Karnataka High Court
Executive Engieer (Ele) vs Smt D.C.Bhagya on 17 February, 2020
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE P.G.M. PATIL
R.F.A. No.493/2019 (MON)
BETWEEN:
1. EXECUTIVE ENGIEER (ELE),
CHAMUNDESWARI ELECTRICITY
SUPPLY CORPORATION LTD.,
MANDYA DIVISION,
MANDYA - 571 430.
2. THE ASSISTANT ENGINEER (ELE),
CHAMUNDESWARI ELECTRICITY
SUPPLY CORPORATION LTD.,
MANDYA,
MANDYA DISTRICT - 571 430. ... APPELLANTS
(BY SRI H.V. DEVARAJU, ADVOCATE)
AND:
1. SMT. D.C. BHAGYA
W/O. LATE NARASIMHEGOWDA,
PRESENTLY AGED ABOUT 37 YEARS,
2. J.S. BHANUPRIYA
D/O. LATE NARASIMHEGOWDA,
PRESENTLY AGED ABOUT 10 YEARS,
SINCE MINOR REPRESENTED BY
HER NATURAL GUARDIAN AND
MOTHER OF 1ST RESPONDENT.
THE RESPONDENTS 1 & 2 ARE
R/AT DODDAGARUDANAHALLI VILLAGE,
BASARALU HOBLI,
MANDYA TALUK,
MANDYA DISTRICT - 571 430. ... RESPONDENTS
(BY SRI GIRISH B. BALADARE, ADVOCATE FOR R-1;
R-2 AND R-3 ARE MINORS REP. BY R-1)
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THIS RFA IS FILED UNDER SECTION 96 OF THE CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 29.09.2018
PASSED IN O.S.NO.81/2017 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, MANDYA, PARTLY DECREEING
THE SUIT FOR DAMAGES/COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., MADE THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The defendants in O.S.No.81/2017 have filed this appeal, being aggrieved by the judgment and decree dated 29/09/2018, passed by the I Addl. Senior Civil Judge & CJM, Mandya.
3. For the sake of convenience, the parties shall be referred to in terms of their ranking and status before the trial Court.
4. The respondents/claimants, being the widow and daughter of deceased Narasimhegowda, filed the aforesaid suit claiming compensation on account of death of Narasimhegowda due to electrocution. They had filed P.Misc.No.6/2014 seeking leave to sue as indigent persons, invoking Order XXXIII Rule 1 of the Code of Civil Procedure, 1908 (CPC). After an enquiry being held, on a -: 3 :- report being sought from the District Administration, the trial Court on 29/06/2017 allowing the said P.Misc., ordered that they were entitled to maintain the suit under Order XXXIII Rule 1 of the CPC and they were permitted to prosecute the suit as indigent persons. Thereafter, suit bearing O.S.No.81/2017 was registered on 27/07/2017 and suit summons was issued to the defendants.
5. It is the case of the plaintiffs/claimants that Narasimhegowda, on the fateful day i.e., on 16/08/2011, at about 8.45 a.m., was proceeding to his land situated adjacent to the V.C.Channel off Mandya-Nagamangala Road, so as to irrigate his lands. There was a 9 mtrs. JOS of RCC by the side of the road and a jump wire being cut had fallen live on the land. Narasimhegowda slipped and when he held the handle to the rod of the JOS, he died of electrocution. That the wires carrying high voltage and electric poles were forty years old and were required to be changed, but were not changed. That there was no proper grounding so as to insulate the conduction of electricity. Hence, there was negligence on the part of defendant No.1 resulting in electrocution of Narasimhegowda and an accidental death. A case of unnatural death was registered in Cr.No.10/2011 and autopsy was also conducted on the -: 4 :- dead body. It was reported that the deceased had died on account of electrocution. Plaintiffs filed the suit claiming compensation on account of the death of Narasimhegowda and that they spent huge sums towards funeral expenses and they had lost an earning member of the family and they had no source of income and they were in mental agony and penury.
6. In response to the suit summons and Court notices, the defendants appeared and filed their written statement contending that there was no negligence on the part of the defendants and that the deceased was responsible for his death. That he had contributed to the accident. That a sum of Rs.1.00 lakh ex-gratia payment has been made to the legal representatives of the deceased.
7. On the basis of the rival pleadings, the trial Court formulated the following issues for its consideration:
(i) Whether the plaintiffs prove that on 16/08/2011 at about 08.45 a.m. when the deceased G.S.Narasimhegowda was going towards his lands at Doddagarudanahalli through Mandya-Nagamangala Road near V.C.Canal a live electric wire was on the ground to which the deceased had come in contact with and had sustained burn injuries -: 5 :- on account or electrocution and thereafter succumbed to those injuries?
(ii) Whether the plaintiffs also prove that the defendants were negligent in having left the live wire on road causing the electrostroke?
(iii) Whether the plaintiffs are entitled to the compensation?
(iv) What order or decree?
8. In order to substantiate their case, plaintiff No.1 got herself examined as PW.1 and she produced seven documents, which were marked as Exs.P-1 to P-7, while defendant No.1 was examined as DW.1 and he produced one document, which was marked as Ex.D-1. On the basis of the evidence on record, the trial Court answered issue Nos.1 and 2 in the affirmative, issue No.3 partly in the affirmative and decreed the suit in part with costs on 29/09/2018, awarding compensation of Rs.14,40,000/- with interest at the rate of 15% per annum to the plaintiffs after setting off Rs.1.00 lakh, which was paid ex-gratia to the plaintiffs. The trial Court also apportioned the said compensation between the plaintiffs and a direction was issued to draw up a decree accordingly. Being aggrieved by the judgment and decree of the trial Court, the defendants have preferred this appeal.-: 6 :-
9. We have heard learned counsel for the appellants, Sri H.V.Devaraju, and learned counsel, Sri Girish B.Baladare for respondent Nos.1 and 2 and perused the material on record.
10. Appellants' counsel has made a two-fold contention: firstly, he submitted that the suit filed by the respondents/plaintiffs was not maintainable as it was barred by limitation. He submitted that the death of Narasimhegowda was on 16/08/2011 on account of electrocution, but the suit in P.Misc.No.6/2014 was filed on 27/07/2017. That as per Article 82 of the Limitation Act, 1963 (hereinafter referred to as "the Act" for the sake of brevity) the prescribed period of limitation is two years from the date of death of the person when the suit is filed by the executors, administrators or representatives under the Indian Fatal Accidents Act, 1855 (13 of 1855), but in the instant case, the suit has been filed beyond the prescribed period of two years on 27/07/2017. Hence, the suit had to be dismissed on the ground of limitation as being barred by law. Instead, the trial Court entertained the suit, recorded evidence and awarded compensation of Rs.14,40,000/- with interest at 15% per annum (by setting off Rs.1.00 lakh, which was paid ex-gratia to the -: 7 :- respondents). He submitted that the impugned judgment and decree of the trial Court may be set aside as the suit was not maintainable as being barred by limitation.
11. The second submission of learned counsel for the appellants was that the quantum of compensation awarded was exorbitant. He contended that the deceased was an agriculturist, but the trial Court assessed his notional income at Rs.8,000/- per month, which is on the higher side. Further, the grant of interest at 15% per annum is exorbitant. Therefore, the compensation awarded may be scaled down, in the event this Court is to conclude that the suit was maintainable by modifying the judgment and decree of the trial Court by allowing the appeal.
12. Per contra, learned counsel for the respondents/claimants supported the impugned judgment and decree and he contended that Article 82 of the Act is not applicable to the instant case. That the suit was filed in terms of Section 9 of the Code of Civil Procedure Code, 1908 (CPC) and not under the provisions of the Fatal Accidents Act, 1855. That if the suit is filed under the said Act, then the limitation period is two years and Article 82 of the Act would apply. But in the instant case, the suit was filed by the plaintiffs as per common law, which was -: 8 :- invoked by them and hence, Article 82 of the Act is not applicable.
13. He further contended that the award of compensation is just and proper as the appellants were negligent in causing the death of Narasimhegowda and that the wires in the electric poles were not in good maintenance and that a live wire had fallen on the land, which is an omission on the part of the appellants/defendants with regard to repair and maintenance and which resulted in the death of Narasimhegowda. Hence, the compensation awarded is not unreasonable nor it is exorbitant or excessive. There is no merit in the appeal and therefore, the appeal may be dismissed.
14. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(i) Whether the trial Court was right in entertaining the suit by not applying Article 82 of the Act?
(ii) Whether the award of compensation of Rs.14,40,000/- with interest at 15% per annum by setting off Rs.1.00 lakh in the instant case was just and proper?
(iii) What order?
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15. The fact that Narasimhegowda died on account of electrocution and due to the negligence on the part of the appellants herein has been established by the respondents/plaintiffs. However, the controversy is with regard to the maintainability of the suit.
16. In this regard, learned counsel for the appellants contended that the suit was barred by time inasmuch as Article 82 of the Act applied and in the instant case, the death had occurred on 16/08/2011. That within a period of two years from that date, the suit had to be filed, but in the instant case, it was filed on 27/07/2017, which was beyond the period of two years and hence, the trial Court ought to have dismissed the suit.
17. The contention of learned counsel for the respondents/plaintiffs is that it is Article 113 of the Act, which applies and not Article 82 of the Act. That the suit was filed under common law, seeking compensation on account of negligence on the part of the appellants/defendants. There is specific limitation prescribed in Part VII which deals with suits relating to certain tort only. That Article 113 is in Part X, wherein the prescribed period of limitation is three years when no -: 10 :- specific limitation period is fixed and that in the instant case, the suit that was filed on 27/07/2017, which was within the said period of three years.
18. The rival contentions of the respective parties have been considered by us.
19. In order to appreciate the same, it would be useful to extract Articles 82 and 113 of the Schedule to the Act as under:
PART VII-- SUITS RELATING TO TORT Description of suit Period of Time from which period limitation Begins to run
82. By executors, Two years The date of the death of administrators or the person killed.
representatives under the Indian Fatal Accidents Act, 1855 (13 of 1855).
PART X - SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD Description of suit Period of Time from which period limitation Begins to run
113. Any suit for which Three When the right to sue no period of years accrues.
limitation is provided elsewhere in this Schedule.
On a reading of the same, it is clear that when a suit is filed under the Indian Fatal Accidents Act, 1855 by executors, administrators or representatives, then the limitation period is two years from the date of death of a -: 11 :- person. However, if a suit is filed de hors the said Act, there is no prescribed period of limitation under Part VII, which deals with suits relating to tort. We have closely perused Articles 72 to 91, and in none of the articles is there a reference to a suit filed seeking compensation on account of death de hors the Fatal Accidents Act, 1855, in other words, a suit being filed under common law to seek compensation on account of death of a person due to negligence on the part of the respondents and not by way of a statutory action. In the circumstances, Article 113 in Part X would apply as this is an omnibus article which is applicable to suits where there is no specifically prescribed period of limitation. Hence, in the instant case, when the suit was not filed under the provisions of the Fatal Accidents Act, 1855 and was filed for enforcing a common law right as per Section 9 of the CPC, there being no specific period of limitation fixed in Part VII of the Schedule to the Act, Article 113 would apply. The trial Court was justified in entertaining the suit as in the instant case, Narasimhegowda died on 16/08/2011, but the suit was filed on 08/08/2014, which was well within three years the period of limitation prescribed under Article 113 of the Schedule to the Act and also bearing in mind Sections 13 and 19 of the Act. Hence, point No.1 is answered in favour of respondents/plaintiffs and against the appellants. -: 12 :-
20. However, learned counsel for the defendants/appellants relied upon the judgment of Gauhati High Court in the case of Smt. Maya Rani Ghosh etc. vs. State of Tripura and others [AIR 2007 Gauhati 76]. We have perused the said judgment and we find that in the said judgment, the question was whether the suit filed under the Fatal Accidents Act, 1855, had to be filed before the jurisdictional trial Court or before the District Court by filing an application. It was held that, in the absence of special Court or Tribunal set up under the said Act, the suit had to be filed before the District Court and in terms of Article 82 of the Schedule to the Limitation Act, but in the instant case, the suit filed by the respondents/plaintiffs was not under the provisions of the Fatal Accidents Act, 1855 and hence, the said judgment is of no assistance to the appellants.
21. Similarly, the judgment of the Hon'ble Supreme Court, in the case of Damini and another vs. Managing Director, Jodhpur Vidyut Vitran Nigam Limited and another [Civil Appeal No.12851/2017], does not assist the appellants as in the said case also suit was filed under the provisions of the Fatal Accidents Act, 1855 and it was held that in such a case, Article 82 to the -: 13 :- Schedule of Limitation Act would apply and that the residuary article does not apply. As already noted in the instant case, the suit was not filed under the Fatal Accidents Act, 1855 and hence, Article 82 of the Schedule to the Limitation Act does not apply.
22. This takes us to the next point for consideration, which is, with regard to quantum of compensation awarded by the trial Court. In this regard, appellants' counsel contended that the award of Rs.14,40,000/- with interest at 15% per annum to the plaintiffs by setting off Rs.1.00 lakh paid ex-gratia is exorbitant. Of course, learned counsel for the respondents/plaintiffs has supported the said award. However, we have analyzed the award of said compensation in terms of what is granted under the provisions of the Motor Vehicles Act, 1988 with regard to death in respect of a road traffic accident, which would also occur on account of negligence. By way of an analogous application, the compensation has been re- computed by us.
23. It is noted that the deceased Narasimhegowda was aged forty years and he was an agriculturist and had his own lands. The accident had occurred on 16/08/2011 -: 14 :- and he had died on the same day. Since the death is of the year 2011, in order to assess the notional income of the deceased, in the absence of there being any categorical evidence in that regard, we have assessed the notional income at Rs.6,500/- per month. Since the deceased was forty years of age, 15 multiplier has been applied. Having regard to the latest dictum of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017)16 SCC 680 (Pranay Sethi), 40% of the notional income is added towards future prospects of the deceased, then the total would be Rs.6,500 + Rs.2,600 = Rs.9,100/- and 1/3rd of the said income is deducted towards personal expenses of the deceased having regard to the judgment of the Hon'ble Supreme Court in Sarla Verma vs. Delhi Transport Corporation [AIR 2009 SC 3104] (Sarla Verma). As a result, the amount would be Rs.6,066/-. The same has to be annualized and appropriate multiplier of '15' is applied, again having regard to the dictum of Hon'ble Supreme Court in the case of Sarla Verma (supra). Thus, the compensation on the head of loss of dependency would be Rs.9,100/- - 1/3rd = Rs.6,066 x 12 x 15 = Rs.10,91,880/-. To that, a sum of Rs.40,000/- is added towards 'loss of spousal consortium' -: 15 :- and a sum of Rs.30,000/- is towards 'loss of parental consortium' to the widow and minor daughter of Narasimhegowda respectively, having regard to the dictum in Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram and Others [2018 ACJ 2782 (SC)] (Magma General Insurance Company). In addition, a sum of Rs.15,000/- is awarded towards loss of estate and a sum of Rs.15,000/- is awarded towards funeral expenses having regard to the decision of Hon'ble Supreme Court in Pranay Sethi. Thus, the total compensation would be Rs.11,91,880/-. A sum of Rs.1.00 lakh which is awarded ex-gratia is deducted and the compensation is Rs.10,91,880/- instead of Rs.14,40,000/- as awarded by the trial Court. Further, the trial Court has awarded interest at the rate of 15% per annum on the said compensation, which we find is exorbitant and the same is scaled down to 9% per annum. Thus, the total compensation awarded is Rs.10,91,880/- with interest at the rate of 9% per annum from the date of filing of the suit till realization. Thus, point No.2 is answered partly in favour of the appellants.
24. The re-computed compensation shall be apportioned equally between the respondents/claimants. -: 16 :- The entire compensation awarded to the minor daughter shall be deposited in any post office or nationalized bank until she attains the age of majority. Out of the compensation apportioned to the widow of the deceased, 60% shall be deposited in any post office or nationalized bank for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The remaining compensation amount shall be released to her after due identification.
25. In the result, appeal is allowed in part in the aforesaid terms.
26. Parties to bear their respective costs.
27. The appellants shall deposit the compensation amount with upto date interest within a period of four weeks from the date of receipt of a copy of this judgment.
In view of disposal of the appeal, I.A.No.2/2019 stands disposed.
Sd/-
JUDGE Sd/-
JUDGE S*