IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 1859 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ POPATLAL GOKALDAS SHAH Versus AHMEDABAD MUNICIPAL CORP. -------------------------------------------------------------- Appearance: 1. First Appeal No. 1859 of 2001 MR CJ VIN for Petitioner No. 1-2 MR HS MUNSHAW for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: / /2002 C.A.V. JUDGEMENT 1. Popatlal Gokaldas Shah and others, appellants original plaintiffs have filed this First Appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 29th October, 1999, passed by the learned City Civil Judge, Ahmedabad, in Civil Suit No.6387 of 1987. The learned Judge by his impugned judgment has held that plaintiffs proved that deceased Jayeshkumar received injuries resulting into death while taking bath in the swimming pool on account of negligence of the defendant-Corporation in maintaining the swimming pool. The plaintiffs are entitled to compensation. However, the learned Judge has held that the Corporation has been able to prove that the suit is not maintainable in view of provisions of Sec.487 of the Bombay Provincial Municipal Corporations Act (hereinafter referred to as `the Act'). The learned Judge further held that even if sec.487 of the Act is not applicable as per Article 72 of the Limitation Act, 1963, the incident took place on 12.2.84 and suit in question was filed on 21.8.86 and therefore the suit is barred by period of limitation for claiming compensation and thereby dismissed the suit. 2. The facts giving rise to this appeal are as under:- 2.1 It is the case of the plaintiff that deceased Jayeshbhai aged about 21 years was their son. The plaintiff No.1 is the father of Jayeshbhai and plaintiff No.2 - Sushilaben is the mother of the deceased Jayeshbhai. It is the case of the plaintiff that defendant Ahmedabad Municipal Corporation constituted under the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as `the Act'). As per the provisions of the Act, the Municipality has to function certain obligatory statutory duty which is provided under Sec.65 of the Act and certain discretionary duty provided under Sec.66 of the Act. It is contended that the Corporation is maintaining the swimming pool at Bapunagar known as Lal Bahadur Stadium swimming pool. 2.2 It is the case of the plaintiffs that deceased Jayeshbhai went for swimming at the Bapunagar Swimming Pool at Bapunagar on 12.2.84 at about 8.30 a.m. For the purpose of swimming he has taken dive but at that time he met with an accident and he became serious. From there he was taken to Shardaben Hospital and ultimately he died on the way to hospital and he was declared dead in the hospital. 2.3 It is the case of the plaintiffs that, when plaintiffs met with an accident, the coach of the swimming pool has not taken proper protection and care by giving immediate help. The Corporation also did not provide medical aid also. So deceased Jayesh succumbed to the injury and ultimately died. 2.4 It is the plaintiffs' case that deceased was earning Rs.600/- per month at the time of accident by repairing scooters. The deceased was unmarried person therefore he could have contributed 2/3rd of his income to the plaintiffs out of Rs.600/- p.m. i.e. Rs.400/p.m. The deceased was aged 21 years at the time of the accident. Thus the total dependency loss comes to Rs.76,800/- and Rs.3200/- compensation towards expectation of life. Thus, plaintiffs suffered a loss of Rs.80,000/- in view of the death of the deceased. The plaintiffs also issued notice dated 16th February, 1985 (Exh.37) to the Corporation and ultimately filed suit on 21st August, 1986. 2.5 The defendant filed written statement at Exh.12. In the written statement the Corporation made following submissions: 2.6 It was submitted that to maintain the swimming pool is discretionary duty under Sec.66 of the Act, and the defendant having acted with bonafide intention and good faith, its action is immuned from being challenged under sec.487 of the Act. It was submitted that the cause of action arose in favour of the plaintiffs on 12.2.84 when the deceased Jayesh died allegedly in the swimming pool, the suit having been filed after the prescribed time under sec.487 is barred by limitation and hence the suit deserves to be dismissed on the ground of limitation. 2.7 As regards factual aspect, it was contended that deceased was negligent in taking dive and, therefore, the corporation is not liable for the same. It was submitted that the Corporation has taken enough care to save the deceased, a coach was their who has also helped the deceased from taking out from the swimming pool. The deceased thereafter was sent to the hospital but ultimately the deceased died at the hospital. It was further contended that the Corporation was not responsible or not negligent in performing the discretionary duty in this behalf. 2.8 Before the trial court, on behalf of the deceased, plaintiff has produced post-mortem report dated 12.2.84 which is at Exh.35, copy of the notice dated 16.1.85 at Ex.37. The post-mortem report shows that the deceased died because of asphyxial death due to drowning. It was also establish on record that the deceased was born on 6.12.62 and he expired on 12.2.84 that means he was aged about 21/22 years at the time of incident. The plaintiffs have also produced death certificate (Exh. 36) as well as school leaving certificate in this behalf. 2.9 As regards oral evidence, plaintiff father Popatlal Gokaldas Shah was examined at Ex.34. He stated that Jayesh is his son and he went to swimming pool on 12.2.84 and ultimately he died because of drowning. He was declared death as soon as he entered in the hospital. Shri Vinodbhai Karsanbhai Sagar, neighbour of plaintiff was also examined at Exh.42 in this behalf. He was also present in the swimming pool. He states that there is no negligence on the part of the deceased. He also states that about the incident he informed the instructor who changed his clothes and came into the swimming pool and they both helped the deceased out of the water. It is testified that the coach was not present at the swimming pool at the relevant point of time. Thereafter the deceased was made to lie down out of the swimming pool but his respiratory system was not working. Thereafter he went to inform the father of the deceased about the incident and came back with deceased father at the swimming pool again. The father of the deceased Popatbhai was made to sit in the office and after 10 minutes ambulance arrived in which the deceased was taken to Shardaben Hospital. 2.10 When the matter was heard by learned City Civil Judge, Ahmedabad, the learned Judge after considering the evidence on record, held that the instructor being informed regarding the accident did not take it seriously and did not sense urgency but merely changed his clothes and had a swimming costume and had wasted the precious life saving time. The learned Judge has held that the person who has drowned in the water need most immediately and urgent help and that the time consumed by the instructor for changing the clothes and putting up swimming costume probably might have proved fatal. He further observed that it transpires from the testimony of this witness that after about 10 minutes of his coming back after informing the plaintiff ambulance arrived. Here it is to be appreciated that defendant wasted the valuable time of atleast about 15 to 20 minutes time in not making available the medical treatment to the deceased immediately. 2.11 The learned Judge also held that a prudent man would not have waited for the ambulance to arrive when a person is fighting for life. It has been further held by the learned Judge that had the defendant acted sensibly. they could have sensed urgency and could have hired even a private vehicle for making immediately help available to the deceased. They have not acted wisely. Unfortunately such a timely and prompt efforts were missing in this case. This factor also shows that there was sheer negligence on the part of the defendant in trying to save the deceased. The learned Judge also held that, even if a discretionary duty is performed by the defendant the same is required to be performed with due concern and diligence. The act of not providing a favourable help to the deceased cannot be said to a bonafide act so as to confer immunity upon the persons named under Sec.487. It is also felicious to contend that since providing a swimming pool is a discretionary duty, no statutory duty was cast towards the plaintiff, the breach of which has given rise to the action for damages because of direct default of the defendant. 2.12 The learned Judge further held that it is obvious that the damage complained of has a direct result of default committed by the defendant. The learned Judge further held that the instructor did not kept a constant guard to avoid the incident. It is wrong to contend that the presence of the coach or the instructor is not required when the trained persons are swimming in the swimming pool or that he cannot keep a constant vigil on all swimmers because the accident may occur to even trained swimmer and at that time it becomes the duty of the coach or the instructor to immediately save the victim and it is the duty of a instructor to keep a watchfulness on the swimming pool. 2.13 As regards income of deceased, the learned Judge has held that deceased was earning Rs.600/- p.m. So if 2/3rd contributed his income i.e. Rs.400/- p.m. and as he aged about 21 years at the time of accident, therefore multiplier of 16 was taken. Thus the total dependency loss comes to Rs.76,800/and Rs.3200/- for compensation towards expectation of life. Thus Rs.80,000/- was determined as compensation. 2.14 However as regards limitation, the learned Judge held that defendant is entitled to succeed on the ground that the suit is barred by limitation under Sec.487 of the Act inasmuch as the action complained of alleged negligence is not brought within the period of six months next after accrual of cause of action i.e. 12.2.84 though it is brought after the expiration of one month next after statutory notice dated 16.1.85 Ex.37. In fact statutory notice Exh.37 is given by the plaintiffs to the defendant after 11 months of the accrual of the cause of action. 2.15 The learned Judge has also alternatively held that, even if it is assumed that Sec.487 of the Act will not apply in the present case, then also the suit is barred under Article 72 of the Limitation Act, 1963 because the action for compensation for doing of or omitting to do the alleged act etc. has to be brought within the period of one year of such act or omission. In the present case, the action is brought after a period of 2 years six months and 9 days after alleged omission on the part of the defendant and, therefore, also the suit of the plaintiff is liable to be dismissed. 3. Mr.C.J.Vin, learned advocate appeared on behalf of the appellants-plaintiff submitted that, as regards negligence and compensation, the findings of the learned Judge is in favour of the plaintiff, and as the Corporation has not filed appeal he is not addressing the Court in this aspect. 4. As regards findings of Limitation Act, he submitted that the reasonings and findings of the learned Judge is absolutely errorneous. He further submitted that the learned Judge has failed to appreciate that the present case of the appellant is a case of contract between the deceased and the present opponent. He further submitted that the learned Judge has observed in his judgment that there was a contract between the parties but has failed to appreciate that there was a breach of contract by the respondent. He further submitted that the learned Judge ought to have appreciated that instead of Article 72, Article 55 of the Limitation Act 1963 would apply as in the present case as there was a contract and that the said contract is breached. Thus, instead of Article 72 of the Act, Article 55 would apply where the limitation prescribed is three years from the date the contract is alleged to have been breached. 5. Learned advocate for the appellant alternatively submitted that, even in any view of the matter, this is a suit for damages based on the law of tort and general period of limitation namely Article 113 residuary article apply, and if that is so, the suit is filed within three years and, therefore, the same is within the period of limitation and this Court must grant compensation to the plaintiff due to the death of the deceased. 5.1 In order to appreciate the aforesaid contention, learned advocate for the appellants has relied upon Chapter 5 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as `the Act') which provides definition of essential services. He has also relied upon Sec.63 of the Act which provides matter to be provided for by the Corporation. Sec.66 and Sec.66(5) of the Act reads as under: "Sec.66 Matters which may be provided for by the Corporation at its discretion. "Sec.66(5) provides swimming pools, public wash houses, bathing places and other institutions designed for the improvement of public health." Section 487 of the Act reads as under: "Sec.487 Protection of persons acting under this Act against suits:- (1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act:- "(a) until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the chief municipal officer and in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney advocate, pleader or agent, if any, for the purpose of such suit, nor (b) unless it is commenced within six months next after the accrual of the cause of action." 5.2 As regards Limitation Act, he has relied upon Articles 2, 22, 36, 115 & 120 of the Limitation Act, 1908 (Old Limitation Act) which reads as under: Limitation Act 1908 First Schedule --------------------------------------------------------- Art.2 For compensation for doing | | When the act| or for omitting to do an act | Ninety | or omission | alleged to be in pursuance of | days | takes place.| any enactment in force for the | | | being in India. | | | --------------------------------------------------------- Art.22 For compensation for | One | When the | any other injury to the | year | injury is | person | | committed. | -------------------------------------------------------- | Art.36 For compensation for any | | When the | malfeasance, mis-feasance or non-| Two | malfeasance,| feasance independent of contract | years | or non- | and not herein specially provided| | feasance | for. | | takes | | | place. | -------------------------------------------------------- "Art.115 For compensation for the| | When the | breach of any contract, express | | contract is | or implied, not in writing | | broken, or | registered and not herein |Three | (where there | specially provided for. |years | are successive| | | breaches when | | | the breach in | | | respect of | | | which the | | | suit is inst- | | | tituted occurs| | | or (where the | | | breach is cont- | | inuing) when it | | ceases. | Art.120 Suit for which no period | | When the right| of limitation is provided | Six | to sue accrues| elsewhere in this Schedule | years| | --------------------------------------------------------- 5.3 He has referred this old article only with a view to substantiate his case for some of the Hon'ble Supreme Court judgments which he has relied upon where the Hon'ble Apex Court relied upon those provisions in this behalf. 5.4 As regards Limitation Act, 1963, he has firstly relied upon Article 55, 72, 82 & 113 of the Act which reads as under: ----------------------------------------------------------------- | Article |Period |Time from which period| | |of | begins to run | | |Limita- | | | |tion | | ---------------------------------------------------------------- Art.55 For compensation for | |When the contract is | the breach of any contract, | Three |broken or (where are | express or implied, not herein | years |successive breaches) | specially provided for. | |when the breach in | | |respect of which the | | |suit is instituted | | |occurs or (where the | | |breach is continuing) | | |when it ceases." | ----------------------------------------------------------------- ----------------------------------------------------------------- Art.72 For compensation for | |When the act or | doing or for omitting to do | One |omission takes | an act alleged to be in | year |place. | pursuance of any enactment | | | inforce for the time being | | | in the territories to which | | | this Act extends. | | | | | | ----------------------------------------------------------------- Art.82 By executors, | | The date of the | administrators or representative| Two | death of the | under the Indian Fatal Accidents| years | person killed. | Act, 1855 (13 of 1855) | | | ----------------------------------------------------------------- Art.113 Any suit for which no | | When the right | period of limitation is | Three | to sue accrues. | provided elsewhere in this | years. | | Schedule. | | | ----------------------------------------------------------------- 5.5 Learned advocate for the appellants Mr.C.J.Vin has relied upon the Full Bench judgment of Lahore High Court consisting of Five Judges reported in AIR (32) 1945 Lahore 324 in the case of MAHOMAD SADAAT ALI KHAN vs. ADMINISTRATOR, CORPORATION OF CITY OF LAHORE. In that case the plaintiff was claiming compensation for damages said to have been caused by the failure of a local body to maintain its water system in proper order. In that case the question arose as to whether the suit is governed by Article 2 or by Article 36 of 1908 of Limitation Act or not. I have already set out Article 2 and 36 of 908 of the Limitation Act where Justice Abdur Rahman on page 329 observed as under: "I might say in the end that the breach of a duty imposed under a statute is usually the result of negligence, and negligence is a definite act of malfeasance, not merely that of non-feasance. Had the leaking pipe in the present case been repaired in time, the plaintiff would have suffered no damage and the present suit would not have been instituted. If the Municipal Committee did not discharge its functions and was guilty of a breach of duty imposed by the Punjab Municipal Act, it cannot be said to have omitted to do so in pursuance of the Act but in contravention of the Act. This breach would be, in my judgment covered by Art.36, Limitation Act, and not by Art.2. " 5.5(A) Thereafter Justice Mahajan also considered this aspect and on page 332 to 333 and Justice Mahajan has observed as under: "My learned brother Rahman has fully dealt with them. All I wish to say is that there is no well-considered decision in support of either view which can furnish a guide in solving this problem. In my view, the decisions that applied Art.36 to cases of municipal corporations failing to keept their water mains in good repair laid down sound law on the subject and should be followed. Even if Art.2 had any application to such cases, question would still arise whether in the case of leakage of water from municipal water mains where damage results from the recurrence of that leakage from day to day, the provisions of S.23, Limitation Act, would not bring the suit of a plaintiff in a particular case within limitation." 5.5(B) Other Three Judges, Justice Harries, C.J., Justice Munir and Justice Achhru Ram also concur with the views of both the judges. 5.6 For appreciating the aforesaid controversy, learned advocate for the appellants has firstly relied upon the judgment of the Hon'ble Apex Court in the case of STATE OF PUNJAB vs M/S. MODERN CULTIVATORS reported in AIR 1965 SC 17. In that case the question which was raised before the Hon'ble Supreme Court was that of Western Jamna Canal near Sangipur and Jandhrea villages burst its western bank. The canal water inundated the neighbouring fields where crops of sugarcane, maize, urud etc. grown by the plaintiff firm were damaged. The plaintiff brought this action alleging that the breach in the bank was caused by negligence on the part of the canal authorities who were guilty of further negligence in not closing the breach without delay. In that case the three Judges of the Hon'ble Supreme Court namely Justice A.K.Sarkar, Justice M.Hidayatullah and Justice J.R.Mudholkar constituted the Bench. All the three Judges delivered a different judgments and separate conclusions. The Hon'ble Apex Court considered the judgment of Lahore High Court AIR 1945 Lah 324. As far as judgement of Mr. Justice Hidayatullah is concerned, in para 16 of the judgement the learned judge has considered the principle regarding tortious liability and in para 18 the court has observed thus:- "Perhaps the liability is viewed strictly as an inducement to care. Safety is best secured when it is made the responsibility of the person who must not only take precautions to avoid accident but who alone decides what those precuations should be." The court in para 26 further observed as under: "These cases have rightly decided that Art. 2 cannot apply to cases where the act or omission complained of is not alleged to be in pursuance of statutory authority." 5.6A Ultimately the Court confirmed the High Court judgment. The Hon'ble Apex Court held that Article 36 which provides for compensation for any malifeasance, misfeasance or non-feasance independent of contract and not herein specially provided for which provides for two years at the relevant time will apply in this case. 5.7 Learned advocate for the appellants further relied upon judgment of the Hon'ble Apex Court in the case of NATIONAL BANK OF LAHORE LTD. vs. SOHAN LAL SAIGAL AND OTHERS reported in AIR 1965 SC 1663. In that case one of the customer of the appellant a National Bank of Lahore Limited and he was carrying it banking business. It carries on the incidental business of hiring out lockers out of cabinets in safe deposit vaults to constituents for safe custody of their jewels and other valuables. In that case Sohanlal respondent before the Supreme Court hired lockers from the bank at Jullundur through its Manager. The said lockers were tampered with and the valuables of the respondents kept therein were removed by the Manager of the Jullundur branch of the Bank. In that situation the respondent filed a suit for