The court upheld the trial court's decision, ruling that the defendants could not raise a limitation defense not presented at trial, and that plaintiffs proved negligence in the electrocution case.

JUDGMENT :

1. This Civil First Appeal has been preferred by the defendants-appellants against the judgment dated 29.06.2022 passed in civil original suit titled Gayana Devi & Ors vs State of J&K & Ors, by the Court of Principal District Judge, Ramban, whereby compensation was ordered to be paid to the plaintiffs-respondents.

2. The Trial Court in a Pauper Suit filed by the plaintiffs-respondents herein seeking recovery of an amount of ₹15.00 lacs as compensation for the death of one Pritam Singh, husband of respondent No.1 and father of respondent Nos. 2 to 5 in a fatal accident, pleading that on July 05, 2015 at 11:00 AM, the deceased while standing on the right side of his house was electrocuted by 33 KV Transmission Line laid by the defendants-appellants herein negligently at Village Sangaldan, Tehsil Gool, District Ramban.

3. After a full dressed trial by the Trial Court, the Suit was granted holding the plaintiffs-respondents herein entitled to a total compensation of Rs.11,23,000/- along with simple interest @ 9% pedentlite and 6% thereafter.

4. The impugned judgment has been assailed mainly on the grounds that the suit filed before the Trial Court suffered of limitation as provided under Section 3 of the Jammu & Kashmir Limitation Act, Svt.1995 against the settled principle of law; that the Trial Court should have considered the question of limitation even without their any defence set up by the defendants, especially when it was dealing with the suit ex-parte; that the negligence of the defendants was not proved as the plaintiffs failed to establish that the electrocution was due to defendants’ negligence.

5. Mr. Amit Gupta AAG, learned counsel for the appellants argued that the plaintiffs had not proved the negligence which was sine quo non for grant of compensation in their favour in terms of the Fatal Accidents Act and also that the Trial Court had granted compensation in a hopelessly time barred suit without addressing the point of limitation and it was prayed that the judgment impugned be set aside and the suit filed by the respondents be dismissed

6. Mr. Mayank Gupta, learned Panel counsel of Legal Services Authority, appearing for the plaintiffs-respondents, on the other hand, argued that both the contentions raised by the learned counsel for the appellants, firstly that the suit was time barred and secondly that the negligence was not proved, are misplaced in view of the fact that it was not a case of an ex-parte evidence but respondent No.4 Executive Engineer, P.D.D-Sub- Transmission Division, Udhampur and respondent No.5, Assistant Executive Engineer, Sub-Transmission, Batote had contested the suit through Mr. B. S. Bali, Advocate who had appeared before the Trial Court on their behalf. It was argued that no plea of limitation was taken by the contesting defendants before the Trial Court, as such, no issue was raised with regard to the question of limitation. Therefore, this plea cannot be raised now at this appellate stage once this has not been taken as a defence by the defendants before the Trial Court. He has also made a reference to the finding recorded on Issue No.3 with regard to maintainability in which the Trial Court had specifically held that the defendants though generally pleaded that the suit was not maintainable but failed to show as to why the suit was not maintainable and had also not led any evidence with regard to it. He has further argued that the plea that the plaintiffs had not proved the negligence is also misplaced in view of the evidence led by the respondents as plaintiffs before the Trial Court. Therefore, this appeal fails on both the contentions made by the appellants.

7. Since no specific plea with regard to limitation was taken by the contesting defendants before the Trial Court and no specific issue of limitation was framed by the Trial Court and on a general issue with regard to non- maintainability of the suit, the contesting respondents neither led any evidence nor urged any point