The Hubli Dharwad Municipal Vs Maqboolsaheb S/O Moulasaheb

THIS REGULAR SECOND APPEAL IS FILED CALL FOR RECORDS IN RESPECT JUDGMENT AND DECREE DATED 18.09.2018 MADE IN R.A.NO.116/2017 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI AND THE JUDGMENT AND DECREE DATED 09.10.2017 MADE IN O.S.NO.390/2012 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, HUBBALLI. SET ASIDE THE JUDGMENT AND DECREE DATED 18.09.2018 MADE IN R.A.NO.116/2017 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI AND CONFIRM THE JUDGMENT AND DECREE DATED 09.10.2017 MADE IN O.S.NO.390/2012 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, HUBBALLI AND ETC.,

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

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is by the defendant aggrieved by the judgement and decree dated 18.09.2018 passed in RA No.116/2017 on the file of I Additional Senior Civil Judge, Hubballi, (for short, ‘First Appellate Court’) by which the First Appellate Court while allowing the said appeal filed by the plaintiff set aside the judgment and decree dated 09.10.2017 passed in OS No.390/2012 on the file of Principal Civil Judge and JMFC, Hubballi, (for short, ‘Trial Court’), to the extent of its finding on issue Nos.3 and 4 and consequently, partly decreed the suit directing the defendant to pay the compensation amount of Rs.5,00,000/- to the plaintiff within 3 months from the date of order with interest at the rate of 6% per annum from the date of suit till complete payment.

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Brief facts of the case are that; son of the plaintiff namely one Rabbani was aged 17 years was attacked by a stray dog on 16.07.2005 and due to the bites of the said dog he sustained injuries all over the

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body. Immediately, he was admitted to KIMS hospital at Hubballi for treatment. However, due to the infection of Rabies caused by the said dog bite, the said Rabbani passed away on 19.07.2005. Alleging negligence, recklessness and failure to perform its duties, the plaintiff approached this Court by filing writ petition in WP No.3393/2006. After hearing the parties, this Court by order dated 03.09.2009, the said writ petition is disposed off reserving liberty to the plaintiff herein to pursue the remedy seeking compensation before the Civil Court in accordance with law. Consequent upon which, the plaintiff caused issue of legal notice on 16.12.2009, which was served on 17.12.2009. Defendant had caused issue of a reply dated 21.12.2009. The plaintiff filed the suit claiming damages on 01.03.2010 seeking judgment and decree directing the defendant to pay a sum of Rs.5,00,000/- as compensation with interest at the rate of 12% per annum from the date of the suit till realisation.

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Written statement to the said suit was filed by the defendant contending that the suit without claiming

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declaratory relief and without issuance of statutory notice

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was not maintainable. Since, the suit has been filed beyond the period of six months, the same was barred by

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limitation. Hence, sought for dismissal.

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Based on the pleadings, the Trial Court framed

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the following issues:

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1. Whether the plaintiff proves that his son died on 19.07.2005 because of rabies consequent to stray dog bite?

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2. Whether the plaintiff proves that the death of his son was due to non performance of duty and negligence on the part of the defendant to destroy stray dogs?

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3. Whether the suit is barred by limitation?

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4. Whether the plaintiff is entitled for the relief sought for?

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4. What order or decree?

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Plaintiff examined himself as PW1 and exhibited

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07 documents at Ex.P1 to P.7 and also one doctor who

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treated the deceased has been examined as PW2. On the other hand, the defendant examined another doctor as DW1.

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Based on the appreciation of the aforesaid evidence, the Trial Court answered issue Nos.1 to 3 in the affirmative and issue No.4 in the negative and consequently, dismissed the suit. Being aggrieved by the same, the plaintiff preferred the above regular appeal in RA No.116/2017 on the file of First Appellate Court. The First Appellate Court framed the following points for its consideration:

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1. Whether interference of this appellate court in the finding of the trial court is necessary?

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2. Whether appellant/plaintiff proves that trial court failed to appreciate the oral and documentary evidence in a proper prospective manner?

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3. Whether suit is barred by law of limitation?

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4. What order or decree?

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On re-appreciation of the evidence, the First Appellate Court answered point Nos.1 and 2 in the affirmative and point No.3 in the negative and

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consequently, decreed the suit as herein above. Being aggrieved by the same, the defendant is before this Court.

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This Court by order dated 10.12.2019 admitted

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the above appeal to consider the following substantial question of law:

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1. Whether the claim of the plaintiff is barred by limitation as the suit was filed after the lapse of five years from the date of alleged incident of dog bite?

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2. Whether there is a proximate cause between the death of the plaintiff’s son and street dog bite?

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3. Whether the lower appellate court was right in fixing the liability on the appellant Corporation to pay the damages to the plaintiff-respondent?

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Sri. G. I. Gachchinamath, learned counsel for

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the appellant at the outset submitted that, the cause of death is not traceable to the dog bite. That the medical records indicated the deceased was suffering from epilepsy and head injury. Therefore, the finding of the Trial Court and the First Appellate Court that the deceased died due to the dog bite was unsustainable. On the question of

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limitation, he submits that, the alleged incident had taken place on 16.07.2005 whereas, the suit in question came to be filed during March-2010, which is after expiry of five years. That in terms of provisions of Section 482 of Karnataka Municipal Corporation Act, 1976 (for short ‘Act, 1976’), any claim ought to have been made within a period of six months and that the Trial Court rightly taking note of this aspect of the matter dismissed the suit of the plaintiff. In the absence of any justifiable ground being made out by the plaintiff, the First Appellate Court was not justified in allowing the appeal and decreeing the suit in

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part and fixing the liability of the defendant-Corporation to pay the damages. Thus, he submits that the substantial question of law raised by this Court be answered in the negative and seeks for dismissal of the appeal.

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Per contra, Sri. Maqboolahamed M. Patil, learned counsel for the plaintiff submits that, the Trial Court while answering issue Nos.1 and 2 has come to the conclusion that the son of the plaintiff passed away due to infection of Rabies consequent to the said stray dog bite

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and that there was non-performance of statutory duty and negligence on the part of the defendant. He further submits that, the said finding of the Trial Court has remained unchallenged as no appeal has been filed by the defendant questioning the said finding as regards issue of limitation, he submits that the plaintiff had at the initial stage approached this Court by filing a writ petition in WP No.3393/2006 which was disposed off by order date 03.09.2009 reserving liberty to the plaintiff to pursue remedy available for seeking compensation. That within six months from the date of said disposal, the plaintiff filed the present suit preceded by statutory notice as contemplated under law. Thus he submits that the suit of the plaintiff is well within time which is rightly taken note of by the First Appellate Court. He submits that no substantial question of law therefore, arises for consideration, hence, seeks for dismissal of the appeal.

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Heard and perused the records.

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There is no dispute of the fact that the

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deceased Rabbani aged 17 years was a victim of dog bite.

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There is also not disputed the fact that, he was admitted

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to KIMS Hospital, Hubballi for treatment and died on 19.07.2005. The treating doctor has been examined as PW2 who has categorically deposed that the patient was being treated for Rabies. The said deposition of PW1 has remained un-impeached. Though, the defendant has examined a doctor, who has deposed that the deceased was also diagnosed of epilepsy and head injury and the cause of death could have been the head injury, in the cross examination, the said witness has admitted that generally a patient who is infected of Rabies would have

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the symptoms of hydrophobia, convulsions, high fever, altered sensorium and all these symptoms have been reflected in the medical record produced at Ex.P7.

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In the light of concurrent finding of facts by

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both the Trial Court and the First Appellate Court with regard to the cause of death of deceased Rabbani and in the absence of any irregularity or perversity in appreciation of evidence being brought notice of this Court, in the second appeal there is no reason to interfere

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with the said finding and conclusion arrived at by the Trial

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Court and First Appellate Court regarding the cause of death.

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As regards the aspect of negligence, there is no dispute that under the prescribed statute namely the Animal Birth Control (dogs) Rules, 2001, a statutory obligation is fastened on the local authority as that of the defendant herein to prevent and control the dogs and other animals causing nuisance. Enough precedence are in place fastening the liability to pay the compensation to the victims of dog bites.

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Necessary at this juncture also to note the order that was passed by this Court in WP No.3393/2006 which was filed by the plaintiff at the initial stage wherein, this Court had observed that in certain circumstances where the facts are admitted, the Court under Article 226 could avoid the compensation. However, since the very reason of death was being seriously disputed, the Court was of the opinion the matter required production and examination of medical witness and evidence. It is for this

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reason the plaintiff was relegated to avail the remedy under Civil Law. Therefore, the Trial Court and the First Appellate Court cannot be found fault with the reasoning and conclusion arrived at fastening the liability on the defendant to pay the compensation.

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The only issue that is remained to be considered by the First Appellate Court was the issue of limitation. Section 482 of the Act, 1976 envisages that ‘every suit shall be commenced, within six months after the date on which the cause of action arose or in case of a continuing injury or damage during such continuance or within six months after the ceasing thereof’.

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In the instant case, the said Rabbani became

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victim of dog bite on 16.07.2005 and he passed away on 19.07.2005. His father the plaintiff preferred writ petition

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in WP No.3393/2006, which was disposed off on 03.09.2009 with liberty to pursue civil remedy as noted above. The Trial Court has taken note of the fact that the plaintiff had caused issue of legal notice on 16.12.2009 and filed the suit thereafter on 01.03.2010, which is within

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six months from the date of disposal of the writ petition reserving liberty as noted about. The First Appellate Court has also referred to the provisions of Section 14 of the Limitation Act which enables exemption of period consumed in pursuing any other litigation under bona-fide belief from the computation of period as prescribed for initiating action. Both on facts as well as in law, the First Appellate Court has come to the conclusion that the suit filed by the plaintiff was within time. There is no dispute to the fact that this Court had while disposing off the writ petition in WP No.3393/2006 had indeed reserved such liberty and the plaintiff had initiated the proceedings within six months thereof, which aspect of the matter has been lost sight of by the Trial Court, and which is set righted by the First Appellate Court. This Court therefore do not see

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any illegality or irregularity committed by the First Appellate Court in answering the said issue in favour of the plaintiff.

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