Sh.Ram Saran vs Union Of India
2014 Latest Caselaw 5239 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CMI No. 5/2013
%                                              17th October , 2014

SH.RAM SARAN                                                ......Petitioner
                          Through:       Mr. K.K.Bhuchar and Mr. P.K.Jha,
                                         Adv. for applicant with applicant Ram
                                         Saran in person.


                          VERSUS

UNION OF INDIA                                            ...... Respondent
                          Through:       Mr. Aakash D. Pratap, Adv. for
                                         CPWD.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

CM Nos. 16888-91/2013

      All these pending applications are allowed with the observation that

appellant is entitled to file this appeal and is treated as a pauper and need not

file the court fee with respect to this appeal. CMs stand disposed of.

CMI 5/2013

1.    The challenge by means of this first appeal under Section 96 of the

Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the

CMI 5/2013                                                                    Page 1 of 4
 trial court dated 8.9.2009 dismissing the suit for recovery of damages of

Rs.20 lacs on account of being barred by limitation.

2.    The facts of the case are that appellant/plaintiff is the father of one Sh.

Kamal Kishore. Sh. Kamal Kishore is said to have died on 11.9.2001 while

cleaning a safety/septic tank/sewar line at the CRPF Camp, Bawana, Delhi.

Appellant/plaintiff alleges negligence because Sh. Kamal Kishore's son died

on account of poisonous smell given out of the septic tank/safety tank/sewer

line and hence the subject suit for tort of damages was filed.

3.    Since the subject suit was filed on 23.9.2005, and the death had taken

place on 11.9.2001 when the cause of action accrued as per Article 113 of

the Limitation Act, 1963 by the impugned judgment dated 8.9.2009, the suit

has been dismissed as barred by limitation.

4.    The present case is a very hard case. There has been death of the son

of a poor person, and who was supporting the family. So far as the present

suit as also the present appeal is concerned, the same have to be dismissed

because suit was filed beyond the period of three years of limitation,

however, I may note that possibly the appellant/plaintiff can file a claim

under the Employees Compensation Act, 1923 in view of Section 12 of the

Employees Compensation Act, 1923 as per which even if Sh. Kamal Kishore

was not an employee of the respondent/Union of India but since he was
CMI 5/2013                                                                    Page 2 of 4
 working for the job being done for the Union of India/ CRPF, the Union of

India /CRPF will be a principal as per Section 12 of the Employees

Compensation Act and may be required to pay compensation if and once the

provisions of the Employees Compensation Act, 1923 come into play and

apply.

5.       I may note that the period of limitation for filing of claim under the

Employees Compensation Act is two years from the date of death but the

limitation period can be extended in view of the fifth proviso to Section 10

of the said Act which allows extension of time.

6.       I may note that possibly the appellant/plaintiff may also take benefit

of the spirit of provision of Section 14 of the Limitation Act and which

provides that if a case is filed in a wrong court or a court which does not

have jurisdiction, issue of limitation may be considered as an issue of

jurisdiction, then the period taken with respect to the present suit and the

present appeal, time taken with respect to these proceedings, can be

excluded or be taken as a reason for condoning of the delay under the fifth

proviso to Section 10 of the Employees Compensation Act, 1923. Similar

reasoning will apply with respect to an earlier suit for damages filed by the

appellant/plaintiff which was dismissed for non-payment of court fee.

7.       In view of the above, the present CMI petition, and which is a first
CMI 5/2013                                                                  Page 3 of 4
 appeal under Section 96 CPC is dismissed, of course subject to the aforesaid

observations.   In case, the appellant files a claim petition under the

Employees Compensation Act, 1923, and if provisions of that Act are

satisfied for the appellant herein to succeed before the Commissioner acting

under the Employees Compensation Act, the Commissioner under the

Employees Compensation Act can sympathetically consider an application

for condonation of delay in filing of the case under the Employees

Compensation Act, 1923.




OCTOBER 17, 2014                            VALMIKI J. MEHTA, J.

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