IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 AFA.No. 61 of 1994(G) --------------------- AGAINST THE JUDGEMENT/ORDER IN AS.99/1994 Dated 08/03/1994 OF THIS COURT AGAINST OS.101/1988 of SUB COURT,KOTTARAKKARA .................... APPELLANT(S): -------------- V.ANANDAN, S/O.VASUDEVAN BLUE PRINTER KALLADA IRRIGIATION PROJECT KOTTARAKKARA BY ADV. SRI.B.GOPAKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA REP BY THE CHIEF SECRETARY THIRUVANANTHAPURAM 2. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT THIRUVANANTHAPURAM 3. THE CHIEF ENGINEER, PROJECT III, KALLADA IRRIGATION PROJECT, KOTTARAKKARA GOVERNMENT PLEADER SR.GP MR.LAKSHMI NARAYAN THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON 28.8.2009 DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- AFA 61 OF 1994 -------------------------------------------------------- Dated August 2009 Judgment RAMAN, J. The appellant is the plaintiff. The suit is one for realisation of damages. The plaintiff was working as a Blue Printer in the Kallada Irrigation Project at Kottarakkara. While so, he met with an accident on 17.2.1983. The accident occurred when he opened a bottle containing ammonia. Thereafter, he was taken to the District Hospital, Kollam, from where he was sent to the Ophthalmic Hospital, Thiruvananthapuram on 27.02.1983 where he underwent treatment for over 48 days as an inpatient. The plaintiff lost sight of his right eye, despite the special treatment given to him. He claimed compensation for the disability which is more than 50%. 2. According to the plaintiff, his claim for compensation was disposed of by the Government on 17.12.1987 granting him a sum of Rs.3,500/- as ex gratia payment. He contended that the said amount is grossly inadequate and disproportionate to the AFA 61/94 2 nature of the injury suffered by him and the loss cannot be assessed in terms of money. He estimated the compensation for damages at Rs.3 lakhs, but limited his claim in the suit to Rs.50,000/- with 12% interest. 3. In the written statement field by the defendants, it was contended that the suit is not maintainable and that it is barred by limitation. They admitted the fact that the plaintiff lost his eye sight as a result of the incident. That he was a Blue Printer at Kallada Irrigation Project at Kottarakkara was also admitted. The incident occurred while opening the ammonia gas bottle. The defendants contended that the plaintiff should have taken sufficient care while opening the bottle. There is negligence on the part of the plaintiff in handling the bottle which resulted in the accident. All possible help has been extended to the plaintiff by the defendants. The defendants admitted that the plaintiff joined duty on expiry of his leave, he was given promotion and still he was in service. But, they disowned their liability to compensate the plaintiff. 4. The court below framed two issues for trial. One is AFA 61/94 3 whether the plaintiff is entitled to recover the plaint amount as damages from the defendants and the other is whether the plaintiff is entitled to get interest thereon. 5. The evidence consists of Exts.A1 to A7 and PW1 was examined. The fact that the plaintiff was working as Blue Printer at Kallada Irrigation Project and sustained injury during the course of his employment while opening an ammonia gas bottle is beyond dispute. True that he was taken to the hospital and for expert treatment, again taken to the Ophthalmic Hospital, Thiruvananthapuram. These facts are not seriously in dispute. The fact that as a result of the accident, he has suffered 50% disability is also not very much in dispute. But according to the defendants, the accident happened due to the negligence on the part of the plaintiff. The court below rightly found that the defendants have taken an inconsistent plea. They contended that the liquid ammonia bottle was opened by him in the course of his employment and that as the same was kept under pressure in the bottle, it would spurt out if not handled carefully. But, in another place, they would say that the work is so simple AFA 61/94 4 that it does not involve any risk. There is no case for the defendants that the normal care a person would have taken in handling such goods in similar circumstances, is not taken by the plaintiff. Though he had been in the job for the past several years, such a thing has not occurred to him on any previous occasion. According to them, this is nothing but a professional hazard. 6. It cannot be said that there is any negligence on the part of the plaintiff in opening the ammonia gas bottle. Therefore, we agree with the finding of the court below that there is no negligence on the part of the plaintiff, on a careful analysis of the evidence in the case. The said finding has been arrived at correctly and calls for no interference by this court. The court below also found that the compensation claimed by the plaintiff is quite reasonable. But the suit was dismissed on the ground of limitation. It was found by the trial court that the accident occurred on 17.2.1983 and the plaintiff should have instituted the suit within three years from the date of the accident. But according to the plaintiff, the period of limitation starts from AFA 61/94 5 17.12.1987, the date on which ex gratia payment was made to him. The court below did not accept the said contention. The time limit for filing the compensation petition for injury sustained by a person is three years and the same runs from the date, the cause of action arose. The date of accident is therefore, the date on which the cause of action arose in this case. In those circumstances, it was held that the suit is barred by limitation and it was dismissed. 7. The plaintiff filed AS No.99/94 before this court. The learned Single Judge by the judgment impugned in this appeal confirmed the finding of the trial court and dismissed the appeal against which the appeal from the first appeal is filed. The learned Single Judge found that under Article 112 of the Limitation Act, the suit should have been instituted within three years. The fact that the Government paid some amount as ex gratia, will neither extend the period of limitation nor can it be taken as an acknowledgment of their liability to pay any compensation. Further, it should be seen that the very payment of the ex gratia amount is beyond three years and not within the AFA 61/94 6 period of three years from the date of arising of the cause of action. The court also found that the word ex gratia means an act of grace and it is not an acceptance of liability on their part. 8. The learned counsel for the appellant pointed out that the trial court as well as this court in the first appeal has erred in holding that the suit was barred by limitation. It was contended that in respect of the injury suffered by him, he had preferred an application for compensation before the State Government and that could be deemed to have been rejected only on 17.12.1987, when Ext.A1 order was passed. If that be so, the time begins to run only from the said date and the compensation petition filed in 1998 is well within the period of limitation. In support of his claim, the learned counsel for the appellant relied on the decision of this court in Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat (1994) 4 SCC 1). A reading of the said decision shows that it was a case where compensation was paid consequent on the breach of a bund. The period of limitation was computed in that case on the basis of the then available AFA 61/94 7 article namely, Article 36 of the Limitation Act, 1908. The said Article reads as follows : __________________________________________ Description of suit Period of Time from Limitation which period begins to run _________________________________________________ 36. For compensation for any malfeasance, When the misfeasance or non- malfeasance, feasance independent Two years misfeasance or of contract and not non-feasance herein specially takes place provided for _________________________________________________ 9. Going by the above article, the time begins from the date on which the malfeasance, misfeasance or non-feasance takes place. In the above case, a bund was decided to be erected so as to prevent the sea water flowing in several creeks in the area near the seaside of the bund from flowing further to the claimed site and making the lands in that area saltish and the erection of the bund was completed in 1955. The breach was occurred in the bund and that flooded the area. It was then that compensation was claimed. In that context Article 36 would AFA 61/94 8 apply and the time begins from the date on which the claim was rejected by the State Government. 10. In the case on hand, even assuming that Article 36 (presently Article 113 of the Limitation Act, 1963) is applied, it could not be said that there was any malfeasance, misfeasance or non-feasance. Neither in the pleading nor in the evidence, there is anything to show that the State was negligent in any manner, resulting in the unfortunate incident. On going through the evidence on record, it can be seen that it was an employment hazard and there was no negligence on the part of the State Government. 11. Article 113 of the Limitation Act, 1963 which is admittedly applicable to the case on hand, reads as follows : _________________________________________ Description of Period of Time from which application Limitation period begins to run ___________________________________________________ 113. Any suit for which no period of limitation is Three years When the right to sue provided elsewhere accrues in this schedule ___________________________________________________ AFA 61/94 9 A reading of the above article shows that the time begins to run from the date the right to sue accrues. 12. We heard the parties. Article 113 of the Limitation Act is a residuary article as per which three years is the period of limitation. The plaintiff has no case that the suit in question falls under any other article. Then the question is when did the cause of action arise. When the suit itself is for compensation arising out of an accident, in the absence of any averments to the contrary, the cause of action will start from the date on which the accident occurred. The fact that some amount was paid to the plaintiff by way of ex gratia by the government cannot be taken as an admission of their liability to compensate the plaintiff. The word ex gratia itself denotes as a gratuitous payment not arising out of any legal obligation. Further, this was paid beyond the period of three years from the date of accident. Therefore this payment does not give any fresh period of limitation. It is seen from the records that the plaintiff had undergone treatment for 48 days from the date of incident before his disability was finally determined. Even assuming that AFA 61/94 10 the time is taken as to begin to run from the expiry of 48 days from the date of incident, still, the suit would be barred by limitation. In the circumstances, the view taken by the trial court, as affirmed by the learned single judge of this court is correct and it does not call for any interference. In the circumstances, we find no merit in this appeal and it is accordingly dismissed without any costs. 13. But, before parting with the case, we may add to say that the “limitation” only bars the remedy through the court. But the claim is sustained on evidence. So, the Government in a welfare State may still consider the claim for a just compensation for the loss suffered, owing to an injury sustained while in employment. Therefore, the dismissal of the case will not stand in the way of payment of a just compensation to the victim and any representation made in this behalf deserves sympathetic consideration. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE True copy PA TO JUDGE AFA 61/94 11 sta AFA 61/94 12