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Allahbad High Court
K.N.SINGH,K.M.DAYAL
Usha Rani Banerjee - Appellant
Versus
Premier Insurance Company Ltd., Madras - Respondent
Decided On : 07/07/1982
LIMITATION ACT - SECTION 6 AND 7 - JOINT RIGHT TO SUE - DISABILITY OF ONE OF THE JOINT CLAIMANTS - EFFECT ON LIMITATION - FATAL ACCIDENTS ACT, 1855 - SECTION 2 - SINGLE SUIT FOR DAMAGES - INTEREST OF LEGAL REPRESENTATIVES AND HEIRS DISTINCT - NO DISCHARGE WITHOUT CONCURRENCE OF ALL CLAIMANTS - LIMITATION DOES NOT RUN AGAINST DISABLED CLAIMANTS.
Fact of the Case:
Plaintiffs filed a suit for compensation under the Fatal Accidents Act, 1855, for the death of their husband/father, who was killed in an accident involving a vehicle insured with the defendant insurance company. The suit was initially filed against the insurance company alone, but later the owner and driver of the vehicle were also impleaded as defendants. The defendants raised the defense of limitation, arguing that the suit was barred by time.
Finding of the Court:
The court held that the suit was not barred by limitation. It held that the plaintiffs were entitled to the benefit of Section 6 of the Limitation Act, which provides that time does not run against a disabled person who may be minor, insane, or idiot. The court further held that Section 7 of the Limitation Act, which provides an exception to the general principle enunciated by Section 6, was not applicable in the instant case because the plaintiffs were not jointly entitled to institute the suit. The court also held that the insurance company was liable to indemnify the owner of the vehicle to the extent of Rs. 20,000/- under the terms of the policy and Section 96 of the Motor Vehicles Act, 1939, and that the owner and driver were jointly liable to pay the remaining amount of Rs. 10,000/- to the plaintiffs.
Issues: 1. Whether the suit was barred by limitation? 2. Whether the insurance company was liable to indemnify the owner and driver of the vehicle? 3. Whether the owner and driver were jointly liable to pay the remaining amount of Rs. 10,000/- to the plaintiffs?
Ratio Decidendi: 1. Section 6 of the Limitation Act provides that time does not run against a disabled person who may be minor, insane, or idiot. 2. Section 7 of the Limitation Act is an exception to the general principle enunciated by Section 6. It applies when more than one person are jointly entitled to institute a suit and if one of them is competent to give discharge without the concurrence of other person, in that event time will run against all the persons including the disabled person, but if no such discharge can be given, time will not run against any of them, till the disabled person becomes capable of giving such discharge without the concurrence of other or if the disability ceases to exist. 3. In the instant case, the plaintiffs were not jointly entitled to institute the suit because their interests were distinct. Each one of them was entitled to claim separate amount of damages. One person can give discharge in respect of his own right but he cannot give discharge in respect of the right of other claimant. 4. The insurance company was liable to indemnify the owner of the vehicle to the extent of Rs. 20,000/- under the terms of the policy and Section 96 of the Motor Vehicles Act, 1939. 5. The owner and driver were jointly liable to pay the remaining amount of Rs. 10,000/- to the plaintiffs.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the court below, and decreed the plaintiffs' suit for a sum of Rs. 30,000 with interest at the rate of 6% per annum from the date of the suit. The plaintiffs were entitled to recover a sum of Rs. 20,000/- with interest from the insurance company and the remaining amount of Rs. 10,000/- shall be recovered from defendants Nos. 2 and 3 with interest.
K. N. SINGH, J.:- This appeal under Sec.96 of the Civil P.C. is directed against the judgment and decree dated 21-7-1969, passed by the Additional Civil Judge, Gorakhpur, dismissing the plaintiffs-appellants suit.
2. Smt. Usha Rani Banerjee and her two children Tanaji Banerji, son and Kum. Jaisri Banerjee, daughter, filed a suit for recovery of Rs. 30,000/- as compensation from the defendant-respondents with the allegation that Madhusudan Banerji, husband of Smt. Usha Rani Banerjee, was run over and killed by Public Carrier bearing No. US0 9787, of which Biwant Singh Koheli, defendant No.2 was the owner and which was being driven by Jiwan Singh, defendant No. 3. The vehicle was insured with the Premier Insurance Co., defendant No.1. The accident occurred on account of rash and negligent driving of the vehicle causing serious injuries to Madhusudan Banerji which resulted into his death. The plaintiffs claimed a decree for damages and compensation for the amount of Rs. 30,000/- against the defendant-respondents for the death of Madhusudan Banerji who was the sole bread earner of the family. Initially the appellants had filed the suit only against the Premier Insurance Company, but later by an amendment application dated 21-4-1966, they impleaded the owner and driver of the vehicle also as defendants to the suit.
3. The defendants filed written statement denying the claim raised by the appellants. The main ground raised on behalf of the defendants was that the suit was barred by time. Defendant No. 2 and defendant No. 3, the owner and the driver respectively filed separate written statements pleading that the vehicle was not being driven in rash and negligent manner and the accident did not occur on account of any default of the driver and as such the appellants were not entitled to any damages. They also pleaded that the suit was barred by time.
4. On the pleadings of the parties, the Court below framed five issues which were to the following effect.
1. Whether defendant No. 2 had given any latitude to defendant No. 3 to drive the truck in any manner even without caring for the public on the road? If so its effect?
2. Whether the suit is barred by time?
3. To what amount of damages, if any, are the plaintiffs entitled and against whom?
4. To what relief, if any, are the plaintiffs entitled?
5. Whether death was caused by defendant No. 3 during the course of his employment with defendant No. 2? If not, its effect?
5. On appraisal of evidence, the Trial Court answered issue No. 1 against the plaintiffs on the finding that the owner had not permitted the driver to drive the truck without caring for the safety of the public on the road. Issue No. 5 was answered in plaintiffs favour on the finding that Madhusudan Banerji died in the accident on account of rash and negligent driving of the vehicle by the driver who was driving the vehicle in the course of his employment with defendant No. 2, as such the owner and the driver both were liable to pay damages to the plaintiffs. While discussing issue No. 3, the Trial Court held that Madhusudan Banerji was employed in the office of the Chief Commercial Superintendent, N.E. Railway, Gorakhpur as Head Clerk, he was drawing salary at the rate of Rs. 350/- per month. He was aged about 36 years on the date of the accident, and on account of the death of Madhusudan Banerji the plaintiffs were put to a pecuniary loss of Rs. 30,000/- which was payable by the defendants. In spite of these findings the Trial Court dismissed the suit as barred by time. Aggrieved the Plaintiffs have preferred this appeal.
6. Learned counsel for the appellants urged that the Trial Court committed error in holding that the suit was barred by time. He submitted that since Tanaji Banerji and Kum. Jaisri Banerjee were disqualified to file suit as they were minors, limitation could not run against them till they attained majority. The accident occurred on 5-10-1962, according to Art. 82 of the Limitation Act, 1963, the suit
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