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In Re: the Arbitration Between the Bombay Gas Company Ltd. and - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtMumbai
Decided On
Judge
Reported inAIR1914Bom303; (1914)16BOMLR964
AppellantIn Re: the Arbitration Between the Bombay Gas Company Ltd. and ;In Re: the Bombay Electric Supply an
Excerpt:
.....were not so done as to cause the least damage, detriment or inconvenience to the gas company that might be. - - ' clearly it is. whether there was in fact damage or not, what is alleged as damage was clearly caused once and for all in the exercise of the power conferred upon it by the supply company when by laying its wires over the gas company's pipe, it cut the latter oft from reasonable access to its own property. it is, therefore, perfectly clear that the operator could not claim damages for acts of his own or done on his behalf and at his expense by the owner......lies in the gas company having been deprived of access to its own property by acts done by the supply company in the exercise of its power. the supply company's contention is that such damage could not be the subject of compensation under section 19 because it was not caused in the ' exercise of the power ' but was a mere consequence of what was otherwise in all respects rightly done by the supply company in the exercise of that power. this, in our opinion, is wrong. whether there was in fact damage or not, what is alleged as damage was clearly caused once and for all in the exercise of the power conferred upon it by the supply company when by laying its wires over the gas company's pipe, it cut the latter oft from reasonable access to its own property. the case of swansea.....
Judgment:

Davar, J.

1. In the special case submitted to us by the Arbitrators there are two questions for our consideration. In our opinion the first question referred must be answered in the affirmative. Large powers are conferred upon licensees under the Act, but these are accompanied by certain obligations. Thus under Section 19 of the Act of 1910, the licensee is under the obligation of causing as little damage, detriment or inconvenience as may be in exercise of the powers conferred upon him ' and shall make full compensation for any damage, detriment or inconvenience caused by him or by anyone employed by him.' The question is thus worded :-'Whether upon a true construction of Act IX of 1910 the damage claimed to have been suffered by the Gas Company is the subject of compensation under Section 19 of the said Act?' Clearly it is. For the damage claimed to have been suffered lies in the Gas Company having been deprived of access to its own property by acts done by the Supply Company in the exercise of its power. The Supply Company's contention is that such damage could not be the subject of compensation under Section 19 because it was not caused in the ' exercise of the power ' but was a mere consequence of what was otherwise in all respects rightly done by the Supply Company in the exercise of that power. This, in our opinion, is wrong. Whether there was in fact damage or not, what is alleged as damage was clearly caused once and for all in the exercise of the power conferred upon it by the Supply Company when by laying its wires over the Gas Company's pipe, it cut the latter oft from reasonable access to its own property. The case of Swansea Corporation v. Harpur [1912] 3 K.B. 493 cited in support of this contention, is so different, both in its facts and the principle upon which it is decided, that we think it unnecessary to discuss it. It is further contended on behalf of the Supply Company that if in the exercise of the powers conferred upon it, it has caused as little damage, detriment or inconvenience as may be, it cannot be liable in damages under Section 19. Whether it has, in fact, caused as little damage as may be, is not a question of law but of fact, and must be answered by the Arbitrators. But assuming that that is the true construction of the ssntence, notwithstanding The Bombay the words immediately following 'make full compensation for any damage,' it would still be a question of fact whether and to what extent that minimum damage had been exceeded, and, if exceeded even by one rupee, the licensee would be bound to pay that rupee. The point of the Gas Company's complaint is that more than this minimum of damage, detriment or inconvenience was caused by the Supply Company and that is a question yet to be answered by the Arbitrators.

2. In our opinion the second question must be answered in the negative. What the question really invites us to do, although it might perhaps have been more happily worded and the Hon'ble Advocate General admits this, is to decide whether in this matter the Gas Company was bound to proceed under Section 14 or, in other words, whether that section applies. For, if it does, there is an end of the Gas Company's case. There could be no claim for damages by the operator against the owner under that section, of the nature of the damages now claimed by the Gas Company. All acts done under that section are done by the operator or by the owner at his request and expense. It is, therefore, perfectly clear that the operator could not claim damages for acts of his own or done on his behalf and at his expense by the owner. Here the claim is quite differently grounded. What in effect the Gas Company complains of is that it was cut off from access to its own property by acts done in the exercise of its power by the Supply Company and that those acts were not so done as to cause the least damage, detriment or inconvenience to the Gas Company that might be.

3. Costs of this reference to be dealt with by the Arbitrators.


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