 respondents started widening of the road below the house of the appellant. The respondents removed natural support to the house and land of the appellant when rainy season was in full swing as a result of which there was a landslide causing damage to the house and land of the appellant. She informed the respondents telegraphically to stop the work, however, the work continued. The appellant had to shift her Dairy Farm back to original place Tal-Ka-Nal as the house of the appellant had been rendered unfit for occupation. The appellant …3… claimed Rs.1,47,600 on account of damage to the house, Rs.12,500 loss of income at the rate of Rs.5000 per month from 14.8.1990 to 31.10.1990, Rs.6000 on account of shifting of Dairy Farm, Rs.2500 on account of rent of the alternative accommodation. The appellant served notice under Section 80 C.P.C. and thereafter filed the suit. 3. The suit was contested by the respondents. They admitted that widening of the road was done by them but denied that the widening had caused landslide due to which house and land of the appellant was damaged. They pleaded that appellant had constructed the house without proper foundations on loose soil. The existence of retaining wall was denied. It has been pleaded that road in question is situated far away from the house. Damage was caused to the property of the appellant due to natural circumstances and due to unscientific construction of house on loose soil. The respondents denied the claim of the appellant. Preliminary objections of maintainability, locus standi, lack of enforceable cause of action, estoppel have also been taken. The appellant filed replication and reiterated her stand. The learned Senior Sub Judge in all allowed Rs.20,000 to the appellant as damages on 13.5.1993 and decreed the suit of the appellant accordingly. The decree dated 13.5.1993 was assailed by …4… appellant by way of Civil Appeal No.51-S/13 of 1995/94 and by respondents by way of Civil Appeal No.57-S/13 of 1995/94. The learned Additional District Judge decided both the appeals by common judgment, decree dated 30.3.1998, Civil Appeal No.57-S/13 of 1995/94 filed by respondents was dismissed and Civil Appeal No.51-S/13 of 1995/94 was partly allowed enhancing the amount of compensation by way of damages to Rs.40,000. Aggrieved by judgment, decree dated 30.3.1998, the appellant has come in second appeal for enhancement of compensation by way of damages. The appeal has been admitted on following substantial questions of law:- i) Whether while assessing the extent of damage and amount of damages the Courts below has failed to apply correct principle of law? ii) Whether in the facts and circumstances of the case, there has been mis-appreciation of evidence by the Courts below? iii) Whether the findings of the learned Courts below are vitiated due to non- consideration and mis-appreciation of pleadings of the parties? iv) Whether the learned Court below has erred in law while awarding damages by holding …5… that the plaintiff is not entitled to amount which will be required for restitution of the property in suit? v) Whether the oral and documentary evidence on record has not been considered and appreciated? vi) Whether the appellant is entitled to amount of damages due to disturbance, loss of business and prospective cost of construction? 4. I have heard Mr.G.D.Verma, learned Senior Advocate assisted by Mr.B.C.Verma, Advocate for the appellant, Mr.Anshul Bansal, learned Additional Advocate General, for the respondents and gone through the record. On behalf of the appellant it has been submitted that the negligence of the respondents has been proved on record in causing damage to the house and land of the appellant. It has been submitted that learned Additional District Judge has not properly appreciated the evidence on record and has thus awarded only Rs.40,000 as against the claim of Rs.1,68,600 of the appellant which has been proved on record. The learned counsel for the appellant has submitted that the appellant is entitled to suit amount on account of damage to the house, land, loss of income from Dairy Farming, shifting of …6… Dairy Farm to another place, on account of rent for arranging alternative accommodation etc. The learned Additional District Judge has mis-construed and mis-interpreted the evidence on record and he has prayed for allowing the appeal and decreeing the suit as prayed in the plaint. Mr.Verma has also prayed for awarding of 18% interest on the decretal amount. The learned Additional Advocate General has supported the impugned judgment, decree. He has submitted that the learned Additional District Judge has adopted liberal approach in awarding damages to the appellant and now in second appeal appellant is not entitled to any further enhancement of damages. He has submitted that the case has been decided on facts and no substantial question of law is involved in the appeal for determination. SUBSTANTIAL QUESTIONS OF LAW NO.(i) to (vi): 5. Since all the substantial questions of law are inter- connected, therefore, they are being disposed of collectively. The appellant in the plaint has prayed the following decree:- i) Recovery of Rs.1,68,600 with future interest at the rate of 22% from the date of suit till payment; ii) Mandatory injunction directing the respondents to construct retaining walls; …7… iii) Permanent prohibitory injunction restraining the respondents from interfering in the ownership and possession of the suit property; and iv) Rs.5000 per month from 1.11.1990 till the property of appellant becomes habitable. 6. PW-1 Pushpa Thakur has stated that she had spent Rs.1,60,000 on the construction of the house. She was running dairy at Tal-Ka-Nal which she shifted in Kamla Nagar in January 1987. In March 1988 she shifted her residence and dairy in her own house, she had four cows and was having about 50 liters milk per day and earning Rs.3000 to Rs.5000 per month. The respondents on 31.7.1990 started widening of the road as a result of which initially landslide occurred and thereafter the retaining wall came down. On 13.8.1990 they shifted their house and dairy farm. The cows were sent to the village and she took on rent house from Nirmala at Rs.1000 per month. The house developed cracks and became unsafe for habitation and for keeping animals. She got the site inspected by R.B.Saxena. She has suffered total loss of Rs.1,68,600. 7. PW-2 R.B.Saxena, expert of the appellant, has proved his report Ext.PW-2/A along with annexures Ext.PW- 2/B, Ext.PW-2/C and Ext.PW-2/D. He has shown cracks with …8… red ink in Ext.PW-2/C and Ext.PW-2/D and landslide in Ext.PW-2/D. PW-5 Vijay Mehta has stated that four sacks of feed 50 Kgs each were supplied to PW-1 in July 1988 on the address of Kamla Nagar, Shimla. PW-6 Nirmala has stated that plaintiff is residing in her house and paying Rs.1000 per month rent. The plaintiff had house adjacent to her house in which she was residing and had also kept the cows. This house collapsed in the year 1990 due to cutting. She had shifted the cows to her village. The cows were giving 50-55 Kgs milk daily. 8. Ext.PW-2/A is the report dated 12.9.1990 which has been prepared by PW-2 R.B.Saxena. In the report he has stated that he inspected the site on 14.8.1990. In the report it has not been mentioned by PW-2 that he had seen the house and land of plaintiff prior to 31.7.1990. The case of the appellant is that her house was damaged on or after 31.7.1990. PW-2 in his report has not stated what was the nature of construction, quality, area of the house and property of appellant immediately prior to its damage. He has placed no documentary evidence on record to show nature of construction raised by appellant. PW-1 herself has not produced any authenticated plan etc. so as to prove nature of construction raised by her on the land in question. In other …9… words, there is nothing on record to show what was the construction raised by appellant on the land in question. PW- 1 has stated that she had spent Rs.1,60,000 on the construction of her house but no accounts, vouchers in support of the construction raised by appellant have been proved on record. It has also not been proved by other reliable evidence, even in the absence of vouchers and accounts, what could be the cost of construction of the house of appellant in the year 1987-88 when she constructed her house. PW-2 while describing the present condition of the house in report Ext.PW-2/A has stated that the house and cow shed had developed cracks and have become unsafe and inhabitable. He has not stated in the report that house and cow shed were beyond repairs. He has nowhere stated in the report that after the repairs of the house and the cow shed those could not have been made habitable. The appellant at the most is entitled to restitution of the damaged property and not the reconstruction of damaged property as per law laid down by Supreme Court in Lotus Line Private Ltd. versus The State of Maharashtra, AIR 1965 SC 1314, which reads as follows:- “It seems to us, however, that the view taken in Wednesbury Corporation’s case, (1907) 1 KB 78, that a person to whom a …10… wrong is done is entitled to full compensation for restoring the thing damaged to its original condition may be accepted as the true measure of damages in a case of this kind. This applies equally to a private person as to a corporation or trustee. Therefore, the respondent – State was entitled to compensation to the extent necessary to restore the jetty to its original condition. If this is to be called restitution, the corporation as well as a private person would be entitled to it. But if by restitution, the High Court meant complete reconstruction irrespective of the damage done, then neither a private person nor a corporation or a trustee is entitled to complete reconstruction irrespective of the damage done.” 9. The appellant has claimed Rs.1,47,600 on account of damage caused to the land and building, Rs.12,500 on account of loss of income at the rate of Rs.5000 per month from 14.8.1990 to 31.10.1990, Rs.6000 on account of shifting of cows to Tal-Ka-Nal and Rs.2500 for arranging alternative accommodation for residential purposes at the rate of Rs.1000 per month. In addition the appellant has claimed Rs.5000 per month from 1.11.1990 till the property of the appellant becomes habitable. In Ext.PW-2/B abstract of cost of house …11… of appellant has been shown Rs.1,47,600. This abstract of cost is nothing but construction of a new house which is clear from the various items mentioned in the abstract of cost including dismantling and disposal of the material. The appellant is not entitled to Rs.1,47,600 mentioned in abstract of cost Ext.PW-2/B without proving that the house of the plaintiff could not have been repaired. In view of the decision of Supreme Court in Lotus Line’s case (supra) appellant is not entitled to reconstruction of the building. 10. There is no worth believing evidence on record that appellant had been earning Rs.5000 per month from dairy which she was running in her house. The appellant has not examined any person whom she had supplied milk nor the accounts of the dairy have been proved, therefore, appellant is not entitled to loss of income at the rate of Rs.5000 per month from 14.8.1990 to 31.10.1990. In Para-8(b) of the plaint, the appellant has claimed Rs.6000 on account of loss due to shifting of cows to Tal-Ka-Nal. She has not pleaded and proved that she had incurred an amount of Rs.6000 for shifting her dairy to Tal-Ka-Nal. The perusal of claims mentioned in Paras-8(a) and 8(b) would show that claims are with respect to dairy and cows but both the claims mentioned in Paras-8(a) and 8(b) have not been proved by the appellant. …12… In the plaint, the appellant in prayer(d) has prayed that respondents be directed to pay Rs.5000 per month from 1.11.1990 till the property of the appellant becomes habitable. The suit was filed on 18.3.1991. No Court fee on the claim mentioned in prayer (d) of the plaint up to the filing of the suit has been affixed by the appellant. The prayer (d) in the plaint is not happily worded but it appears that the appellant has claimed Rs.5000 per month for loss of income. It has already been held above that the appellant has failed to prove her income from dairy at the rate of Rs.5000 per month. PW-6 Nirmala Devi has stated that these days plaintiff is residing in her house on payment of Rs.1000 per month. PW-1 Pushpa Thakur has stated that she shifted her dairy on 13.8.1990 and took the house of Nirmala Devi on rent at Rs.1000 per month. No receipt in token of payment of rent at the rate of Rs.1000 per month has been proved on record. Ext.PW-1/E is the letter dated 20.8.1990 of the appellant addressed to Executive Engineer but in this letter she has nowhere stated that she has taken on rent house at the rate of Rs.1000 per month from Nirmala. In notice dated 29.10.1990 Ext.PW-1/H issued on behalf of the appellant there is no mention that she had taken on rent house of Nirmala. The appellant has, thus, failed to prove her claim for …13… alternative accommodation at the rate of Rs.1000 per month. The learned Additional District Judge has rightly appreciated the material on record and has allowed a sum of Rs.40,000 lump-sum to appellant on account of damages and for repair of the suit property. 11. The learned counsel for appellant has submitted that learned Additional District Judge has erred in not awarding interest on the decreetal amount. He has prayed reasonable interest on the amount held to be payable by respondents to appellant on account of damages. There is no issue of payment of interest nor the appeal has been admitted on substantial question of law relating to interest, therefore, appellant is not entitled to interest on the amount allowed by way of damages. 12. The appellant has not proved any threat of interference on her property by the respondents nor the appellant has specified, identified the place for construction of retaining walls. The damage was caused to appellant by the negligent acts of respondents. The appellant is not entitled to decree of permanent prohibitory and mandatory injunction. 13. In light of the above discussion, no fault can be found with the findings recorded by the learned lower appellate Court. The appellant has failed to make out any …14… case for interference. The su bstantial questions of law No.(i) to (vi) are decided against the appellant. 14. No other point was urged. 15. The result of the above discussion, the appeal is dismissed with no order as to costs. Sept. 19, 2008. ( Kuldip Singh ), J. (soni)