Bombay High Court
Maharashtra State Electricity ... vs Smt. Jamirshaha Jabbarshah And ... on 21 September, 2017
Bench: A.S. Chandurkar
SA176.17.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.176 OF 2017
APPELLANTS: 1. Maharashtra State Electricity
Distribution Company Limited -
(Ori.Deft.
Through President MSEDCL, Mumbai.
on R.A.)
2. Executive Engineer, Maharashtra State
Electricity Distribution Company Limited
(MSEDCL), O&M Division, Vidyut
Bhavan, Akola, Tahsil & District Akola.
3.
Deputy Engineer, Maharashtra State
Electricity Distribution Company
Limited, Akot, Taluka Akot, District
Akola.
-VERSUS-
RESPONDENTS: 1. Smt. Jamirshaha Jabbarshah, Aged
(Ori. Plffs. on about 25 years, Occupation-
R.A.)
Agriculturist,
2. Shabbirshaha Jabbarshaha, Aged about
23 years, Occupation-Agriculturist,
3. Husenabi Jabbarshaha, Aged about 26
years, Occupation-Household,
4. Shakirshah Jabbarshaha, Aged about 29
years, Occupation-Agriculturist,
5. Sharifabi Jabbarshaha, Adult,
Occupation Household,
All Residents of - Iftekar Plots, Akot,
Taluka Akot, District Akola.
::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 00:51:45 :::
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Shri S. V. Purohit, Advocate for the appellants.
Shri U. J. Deshpande, Advocate for respondent Nos.1 to 5.
CORAM: A.S. CHANDURKAR, J.
DATED: SEPTEMBER 21, 2017.
ORAL JUDGMENT :
1. Admit. Heard finally with the consent of the learned
Counsel for the parties.
2. The appellants are the original defendants who are
aggrieved by the decree passed by the first appellate Court thereby
directing the said defendants to pay an amount of Rs.2,00,000/- to
the respondents - plaintiffs herein by way of compensation.
3. It is the case of the respondent nos.1 to 4 that one
Jabbarshaha was their father and husband of respondent no.5
herein. They had one more brother namely Shabbirsha. The family
used to do agricultural work and they were residing at Akot. It is
their case that on 9-6-1990 when their father and brother
Shabbirsha had gone to the field of one Jaywantabai, a live wire
touched the body of Shabbirsha due to which he fell down. Their
father tried to remove the said wire with a wooden stick. Both of
them suffered an electric shock resulting in their death. On that
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basis, their mother for herself and as their natural guardian filed
suit seeking compensation of Rs.2,00,000/- from the appellants -
original defendants. The defendants did not file any written
statement. The plaintiffs examined plaintiff no.5 and a witness
from the Electricity Inspector's Office. One witness was examined
by the defendants. The trial Court held that the suit that was filed
on 27-10-1994 was barred by limitation and hence dismissed the
same. The first appellate Court after holding that the suit was filed
within limitation found that the defendants were negligent in
maintaining the electricity supply which resulted in the accidental
deaths. The suit was accordingly decreed and compensation of
Rs.2,00,000/- with interest @6% per annum came to be awarded.
Being aggrieved the present appeal has been filed.
4. The following substantial question of law arises for
consideration:
"Whether the provisions of Sections 6 and 7 of
the Limitation Act, 1963 extend the period of
limitation for filing the suit seeking monetary
compensation?"
5. Shri S. V. Purohit, learned Counsel for the appellants
submitted that the trial Court had rightly held the suit to be barred
by limitation. Though the suit was filed on 27-10-1994, it was
actually registered on 21-11-2001 inasmuch as the plaintiffs had
SA176.17.odt 4/9
sought permission to sue as indigent person. According to him, the
suit would have to be treated as being actually filed on
21-11-2001. It was then submitted that the first appellate Court
committed an error in holding that by virtue of provisions of
Sections 6 and 7 of the Limitation Act, 1963 (for short, the said
Act) the suit was within limitation. According to him, the plaintiff
Nos.3 to 5 were major when the suit was registered. These
plaintiffs ought to have filed the suit within a period of one year as
required by Article 72 of the said Act. As the incident in question
had taken place on 9-6-1990, the suit was barred by limitation. He
therefore submitted that no relief could have been granted to the
plaintiffs. Without prejudice, it was submitted that the amount of
compensation granted was on higher side. The learned Counsel
however fairly pointed out that as per the decisions in The
Electricity Board, U.P. State vs. Sheo Nath Singh and anr AIR 1976
Allahabad 118, Sardar Vijaysingh Rao Ghorpade vs. Jeewan Lal Ram
Das Jaiswal AIR 1963 MP 100 and Smt. Usha Rani Banerjee and
others v. Premier Insurance Company Ltd. Madras and others AIR
1983 Allahabad 27, the limitation would commence after the
disability as contemplated by Section 6 of the said Act would come
to an end.
6. Shri U. J. Deshpande, learned Counsel for the
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respondents supported the impugned judgment. According to him,
the first appellate Court rightly held that in view of provisions of
Sections 6 and 7 of the said Act, the period of limitation of one
year stood extended. According to him, the plaintiff nos.1 and 2
were minors even when the suit was registered and therefore the
appellate Court correctly applied the provisions of Sections 6 and 7
of the said Act for extending the period of limitation for
entertaining the suit on merits. In that regard, he placed reliance
on the decision in Abha Yadav vs. Municipal Corporation of Delhi
2003 ACJ 1620 and State of Jammu and Kashmir vs. Mushtaq
Ahmad Want AIR 2009 J & K 56. It was then submitted that the
amount of compensation as awarded though was on a lower side,
the respondents had accepted the same because of their financial
condition. He submitted that the negligence of the appellants
having been duly proved, they were liable to compensate the
respondents.
7. I have heard the learned Counsel for the parties at
length and I have perused the documents placed on record. The
occurrence of the accident on 9-6-1990 and the resultant death of
the father of plaintiff nos.1 to 4 and one of their brothers is not in
dispute. There was no written statement filed on behalf of the
original defendants. The plaintiffs had examined the plaintiff no.5
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as well as a witness from the Electrical Inspector's Office and on
the basis of that evidence, the trial Court as well as the appellate
Court recorded a finding that the death of both the said persons
was caused on account of the negligence of the appellants. This
finding therefore does not require to be interfered.
8. Under the provisions of Article 72 of the said Act, the
limitation for claiming compensation on account of doing or for
omitting to do an act is a period of one year from the date the act
or omission takes place. The accident in question having occurred
on 9-6-1990, the suit was liable to be filed within a period of one
year from said date. It is however not in dispute that four of the
plaintiffs were minors when the suit was filed on 27-10-1994.
Under Section 6 (1) of the said Act, if a plaintiff is a minor at the
time when the suit is sought to be instituted, he is permitted to
institute such suit within the same period as prescribed after the
disability as regards minority has ceased. Under Section 7 of the
said Act where several persons are jointly entitled to institute a suit
and one of them is under disability due to which the suit cannot be
instituted, unless a discharge can be given without the concurrence
of such person, time would not run against all the said persons.
From the aforesaid provisions, it is clear that firstly if a
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plaintiff is a minor he is entitled to the benefit of the period till he
attains the majority. Similarly, where a proceeding can be jointly
instituted, even if one of the plaintiffs is a minor and discharge
cannot be given by the other plaintiffs the time would not run
against all of them.
9. The aforesaid provisions have been considered in
detail in the judgment of the Allahabad High Court in Usha Rani
Bannerjee and others (supra). In para 9 of the said decision, it has
been observed thus:
"9.............................................................In
case of fatal accidents the interest of legal
representatives and heirs is disinct. Each
one of them is entitled to claim separate
amount of damages. One person can give
discharge in respect of his own right but he
cannot give discharge in respect of the right
of other claimant. Since both the children
were minors they were incapable of giving
their consent to their mother and she could
not without their consent give discharge.
Smt. Usha Rani Banerjee could not give a
valid and legal discharge on behalf of two
minor children who were entitled to the
damages in their own right. We are,
therefore, of the opinion that the period of
limitation could not run against the minors.
Admittedly they attained majority much
later......................"
The facts of the present case are somewhat of a similar
nature and the aforesaid observations assist the case of the
respondents.
SA176.17.odt 8/9
10. In Electricity Board, U.P. State (supra), the aforesaid
provisions were considered and in para 11, it has been observed
thus:
"11. The term "persons jointly entitled
to institute a suit" conjoint and not persons
whose substantive rights are several. It is
immaterial that persons who have distinct
several substantive rights arising out of the
same cause of action may join together
instituting a suit under Order I, Rule 1 of the
Code of Civil Procedure. Similarly, it would
also not make any difference that in view of
the provisions of S. 2 of the Indian Fatal
Accidents Act only one suit may be filed. For
recovery of compensation a suit can no doubt
be filed in a representative capacity for the
benefit of all the persons who are entitled to
compensation, but they would not be covered
by the term "persons jointly entitled to
institute a suit" under Section 7 of the
Limitation Act, if the substantive right of those
persons is not joint but several. Under the
Indian Fatal Accidents Act, the substantive
right of the wife, husband, parent and child, if
any, of the deceased persons is not joint. Each
of them has a distinct several right, and the
Court while passing a decree in a suit filed
under The Indian Fatal accidents Act has to
apportion the amount payable to each of those
persons. Such persons are therefore not
"jointly entitled to sue" within the meaning of
Section 7 of the Limitation Act. Consequently,
the question as to whether one of them can
give a valid discharge in such a case would not
arise."
The decisions in Abha Yadav and Mustaq Ahmad Want (supra) are
also on similar lines.
11. Thus, from the aforesaid it can be conclusively held
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that as the plaintiff nos.1 and 2 were under a legal disability as
they were minors when the period of limitation of one year after
the incident in question expired, they were entitled to file the suit
within a period of one year after attaining the age of majority. The
suit thus having been filed by their mother who could not give
them valid discharge as contemplated by Section 7 of the said Act
was within limitation. The first appellate Court rightly considered
the aforesaid provisions while holding in favour of the plaintiffs.
The substantial question of law is accordingly answered by holding
that the plaintiffs are entitled for the benefit of provisions of
Sections 6 and 7 of the said Act for extending the period of
limitation.
12. Though it was urged that the amount of compensation
granted is on higher side, in the facts of the present case, I do not
find that this amount deserves to be reduced. As a result of the
aforesaid discussion, the judgment of the appellate Court is liable
to be confirmed. The second appeal is therefore dismissed with no
order as to costs.
JUDGE
/MULEY/
