Dismissed

S. Karunakaran Pillai v. Chacko

Kerala HC9 Jun 2014RFA/237/2007

Case brief

AI extract

What is this about?

The Court clarified the limitation period for claims against non-State wrongdoers under the Fatal Accidents Act. It held Article 82 applies to loss of dependency claims, while Article 113 applies to loss of estate claims. The Court allowed a split claim strategy against joint tortfeasors and awarded Rs.50,000 each for loss of life expectation, dismissing the appeals as no substantial interference

What did the court decide?

The plaintiffs were granted Rs.85,000 towards loss of estate; the liability of the fourth defendant for loss of estate remains confirmed; appeals against the award dismissed.

S. Karunakaran Pillai Vs Chacko — Civil Procedure and Limitation | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN &

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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MONDAY, THE 9TH DAY OF JUNE 2014/19TH JYAISHTA, 1936

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RFA.No. 237 of 2007

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OS NO.678/2003 OF II ADDITIONAL SUB COURT,ERNAKULAM DATED 31-08-2006

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APPELLANT/4H DEFENDANT:

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*** K.KARUNAKARAN PILLAI, VRINDAVAN HOUSE, MUTTATHIL LANE, ELAMKULAM, KOCHI-20, ERNAKULAM DISTRICT.(D I E D)- LR'S IMPLEADED:**

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*ADDL.A2. K.P.PONNAMMA, W/O.LATE K.KARUNAKARAN PILLAI, VRINDAVAN HOUSE, MUTTATHIL LANE, ELAMKULAM, KOCHI - 20, ERNAKULAM DISTRICT.

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**(LEGAL HEIR OF THE DECEASED APPELLANT IS IMPLEADED AS ADDL.APPELLANT NO.2 AS PER ORDER DATED 13/10/2009 IN I.A.NO.3480/09).*

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BY ADVS.SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN

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SRI.V.ARUN

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RESPONDENTS/PLAINTIFFS AND DEFENDANTS 1 TO 3:

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1. CHACKO, S/O.JOSEPH, PALLICKAL HOUSE, KUNNAPPLLICHERY, PALIYANAM, PIN- 683 572, VIA- ANGAMALI, ALUVA.

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2. ROSILY, W/O CHACKO, DO.

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3. JERI, S/O.CHACKO, DO.

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4. KERALA STATE ELECTRICITY BOARD, VYDHUDHI BHAVAN, PATTOM, TRIVANDRUM, REPRESENTED BY ITS SECRETARY, K.S.E.BOARD.

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Kss

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RFA.NO.237/2007

5. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, GIRI NAGAR, KADAVANTHRA, KOCHI-20.

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6. ASSISTANT ENGINEER, (ELECTRICAL SECTION), GIRINAGAR, KOCHI-20.

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R1 TO R3 BY ADVS. SRI.K.S.BABU

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SMT.N.SUDHA SMT.C.SEENA

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R4 TO R6 BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2014 ALONG WITH RFA. NO.238/2007, THE COURT ON 09/06/2014 DELIVERED THE FOLLOWING:

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Kss

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THOTTATHIL B.RADHAKRISHNAN &

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A.MUHAMED MUSTAQUE, JJ.

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R.F.A.Nos.237/2007 & 238/2007 “C.R.”

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J U D G M E N T

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Muhamed Mustaque, J.

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These appeals are at the instance of the fourth defendant in two different suits for compensation on account of electrocution.

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O.S.No.677/2003 on the file of the II Additional Sub Judge,

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Ernakulam was filed by the father, mother, brothers and sister of the deceased Gireesh. O.S.No.678/2003 was filed by the father, mother and brother of the deceased Prabeesh. Both the suits were tried together and a compensation amount of Rs.3,23,000/- was awarded to the plaintiffs in each suit. Out of the total compensation, in each suit, the Kerala State Electricity Board, hereinafter referred to as the “Board”, was directed to pay Rs.2,48,000/- and remaining Rs.75,000/- to be paid by defendant No.4. It is challenging the said judgment and decree, the fourth defendant filed these appeals.

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R.F.A.Nos.237/2007 & 238/2007

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The Board also had filed appeals against the above judgment

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and decree along with the applications for condonation of delay. This Court, by a common judgment in R.F.A.No.367/2007 and R.F.A.No.399/2009 on 19/03/2014 dismissed both the appeals on account of delay in filing the appeals.

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Heard the learned counsel for the appellant/fourth defendant, learned counsel for the plaintiffs and the learned Standing Counsel for the Board.

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The learned Senior Counsel, Shri M.C.Sen, who is appearing for the fourth defendant submits that the incident occurred on 29/08/2000 and the suits were filed only on 06/01/2003 and 23/01/2003 as I.O.P.Nos. 1 and 2 of 2003 and in view of the period of limitation for filing a suit is

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two years from the date of death of a person under Article 82 of the Limitation Act, the suits ought to have been dismissed. The Senior Counsel also relied on the judgment of this Court in Kerala State Electricity Board

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vs. Bhaskaran Nair [2002 (3) KLT 324], Madan Gopal vs. Dr.Rugmini [1988 (2) KLT 442] and Lissie Hospital vs. Ajayakumar [2004 (1) KLT 344] . The learned Senior Counsel also refers to the differences of “claims”

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R.F.A.Nos.237/2007 & 238/2007

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under the Fatal Accidents Act, 1855 and the Kerala Torts (Miscellaneous Provisions) Act, 1976.

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Under the common law of England, death of a person did not offer a cause of action for damages in tort, which was essentially based on the maxim actio personalis moritur cum persona . English Fatal Accidents Act, 1846 recognised the rights of the dependants to plead for compensation. It also recognised the causes of action related to the deceased, which the deceased would be entitled if he would survive, to the representatives of the deceased for recovering any pecuniary loss to the estate of the deceased. Fatal Accidents Act, 1855 is, in fact, a verbatim reproduction of English Fatal Accidents Act, 1846. We have noticed in Anitha and others vs. Kerala State Electricity Board, TVM and others

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[2014 (2) KHC 114] , the fundamental difference between the claim under Sections 1A and 2 of the Fatal Accidents Act. As regards the claim under Section 1A, liability arises on account of death to the dependants and in the latter, liability arises on account of wrongful act caused to the deceased which would have been recoverable by him, had he been alive. The Kerala Torts (Miscellaneous Provisions) Act, 1976 hereinafter referred to as the

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R.F.A.Nos.237/2007 & 238/2007

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“Kerala Act”, was an enactment to unify and amend law relating to survival of cause of action, liability of joint tortfeasers and liability in cases of contributable negligence in respect of torts. Section 2 of the Kerala Act provides that on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Under Section 5 of the Kerala Act, it is provided that rights conferred by the Act for the benefit of the estates of deceased persons shall be in addition to, and not in derogation of, any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. Kerala Act, in fact, covers the field “claim for damages for the loss to the estate of the deceased”. It does not speaks anything about claim of loss to the dependants. Therefore, by interpreting the Kerala Act, in Lissie Hospital's case [2004 (1) KLT 344] , this Court held that the claim for damages for the loss to the estate can be filed under the Kerala Act and, Article 113 of the Limitation Act, 1963 would apply for claim under loss of estate. Article 113 is a residuary provision under the Limitation Act which provides three years limitation period. Article 82 of the Limitation Act provides period of limitation as two

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R.F.A.Nos.237/2007 & 238/2007

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years under the Fatal Accidents Act. In Bhaskaran Nair's case [2002 (3)

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KLT 324] it was held by this Court that the Board is a statutory body and a suit claim against the Board for compensation shall be deemed to be considered as a tortious act committed by the State and it is governed by Article 113 and not by Article 82. It is following the decision in Bhaskaran Nair's case, the court below held that the suit is filed within the statutory period of three years, as provided under Article 113 of the Limitation Act. This Court in Kerala State Electricity Board v. Subhadra [2013 (4) KLT 17] also took a similar view and held that in a claim under Section 1A of the Fatal Accidents Act for loss to the dependants, claim is to be treated as one for compensation or damage on account of tortious act committed by the Board and it is governed by Article 113 of the Limitation Act. This Court further noted that in Kerala Act, survival of the causes of action is for the benefit of the estate of the deceased. We are of the view that in a suit for compensation under the Fatal Accidents Act, against the State as held in Bhaskaran Nair's case and also in Subhadra's case, Article 113 of the Limitation Act would apply for compensation. However, a distinction has to be drawn against claim for compensation in terms of Fatal Accidents Act

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R.F.A.Nos.237/2007 & 238/2007

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and Kerala Act as against non-State wrong doers. In a claim for compensation under Section 1A of the Fatal Accidents Act for loss of dependency against non-State wrong doers, we are of the view that Article 82 of the Limitation Act would apply, and the period of limitation is 2 years. Therefore, any claim against the fourth defendant/the appellant herein, based on loss of dependency, is to be governed by Article 82 of the Limitation Act. As against claim for loss of estate, as rightly noticed in Lisie Hospital's case ( supra ) and Subhadra's case ( supra ) , such claim is admissible in terms of Kerala Act and, therefore, the limitation is 3 years under Article 113 of the Limitation Act. Thus, the suit against non-State wrong doers can, therefore, be brought within 3 years. We also clarify that all claims in respect of tortious act committed by the State, either for loss of dependency or for loss of estate, Article 113 would apply as held in Bhaskaran Nair's case ( supra ) and Subhadra's case ( supra ).

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The fourth defendant employed deceased Gireesh and Prabeesh to tie up and pull, one coconut tree with iron winding wire, as the tree was slanting towards the house of the fourth defendant. An electric power line was passing through the house of the fourth defendant. While the deceased

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R.F.A.Nos.237/2007 & 238/2007

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Gireesh and Prabeesh along with some other workers were doing the tie-up work using iron wire, the iron wire came in contact with the electric line which resulted in electrocution of Gireesh and Prabeesh. The fourth defendant took the stand that he had informed the officials of the Board but the Board did not switch off the power supply. However, this plea was negatived by the court below. The court below found that besides the Board, defendant No.4 also is liable. We find there is nothing on record to absolve defendant No.4. Having regard to the facts of the case, we have no doubt that defendant No.4 is also equally liable as he had failed to inform the Board before engaging the workers for the activity of tying the coconut tree. We affirm the finding of the court below on negligence.

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The court below found that plaintiffs are entitled for Rs.2,88,000/- towards loss of dependency and Rs.35,000/- towards loss of estate. The court below calculated loss of dependency by reckoning the age of the parents of the deceased. The court below took notional income as Rs.24,000/-. The court below did not deduct any expenses towards the maintenance of the deceased from the notional income. We find that calculation of notional income does not make any difference, as the court

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R.F.A.Nos.237/2007 & 238/2007

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below ought to have fixed the notional income at Rs.36,000/- in view of the

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judgement Laxmi Devi vs. Mohammad Tabbar [2008 ACJ 1488] . Therefore, even if 1/3^rd is deducted, income would have arrived at Rs.24,000/-. Thus, we find that calculation of loss of dependency is proper and correct. We also do not find any reason to interfere with the amount of Rs.35,000/- awarded for loss of happiness and solace, and towards funeral expenses, as against claim of 1,40,000/-. However, we find that no compensation is awarded for loss of expectation of life. We, therefore find that plaintiff's are entitled for loss compensation on account of loss of expectation of life, which we quantify at Rs.50,000/- in respect of each suit. Thus, the plaintiffs would be entitled to Rs.85,000/- in total towards loss of estate. The court below directed that out of the total compensation amount of Rs.3,23,000/- the plaintiffs in each suit are entitled to get Rs.2,48,000/from the Board and Rs.75,000/- from the fourth defendant.

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In view of the discussion afore-noted regarding limitation, we

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find that no claim against the appellant/fourth defendant is admissible under Section 1A of the Fatal Accidents Act for loss of dependency as the suit is barred against him, for being filed after two years. However, certainly,

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R.F.A.Nos.237/2007 & 238/2007

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claim against the fourth defendant is maintainable for loss of estate. Therefore, the question is, to what extent defendant No.4 can be made liable for loss of estate. We have already found that the plaintiffs are entitled to Rs.85,000/- towards loss of estate. Then, the question that arises for consideration before us, is it possible for the plaintiffs to split up the claim of loss of dependency against one of the tortfeasors and claim of loss of estate against the other tortfeasors? We are of the view, such course of action is possible at the instance of the plaintiffs. It is open for the plaintiffs to make a distinct claim against joint and several tortfeasors. We have noted that causes of action are distinct for claim under loss of dependency and loss of estate. Therefore, a distinct claim can be laid against joint and several tortfeasors. Under Section 7 of Part III Kerala Act, it is laid down that judgment obtained against any tortfeasors liable in respect of that damage shall not be a bar to take action against any other persons, who would, if sued, have been liable as joint tortfeasors, in respect of the same damage. Therefore, it is clear claim for loss of estate under the Kerala Act; a distinct action would lie as against tortfeasors in respect of the same damage. Thus, it is possible to claim loss of estate from the Board as well as from the

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R.F.A.Nos.237/2007 & 238/2007

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fourth defendant. The court below only ordered Rs.75,000/- as against the fourth defendant. We have already found that plaintiffs are entitled to Rs.85,000/- towards loss of estate. The liability now directed to be recovered from the fourth defendant could be construed as a liability arising towards loss of estate. We, therefore, find there is no scope of interference by us in the judgment of the court below, even though, it is for the different reasons. Accordingly, the appeals are dismissed. No order as to costs.

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Sd/-

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THOTTATHIL B.RADHAKRISHNAN, JUDGE

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Sd/-

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A.MUHAMED MUSTAQUE, JUDGE

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S. Karunakaran Pillai v. Chacko

Case brief

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S. Karunakaran Pillai v. Chacko

Case brief

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