The running of limitation is not suspended by the provisions of Section 9 of the Limitation Act and Section 33 of the Indian Electricity Act in a suit for damages for death caused by electric shock.

P. K. MISRA, J.

( 1 ) PLAINTIFF is the appellant. She 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 claimed that 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 score is 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 vi