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Swaraj Motors Private Ltd., Kottayam Vs. T.R. Raman Pillai and anr. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberA.S. No. 625 of 1962
Reported inAIR1968Ker315
ActsLimitation Act, 1908 - Articls 21, 22, 36 and 115
AppellantSwaraj Motors Private Ltd., Kottayam
RespondentT.R. Raman Pillai and anr.
Appellant Advocate P.K. Kurien,; K. Sukumaran and; K.A. Nayar, Advs.
Respondent Advocate C.K. Sivasankara Panicker and; P.G.P. Panicker, Advs.
DispositionAppeal allowed
Cases ReferredSobha Ram v. Tika Ram
civil - damages - articles 21, 22, 36 and 115 of schedule to limitation act, 1908 - plaintiff met with accident resulting in multiple injuries - plaintiff claimed damages on account of negligence committed by defendant's employee - subordinate judge awarded damages - whether suit time barred - controversy whether article 22 or article 36 applicable to case - if article 22 applied suit time barred - if article 36 applied suit within time - article 36 residuary article and is not applicable to case where period of limitation is specifically provided - plaintiff's suit time barred in view of position of law. - - trivandrum for better treatment. accordingly the plaintiff was discharged from the trivandrum hospital on 6-2-1959, flown to madras and admitted for treatment in the madras.....isaac, j. 1. this is an appeal by the first defendant in an action for damages for personal injuries the plaintiff is an advocate practising in the district court at kottayam. the first defendant is an incorporated company called the swaraj motors (private) ltd., which is engaged, among other things, in the operation of stage carriages. one of its motor buses, k. l k. 3026 was running express service between ernakulam and kottayam. at 9.45 a. m. on 9-1-1959, the plaintiff got into this but at kaduthuruthi for going to kottayam. at 10.45, after the bus had proceeded some distance, it capsized at a place called adichira, while negotiating a curve and giving side for another bus coming in the opposite direction. the plaintiff was thrown off and fell under the bus, as a result of which he.....

Isaac, J.

1. This is an appeal by the first defendant in an action for damages for personal injuries The plaintiff is an advocate practising in the District Court at Kottayam. The first defendant is an incorporated Company called the Swaraj Motors (Private) Ltd., which is engaged, among other things, in the operation of stage carriages. One of its motor buses, K. L K. 3026 was running express service between Ernakulam and Kottayam. At 9.45 A. M. on 9-1-1959, the plaintiff got into this but at Kaduthuruthi for going to Kottayam. At 10.45, after the bus had proceeded some distance, it capsized at a place called Adichira, while negotiating a curve and giving side for another bus coming in the opposite direction. The plaintiff was thrown off and fell under the bus, as a result of which he Buffered a compound fracture of the bone of the lower part of the left leg, a lacerated wound on the right toe and an abrasion on the dorsum of the right foot. The plaintiff was immediately taken to the Kottayam District Hospital, where he was given first aid and sent to the Medical College Hospital. Trivandrum for better treatment.

He was admitted in this hospital on the same day; and he was advised that an amputation of the leg would be necessary. Medical advice was therefore, sought at the General Hospital Madras, and Dr. M. Natarajan, who was then in charge of the Orthopaedic unit of that hospital gave the opinion that, if the patient was brought to Madras, he could try to save his limb. Accordingly the plaintiff was discharged from The Trivandrum Hospital on 6-2-1959, flown to Madras and admitted for treatment in the Madras General Hospital on 7-2-1959. He was given conservative as well as operative treatments; and was discharged on 7-5-1959. The treatment was successful; but he did not gain normality. On 5-10-1959, he was again admitted in the Madras General Hospital, and treated as inpatient till 25-2-1960. He had to undergo a third course of treatment as inpatient, for which he was admitted in the same hospital on 5-4-1960 and discharged on 24-4-1960

On 6-4-1960, the plaintiff, through his advocate, issued a notice to the first defendant claiming damages for the personal injuries caused to him as a result of the above accident; and on 2-1-1961, this action was instituted.

2. In the plaint, the plaintiff has alleged that the second defendant was the driver of the bus at the time of the accident that he was the first defendant's employee, that the first defendant failed to provide a careful, cautious and skilful driver, that the second defendant did not drive the bus with duo care, caution and skill, that he was guilty of violating the traffic regulations and rules, and that the accident took place as a result of driving the bus rashly and recklessly at fast and furious speed which negotiating a sharp curve. The plaintiff claimed Rs. 10,000/- on account of amounts already spent for treatment and other incidental expenses. Rs 2,000/ on account of expenses for future treatment, Rs. 10,000/- for loss of professional income and Rs. 25,000/-as damages for the pain, inconveniences, loss of enjoyment and shortened expectation of life, and reduced capacity for work. In all, he claimed Rs. 47,000/- as damages. The second defendant did not contest the suit.

The first defendant filed a written statement, disputing the plaintiff's claim on several grounds. It denied that the second defendant was an employee of the first defendant. At the same time, it refuted all the charges of negligence against the second defendant and contended that he drove the bus with due care, caution and skill and ability, experience and forethought. It also stated that the plaintiff was standing on the footboard of the bus, without taking a seat which was offered to him. and that he would not have been injured at all. if he did not travel standing on the foot-board. The first defendant also denied the plaintiff's claim for all items of damages, and further contended that the suit was barred by limitation.

3. The learned Subordinate Judge practically upheld all the contentions of the plaintiff. He held that the second defendant was an employee of the first defendant, that the accident took place due to the negligence of the second defendant and that the plaintiff was not guilty of any contributory negligence. The learned judge accepted the plaintiff's version of the sufferings which he underwent, of the treatment that he took, and of the various inconveniences to which he was subjected as a result of the accident. The learned Judge treated the plaintiff's claim for Rs 10,000/-on account of medical and incidental expenses already incurred Rs. 2,000/- for future treatment and Rs 10,000/- for loss of professional income, as one for special damages. In support of his claim for medical and incidental expenses, the plaintiff produced an account, Ext. P-19, which was said to have been written by a servant of his, at a time when he could not himself write. Ext. P-19 begins from 9-1-1959, and ends with 23-2-1959

Ext. P-18 is another account, written in the plaintiff's own hand, and this commences from 9-1-1959 and ends with 4-8-1961. The plaintiff stated in the witness box that, after he became able to write, he copied the accounts in Ext. P-19 into Ext. P-18 and thereafter continued the accounts in Ext. P-18 The plaintiff also produced a number of bills and vouchers relating to some of the items of expenses At the time of the hearing, the plaintiff filed a statement, said to be the total as per Ext. P-18, and giving up a sum Rs. 1,125.05 as remote. The total is put as Rs. 11.630.03 The lower court accepted this statement, and allowed the plaintiff's claim on this account for the above amount. The claim for loss of professional income was reduced to Rs. 7,200/- and the general damages claimed was allowed to the full extent of Rs. 25,000/- In the result, the lower court gave a decree for Rs. 43,830/-with interest at 6% from the date of suit and proportionate costs. On the question of limitation, the plaintiff contended Article 36 of the Indian Limitation Act. 1908 applied to the case, whereas the first defendant contended that Article 22 of the Act applied.

The trial court accepted the contention of the plaintiff.

4. The learned counsel for the appellant did not rightly contend before us that the second defendant was not the first defendant's employee, or that the accident did not take place in the course of his employment. But he contended that the plaintiff was guilty of contributory negligence, as he travelled on the foot-board of the bus, though a seat inside the bus was offered to him, and that he would not have suffered any of the injuries, but for the above fact. The learned counsel also contended, rather faintly, that the second defendant was not negligent and that the accident was unavoidable. The latter contention cannot stand in the light of the overwhelming evidence in the case that the bus was heavily over-loaded, and that the accident took place while it was negotiating a curve on the road at a speed of about 40 to 50 miles per hour and giving side for another bus coming in the opposite direction. The evidence also shows that, while negotiating the curve, the second defendant lost control of the vehicle due to its high speed, that it went some distance zigzag, and then capsized. The result speaks for itself. The trial court has very elaborately considered the whole evidence, and came to the finding that the accident took place as a result of the rash and negligent driving of the second defendant.

It may also be stated in this context that the second defendant was prosecuted, and he was convicted for the offence under Section 338 of the Indian Penal Code for causing grievous hurt by rash and negligent driving. His conviction was also upheld in appeal: and Ext. P-16 is a copy of the appellate judgment. We, therefore, fully agree with the trial court that the accident happened as a result of the rash and negligent driving of the bus by the second defendant. There is also no substance in the contention that the plaintiff was guilty of contributory negligence While admitting that he travelled as a standing passenger on the foot-board, the plaintiff deposed that the bus was heavily overloaded, that he was constrained to travel in the above manner for want of space in the but, and that he was not offered a seat in the bus, nor was it possible. We believe this evidence. Regarding the degree of care necessary on the part of carriers of passengers. Simonds Edition of Halsbury's Laws of England, Volume 4 contains the following statement at page 174:--

'The obligation upon carriers of persons is to use all due, proper, and reasonable care, and the care required is of a very high degree. Thus, if passengers are obliged to travel landing, the driver must take this fact into account if he knows or could with reasonable diligence have become aware of it.'

5. The next contention of the appellant's learned counsel was that the amountof damages awarded was highly excessive. He also contended that there was no acceptable evidence regarding the expenses incurred by the plaintiff for medical and incidental expenses, and that the amount decreed on this account was totally unjustified. In order to appreciate the contentions advanced by the learned counsel, it is necessary to state the correct legal principles applicable in awarding damages for personal injuries. There was a controversy whether a master is held liable for damage done by his servant in the course of employment, because his servant has committed a tort, or because he has himself broken some duty which he personally owes to the plaintiff. In Broom v Morgan. 1953-1 All ER 849. Denning, L J said --

'The master's liability for the negligence of his servant is not a vicarious liability, but a liability of the master himself owing to his failure to see that his work is properly and carefully done.'

The master's tort theory was unanimously rejected by the House of Lords in Staveley Iron and Chemical Co. v. Jones, 1956 AC 627. Lord Reid stated:--

'It is a rule of law that an employer, though guilty of no fault himself, is liable for damage done by the fault or negligence of his servant acting in the course of his employment.'

In Sitaram v. Santanu Prasad, AIR 1966 SC 1697, the Supreme Court said:--

'The law is settled that a master is vicariously liable for the acts of his servant, acting in the course of his employment,'

6. In an action for personal injuries, the damages are always divided into two main parts, special damages and general damage. In British Transport Commission v. Gourley 1956 AC 185 Lord Goddard said:--

'First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. The basic principle so far as loss of earnings and out-of-pocket expenses are concerned is that the injured person should be placed in the same financial position, so far as can be done by an award of money, as he would have been had the accident not happened

The proper compensation of damages is a question of fact in each case. Singlete, J. said in Waldon v. War Office, 1956-1 WLR 51 that 'no one knows what is the right sum of damages in any particular case, and no two cases are alike. The Earl of Halsbury L. C. said in The Mediana, 1900 AC 113 :--

'Nobody can suggest that you can by any Arithmetic computation establish what is the exact sum of money which would represent such a thins as pain and suffering which a person has undergone by reason of an accident.'

Money cannot renew a shattered human frame. Still, the law has said that this is a head of damage for which monetary compensation can be awarded, and so the Court must do the best it ran in the light of such comparable cases as it may consider to be of assistance to it. We will endeavour to examine the measure of damages which the plaintiff is entitled to get in this action in the light of the above principles.

7. What the plaintiff is entitled to get as special damages is all expenses actually and reasonably incurred before the date of the trial and loss of earnings of profit which would normally have accrued to him up to the above date. These must be pleaded and proved. In this view of the matter, the plaintiff's claim for Rs. 2,000/- on account of expenses for future medical treatment as an item of special damages is wrong. The appellant's learned counsel vehimently objected to the manner in which damages were assessed by the trial court on account of medical and incidental expenses. We have already referred to the manner in which he did it. The plaintiff claimed a round sum of Rs. 10,000/- on this head. Apparently it was not based on any account; but it was a fair estimate of the expenses by him. The plaintiff proved Exts. P-18 and P-19, as accounts properly maintained in respect of all expenses incurred by him.

The learned Judge seems to have accepted them accordingly. But he never cared to ascertain what was the total amount of expenses actually and reasonably incurred by the plaintiff, as per Exts. P-18 and P-19, nor did he assess the damages on the basis of these documents. We have ourselves examined Exts. P-18 and P-19. It is hardly possible to say that they are accounts regularly maintained regarding the expenses incurred by the plaintiff. Ext. P-18 contains several receipts on different dates; and these receipts are entered along with the debits in the same column. It also contains a few obviously inadmissible items, such as expenses incurred for the food and clothing of the plaintiff and for the food and train fare of his visitors from Kerala to Madras etc.

At the time of the final hearing of the suit, the plaintiff filed a statement in the trial court; and it reads as follows:--

'The total amount covered by Exts. P-18 accounts.

Rs. 12,168.25

Amounts given up by the plaintiff as remote.

Rs. 1,125.05

Balance up to 15-1-1962.

Rs. 10,504.98

After 15-1-1961.

Rs. 538.22

Total Rs. 11.630.03

Dealing with Ext. P-18 and the above statement the trial court said:--

'Nothing has been brought out in the cross-examination of the plaintiff to show that Ext. P-18 is not a true and correct account. The receipts and bills show that the accounts were kept regularly. The plaintiff has filed a statement adding up the amounts in Ext. P-18, He has given up Rs. 1125.05 as too remote. The balance comes to Rs 11,630.03. I find Rs. 11,630/- to be the amount due to plaintiff for treatment of injuries and other expenses consequent on the accident.'

8. The learned Judge has not stated how the receipts and bills show that the accounts were kept regularly; and we do not know how they can show it. All that the plaintiff has stated from the witness box is that he has produced some of the bills and vouchers, and that all of them have been entered in Ext. P-18 It was the function of the trial court if it accepted Ext. P-18. as a true account, to determine on its basis the total of the admissible expenses, namely expenses actually and reasonably incurred. But the learned Judge seems to have left that function to the plaintiff. The learned Judge also left it to the plaintiff to decide what are the too remote items. What he did was to give a decree for the amount last shown in the statement without knowing what it is. Rs. 11,630.03 which he allowed under this head is stated by the learned Judge to be the balance after deducting the total of the 'too remote' expenses. This is obviously wrong This amount is shown in the statement as 'Total' and not as balance. We have not ourselves been able to make out anything from the above statement. But one thing is clear from it, namely Rs. 11,630.03 is the total of Rs. 10,504.98 shown as 'balance up to 15-1-1962' and Rs. 1,125.05 as shown as 'amount given up by the plaintiff as remote.' How these two Items can be totalled, and a decree can be given for the total is apparently incomprehensible. The manner in which the learned Judge has dealt with this item of special damages is very unsatisfactory; and we cannot uphold his finding in this matter.

But this is not ground for disallowing the plaintiff's claim under this head. He underwent treatment in the Madras General Hospital as inpatient at three times. The first was for fairly long a period of three months. Even after he continued under treatment and had to go to Madras for checkup and further treatment. He was treated by expert doctors, who had to be paid for. He had to lake a servant with him, and maintain him at Madras. He was first treated as an inpatient in Medical College Hospital, Trivandrum for about one month. At that place, he had necessarily to incur similar expenses. The plaintiff has produced a number of bills and vouchers for numerous items of expenses incurred by him. In the nature of things, it is not possible to eet bills or vouchers for several items of expenses. It is, therefore, necessary to determine afresh in the light of the evidence available in the case the expenses which the plaintiff actually and reasonably incurred for the medical treatment and incidental matters up to date of institution of the suit. The plaintiff can recover as special damages under this head only the amount so determined.

9. The next item of special damages is loss of professional earning. The plaintiff has given evidence- that after the accident, he resumed legal practice only in February 1961. and that before that he was earning an income of Rs. 400 to 500 every month. The trial Court fixed the special damage under this head at Rs. 7200/- as against a claim of RS. 10,000/- made by the plaintiff. In 1961, the plaintiff was appointed as an additional Government Pleader in the District Court Kottayam: and according to him his income thereafter has been Rs. 600 to 700/- per month. He has also produced some evidence to show that he had a number of cases pending both in the civil and criminal courts at the time of the accident It is true that ht has not produced any accounts to show his professional income: and he also admitted that he was not paying income tax The evidence shows that the plaintiff was a prominent and popular living lawyer, and he had about eight years' practice at the time of the accident. Considering all the facts and circumstances of the case, we think that the sum of Rs. 7,200/-fixed by the trial court as compensation for loss of professional income, which is for a period of two years is very reasonable

The learned counsel for the appellant however argued that, even assuming that Rs. 7,200/- would have been the plaintiff's actual loss of income, he was not entitled to the whole amount; a deduction should be made for tax and other expenses necessary to earn the above income This argument was advanced on the basis of the decision of the House of Lords in 1956 AC 185 In that case, the respondent, who was senior partner in a firm of civil engineers was gravely and permanently injured in a railway accident, for which it was conceded that the appellants were liable, by reason of the negligence of their servants. His earnings were much reduced; and the trial Judge awarded 37,720/- as damages in respect of loss of earnings, actual and prospective in addition to damages under other heads In arriving at the above sum he had no regard to the fact that, had the respondent earned such a sum, he would have had to pay income-tax and surcharge in respect of it. At the request of the appellants, the Judge made an alternative assessment of 6,695/- representing the sum which he would have awarded, if he had taken that hypothetical tax liability into account.

The only question raised in the appeal was whether the amount of damages awarded for loss of earnings should take into account, the income-tax and surtax which the respondent would have had to pay, if he had continued at work. The House of Lords held by a majority of five against one that the tax liability should be taken into account in assessing the damage. Stating the reasons for the decision. Lord Goddard said:--

'Damages which have to be paid for personal injuries are not punitive, still less are they a reward. They are simply compensation, and this is as true with regard to special damages as it is with general damages.'

In a similar case Lawson, J. said in Cooper v. Firth Brown Ltd. 1963-1 WLR 418:--

'It seems to me that the object of damages is to compensate the plaintiff for what he has lost, and what he has lost is what would have been in his pay packet, when he took it home and it seems to me that when special damages are being calculated there should be deducted the amount of any National Insurance contributions the plaintiff would have had to make, if he had remained in work.'

10. The principle is, therefore, well settled that damages are intended to put the plaintiff in the same position as he would have been in, had he not received the injury. But this seems to have little application to the compensation awarded to the plaintiff for loss of professional earnings which is only Rs. 3,600/- per year. Under the Finance Acts of 1960. 1961 and 1962, no income-tax was payable on a total income which did not exceed Rs 3,000 in the case of an individual who had no child dependent on him, and Rs. 3,600 in the case of an individual who had more than one child dependent on him It was also argued that in assessing thee compensation for loss of earnings, the necessary expenses for the plaintiff to maintain a lawyer's office should be taken into account. It is true that all such items are to be deducted, if the amount assessed is on the basis of the gross income What the lower court has done was to fix 'a reasonable amount' having due regard to the extent of practice that the plaintiff was enjoying and other relevant circumstances. We are of opinion that the amount thus fixed by the lower court would be a fair and proper estimate of the loss of professional earnings suffered by the plaintiff during the two years which followed the accident

11. We come to the question of general damages The appellant's learned counsel contended that the sum of Rs. 25,000/-awarded under this head was excessive. The factors which have to be taken into account in awarding general damages are:--

(1) pain and suffering which the plaintiff has undergone in the past and is likely to undergo in the future.

(2) loss of amenities of life; and

(3) shortened expectation of life.

There was much contusion in English Courts regarding the principle of assessment of damages for shortened expectation of life. It was held by the Court of Appeal in Flint v. Lovell, 1935-1 KB 354, that the plaintiff might recover as an independent item of damages compensation for the shortening of his normal expectation of life. Obviously this principle creates an astonishing result in the case of a very young person dying, or suffering such injuries as would considerably shorten his life as a result of an accident.

In a judgment concurred by six other Law Lords in Benham v. Gambling, 1941 AC 157, Viscount Simon L. C. corrected the method of estimating this head of loss, and laid down the rule that, whether in the case of a child or an adult, very moderate amount should be awarded as damages. Salmond on Torts 14th Edition has enumerated in the light of decided cases at page 751 of the book the principles to be applied in the matter of assessing compensation for shortened expectation of life. The learned author concluded

Hence the only relevance of sums which would have been earned by the deceased during the period which has been cut off from his life is that they are an element for consideration in the sense that a person earning a reasonable livelihood is more likely to have enjoyable life.

12. We shall now refer to the evidence on the three factors mentioned above, on the basis of which general damages have to be assessed. The plaintiff, as P. W 9, has spoken about them in detail. As a result of the capsizing of the bus, the plaintiff tell under the bus. He suffered a compound fracture of both the bones of his left leg above the ankle; and his right fool was also seriously injured. He lay under the bus until it was lifted He was taken to the local District Hospital, where he could get only first aid, and he was sent to the Medical College Hospital Trivandrum for better treatment. He was an inpatient in that hospital from 9-1-1959 to 6-2-1959. The medical opinion that he received here was that his leg had to be amputated. Nothing would have been more agonising for a prosperous young lawyer of his circumstances than to be told that one of his legs had to be amputated In this hospital, he lay with both or his legs put under plaster and with other treatments On 7-2-1959 he was admitted in the Madras General Hospital, and he was treated as an inpatient in the first instance till 7-5-1959 Dr M. Natarajan who was then in charge of the Orthopaedic Unit in that hospital is the doctor who treated the plaintiff Dr. Mathew George, P W 8 who is now an Assistant Surgeon in the service of the Kerala Government was then undergoing a diploma course in Orthopaedic in the Madras Medical College, and was working under Dr. Natarajan at that time. P. W. 8 has given evidence regarding the various forms of treatment that the plaintiff had in that hospital.

He underwent both conservative as well as operative treatment. Conservative treatment meant change of plasters, and dressings and courses of broad spectrum anti-biotics. By way of operative treatment, skin from one of the legs was transplanted to the fractured leg; and he had this graft treatment for three weeks. As it is described by P. W. 8, it is an excruciating form of treatment. When the patient was admitted in this hospital, pus was flowing out from the fractured part of the leg, and parts of the bones were visible. There were dead pieces of bones, which had to be frequently removed by operation After a fairly long course of treatment, the plaintiff was allowed to walk with aids like walking callipers, at first weight relieving, and later weight bearing. After discharge from the hospital on 7-2-1959, he was again treated as an inpatient from 5-10-1959 till 25-2-1960.

During this period also, the plaintiff underwent several forms of treatment, causing him much pain, inconvenience and agony. He was again treated as an inpatient in the same hospital from 5-4-1960 till 24-4-1960. In the meanwhile, he developed ulcers on the grafted area and other places, as a result of which also he suffered. Finally, he went for check-up in the Madras General Hospital; and Ext. P-11 is a certificate issued from the hospital on 6-9-1960, showing the then condition of the plaintiff Ext. P-11 states that the plaintiff has 1 1/2' shortening of his left leg, that he has 90 flexion at the knee that the ankle joint and foot are almost completely stiff, and that he has extensive scarring over the lower leg with three discharging sinuses. The certificate further states that the plaintiff's disability is both partial and permanent, and his permanent loss of earning capacity is 40 percent.

The plaintiff has also sworn to the fact that he can only walk with a limp, that it is difficult for him to walk more than 1 or 1 1/2 furlongs, and that even this, he could do only by adjusting the height with sandals. It is unnecessary to add more to the details of the grave suffering and disadvantage in life that the plaintiff has been subjected to as a result of the unfortunate accident. He also apprehends shortening of life. Having due regard to the extent of the pain and suffering undergone in the past and likely to, suffer in the future, the loss of amenities of life and the shortened expectation of life as well as circumstances of the plaintiff, we consider that the amount of Rs. 25,000 awarded as general damages by the trial Court is a very moderate assessment.

The learned counsel for the appellant argued that after the accident, the plaintiff was appointed as a Government Pleader, that he was earning far more than before, that his earning capacity has not been reduced, and that loss of amenities in life or future earning capacity should not be a consideration for assessing the damages. This is a totally unsustainable contention. If, with all these disabilities, the plaintiff could make more income after he rejoined the profession, certainly he could have done tar batter, if he was a physically fit and normal person. This is only a circumstance which would enhance the measure of damages.

13. We now come to the most important question debated in this case, namely, whether the suit is time-barred. The controversy is whether it is Article 22 or Article 36 in the First Schedule of the Indian Limitation Act, 1908 which applies to the case. If it is Article 22, the suit is time-barred, as it has been instituted after the period fixed thereunder; and if it is Article 36, the suit is within time. For a proper appreciation of the contention of the learned counsel it is necessary to read the relevant Articles of the Act.

Descriptionof suit.

Period of limitation.

Time fromwhichperiod begins to run.

Art. 81.

Byexecutors, Administrators or representativesunder the Indian Fatal Accidents Act. 1855.

One year.

The date of the death of theperson killed.

Art 22.

For compensation for any other injuryto the person.

One year.

When theinjury is committed.

Art. 66.

Forcompensation for any malfeasance or non-feasanceindependent of contract and not herein specially provided for.

Two years.

When the malfeasance, misfeasance or non-feasance takes place.

Article 36 is a residuary article; and it is not in controversy that it does not apply if the period of limitation for the suit is specifically provided for in any other article. The contention of the appellant's learned counsel was that the suit falls under Article 22. If he is right, Article 36 does not apply, even though the suit may be one 'for compensation for any malfeasance, misfeasance or non-feasance independent of contract' as described in Article 36. The contention on the other side was that the personal injury in this case was caused by rash and negligent driving, which amounts to non-feasance and misfeasance, and not malfeasance; and that Article 22 covers only a suit for compensation for personal injury caused by malfeasance. The whole argument, as far as we could understand it, was based on the use of the word 'committed' in the third column of the schedule against Article 22. It was submitted that 'committed' means perpetrated, which again means some positive deliberate action.

14. The question raised is of considerable importance: and as far as we could see, it is not covered by any direct authority. We shall therefore, examine the contentions in detail. The first decision relied on by the learned counsel for the respondent is of the High Court of Bombay in A. M. Jabli v. A. M. Sulaikhi, AIR 1924 Bom 290. In that case, the plaintiff claimed compensation for Injury caused to him by throwing sulphuric acid, as a result of which the plaintiff lost one of his eyes. It was contended therein that Article 38 applied to the case, and not Article 22; and that contention was repelled. Even according to the respondent's learned counsel, it was a clear case to which Article 22 applied; and this decision does not, therefore, render any assistance to him. Then he referred to a decision of the Madras High Court in Bhaskara Panhalu v. Mudagal Lekkamma, AIR 1932 Mad 432. It was a suit for compensation for unlawful obstruction caused to the plaintiff from entering into a temple; and the only question was whether it amounted to 'injury to the person' within the meaning of Article 22. His Lordship held that 'injury' in the said Article has a wider connotation than physical hurt, and it includes all acts of battery, assault etc. This decision does not help the respondent.

15. The learned counsel for the appellant first relied on a decision of the High Court of Andhra Pradesh in B. Ramaswamy v. B. Satyanarayana, AIR 1958 Andh Pra 309. That case arose out of a suit for damages for personal injuries caused as a result of a motor accident. Damages were claimed in that suit also against the insurer of the vehicle. The suit was filed more than one year after the accident happened: and it was conceded that Article 22 applied to the claim against the owner of the vehicle. The only contention was that the period of limitation in so far as the claim related to the insurer was governed by Article 86. This contention was repelled by the Court. We can find nothing in this decision which would support the learned counsel. Next he relied on a decision of the High Court of Patna in Beharilal v. Md. Qurban, AIR 1964 Pat 372. That case also arose out of a suit for compensation for personal injury resulting from a motor accident. It was contended by the plaintiff that the action was governed by Article 86 or Article 116, and not by Article 22. The contention was repelled and it was held that Article 22 applied to the case. This decision is not of much help firstly for the reason that there is no useful discussion, and secondly, Article 38 did not come for consideration.

Another decision which the appellant's learned counsel cited was one of the Allahabad High Court in Arhat Misir v. Baldeo Ahir, (1910) 5 Ind Cas 124 (All). That case arose out of a suit for compensation for injury alleged to have been caused to the plaintiff's reputation and for mental pain arising out of attack. The plaintiff contended that Article 36 or Article 120 applied to the case. That contention was rejected; and the Court held that Article 22 applied to such a case. There is hardly any discussion in this decision. Further, it does not meet the contention of the respondent's learned counsel that Article 22 does not apply to an action for compensation for misfeasance or nonfeasance.

16. A few more decisions were cited at the bar by counsel on both sides; but it is unnecessary to refer to any of them, as they have only a very remote relevancy to the controversy. In fact, we have not been able to find any authority for the proposition contended for by the learned counsel for the respondent, namely, Article 22 applies only to a suit for compensation for an injury to the person caused by malfeasance and not to a suit for compensation for an injury caused by misfeasance or nonfeasance. The language used in the Article does not admit any such distinction, nor can we find any logic in restricting the application of this Article in the manner contended for by the Warned counsel. Section 1-A of the Fatal Accidents Act, 1855 provides as follows:--

'Whenever the death of a person shall be caused by wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime'.

(The remaining part of the section is omitted here). Article 21 of the Indian Limitation Act, 1908 relates to a suit under the Indian Fatal Accidents Act; and it is clear from the above provision of this Act that such a suit is one for damages for causing death 'by wrongful act, neglect or default'. Article 22 deals with a suit for compensation for 'any other injury to the person'. In the context in which these two articles appear, the expression 'any other injury to the person obviously means any injury to the person other than death caused 'by wrongful act, neglect or default'. 'Injury' according to Black's Law Dictionary means 'any wrong or damage done to another -- to his person, rights, reputation or property'. In Stroud's Judicial Dictionary, it is given the meaning 'a wrong or damage to a man's person or goods'. Chambers's Twentieth Century Dictionary gives it the meanings 'wrong, damage, impairment'. The expression 'to the parson in Article 22 means to the body of a person; and an injury or wrong to the person means a physical injury. What are the things which may amount to an injury to the person is a matter of judicial controversy; and we are not concerned with that in this case.

IN Sobha Ram v. Tika Ram, AIR 1936 All 454, a Division Bench of the Allahabad High Court observed:--

'That Article (i. e. Article 22) prescribes a period of one year for compensation for any other injury to the person. Injuries to person mean physical injuries to the plaintiff'.

17. The whole basis for the argument that Article 22 applies only to a case of injury caused by malfeasance was, as we have already mentioned, the use of the word 'committed' in the third column of the schedule against Article 22, which reads:--

'When the injury is committed'. It is stated in Stroud's Judicial Dictionary that 'committed' will sometimes include an act or omission. Chambers's Twentieth Century Dictionary gives the meaning 'to become guilty of, perpetrate' for the word 'commit'. We do not find any warranty for the contention that the word 'commit' relates only to a wilful act or malfeasance. We are, therefore, constrained to hold that Article 22 applies to a suit for compensation for any injury to the person, other than death, and the time begins to run from the date or which the injury is caused.

18. The learned counsel for the respondent finally contended that the defendant's liability to compensate the plaintiff arose also under contract; and that Article 115 of the Indian Limitation Act 1908 would apply to the case. The suit mentioned in this Article is one:

'For compensation for the breach of any contract, express or implied, and not in writing registered and not herein specifically provided for' The period of limitation prescribed for such a suit is three years. The learned counsel contended that the issuing of ticket by a public carrier implied a contract that he would carry the passenger safe to the destination, and that if he was injured by the negligence of the driver of the vehicle, it amounted to a breach of contract. The claim was not put forward in the plaint on this basis. So, if we are to entertain such a contention, we should assume that the plaintiff was travelling on a ticket. Even if we assume it, the suit would attract the application of Article 115; because this Article, like Article 36, is again a residuary article. If Article 22 applies to the case -- and we have found that it does -- Article 115 has no application.

19. We are also unable to accept the learned counsel's contention that a claim for compensation for injury caused in a motor accident due to the negligence of the driver is one for the breach of an implied contract. The learned counsel referred us to the following passage in Para 463 at page 185 of Volume 4 of Halsbury's Laws of England, Third Edition in support of his contention:

'The contract between a passenger and a carrier is usually made by the buying of a ticket. The agreement to carry a passenger implies a contract to carry him to the named destination in a reasonable time and without negligence; and a ticket is evidence of such a contract'.

The learned author also says at page 177 of the same Volume:--

'An action for damages for personal injuries by negligence is an action of tort, whether the negligence consists of misfeasance or nonfeasance'.

The following passage appearing at pp. 11 and 12 of Salmond on Torts -- Fourteenth Edition -- is instructive:--

'There are many instances in which a person voluntarily binds himself by a contract to perform some duty which already lies upon him independently of any contract. The breach of such a contract is also a tort, inasmuch as liability would equally have existed in such a case had there been no contract at all, for example when a passenger whilst travelling with a ticket is injured owing to negligence, the British Railways Board is guilty of a wrong which is both a breach of contract and a tort Similarly, a bailee who wrongfully refuses to restore the property lent to him is liable both in contract and in tort: in contract because of his promise to restore it in due time, and in tort because no one has a right to detail another's property without some special justification. Such concurrent liability in tort and contract is found in the case of bailees, carriers, and probably other persons recognised at common law as exercising a common calling and thereby owing duties to the public, such as smiths and innkeepers'

In Jarvis v Moy, Davies, Smith. Vandervell and Co. 1936-1 KB 399, Greer L. J. said;

'The distinction in the modern view, for this purpose, between contract and tort may be put thus, where the breach of duty alleged arises out ot a liability independently of the personal obligation undertaken by contract, it is tort, and it may be tort even though there may happen to be a contract between the parties, it the duty in fact arises independently of that contract. Breach of contract occurs when, that which is complained of is a breach of duty arising out of the obligations undertaken by the contract'

The respondents learned counsel referred us to a decision of the Supreme Court in National Bank ol Lahore Ltd. v Sohan Lal, AIR 1965 SC 1663, in support of his contention that the suit can be treated as one for breach of an implied contract. In that case, the appellant Bank hired out to the respondent in the course of the Bank's business lockers in its safe vault. The manager of the Bank entered into the safe vault, tampered with the lockers, and dishonestly removed articles deposited therein by the respondent. In a suit for damages, the Bank contended that Article 36 of the Indian Limitation Act 1908 applied to the case, and the suit was, therefore, time-barred. This contention was repelled holding that it was Article 115 which applied to the case. An examination of the facts of the case shows that the contract between the parties provided, among other things, that the Bank should not permit access to the safe to persons other than those mentioned in the contract. But it was found, that the lockers supplied to the respondent were detective and it facilitated the theft, and that action of the manager of the Bank in entering into the sale vault was a violation of the contract. This decision does not give any support to the plaintiff's contention. The case of a public carrier taking passengers for transport is entirely different. His contract is only to carry the passenger to the destination. There is also the implied contract to provide a proper vehicle, and a proper driver. But there can be no implied contract that the driver would not be negligent. It is beyond his competence to make such a covenant. As we have pointed out earlier, the liability of the carrier is a vicarious liability for the negligence of his servant. Therefore, the contention that the plaintiff's claim arises also under an implied contract cannot be sustained.

20. In the result, this appeal must succeed, and the suit must be dismissed It is not clear why the plaintiff did not institute the suit within the prescribed period. The evidence of P. W. 8, the Orthopaedic Assistant then at Madras, shows that it was late Mr. K. N. Sankunny Pillai who was then the Managing Director of the first defendant Company, who took interest to save the plaintiff from amputation of one of his legs, and send him to Madras for better treatment. Ext D-3, a letter dated 30-5-1959 which the plaintiff wrote to the successor of Mr. K. N. Sankunny Pillai shows that the relation between the parties was most cordial, and that the idea of making a claim or instituting a suit in respect of the injuries caused to the plaintiff was beyond his contemplation. We do not know why the plaintiff was then taking such an altitude, and what made him change his mind. The result, is however, unfortunate; and we regret that though the plaintiff has succeeded on all points, the suit fails on the ground of limitation. This appeal is accordingly allowed; and the decree by the Court below is set aside. We direct that in the circumstances of the case, the parties will bear their own costs throughout.

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