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Venkatesh Vs. the City Municipal Council, Gulbarga - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberFirst Appeal No. 55 of 1972
Judge
Reported inILR1974KAR1107; 1974(2)KarLJ470
ActsLand Acquisition Act - Sections 132, 138 and 139
AppellantVenkatesh
RespondentThe City Municipal Council, Gulbarga
Appellant AdvocateMurlidhar Rao, Adv.
Respondent AdvocateK.H.N. Kuranga, Adv. for ;K.A. Swamy, Adv.
Excerpt:
.....the sum decreed has appealed to this court claiming enhancement of compensation by rs. 4,000 towards the loss of income for a period of six years from 1966. the better method is to allow interest by way of damages. he will also be entitled to costs proportionate to his success in this court as also in the court below......below has stated that the sum awarded as compensatory damages includes the value of the land. this is plainly wrong. the sum of rs. 28,000 which we have fixed as damages is the total amount of damages to which the plaintiff is entitled as on the date of the decree of the lower court. he is not entitled to claim separate damages under the head of 'mental worry'. in suits for damages for injury caused to immovable property, damages on account of mental worry or anguish are not generally allowed.13. for the reasons stated above, we allow the appeal in part, enhance the compensation for damages from rupees 21,842 to rs. 28,000 on which amount the plaintiff will be entitled to interest at 6% per annum from the date of the decree of the court below till recovery. he will also be entitled to.....
Judgment:

Govinda Bhat, C.J.

1. This appeal brought on behalf of the plaintiff arises out of Original Suit No. 7 of 1968 on the file of the Court of the Civil Judge, Gulbarga in which the plaintiff's suit for damages was decreed in part.

2. The respondent-defendant is the City Municipal Council, Gulbarga (hereinafter referred to as 'the Municipality'). The plaintiff is the owner of several buildings in Gulbarga Town, Three buildings belonging to the plaintiff were demolished by the officers of the Municipality between 10-1-1966 and 21-1-1966 for the purpose of broadening a road. Before carrying out the demolition, the Municipality did not get the land with the buildings acquired under the Land Acquisition Act. The plaintiff brought the suit for recovery of Rs. 40,000 as damages for the tortious act of the defendant,

3. The defendant contested the suit on various grounds. The quantum of damages was also disputed.

4. On the pleadings, though the learned trial Judge framed a number of issues, the only material issues were three and they are:

'1. Whether the plaintiff proves that the defendant's workers demolished the front portion of his three houses between 10-1-1966 to 21-1-1966?

2. Whether it is proved that the demolition was effected unlawfully? 4. What is the value of the damage?' The court below, on the basis of evidence, found issues 1 and 2 in favour of the plaintiff and against the defendant. Under issue No. 4, it assessed the damages thus:

(a) Compensation for the damage

caused to the buildings Rs. 16,842

(b) Loss of rent for about 6 years

from 10-1-1966 Rs. 4,000

(c) Compensation for mental

worry caused Rs. 1,000Thus it awarded a total amount of Rupees21,842 as compensation to the plaintiff.

5. The Municipality has not appealed and, therefore, the findings on issues 1 and 2 have become conclusive. The plaintiff not being satisfied with the sum decreed has appealed to this Court claiming enhancement of compensation by Rs. 10,000.

6. The point for determination in the appeal is as to what is the proper amount of compensation for the damages suffered by the plaintiff.

7. The goal of the damage remedy in cases involving injury to a person's interest in real property is that of compensation. One whose interest in immovable property has been injured by the tortious act or omission of another is entitled to those damages which will compensate him for the injury sustained. Generally, this principle is translated into the following two rules of damages:

(1) the injured party is entitled to recover the difference between the value of the real property immediately before and immediately after the injury (often referred to as the 'diminution in value' rule);

(2) The injured party is entitled to recover the cost of repairing the property by restoring it to its condition immediately prior to the injury (generally referred to as the 'restoration' or 'cost of repair' rule).

Where the injury is to a building or structure, the underlying theory governing the recovery of damages stated above, generally applies. The basic goal of the court is compensation -- that is, to award such an amount of money as will restore the injured party to the same property status which he occupied immediately prior to the injury. It is not possible, however, to state a single rule of damages which applies invariably to cases of this type. The facts vary from case to case. Therefore, several rules of damages have been adopted for injuries to buildings or structures. The two rules of damages adopted for injuries to buildings and followed by courts generally, are:

(1) The decrease in market value of the property injuriously affected and that is determined by arriving at the difference between the market value of the property before and after the injury;

(2) To determine the cost of replacing or restoring the building to its condition immediately prior to the injury.

If the second rule is followed, the cost of reconstructing the building at about the time of the injury is determined and then allowance is made for depreciation, having regard to the age of the building. Interest is awarded from the date of injury till the date of decree. (Vide American Jurisprudence -- Second Edition, Vol. 22 -- 2d -- Sections 132, 138 and 139).

8. P. W. 11 C. R. Panduranga Rao was an Assistant Engineer (Housing Board) working in Gulbarga in the year 1968. He is a graduate in Engineering. He was appointed as a Commissioner by the Court below to hold local inspection and make a report of the cost of reconstructing buildings of the type and dimensions that were demolished. He filed his report which is Exhibit P-21. According to Exhibit P-21 the cost of constructing the buildings in 1966 was Rs. 27,149. P.W. 11 estimated the age of the buildings in 1966 at 25 years; he allowed depreciation at 2%, which works out to roughly 0.4% of the total estimated cost. After making allowance for depreciation, he estimated the cost of the buildings demolished at Rs. 18,062. In his examination before the court also, he stated that he has estimated the value of the dismantled buildings in 1966 at Rs. 18,062.

9. The learned Civil Judge has accepted the valuation given by P.W, 11 in his report Exhibit P-21. However, instead of allowing depreciation of 0.4% of the estimated value he computed the total depreciation at 50%. This is not correct. Depreciation for each year has to be allowed on the written down value at the end of the year and if depreciation at 2% per annum is worked out in that manner, for a period of 25 years, it comes to 0.396% as stated in Exhibit P-21. The correctness of the percentage of depreciation allowed by P.W. 11 was not disputed when he was cross-examined by the counsel for the defendant.

10. The estimate of Rs. 18,062 arrived at by P.W. 11 in Exhibit P-21 was made after allowing a sum of Rs. 2,756 as extra lead charges, which has been disallowed by the Court below. In our opinion, on the basis of the evidence of P.W. 11 read with his report Exhibit P-21, the cost of reconstruction of the buildings can be estimated at Rs. 27,150. If 0.4% on the said amount is allowed towards depreciation, the balance comes to Rs. 16,290. The cost of restoration in round figures comes to Rs. 16,300.

11. The plaintiff was realising a monthly rent of Rs. 105 from the several tenants who were occupying the tenements in the demolished buildings. The net rent, after making due allowance for repairs and taxes, received by the plaintiff was Rs. 1,050 per annum. If that is capitalised by employing the multiplier of 20, the market value of the building with the land comes to Rs. 21,000. According to the evidence on record, the value of the land on which the buildings stood, in 1966 was about Rs. 3,000. When the value of the land is deducted, the market value of the buildings works to Rs 18,000. The difference in the market value before and after the demolition amounts to Rs. 13,000. Thus, according to one method the damages come to Rupees 16,300 and according to another method it comes to Rs. 18,000. We shall accept the lower figure of Rs. 16,300 as the damages suffered on 10-1-1966.

12. The learned Civil Judge has allowed a sum of Rs. 4,000 towards the loss of income for a period of six years from 1966. The better method is to allow interest by way of damages. If the land had been acquired, the plaintiff would have been entitled to a solatium of 15 per cent. and interest at 6 per cent. on the total amount of compensation till payment. Compensation by way of damages cannot be less than the compensation awardable under the Land Acquisition Act. It would be just in our opinion to award interest at 12 per cent. per annum by way of damages on the sum of Rupees 16,300 from 10-1-1966 the date of the injury till the date of the decree. Interest on the sum of Rs. 16,300 till the date of decree, works out to Rs. 11,736. Therefore the total amount of compensation to be paid to the plaintiff by way of damages comes to Rs. 28,000 in round figure. The Court below has stated that the sum awarded as compensatory damages includes the value of the land. This is plainly wrong. The sum of Rs. 28,000 which we have fixed as damages is the total amount of damages to which the plaintiff is entitled as on the date of the decree of the lower Court. He is not entitled to claim separate damages under the head of 'mental worry'. In suits for damages for injury caused to immovable property, damages on account of mental worry or anguish are not generally allowed.

13. For the reasons stated above, we allow the appeal in part, enhance the compensation for damages from Rupees 21,842 to Rs. 28,000 on which amount the plaintiff will be entitled to interest at 6% per annum from the date of the decree of the Court below till recovery. He will also be entitled to costs proportionate to his success in this Court as also in the court below. The decree of the court below is modified accordingly.

14. Appeal partly allowed.


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