Judgment:
P.K. Misra, J.
1. Plaintiff is the appellant. Shi had filed the suit claiming damages of Rs. 50,000/- on the allegation that her son expired due to electric shock as he came in contact with a live wire hanging from the pole. It was claimedthat the accident took place due to negligence of the defendants.
2. The Chairman, Orissa State Electricity Board, and the Executive Engineer, Electrical Division, Rairangpur, who had been arrayed as defendants 2 and 3 filed one written statement denying the allegations relating to negligence on the part of the defendants. It was also pleaded that the suit was barred by limitation and not maintainable as notice under Section 80, Code of Civil Procedure, had not been issued. The State of Orissa and Collector, Mayurbhanj, who had been impleaded as defendants 1 and 4 did not file any written statement.
3. The trial Court found that there was negligence on the part of the defendants. However, the suit was dismissed on the ground of limitation as well as on the ground that notice under Section 80, C.P.C. had not been issued. Against the aforesaid judgment dismissing the suit, the present appeal has been filed.
4. A petition for amendment has been filed in this appeal stating that in place of Electricity Board, its successor, the Grid Corporation of Orissa, may be impleaded. Since the rights and liabilities of the State Electricity Board have devolved upon the Grid Corporation, the petition for amendment is allowed and the Grid Corporation is impleaded as respondent No. 2 in place of Orissa State Electricity Board, original respondent No, 2. Since counsel for the State Electricity Board also appears for the Grid Corporation, there is no necessity of issuing any fresh notice to the Grid Corporation.
5. The learned Counsel appearing for the appellant submits that the suit had not been contested by the State and the Collector-defendants 1 and 4 respectively. It is, therefore, contended that the question as to whether there was valid notice under Section 80, C.P.C. or not could have been raised only by the State and the Collector and such a plea was not available to be raised at the instance of the State Electricity Board. Though State Electricity Board can be construed to be 'State' within the meaning of Article 12 of the Constitution of India, for the purpose of Section 80, C.P.C., State Electricity Board cannot be construed to be 'State'. Notice as contemplated under Section 80, C.P.C. was not required to be served on the State Electricity Board. As such the contention of the appellant on this scoreis well-founded. Of course, it was open to the State as well as the District Magistrate (defendants 1 and 4) to raise such question. However, since such question has not been raised by them and since question of issuance of notice under Section 80, C.P.C. can be waived by the concerned defendants, the suit could not have been dismissed on the ground that Section 80 notice had not been served.
6. The next question relates to limitation. The trial Court held that the suit being by a representative of the deceased for damages on account of death of the deceased due to negligent action of the defendants, the suit should be taken to be a suit under Section 1A of the Indian Fatal Accidents Act and Article 82 of the Limitation Act is applicable. Since death took place on 22-6-1983 and the suit was filed on 27th August, 1985, more than two years after the cause of action arose, the suit is barred' by limitation. The learned Counsel appearing for the appellant while not disputing that the suit is one under Section 1A of the Fatal Accidents Act and Article 82 of the Limitation Act is applicable, contends that in view of the provisions contained in Section 9 of the Limitation Act and Section 33 of the Indian Electricity Act, the plaintiff had the right to wait for a reasonable period to get compensation for loss of life of her son and the period of limitation stopped running by virtue of the express statutory provision contained in Section 9 of the Limitation Act and Section 33 of the Indian Electricity Act.
7. Section 9 of the Limitation Act reads as follows :--
'9. Continuous running of time.-
Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it: Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues.' On a perusal of the aforesaid provision, it is clear that once time begins to run, the subsequent disability or inability of the plaintiff to institute a suit would not stop running of limitation. The Proviso to Section 9 contains an exception to the aforesaid principle. The Proviso contemplatesonly a particular situation when the running of period of limitation for suit to recover the debt shall be suspended in a case where the letters of administration to the estate of a creditor have been granted to the debtor. It is obvious that Section 9 can have no application to the present case.
The learned Counsel for the appellant has relied upon the decisions reported in AIR 1961 Cal 353, Midnapore Zamindary Co. Ltd. v. State of West Bengal; AIR 1991 Kant 119, K. Venkoji Rao v. M. Abdul Khuddur Kureshi, as well as the decisions reported in AIR 1968 Mad 226, Arunachalam Pillai v. M. Velamma; AIR 1953 Pat 35, Ajablal Mander v. Jai Prakash Lal Sahu; AIR 1950 All 526, Sri Niwas Tewari v. Baleshwar Prasad Bhagat; and AIR 1939 Bom 1, Narayan Jiyaji Patil v. Gurnathgouda Khandarnpagouda Patil. A perusal of these decisions indicates that none of the decisions is applicable to the facts and circumstances of the present case.
8. Section 33 of the Indian Electricity Act is also equally inapplicable, The said provision is as follows:--
'33. Notice of accidents and inquiries.-
(1) If any accident occurs in connection with the generation, transmission, supply or use of energy in or in connection with, any part of the electric supply lines or other works of any person and the accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give, notice to the occurrence and of any such loss or injury actually caused by the accident, in such form and within such time as may be prescribed, to the Electrical Inspector and to such other authorities as the appropriate Government may by general or special order, direct.
(2) The appropriate Government may, if it thinks fit, require any Electrical Inspector, or any other competent person appointed by it in this behalf to inquire and report-
(a) as to the cause of any accident affecting the safety of the public, which may have been occasioned by, or in connection with, the generation, transmission, supply or use of energy, or
(b) as to the manner in and extent to which the provisions of this Act or of any licence or rules thereunder, so far as those provisions affect the safety to any person, have been complied with.
(3) Every Electrical Inspector or other person holding an inquiry under Sub-section (3) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects; and every person required by any Electrical Inspector or such other person as aforesaid to furnish any information shall be deemed to be legally bound to do so within the meaning of Section 176 of the Indian Penal Code.'
Section 33 is contained in Part IV of the Indian Electricity Act, 1910, and is part of the protective clauses provided under Sections 31, 32, 33 and 34 of the said Act. A perusal of Section 33 along with the provisions contained in Sections 31, 32 and 34 makes it clear that a victim of an accident has got nothing to do with the notice contemplated in Section 33. The duty to issue notice, as contemplated under Section 33, is on the person concerned in the matter of generation, termination or supply or use of energy, or in connection with any part of the electric supply lines or other works. The statutory inquiry contemplated in Section 33 has nothing to do with the cause of action of a victim or the legal representation of the victim to claim any damages. Cause of action for such a suit arises on the happening of the incident and it does not depend upon the nature of the enquiry contemplated in Section 33. The contention of the counsel for the appellant that the plaintiff had the option of waiting for a reasonable period for completion of inquiry contemplated under Section 33 cannot be accepted.
9. The suit is for realisation of damages on account of death caused to the son of the plaintiff who is the representative of the deceased, as contemplated in Section 1A of the Indian Fatal Accidents Act. The suit squarely comes under Section 1A of the Indian Fatal Accidents Act and as such Article 82 of the Limitation Act is applicable. Article 82 contemplates a suit by representation under the Indian Fatal Accidents Act, 1855. The period of limitation is two years from the date of death of the person killed. Since the suit was admittedly filed beyond two years, there is no escape from the conclusion that the suit was barred by limitation, as has been rightly held by the trial Court.
10. For the aforesaid reasons, 1 do not find any merit in this appeal. However, keeping in view the facts and circumstances of the case, it is observed that dismissal of the suit and the appeal would not stand in the way of the respondents, particularly respondents 1 and 2 in considering payment of compensation ex gratia to the present appellant. Subject to the aforesaid observations, the appeal is dismissed. There will be no order as to costs.