High Court Kerala High Court

V.Anandan vs State Of Kerala on 28 August, 2009

Kerala High Court
V.Anandan vs State Of Kerala on 28 August, 2009
       

  

  

 
 
  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.

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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

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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

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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

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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

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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

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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

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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

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