The Managing Director Vs Sri Babu S/O Mudakappa Mugabasav

THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 01.04.2023 PASSED BY THE COURT OF THE

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SENIOR CIVIL JUDGE, BAILHONGAL IN O.S.NO.176/2021 AND CONSEQUENTLY BE PLEASE TO DISMISS THE SUIT FILED BY THE PLAINTIFF, IN THE INTEREST OF JUSTICE.

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THIS APPEAL IS COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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This appeal is by the defendants-HESCOM in OS No.176/2021 is directed against the impugned judgment and decree dated 01.04.2023 passed by the Senior Civil Judge, Bailhongal in OS No.176/2021, whereby the said suit filed by the respondent-plaintiff against the appellantsdefendants seeking compensation together with interest was decreed in favour of the respondent against appellants.

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Briefly stated, the facts giving rise to present appeal are that the respondent-plaintiff claiming to be the owner of the agricultural land bearing survey No.23/1 measuring 2 acres and 13 guntas, Sy.No.23/2 measuring 2

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acres 14 guntas in which he is said to have cultivated sugarcane crop instituted a suit, seeking damages on the ground that on 13.01.2021 at about 03.00 p.m., the live wires of the appellants-HESCOM got connected to each other resulting in spark/sparking and a fire in the land of Sy.No.154/2, which spread to the neighbouring lands, on account of which the entire sugarcane crop and coconut trees were burned, causing damage and loss to the respondent-plaintiff, who is the adjacent land owner, who instituted the aforesaid suit seeking compensation together with interest and other reliefs.

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It was contended that the respondent gave a police complaint, which was registered as AF No.2/2021 on 14.01.2021 and spot panchanama was conducted on 14.01.2021, which confirmed that the fire that occurred on the land of the plaintiff was on account of the negligence on the part of the appellants/defendants and the loss suffered by the respondent was quantified in the said mahazar. It was therefore contended that the appellants/defendants are

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liable to pay compensation together with interest to the respondent-plaintiff who instituted the aforesaid suit

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seeking the aforesaid reliefs.

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The appellants-defendants/HESCOM and its

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officials filed the written statement disputing and denying the various allegations and claims made by the plaintiff and sought for dismissal of the suit.

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Based on the aforesaid pleadings, the trial

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framed the following issues:

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“1) Whether the plaintiff proves that on 13-01-2021 at about 03-00 pm due to spark in the live wires passing through the land in Sy No. 154/2 it spread to adjoining lands Sy No. 23/1, Sy No. 23/2, Sy No.153 and Sy No.241/37 ?

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2) Whether the plaintiff proves that, the fire incident took place on account of the negligence of the defendant No.1 to 3 and its employees ?

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3) Whether the plaintiff further proves that, due to the fire incident approximately sugar cane crop grown in the land of plaintiff in the 11 acres 38 guntas of land was burnt due to which the plaintiff sustained loss to the extent of Rs.23,35,000/- ?

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4) Whether the plaintiff proves that, the defendants are jointly and severally liable to pay compensation to plaintiff for Rs.23,35,000/- ?

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5) Whether the plaintiff further proves that, he is entitled for interest at the rate of 18% PA by way of damages on the decreetal amount from the date of occurrence of fire incident till complete realization of the amount ?

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6) Whether the plaintiff is entitled for the reliefs sought for in the suit ?

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7) What order or decree ?”

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The plaintiff examined himself as PW1 and

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documentary evidence at exhibits P1 to P19. That appellants-defendants examined one of its officials as DW1 and after hearing the parties, the trial Court proceeded to pass the impugned judgment and decree decreeing the suit of the plaintiff against the defendants, directing them to pay a total compensation in a sum of ₹22,22,500/- together with interest at 6 % per annum from the date of the suit till realisation. Aggrieved by the impugned judgment and decree passed by the trial Court, the appellants/defendants/HESCOM is before this Court by way of the present appeal.

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Heard learned counsel for the appellants-

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HESCOM and learned counsel for the respondent-plaintiff and perused the material on the record.

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The learned counsel for the appellants would reiterate the various contentions urged in the memorandum of appeal and invited our attention to the impugned judgment and decree, in order to point that apart from various other errors committed by the trial Court, the trial Court has drawn adverse inference against the appellants for not producing the various documents which have not been produced and admitted so by its witness DW1 in his cross examination. It is submitted that the said documents were misplaced and not in the custody or possession of the appellants-HESCOM during the course of trial and the same have now been discovered by the appellants. It is submitted that if one more opportunity is provided, the appellants would produce additional documents to substantiate its defence and if the impugned judgment and decree passed by the trial Court is set aside and the matter is remitted

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back to trial Court for reconsideration afresh in accordance with law, the appellants shall produce the said documents and co-operate with the trial Court for expeditious disposal of the suit without seeking unnecessary adjournments. It is also submitted that the appellants had deposited a sum of ₹ 12,74,172/- before this Court pursuant to the order passed by this Court and the appellants do not have any objections for the respondent to withdraw the said amount in deposit together with accrued interest by making it subject to the result of the suit, after remand, and without prejudice to the rights and contentions of the parties.

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Per contra, the counsel for the respondent-, plaintiff would support the impugned judgment and decree, and submit that there is no merit in the appeal and the same is liable to be dismissed.

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We have given our careful consideration to the rival submissions and perused the material on record.

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11. The following points arise for consideration in the present appeal:

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i) Whether the trial Court has justified in passing the decree directing the appellants to pay compensation in the sum of ₹22,22,500/together with interest at 6% per annum by the appellants in favour of the respondent? ii) Whether the impugned judgment and decree passed by the trial Court warrants interference by this Court in the present appeal?

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Regarding point Nos.(i) and (ii)

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Since both these points are interlinked, they are

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taken up together for consideration.

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A perusal of the material on record including the impugned judgment and decree will indicate that the trial Court has proceeded on the basis that respondent-plaintiff had established the claim put forth by him and in addition to the fact that the appellants and its witness had not

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produced the document referred in the evidence of DW.1 and has drawn adverse inference in this regard. The said findings has been recorded by the trial Court as hereunder:

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“ 32. Per contra defendants have examined Mr Mahantesh Rudrappa Bannur Section officer of HESCOM as DW 1 and he deposed that there was no loss as claimed by the plaintiff. Had the plaintiff maintained the boundaries clean there would have been no spread of fire. There was no spark as they had properly maintained the TC and there was no negligence on their part. No documents are marked by the defendants.

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33. In the cross examination DW. 1 denied that he has not produced document to show that there was 16 O.S.177-2021 no negligence on their part. He admitted that there were electric lines in RS no 154/2. He stated that they learnt about the incident in the afternoon over telephone and went to the spot at 4-30- to 5-00 pm. He admitted that they received notice. It is admitted that they have not challenged the police documents.

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34. DW.1 admitted that they had sought for details of the incident from the plaintiff. He admitted that they have not produced documents to show that they had inserted stringing. He denied that there was crop of 70-75 tons of sugarcane and stated that it may be 40-45 tons

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40. As per police papers also there was loss of crops due to due to electrocution. The police papers not challenged. The defendants in support of their contentions have lead oral evidence of DW.1 but not produced any documents to show that there was proper maintenance of TC and live wires on that date.

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(emphasis supplied)

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41. Though the defendants have formally denied the incident and losses sustained by the plaintiff, the evidence on record clearly shows that the defendants have in fact admitted the incident. Thus the plaintiff has successfully proved the loss sustained by him due to electrocution which resulted in burning of his crops. Therefore it can be safely concluded that the plaintiff sustained loss of crop due to electrocution.”

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As could be seen from the aforesaid findings

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recorded by the trial Court, apart from placing reliance upon the oral and documentary evidence of the plaintiff, the trial Court has also taken note of the fact that appellantsdefendants, in particular DW1 has not produced documents in support of its defence. In this context, it is relevant to state that the learned counsel for the appellants on instructions has specifically submitted that the various documents in support of their defence had not been

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produced by the appellants before the trial Court since the same was not available and the MUSS document which indicates that there was no complaint and no entry of the short circuit will be produced, if one more opportunity is provided to the appellants. It is therefore clear that the inability and omission on the part of the appellants to produce documents before the trial Court, as admitted by DW1 in this cross examination, was due to bonafide reasons, unavoidable circumstances and sufficient cause.

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Under these circumstances, having regard to the specific submission made on behalf of the appellants that if one more opportunity is provided, the appellant would produce additional documents in support of its defence, without expressing any opinion on the merits/demerits of the rival contentions and by adopting a justice-oriented approach and in order to provide one more opportunity to the appellants to substantiate its defence, we deem it appropriate to set aside the impugned judgment and decree and remit the matter back to the trial Court for

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reconsideration afresh in accordance with law by issuing certain directions. Point Nos.(i) and (ii) are accordingly answered.

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In the result, the following:

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ORDER

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i) Appeal is hereby allowed;

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ii) Impugned judgment and decree dated 01.04.2023 passed in OS No.176/2021 by the Senior Civil Judge, Bailhongal is hereby set aside;

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iii) The matter is remitted back to the trial Court for reconsideration afresh in accordance with law;

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iv) Parties are directed to appear before the trial Court on 27.10.2025, without awaiting further notice from

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the trial Court;

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v) Liberty is reserved in favour of both parties to adduce evidence/additional oral and documentary evidence in support of their respective claims;

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vi) The trial Court shall dispose of the matter as expeditiously as possible and at any rate within a period of 3 months from 27.10.2025;

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vii) The Registry of this Court is directed to disburse the entire amount deposited by the appellants together with accrued interest in favour of the respondent immediately, without any delay;

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viii) It is made clear that such disbursement/ withdrawal of the amount deposited by the appellants would be subject to the final outcome of the suit after remand and the same would be without prejudice to the rights and contentions of the parties and the respondent shall not claim any equities in this regard;

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