IN THE HIGH COURT OF KERALA AT ERNAKULAM
AFA.No. 61 of 1994(G)
1. V.ANANDAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.B.GOPAKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :28/08/2009
O R D E R
P.R.RAMAN & P.BHAVADASAN, JJ.
——————————————————–
AFA 61 OF 1994
——————————————————–
Dated August 2009
Judgment
RAMAN, J.
The appellant is the plaintiff. The suit is one for realisation
of damages. The plaintiff was working as a Blue Printer in the
Kallada Irrigation Project at Kottarakkara. While so, he met with
an accident on 17.2.1983. The accident occurred when he
opened a bottle containing ammonia. Thereafter, he was taken
to the District Hospital, Kollam, from where he was sent to the
Ophthalmic Hospital, Thiruvananthapuram on 27.02.1983 where
he underwent treatment for over 48 days as an inpatient. The
plaintiff lost sight of his right eye, despite the special treatment
given to him. He claimed compensation for the disability which is
more than 50%.
2. According to the plaintiff, his claim for compensation was
disposed of by the Government on 17.12.1987 granting him a
sum of Rs.3,500/- as ex gratia payment. He contended that the
said amount is grossly inadequate and disproportionate to the
AFA 61/94 2
nature of the injury suffered by him and the loss cannot be
assessed in terms of money. He estimated the compensation for
damages at Rs.3 lakhs, but limited his claim in the suit to
Rs.50,000/- with 12% interest.
3. In the written statement field by the defendants, it was
contended that the suit is not maintainable and that it is barred
by limitation. They admitted the fact that the plaintiff lost his eye
sight as a result of the incident. That he was a Blue Printer at
Kallada Irrigation Project at Kottarakkara was also admitted. The
incident occurred while opening the ammonia gas bottle. The
defendants contended that the plaintiff should have taken
sufficient care while opening the bottle. There is negligence on
the part of the plaintiff in handling the bottle which resulted in the
accident. All possible help has been extended to the plaintiff by
the defendants. The defendants admitted that the plaintiff joined
duty on expiry of his leave, he was given promotion and still he
was in service. But, they disowned their liability to compensate
the plaintiff.
4. The court below framed two issues for trial. One is
AFA 61/94 3
whether the plaintiff is entitled to recover the plaint amount as
damages from the defendants and the other is whether the
plaintiff is entitled to get interest thereon.
5. The evidence consists of Exts.A1 to A7 and PW1 was
examined. The fact that the plaintiff was working as Blue Printer
at Kallada Irrigation Project and sustained injury during the
course of his employment while opening an ammonia gas bottle
is beyond dispute. True that he was taken to the hospital and for
expert treatment, again taken to the Ophthalmic Hospital,
Thiruvananthapuram. These facts are not seriously in dispute.
The fact that as a result of the accident, he has suffered 50%
disability is also not very much in dispute. But according to the
defendants, the accident happened due to the negligence on the
part of the plaintiff. The court below rightly found that the
defendants have taken an inconsistent plea. They contended
that the liquid ammonia bottle was opened by him in the course
of his employment and that as the same was kept under
pressure in the bottle, it would spurt out if not handled carefully.
But, in another place, they would say that the work is so simple
AFA 61/94 4
that it does not involve any risk. There is no case for the
defendants that the normal care a person would have taken in
handling such goods in similar circumstances, is not taken by
the plaintiff. Though he had been in the job for the past several
years, such a thing has not occurred to him on any previous
occasion. According to them, this is nothing but a professional
hazard.
6. It cannot be said that there is any negligence on the part
of the plaintiff in opening the ammonia gas bottle. Therefore, we
agree with the finding of the court below that there is no
negligence on the part of the plaintiff, on a careful analysis of the
evidence in the case. The said finding has been arrived at
correctly and calls for no interference by this court. The court
below also found that the compensation claimed by the plaintiff
is quite reasonable. But the suit was dismissed on the ground of
limitation. It was found by the trial court that the accident
occurred on 17.2.1983 and the plaintiff should have instituted
the suit within three years from the date of the accident. But
according to the plaintiff, the period of limitation starts from
AFA 61/94 5
17.12.1987, the date on which ex gratia payment was made to
him. The court below did not accept the said contention. The
time limit for filing the compensation petition for injury sustained
by a person is three years and the same runs from the date, the
cause of action arose. The date of accident is therefore, the date
on which the cause of action arose in this case. In those
circumstances, it was held that the suit is barred by limitation
and it was dismissed.
7. The plaintiff filed AS No.99/94 before this court. The
learned Single Judge by the judgment impugned in this appeal
confirmed the finding of the trial court and dismissed the appeal
against which the appeal from the first appeal is filed. The
learned Single Judge found that under Article 112 of the
Limitation Act, the suit should have been instituted within three
years. The fact that the Government paid some amount as ex
gratia, will neither extend the period of limitation nor can it be
taken as an acknowledgment of their liability to pay any
compensation. Further, it should be seen that the very payment
of the ex gratia amount is beyond three years and not within the
AFA 61/94 6
period of three years from the date of arising of the cause of
action. The court also found that the word ex gratia means an
act of grace and it is not an acceptance of liability on their part.
8. The learned counsel for the appellant pointed out that
the trial court as well as this court in the first appeal has erred in
holding that the suit was barred by limitation. It was contended
that in respect of the injury suffered by him, he had preferred an
application for compensation before the State Government and
that could be deemed to have been rejected only on 17.12.1987,
when Ext.A1 order was passed. If that be so, the time begins to
run only from the said date and the compensation petition filed
in 1998 is well within the period of limitation. In support of his
claim, the learned counsel for the appellant relied on the
decision of this court in Jay Laxmi Salt Works (P) Ltd. v. State
of Gujarat (1994) 4 SCC 1). A reading of the said decision
shows that it was a case where compensation was paid
consequent on the breach of a bund. The period of limitation
was computed in that case on the basis of the then available
AFA 61/94 7
article namely, Article 36 of the Limitation Act, 1908. The said
Article reads as follows :
__________________________________________
Description of suit Period of Time from
Limitation which period
begins to run
_________________________________________________
36. For compensation
for any malfeasance, When the
misfeasance or non- malfeasance,
feasance independent Two years misfeasance or
of contract and not non-feasance
herein specially takes place
provided for
_________________________________________________
9. Going by the above article, the time begins from the date
on which the malfeasance, misfeasance or non-feasance takes
place. In the above case, a bund was decided to be erected so
as to prevent the sea water flowing in several creeks in the area
near the seaside of the bund from flowing further to the claimed
site and making the lands in that area saltish and the erection of
the bund was completed in 1955. The breach was occurred in
the bund and that flooded the area. It was then that
compensation was claimed. In that context Article 36 would
AFA 61/94 8
apply and the time begins from the date on which the claim was
rejected by the State Government.
10. In the case on hand, even assuming that Article 36
(presently Article 113 of the Limitation Act, 1963) is applied, it
could not be said that there was any malfeasance, misfeasance
or non-feasance. Neither in the pleading nor in the evidence,
there is anything to show that the State was negligent in any
manner, resulting in the unfortunate incident. On going through
the evidence on record, it can be seen that it was an
employment hazard and there was no negligence on the part of
the State Government.
11. Article 113 of the Limitation Act, 1963 which is
admittedly applicable to the case on hand, reads as follows :
_________________________________________
Description of Period of Time from which
application Limitation period begins to run
___________________________________________________
113. Any suit for
which no period
of limitation is Three years When the right to sue
provided elsewhere accrues
in this schedule
___________________________________________________AFA 61/94 9
A reading of the above article shows that the time begins to run
from the date the right to sue accrues.
12. We heard the parties. Article 113 of the Limitation Act
is a residuary article as per which three years is the period of
limitation. The plaintiff has no case that the suit in question falls
under any other article. Then the question is when did the
cause of action arise. When the suit itself is for compensation
arising out of an accident, in the absence of any averments to
the contrary, the cause of action will start from the date on which
the accident occurred. The fact that some amount was paid to
the plaintiff by way of ex gratia by the government cannot be
taken as an admission of their liability to compensate the
plaintiff. The word ex gratia itself denotes as a gratuitous
payment not arising out of any legal obligation. Further, this was
paid beyond the period of three years from the date of accident.
Therefore this payment does not give any fresh period of
limitation. It is seen from the records that the plaintiff had
undergone treatment for 48 days from the date of incident
before his disability was finally determined. Even assuming that
AFA 61/94 10
the time is taken as to begin to run from the expiry of 48 days
from the date of incident, still, the suit would be barred by
limitation. In the circumstances, the view taken by the trial court,
as affirmed by the learned single judge of this court is correct
and it does not call for any interference. In the circumstances,
we find no merit in this appeal and it is accordingly dismissed
without any costs.
13. But, before parting with the case, we may add to say
that the “limitation” only bars the remedy through the court. But
the claim is sustained on evidence. So, the Government in a
welfare State may still consider the claim for a just
compensation for the loss suffered, owing to an injury sustained
while in employment. Therefore, the dismissal of the case will
not stand in the way of payment of a just compensation to the
victim and any representation made in this behalf deserves
sympathetic consideration.
P.R.RAMAN, JUDGE
P.BHAVADASAN, JUDGE
True copy
PA TO JUDGE
AFA 61/94 11
sta
AFA 61/94 12