Insurers cannot evade liability based on the timing of their impleadment if the delay was due to a bona fide mistake, and primary liability rests with the owner of the animal causing injury.

JUDGMENT :

(C. PRATHEEP KUMAR, J.) 

The 1^st defendant in O.S.No.1634 of 2010 on the file of the 1^st Additional Sub Judge, Thrissur is the appellant. (For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court).

2. The plaintiff filed the above suit for damages in respect of the injuries sustained when he was attacked by an elephant belonging to the 1^st defendant Devaswom. As per the plaint, the plaintiff is an artist participating with his performance in almost all famous temples in Kerala. He was an expert in performing an instrument called 'Elathalam' and he was a member of 'Panchavadhyam' team representing Cheruthuruthy desom in Kozhimamparambu Pooram festival held on 7.3.2007. The 2^nd defendant was the Secretary of the pooram festival committee. 3^rd defendant is the insurer of the elephant. During the festival, an elephant by name 'Kuttankulamgara Ramadas', owned by the 1^st defendant turned violent and at that time people gathered there ran away. In the process, the plaintiff fell down and at that time, the elephant stamped him and he sustained serious injuries including fracture of bone. In connection with the same, he was treated in Jubilee Mission Hospital, Thrissur and he underwent two surgeries. He had to spent Rs.75,000/- towards his treatment. Moreover, he had suffered severe mental pain and agony because of the injuries sustained in the incident. Alleging that the incident occurred due to the negligence of defendants 1 and 2, the plaintiff preferred the suit claiming compensation.

3. In the written statement filed by the 1^st defendant, they denied their liability to pay the compensation to the plaintiff. However, it is also contended that the elephant was insured with the 3^rd defendant. The 2^nd defendant in their written statement contended that the Pooram festival committee was an ad-hoc committee constituted for the purpose of the Pooram alone and thereafter the committee was dissolved. The 2^nd defendant also denied the liability to pay compensation to the plaintiff.

4. After the 1^st defendant filed written statement, contending that the elephant was insured with the 3^rd defendant, as per order in I.A. No.4541/2014 dated 21.8.2014 , the 3^rd defendant/insurer was impleaded. The 3^rd defendant filed written statement admitting valid insurance policy to the elephant, but denied their liability to pay compensation. Further according to the 3^rd defendant, as per the policy, their liability is limited to Rs.1,00,000/-.

5. The trial court framed four issues. The evidence in the case consists of the oral testimonies of PW1 and DW1, Exhibit A1 to A8 series and B1. After evaluating the evidence on record, the trial court found that the plaintiff sustained injuries because he was attacked by the elephant belonging to the 1^st defendant, awarded a compensation of Rs.75,000/- and directed the 1^st defendant to pay the same. The trial court exonerated the 3^rd defendant/insurer on the ground that the 3^rd defendant was impleaded in the suit after the period of limitation and as such the claim against the 3^rd defendant is barred by limitation. Aggrieved by the above judgment and decree of the trial court, the 1^st defendant preferred this appeal.

6. Now the points that arise for consideration are the following:

1) Whether, in a suit for damages filed against the tortfeasor within the period of limitation, the insurer impleaded thereafter can raise the plea of limitation?

2) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal?

7. Heard Sri.G. Sreekumar Chelur, the learned counsel for the appellant, Sri. M.P. Ashok Kumar, the learned counsel for the 1^st respondent/claimant and Sri. John Joseph Vettikkad,