Back
2002 Supreme(Guj) 2
Gujarat High Court
Judgename :K.M.MEHTA
POPATLAL GOKALDAS SHAH - Appellant
Versus
AHMEDABAD MUNICIPAL CORPORATION - Respondent
First Appeal 1859 of 2001
Decided On : 01/01/2002
Headnote:(a) Law of Tort — Negligence — Bombay Municipal Corporation Act, 1949 — Secs. 66 & 487 — Limitation Act, 1963 (Central Act 36 of 1963) — Arts. 72 & 113 — Period of limitation — Civil Procedure Code, 1908 (Central Act 5 of 1908) — Sec. 96 — Appeal — Suit for recovery of damages based on the tortious liability of Municipal Corporation — Death of son of appellant due to drowning in the swimming pool run by Municipal Corporation — Negligence of Swimming Coach in taking proper care — Claim based on tort of negligence and not under B.P.M.C. Act — Held, appellant is entitled to compensation — Provisions of Sec. 487 B.P.M.C. Act are not applicable — Further, the suit was not time barred as the residuary Art. 113 will be applicable.
It is no doubt true that in this case swimming pool has been maintained by the Corporation under discretionary duty provided under Sec. 66 of the B.P.M.C. Act. However, there is no statutory duty defined under the provisions of the Act, Rules or Regulations of the coach towards the person who is swimming. In view of the same, therefore, an act or omission of a coach by which the plaintiffs son could not be saved from drowning, the same does not fall within the breach of duty provided under the provisions of the B.P.M.C. Act. The Corporation through its servant coach has failed in discharging of its duty of care against the persons who are swimming, the case falls squarely within the tortious liability and thereby there is tortious liability of the Corporation in this behalf.
[Para 9]
Once Court holds that the Corporations servants are liable under tortious action, the next question is whether the suit filed by the plaintiffs is within the period of limitation. In this case Court has to consider Sec. 487 of the B.P.M.C. Act. According to the Corporation in this case the incident has happened on 12.2.1984. Statutory notice was served on 16.2.1985 and the suit has been filed on 21.8.1986 and, therefore, in view of Sec. 487 of the B.P.M.C. Act whether the suit is barred by Sec. 487 of the B.P.M.C. Act or not? Prima facie submission of Mr. Munshaw that the suit is barred by provisions of Sec. 487 of the B.P.M.C. Act is attractive but not acceptable in view of the judgment of the Honble Supreme Court in the case of Municipal Corporation of Delhi vs. Smt. Sushila Devi & Ors., AIR 1999 SC 1929 where in identical situation the Honble Supreme Court has held in similar circumstances identical Section of Delhi Municipal Corporation Act is not applicable when the damage is to be claimed under general law of tort. In Court view the submission of Mr. Munshaw that Sec. 487 of the B.P.M.C. Act is applicable is liable to be rejected and the suit cannot be barred under Sec. 487 of the Act in the present matter.
[Para 10]
(b) Limitation Act, 1963 (Central Act 36 of 1963) — Arts. 72 & 113 — Period of limitation — Suit claiming damages based on general law of tort — Death due to drowning while swimming in Swimming Pool run by Municipal Corporation — Negligence of Coach established — Suit filed after 2 years — Held, suit is not time barred as residuary Art. 113 is applicable and period of limitation will be 3 years — Appellants are entitled to compensation.
In Court view the coach failed and neglect to perform his duty which was not the statutory duty or not a colour of office not pursuant to any enactment i.e., provisions of the Act, rules or regulations and, therefore, Art. 72 of the Act will not apply in this case. Court has come to the aforesaid conclusions after considering the Division Bench judgment of Andhra Pradesh High Court in the case of Challa Ramkonda Reddy & Ors. vs. State of A.P. AIR 1989 AP 235 and also the judgment of the Honble Supreme Court in the case of State of Andhra Pradesh vs. Challa Ramkrishna Reddy & Ors. where the Honble Supreme Court has held that in this case the act or omission falls within the general law of tort and, therefore, after referring to Art. 72 of the Limitation Act (New Act) the Honble Supreme Court held that if the damages falls in general law of tort Art. 72 will not apply but residuary Art. 113 of the Act will apply. In this case as Court has held that damage of the deceased falls within the general law of tort and in view of the same Art. 72 will not apply but Art. 113 of the Limitation Act will apply.
[Para 10.2]
The defendant Municipal Corporation is directed to pay to the appellants Rs. 80,000/- (Rupees eighty thousand) in all with 9% interest per annum from the date of the suit in this behalf within three months from the date of the order.
[Para 11]
( 1 ) POPATLAL Gokaldas Shah and others, appellants original plaintiffs have filed this First Appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 29/10/1999, passed by the learned City Civil Judge, Ahmedabad, in Civil Suit No. 6387 of 1987. The learned Judge by his impugned judgment has held that plaintiffs proved that deceased Jayeshkumar received injuries resulting into death while taking bath in the swimming pool on account of negligence of the defendant-Corporation in maintaining the swimming pool. The plaintiffs are entitled to compensation. However, the learned Judge has held that the Corporation has been able to prove that the suit is not maintainable in view of provisions of Sec. 487 of the Bombay Provincial Municipal Corporations Act (hereinafter referred to as `the Act ). The learned Judge further held that even if sec. 487 of the Act is not applicable as per Article 72 of the Limitation Act, 1963, the incident took place on 12. 2. 84 and suit in question was filed on 21. 8. 86 and therefore the suit is barred by period of limitation for claiming compensation and thereby dismissed the suit.
( 2 ) THE facts giving rise to this appeal are as under:-2. 1 it is the case of the plaintiff that deceased Jayeshbhai aged about 21 years was their son. The plaintiff No. 1 is the father of Jayeshbhai and plaintiff No. 2 - Sushilaben is the mother of the deceased Jayeshbhai. It is the case of the plaintiff that defendant Ahmedabad Municipal Corporation constituted under the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as `the Act ). As per the provisions of the Act, the Municipality has to function certain obligatory statutory duty which is provided under Sec. 65 of the Act and certain discretionary duty provided under Sec. 66 of the Act. It is contended that the Corporation is maintaining the swimming pool at Bapunagar known as Lal Bahadur Stadium swimming pool. 2. 2 it is the case of the plaintiffs that deceased Jayeshbhai went for swimming at the Bapunagar Swimming Pool at Bapunagar on 12. 2. 84 at about 8. 30 a. m. For the purpose of swimming he has taken dive but at that time he met with an accident and he became serious. From there he was taken to Shardaben Hospital and ultimately he died on the way to hospital and he was declared dead in the hospital. 2. 3 it is the case of the plaintiffs that, when plaintiffs met with an accident, the coach of the swimming pool has not taken proper protection and care by giving immediate help. The Corporation also did not provide medical aid also. So deceased Jayesh succumbed to the injury and ultimately died. 2. 4 it is the plaintiffs case that deceased was earning Rs. 600. 00 per month at the time of accident by repairing scooters. The deceased was unmarried person therefore he could have contributed 2/3rd of his income to the plaintiffs out of Rs. 600. 00 p. m. i. e. Rs. 400/p. m. The deceased was aged 21 years at the time of the accident. Thus the total dependency loss comes to Rs. 76,800. 00 and Rs. 3200. 00 compensation towards expectation of life. Thus, plaintiffs suffered a loss of Rs. 80,000. 00 in view of the death of the deceased. The plaintiffs also issued notice dated 16/02/1985 (Exh. 37) to the Corporation and ultimately filed suit on 21/08/1986. 2. 5 the defendant filed written statement at Exh. 12. In the written statement the Corporation made following submissions:2. 6 it was submitted that to maintain the swimming pool is discretionary duty under Sec. 66 of the Act, and the defendant having acted with bonafide intention and good faith, its action is immuned from being challenged under sec. 487 of the Act. It was submitted that the cause of action arose in favour of the plaintiffs on 12. 2. 84 when the deceased Jayesh died allegedly in the swimming pool, the suit having been filed after the prescribed time under sec. 487 is barred by limitation and hence the suit deser
