Karnataka High Court
The Assistant Engineer (Ele) vs Smt Lakshmi @ Radha on 17 February, 2020
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
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.495/2019 (MON)
BETWEEN:
THE ASSISTANT ENGINEER (ELE),
CHAMUNDESWARI ELECTRICITY
SUPPLY CORPORATION,
MANDYA,
MANDYA DISTRICT - 571 430.
REPRESENTED BY MANJUNATH K.P. ... APPELLANT
(BY SRI H.V. DEVARAJU, ADVOCATE)
AND:
1. SMT. LAKSHMI @ RADHA
W/O. LATE M.J. SHEKAR,
PRESENTLY AGED ABOUT 33 YEARS,
2. CHETHAN GOWDA
S/O. LATE M.J. SHEKAR,
PRESENTLY AGED ABOUT 12 YEARS,
3. DHANUSH
S/O. LATE M.J. SHEKAR,
PRESENTLY AGED ABOUT 9 YEARS,
RESPONDENT NOS.2 & 3 ARE MINORS,
REPRESENTED BY THEIR NATURAL GUARDIAN
AND MOTHER OF 1ST RESPONDENT.
THE RESPONDENTS 1 TO 3 ARE
R/AT MAHADEVAPURA VILLAGE,
KASABA HOBLI,
SREERANGAPATNA 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)
-: 2 :-
THIS RFA IS FILED UNDER SECTION 96 OF THE CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 29.09.2018
PASSED IN O.S.NO.82/2017 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, MANDYA, PARTLY DECREEING
THE SUIT TO 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 defendant in O.S.No.82/2017 has 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 minor children of M.J.Shekar, filed the aforesaid suit claiming compensation on account of death of M.J.Shekar due to electrocution. They had filed P.Misc.No.8/2014 seeking leave to sue as indigent persons, invoking Order -: 3 :- XXXIII Rule 1 of the Code of Civil Procedure, 1908 (CPC). After an enquiry being held on a report being sought from the District Administration, the trial Court, on 29/06/2017, allowed the said P.Misc. and 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.82/2017 was registered on 27/07/2017 and suit summons was issued to the defendant.
5. It is the case of the plaintiffs/claimants that M.J.Shekar, on the fateful day i.e., on 24/05/2010, was attending nature's call near a tree adjacent to the paddy field of Pekkanaganna at Mahadevapura Village, Kasaba Hobli, Srirangapatna Taluk, at about 6.30 p.m. when he came in contact with a live wire and died on account of electrocution. That the wires carrying high voltage electricity and poles were forty years old and were required to be changed, but were not done so. That there was no proper grounding so as to insulate the conduction of electricity and lack of maintenance. Hence, there was negligence on the part of defendant resulting in electrocution of M.J.Shekar and a fatal accident. A case of unnatural death was registered in Cr.No.08/2011 and -: 4 :- autopsy was also conducted on the 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 M.J.Shekar and they had 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 defendant appeared and filed his written statement contending that there was no negligence on the part of the defendant 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 24/05/2010 at about 06.30 p.m., when the deceased M.J.Shekar was near canal passes near Pekkanaganna's land in Mahadevapura Village a live electric wire was passed through a tree and the wires were grounded to which the deceased had come in contact -: 5 :- with and had died due to cardio arrest as a result of electric shock?
(ii) Whether the plaintiffs also prove that the defendant was negligent in having left the live wire through a tree 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 examined herself as PW.1 and she produced seventeen documents, which were marked as Exs.P-1 to P-
17, while defendant 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.14,36,000/- 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 -: 6 :- accordingly. Being aggrieved by the judgment and decree of the trial Court, the defendant has preferred this appeal.
9. We have heard learned counsel for the appellant, Sri H.V.Devaraju, and learned counsel, Sri Girish B.Baladare for respondents and perused the material on record.
10. Appellant's 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 M.J.Shekar was on 24/05/2010 on account of electrocution, but the suit 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 had 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, -: 7 :- recorded evidence and awarded compensation of Rs.14,36,000/- with interest at 15% per annum by setting off Rs.1.00 lakh, which was paid ex-gratia to the 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 appellant 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 submitted that in the instant case, the date of death of M.J.Shekar occurred on 24/05/2010 and P.Mis.No.8/2014 dated 28/08/2014 was filed and allowed and suit was registered on 27/07/2017, which was -: 8 :- within the prescribed period of limitation having regard to Article 113 of the Schedule to the Act. This is because, Sections 13 and 19 of the Act would apply. That there was an acknowledgement of the liability and there was a payment made on 16/02/2012 to an extent of Rs.1.00 lakh. But not being satisfied with the ex-gratia payment of Rs.1.00 lakh, the respondents/claimants had preferred Writ Petition No.22816/2013 before this Court seeking a writ of mandamus to the appellants to consider their case for balance compensation and the writ petition was disposed 10/07/2013, but subsequently there was no consideration made and hence, the suit was filed on 27/07/2017 on P.Mis.No.8/2014 filed on 28/08/2014 being allowed. Learned counsel contended that if the limitation period of three years is to be computed from 16/02/2012 having regard to Section 19 of the Limitation Act and Section 13 of the said Act, then the suit filed is in time.
13. Further, learned counsel for the respondents/claimants supported the impugned judgment and decree and contended that Article 82 of the Act was 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 -: 9 :- Accidents Act, 1855, but if the suit is filed under the said Act, then the limitation period is two years and Article 82 of the Schedule to the Act would apply. But in the instant case, suit was filed by the plaintiffs as per common law, which was invoked by them and hence, Article 82 of the Act is not applicable.
14. He further contended that the award of compensation is just and proper as the appellant was negligent in causing the death of M.J.Shekar 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 appellant/defendant with regard to repair and maintenance and which resulted in the death of M.J.Shekar. 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.
15. 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?-: 10 :-
(ii) Whether the award of compensation of Rs.14,36,000/- with interest at 15% per annum by setting off Rs.1.00 lakh in the instant case was just and proper?
(iii) What order?
16. The fact that M.J.Shekar died on account of electrocution and due to the negligence on the part of the appellant herein has been established by the respondents/plaintiffs. However, the controversy is with regard to the maintainability of the suit.
17. In this regard, learned counsel for the appellant contended that the suit was barred by time inasmuch as Article 82 of the Act is applied and in the instant case, the death had occurred on 24/05/2010. 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.
18. 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 -: 11 :- was filed under common law, seeking compensation on account of negligence on the part of the appellant/defendant. There is specific limitation prescribed in Part VII which deals with suits relating to certain torts only. That under Article 113 is in Part X, the prescribed period of limitation is three years when no specific limitation period is fixed and that in the instant case, the suit that was filed on 27/07/2017 was within the said period of two years.
19. The rival contentions of the respective parties have been considered by us. 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.
-: 12 :-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 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 i.e., a suit being filed under common law or tort 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, M.J.Shekar died on 24/05/2010, but -: 13 :- the suit was filed on 27/07/2017, which was well within three years the period of limitation prescribed under Article 113 of the Schedule to the Act after bearing in mind Sections 13 and 19 of the Limitation Act.
20. We find much force in the arguments of learned counsel for the respondents/plaintiffs inasmuch as in our view Section 19 of the Limitation Act would apply and the application was filed on 28/08/2014 as P.Misc.No.8/2014 was well within time if the limitation period of three years commenced from 16/02/2012, when ex-gratia payment of Rs.1.00 lakh was made to the respondents/respondents Section 13 of the Limitation Act also applies. Hence, point No.1 is answered in favour of the plaintiffs and against the defendant.
21. However, learned counsel for the defendant/appellant 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 -: 14 :- 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 appellant.
22. 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 appellant 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 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.
23. This takes us to the next point for consideration, which is with regard to quantum of -: 15 :- compensation awarded by the trial Court. In this regard, appellant's counsel contended that the award of Rs.14,36,000/- 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. 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 and the award of compensation has been re-computed by us.
24. It is noted that the deceased M.J.Shekar was aged thirty two years and he was an agriculturist and had his own lands. The accident had occurred on 24/05/2010 and he died on the same day. Since the death is of the year 2010, 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.5,500/- per month. Since the deceased was thirty two years of age, '16' multiplier has been applied. Having regard to the latest dictum of the Hon'ble Supreme Court in the case of National Insurance -: 16 :- 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.5,500 + Rs.2,600 = Rs.7,700/- 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.5,133/-. The same has to be annualized and appropriate multiplier of 16 is applied 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.7,700/- - 1/3rd = Rs.5,133 x 12 x 16 = Rs.9,85,536/-. To that, a sum of Rs.40,000/- is added towards 'loss of spousal consortium' and a sum of Rs.60,000/- is towards 'loss of parental consortium' to the widow and minor daughter of M.J. Shekar respectively having regard to the other 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 -: 17 :- 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.11,15,536/-. A sum of Rs.1.00 lakh, which is awarded towards ex-gratia is deducted and the compensation is Rs.10,15,536/- instead of Rs.14,36,000/- 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.10,15,536/- 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 appellant.
25. The re-computed compensation shall be apportioned to the widow of the deceased at 50% and 25% each to the minor children. The entire compensation awarded to the minor children shall be deposited in any post office and/or nationalized bank until they attain the age of majority. Out of the compensation apportioned to the widow of the deceased, 60% shall be deposited in any post office and/or nationalized bank for an initial period of ten years. She shall be entitled to draw periodical interest -: 18 :- on the said deposit. The remaining compensation amount shall be released to her after due identification and after recovery of Court fee in accordance with law.
26. In the result, appeal is allowed in part in the aforesaid terms.
Parties to bear their respective costs.
27. The appellant 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*