The main legal point established is the application of the Limitation Act, specifically Article 72, to suits for compensation for acts alleged to be in pursuance of any enactment.

JUDGMENT :

K.R. Mohapatra, J.

Judgment and decree dated 17.09.2004 and 30.09.2004 respectively passed by the learned Civil Judge (Senior Division), Keonjhar in dismissing the Money Suit No.30 of 2002 is under challenge in this appeal.

2. The suit was filed by the parents of the deceased-Ranjit Penthei claiming damages of Rs.3,00,000/-for the death of said Ranjit (for short, ‘deceased’) due to electrocution. In the meantime, appellant No.1-Jadumani Penthei (father of the deceased) has died and appellant No.2-Gomati Penthei, the mother of the deceased is only prosecuting the appeal.

3. Case of the plaintiffs in short is that due to heavy rain and storm in the night of 4/5.10.2000, the live electricity wire in their village Kalima was snapped and was hanging from the pole. The same was not attended to by the distribution Company, namely, North Eastern Electricity Supply Company Orissa Limited (NESCO) personnel, who were in-charge of maintenance in that area in spite of information. As a result, Ranjit Penthei (the deceased), a young man of 19/20 years old came in contact with the live wire at 9/10 AM, while escorting the cattle near the electric pole and died instantaneously. The FIR was lodged at Telkoi Police Station, and on requisition, postmortem examination was conducted over the corpus. The postmortem report disclosed that the death was caused due to electrocution. Such an unfortunate incident occurred due to the negligent act of officials of NESCO. At the time of death, the deceased was earning about Rs.4,000/-per month. Due to death of the only earning member of the family, the plaintiffs are starving and thus the suit was filed for the aforesaid relief.

The defendant No.2 only appeared pursuant to the notice issued and filed his written statement denying the plaint allegations. He further contended that in absence of the Company, which is in charge of distribution of electricity and maintenance, the suit is liable to be dismissed for non-joinder of necessary parties; Principles of Res Ipsa Loquitur is not applicable to the case of the plaintiffs. Defendant No.2 disputed the status of the plaintiffs as parents and dependants of deceased Ranjit Penthei. They also disputed the alleged occurrence. Amongst other, defendant No.2 took a stand that the suit is barred by limitation and is bad for non-joinder of necessary party. At para-6 of the written statement, it is categorically stated by defendant No.2 that the plaintiffs are estopped to allege that they (the defendants) can ever be held liable to pay the damages in their individual capacity in any manner, particularly, in absence of the Company, i.e., NESCO, which should have been impleaded as party to the suit. Further, defendant No.2 contended that the plaintiffs have no cause of action to file the suit. Hence, they prayed for dismissal of the suit.

4. Taking into consideration the rival contentions of the parties, learned Civil Judge (Senior Division) framed as many as seven issues out of which issue Nos. 2, 3 and 4 are relevant for adjudication of this appeal, which reads as follows:-

“2. Was there cause of action to bring the suit?

3. Is the suit bad for non-joinder of necessary parties?

4. Is the suit barred by law of limitation?”

5. While answering issue No.3, learned Civil Judge (Senior Division) though held that the plaintiffs have intimated the Lineman of Junior Engineer regarding alleged occurrence, but they are not impleaded as parties to the suit. The plaintiffs have impleaded the Managing Director, NESCO and Executive Engineer, NESCO only as defendants 1 and 2 respectively. In view of the nature of allegation, NESCO is a necessary party, but it has not been impleaded as such and the Managing Director has been impleaded in his individual capacity as party to the suit. Hence, the suit is bad for non-joinder of necessary parties.

6. While answering issue No.4, learned Civil Judge held that Article 72 of the Limitation Act is applicable for filing the suit which provides li