H. L. ANAND, J. ( 1 ) AUTO Steering India Pvt. Ltd. , in liquidation, for short, "the Company", claims from the Tokyo Marine and Fire Insurance Co. Ltd. , the Insurers, respondent No. 1, for short, the "insurers", and James Finlay and Co. Ltd. , the Insurers Indian agent, for short, "the Indian agents", respondent No. 2, a sum of Rs. 1,96,370. 46 p. , Rs. 99,177. 00 on account of principal, and Rs. 97,193. 46, on account of interest, at the rate of 12% p. a. from Nov. 6, 1969 to Dec. 31,1977, by way of compensation for damage caused to a machinery imported by the Company from Japan. ( 2 ) THE Company, which was incorporated in April, 1963, was ordered to be wound up on May 26, 1976 pursuant to a petition for its winding up filed in 1971. Before its winding up, the Company had imported one Mitsubishi Natco Plastic Injection Moulding Machine, Model 400 Exl-90, manufactured by Mitsubishi Heavy Industries Ltd. , from Mitsubishi Shoji Kaisha Ltd. , for short, "the manufacturers" and "the exporters" respectively. The machine was insured by the Insurers against all risks from the port of Nagoya to Bombay and then by conveyance to Faridabad, which was, at that time, the location of the Company s factory, vide Policy No. F/m 19940 of Jan. 30, 1966 for an amount of Yen 12 Million 8 hundred and 32 thousand 9 hundred only. The claim, in terms of the Policy, was payable to the Company at New Delhi or Bombay through the Indian agents. The machine was damaged while in transit from railway station to the factory of the Company. The damage was caused when the machine, while being transported, "tilted and fell down on the ground. On April 25, 1966, the Indian agents asked their A. Vaidyanathan to carry out the necessary survey of the damaged machine and submit a report. The survey was carried out on Dec. 11, 1966 in the presence of Bombay representative of the manufacturers, two representatives of the exporters, K. C. Jain, Managing Director of the Company, and V. S. Jain, its acting director. The survey was carried out on Dec. 11, 1966 in the presence of Bombay representative of the manufacturers, two representatives of the exporters, K. C. Jain, Managing Director of the Company, and V. S. Jain, its acting director. After a careful inspection of the machine, the exporters, in consultation with the manufacturers came to the conclusion that the machine could not be repaired in India and would have to be sent to the manufacturers works at Nagoya in Japan as the damage to the machine was quite substantial. The Company was, however, reluctant to send the machine to Japan for repair as it felt that it would suffer further losses for want of it during the period that it was bound to take for the machine to be sent to Japan and to be returned after repairs. It also pointed out that the shipment of the machine from India to Japan and back itself would involve a considerable cost, which may be of the order of a lakh and fifty thousand rupees, excluding customs duty, charges of repairs, cost at ports, etc. The Company accordingly -suggested that repairs of the machine be carried out in India itself so as to cut down the huge expenses on shipment and reshipment in common interest and the delay that is bound to be caused in the process. There was, however, no response to this suggestion for a considerable time. The Company accordingly got in touch with a local repairer, M/s. Standard Steel Works, who offered to carry out the necessary repair for Rs. 25,00dd- besides the cost of parts etc. required to be replaced and for other material required for the repairs. The repairer gave an estimate of Rs. 1 lakh or more depending on the cost of different components and availability of the same. The insurers, and their Indian agents were kept informed of this and the insurers eventually confirmed that they had no particular objection to the decision of the Company in having the machine repaired in India. The insurers also agreed to reimburse the Company for the reasonable cost of repairs in the final settlement of the claim and stipulated that the repairs, that are undertaken in India, should be taken as final as far as the insurers were concerned regardless of whether the result was satisfactory or not. The insurers also agreed to reimburse the Company for the reasonable cost of repairs in the final settlement of the claim and stipulated that the repairs, that are undertaken in India, should be taken as final as far as the insurers were concerned regardless of whether the result was satisfactory or not. The repairer allegedly carried out the necessary repairs and submitted a bill of Rs. 95,450. 00, which the Company paid to the repairer. The Company accordingly forwarded to the insurers in May, 1969 the aforaid bill along with a bill for Rs. 3,500. 00 of New India Motors (P) Ltd. , for loading, unloading, transportation of the machine for repairs from the factory site. The claim was entertained by the Indian agents and accepted for Rs. 99,177. 00 inclusive of the Survey fees. The Company was asked to send the receipts in duplicate duly stamped and signed along with the Insurance Policy to enable the Indian agents to remit the amount to the Company. In October, 1970, however, the Indian agents informed the Company that, on instructions from the insurers, they were unable to accept the claim on the ground that the repair charges claimed by the Company have been "made up by the Company" and are entirely groundless. The amount was not paid to the Company in spite of a legal notice in reply to which, after a protracted correspondence, a paltry sum of Rs. 5,000. 00 was offered to the Company in March, 1975, in full and final settlement of the claim which the Company declined to accept. The present claim petition was filed in January, 1978. ( 3 ) IN their joint reply to the claim petition, the insurers and the Indian agents repudiated the claim. It was, however, not denied that the aforesaid machine had been imported by the Company, as claimed by the Company, and it was insured in terms of the aforesaid policy. The respondents did not deny that the machine was damaged in transit but the allegation as to the "nature and quantum of damage" to the machine were denied. It is claimed that the bill of the repairer was "fictitious", that the Company was asked by a senior surveyor of the insurers to produce from the books for the payment alleged to have been made in cash to the repairers but no documents were ever produced before the said surveyor. It is claimed that the bill of the repairer was "fictitious", that the Company was asked by a senior surveyor of the insurers to produce from the books for the payment alleged to have been made in cash to the repairers but no documents were ever produced before the said surveyor. It was further alleged that no payments in regard to the repairs were ever made to the repairer. It was further alleged that the claim was admitted and was in the process of being passed in the sum of Rs. 99,177. 00 on account of the cost of the alleged repairs, transportation and survey fee but before the settlement could be effected, confidential information was received that no repairs as alleged in the Bill had been carried out. It is further alleged that a senior surveyor was deputed who inspected the machine in the company of a local surveyor, who confirmed that. no repair, as indicated in the bill of the repairer, had been effected to the machine except for the replacement of some minor flexible tubings which had been damaged and in fact the machine was found to be functioning quite satisfactorily at the time of the visit without any major repairs having been effected thereto. It was further alleged that the inspection revealed that the nuts of all the components and the covering panels indicated that the machine had never been dismantled and the traces of rust at number of places on the machine also indicated that even the superficial rust which could have been cleaned without opening and dismantling the machine had not been attended to and the claim was thus found to be false and fictitious. It was, however, admitted that the machine was damaged in transit from the railway station to the factory site and when the machine was originally examined, certain outward damage was noted. It was further claimed that Jaswant Singh, the repairer affirmed an affidavit before a Notary Public in Delhi on April 25, 1970 to the effect that the cost of the repairs effected to the machine amounted to Rs. 9,545. 00 and in respect of which payment in the amount of Rs. 2500. 00 was made by the Company by cheque, and a further cheque of Rs. 7,045. 00 towards the balance bounced. It was further claimed in the affidavit that no bill in the amount of Rs. 95,450. 9,545. 00 and in respect of which payment in the amount of Rs. 2500. 00 was made by the Company by cheque, and a further cheque of Rs. 7,045. 00 towards the balance bounced. It was further claimed in the affidavit that no bill in the amount of Rs. 95,450. 00 was ever given by him to the Company nor any receipts for such payments executed nor were any entries in relation thereto in his books of accounts. The affidavit further claimed that the bill of Rs. 3,500. 00 of New India Motors (P) Ltd. must be fictitious because the machine was never removed from the premises of the Company for whatever repair was done by the repairer. A further allegation was made in the reply that subsequent inquiries revealed that New India Motors (P) Ltd. , was an "associate company of the Company, having their office in the same premises and having the same telephone No. and that the bill of transportation was also fictitious. It was further claimed that a sum of Rs. 5,000. 00 was offered to the Company in full and final settlement of the claim without prejudice. ( 4 ) IN its rejoinder, the Company by and large, reiterated the allegations made in the claim petition and denied the allegations, to the contrary, made by respondents in their reply. ( 5 ) ON the pleadings of the parties, following issues were framed : 1. What damages, if any, is the Company entitled to and against whom? 2. Relief. ( 6 ) CERTAIN preliminary objections with regard to the maintainability of the petition and jurisdiction of the Court, which were raised in the reply were, however, given up. ( 7 ) EVIDENCE was given by the parties on affidavits. Parties also filed a number of documents and cross-examined the deponents of each other. In support of the claim, the Company filed, by way of evidence, the affidavits of K. C. Jain, former Managing Director of the Company. On behalf of the respondents, affidavit of A. Vaidyanathan and A. Kumar were filed. K. C. Jain, Vaidyanathan and A. Kumar were cross-examined at length. The Company also examined K. G. Mathur, an official of the office of the Official Liquidator. The respondents produced Mr. Anand Sarup, Advocate, who claimed to have attested the declaration affidavit of the repairer, Jaswant Singh. Parties also produced documentary evidence. K. C. Jain, Vaidyanathan and A. Kumar were cross-examined at length. The Company also examined K. G. Mathur, an official of the office of the Official Liquidator. The respondents produced Mr. Anand Sarup, Advocate, who claimed to have attested the declaration affidavit of the repairer, Jaswant Singh. Parties also produced documentary evidence. The Company produced the estimate of the repairer, Ex. PI, the confirmation from the Indian agents, Ex. P2, further letters from the Indian agents, Ex. P3 and Ex. P4, copy of the legal notice incorporating the claim, Ex. P5 and the reply to it by the Indian agents, Ex. P6. The Company also proved the Survey report, Ex. A5, a copy of its accounts reflecting the payments to the repairers, two receipts issued by the repairers for Rs. 25,000. 00 and Rs. 70,450. 00 marked x and y . The respondents proved Ex. R1, the bill of the repairer, Ex. RW3/1, the declaration/affidavit of Jaswant Singh, the repairer, RW3/1 and copy of the Indian agents letter to the Company, Ex. R2. Parties filed a number of other documents but these were not formally proved or exhibited except the Indian agents letter of March 24, 1969 which was exhibited as Ex. A/1. ( 8 ) I heard learned Counsel for the parties at considerable length and perused the evidence and documents with their assistance. I also called for from the Official Liquidator and examined two vouchers in respect of payment of Rs. 9450. 00 to the repairer by two separate cheques the second of which for Rs. 7,450. 00 is stated to have bounced. ( 9 ) IT is not in dispute that the Company imported the machine in question from Japan and it was fully insured by the insurers against all risk not only from the port of Nagoya to Bombay but also thenceforward to (he Faridabad factory of the Company for an amount of over 12 million and odd Yen. It was also not disputed that, vvhile being transported to the factory, the machine, which was a highly sophisticated one, "tilted" and fell on the ground, thereby causing substantial damage 10 it, both outwardly as well as from within on account of the "shock suffered" by it when it tell on the ground. It was also not disputed that, vvhile being transported to the factory, the machine, which was a highly sophisticated one, "tilted" and fell on the ground, thereby causing substantial damage 10 it, both outwardly as well as from within on account of the "shock suffered" by it when it tell on the ground. It was also not disputed lhat A. Vaidyanathan, of the Indian agents of the insurers carried out a survey of the machine in the presence of the Bombay representative of the manufacturers, two representatives of the exporter, the managing director and acting director of the Company, and that after a careful inspection of the machine, the exportersin consultation with the manufacturers came to the conclusion that the machine, which had suffered "substantial damage", could not be repaired in India and had to be shipped back to the manufacturers works at Nagoya in Japan. It was also not disputed that if the machine had to be shipped back to Japan and after repair sent back to India, the transportation charges alone would have been more than a lakh and fifty thousand rupees besides actual cost of repair and the insurers would have been bound to reimburse that loss, and on that computation, the Compensation and claimed by the Company was even less than the transportation cost, which would have been incurred if the Company had followed the course suggested by the manufacturers and the exporters. There was, however, some controversy as to the extent of damage notably, the damage other than the visible external damage, even though it was not disputed that from the visible damage, it was certain that some damage must have been caused to the "control box" of the machine and to the efficacy of the unit but which could be detected only after repair of the visible damages and actual installation and commissioning of the equipment. Controversy between the parties, however, centred round three aspects of the matter : 1) What was the extent of damage caused to the machine by the accident? 2) Whether the Company got the machine repaired and paid for it, as alleged, or the major repair to the machine was a made-up affair? 3) What compensation, if any, is the Company entitled to and from which of the respondents? 2) Whether the Company got the machine repaired and paid for it, as alleged, or the major repair to the machine was a made-up affair? 3) What compensation, if any, is the Company entitled to and from which of the respondents? ( 10 ) AS to the extent of damage to the machine, the material on record consists of the Survey report of the Indian agents, Ex. A5, the recommeations of the exporters on the survey report, the affidavit of the former managing director of the Company and the bill of the repairer, which sets out the details of the repairs allegedly carried out to the machine. The relevant portion of the Survey report of the Indian agents, Ex. A5, reads as under: "condition The Consignees had unpacked the above case prior to survey and the Moulding Machine was presented for survey in unpacked condition. On examination, the following was recorded : Steel super structure and top rear end where the Hydraulic Oil Pressure Equipment fixed, very badly dented to one side To repair. Motor, Pump filter at top pressed inwardsalong with an angle iron to repair. Joints of certain angles snapped To weld. The suppliers engineers and their Agents who were present at the time of survey were of the opinion that the above damages would have also caused some damages to the Control Box of the Machine and to the accuracy of the Unit which could, however, be detected only after repair of the above visible damages and actual installation and commissioning of the equipment. It is recommended that the visible damages be repaired/replaced as found necessary and the machine tested. If any further internal damage or malfunctioning be then noticed this should be brought to our notice in order that a further inspection thereof could be made. We were advised that the case was in outwardly sound condition at the time of delivery by the Railway but while being transported from the Railway Station to the Consignees factory it fell off the trailer on one side resulting in the above damages. Bombay per pro James Finlay and Co. 7-6-66 Limited"mrc. We were advised that the case was in outwardly sound condition at the time of delivery by the Railway but while being transported from the Railway Station to the Consignees factory it fell off the trailer on one side resulting in the above damages. Bombay per pro James Finlay and Co. 7-6-66 Limited"mrc. It was not disputed that when the report of inspection was sent along with the photographs to the exporters, they got in touch with the manufacturers and informed the Company that according to the manufacturers, the machine should be shipped back to the works where it could be repaired and tested. In support of this opinion, the exporters gave their comments on the damage in the form of their recommendations which were, in turn, forwarded by the exporters to the Company. This is how the recommendations run : "recommendations concerning repairs to damages to the Mitsubishi-Natco Plastic Injection Moulding Machine, model 400 EXL-90, supplied by Mitsubishi Shoji Kaisha Ltd. of Japan, to Messrs. Auto Steering (I) Pvt. Ltd. , New Delhi vide National Small Industries Corporation s Purchase Order No. YEN/iii/d/5/64) We are to state that after a detailed study of the damages incurred by the above-mentioned machine, we consulted with our Principals, Messrs. Mitsubishi Heavy Industries, who are the manufacturers of the above-mentioned machine, and we are to convey that in the opinion of Messrs. Mitsubishi Heavy Industries, it is recommended that the above machine should be shipped back to their Works at Nagoya in Japan, for repairs and testing and subsequent return to Messrs. Auto Steering Factory site at Faridabad, India, due to the following reasons: "1. The machine has suffered very big shocks, and the important clamp unit is judged to have been affected. In particular the clamp cylinder is to be referred to pressure test, and these necessary tests facilities are not available at site. 2. As electric appliances have also been substantially affected, checks to the same are also very necessary. 3. The damage to the hydraulic pump parts is of a nature where all the parts of the hydraulic pressure pump and its auxiliaries must be dismantled completely for precision inspection and checking. 4. The tank for the power unit, and the motor coupling, are broken and the piping arrangements to these units must be made again. 3. The damage to the hydraulic pump parts is of a nature where all the parts of the hydraulic pressure pump and its auxiliaries must be dismantled completely for precision inspection and checking. 4. The tank for the power unit, and the motor coupling, are broken and the piping arrangements to these units must be made again. Mitsubishi Shoji Kaisha Ltd. Sd/- PP Manager of New Delhi Branch" ( 11 ) THE affidavit of the former managing director of the Company lists the damage to the machine in the following terms : I) The machine suffered from big shocks and the important clamp unit was judged to be affected; ii) Electric appliances had been substantially affected; iii) Damage to the Hydraulic Pump parts were of such a nature that all the parts of the Hydraulic pressure pump and its auxiliaries had to be dismantled completely for the precision inspection and checking. iv) The tank for the power unit and the motor coupling were broken and the piping arrangement to these units were to be made again. It is craved that the contents of letter dt. June 21, 1966, issued by Mitsubishi Shoji Kaisha Ltd. along with the recommendations be referred to and be read as forming part of this paragraph. The same has not been repeated for the sake of brevity. " ( 12 ) LASTLY, the bill of the repairer, Ex. R1, indicates the extent of damage when it claims to have repaired the machine. This is how the 13 items of repairs are listed in the documents : "1, Dismantling the Oil Tank Assembly and its allied components and reassembly of the same after rebuilding the new Oil Tank to the same specifications. 2. Straightening and putting in shape the platform by heat treatment with its brackets welding etc. over the Tank. 3. Painting the Tank and the platform. 4. Dismantling the entire Hydraulic system and Pump Assembly, cleaning, seating the valves, dehydrating pressure system pipes etc. 5. Straightening and aligning base carrier of the machine after deoxidising and polishing etc. 6. Shadow grinding of the Clamp Cylinder at MAMC Durgapur. 7. Transportation Expenses of the Clamp Cylinder along with our Engineers to MAMC Workshop Durgapur and back. 8. Straightening the Strain Rod after removing and dismantling the same and polishing. 9. 5. Straightening and aligning base carrier of the machine after deoxidising and polishing etc. 6. Shadow grinding of the Clamp Cylinder at MAMC Durgapur. 7. Transportation Expenses of the Clamp Cylinder along with our Engineers to MAMC Workshop Durgapur and back. 8. Straightening the Strain Rod after removing and dismantling the same and polishing. 9. Dismantling the entire Control Panel, rebuilding the cabinet circuits and supplying necessary relays, testing and calibrating the same for 115 KW as per the specifications of the original. 10. Dismantling Transmission Injection Cylinder, calibrating the injecting system, derusting transmission box etc. straightening handles and supplying knobs etc. 11. Dismantling complete Machine from all the parts from top to bottom, derusting the same, checking for damages and alignment etc. and reassembling. 12. Our charges for supervision, Technical knowhow etc. and putting the Machine in proper working order after necessary repairs and testing etc. 13. Painting the entire Machine to its original paint. " ( 13 ) THE bill, Ex. Rl, could form a legitimate basis for any finding as to the extent of damage if it is eventually held that the repair was in fact carried out and payment made to the repairer as claimed by the Company, I would, therefore, ignore the bill for the present. The other material on the record clearly establishes that there was considerable external damage to the machine by the impact which even according to the manufacturers, exporters and the Indian agents must have caused "substantial damage" to the machine at least to the extent clearly conceded by the survey report and confirmed in the recommendations of the exporters themselves. it is, therefore, safe to hold that the accident -caused substantial external, as well as, internal damage to the machine on the respondent s own showing, ignoring for the present not only the bill of the repairer but also the affidavit of the former managing director. I have, therefore, no hesitation in holding on this material that the accident caused substantial damage to the machine, both external and internal, and whether the internal damage was tothe extent claimed by the Company, on the basis of the repairer s bill, would depend on how the Court looks at the second question, namely, whether the repair was in fact carried out or it was a made-up affairs. ( 14 ) THAT brings me to the second question as to the repair that may have been carried out and whether the payments were in fact made to the repairer by the Company, as claimed by it. On the question of repair, we have the affidavit of the former managing director that after the estimate was submitted, the work of repair was entrusted to Standard Steel Works, that the repair work was carried out by the Standard Steel Works, and the repairer was paid a total sum of Rs. 95,450. 00 by two payments of Rs. 25,000. 00 by way of advance and Rs. 70,450. 00 against the Bill. According to the books oi accounts of the Company, the first payment of Rs. 25,000. 00 was made by way of advance to the repairer on April 26, 1969 and the last payment of Rs. 70,450. 00 was paid on June 2, 1969 in full settlement of the repairers bill, Ex. R1. These two entries appear on page 159 of the ledger of the Company in the account of Standard Steei Works. The repairer is said to have acknowledged payment of these two amounts by two separate receipts purporting to have been signed by its partner, Jaswant Singh. Document marked x is a receipt for Rs. 25,000. 00 and is in the printed receipt book of the Standard Steei Works. Document marked y is the second receipt for Rs. 70,450. 00 and is also on the printed receipt of the repairer. The first one bears the serial No. 406 and is of April 26, 1969, while the second bears serial No. 423 and is of June 2, 1969. These are proved by the former managing director and were enclosed with his affidavit of September 5, 1981. He also identified the signatures of Jaswant Singh on both the receipts. He, however, admitted that both the payments were made in cash to him. ( 15 ) DOUBT was, however, sought to be cast on the transaction of repair and of the alleged payment to Standard Steel Works on behalf oi the respondents with reference to a number of suspicious circumstances- In the first instance, it was urged that it was rather unusual for a joint stock company to have paid a substantial amount of Rs. 95,450. 00 by cash. 95,450. 00 by cash. This was sought to be reinforced with reference to a patent fact that on these dates, the Company did not have that much of cash in hand and both on the date on which the first payment was made and the date on which the second payment was made, cash was supposed to have been received by the Company, according to its books of accounts, from "raja Jeera and Company", which corresponded to the exact amount said to have been paid to the repairer. The former managing director, however, was not cross-examined as to the source of the funds. It certainly appears unusual that such large amount should have been paid by cash but that by itself, would not be sufficient to justify the conclusion that the repair and the payment was a "made-up affair . The role of black-money is a little too well known in the Indian economy. If the repairer insisted on cash payment, the Company would have paid in ordinary course of business, particularly, where a duly signed bill had been given to the Company, the stamped receipt had been executed and the Company made entries in its books of accounts with regard to the payments. Secondly, it was urged that Jaswant Singh the proprietor or partner of Standard Steel Works has in his declaration, Ex. RW 3/1, categorically stated that the repair carried out by him to the machine was only "for Rs. 9,545. 00 out of which a sum of Rs. 2,500. 00 was paid by cheque and the cheque for the balance of Rs. 7,045. 00 bounced. The declaration further states that the only repairs were to the "hydraulic system pipes" and the "heating cylinders". According to the declaration, the managing director of the Company approached him saying that he had "carried out most of the repairs to the machine himself at his New India Motors factory but required the repairer s bill for adjustment in his books and collected from Jaswant Singh "blank letter-head forms" duly signed by him for the purpose. He further stated in the affidavit that he never carried out any repair or gave any bill of Rs. 95,450. 00 and he had not been supplied copy of the bill for Rs. 95,450. He further stated in the affidavit that he never carried out any repair or gave any bill of Rs. 95,450. 00 and he had not been supplied copy of the bill for Rs. 95,450. This declaration is, no doubt, damaging to the case sought to be set up by the Company, but, unfortunately, for the respondents, the authenticity of this declaration itself is in doubt. It purports to have been signed by Jaswant Singh but according to the Notary Public, who was examined as RW 3, he did not know Jaswant Singh personally and he attested the declaration on being satisfied about the identity of the deponent but without any identification by anyone also and without the deponent showing any document to establish his identity. He admittedly had never dealt with the deponent earlier and could not attest to his identity. He further stated that the attestation was based on the Notary s "belief that he was the person he purported to be because he gave all his particulars" and that, according to the Notary, was "enough under the Rules". The Notary was unable to describe the deponent. Jaswant Singh is stated to have since died and was, therefore, not available at the trial. Nobody else was produced to identify the signature of Jaswant Singh on the declaration or to establish the identity of the person, who may have signed the declaration, before the Notary. No reliance could, therefore, be placed on the declaration. ( 16 ) THERE is, however, an interesting circumstance which lends support to the contention of the respondents. I called for the records of the Company and found that there were two vouchers in respect of payment of Rs. 2500. 00 and Rs. 7045. 00 by cheque answering to the description of the cheques given in the declaration. These vouchers indicated that these paymentshad been made by the Compapy to Standard Steel Works. It was also confirmed that the second cheque of Rs. 7045. 00 had also bounced, as claimed in the declaration. These documents were, no doubt, not available at the trial and, therefore, there was no occasion for the Company to give any explanation nor were these documents available when K. C. Jain was cross-examined. I, however, gave time to the Counsel for the Company to say if he had any explanation with regard to this circumstance. These documents were, no doubt, not available at the trial and, therefore, there was no occasion for the Company to give any explanation nor were these documents available when K. C. Jain was cross-examined. I, however, gave time to the Counsel for the Company to say if he had any explanation with regard to this circumstance. All the Counsel could say was that these two payments "perhaps" related to some earlier transaction between the Company and Standard Steel Works but there was no support for this contention. The timing of these two payments, the amounts involved and the fact that the second cheque bounced clearly support the contention of the respondents, even if the declaration is ignored. Thirdly, it was urged on the basis of the affidavit of A. Kumar of the Indian agent that he carried out an inspection of the machine subsequent to the alleged repair and from his observation of the state of the machine, it was clear that the machine had never been opened because the nuts and the bolts did not contain any evidence of its opening and the external part of the machine contained traces of rust at a number of places which indicated that the machine had in fact never been opened for the purpose of repair, He further stated in his affidavit that the physical damage to the external part of the machine had not been attended to. He also claimed that he made some investigation with regard to the alleged repair and was satisfied that this was a "made-up affair". According to him, he required the former managing director to show the vouchers in respect of the payment by the Company to Standard Steel Works and the books of account of the Company showing entries in respect of the payments to attest to the genuineness of the bill said to have been issued by Standard Steel Works but the former managing director informed him that vouchers and books of accounts were not readily available in his office and that he would be able to show these to the deponent if lie called up a few days later. According to him, he visited the office of the company again and was shown two receipts marked x and y and according to him, on a careful perusal of the receipts, there were "discrepancies in the signature of Jaswant Singh on the two receipts and the bill". He also suspected that cash payment of such a large amount would not have ordinarily been made by a Company and he, therefore, claimed to nave asked the former managing director to produce die entries in respect of those payments but the former managing director told him that the books of accounts were not available in his office as the same had been sent to the auditors. When he suggested that the books of accounts be sent for from the office of the auditors, the deponent claims that he was told that the auditors could not be contacted as their office has since closed down, "although it was not 5 p. m. by that time . He further claims that being thus dissatisfied with the genuineness of the claim regarding repair, he proceeded to contact Jaswant Singh of Standard Steel Works and visited his workshop in the company of one R. S. Rosha but Jaswant Singh was not available in the workshop as he was stated to have gone out of station. It is further claimed by the deponent that it was agreed between him and Mr. Rosha that on Mr. Jaswant Singh s return to New Delhi, Rosha would obtain from Jaswant Singh an affidavit testifying as to the exact circumstances under which the bill of Rs. 95,450. 00 was prepared by him and the two receipts were issued to the Company. The declaration, Ex. RW3/1, is said to be the affidavit obtained from Jaswant Singh by Mr. Rosha. It is further claimed by the deponent that the bill for Rs. 35,000. 00 for the alleged transportation of the machine from the factory of the Company to the workshop of the repairer must also be fictitious because no repairs had been attended to and effected and further enquiries revealed that Messrs. New India Motors was an "associate company" of the Company and both the companies had their office in the same "premises" with a common telephone. New India Motors was an "associate company" of the Company and both the companies had their office in the same "premises" with a common telephone. A number of allegations were made against the deponent, as also R. S. Rosha, and as to the veracity of their claim that they had carried out any investigation but it was not disputed that New India Motors was a sister concern of the Company and both the Companies were located in the same premises and were interconnected. Another circumstance which is of some significance is that the repairs, said to have been carried out according to the declaration of Jaswant Singh, were for Rs. 9,545. 00, which is exactly 10% of the bill of Rs. 95,450. 00. Lastly, no reliance could be placed on the writing or word of Jaswant Singh who, on his own showing agreed to give the letter-heads duly signed and gave the declaration readily. He was quite capable of obliging either party. I won t say more about him. He is no more. ( 17 ) HAVING regard to the aforesaid material, I have no hesitation in holding that, although some repair was carried out to the machine by Standard Steel Works and some further repair may have been carried out to it by the Companion its own, it is not possible to accept the contention of the Company that substantial repair, in terms of the bill (R1), could have been carried out to the machine and it is doubtful if the payment of Rs. 95,450. 00 had been made to the said repairer, as claimed by the Company, even though it cannot be denied that even in terms of the declaration, whatever be its worth, a sum of Rs. 9,545. 00 was to be paid to the repairer out of which Rs. 2500. 00 had certainly been paid, although the other cheque for Rs. 7045. 00 had bounced. ( 18 ) BUT this finding would not, to my mind, disentitle the Company to the compensation claimed by it. The Company is certainly entitled to compensation for the damage caused to the machine. The machine was admittedly damaged. Some repairwas admittedly carried out by Standard Steel Works but the entitlement to compensation is not necessarily dependent on the extent of repair or the payment that may have been made for it. The Company is certainly entitled to compensation for the damage caused to the machine. The machine was admittedly damaged. Some repairwas admittedly carried out by Standard Steel Works but the entitlement to compensation is not necessarily dependent on the extent of repair or the payment that may have been made for it. The payment for repair is only a measure of compensation. If the machine had in fact been damaged, as is admitted, and the damage was also admitted to be "substantial", the Company would certainly be entitled to substantial compensation. The actual cost of repair is only one of the measures, and not the only one. It was not disputed that the manufacturers and the exporters preferred the shipment of the machine to Japan, to be reshipped after repair. It was not disputed that if the machine had been shipped back to Japan and reshiped to India, after the necessary repairs had been carried out at the Works of the manufacturers, the total cost, which also would eventually have to be paid by the Insurers, would have far exceeded the claim made by the Company. By undertaking to have the repairs carried out in India or by using the machine, as it is, without substantial repair, the Company did not waive its right to compensation on account of the substantial damage caused to the machine. By agreeing to the suggestion of the Company, that instead of sending the machine to Japan for repair, the Company may be allowed to have the necessary repairs carried out in India, the manufacturers and the exporters, as indeed, the insurers had saved, if nothing more, at least the cost of shipment of the machine to Japan and back. If that be so, I do not see why the present claim of the Company should not succeed. ( 19 ) IT was not disputed that if the claim of the Company must succeed, the Company would also be entitled to interest on the amount claimed by it for the entire period from Nov. 6, 1969 to the date of the petition. The Company would, therefore, be entitled to interest for the said period on the amount besides reasonable interest pendente lite and future interest at reasonable rate until the date of payment. ( 20 ) NO arguments were addressed as to the liability of respondent 2, the Indian agents. 6, 1969 to the date of the petition. The Company would, therefore, be entitled to interest for the said period on the amount besides reasonable interest pendente lite and future interest at reasonable rate until the date of payment. ( 20 ) NO arguments were addressed as to the liability of respondent 2, the Indian agents. The agent of a foreign principal is liable only if the principal cannot be sued or is not available. Claim has been filed against the principal, the insurers and the insurers submitted to the jurisdiction of this Court. The Indian agents would, therefore, not be liable to the Company. ( 21 ) IN the result, the claim of the Company against the insurers is decreed to the extent of Rs. 99,177. 00. The Company would also be entitled to interest at the rate of 10% p. a. from Nov. 6, 1969 to Dec. 31, 1977. The Company would also be entitled to interest at 6% p. a. pendente lite, and future interest at the said rate till the date of payment. The Company would also be entitled to costs. Counsel s fee is assessed at Rs. 2500. 00. The payment order in favour of the Company against respondent 1 would issue in these terms. The claim fails against the Indian agents and is accordingly dismissed but without costs.