Naganagowda Veeranagouda Patil vs Leela Basappa Kagganagi

Vasanthakumar, J.—This Regular First Appeal is directed against the Judgment and decree dated 9.4.1986 passed in O.S.No. 247/1983 by the Court of the First Additional Civil Judge, Belgaum, wherein the Court of the First instance dismissed the suit.

A few facts to briefly state are:-

The parties are described in their original ranks. As against the decree in O.S.No. 247/83, the plaintiff has preferred this Appeal and defendants have filed their cross-objections, as such it is proposed to pass the following Judgment. Plaintiff Naganagouda Veeranagouda Patil filed a suit numbered as O.S. 247/83, on the file of the Civil Judge, Belgaum against the defendants who are legal representatives of one deceased Basappa Balappa Kagganagi for recovery of Rs. 1,90,000/- the amount being towards compensation for the wrongful detention of a Truck bearing Registration No. MYB 6008, the basis of the claim being restricted to for a period of two years that is from 4.9,1981 to 4.9.1983.

It is seen from the records that earlier to filing of the above original suit, plaintiff had filed another original suit numbered as O.S. 22/75, on the file of the Civil Judge, Belgaum, against Basappa Balappa Kagganagi for possession of Lorry bearing No. MYW 6008 and also for mesne profits. The above original suit proceedings was contested by Basappa Balappa Kagganagi and the matter was finally decided as between the parties, in R.S.A. 377/79, on the file of this Court (Vide Ex.P.13). It is also seen from the records that Basappa Balappa Kagganagi died during the proceedings and his legal representatives were brought on record in the above Regular Second Appeal proceedings. This Court in the above Regular Second Appeal while dismissing the Appeal has observed, the relevant portion being:-

"That being so as rightly held by the Courts-below, though for different reasons the seizure and detention of the Truck by the defendant is illegal and unauthorised. No title to the truck is ever vested in the defendant this retention of it is unlawful. Hence the Courts below were perfectly justified in passing a decree for possession of the truck in favour of the plaintiff. I have no reasons to interfere".

The above Regular Second Appeal was dismissed on 4.9.1981 and the same has become final as between the parties. From the records of the Regular Second Appeal proceedings, it is to be noted that one Commissioner by name Chamanlal D. Shah, Surveyor and Loss Assessor, Automobile and Marine was appointed by the Court to submit his valuation report of Vehicle No. MVW. 6008 and on 10.7.80 he has filed the report before the Court. Commissioner has observed in his report regarding the condition of the vehicle as follows:

"Visibly it seems vehicle is kept there in open air without any shed during last more than 10 years. Corrosion started most of the prates found fault of muck and mud. Many parts missing". He has also opined that a sum of Rs. 90194/- (Ninety thousand one ninety four) (on as is where is condition) being necessary for making the vehicle Road worthy".

It is not in dispute that the vehicle was taken from the possession of the plaintiff by Basappa Balappa Kagganagi in the year 1971 and in pursuance of the decree passed by this Court in R.S.A. 377/79, the plaintiff has sued out execution proceedings and the execution proceedings being numbered as Ex. 478/78 and it is learnt that the same is pending consideration.

This Appeal arises out of second round litigation as between the parties. In O.S.No. 247/83, the plaintiff has examined two witnesses as P.W.1 and P.W.2 and has got 13 documents marked as Exhibits P-1 to P-13 and the defendants have not adduced any evidence.

The trial Court has framed the following issues:-

"Whether the plaintiff proves that the possession of the truck by the defendants has become unlawful after 4.9.1981?

2) Whether he further proves that he could have earned a minimum of Rs. 8000/- P.M. and as such he is entitled to claim compensation of Rs. 1,90,000/- for the period from 4.9.1981 to 4.9.1983 with interest at Rs.18/- P.A.?

3) Whether defendants prove that the suit is hopelessly barred by time?

4) Whether the suit is hit by the principle of res judicata in view of the decision in O.S. 22/1975 (as modified by I appellate Court and confirmed by H.C.)

5) Whether the defendants prove that the decretal debt was for illegal purposes and the deceased Basappa had no authority to impose the risk and liability on them and that therefore they are not bound by the decree in R.A.No. 9/1978?

6) Whether they further prove that the plaintiff has filed a false and vexatious suit to his own knowledge and as such they are entitled to compensatory costs of Rs.3000/-?

7) To what reliefs are the parties entitled?

8) What decree or order?

9) Whether the present is barred by order II Rule 2 C.P.C. in view of the former suit No. 22/75 of this Court?

The trial Court has recorded findings in the negative on all the issues except issue No.3 and has dismissed the suit. Issue No.3 relates to the question of the suit as being barred by period of limitation. The plaintiff has filed the suit on 20.7.1983 and has sought reliefs in the following. The relevant being:-

a) a decree for compensation of Rs. 1,90,000/-

b) Interest at the rate of 18% from the date of suit till realisation awarded.

c) xxxxx

d) xxxxx."

The defendants have admitted the fact that late Basappa Balappa Kagganagi having taken possession of the Vehicle from the plaintiff on 13.5.1970. In the written statement defendants in Para-1 have stated:-

"It is true as alleged in paragraph-1 of the plaint that the plaintiff has been held to be the owner of the motor truck bearing No. MYW 6008 (hereinafter referred to as Truck) that late Basappa had wrongfully taken possession of the truck from the plaintiff on 13.5.70".

What is to be seen from the evidence on record is that vehicle No. MYW. 6008 is still in possession of the defendants as on this date and decree passed by this Court in R.S.A. 377/79 is still to be satisfied.

The defendants while contesting the suit have raised the following points for consideration:-

1) That the suit claim as being barred by period of limitation in view of the cause of action having arisen on 13.5.70 when the vehicle was wrongfully detained by deceased-Basappa?

2) That the suit being barred by Order 11 Rule 2 of CPC since plaintiff relinquished the suit claim in previous suit No. 22/75 and the cause of action in previous suit No.22/75 and O.S.247/83 as in substance identical?

3) That the plaintiff''s suit as being barred by principles of resjudicata?

4) That the plaintiff is not entitled to judgment since offer of redelivery of the vehicle or sale of the same was not accepted by the plaintiff?

5) That the transaction of deceased Basappa as being Avyawarika the decree in O.S.No. 22/75 as being not binding?

Relevant Assessment of evidence on record for, adjudication of subject matter of the suit is that the plaintiff has deposed that the Truck in question was in good condition and that it was fetching monthly income of Rs. 8,000/- excluding expenses and that his suit claim of Rs. 1,90,000/- as being based on the above said monthly income for the periods commencing from 4.9.1981 to 4.9.1983. Further, in the cross-examination, the defendants have suggested that the plaintiff himself having deposed in O.S. 22/75 regarding the daily income being at Rs. 50 to 70/- during rainy season and Rs. 140/-during summer season from the use of aforesaid truck. The plaintiff also has deposed that he was using the truck for transport business.''

One All Bax who is an Auto Consultant examined as P.W.2 has stated that in general the average monthly income from transport business would come to Rs. 7,000/- to Rs. 8,000/- which it is to be stated is only an estimate based on guess work and the same is not supported by any other data. Further, he has stated that average expenses of truck including the expenses on all heads would be Rs. 4,000/- to Rs. 5,000/- and that every year operator has to deposit a sum of Rs.2,000/- to Rs.3,000/- towards permit fee. P.W.2 has stated that average income from the use of a truck would be Rs. 8,000/-. Further, he has stated that average expenses of a truck including expenses on all heads would come to Rs. 4,000/- to Rs. 5,000/-. P.W.2 has spoken that one has to spend Rs. 2,000/- to Rs.3,000/- per year towards permit and another sum of Rs. 30,000/- towards tyre and tubes for every period of six months.

Even if maximum of Rs. 6,000/- is taken into consideration, the total yearly expenses would work out to Rs. 72,000/-. If admitted income as stated by the plaintiff is taken at Rs. 8,000/- per month the total yearly income would work out to Rs. 96,000/- which is however subject to the deduction of Rs. 72,000/- spent towards expenses on all heads. Total net income would work out to (Rs. 96,000-72,000/-) Rs. 24,000/- per year.

To cross check the above income, one has to look into the other evidence given by the plaintiff in O.S, No.22/75 wherein it is suggested that he has deposed that the daily income from the truck at Rs. 80-100 during rainy season and Rs,140/- during summer season. However, the above figures are approximate and guesswork. For purpose of cross-checking, the evidence of P.W.2, if Rs.70/- is taken as the daily net income from the use of truck the average yearly income would work out to Rs. 25,200A per year, rounded off to Rs.25,000/-.

As such by having in view of the evidentiary value adduced by the plaintiff and in the absence of either any other positive evidence or rebuttal evidence, it is just and proper to assess the loss of income for a period of two years at Rs. 50,000/- by way of damages for the wrongful detention of the vehicle. Having quantified damages at Rs. 50,000/- the only other questions that requires for consideration is whether the suit is barred by period of limitation and the same is barred by virtue of Order 2 Rule 2 and Section 11 of CPC.

It is to be stated that the cause of action as set up by the plaintiff is the date when he was declared as the owner of the truck, that is when this Court in R.S.A. 377/79 on 4.9.81 declared the plaintiff as being the owner of the truck and he being entitled to possession of the same. As such, the plaintiff would be entitled to damages for wrongful detention of the vehicle from that date onwards and the suit is filed on 20.7.83 which is well within the period of limitation. The trial Court did not apply its mind to this aspect of the matter while giving its findings on the issues relating to limitation. What is to be stated is that cause of action is a continuing one and the plaintiff would be entitled to damages as long as the vehicle is in possession of the defendants. Admittedly, defendants have not satisfied the decree passed in R.S.A. 377/79 and as such they are not entitled to invoke any equitable relief at the hands of the Court. The contention advanced by the defendants that they offered either to deliver the vehicle to the plaintiff or sought plaintiff''s consent for sale of the vehicle through the recovery during the pendency of R.A. 9/78, filed by defendants as against the decree passed in O.S. 22/75 cannot be taken as a voluntary offer for redelivery since defendants stipulated conditions regarding redelivery subject to the plaintiff''s furnishing security and this it is to be stated that defendants did not intend to satisfy the decree passed in R.S.A. 377/79 after protracted litigation.

The observation of the trial Court that "even assuming that the suit of the plaintiff is within time, there is no income to the suit truck from 4,9.81 to 4.9.83, the plaintiff is not entitled for compensation as claimed in any circumstances" it is to be stated is without any legal foundation. The trial Judge obviously is oblivious to legal principles relating to damages arising out of detention.

The question is what is the plaintiff''s loss, what damages he has suffered by the wrongful detention. The plaintiff has three options.

a) For value of chattel assessed and damages for its detention.

b) For the return of chattel or for recovery of its value as assessed and damages for its detention.

c) For return of Chattel and damages for its detention.

Proper amount of damages is the amount of pecuniary loss which plaintiff has been put to by the defendant''s conduct. Loss beyond that represented by the market value of the goods may be incurred by the plaintiff through being deprived of use and whether he can recover -such consequential loss turns on the principle of remoteness of damage. Expenditure in hiring a substitute is recoverable less expenses saved in not having to keep maintenance of the vehicle or otherwise plaintiff would be able to recover market rate of hire for the goods between conversion and judgment. Certainly where plaintiff was in the habit of hiring out the vehicle and possibly where he was not, this loss being ascertained on the analogy of recovery of mesne profits in the case of detention of land.

Reasonings arrived by the trial Court in non-suiting the claim of the plaintiff on the ground that there is no income to the suit truck from 4.9.81 to 4.9.83 is fallacious. Defendants who have wrongfully detained cannot avail themselves of hypothesis that plaintiff might not have found hirers and it does not lie in their mouth to suggest that the owner might not have either used the vehicle on account of its condition or not found a hirer. The other vested problem that confronts us is whether plaintiff would be entitled to similar measure of damages if the property had not been profit earning or if the plaintiff had never applied for earning of profit. LORD DENNING in STRAND ELECTRIC AND ENGINEERING CO. LTD. v. BRISFORD ENTERTAINMENTS LTD. (1952) 2 QB 246 has observed:

"It is an action against him because he has had the benefit of goods" As such plaintiff is entitled to damages for the wrongful detention".

The relevant paras in the cited Decision are:-

"If a wrongdoer has made use of goods for his own purposes, then he must pay a reasonable hire for them, even though the owner has in fact suffered no loss. It may be that the owner would not have used the goods himself, or that he had a substitute readily available, which he used without extra cost to himself. Nevertheless the owner is entitled to a reasonable hire. If the wrongdoer had asked the owner for permission to use the goods, the owner would be entitled to ask for a reasonable remuneration as the price of his permission. The wrongdoer cannot be better off because he did not ask permission. He cannot be better of by doing wrong than he would be by doing right. He must therefore pay a reasonable hire. This will cover, of course, the wear and tear which is ordinarily included in a hiring charge; but for any further damage the wrongdoer must pay extra. I do not mean to suggest that an owner who has suffered greater loss will not be able to recover it. Suppose that a man used a car in his business, and owing to its detention he had to hire a substitute at an increased cost, he would clearly be able to recover the cost of the substitute".

Even in cases where defendants offer plaintiff to accept redelivery of goods at any time before action has proceeded to Judgment that does not by itself go to bar action but goes only in reduction or mitigation of damages and thus the plaintiff may proceed for damages resulting from his being out of possession of goods and may succeed in recovery of nominal damages. This being the position, plea put forward by the defendants that they offered redelivery and claim of the plaintiff to be non-suited cannot be accepted that too when it was conditional. In the present case, the defendants have persisted in retaining the goods long after a reasonable time has expired and that too after this Court declared the plaintiff as being the owner and entitled to possession.

We are of the view that damages have to be awarded by way of monetary compensation for loss or losses which plaintiff has actually sustained and measure of damages awarded on this basis may vary according to individual circumstances of any particular case and we hold that it is for the plaintiff to prove what loss if any he has suffered by reason of tort and when as here the effect of tort is potentially interference and that he has suffered quantifiable loss by reason of it- By way of analogy, the Rule that a wrongdoer who keeps the owner out of his land, must pay a fair rental value for it, eventhough the owner would not have been able to use it himself or to let it to anyone else may be made applicable to cases of detention of goods.

Defendants in this case have not chosen to adduce any rebuttal evidence for the reasons best known to them, and as such on the meagre evidence available we have assessed the damages having in view of the evidence on record. We are of the view that sum of Rs. 50,000/- would be adequate monetary compensation for the loss, the plaintiff has sustained for the wrongful detention of his vehicle by defendants. Since we have come to the conclusion that cause of action as being continuing and defendants as being accountable for every day detention which is wrongful per se, the question of principles of res judicata and also applicability of Order 2 Rule 2 of C.P.C., would not arise in the circumstances of the case.

For the above reasons, the findings given by the trial Court on all issues are hereby set aside. It is made clear that the plaintiff succeeds only to a sum of Rs. 50,000/- (Rupees fifty thousand) towards damages. Defendants are directed to pay a sum of Rs. 50,000/- (Rupees fifty thousand) to the plaintiff from out of the estate of deceased Basappa Balappa Kagganagi together with interest at six per cent per annum from the date of suit till the date of realisation.

Due to the protracted litigation, defendants are further directed to pay costs of this Appeal, and this Regular First Appeal is allowed accordingly to the extent mentioned above and cross-objection is accordingly dismissed.