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2000 DIGILAW 440 (DEL)

B. S. BAMHRAH v. UNION OF INDIA

2000-05-23

VIKRAMAJIT SEN

body2000
VIKRAMAJITSEN,j. ( 1 ) THE plaintiff has filed the present suit for the recovery of damages/compensationbecause he sustained severe injuries paralysing and decapacitating him completelyduring the 4th Himalyan Car Rally when the Army service vehicle carrying him metwith an accident. An amount of Rs. 43,32,270. 00 is in claim and since the suit has beenfiled as an indigent person, no court fee has been affixed. What has to be decided atthis juncture is whether the suit is barred from being adjudicated upon, having beenfiled beyond the prescribed period of limitation. The relevant facts stated briefly arethat the Plaintiff was commissioned on 24. 12. 1982, and according to him he wasdetailed for the said Rally in a follow-up vehicle to assist senior participating officers. On 25. 10. 1983 the accident occurred due to the alleged gross negligence and rashand hasty planning of the Defendants. A Court of Inquiry was held on 27. 10. 1988which did not hold anyone responsible for the accident. Predicated on this Inquiry it isstated that no compensation was granted. It appears that no insurance cover hadbeen taken. On 22. 1. 1984 pursuant to a Medical Board, the Plaintiff was invalidatedout of the Army with 100 per cent (total) disability. It is stated in the plaint that from1985-90 the Plaintiff s father corresponded with Respondents for doing justice to theplaintiff, on the grounds that the matter had not been properly investigated. In thisperiod, on 6. 10. 1988 the last medical examination of the Plaintiff was carried out. Itwas on 31. 12. 1990 that the Army Head Quarters had informed the Plaintiff, as hasbeen alleged by him, that no compensation would be paid to the Plaintiff. On25. 4. 1991 a legal notice was issued by the Plaintiff to the Defendants. The plaint isdated 25. 10. 1991 but appears to have been filed on 27. 11. 1991: it was listed beforethe Registrar as late as on 10. 2. 1992, was thereupon registered and notice wasissued to the Defendants. In its Written Statement the Defendants have submitted,inter alia, that the claim ought to have been filed before the Motor Accident Claimtribunal; and in order to cover up the grossly delayed action, the plaintiff has resortedto the filing of a suit, which remedy is not available to the Plaintiff since about nineyears have elapsed since the date of the accident. In its Written Statement the Defendants have submitted,inter alia, that the claim ought to have been filed before the Motor Accident Claimtribunal; and in order to cover up the grossly delayed action, the plaintiff has resortedto the filing of a suit, which remedy is not available to the Plaintiff since about nineyears have elapsed since the date of the accident. It is averred that the Plaintiff hadvolunteered for participation in the Rally, and that all army personnel are alreadyinsured under the Army Group Insurance Fund. The finding of the Court of Inquiry wasthat the accident was caused due to circumstances beyond the control of the vehicledriver. There is only a perfunctory and hence evasive denial in the Replication todefendant s statement in paragraph 62 of the Written Statement that the Plaintiff hasreceived his dues from the Army Group Insurance Fund, and that he is still receivingpension as applicable to him. ( 2 ) ARGUMENTS were heard on the maintainability of the suit in view of the law oflimitation. Learned counsel for the Defendants had submitted that the ill-fated accidentand the consequent injuries were sustained by the Plaintiff on 25. 10. 1983, and thesuit having been filed in November 1991, it was hopelessly barred by time. It was hiscontention that in order to succeed, the Plaintiff must bring his case within the ambitof Section 14 of the Limitation Act, and that the Plaintiff has been unable to do so. Theplaintiff on the contrary, has submitted that if limitation is calculated from 31. 12. 1990when, allegedly, the Army Head-Quarters finally declined to pay compensation, thesuit having been filed in November, 1991 is clearly within time. Learned counsel hadrested his case on the decisions of the Apex Court rendered in Raghubir Jha Vs. State of Bihar and Others, AIR 1986 SC 508 ; Jay Laxmi Salt Works (P) Ltd. Vs. State of Gujarat, 1994 ACJ 902; N. Balakrishnan Vs. M. Krishnamurthy, (1998)7 SCC 123 ; A. C. Bhandari Vs. New Victoria Mills, AIR 1979 All 1 ; and Shamanmale Misrimale Vs. Radhakrishnan, AIR 1972 Mad 108 . ( 3 ) SHA Manmale s case (supra) does not advance the Plaintiff s case; in fact itruns counter to the argument advanced on his behalf. The learned Division Benchobserved that since the letters relied upon by the Plaintiff merely called for a Statementof Account, it was no acknowledgment of liability. Radhakrishnan, AIR 1972 Mad 108 . ( 3 ) SHA Manmale s case (supra) does not advance the Plaintiff s case; in fact itruns counter to the argument advanced on his behalf. The learned Division Benchobserved that since the letters relied upon by the Plaintiff merely called for a Statementof Account, it was no acknowledgment of liability. It was held, on facts that the suit wasnot barred by limitation since the payments were made without indicating any particulardisability. Significantly, it was also opined that it was obligatory under Order VII, Rule6 of the Code of Civil Procedure, 1908 to clearly plead the grounds upon which theexemption from limitation is claimed. The pleading in this context is to be found inparagraph 63a of the plaint and in my view does not contain sufficient and precisedetails. It reads as follows : "63a LIMITATIONThat the suit is within limitation. During these years since the accident theplaintiff was corresponding for relief on behalf of plaintiff as well as plaintiff smedical reviews were going on and the last letter received from the Adjutantgeneral s Branch, Army Headquarters to an appeal by Plaintiff s father forfinancial help and payment of compensation and legitimate dues is dated27. 3. 1991. The Army authorities have refused to pay any compensation onthe points raised by the Plaintiff s father in his letter dated 31/12/1990 addressed to the chief of Army Staff defendant No. 2. A copy each ofletter dated 31. 12. 90 and 27. 3. 91 is enclosed as Annexure A11 and Annexurea12 respectively. " ( 4 ) FOR the same reasons, I am also unable to appreciate the applicability of thenew Victoria Mills case (supra) to the arguments advanced by Learned Counsel forthe Plaintiff. In a suit for recovery of a debt, it was held that Section 18 of the Limitationact, 1963 was available to the Plaintiff since it was held that the letter relied upon bythe Plaintiff contained a clear and unequivocal admission of the Plaintiff s claim andin the Written Statement it had further been admitted that certain sums were due. Noadmission or acknowledgment has been in the case in hand: infact the Plaintiffappears to be aggrieved by the reticence and failure of the Defendant to respond. Noadmission or acknowledgment has been in the case in hand: infact the Plaintiffappears to be aggrieved by the reticence and failure of the Defendant to respond. ( 5 ) THE Apex Court did not consider the applicability of Section 14 and Article 113of the Limitation Act in Raghubir Jha s case (supra), although the Head Note of thereport indicates so; the judgment is perspicuous and cannot be read as laying downa general principle. ( 6 ) BALAKRISHNAN s case (supra) is related to an interpretation of Section 5 and notsection 14 of the Limitation Act. The language of these Sections is so disparate thatthe fine considerations in one would have no applicability in the other. The Apexcourt was not dealing with the condonation of delay in filing a suit. If the considerationsfor both are the same, there would be not necessity to separate sections. Section 5and Section 14 are reproduced below to adumbrate their difference and for easyreference: "5. Extension of prescribed period in certain cases.-Any appeal orany application, other than an application under any of the provisions of Or. XXI of the Code of Civil Procedure 1908 (5 of 1908), may be admitted afterthe prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the applicationwithin such period. Explanation.- The fact that the appellant or the applicant was misled by anyorder, practice or judgment of the High Court in ascertaining or computingthe prescribed period may be sufficient cause within the meaning of thissection. " "14. Exclusion of time of proceeding bona fide in court withoutjurisdiction.- (1) In computing the period of limitation for any suit the timeduring which the plaintiff has been prosecuting with due diligence anothercivil proceeding, whether in a court of first instance or of appeal or revision,against the defendant shall be excluded, where the proceeding relates to thesame matter in issue and is prosecuted in good faith in a court which fromdefect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time duringwhich the applicant has been prosecuting with due diligence another civilproceeding, whether in a court of first instance or of appeal or revision,against the same party for the same relief shall be excluded, where suchproceeding is prosecuted in good faith in a court which, from defect ofjurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of 0r. 23 of the Code of Civilprocedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply inrelation to a fresh suit instituted on permission granted by the Court underr (1) of that order where such permission is granted on the ground that thefirst suit must fail by reason of adefect in the jurisdiction of the court or othercause of a like nature. Explanation.-For the purposes of this section.- (a) in excluding the time during which a former civil proceeding waspending, the day on which that proceeding was instituted and the dayon which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed tobe prosecuting a proceeding: (c) misjoinder of parties or of causes of action shall be deemed to bea cause of a like nature with defect of jurisdiction. " ( 7 ) IN Balakrishnan s case (supra) the Court explained and thereafter applied theprinciple of "sufficient cause" to condone the delay in filing an application for restorationof a suit. However, the Court made the following observations while condoning thedelay. "11. Rules of limitation are not meant to destroy the rights of parties. Theyare meant to see that parties do not resort to dilatory tactics, but seek theirremedy promptly. The object of providing a legal remedy is to repair thedamage caused by reason of legal injury. The law of limitation fixes a lifespanfor such legal remedy for the redress of the legal injury so suffered. Time isprecious and wasted time would never revisit. During the efflux of time, newercauses would sprout up necessitating newer persons to seek legal remedyby approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertaintyand consequential anarchy. The law of limitation is thus founded on publicpolicy. Time isprecious and wasted time would never revisit. During the efflux of time, newercauses would sprout up necessitating newer persons to seek legal remedyby approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertaintyand consequential anarchy. The law of limitation is thus founded on publicpolicy. It is enshrined in the maxim interest reipublicae up sit finis litium (it isfor the general welfare that a period be put to litigation ). Rules of limitationare not meant to destroy the rights of the parties. They are meant to see thatparties do not resort to dilatory tactics but seek their remedy promptly. Theidea is that every legal remedy must be kept alive for a legislatively fixedperiod of time". "12. A court knows that refusal to condone delay would result in foreclosinga suitor from putting forth his cause. There is no presumption that delay inapproaching the court is always deliberate. This court has held that thewords sufficient cause under Section 5 of the Limitation Act should receive aliberal construction so as to advance substantial justice vide Shakuntaladevi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 and State of W. B. Vs. Administrator, Howrah Municipality, (1972) 1 SCC 366 " ( 8 ) IT would be of advantage to immediately refer to the decision in Ramlal and Ors. Vs. Rewa Coalfields Ltd. , AIR 1962 Sc 361 , where the Court had cautioned againstignoring the difference between Sections 5 and 14 of the Limitation Act. The Supremecourt spoke in these words: "12. It is, however, necessary to emphasise that even after sufficient causehas been shown a party is not entitled to the condonation of delay in questionas a matter of right. The proof of-a sufficient cause is a condition precedentfor the exercise of the discretionary jurisdiction vested in the Court by S. 5. Ifsufficient cause is not proved nothing further has to be done; the applicationfor condoning delay has to be dismissed on that ground alone. If sufficientcause is shown then the Court has to enquire whether in its discretion itshould condone the delay. Ifsufficient cause is not proved nothing further has to be done; the applicationfor condoning delay has to be dismissed on that ground alone. If sufficientcause is shown then the Court has to enquire whether in its discretion itshould condone the delay. This aspect of the matter naturally introduces theconsideration of all relevant facts and it is at this stage that diligence of theparty or its bona fides may fall for consideration; but the scope of the enquirywhile exercising the discretionary power after sufficient cause is shown wouldnaturally be limited only to such facts as the court may regard as relevant. Itcannot justify an enquiry as to why the party was sitting idle during all the timeavailable to it. In this connection we may point out that considerations of bonafides or due diligence are always material and relevant when the Court isdealing with applications made under S. 14 of the Limitation Act. In dealingwith such applications the court is called upon to consider the effect of thecombined provisions of Sections 5 and 14. Therefore, in our opinion,considerations which have been expressly made material and relevant by theprovisions of S. 14 cannot to the same extent and in the same manner beinvoked in dealing with applications which fall to be decided only undersection 5 without reference to S. 14". ( 9 ) ON a reading of Section 14 of the Limitation Act it would be clear that thefollowing conditions must exist if delay in filing a suit, in contradistinction to anapplication, is to be condoned :a) the suit must be between the same adversaries to both the litigations. b) the Plaintiff should have been prosecuting, with due diligence and/orgood faith. c) another civil proceeding. d) in a court of first instance, or appeal or revision. e) both the proceedings (i. e. between the same adversaries) should bepertain to the same matter. f) the previous civil proceeding should not be entertainable by the Court,because of a defect of jurisdiction or other cause of like nature. 10. Learned counset for the Plaintiff also relied on the decision of the Apex Court injay Laxmi s case (supra ). The Plaintiff in those proceedings had filed a suit forrecovery of damages caused to its factory premises because of the construction of abundh. An official committee was appointed which assessed the loss suffered at Rs. 1,58,735. 00. Since this amount was not paid the suit was filed. The Plaintiff in those proceedings had filed a suit forrecovery of damages caused to its factory premises because of the construction of abundh. An official committee was appointed which assessed the loss suffered at Rs. 1,58,735. 00. Since this amount was not paid the suit was filed. Two points arose forconsideration, (a) that there was no negligence either in the construction of the bundhor in the action of the officers and (b) whether the suit was barred by limitation in thecontext of the provisions of the Limitation Act, 1908. The reliance placed by learned counsel for the Plaintiff is on the observation of the Court regarding condonation ofdelay in the filing of the plaint. Article 36 of the old Act was to be construed whichstipulated as follows: "description of suit. Period of Time from whichlimitation period begins to run. 36.- For compensation Two years When the malfeasancefor any malfeasance, misfeasance, ormisfeasance or non- non-feasancefeasance independent takes place. "of contract and. not herein speciallyprovided for. ( 11 ) IT is not in dispute that in the case in hand it is Article 113 of the Limitation Act,1963 which is. attracted and it reads as follows : "description of suit. Period of Time from whichlimitation period begins to run. 36.- Any suit for Three years When the right to suewhich no period of accrues. "limitation isprovided elsewherein this Schedule. ( 12 ) EVEN though there is some difference in the language of the two Articles the ratioof the judgment in Jay Laxmi Salt Works case (supra) is applicable and is thereforereproduced. "the word when means at what time. The time, according to finding recordedby the High Court, was negligence in the act of planning and construction ofbundh. When did it take place? take has many shades of meaning. How itshould be understood, precisely, in a set of circumstances depends on thecontext in which it has been used. Literally speaking, it can mean when ithappens but that would not be consistent with the purpose of its use and maydefeat the very objective as malfeasance or non-feasance arose not on 4thor 5th July but when dam was started in 1955 and in any case whencompleted in 1956. At that time there could have been no occasion for theappellant to claim any damage. Therefore, time obviously cannot be said torun either from the date the construction of bundh was commenced or it wascompleted. At that time there could have been no occasion for theappellant to claim any damage. Therefore, time obviously cannot be said torun either from the date the construction of bundh was commenced or it wascompleted. Therefore, the computation has to be from some other points. For instance, where there is a single wrong the time may start runningimmediately. In cases of assault, battery or death the cause of action mayarise immediately. The limitation may be counted from that very point. It is theindividual or the single act which by itself furnishes the cause of action. Butthere may be others where even though injury may have been caused butthe cause of action may not arise unless something more happens. Forinstance, if one accumulates something hazardous on its own premises and itleaks then the cause of action will arise not by accumulation or even by mereleakage but cause of damage and injury. Therefore, the construction of thewords when and takes place used in Article 36 has to be construedliberally so as not to deprive the person who suffers damages. In wrongs likenegligence, strict liability or violation of public duty time begins to run notbefore the damage takes place. But the computation under the article has to. be from malfeasance, misfeasance and non-feasance. It has been explainedearlier that the negligence or eolation in such duty which results in damagecould not furnish the stating point. What could be the other point? Thecause of action to claim damages arises when the actual loss has takenplace. It is thus not the date on which negligence or mistake took place butthe date when injury is suffered. But computation has to be from misfeasanceor non-feasance, etc. , that is violation of duty. This duty has to be differentthan the duty. which was the cause of negligence. Therefore, in such actionswhich are-latent in nature the aggrieved party has to make a claim fordamages and it is the failure in discharge of this duty in this regard which toocan furnish the starting point of limitation. Since the authorities refused to paydamages even though it was got assessed at their own direction thecomputation of the period for filing suit could arise from that date. Otherwise itwould cause great injustice. Since the authorities refused to paydamages even though it was got assessed at their own direction thecomputation of the period for filing suit could arise from that date. Otherwise itwould cause great injustice. A common man, an average citizen who in adeveloping country cannot afford to pay huge court fee would be deprived ofhis just claim only because he was pursuing his remedy vigilantly in thegovernment of a welfare State. Therefore, the computation for purposes of limitation under Article 36 couldcommence either from the date when malfeasance, misfeasance or non-feasance occurred or from the date when the damage took place or whereclaim is lodged within period allowed by law and the damage is ascertainedthen from the date the claim is rejected. It is the improper performance of dutyor arbitrary action of the authorities in not accepting the claim when damagewas found by the Official Committee to have taken place. The limitation to filethe suit on facts of this case arises from the date the Government refused topay the amount determined by the committee. Since the rejection was notcommunicated nor the copy of the report was supplied despite request thesuit could not be said to be barred by time. " ( 13 ) THE Apex Court explicitly stated that the limitation to file the suit, on facts of thecase arose when the Government refused to pay the amount determined by the Committee. It did not lay down a general principle of universal application to everycase that a party can keep making representations, which if ignored, would extendthe period of limitation. The decision was not rendered in the circumstances envisagedinsection 14 of the Limitation Act, 1908; in fact this Section was not even referred to. ( 14 ) THE contention of learned counsel for the Plaintiff is that the Plaintiff is entitled toextension of time/condonation of delay under Section 14 of the Act. The cause ofaction had arisen on 25. 10. 1983 when the accident occurred. The suit ought to havebeen filed within three years, that is, 24. 10. 1986. It is the Plaintiff s case that all therepresentation made on his behalf were ignored and the Army refused to pay anycompensation. It has not even been asserted, as indeed it could not have been, in theplaint or at the time of arguments, that the representations made to the Armyconstituted Civil Proceedings in a Court. 10. 1986. It is the Plaintiff s case that all therepresentation made on his behalf were ignored and the Army refused to pay anycompensation. It has not even been asserted, as indeed it could not have been, in theplaint or at the time of arguments, that the representations made to the Armyconstituted Civil Proceedings in a Court. At no point of time had the Defendantsindicated that some compensation would be paid to the Plaintiff. Nor did the Defendantrefer the claims for adjudication to a third party, which thereupon decided on a sum ofmoneyas damages. There is no scope for application of the decision of the Supremecourt in Jay Laxmi Salt Works case (supra ). ( 15 ) SINCE the provisions of Section 14 of the Limitation Act are not applicable to thefacts averred in the plaint, and since the suit has been filed beyond three years of thearising of the cause of action, there is no alternative available to the Court but todismiss it. Since none of the arguments raised on behalf of the Plaintiff have merit,the suit deserves to be dismissed with costs. It is dismissed accordingly. However,because of the tragic accident and the consequent disability of the Plaintiff, I amdesisting from imposing any costs.