Karnataka High Court

The Executive Engineer vs Rathnamma on 11 March, 2025

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                                                       RSA No. 439 of 2016




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 11TH DAY OF MARCH, 2025

                                          BEFORE

                        THE HON'BLE MR JUSTICE ASHOK S.KINAGI

                    REGULAR SECOND APPEAL NO. 439 OF 2016 (RES)

                   BETWEEN:

                   THE EXECUTIVE ENGINEER
                   (ELECTRICAL), O & M CIRCLE,
                   CHAMUNDESHWARI ELECTRICITY
                   SUPPLY CORPORATION,
                   O&M DIVISION,
                   ARASIKERE DIVSION,
                   ARASIKERE,
                   HASSAN DISTRICT-573103.
                                                              ...APPELLANT
                   (BY SRI. H.V. DEVARAJU, ADVOCATE)

                   AND:

                   1.   RATHNAMMA
Digitally signed        W/O LATE KRISHNAMURTHY @
by SUNITHA K S          KRISHNAPPA,
Location: HIGH          AGED ABOUT 27 YEARS
COURT OF
KARNATAKA
                   2.   SUCHITHRA
                        D/O LATE KRISHNAMURTHY @
                        KRISHNAPPA
                        AGED ABOUT 10 YEARS

                   3.   ISHWARYA
                        D/O LATE KRISHNAMURTHY @
                        KRISHNAPPA
                        AGED ABOUT 7 YEARS

                        RESPONDENTS 2 AND 3 ARE
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                                       RSA No. 439 of 2016




    MINORS REPRESENTED BY THEIR
    NATURAL GUARDIAN, MOTHER
    RATHNAMMA I.E. THE 1ST RESPONDENT

    ALL ARE R/A GOPALAPURA VILLAGE,
    GOLLARAHATTI,
    KANAKATTE HOBLI, ARASIKERE TALUK,
    HASAN DISTRICT.-573103.
                                            ...RESPONDENTS

(BY SRI. GIRISH B. BALADARE, ADVOCATE)

     THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 19.01.2016 PASSED IN
RA NO.372/2014 ON THE FILE OF THE II ADDL. DISTRICT AND
SESSIONS JUDGE, SANDAL FORT, HASSAN DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 03.06.2014 PASSED IN OS NO.30/2012 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC., ARASIKERE.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

                   ORAL JUDGMENT

This regular second appeal is filed by the appellant

challenging the judgment and decree dated 19.01.2016

passed in R.A.No.372/2014 by the learned II Additional

District and Sessions Judge, Hassan, and the judgment

and decree dated 03.06.2014 passed in O.S.No.30/2012

by the learned Senior Civil Judge and JMFC, Arsikere.

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2. For convenience, the parties are referred to,

based on their rankings before the trial Court. The

appellant was the defendant, and the respondents were

the plaintiffs.

3. Brief facts leading rise to the filing of this

appeal are as follows:

The plaintiffs filed a suit against the defendant for

damages. It is the case of the plaintiffs that, plaintiff No.1

is the wife and plaintiff Nos.2 and 3 are the daughters of

one deceased Krishnamurthy. On 24.03.2008 at about

8.00 a.m, at Gopalapura (Gollarahatti) village, the

deceased Krishnamurthy, while repairing a telephone pole,

touched the electric wire which was hanging by the side of

a telephone pole and thereby died due to electrocution. In

this regard, the case was registered in UDR No.10/2008,

at Banavara police station under Section 174 of Cr.P.C. It

is further contended that the defendant - authority has

failed to take care of hanging the live wire within time, and

the incident could not have occurred if the defendant had

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made repairs within time and the incident took place due

to negligence on the part of the defendant. The plaintiffs

have spent Rs.60,000/- towards the medical expenses of

the deceased Krishnamurthy. Hence, the plaintiffs sought

for damages. Accordingly, prays to decree the suit.

4. The defendant filed a written statement denying

the averments made in the plaint. It is contended that the

Executive Engineer is not an independent authority to take

any independent decision. It is contended that the incident

occurred due to the negligence act of the deceased

Krishnamurthy, and the village people never intimated the

defendant's authority to repair the electrical live wire. The

defendant is not liable to pay any damages as claimed by

the plaintiffs. Hence, prays to dismiss the suit.

5. The trial Court, based on the pleadings of the

parties, framed the following issues and additional issues.

1) Whether the plaintiffs prove that the deceased Krishnamurthy died in an electrocution accident due to the negligence of the defendant?

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2) Whether the plaintiffs prove that they are entitle are damages of Rs.7,00,000/- with interest at the rate of 15% p.a as sought?

3) Whether the defendant proves that suit of the plaintiffs is bad for non-joinder of necessary parties?

4) What order or decree?

Additional Issue:

1) Whether the suit of the plaintiffs is barred by law of limitation?

6. The plaintiffs, to substantiate their case,

plaintiff No.1 was examined as PW.1 and marked six

documents as Exs.P1 to 6. On the other hand, the

defendant's official was examined as DW.1 and marked

one document as Ex.D1. The trial Court, after recording

the evidence, hearing on both sides and the assessment of

oral and documentary evidence, answered issue No.1 in

the affirmative, issue No.2 partly in the affirmative, issue

No.3 in the negative, additional issue No.1 in the negative,

and issue No.4 as per the final order. The suit of the

plaintiffs was decreed with costs. It is declared that the

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defendant is directed to pay damages of Rs.4,78,000/- to

the plaintiffs within one month from the date of the

judgment with interest at the rate of 6% p.a., from the

date of the suit till the date of realization. After such

deposit, 40% of the compensation amount with interest

shall be disbursed to plaintiff No.1. Further, 30% each of

the compensation amount with interest shall be deposited

in the name of plaintiff Nos.2 and 3 in any Nationalized or

Scheduled bank till they attain majority. The plaintiffs

were directed to pay the Court fee as the first charge on

the subject matter of the suit.

7. The defendant, aggrieved by the judgment and

decree passed in O.S.No.30/2012, vide judgment dated

03.06.2014, preferred an appeal in R.A.No.372/2014 on

the file of II Additional District and Sessions Judge,

Hassan.

8. The first Appellate Court, after hearing the

learned counsel for the parties, framed the following points

for consideration.

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1) Whether the appellant is to be permitted to produce the document as shown in I.A.No.8?

2) Whether the appellant/defendant proves that, the impugned judgment and decree passed by the Senior Civil Judge and JMFC, Arasikere in O.S.No.30/2012 dated 03.06.2014 is contrary to law, facts, illegal, perverse and probabilities of the case and as such, the same is liable to be interfered with?

3) Whether the damages fixed by the trial Court at Rs.4,78,000/- with interest at 6% per annum to the respondents/plaintiffs is not correct one?

4) What order?

9. The first Appellate Court on reassessing the oral

and documentary evidence answered point No.1 in the

affirmative, point Nos.2 and 3 in the negative, and point

No.4 as per the final order. The appeal was dismissed

with costs vide judgment dated 19.01.2016 and confirmed

the judgment and decree passed by the trial Court in

O.S.No.30/2012.

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10. The defendant, aggrieved by the impugned

judgments passed by the Courts below, filed this regular

second appeal.

11. Heard the arguments of the learned counsel for

the defendant and the learned counsel for the plaintiffs .

12. Learned counsel for the defendant submits that

the claim made by the plaintiffs is barred by limitation. He

submits that the Courts below ought to have applied

Article 82 of the Limitation Act; on the contrary, they

applied Article 113 of the Limitation Act. Hence, he

submits that the impugned judgments passed by the

Courts below are arbitrary and erroneous. Hence, on

these grounds, prays to allow the appeal.

13. Per contra, learned counsel for the plaintiffs

submits that the plaintiffs have filed a suit for damages

under the common law, and there is no limitation

prescribed under the said Act. He submits that when no

limitation is prescribed for filing the suit under common

law, Article 113 of the Limitation Act applies, but not

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Article 82 of the Limitation Act. He submits that the trial

Court has rightly applied Article 113 of the Limitation Act

and decreed the suit. The first Appellate Court on

reassessment of the oral and documentary evidence,

confirmed the judgment and decree passed by the trial

Court. In the absence of limitation, Article 113 of the

Limitation Act applied to the common law, and the suit

was filed under common law. Hence, to buttress his

arguments, he has relied on the judgment passed by the

Division Bench of this Court in the case of Executive

Engineer (ele) and Anr Vs. Smt.D.V.Bhagya and Anr., in

RFA No.493/2019. He submits that the judgment is aptly

applicable to the case on hand. Hence, on these grounds,

prays to dismiss the appeal.

14. This Court on 08.02.2021, admitted the appeal

to consider the following substantial questions of law :

1) Whether the Article 113 of schedule to the Limitation Act is applicable to the facts and circumstances of the case?

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2) Whether both the Courts below have ignored Article 113 of the Limitation Act while awarding compensation to the claimants?

Substantial questions of law Nos.1 and 2 are

interlinked with each other, hence, they are taken

together for common discussion to avoid repetition of

facts.

15. Re-Substantial questions of law Nos.1 and 2:

The plaintiffs, to substantiate their case, plaintiff

No.1 was examined as PW.1. She has deposed that her

husband came in contact with a live electric wire and

succumbed to the injuries. She deposed that the incident

occurred due to the negligence on the part of the

defendant. To buttress that incident was occurred due to

rash and negligence on the part of the defendant, the

plaintiffs have produced the documents Ex.P1 is the copy

of the FIR, which discloses that the police have registered

the case in UDR, Ex.P2 is the certified copy of the

complaint, Ex.P3 is the Inquest report, Ex.P4 is the Post

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Mortem report, which discloses that the deceased

Krishnamurthy died due to an electric shock. Ex.P5 is the

final report, which discloses that there was negligence on

the part of the officials of the defendant, Ex.P6 is the

Genealogy.

16. During the cross-examination, nothing has been

elicited to disbelieve the evidence of PW.1. On the other

hand, the officials of the defendant was examined as

DW.1. He reiterated the written statement averments in

the examination-in-chief. He has deposed that the incident

was occurred due to the negligence on the part of the

deceased Krishnamurthy and not on the part of the

defendant. He also produced Ex.D1, i.e., an Authorization

letter, wherein the defendant has authorized DW.1 to

depose on behalf of the defendant.

17. From the perusal of the records, it is clear that

the incident occurred due to the negligent act on the part

of the defendant and Krishnamurthy died due to an

electric shock. Though it is the case of the plaintiffs that

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the deceased Krishnamurthy was doing agricultural work

and getting income from the agricultural source. To

substantiate the income of the deceased Krishnamurthy,

the plaintiffs have not produced any records. In the

absence of records, the trial Court has taken the notional

income of the deceased at Rs.3,500/- p.m, and there are 3

plaintiffs and 1/3rd of income has been deducted out of

Rs.3,500/- as per the law laid down by the Hon'ble Apex

Court in the case of NATIONAL INSURANCE COMPANY

LIMITED VS. PRANAY SETHI REPORTED IN (2017) 16 SCC

680, and further, the deceased was aged about 35 years.

The multiplier applicable to his age group is '16' as per the

judgment of the Hon'ble Supreme Court in the case of

SARLA VERMA AND OTHERS VS. DELHI TRANSPORT

CORPORATION AND ANOTHER REPORTED IN (2009) 6 SCC

121. Thus, the trial Court granted compensation of

Rs.4,78,000/-. The defendant, aggrieved by the impugned

judgment, preferred an appeal in R.A.No.372/2014. The

first Appellate Court dismissed the appeal.

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18. The main grievance of the defendant is that,

the suit filed by the plaintiffs is barred by limitation.

Admittedly, the plaintiffs filed a suit for damages under

the Common Law. Now, in the second appeal, a question

that arise is, whether the Article 113 of the Limitation Act

or Article 82 of the Limitation Act applies to the current

case? Admittedly, the suit has been filed under the

Common Law seeking compensation on the grounds of

negligence on the part of the defendant. There is a

specific limitation described in part VII of the Limitation

Act, which deals with the suits relating to certain torts

only. Article 113 is described in part X, wherein the

prescribed period of limitation is 3 years. In the instant

case, the suit was filed on 30.06.2010, which was within

said 3 years.

19. To appreciate the same, it would be useful to

extract Articles 82 and 113 of the Schedule to the

Limitation Act, 1963, which reads as follows:

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              PART VII- SUITS RELATING TO TORT


         Description of suit              Period of      Time from which
                                          Limitation     period Begins to
                                                               run

82.   By executors, administrators Two years            The date of the
      or representatives under the                      death     of  the
      Indian Fatal Accidents Act,                       person killed
      1855(13 of 1855)