K.K. Damodaran Pillai v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN THURSDAY, THE 12TH DAY OF OCTOBER 2017/20TH ASWINA, 1939 AS.NO. 97 OF 2002 (B) --------------------- AGAINST THE JUDGMENT IN O.S. NO.672 OF 1992 OF II ADDITIONAL SUB COURT, TRIVANDRUM APPELLANT(S)/PLAINTIFF: ----------------------- K.K. DAMODARAN PILLAI AGED 60 YEARS, HINDU, CONTRACTOR RESIDING AT, THANATHETHI HOUSE, KURIYANNUR THIRUVALLA (DIED) ADDITIONAL APPELLANT IMPLEADED: ------------------------------ * 2. ANANDAVALLI AMMA, W/O DHAMODHARAN PILLAI, ARCHANA THANATHETHU HOUSE, KURIANNOOR P.O., THIRUVALLA ** _**[NAME CORRECTED]**_ PATHANAMTHITTA, PIN 689 550 3. ANILKUMAR. D, S/O DHAMODHARAN PILLAI, ARCHANA THANATHETHU HOUSE, KURIANNOOR P.O., THIRUVALLA PATHANAMTHITTA, PIN 689 550 * 4. SANITHA.D.PILLAI, D/O DHAMODHARAN PILLAI, ARCHANA THANATHETHU HOUSE, KURIANNOOR P.O., THIRUVALLA PATHANAMTHITTA, PIN 689 550 _****[NAME CORRECTED]**_ 5. ANITHA.D.PILLAI, D/O DHAMODHARAN PILLAI, ARCHANA THANATHETHU HOUSE, KURIANNOOR P.O., THIRUVALLA PATHANAMTHITTA, PIN 689 550 LEGAL HEIRS OF THE DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AS PER ORDER DATED 31-07-2017 IN IA 1388/2017 AS.NO. 97 OF 2002 (D) -2- *[THE NAME OF THE ADDITIONAL 2ND APPELLANT IS CORRECTED AS 'ANANDAVALLI AMMA' INSTEAD OF 'ANANTHAVALLI AMMA', THE INITIALS OF THIRD APPELLANT IS CORRECTED AS 'D' INSTEAD OF 'P' AND THE HOUSE NAME OF ADDITIONAL APPELLANTS 2 TO 5 IS CORRECTED AS 'THANATHETHU HOUSE' INSTEAD OF 'THENAPARAMBIL HOUSE' VIDE ORDER DATED 21/03/2018 IN IA 378/18.] ** [THE NAME OF THE ADDL. 2ND APPELLANT IS CORRECTED AS 'ANANDAVALLI AMMA K.J'; INSTEAD OF ANANDAVALLI AMMA AND THE NAME 'SANITHA D. PILLAI' IS CORRECTED AS 'SUNITHA D. PILLAI' AS PER THE ORDER DATED 26.08.2022 IN IA NO.1/2021 IN AS 97/2002]. ## BY ADVOCATE SHRI R.GOPAN RESPONDENT(S)/DEFENDANTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, ROADS AND BRIDGES, SOUTH CIRCLE, THIRUVANANTHAPURAM (FORMERLY THE SUPERINTENDING ENGINEER BUILDINGS AND LOCAL WORKS, SOUTH CIRCLE, THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER SHRI K.B. RAMANAND THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05.10.2017, THE COURT ON 12.10.2017, DELIVERED THE FOLLOWING: ## **V. CHITAMBARESH** & ## **SATHISH NINAN, JJ** . = = = = = = = = = = = = = = = = = = ## **A.S. No.97 of 2002** = = = = = = = = = = = = = = = = = = Dated this the 12[th] day of October, 2017 J U D G M E N T ## **SATHISH NINAN, J** . Dissatisfied with the quantum of damages decreed in relation to a contract work entered into with the defendants, the plaintiff is in appeal. 2. Tenders were invited by the 2[nd] defendant for the work of 'construction of bridge at 0/4 across Neyyar and 0/1 across Chakeriyar in Poovar Sankurutti Road'. The plaintiff being the successful tenderer, agreement dated 14.11.1983 was executed between the parties. The time for completion was 24 months from 14.11.1983. There was delay in completion of the work, the cause of which the plaintiff attributes to the defendants in the form of enhanced quantity of work beyond the stipulated limits, additional works, undue delay in the supply of departmental materials, making A.S. No.97 of 2002 -: 2 :- payments, etc. The claim of the plaintiff is under eight heads as hereunder: i. Refund of amounts illegally recovered towards tender percentage for road roller. ii. Amounts due to the plaintiff towards extra rate payable for earth excavation. iii. Costs for extra filling work done due to sinkage. iv. Costs for strengthening and reconstruction of island. v. Amounts due under the head of pile driving. vi. Amounts due under the head of earth filling works. Vii. Damages caused due to delayed execution. viii. Amounts due under the final bill. 3. The trial court granted a decree in respect of claim No.i in toto and partly in respect of claim No.iii. The claims under the other heads were negatived. In this appeal, the challenge is limited to claims under count Nos.ii, vi and viii referred to above. A.S. No.97 of 2002 -: 3 :- 4. Heard Shri R.Gopan, learned counsel for the appellant/plaintiff and learned Government Pleader for the respondents/defendants. 5. The entire submission on behalf of the learned counsel for the appellant/plaintiff is centred around I.A. No.8968 of 1995 filed by the plaintiff before the trial court for a direction to the defendants to produce various documents relating to the contract work including the agreement between the parties along with the conditions of the contract, tender conditions, MAS register, USR, M.Book and final bill. On 14.06.1995 the court below passed an order directing the defendants to produce the documents as sought for. The same was not done by the defendants. The contention of the appellant/plaintiff is that the claims could be proved only with reference to the said documents and that on the withholding of vital documents adverse inference ought to have been drawn against the defendants. 6. We shall now deal with the respective A.S. No.97 of 2002 -: 4 :- claims of the appellant raised in the appeal. Regarding the claim for amounts under the head of earth excavation (claim no.ii), it is the case of the plaintiff that during the course of execution of the work of earth cutting it was noticed that the sub soil was either of medium or hard rock thus necessitating the plaintiff to incur extra expenditure higher than that in contemplation. According to the plaintiff though he informed the authorities the inability to do such excess quantity of work, the defendants required the plaintiff to complete the work on the assurance that he will be adequately compensated for the extra work. The grievance of the plaintiff is that in spite of the undertaking he is not being paid the amounts due. The defendants would on the other hand deny the claim of the plaintiff regarding the existence of hard or medium rock in the alignment of the work. According to them the nature of the soil was verified by the departmental officers and that there was no hard or medium rock as claimed by A.S. No.97 of 2002 -: 5 :- the plaintiff. It is to be noticed that though the plaintiff would claim that the defendants were put on notice regarding the existence of hard or medium rock in the area where excavation was done and the defendants had agreed to compensate the plaintiff for the extra work, no evidence in the said regard is available before the court. So also, there is no evidence to show the existence of hard or medium rock in the alignment as claimed. The plaintiff does not have a case that the existence of rock in the nature he claimed was noticed and entered by the 2[nd] defendant in the concerned books. Therefore in the absence of any evidence, it could not be held that the plaintiff is entitled to any amounts under the said head. 7. As regards claim No.vi indicated supra, amounts are claimed under the head of expenses incurred towards the cost of earth filling work. According to the plaintiff, as per the terms of the agreement, filling work was to be done with sea sand. Due to obstruction from the local inhabitants A.S. No.97 of 2002 -: 6 :- and lack of prior permission from the revenue and panchayat authorities, the plaintiff could not collect and use sea sand. Thereupon the plaintiff had to procure sand from other sources thus incurring extra expenditure. The claim is for the said amount. Though the defendants would contend that there was no earnestness from the part of the plaintiff to procure sea sand, they does deny the fact that the plaintiff could not, by the circumstances as pointed out by him, collect sea sand. The plaintiff had to arrange sand from other sources. Necessarily he had to incur additional expenditure under the said head. As regards the quantity, the details regarding the same would be available only in the M book and connected records kept by the defendants. As noticed first above, in spite of specific direction by the trial court for production of the said documents, the same were deliberately withheld by the defendants without any explanation. Therefore, it could only be held that the quantity as claimed by the plaintiff under the A.S. No.97 of 2002 -: 7 :- said head is correct. The court below was not right in dismissing the claim of the plaintiff under the said count. Accordingly, we hold that the plaintiff is entitled for an amount of Rs.1,29,029/- claimed by him under the said head. 8. Coming to claim No.viii which is the amount allegedly due towards final bill, admittedly the work was completed on 02.06.1989 and the entire work measured. The plaintiff has raised a claim for Rs.89,000/- under final bill. He has not produced before the court below the final bill, if any prepared by him giving the details. It is true that the defendants have not produced any final bill. However, that by itself would not enable the court to conclude that the amounts claimed by the plaintiff as final bill is correct. This is so in view of the fact the plaintiff has not cared to produce his version of the final bill indicting the manner in which he has arrived at the amount of Rs.89,000/- as claimed by him. Therefore, the court below could not be found fault with for negativing ## A.S. No.97 of 2002 -: 8 :- ## the claim under the said head. 9. The decree of the court below needs to be interfered with by granting the amount as claimed under claim No.ii as stated supra. In the result, the appeal is allowed in part. The decree of the court below will stand modified. In addition to the amount decreed by the court below, the plaintiff will be entitled for a further amount of Rs.1,29,029/- with 6% interest from the date of suit till realisation. The plaintiff will also be entitled to proportionate costs throughout. Sd/- ## **V. CHITAMBARESH, JUDGE.** Sd/- **SATHISH NINAN, JUDGE.** Vsv /true copy/ ## P.S. to Judge