Judgment:
S.M. Daud, J.
1. This appeal takes exception to the dismissal of a suit for damages allegedly sustained by the plaintiff in the fire which broke out on 6th March, 1977 at his hotel run under the name of 'Guruprasad' on the Kalyan Road in Bhiwandi, District Thane.
2. Defendant No. 1 hereinafter referred to as the 'Company' - was a licensee supplying electricity to consumers in Bhiwandi till 30th September, 1978. The business of supplying electricity to the Bhiwandi area was taken over by the second defendant - hereinafter referred to as the 'Board' - as from 1-10-1978. The take-over or defendant No. 1's business by defendant No. 2 was challenged by the first defendant by means of a writ petition which was numbered as Misc. Petition No. 1193 of 1976. A compromise took place in the said proceeding and certain terms therein freed the Board from liabilities incurred by the Company which liabilities were in respect of non-performance or non-observance of the company's covenants and conditions. The appellant-plaintiff was running a hotel at the afore-mentioned address and was a consumer of electricity vis-a-vis his hotel. The hotel was divided into three parts - the first being used for serving customers, the second for preparation of tea and other beverages and the third for preparation of food. These parts shall hereinafter be referred to as the 'catering room', 'tea room' and the 'kitchen room'. The catering room had four ceiling fans and three tube-lights. At the tea counter was a tube light and a block having controlling switches. The kitchen room was having only one tube light controlled from the catering room. Supply of electricity to the hotel was from a contraption fitted to a pole adjacent to the kitchen room. The pole had ten conductors of which the bottom two were insulated. Supply to the pole was from a composite structure having 22 K.Vs. and 440 Volts situated on the road side. Seven service lines were provided from the pole afore-mentioned. On 6.3.1977 plaintiff was at Thane and the hotel was left in charge of his son P.W. 2 Chandrahas. The day was being celebrated as Rangpanchami and therefore there was a public holiday. Chandrahas was at the counter of the hotel attending to receipt of cash from customers served. The waiting customers were being attended to by servants Sitaram, Rohidas and Pandurang. One person, Shankar Shinde was also present. At about 1.30 p.m. Chandrahas heard a noise from over the roof and his servants gave him to understand that smoke was emanating from the upper side of the roof. Very soon flames were noticed enveloping the roof. Customers and servants also Chandrahas ran out of the hotel. A telephonic message was given to the fire-brigade which came within ten minutes. The electric supply was disconnected and the fire-brigade took about an hour to extinguish the fire. After the fire had been extinguished a phone call was put into the plaintiff by his son Chandrahas. Plaintiff rushed to Bhiwandi and after a visit to the hotel went to the police station where he lodged a report which is at Ex. 66. The police drew up a panchanama which is at Ex. 67. At the request of the police the Assistant Electrical Inspector attached to the Industries, Energy and Labour Department (IELD) of the Government of Maharashtra visited the spot and carried out an investigation. This was on 7-3-1977 and 8-3-1977. The said Assistant Electrical Inspector drew up a report which is at Ex. 84. Plaintiff also engaged P.W. 6 Varghese who works as an Electrical Contractor-cum-Supervisor to carry out an investigation. Vargese did the needful and his report is at Ex. 94. On 26-11-1977 notice was addressed to the Company to compensate the plaintiff for the damage caused to him as a result of the fire, which fire according to the notice was caused by the negligence of the Company - the compensation being placed at Rs. 1,25,000. The notice at Ex. 63 was replied under Ex. 62 by the Company. According to this reply the fire was not attributable to any negligence or misconduct on the part of the Company or its employees. Plaintiff rejoined repeating his assertions vide Ex. 64 on 3rd January, 1978. The claim for compensation not having been met, plaintiff instituted the suit claiming Rs. 1,00,000/- as damages against defendant No. 1. The Board was joined on the simple averment of defendant No. 1 having been taken over by defendant No. 2 and its joinder being necessary for 'the final settlement of the subject-matter of the suit.'
3. Defendants in their separate written statements which are at Exs. 14 and 27 respectively denied the charge of negligence on the part of defendant No. 1 being responsible for the fire and the resultant damage to the plaintiff's hotel. The quantum of the damage suffered was disputed. It was contended that the fire was the result of an internal wiring defect for which defect the licensee was not in any way responsible. In so far as defendant No. 2 was concerned, it was nowhere in the picture when the mishap occurred and consequently could not be held liable to compensate the plaintiff.
4. Pleadings summarised above gave rise to the requisite issues. Plaintiff examined himself and near about nine witnesses. Defendants examined two witnesses. Apart from the depositions of these witnesses a large number of documents had come on record. Taking into consideration the entire evidence, the learned Civil Judge found against plaintiff on major count and this led to the dismissal of the suit with costs. The said dismissal is assailed in appeal.
5. The first question to which we address ourselves is the alleged responsibility of the Board for the compensation claimed in the suit by the plaintiff. We have referred to the reasons given by the plaintiff for the joinder of the Board as a party to the suit. The joinder was said to be occasioned because of defendant No. 1 having been taken over by defendant No. 2 and to give a final settlement to the subject-matter of the suit. There is no pleading that the take over had rendered the Board contractually or statutorily liable for the mishap attributable to the acts and omissions of the Company and at a time when the Board was not in the picture. The matter does not rest there. Plaintiff led no evidence to explain how the Board could be liable for the torts of omission or commission attributable to the company. Defendants examined D.W. 2 Konjari who testified to the compromise reached between the defendants which compromise exonerated defendant No. 2 from any liability incurred by defendant No. 1 prior to 1-10-1978. The matter does not rest upon the mere say-so of Konjari. He referred to the certified copy of the consent terms reached between the parties which certified copy was at Ex. 127. Witness in his deposition said that certain terms clearly absolved the Board of Liabilities incurred prior to 1-10-1978. Advocates representing the Company and the plaintiff did not cross-examine Konjari. Mr. Shetty representing the plaintiff in this Court tries to get over the difficulty by relying upon State of Madras v. Madras Electric Tramways, reported in : AIR1957Mad169 . We fail to see what bearing the decision has upon the point at issue before us. The question can be better approached by a reference to so much of section 7 of The Indian Electricity Act, 1910 as is relevant for a decision on the point. This section says :
'Where an undertaking is sold under section 5 or section 6, then upon the completion of the sale or on the date on which the undertaking is delivered to the intending purchaser under sub-section (3) of section 5 or under sub-section (6) of section 6, as the case may be, whichever is earlier.
(i) the undertaking shall vest in the purchaser or the intending purchaser, as the case may be free from any debt, mortgage or similar obligation of the licensee or attaching to the undertaking;
Provided that any such debt, mortgage or similar obligation shall attach to the purchase money in substitution for the undertaking.'
Now, we do not know whether the Board has stepped into the shoes of the Company under a purchase or by virtue of a statutory take-over. If the Board has been impleaded by the plaintiff as a party to the suit, there ought to have been a pleading as to why this joinder was rendered necessary and what relief was being sought against the Board. No such particulars are forthcoming either in the plaint or the evidence adduced by the plaintiff. So far as section 7(i) reproduced above is concerned, it speaks of the 'purchaser' or the 'intending purchaser', as the case may be, not being saddled with any debt, mortgage or similar obligation of the licensee or attaching to the undertaking. That however does not govern the present case where the factual date is totally missing. Mr. Shetty wants a decree which can be executed and not remain a mere paper decree. His fear is that the Company is perhaps not solvent and in all probability has disappeared or is overloaded with pre-existing debts and liabilities. Mr. Shetty tries to get over the difficulty by relying upon sub-section (ii) of section 7 which reads as follows :
'the rights, powers, authorities, duties and obligations of the licensee under his licence shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee.'
For attracting this sub-section two things are necessary, the first, being that the successor is a 'purchaser' and the second that he has taken over the obligations covering all the lapses which have rendered the previous licensee liable under all manner of laws, not excluding that governing tortious liability. Now, so far as the present case is concerned, we do not know whether the Board has come in by way of a purchase or otherwise. Next, the plaintiff has not established what manner of obligations have been passed on to the Board by the Company. So far as the consent terms are concerned, Clause 6 in clear terms exonerates the Board of pre-existing liabilities when it says. (see Ex.127) -
'All debts, obligations and other liabilities of any character whatsoever including Municipal taxes, sales tax if any, until the Take Over Date shall be paid by the petitioners (that position being occupied by the Company before the Court).'
The 'take-over date' has been defined as the midnight between 30th September, 1978 and 1st October, 1978. Here, the tortious act was committed on or before 6-3-1977 and the liability to compensate the plaintiff arose on the said day. The liability was thus prior to the take-over date and that clearly exonerates the Board. This finding of the trial Court affirmed, we pass on to the crucial issue as to what occasioned the fire on 6-3-1977.
6. Plaintiff's report given at the police station is not exactly supportive of the stand taken by him in the suit. In Ex. 66 the assertion is that plaintiff learnt of the fire having begun from the top of the ceiling or from the ceiling and that it was due to a short-circuit. This recital in Ex. 66 is indecipherable though Mr. Shetty has tried to explain it away as an assertion of the fire commencing from the roof of the hotel. Chandrahas is equally unclear about what caused the fire. He is supposed to have climbed over the roof after the fire had been extinguished and then discovering a broken overhead wire. This does not establish anything. Varghese speaks of the closeness of the pole from which the supply was given to the hotel as being the reason for the fire. The credentials of Varghese are not very impressive. He held a diploma in Electrical Engineering and Ex. 94 was the first report by him vis-a-vis a mishap by fire. The date on which the report is based seems to rest entirely upon the details passed on to him by the plaintiff. The only credible evidence available is that coming from P.W. 3 Krishnamurthi. Krishnamurthi's deposition is fairly detailed and the report given by him at Ex. 84 gives a fair idea of what could have led to the fire. The first important fact appearing in his report is that out of the seven service lines given from the common pole, two such lines were actually touching the roof of Guruprasad Hotel. The next feature of importance mentioned by Krishnamurthi in his report is that the fuse of Guruprasad Hotel was intact. Having taken into consideration the many circumstances Krishnamurthi deduced two possibilities as explaining the fire. The first was the possibility of chock of the tube light of the catering counter getting short-circuited and the leads of the same becoming naked. These leads touched the hard board false ceiling and the 'J' hook which may have led to the fire in the hotel, and this, because the fuse rating was high enough to blow off the consumers fuse. But the consumer fuse was found to be intact by Krishnamurthi which fact has been mentioned in the data portion of the report. The other possibility was of the service line wire touching the roof resulting in a rupture with the 'J' hook holding the roof. This led to a short-circuit rendering the service wire naked and burning the insulation. The burns may have spread to the false ceiling which was of hard board and therefore inflammable. The pole fuse had not been provided and in the concluding portion of his report Krishnamurthi sought a specific order to the Company for providing of pole fuses as required under Rule 31 (2) of the Indian Electricity Rules, 1956. Rule 31 needs to be set out in its entirety to emphasis the importance thereof. It is titled as 'cut-out on consumer's premises' and is in three parts reading thus :
'(1) The supplier shall provide a suitable cut-out in each conductor of every service-line other than an earthed or earthed neutral conductor or the earthed external conductor of a concentric cable within a consumer's premises, in an accessible position. Such cut-out shall be contained within an adequately enclosed fire-proof receptacle.
(2) Where more than one consumer is supplied through a common service-line, each such consumer shall be provided with an independent cut-out at the point of junction to the common service.
(3) The owner of every electric supply line, other than the earthed or earthed neutral conductor of any system or the earthed external conductor of a concentric cable, shall protect it by a suitable cut-out.'
Krishnamurthi's report establishes that there were no pole fuses. This is sought to be explained away by D.W. 1 Joshi. He learnt of the fire through the Switch-board operator at about 2.00 p.m. and to safeguard the line gave instructions for an immediate switch off of the oil circuit breaker so as to terminate the supply of electricity to the entire locality. But Joshi did not make a site inspection and did not keep a note of the instructions given by him to the Switch-board Operator. The letter at Ex. 61 addressed by the Plaintiff to the Company, on 14-3-1977 was brought to his notice. Ex. 61 specifically made a reference to the breaking of the overhead wires resulting in sparking and this sparking causing the fire. No reply was given to Ex. 61. According to him this was because it was not necessary to remove the overhead wires. But at least a visit to the site should have been made to assess the merits of the complaint made by the plaintiff. The Company did give a fairly detailed reply on 8-12-1977 which reply is at Ex. 62. But by that time the Company knew that a suit was in the offing. What was mentioned in Ex. 62, with this knowledge cannot be taken as representative of the probable truth. The omission to reply to Ex. 61 coupled with the testimony of an independent person like Krishnamurthi establishes the plaintiff's allegation about the licensee being remiss and this leading to the fire which consumed a fairly sizable portion of Guruprasad Hotel and the articles kept therein. The liability to compensate plaintiff thus rests upon the defendant No. 1.
7. As to the quantum, we must say that the evidence is far from satisfactory. The plaint is so worded as to give the impression of plaintiff having suffered much more than the extent to which he has claimed reimbursement. His forbearance is attributed to a desire to persuade the defendants to enter into a compromise. This posture of reasonableness carries no conviction when one reads the deposition of the plaintiff. Here in his examination-in-chief he has claimed Rs. 3,000/- as the loss occasioned to the grinding machine. In cross-examination, plaintiff had admitted that this very grinding machine was purchased by him for Rs. 2,500/-. If plaintiff could tell lies on so obvious a matter, it is no wonder that his deposition inspires a little credence. P.W. 7 Kapadia carried out a survey. His report is at Ex. 102. Item 1 to 20 given therein are the result of an estimate made by the witness himself. Nothing has been brought out in the cross-examination of Kapadia to disprove his integrity or credentials for making a survey. He frankly admits that the price in regard to Items 21 to 33 rests upon an estimate given to him by the plaintiff. But the damaged articles were shown by the plaintiff to Kapadia, as a trained person disowns the responsibility for the value of the items as claimed by the plaintiff. Be that as it may, except for an exaggeration to the extent of Rs. 1100/- vis-a-vis a grinding machine the estimate of damage in relation to the remaining items does not appear to be unreasonable. The value of a kerosene stove pressure type was placed at Rs. 1,200/-. Damage to cup-saucers and show-case was estimated at Rs. 1,600. The edibles lost as a result of the fire were valued at Rs. 800/-. The glasses damaged were valued at Rs. 300/-, steel dishes at Rs. 2,000/-, other utensils at Rs. 7,000/-, aerated drinks with bottles at Rs. 700/-, outside show-case glass jars at Rs. 3,500, clock with a sunmica box at Rs. 350/- un-utilised raw materials for preparation of edibles at Rs. 3,500/-, a framed photograph of a divine at Rs. 450/- and belongings of servants at Rs. 500/-. These figures cannot be said to be excessive. Accepting Ex. 102, barring an exaggeration of Rs. 1,100/-, we allow compensation at Rs. 56,900/-. Plaintiff has claimed Rs. 70,000/- said to represent loss of profits calculated at rate Rs. 2,000/- per month for a period of about 30 to 35 months. Neither plaintiff nor any witness examined by him testifies to the hotel being kept closed for 30 to 35 months and its yielding a profit of Rs. 2,000/- per month when it was in business. Now plaintiff's proneness to exaggerate and tell lies has been established. We will not therefore assume that the fire must have resulted in the closure of the hotel, that the closure lasted for as many as 35 months and that this resulted in a loss of income of Rs. 2,000/- per month. In fact plaintiff himself has not anywhere said that the hotel had to be kept closed, irrespective of the period of the closure.
8. The result of the foregoing discussion is allowing of the appeal in part. The dismissal of the suit with costs is set aside and substituted by a decree in the following terms :
Defendant No. 1 do pay to the plaintiff a sum of Rs. 56,900/- together with the corresponding costs in both the Courts. Rest of the plaintiff's claim is dismissed together with the balance of the costs. Plaintiff's claim as against defendant No. 2 is dismissed with plaintiff being rendered liable for the costs of the second defendant in both the Courts. Decretal amount, exclusive of costs, to carry interest at rate 6 percent per annum.