K RAMAKRISHNA PILLAI Vs. P PONNYAN NADAR

JUDGEMENT

(1.) THE defendant is the appellant. The suit was filed by the respondent for the recovery of a sum of Rupees 4852 as damages, caused by the defendant to the plaintiff's lorry. The defendant was found by both the Courts below guilty of wilfully cutting the five tyres of the lorry and breaking three headlights, two parking head lights, wind screen glass and the rear light of the plaintiff's lorry. Though the learned counsel for the appellant argued against this finding, it being a question of fact I am unable to interfere with that finding. The plaintiff claimed Rs. 3100 for replacement of the five tyres and Rs. 1742, for damages caused to the lights and wind screen. There is no dispute in this second appeal relating to the damages allowed for the lights and the wind screen. It is in evidence that the tyres which were cut by the defendant were not new tyres, but at the time of damages their buttons were almost half worn out. It is also in evidence that the damages caused to the tyres are such that they could not be restored to the original condition and could not be further used. There was no evidence as to what would be the value of the old tyres at the time when they were damaged. But the plaintiff let in evidence to prove the price of five new tyres and this has been found to be Rs. 3100. The courts below have decreed the suit for Rs. 3100 for damages caused to the tyres. The learned counsel for the appellant contends that the plaintiff is entitled to only damages for the loss sustained and not a restitution of the tyres themselves. According to the learned to the depreciated value of the tyres as on the day when the damage was caused and been decreed by the Courts below. Normally, only in the case of conversion the market value of the thing lost is given as damages. But in the case of a tortious act the plaintiff would be entitled to full compensation for restoring the thing damages to its original condition. But the difficulty arises in cases where the restoration of the thing damages to its original condition is not possible. In Winfield on Torts, 7th Edn. at page 789 we find the following passage:

(2.) IT is seen from the passage that though the normal measure of damage is the value of the article at the time of damage, normally such damage is ascertained at the replacement cost of the thing lost where no market exists in which such prices can be ascertained. In this case, though the tyres are stated to be very old, there is no evidence as to what would have been its value at the time when it was damaged. But, having regard to the finding that the damage was such as the tyre could not be put to its original condition and could not be repaired also with reasonable safety, the plaintiff would be entitled to the replacement cost of the tyres. There is no dispute that if the plaintiff is entitled to the cost of new tyres, the sum of Rs. 3100 awarded by the Courts below is correct, since in matters of the kind especially old tyres' depreciated value at the time when the damage was caused could not be ascertained with any amount of reasonable certainty, the plaintiff would be entitled to the value of the new tyres. The second appeal therefore fails and it is dismissed. There will be no order as to costs. No leave.

(3.) APPEAL dismissed.