2009(4) ALL MR 497
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.R. BORKAR, J.

Maharashtra State Electricity Board Vs. P. B. Salunke & Anr.

First Appeal No.370 of 1993,First Appeal No.442 of 1993

25th June, 2009

Petitioner Counsel: Shri. H. T. JOSHI
Respondent Counsel: Shri. A. D. KASLIWAL,Shri. S. S. NIRKHEE,R. D. DESHPANDE

Carriers Act (1865), S.10 - Contract Act (1872), S.73 - Liability of common carriers - By law common carriers are liable as insurers of goods and they are responsible for any injury caused to the goods delivered to them, however caused except only by act of God or action of alien enemies - No proof of negligence is, needed and the defendant has to establish the exception. AIR 1963 BOMBAY 208 - Rel. on. 2000(2) ALL MR (S.C.) 599 - Ref. to. (Para 9)

Cases Cited:
Hussainbhai Mulla Fida Hussain Vs. Motilal Nathulal, AIR 1963 BOMBAY 208 [Para 9]
Patel Roadways Ltd. Vs. Birla Yamaha Ltd., 2000(2) ALL MR 599 (S.C.)=(2000)4 S.C.C. 91 [Para 10]
Prakash Roadlines Pvt. Ltd. Vs. P. Muthuswamy Gounder and Co., AIR 1985 MADRAS 84 [Para 17]
Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd., 2007 ALL SCR 818 : (2007)3 S.C.C 142 [Para 18]


JUDGMENT

JUDGMENT :- Both these appeals arise out of same judgment and decree. Some of the facts giving rise to these appeals which remain undisputed at this stage are as under :-

The Maharashtra State Electricity Board, which is appellant in First Appeal No.370 of 1993 and respondent No.1 in First Appeal No.442 of 1993 is original plaintiff. It has placed order with M/s. Kirloskar Electric Company Limited, Bangalore for supply of 25 MVA 132/11 KV transformer. The transformer was to be unloaded at Nandgaon Railway Station and was then to be carried to Aurangabad Sub-Station for installation. P. B. Salunke, respondent No.1 in First Appeal No.370 of 1993 and respondent No.2 in First Appeal No.442 of 1993, who was original defendant No.1 had undertaken contract of transporting the transformer from Nandgaon Railway Station to sub-station at Aurangabad. The Maharashtra State Electricity Board (hereinafter referred to as "plaintiff-board") insured the operation of unloading transformer and transporting it to the concerned sub-station with the Government Insurance Fund, which is the appellant in First Appeal No.442 of 1993 and respondent No.2 in First Appeal No.370 of 1993 and original defendant No.2. There was no privity of contract between original defendant No.1-Salunke and original defendant No.2 Government Insurance Fund (hereinafter referred to as "defendant No.2-Insurance Fund").

2. It can be gathered from oral evidence so also documentary evidence including statement of defendant No.1 - Salunke that on 24th August, 1980, while unloading the transformer within the premises of Nandgaon Railway Station, the transformer had toppled down from the trailer brought by defendant No.1 - Salunke and the transformer was damaged. Subsequently said transformer was sent back for repairs to Bangalore and M/s. Kirloskar Electric Company Limited, Bangalore (hereinafter referred to as "Kirloskar Company") repaired and sent it back. It is say of the plaintiff-board that due to negligence of defendant No.1-Salunke, it suffered loss of Rs.5,89,994=35 and both the defendants were liable to pay for the same and therefore filed Special Civil Suit No.87 of 1983. Both defendants contested the suit. Ultimately, suit was decreed by the learned Civil Judge, Senior Division, Aurangabad, by judgment and decree dated 26th April, 1993 against defendant No.2-Insurance Fund and dismissed against defendant No.1-Salunke. Being aggrieved by the same the plaintiff-board filed First Appeal No.370 of 1993 for passing decree against both the defendants and First Appeal No. 443 of 1993 was filed by defendant No.2 Insurance Fund being aggrieved by decree against it. According to defendant No.2-Insurance Fund there is breach of terms and conditions of contract of the insurance and therefore it is not liable and it is defendant No.1-Salunke who is liable. Since both appeals arise out of same judgment and decree, these appeals are heard together and being disposed of by this common judgment.

3. The learned Civil Judge held that the damage to the transformer was caused not due to negligence of defendant No.1-Salunke, but it was a pure accident. It is, however, held that defendant No.2-Insurance Fund is liable to make good the loss caused to the plaintiff-board. It is held that the suit is not bad for mis-joinder of parties or causes of action. Accordingly, decree is passed only against defendant No.2.

4. At the time of arguments before this Court, the learned Adv. Shri. A. D. Kasliwal appearing for defendant No.1-Salunke argued that as admitted by one of the officers of plaintiff-board and as held by the Trial Court, defendant No.1-Salunke was not negligent, but it was mere accident and so he is not liable to pay damages. He also argued that no notice as per Section 10 of the Carriers Act, 1865 was issued and therefore no decree can be passed against defendant No.1-Salunke.

5. On the other hand Adv Shri. Nirkhee appearing for defendant No.2-Insurance Fund argued that there was breach of terms and conditions of the contract by the plaintiff board and defendant No.1-Salunke and as such it is not liable to reimburse. It is also stated that the accident had occurred due to negligence of defendant No.1-Salunke, who should have taken necessary precautions.

6. The points which arise for consideration are as follows :


Sr. No.
Points
Findings

i

 

Whether damage to transformer has taken place due to
negligence on the part of defendant No.1-Salunke or his
agent and servant?

Affirmative

 

ii

Whether no decree can be passed against defendant No.1-
Salunke in view of Section 10 of the Carriers Act, 1865?
Negative
iii



Whether there was breach of terms and conditions of
contract between defendant No.2-Insurance Fund and
plaintiff-board and as such defendant No.2Insurance Fund
is not liable to make good loss?
Negative


iv
What order? As per final order.

7. So far as negligence is concerned, the learned advocate Shri. Kasliwal drew my attention to evidence of P.W.3-Ajitsingh Paleja who retired as Executive Engineer with the plaintiff-board. He was working as Assistant Controller of Stores at Aurangabad during period 1977 to 1983. He stated in his cross-examination, para 3, that the accident in question was pure an accident and on the basis of this statement alone the Trial Court appears to have held that there was no negligence on the part of defendant No.1-Salunke. It is nowhere case that P.W.3 - Ajitsingh Paleja was actually present when the alleged mishap had taken place. So that is his inference, which is on hearsay knowledge. It may be noted that he is a retired employee. He may have his own interest. So inference should not have been based on mere solitary statement of such witness ignoring other evidence on record. Defendant No.1-Salunke was to unload transformer at Nandgaon Railway Station and carry it to Jalna via Aurangabad. P.W.3 Paleja proved order of granting contract of transportation to defendant No.1-Salunke at Exh.67. He proved bond executed by defendant No.1-Salunke at Exh.68. The transformer was dispatched by Kirloskar Company on 16.07.1980 and intimation was received regarding the same, which is at Exh.69. Officers of the plaintiff-board informed defendant No.1-Salunke about the arrival of transformer at Nandgaon railway station. It is stated that defendant No.1 also intimated regarding weight of the transformer. Accordingly, defendant No.1 remained present at Nandgaon. The transformer was loaded in a trailer on 23.08.1980 in presence of P.W.1-Swami and then decision was taken to remove transformer on next day i.e. 24.08.1980 after completing formalities. Then P.W.1-Swami proceeded to Aurangabad on same day. The witness proved various documents regarding delivery of transformer by Railway Authorities and payment of wharfage and demurrage. According to evidence of P.W.3-Paleja, the accident had taken place thereafter. P.W.1-Ramswami and Desai received information that the transformer was lying on right side of gate of Railway Station premises. So store Officer sent telegram to P.W.3-Paleja and he learnt about the mishap. So, he was not present at the time of the incident and his statement that it was pure accident was his personal opinion and we will have to verify the same in the light of other evidence including various documents which were executed by the concerned persons and correspondence between them.

8. At Exh.105 there a report given by defendant No.1-Salunke to Dy. Chief Purchase Officer of the plaintiff-board. It is dated 02.09.1980. Defendant No.1-Salunke gave no objection to exhibit it. It is stated that till 5.00 p.m. on 23.08.1980 the transformer was loaded in the trailer and was tied with rope-wire and further action was to be taken on the next day after officers of the plaintiff-board came. On 24.08.1980 in the morning when defendant No.1-Salunke and others were waiting for operating officers of plaintiff-board, Railway Officers found that the trailer was standing in such a way that loading and unloading of other goods on the railway platform had become impossible. The trailer had blocked the railway platform and premises in front of it. There was no space for other vehicles to move and therefore it was difficult to collect the goods lying nearby and therefore the railway officers were asking defendant No.1-Salunke to take the trailer ahead on one side so that they could remove the goods lying on the road and on the platform. But defendant No.1-Salunke told that they are waiting for the officers of the board, but since railway officers were insisting, at about 11.00 a.m., the wooden blocks, sleeper, stay wire and jack were removed. As there was descending slope on one side, the trailer leaned on that side and it was felt that trailer might stand in that condition, but because of slope on one side and due to entire weight falling on cleaner side of the trailer, there was likelihood of bursting of tyres and in these circumstances defendant No.1-Salunke took decision to move the trailer and when it was taken for some distance, suddenly driver side rear wheels of trailer gave way and entered into ground and trailer started tilting on one side. In the process rear side wheels were completely lifted above the ground and the transformer came sliding and fell down. So this report given on 02.09.1980 by defendant No.1-Salunke clearly shows that necessary precautions were not taken by him and he was negligent. Defendant No.1-Salunke during his oral evidence at Exh. 186 did not explain this report Exh.105 or denied its contents. It is report sent by him within 8 days of incident and can be accepted as containing correct description of the actual incident. The learned Civil Judge committed error in merely relying on stray sentence from cross-examination of the witness who was not present at the place of incident.

9. Adv. Shri. H. T. Joshi has relied upon case of Hussainbhai Mulla Fida Hussain Vs. Motilal Nathulal and Anr., AIR 1963 BOMBAY 208. The law laid down in paras 6 and 19 is that the liability of common carriers under the common Common Law and the Carriers Act, 1865, is not affected by the provisions of the Contract Act. By law common carriers are liable as insurers of goods and they are responsible for any injury caused to the goods delivered to them, however caused except only by act of God or action of alien enemies. No proof of negligence is, in such a case, needed and the defendant has to establish the exception. In this case the report Exh.105 clearly shows that necessary precautions were not taken.

10. In the case of Patel Roadways Ltd. Vs. Birla Yamaha Ltd., (2000)4 S.C.C. 91, it is laid down that in view of Section 9 of the Carriers Act, 1865, negligence on the part of the carrier need not be established by complainant-owner of the goods. This is so notwithstanding any special contract to the contrary between the parties. Consignment was destroyed by fire in godown of the appellant and it was held that it cannot be held to be act of God which can be traced to natural causes. In para 36 it is laid down that absolute liability of the carrier is subject to the exception where the loss or damage arises from an act of God. In para 47 it is stated that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision in Section 9, in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties.

11. Thus, in my opinion the circumstances clearly indicate that defendant No.1-Salunke was negligent in handling the transformer, which was a very heavy article and in any case he is liable under Sections 8 and 9 of the Carriers Act, 1865.

12. The next question that is raised before this Court is whether the suit is not tenable against defendant No.1-Salunke in view of Section 10 of the Carriers Act, 1865. Section 10 is as under :-

"10. Notice of loss or injury to be given within six months - No suit shall be instituted against a common carrier for the loss of, or injury to goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff."

13. It is argued by Adv. Shri. A. D. Kasliwal that no notice was given within six months of the incident by the plaintiff-board and the notice that was given is dated 15.01.1983 produced at Exh.157. The incident had taken place on 24.08.1980. So, such notice dated 15.01.1983 was beyond limitation and the suit is not tenable against defendant No.1-Salunke. On the other hand Adv. Shri. H. T. Joshi stated that if we consider the entire correspondence, unless amount is known, it was not possible to give notice claiming particular amount and correspondence if read as a whole, will clearly show that necessary notices were given to defendant No.1-Salunke to fulfill requirement of Section 10 of the Carriers Act.

14. At Exh.107 there is letter dated 02.09.1980 issued by the Assistant Controller of Stores, Aurangabad to defendant No.1-Salunke. This document is admitted by defendant No.1-Salunke. The subject is 'Accident to 25 MVA Kirloskar Transformer Sr. No.ZM 0021 at Nandgaon.' The following portion is relevant :-

"On availability of trailer you had transferred the transformer from Railway platform into your trailer No.MTD-3506 on 23.08.1980. By about 5=00 p.m. In the evening lashing etc. was completed and the transformer was to be transported to Harsool from 24.08.1980 onwards.

On reaching to Nandgaon on 24.8.80 it was observed by our representative Shri. K. H. Desai that while taking out the trailer out of Rly's open yard at goods-shed site, the said transformer has toppled down from the trailer.

The toppled transformer has been lifted and kept in normal position on 30.8.80 and inspection has been carried out by the service Engineer of manufacturers M/s. Kirloskar Electric Co. in your presence on 31.8.80.

In his opinion the transformer is to be re-booked to their works at Bangalore for detailed checking and for assessing the cost of repairs/rectification/replacement etc.

This transformer is insured with Govt. Insurance Fund Bombay and necessary formal claim has been lodged with them.

A final claim will be lodged with Govt. Insurance Fund as soon as the cost of repairs/rectification/replacement etc. is received from manufacturer.

However in case the claim is repudiated or partly settled, the full amount of repairs/rectification/replacement handling at Nandgaon and Bangalore Factory of manufacturer/freight/detention /D.C./W.F. charges at Bangalore etc. or any other expenses on above account shall be recoverable from you, as per the terms and conditions of order which please note."

15. It is further clear from document Exh.112, which is a letter by Kirloskar Company that it required the transformer to be sent back to Bangalore. It is mentioned that the approximate cost of repair can be assessed and can be given only after lifting the core and windings and the exact amount of charges for the replacement of essential parts during repairs can be given only after the complete repairs and passing all the tests as per the IS. So, it is clear that the manufacturer was unable to estimate the loss, repair charges without examining the transformer at Bangalore at its factory site. The correspondence produced on record clearly indicates that thereafter the transformer was sent back to Bangalore, where it was repaired. We find documents to that effect at Exhs.112 and 114. At Exh.115 there is a letter sent by the Assistant Controller of Stores of plaintiff-board to defendant No.1-Salunke in which it alleged that he was not co-operating and deliberately avoiding to reply or contact the plaintiff's officers. At Exh.119 we find letter to defendant No.1-Salunke calling upon him to make arrangement for sending back transformer from Nandgaon Railway Station and it is also stated that he should depute his gang. The last letter in this connection is at Exh.113 in which it is stated that if defendant No.1-Salunke did not co-operate, they would hire another agency.

16. At Exh.133 we find letter by Kirloskar Company dated 29th October, 1980 informing that they have received the damaged transformer at their works and they would dismantle and inform approximate repair charges etc. At Exh.58 there is a letter dated 8th January, 1981, issued by Kirloskar Company stating the extent of damage suffered and repairs required and asked the plaintiff-appellant to confirm if said repairs be carried out. It is only on 19.05.1982 by letter Exh.167 Kirloskar Company gave invoice and details of costs of repairs and replacements. Thus the total bill is of Rs.3,82,762=82. We can expect the plaintiff board to inform the actual amount of demand to defendant No.1-Salunke only after receipt of such invoice. Exh.60 which is bill dated 14.06.1982 shows payment of Rs.3,90,628/- by applicant-board to Kirloskar Company. Thereafter notice Exh.153 dated 30.09.1982 was given. So Notice was within four months after knowing the actual amount required for repairs and after payment of same to Kirloskar Company. If it is held that Section 10 of the Carriers Act does not require the actual intimation of amount claimed, but mere intimation of accident and demand of damages that may be accrued then Exh.107 which is letter dated 02.09.1980 should be held as sufficient notice required under Section 10. So, if we are to hold that purpose of Section 10 of the Carriers Act, 1865 was to bring all necessary facts known to the notice of carrier, then there is sufficient compliance by Exh.107. The actual amount of expenses required for repairs became known to the plaintiff-board only by letter Exh.167 dated 19.05.1982 and thereafter within four months notice Exh.153 was given on 30.09.1982. Moreover, what was actual damage was known to the carrier also i.e. Defendant No.1-Salunke as he himself had given report Exh.105 on 02.09.1980 regarding the accident that had occurred on 24.08.1980 that caused damage to the transformer.

17. In the case of Prakash Roadlines Pvt. Ltd. Vs. P. Muthuswamy Gounder and Co., AIR 1985 MADRAS 84, in para 10 it is observed by Madras High Court that it is easy to conceive of cases where there is extensive damage to the external packing but the goods inside are intact and in their original condition. Equally, it may be that the external packing is quite in order, while, the goods inside might have been either lost or injured. Therefore, it was held that the consignor must be able to see the goods again. It is further observed that, to say that mere awareness of some damage without knowledge of loss or injury, would suffice to clothe the plaintiff with knowledge relating to loss or injury, would be to defeat the very purpose for which S.10 had been enacted. So, in this case if actual amount of loss and claim was not required to be informed, then letter Exh.107 dated 02.09.1980 is sufficient compliance of Section 10 and if it is required to state actual amount of damages or claim, then that could be done only after plaintiff-board came to know of actual expenses of repairs. So, viewed from either angle, defendant No.1-Salunke cannot avoid his responsibility for payment on the ground that no notice was given to him under Section 10 of the Carriers Act.

18. In the case of Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd., (2007)3 S.C.C 142, after referring to Section 10 of the Carriers Act, 1865, it is observed that Section 10 requires a notice in the manner set out therein, for initiation of a proceedings against a common carrier for loss of goods or injury to goods entrusted for carriage. The notice need not say specifically that it is issued under Section 10 of the Carriers Act, 1865. It is sufficient if the notice fulfills the requirement of Section 10, that is to inform the carrier about the loss or injury to the goods. It is also observed that the object of the section is to put the carrier on notice about the claim in respect of the loss or damage to the consignment so that it can make good the loss occasioned. In this case the letter Exh.107 dated 02.09.1980 is sufficient notice. Similarly notice is also given to defendant No.2 Insurance Fund, copy of which is at Exh.108 giving necessary details.

19. So far as responsibility of defendant No.1-Insurance Fund is concerned, we would consider if there is breach of terms and conditions of policy. We find copies of cover note of policy at Exh.4/18, 19 and Exh.4/7. Adv. Shir Nirkhee appearing for defendant No.2 - Insurance Fund has argued that the trailer used in this case by defendant No.1-Salunke was lighter in capacity and it could not have been used for carrying 25 MVA transformer. My attention was drawn to letter dated 3rd January, 1986 at Exh.161. In the first place suit was filed in 1983 for recovery and the letter is subsequent to filing of the suit and therefore can be said to be sent in support of defence taken in the written statement. It is stated therein that use of vehicle having had grossly inadequate carrying capacity compared to weight of the transformer. The truck is reported to have carrying capacity of 12410 kg. Whereas weight of the transformer was 44.060 M/T. Even officers of the plaintiff board had not taken precautionary measures to verify carrying capacity of said vehicle before actual transportation started. Thus not only the transport contractor is liable but also there is negligence on the part of the plaintiff-board. It is also stated that as per terms and conditions of the contract, officers of plaintiff-board and transport contract were required to carry out inspection of the road on which transportation was proposed. However, it was found that the transport contractor did not carry out visual inspection of surface of the ground in the railway station yard for approach to the main door road. Infact, this is the main defence taken by the insurance company and it shows that because of failure to observe these things, there is breach of contract and defendant No.2-Insurance Fund is not liable.

20. If we consider letter Exh.107 written by defendant No.1-Salunke to the plaintiff-board to which reference is made earlier, it is clear that on 02.09.1980, within eight days after the incident, the entire things were explained by defendant No.1-Salunke and same clearly reveals that attempt was made to remove the trailer laden with the transformer due to insistence of railway officers and in absence of officers of the plaintiff-board. It is also clear from said report that necessary support wire and wooden blocks were removed. At Exh.67 there is contract dated 23rd July, 1979, entered into by the plaintiff-board with defendant No.1-Salunke, and it is accompanied with Schedules. Terms & conditions are mentioned in Schedule-A, which is given Exh.67-A. Particularly paras 4, 5, 8, 9, 11 & 12 clearly indicate that necessary conditions were placed by the plaintiff-board while entering into contract with defendant No.1-Salunke as transport contractor. As per para 4 the contractor was to produce documentary evidence before transport authority showing that his trailer is of adequate capacity to carry the load given to him for transportation. If he has used the trailer of under capacity he will be held solely responsible for the accidental damage, if any, if takes place during the process of transportation and cost thereof shall be recoverable from the contractor. So, it cannot be said that the plaintiff-board has not taken necessary precautions and it was at fault and it committed breach of contract of insurance. Moreover, insurance is taken of such commodity during transport, so as to save the board from possible losses. So, merely because the contractor was negligent, defendant No.2-Insurance fund cannot avoid its responsibility. At most it will be in a position to recover the amount, if paid, from the transport contractor.

21. Moreover, defendant No.1 has also entered into contract of indemnity as per Exh.68. At Exh.73 there is a certificate of registration issued by the R.T.O., Pune, which shows that trailer described as H.M.V. bearing registration No.MTD-3506 was having unladen weight of 8060 + 6070 = 14130 kg. and registered laden capacity was 26540 kg. The letter regarding transit insurance is at Exh.76. So, considering totality of the circumstances including oral evidence of the officers of the plaintiff board and defendant No.1-Salunke, it can be said that there was negligence of the contractor for not taking necessary precautions and by taking the trailer on the surface which was uneven and having slope on one side and because of absence of other precautions, the transformer ladden slid on one side and toppled. We get admissions regarding how the accident has taken place even in the evidence of defendant No.1-Salunke. He stated that at about 11.00 a.m. Railway authorities asked them to remove the trailer. They were waiting for Mr. Swami, but as did not turn up, they took up work of loading the transformer in the trailer. The trailer had 12 wheels. Because of accident, transformer got tilted as a result of which it fell on the road. The road which was used for transportation was already checked, but it appears that railway yard was not properly checked and trailer was attempted to be moved on surface having slope on one side. The contractor was also cross-examined so far as capacity of the trailer is concerned. He pleaded ignorance whether registered ladden weight was 26540 kg. He admitted in para 3 of his deposition that weight of the transformer was 46060 kg. There were questions put to him whether he had used the trailer of under capacity and that appears to be so. The number of the trailer and horse power is given in para 1 of the deposition of defendant No.1-Salunke.

22. The learned advocate Shri. A. D. Kasliwal relied upon letter Exh.157 and argued that defendant No.2-Insurance Fund has accepted liability. This is a letter written by the Assistant Director of defendant No.2 - Insurance Fund to the Dy. Chef Engineer of the plaintiff-board and it is stated therein after referring to previous correspondence that the office of defendant No.2 agreed to accept the claim on account of damages sustained by the 25 MVA transformer due to toppling down in the Railway yard at Nandgaon on 24.08.1980. The amount of claim payable would, however, be determined and by reference to the final survey report and also the terms and conditions of the policy. So, it cannot be said to be unconditional acceptance. It was subject to survey report and subject to terms and conditions of the policy. Same can be stated in letter Exh.160. However, by that letter defendant No.2-Insurance Fund proposed to file suit jointly against the contractor i.e. Defendant No.1-Salunke. By letter Exh.170 the plaintiff-board decided to file suit alone and to join Insurance Fund as defendant No.2.

23. The contractor cannot take advantage of the correspondence between the plaintiff-board and defendant No.2 to avoid his responsibility, unless he comes with a case that defendant No.2 Insurance Fund has paid the amount of damages to the plaintiff board.

24. So, considering all the circumstances in my opinion the Trial Court committed error in not holding defendant No.1 liable for his negligence as a transport contractor and therefore First Appeal No.370 of 1993 must succeed and First Appeal No.442 of 1994 deserves to be dismissed. In the result following order passed :

(i) First Appeal No.370 of 1993 is allowed.

(ii) First Appeal No.442 of 1993 is dismissed.

(iii) The judgment and decree passed by the Trial Court is hereby modified and it is held that both defendant Nos.1 & 2 are jointly and severally liable to pay Rs.5,89,994=34 (Rupees Five Lakhs Eighty Nine Thousand Nine Hundred Ninety Four and Thirty Four Paise) along with interest at the rate of 18% from the date of suit till actual payment.

(iv) The defendant Nos.1 & 2 shall also pay costs of these appeals to the plaintiff throughout and bear their own.

Ordered accordingly.