Gujarat High Court
National vs Jatnadevi on 4 July, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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FA/1855/2011 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1855 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE R.M.CHHAYA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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NATIONAL
AVIATION COMPANY OF INDIA LTD - Appellant(s)
Versus
JATNADEVI
TEJRAJ JAIN WD/O LATE TEJRAJ CHHOGALAL JAIN & 7 - Defendant(s)
=========================================================
Appearance :
MR
GN SHAH for
Appellant(s) : 1,
None for Defendant(s) : 1 - 7.
MR
CHETAN PANDYA for S.V.RAJU ASSOCIATES-
for Defendant(s) :
8,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 04/07/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) Leave to amend by adding the description of appellant as now "Air India Ltd."
The present appeal arises against the judgement and decree passed by the Trial Court dated 24.09.2009, whereby the compensation of Rs.7,80,825/- with interest at the rate of 9% p.a. is ordered to be paid.
The relevant facts are that the deceased Tejraj Jain was travelling from Bombay to Ahmedabad on 19.10.1988 by Indian Airlines run by defendant No.2. The said flight met with an accident near Ahmedabad and all five persons on Board of the said flight died on the spot. Late Tejraj Jain was amongst the said passengers who died in the said accident. Soon after the accident, the Indian Airlines Corporation ("IAC" for short) authorities asked the legal heirs of the deceased (original plaintiffs) to supply information and draw the claim and the same was processed and IAC offered to pay the sum of Rs.2 lakh to the plaintiffs towards the death of the deceased as full and final settlement. The plaintiffs suggested that the sum of Rs.2 lakh should be paid on account of their claim for compensation subject to final decision by the competent court. As the same was not acceptable, ultimately the plaintiffs refused to pass full and final discharge receipt and refused to accept the amount which was offered to them.
It appears that thereafter, legal heirs of the deceased together with the other claimants or their legal representatives/claimants preferred Special Civil Applications No.8678/89, 8514/89 and 371/89 before this Court for recovery of damages as well as for challenging the constitutional validity of certain provisions of the Carriage by Air Act, 1972 (hereinafter referred to as "the Act"). Those petitions ultimately vide order dated 16.07.2003 were converted into Civil Suits for claim of compensation under the Act and they were returned to the petitioners therein for presentation to the Civil Court. The Civil Court was also directed to decide the same preferably within a period of six months. It appears that thereafter, out of those proceedings one was numbered as Civil Suit No.2235/03. The learned Civil Judge at the conclusion of the suit passed the aforesaid judgement and award which is impugned in the present appeal by the appellant who was original defendant no.2.
We have heard Mr.Mihir Joshi with Ms. Minu Shah for Mr.G.N.Shah for the appellant and Mr.Chetan Pandya for S.V. Raju Associates for respondent No.8 upon the advance copy.
We may record that on the aspect of liability to pay the compensation, the issue as such is already covered by the decision of this Court in the case of Airport Authority of India V.Ushaben Shirishbhai Shah reported at 2010(1) GLR 321, since all those appeals had arisen from the very accident and the Civil Suits were filed by the dependent members of the family of the deceased for compensation. As such, the reasons recorded by the lower court in the impugned judgement shows that the learned Judge has adopted the same reasoning as was considered and examined and decided in the aforesaid suit and the decree passed therein which came to be confirmed by this Court in the above referred decision in the case of Airport Authority of India (supra).
Even Mr.Joshi, learned counsel appearing for the appellant has not been able to show any distinguishing aspect on merits to the extent of liability, save and except that as per his contention, against the decision of this court in the case of Airport Authority of India (supra), the matter is carried before the Apex Court and the same is pending. But, he additionally raised the issue of limitation which in his submission was not in the earlier suit which came to be decided by the Civil Court and confirmed by this Court in Airport Authority of India (supra).
The learned counsel contended that merely because the writ proceedings were converted into civil suits, it could not be said that the question of limitation would automatically go away. He contended that when this Court passed the order on 16.07.2003 in Special Civil Application No.8678/89 and others, it had kept the question of limitation open. He submitted that the Civil Court has not examined the said aspect in detail. It was submitted that if the said question of limitation is considered as per the appellant, the suit could be said as barred by limitation inasmuch as the period of two years was over on the date when the civil suits were presented before the Civil Court for damages. In furtherance to his submission, he relied upon the provisions of the Act and Rule 30 of the second schedule. He therefore contended that there is an error committed by the lower court.
We may record that the basis of the contention of the learned counsel is Rule 30 of Second Schedule of the Act, which reads as under:
"30.(1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.(2)
The method of calculating the period of limitation shall be determined by the law of the Court seized of the case."
The aforesaid Rule provides that right to damages shall be extinguished if the action is not brought within two years from the date on which the aircraft ought to have arrived at or stopped. However, sub-rule (2) expressly provides that the calculation of the period of limitation shall be as per the method determined by the law of the Court seized with the case. Therefore, it is apparent that after applying the method as provided by the law of the Court, the period of 2 years is to be counted and thereafter, the right to damages shall get extinguished if the action is not brought within the said period of 2 years. The law of the Court seized with the case is the Limitation Act, 1963. Part III of the Limitation Act provides for computation of the period of limitation which can be said as at par with the method of calculation of the period of limitation. Section 14 of the Act provides for exclusion of the time of proceeding bonafide in court without jurisdiction. Therefore, while computing the period of limitation of two years, in our view, section 14 of the Limitation would apply. For ready reference section 14 of the Limitation Act reads as under:
"14.
Exclusion of time of proceeding bonafide in court without jurisdiction. -
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of the appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.(2)
In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a count of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3)Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court of other cause of a like nature.
Explanation
- For the purpose of this section, -
(a) In excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) Plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) Misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
Therefore, if the requirement of section 14 is satisfied, the said period has to be excluded while computing the total period of limitation which in the present case is two years as per the above referred Rule 30(1) read with sub-rule (2). It was not a case where the action was not taken within the period of two years, but was a case where the action for damages together with the constitutional validity of the provisions of the Act were taken by preferring writ petition. This Court in the order dated 16.07.2003, while issuing directions for conversion of the writ petition into Civil Suit, observed thus -
"Needless to reiterate that the claim of compensation arising out of Air, water or surface mishap is not only considered but it is characterized as a sensitive matter, requiring expeditious adjudication. The processual law is designed and aimed at making the litigation process and journey in a systematic manner and method. It is formalism. We cannot be oblivious of a hard reality that the processual law, unfortunately, in this country has over taken the substantive rights remedy from the substantive law emanated resulting into astronomical delay, high expenses apart from huge quantum of pain and strain on the litigant. It is the realism and not the formalism that should guide the conscious of the Judge in a sensitive matter like one on hand, when issue of compensation arising out of accident is made. It is in this context, we are very much convinced and inclined to accept the joint request of the petitioners for converting these writ petitions into Civil Suits for claim of compensation under the Carriage by Air Act, 1972, of course, with appropriate safeguard and requisite articulation that on the basis of this order, the petitions are directed to be converted into Civil Suits for the purpose of compensation under the Act and the same shall be returned to the respective petitioners or their advocates by the Registry. The parties shall present the same before the competent civil court within a period of one week from the date of receipt of the files for presentation before the competent Civil Court, with further direction and necessary observations that this order and consequential presentation shall be subject to the contentions raised in these petitions, and that may be raised thereafter including the questions of the period of limitation as the presentation of the files before the competent Civil Court shall be the day or date for institution of the Civil Suit under the Act for compensation as contemplated by the provisions of Section 9 of the Civil Procedure Code. It is further clarified that this order shall not in any way affect the rights and the contentions raised in this group of petitions and that may be raised further after the institution of the Suits upon presentation and the competent Civil Court shall deal with and adjudicate upon, in accordance with law including the issue of limitation with further direction that the competent Civil Court bearing in mind the sensitive matter and the factum of pendency before the High Court for more than 12 years and as far as possible shall accord top priority for entertaining and adjudcating all these three petitions, which are ordered to be converted into Civil Suits, as far as possible and preferably within a spell of 6 months from the date of receipt of these files."
The aforesaid makes it clear that it was the case comprising of the following features -
The writ petitions were filed where the question of vires of the Act was challenged. Therefore, at the time when the writ petitions were filed, the only Court which had jurisdiction to entertain the constitutional vires of the Act was this Court under Article 226.
It was not only for the prayer for challenging the vires of the Act, but the compensation was also prayed.
It is on account of the declaration made for not to press the vires of the Act, the right stood for claim of the damages only. This Court in the earlier portion of the aforesaid order had observed thus -
We are conscious of the fact that ordinarily in a petition, when disputed questions of facts have arisen and investigation of factual profile becomes indispensable, as it is seen in these three petitions, parties have to resolve to the civil remedy under the general Civil law.
In view of the said observation, ultimately, the above referred decision was taken to convert the writ petition into civil suit for compensation. Therefore, on account of the disputed questions of fact this Court found that the parties should resolve to the civil remedy under general civil law. Hence, it could not be said that the ingredients of section 14 of the Act would not apply to the proceedings of writ petition for exclusion of period of limitation.
The petitions thereafter were presented to the Civil Court in time.
The parties/original plaintiffs prosecuted the right in bonafide by the aforesaid writ petitions which ultimately came to be converted in the civil suits as per the above referred order.
Under the circumstances, in our considered opinion, we find that the requirement of section 14 of the Limitation Act is satisfied calling for the exclusion of the time during which the writ petition remained pending before this Court. Once, the said period is excluded, it is not even the case of the appellant that the period of two years would get expired when the Civil Court entertained the suit.
In view of the aforesaid observations, we find that if the method of computation of the period of limitation as per the Limitation Act is considered by applying sub-rule (2) of rule 30 and thereafter, the period of two years is counted as provided in sub-rule (1) of rule 30 of the above referred rules, it cannot be said that the period of limitation was over or that the suit was barred by limitation.
The learned counsel for the appellant wanted to rely upon various decisions for showing that once the right is extinguished by specific provision of any statute, the Court will have no jurisdiction to entertain the claim. He also submitted that the provisions of Limitation Act may by express or implied language particularly language of the statute may get excluded.
In our view, if the contention of the learned counsel for the appellant is considered and examined as it is by relying upon the provisions of Rule 30 of second schedule, it is clear that the period of two years has been expressly provided and the method of calculation is to be made as per the Limitation Act. Therefore, as observed earlier, the period of two years was not over, the question of extinguishment of right would hardly arise and hence, the decision upon which the reliance is placed by the learned counsel are on a wrong premise that the rights were extinguished and therefore, cannot be made applicable to the facts of the present case.
We may record that the learned judge has referred to the aspect of limitation at para 3 of the impugned judgement under sub-para 2. There is reference to the application Exhibits 30 and 34, earlier preferred by the respondents for deciding the question of limitation as the preliminary issue and the order passed below the same, whereby the applications came to be rejected. It is true that thereafter, there is no further examination in the impugned judgement by the learned judge, but we find that the present appeal being a continuous proceeding of the Civil Suit, even if the question of limitation was to be considered and is considered, in view of the reasons recorded hereinabove, it could not be said that the suit was barred in view of Rule 30 of schedule 2 of the Act. Under the circumstances, we find that the said contention even if examined on merits, deserves to be rejected and no useful purpose would be served in examining the appeal on the premise that the Trial Court did not discuss the same in detail. Under the circumstances, we find that the contention of the learned counsel as sought to be canvassed, cannot be accepted. Hence, rejected.
In view of the aforesaid, coupled with the circumstances that on merits on the aspects of liability to pay compensation are already covered by the decision of this Court in the case of Airport Authority of India (supra), the appeal is meritless. Hence, the same is dismissed.
(JAYANT PATEL, J.) (R.M. CHHAYA, J.) *bjoy Top