Delhi High Court
Sushil Kumar Jain vs Ganender Chopra on 3 December, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:07.12.2020
20:04:17
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 3rd December, 2020
+ RSA 75/2019 & CM APPL. 17261/2019
SUSHIL KUMAR JAIN ..... Appellant
Through: Mr. N.S. Dalal, Advocate. (M:
9999814755)
versus
GAJENDER CHOPRA ..... Respondent
Through: Ms. Ashu Arora, Advocate.
(M:9910800124)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done by video conferencing.
2. The present second appeal has been filed challenging the order dated
5th February, 2019 upholding the original judgment and decree dated 28th
February, 2017 with some modifications. The original suit was filed by Shri
Gajender Chopra i.e., the Plaintiff/Respondent (hereinafter, "Plaintiff")
against Shri Sushil Kumar Jain i.e., the Defendant/Appellant (hereinafter,
"Defendant") for permanent and mandatory injunction along with damages.
3. The Plaintiff is resident of SFS Flat No.59, Second floor, Pocket-D,
Mayur Vihar Phase-II, New Delhi-110091. The Defendant is resident of SFS
Flat No.60, which is located on the third floor of the same building. The
problem of seepage arose in the Plaintiff's flat, leading to the filing of the
present suit.
4. Written statement was filed by the Defendant and evidence was led.
Both parties also filed their respective technical reports of civil engineers,
along with their estimates. Cross examination was conducted. Vide the trial
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Signing Date:07.12.2020 15:15
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SINGH NAYAL
Signing Date:07.12.2020
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court judgment dated 28th February, 2017, the relief of permanent injunction
was granted in favour of the Plaintiff and a total sum of Rs.70,000/- was
directed to be paid to the Plaintiff towards damages and an additional
Rs.50,000/- was awarded on account of mental harassment and agony. The
operative portion of the trial court judgment reads as under:
"Relief
44. In view of the above discussion, suit of the
plaintiff stands decreed in the following terms-
1. Plaintiff is held entitled to the relief of
permanent injunction, whereby the defendant is
restrained from damaging the property of the
plaintiff.
2. In respect of the relief of mandatory
injunction, defendant is to pay a sum of
Rs.70,000/- to the plaintiff towards the estimated
cost of correcting/repairing the problem of
seepage. This amount is to paid within one month
of this order. Upon payment, the plaintiff would
have two months to undertake all necessary
repairs to fix the problem of seepage, as required.
During these two months, the defendant is directed
to give access to the plaintiff to the affected
portions of his flat at all reasonable times of the
day (Flat no.60, Pocket D, Mayur Vihar Phase II,
New Delhi-110091) The defendant should
facilitate the plaintiff to inspect and conduct
repairs in the flat of the defendant, if required and
suggested by the plumber/contractor, for fixing the
problem of seepage, so that the necessary repairs
can be completed in the minimum time possible.
The plaintiff however will mandatorily give a prior
notice in writing to the defendant before any
inspection is to be done in the flat of the defendant.
The plaintiff is also directed to take in writing from
the contractor/plumber all work suggested and
undertaken towards correcting the seepage. Any
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Signing Date:07.12.2020 15:15
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SINGH NAYAL
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cost incurred towards repair above Rs.70,000/-
shall be borne by the plaintiff himself.
3. The defendant is to also pay damages to the
tune of Rs.50,000/- to the plaintiff towards the
mental harassment, agony and loss suffered by
him."
5. The Defendant appealed against the said judgment, which was upheld
vide the judgment dated 5th February, 2019, with slight modification of the
mandatory injunction, in the following terms:
"17.Conclusion
In view of findings of this court on the aforesaid
points of determination, the judgment and
decree of Ld. Trial Court dated 28.02.2017 is
upheld, with slight modification that instead of
plaintiff carrying out repairs in the flat of
defendant which may result in future litigation
between the parties, a decree of mandatory
injunction is passed in favour of the plaintiff
against the defendant thereby directing the
defendant to carry out the necessary repair
works and waterproofing in his property so that
seepage may be avoided in the premises of the
plaintiff. The appeal is decided accordingly
and suit of plaintiff/respondent is decreed in his
favour. Cost is also awarded in favour of the
plaintiff/respondent. Decree sheet be prepared
accordingly."
6. The present second appeal was thereafter preferred by the Defendant.
In the present appeal, the trial court record was called on the first date. Vide
order dated 20th May, 2019, the impugned order was stayed and no
substantial question of law was framed. On 12th September, 2019 the ld.
Single Judge directed release of the sum of Rs.65,000/- out of the amount
deposited by the Defendant before the Appellate Court in order to enable the
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Signing Date:07.12.2020 15:15
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Digitally Signed By:DINESH
SINGH NAYAL
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Plaintiff to carry out the repairs. Further, directions were issued on 20th
October, 2020 in order to enable the Plaintiff to carry out the repairs. Today,
the matter is listed for examining if there are any questions of law in the
matter.
7. Mr. N.S. Dalal, ld. Counsel for the Defendant has vehemently
submitted that awarding damages in this matter is completely baseless as
there is no proof of actual damage. He relies upon the judgment of the
Supreme Court in Fateh Chand v. Balkishan Dass, AIR 1963 SC 1405. He
submits that both the Trial Court and the Appellate Court have failed to
appreciate the fact that the amounts, which have been awarded are mere
estimates and there was no proof or evidence which was filed on record to
prove that there was any damage caused due to seepage. It is further
submitted that there was also illegal construction, which could have been the
cause for the seepage. According to him, the effect of illegal construction is
the question of law which arises, therefore, the present second appeal
deserves to be admitted.
8. This Court has examined the judgment of the Trial Court and the
Appellate Court. The Trial Court clearly arrived at the finding that both the
parties are neighbours and there was enormous seepage in the Plaintiff's flat.
Insofar as the cause for seepage is concerned, the Trial Court observed that
the Plaintiff had served a legal notice subsequent to which the Defendant, in
fact, stated that he had carried out repairs in his bathroom. This itself
showed the Trial Court that the Defendant admitted that there was some sort
of seepage in the Plaintiff's flat caused due to the condition in the
Defendant's bathroom. Thereafter, the Trial Court relies upon the reports of
the civil engineers to support awarding the cost for repairs. Paragraphs 33
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Signing Date:07.12.2020 15:15
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Digitally Signed By:DINESH
SINGH NAYAL
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and 34 of the Trial Court judgment read as under:
"33. As to the extent of damages, there are two
different reports, which have been produced before
the Court. The plaintiff has produced a report of
the architect Ex.PW1/5 who has estimated that the
repairing the damage done due to seepage in flat
no.59 would atleast cost of Rs.69,069/-. Whereas,
the civil engineer DW-2, had suggested
Rs.10,000/-. However as discussed in issue no.1,
the report of DW-2 is fraught with weaknesses and
strong reliance cannot be placed on it.
34. Furthermore, the defendant himself during
his cross examination states that he has spent
around Rs.1,00,000/- in repairing his bathroom
after the legal notice was sent. The estimate of
DW-2 appears to be significantly undervalued.
Furthermore nothing in the cross examination of
the architect Sh. Gyanender Singh Bamore calls
into question the estimation so reached."
9. After recording the engineers' estimate, the Trial Court observed in
paragraph 36 that the sum of Rs.70,000/- would be a reasonable estimate for
correcting the problem of seepage. Insofar as damages for mental
harassment and agony is concerned, as against the amount of Rs.2,50,000/-
claimed, Rs.50,000/- has been awarded by the Trial Court.
10. The law on award of damages is well settled. The same has to be real
and proximate and not remote. Compensation in the case of a tortious claim
can be granted if `causation' is established. Even negligence by a party
could result in grant of compensation/damages for loss suffered. In cases
like the present one, where some damage has been caused to the Plaintiff's
property, and when from the facts, it can be easily gleaned that the seepage
was caused due to the Defendant's negligence or callousness, a reasonable
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Signing Date:07.12.2020 15:15
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Digitally Signed By:DINESH
SINGH NAYAL
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measure would be to determine the cost of repair for the damage that has
been caused. Of course, if the Defendant's acts were deliberate or motivated,
even punitive damages can also be awarded. However, that is not the case
here. The principles laid down in Fatehchand (supra) which dealt with
damages due to breach of contract are on similar lines i.e., that the court has
to adjudge the reasonable compensation payable to the Plaintiff on the facts
of each case.
11. Insofar as the damages granted for mental agony is concerned, almost
a century ago in The Mediana (1900) A.C.113, Lord Halsbury L.C.
observed as under:
"How is anybody to measure pain and suffering in
moneys counted? Nobody can suggest that you can
by arithmetical calculation establish what is the
exact sum of money which would represent such a
thing as the pain and suffering which a person has
undergone by reason of an accident. But
nevertheless, the law recognises that as a topic
upon which damages may be given."
12. The above judgement of the House of Lords was cited with approval
by the Supreme Court in Rekha Jain v. National Insurance Co. Ltd. (Civil
Appeal Nos. 5370-5372/2013), where the Supreme Court observed:
"24. In re the Mediana, the plaintiffs were
deprived of the use of their own lightship, but
sustained no pecuniary loss as another lightship
was kept in reserve. Yet, it was held that the
plaintiffs were entitled to substantial damages for
the loss of the use of their ship for a period, and
Lord Halsbury L.C. answered the objection that
assessment was too uncertain by observing
that:
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Digitally Signed
By:PRATHIBA M SINGH
Signing Date:07.12.2020 15:15
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SINGH NAYAL
Signing Date:07.12.2020
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"Of course, the whole region of inquiry
into damages is one of extreme
difficulty. You very often cannot even lay
down any principle upon which you can
give damages; nevertheless, it is
remitted to the jury, or those who stand
in place of the jury, to consider what
compensation in money shall be given
for what is a wrongful act. Take the
most familiar and ordinary case: how is
anybody to measure pain and suffering
in moneys counted? Nobody can suggest
that you can by any arithmetical
calculation establish what is the exact
amount of money which would represent
such a thing as the pain and suffering
which a person has undergone by
reason of an accident ... But,
nevertheless, the law recognises that as
a topic upon which damages may be
given. In personal injury cases, the
Court is constantly required to form an
estimate of chances and risks which
cannot be determined with precision. It
is because, the law will disregard
possibilities which are slight or chances
which are nebulous; otherwise, all the
circumstances of the situation must be
taken into account, whether they relate
to the future which the plaintiff would
have enjoyed if the accident had not
happened, or to the future of his injuries
and his earning power after the
accident. Damages are compensation
for an injury or loss, that is to say, the
full equivalent of money so far as the
nature of money admits; and difficulty
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By:PRATHIBA M SINGH
Signing Date:07.12.2020 15:15
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:07.12.2020
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or uncertainty does not prevent an
assessment." (emphasis laid by the
Court)"
Thus, the full equivalent of money can be granted as compensation or
damages in such cases.
13. It ought to be borne in mind that the suit was originally filed in 2015
and even as of 2020 there was difficulty which the Plaintiff had faced for
carrying out the repairs. This led to the passing of order dated 20th October,
2020. Thus, the Plaintiff has suffered for almost 5 years due to seepage. The
assessment of damages has been made on the basis of the reports filed by the
engineers/architects' evidence. The seepage caused in the Plaintiff's flat is
admitted. The amount of damages to be awarded depends on the amount that
may be required for repairing the said seepage. The Defendant himself
claimed that he spent Rs.1 lakh for repairing his own bathroom. The reports
of the Engineers were at variance. The Plaintiff's expert estimated the
amount at Rs.69,069/- and the Defendant's report estimated the amount at
Rs. 10,000/-. By applying the principle of compensatory damages, the trial
court has awarded the sum of Rs. 70,000/- was a reasonable estimate for the
repair of the seepage as per the engineer's report. This assessment is a
factual one.
14. The fact that the Plaintiff had to litigate such a small matter for five
long years itself is proof of the pain and suffering he must have undergone.
Merely because such pain and suffering cannot be measured in terms of
money does not mean that no amount is to be awarded on this count. The
award of Rs. 50,000/- on this count is reasonable and on sound footing. The
approach of the trial court cannot be faulted. Thus, the findings arrived at by
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Signing Date:07.12.2020 15:15
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SINGH NAYAL
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the Trial Court and the Appellate Court's observations do not deserve to be
interfered with.
15. This Court is of the opinion that no substantial question of law arises
in this appeal. The present appeal is, accordingly, dismissed. All pending
applications are also disposed of. Remaining amount deposited with the
Appellate Court be released to the Plaintiff within four weeks. No orders as
to costs in the present appeal.
PRATHIBA M. SINGH
JUDGE
DECEMBER 3, 2020
dk/T
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Digitally Signed
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Signing Date:07.12.2020 15:15
