MAHARASHTRA STATE ELECTRICITY BOARD Vs. P B SALUNKE

JUDGEMENT

(1.) 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:.

(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. 2Insurance 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. 2Insurance 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. 2Insurance 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.