The High Court
Case Details
- 1 - NC: 2025:KHC:10401 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. (BY SRI. H.V. DEVARAJU, ADVOCATE) …APPELLANT Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA AND: 1. RATHNAMMA W/O LATE KRISHNAMURTHY @ KRISHNAPPA, AGED ABOUT 27 YEARS 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 - 2 - NC: 2025:KHC:10401 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)
Facts
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. - 3 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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 - 4 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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
Legal Reasoning
judgment passed by the Division Bench of this Court in the case of EXECUTIVE ENGINEER AND ANOTHER VS. SMT. D.C.
Arguments
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? - 5 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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 - 6 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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. - 7 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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. - 8 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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 - 9 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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? - 10 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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 - 11 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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 - 12 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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. - 13 - NC: 2025:KHC:10401 RSA No. 439 of 2016 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: - 14 - NC: 2025:KHC:10401 RSA No. 439 of 2016 PART VII- SUITS RELATING TO TORT Description of suit 82. By executors, administrators or representatives under the Indian Fatal Accidents Act, 1855(13 of 1855) Period of Limitation Time from which period Begins to run Two years The date of the the death person killed of PART X- SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD Description of suit 113. Any suit for which no is period of provided elsewhere in this Schedule. limitation Period of Limitation Time from which period Begins to run Three years When the right to sue accrues. On a reading of the same, it is clear that when a suit is filed under the Indian Fatal Accidents Act of 1855, by Executors, administrators or representatives, then the limitation period is two years from the date of death of a person. However, if a suit is filed dehors of the said Act, there is no prescribed period of limitation in part VII, which deals with the suits relating to tort. The issue - 15 - NC: 2025:KHC:10401 RSA No. 439 of 2016 involved in the present case is squarely covered by the
Decision
BHAGYA AND OTHERS IN RFA NO.493/2019 disposed of on 17.02.2020, wherein, the Division Bench held that when a suit was not filed under the provisions of the Indian Fatal Accidents Act, 1855, and was filed for enforcing a common law right as per Section 9 of the CPC, there is no specific period of limitation fixed in part- VII of the Schedule to the Act, Article 113 would apply. The judgment and decree passed by the Division Bench squarely apply to the case on hand. In view of the above discussion, I answer substantial questions of law Nos.1 and 2 in the affirmative. 20. Accordingly, I proceed to pass the following: ORDER i. The appeal is dismissed with costs. ii. The judgments and decrees passed by the courts below are hereby confirmed. - 16 - NC: 2025:KHC:10401 RSA No. 439 of 2016 iii. The amount in deposit be transmitted to the trial Court. Sd/- (ASHOK S.KINAGI) JUDGE SKS