IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 AS.No. 729 of 1994() -------------------- O.S.187/89 OF THE PRINCIPAL SUB COURT, IRINJALAKKUDA. APPELLANT(S): ------------------- 1. RUGMINI, W/O.LATE VATTU, PANAMPARAMBIL HOUSE, KALLOOR, THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. 2. A.L.SIVARAVAM, S/O.RUGMINI, PANAMPARAMBIL HOUSE, KALLOOR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK.(DIED) 3. A.L.SUBRAMANIAN, S/O.RUGMINI, PANAMPARAMBIL HOUSE, KALLOOR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. 4. A.L.SUJATHA, D/O.RUGMINI, PANAMPARAMBIL HOUSE, KALLOOR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. 5. SAROJINI, D/O.LATE VATTU, PANAMPARAMBIL HOUSE, KALLOOR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. 6. VENU, S/O.LATE VATTU, PANAMPARAMBIL HOUSE, KALLOOR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. 7. SURESH, S/O.LATE VATTU, PANAMPARAMBIL HOUSE, KALLOOR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. 8.NARAYANI, W/O.GORALIYAN, -DO- (DIED) BY ADV. SRI S.SREEKUMAR RESPONDENT(S): --------------- THE KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VAIDYUTHI BHAVAN, PATTOM, TRIVANDRUM. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 11/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- A.S.(Pauper) No.729 of 1994 ----------------------------------------------- Dated 11th July, 2011. J U D G M E N T Joseph, J. Appellants are the plaintiffs. They filed a suit, claiming compensation. The suit stands dismissed on the ground of limitation. The suit was filed on 8.3.1988. 2. It is specifically averred in paragraph 2 that the suit is laid under Sections 1A and 2 of the Fatal Accidents Act. It is stated that when the deceased was returning home by the road on the western side of Annamanada Temple belonging to the Cochin Devaswom Board, he was entangled in a coiled broken live wire charged with electricity and he was electrocuted to death. It is further alleged that if the respondent and its hierarchy of skilled workers including engineers had taken sufficient care and precautions and provided safeguards as prescribed by the statutes and rules made thereunder and followed the instructions and orders of the Electrical Inspectorate of the Kerala State, the accident and the tragic death would not have occurred. 3. A sum of Rs.2,69,500/- was claimed. The A.S.729/1994 2 respondent joined issue by filing a written statement. Besides denying the case of negligence, it is averred that the suit is barred by limitation. The court proceeded to answer the issue of limitation against the appellants. The reasoning is as follows : The alleged incident resulting in death took place on 7.4.1978. The suit is filed on 8.3.1988. The contention taken before the court below was that one of the plaintiffs was a minor at the time of the incident and he attained majority on 3.11.1985 and therefore, the suit filed after the 7th plaintiff had attained majority, was not barred. In other words, the appellants invoked the provisions of Section 6 of the Limitation Act. The trial court found that the date of birth of the 7th appellant is 3.11.1967, he attained majority on 3.11.1985, under Article 82 of the Limitation Act, the period of limitation for the suit of this nature is two years and under Sections 6 and 7, even if applicable, the disability of the 7th plaintiff ceased on 3.11.1985 and hence the suit should have been instituted before 3.11.1987, but, the suit has been instituted on 8.3.1988. A.S.729/1994 3 Hence it is found that the suit is barred by limitation. In view of the finding of limitation, the trial court did not answer the other issues before it. 4. In the appeal memorandum, the contention which is taken is that the correct Article, which would be attracted is Article 113 of the Limitation Act, and not Article 82. The further contention raised is that all the issues should have been answered. 5. We heard learned counsel for the appellants. Learned counsel for the appellants would submit that Article 82 will not apply and Article 113 will apply. We are of the view that there is no merit in the contention. Article 82 reads as follows : ----------------------------------------------------------------------------------------- Description of suit Period of Limitation Time from which period begins to run ----------------------------------------------------------------------------------------- By executors Two years The date of death of administrators of the or representatives under the person killed. Indian Fatal Accidents Act, 1855 (13 of 1855) A.S.729/1994 4 ----------------------------------------------------------------------------------------- Article 113, on which reliance is placed, provides as follows : ----------------------------------------------------------------------------------------- Description of suit period of Limitation Time from which period begins to run ----------------------------------------------------------------------------------------- Any suit for which no period Three years When the right of limitation is provided to sue accrues. elsewhere in this Schedule ----------------------------------------------------------------------------------------- 6. Article 113 of the Limitation Act applies to suits for which period of limitation is not specifically prescribed otherwise. Therefore, the question to be considered is whether Article 82 specifically deals with the suit filed by the appellants in this case. Article 82 provides for a period of limitation of two years, the starting point of limitation being the death of the person. More importantly, it applies to suits, by executors, administrators or representatives under the Indian Fatal Accidents Act, 1855. 7. Therefore, if the suit filed by the appellants is one under the Indian Fatal Accidents Act, then, the decision of the A.S.729/1994 5 trial court must stand. As we have already referred to, in the suit itself, the specific averment is that the suit is laid under the provisions of the Fatal Accidents Act. The Fatal Accidents Act was enacted to provide compensation to families for loss occasioned by the death of persons caused by actionable wrong. This is what is specifically stated in the Act itself. The preamble reads as follows : “Preamble :--Whereas no action or suit is now maintainable in any court against a person who, by his wrongful act, neglect, or default, may have caused the death of another person, and it is often-times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him.” Section 1A of the Fatal Accidents Act 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 A.S.729/1994 6 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.” 8. Section 1A contemplates suits for compensation to the family of a person for loss occasioned to it by his death by actionable wrong. The section itself provides, where death A.S.729/1994 7 is caused by any wrongful act, neglect or default and further provides that if 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, despite the death. In other words, the death would not put an end to the right of the representatives to lay an action for recovery of compensation. In the very same year, another act is also enacted by the legislature, viz., the Legal Representatives' Suits Act. Apparently, it deals with actions by executors, administrators and representatives. The Act, which would be applicable, as far as the present suit is concerned, is the Fatal Accidents Act, 1855, for the reason that this is a case where the compensation is sought on account of a fatal accident or death caused, as a result of wrongful act or negligence by the legal representatives. Whether it is a wrongful act or negligence which has resulted in the death of a member of a family, the A.S.729/1994 8 members of the family are entitled to sue for compensation. This is precisely what has been done by the appellants. If that is so, we see no reason how the appellants can contend that the suit would fall within Article 113 of the Limitation Act, when a specific article exists (Article 82). No doubt, learned counsel for the appellants made an attempt to argue that the Electricity Board has strict liability. If there is a transgression of its duty, it is wrong committed by the Board. The acts of the Board may amount to negligence in the discharge of its duties. But, all those are grounds which are germane to a suit laid under the Fatal Accidents Act. Therefore, a suit for recovery of compensation for the death of a person arising out of electrocution as a result of negligence on the part of the Electricity Board or its officers will be a suit which will fall under Article 82 of the Limitation Act, and not Article 113. 9. We are of the view that reasoning of the trial court is beyond reproach and there is no merit in the appeal and the appeal stands dismissed. In view of the fact that the A.S.729/1994 9 appellants have been permitted to pursue the appeal in forma pauperis, the court fee payable is to be recovered and a copy of the decree shall be forwarded to the District Collector for realization of court fee. In the nature of the case, we further direct that there will be no order as to costs in this appeal. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.