IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 FAO.No. 87 of 2005() -------------------- P.O.P.6/2000 of I ADDL.SUB COURT, THRISSUR .................... APPELLANTS:PETITIONERS: ------------------------------------------- 1. GOPINATHAN, S/O.MULLAPPALLY NARAYANA PANICKER, RESIDING AT SOUTH ANCHERY DESOM, OLLUR VILLAGE, THRISSUR TALUK. 2. SOBHANA, W/O.GOPINATHAN, RESIDING AT SOUTH ANCHERY DESOM, OLLUR VILLAGE, THRISSUR TALUK. BY ADVS. MR.P.B.SAHASRANAMAN, MR.K.JAGADEESH, MR.T.S.HARIKUMAR. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. THE DIRECTOR, ST.VINCENT DE PAUL HOSPITAL, OLLUR, THRISSUR. 2. DR.PAULY MICHEL, ST.VINCENT DE PAUL HOSPITAL, OLLUR, THRISSUR. R1 & R2 BY ADVS. MR.P.VIJAYA BHANU, SMT.M.M.DEEPA. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 87 OF 2005 = = = = = = = = = = = = = = = Dated this the 11th day of January, 2010. J U D G M E N T This appeal is preferred against the order of the Sub Judge, Thrissur in P.O.P.6/00. The parents are the petitioners before this court who lost their minor child. According to them it was on account of the negligence of the doctors the death took place. The child was admitted in the hospital on 20.6.1996 with fever and wheezing and while it was improving it is alleged that an injection was administered on 27.6.1996 which ended in the death of the child. Unfortunately the petition claiming compensation filed as informa pauperis was moved only on 18.1.2000. The court below found that it is barred by limitation and dismissed the POP under Order 33 Rule 5. Order 33 rule 5 (f) would reveal that where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, the petition can be dismissed. Now admittedly the action is initiated F.A.O. 87 OF 2005 -:2:- after a period of three years and six months and 22 days. Irrespective of the fact whether Article 82 of the Limitation Act applies or Article 113 of the Limitation Act applies the suit is filed beyond the time of three years. So in any event the cause of action will not survive as it is barred by limitation. Now it has been laid down by the Division Bench of this court in the decision reported in Madan Gopal v. Dr. Rugmini 1988 (2) 442 held that the said claims are filed under the provisions of the Fatal Accidents Act, 1855 and it is governed by S.1A of the said Act. When it is an action under the said Act it is Article 82 of the Limitation Act that would be applicable and the time preferred under Article 8 of the Limitation Act is only two years. So the materials and the averment itself would speak in volumes that the petitioners cannot succeed in the suit even if the OP is allowed for the reason that the claim is hopelessly barred by limitation. This is what is precisely done by the court below and therefore the appeal lacks merit and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/-