Damini and Dhruva vs Managing Director Jodhpur Vidhyut Vitran Nigam Ltd and Jodhpur Vidyut Vitaran Nigam Limited The Assistant Engineer

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 12851 OF 2017 (Arising out of S.L.P.(C) No. 26011 of 2016)

DAMINI AND ANOTHER ... APPELLANT (S)

VERSUS

MANAGING DIRECTOR, JODHPUR VIDYUT VITRAN NIGAM LIMITED AND ANOTHER ... RESPONDENT (S)

JUDGMENT

KURIAN, J.:

Leave granted.

2. What is the period of limitation for filing a suit or claim under

The Fatal Accidents Act, 1855 is the issue arising for

consideration in this case.

3. The appellants are the widow and son of one Pradeep Bhai

Patel who worked as a driver of a bus. The deceased was

driving passengers from Ahmedabad to Rajasthan. When the

bus reached a dharamshala, the deceased climbed the

rooftop of the bus to bring down the luggage of the

passengers. When the deceased was on the rooftop, a naked

Signature Not Verified electricity wire touched his hand. Due to the electrocution, Digitally signed by JAYANT KUMAR ARORA Date: 2017.09.14 17:15:14 IST

the deceased fell down from the roof of the bus. Thereafter, Reason:

he was rushed to the hospital where he was declared dead by the doctors. The cause of death was the contact with the

live electricity wire.

4. The appellants filed an application under Section 1A of the

Fatal Accidents Act, 1855 before the District Judge, Jaisalmer,

Rajasthan claiming Rs.22,68,000/- towards damages. The

claim was resisted on the ground of limitation among other

grounds.

5. According to the respondents, under Article 82 of The

Limitation Act, 1963, the claim should have been presented

within two years from the date of death of the person. The

contention was upheld and the claim petition was dismissed.

The decision was upheld by the High Court as well, and thus,

the appellants are before this Court.

6. It is the contention of the appellants that the petition filed

before the District Judge has to be treated as a Civil Suit for

damages, and hence, it was the residuary entry, viz., Article

113 which should have been applied, in which case, the

limitation is three years from when the right to sue accrues

which is the date of death, i.e., 14.09.2008.

7. In the present case, the claim petition was preferred on

05.09.2011 before the District Judge, and therefore,

according to the learned Counsel for the appellants, the

petition was within time.

8. We are afraid the contentions raised by the appellants

cannot be appreciated. Part VII of the Schedule to the

Limitation Act, 1963 which provides for period of limitation

deals with suits relating to tort. Article 82 is under Part VII.

The same reads as follows:

“PART VII- SUITS RELATING TO TORT

Description of Period of limitation Time from suit which period begins to run By executors, Two years. The date of administrator the death of s the person or killed.” representativ es under the Indian Fatal Accidents Act, 1855 (13 of 1855).

9. Under Part X, Article 113 reads as follows:

“PART X-SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD

Description of Period of limitation Time from suit which period begins to run Any suit for Three years. When the which no right to sue period of accrues.” limitation is provided elsewhere in this Schedule.

10. As rightly contended by Shri Punjeet Jain, learned Counsel

appearing for the respondents, once a specific period of

limitation is referrable to any of the entries in the Schedule

to the Limitation Act, 1963, then the residuary Article 113

cannot be invoked. In the instant case, for a suit for damages

under the Fatal Accidents Act, 1855 Article 82 provides for a

specific period of limitation, viz., two years from the date of

death of the person.

11. Part VII of the Schedule deals with the “suits relating to tort”.

Therefore, when a suit for compensation is filed under the

Fatal Accidents Act, 1855, the same has to be filed within the

period of two years as prescribed under Article 82 of the

Limitation Act, 1963. In the instant case, the action for

damages is brought under Section 1A of the Fatal Accidents

Act, 1855. The provision reads as follows:

“[1A.] Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.-Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;

and in every such action, the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the court by its judgment or decree shall direct.”

12. The appellants have placed reliance on the decision of this

Court in Jay Laxmi Salt Works (P) Ltd. v. State of

Gujarat1 to justify their argument that Article 113 should be

applied for computation of period of limitation. Jay Laxmi

(supra) was not a case of death of a person and it was also

not a case under the Fatal Accidents Act, 1855. It pertained

to a claim of damages for loss due to damage to property. Therefore, Jay Laxmi (supra) has no relevance in a suit for

damages under the Fatal Accidents Act, 1855. It is also to be

noted that there is no particular period of limitation under

the Fatal Accidents Act, 1855. Therefore, the suit under

Section 1A of the Fatal Accidents Act, 1855 has to be filed

1 (1994) 4 SCC 1 within two years.

13. However on a query as to whether there is a scheme under

the first respondent for providing compensation to the

victims, the learned standing Counsel has informed us that

there is a scheme under the Rules now applicable wherein

the legal heirs of the deceased person are entitled to a

one-time compensation of Rs.5 lakhs. The accident is of the

year 2008. Therefore, we are of the view that it is a fit case

to invoke our jurisdiction under Article 142 of the

Constitution of India and grant Rs. 7 lakhs as compensation.

The first respondent shall pay this amount to the first

appellant within two months from today otherwise the

appellants will be entitled to interest of 12 per cent per

annum from the date of the accident and the officers

responsible for the delay shall be personally liable for the

same.

14. We make it clear that this order is passed under the peculiar

facts of this case and hence, it is not to be treated as a

precedent.

15. The appeal is disposed of as above. There shall be no order

as to costs.

.......................J. (KURIAN JOSEPH)

.……………………J. (R. BANUMATHI) New Delhi;

SEPTEMBER 14, 2017.

ITEM NO.1501 COURT NO.5 SECTION XV

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 26011/2016

DAMINI & ANOTHER Petitioner(s)

VERSUS

MANAGING DIRECTOR, JODHPUR VIDHYUT VITRAN NIGAM LTD & ANOTHER Respondent(s)

Date : 14-09-2017 This petition was called for Judgment today.

For Petitioner(s) Mr. Balraj Dewan, AOR (Appearance slip not given)

For Respondent(s) Ms. Pratibha Jain, AOR (Appearance slip not given)

Hon'ble Mr. Justice Kurian Joseph pronounced the reportable

Judgment of the Bench comprising His Lordship and Hon'ble Mrs.

Justice R. Banumathi.

Leave granted.

The appeal is disposed of.

Pending interlocutory applications, if any, stand disposed of.

(JAYANT KUMAR ARORA) (RENU DIWAN) COURT MASTER ASSISTANT REGISTRAR

(Signed reportable Judgment is placed on the file)