Kerala High Court
Eliamma Simon vs Seven Seas Transportation Ltd. on 4 January, 2002
Equivalent citations: AIR2002KER219, AIR 2002 KERALA 219, ILR(KER) 2002 (1) KER 246, (2003) 1 LANDLR 256, (2002) 1 CIVILCOURTC 673, (2002) 1 KER LJ 117, (2002) 1 KER LT 403
Author: K.K. Denesan
Bench: K.K. Denesan
JUDGMENT K.K. Denesan, J.
1. Widow and minor child of one Mr. Simon Joseph who was employed by the first defendant as a sea-man filed O.S. No. 68 of 1986 in the Sub Court, Kochi claiming compensation of Rs. 1,50,000/- from defendant 1 to 3 on the allegation that Simon Joseph was missing from the vessel 'm.v. Satya Kailash' owing to the wanton acts and gross negligence of the first defendant and its employees.
2. The first defendant denied liability to pay the compensation claimed by the plaintiffs. In the written statement it is contended, inter alia, that the suit is barred by limitation.
3. The Court below found merit in the contentions of the defendants and dismissed the suit. Aggrieved, the plaintiffs have come up in appeal.
4. According to the plaint averments, the facts that Simon Joseph was found missing from 25.5.1974 was communicated by the first respondent to the fourth respondent - father of Simon Joseph - by letter dated 22.6.1974. This is the last information about Simon Joseph and since he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, he must be presumed to be dead. The unfortunate event happened due to the wanton acts and negligence of the first defendant and its employees and therefore they are liable to compensate the plaintiffs.
5. The plea of limitation raised by the first defendant arises out of the fact that the missing of Simon Joseph from 25.5.1974 was communicated by letter dated 22.6.1974 to his legal heir and father and the time for filing the suit shall run from that date. It is contended that a suit for compensation in order to be within the time prescribed under Article 72 of the Limitation Act ought to be filed within one year from the date of the cause of action, namely, the missing of Simon Joseph allegedly due to the wanton acts of the first defendant. The plaintiffs filed the suit in 1982 only; far beyond the time prescribed therefor. First defendant contends that the suit cannot be salvaged under Article 82 of the Limitation Act as well. The period prescribed therein is two years from the date of death. No evidence is available to prove the date of the alleged death of Simon Joseph. Unless the date of death is known, it will not be possible to say when does the cause of action for the purpose of Article 82 arise; and consequently the computation of the period under that Article also becomes impossible.
6. Dr. P.S. Krishna Pillai, learned counsel appearing for the appellants submits that since Simon Joseph has not been heard of for seven years from 1974 he should be presumed to have dead as per Section 108 of the Evidence Act. According to the counsel, the cause of action has arisen immediately after the expiry of seven years from the date of missing, that means, the cause of action arose only in 1981 and hence the suit that was filed in 1982 is within the period of limitation.
7. We are afraid, we cannot agree with the submission of the appellant's counsel. In our opinion, there is a fallacy in the argument advanced on the basis of Section 108 of the Evidence Act. The date of expiry of seven years mentioned in that Section cannot be understood as the date of death of the person who has not been heard of during the period of seven years. It is true that Section 108 enables the courts under the circumstances stated therein to draw the statutory presumption that a man is not alive unless the contrary is proved by the opposite party. But that does not mean that Section 108 can be called in aid to establish to exact date of death of the person. The date of death has to be proved in the same manner as any other fact is proved.
8. A Full Bench of this Court in Appula Vadhayar v. Venketeswara Vadhyaro (1970) KLT 976) after a detailed analysis of the relevant case law, both Indian and English, laid down the law thus: "The date of death has therefore to be proved as any other fact by the person on whom the burden lies to establish the said death. The exact time of death is not a matter of presumption". The above principle laid down by the Full Bench of this Court has stood the test of time.
9. In N. Jayalakshmi Anmmal v. Gopala Pathar (AIR 1995 SC 995) Supreme Court considered the effect of Section 108 of the Evidence Act and quoted with approval the following passage from Sarkar on Evidence, 14th Edn., at page 1438:
"If a person is not heard of for seven years there is a presumption of the fact of death at the expiration of seven years, but the exact time of death is not a matter of presumption but of evidence and the onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. There is no presumption that death took place.
10. Our attention is invited by the counsel for the appellant to the decision of Padmanabhan, J. in Bhargavi Amma v. Bhaskara Pillai (1988 (2) KLT 537) to canvas for the proposition that when Section 108 of the Evidence Act permits a presumption of death of the expiry of the period of seven years, it is legitimate to presume that the date which follows the expiry of seven years should be deemed to be the date of death. We have perused the judgment of Bhargavi Amma's case, but do not find anything therein to support to contention of the learned counsel. The learned Judge has not said anything contrary to what the Full Bench of this Court said in 1970 KLT 976 or the Supreme Court in AIR 1995 SC 995. Dealing with the scope of Sections 107 and 108 of the Evidence Act, the learned Judge has said in Bhargavi Amma that those "two sections do not prove life or death or their existence or happenings on any particular day. They only raise presumptions either way for the purpose of shifting burden to deal with the procedure to be followed".
11. In the light of the aforesaid pronouncements on the scope of the presumption available under Section 108 of the Evidence Act, it is not necessary for us to labour much on that aspect of the matter. Suffice it to say that the contention of the appellant that proof regarding the existence of facts necessary to attract the presumption under Section 108 of the Evidence Act does not automatically give rise to a presumption as to the exact date of death of the missing man. We reject the contention that the court should presume the date of death of Simon Joseph as the date that immediately followed the lapse of seven years from the date of his disappearance.
12. Now coming to the application of Article 72 of the Limitation Act we notice that the period of limitation of file a suit for compensation is one year from the date of the act or the omission. In this case the act or omission which gave rise to the claim for compensation and referred to in Article 72 of the Limitation Act occurred on 25.5.1974 and the plaintiffs got knowledge of it on 22.6.1974. The suit was filed on 25.11.1982, that is, after the lapse of more than 8 years. Undoubtedly, the time available under Article 72 of the Limitation Act has already run out.
13. We see no error in the finding of the Court below that the suit was barred by limitation. The appeal fails and it is accordingly dismissed. However, in the circumstances of the case, without any order as to costs.