Pratap Krishna Lohra, J. - (1.) APPELLANTS have preferred this first appeal challenging the impugned judgment and decree dated 23rd of April, 2015 passed by learned District Judge, Jaisalmer (learned trial Court), whereby the learned trial Court has rejected their claim for compensation under Section 1A of the Fatal Accidents Act, 1885 (for short, 'Act') as barred by limitation. While submitting their claim before the learned trial Court, appellants also made endeavour for seeking condonation of delay and an application under Section 5 of the Limitation Act is filed but that effort also proved abortive inasmuch as learned trial Court considered it to be redundant by observing that Section 5 of the Limitation Act is not applicable in original proceedings.
(2.) SUCCINCTLY stated, the facts of the case are that first appellant's husband and second appellant's father Pradeep Bhai Patel was a vehicle driver, who on the fateful day of 11th September 2008 was plying Bus No. GJ -18 -U -9938 carrying passengers from Ahmedabad to Rajasthan. In the night of 14th September, 2008, the bus reached Ramdevra Nagori Dharamshala where all the passengers alighted from bus and entered inside Dharamshala. Pradeep Bhai Patel and the Conductor of the bus for taking their luggage had gone on the rooftop of the bus and when Pradeep Bhai Patel was on roof, a naked electricity wire touched his hand and due to high voltage current flowing in the live wire he was electrocuted and immediately fell down from the bus. Upon falling of Pradeep Bhai Patel, Bus Conductor Ramesh Bhai and other passengers rushed to Pokaran Hospital where he was declared dead by the doctors. Taking into account the unnatural death of Pradeep Bhai Patel, SHO, Police Station, Pokaran made endeavour to inquire and report on suicide of the deceased under Section 174 Cr.P.C. In the report under Section 174 Cr.P.C., it was found that cause of death of Pradeep Bhai Patel was electrocution and the wire in which current was flowing was loosely knitted having easy access for the human being. Therefore, while attributing negligence on the part of the respondent department, the appellants submitted claim under the Act and quantified compensation to the tune of Rs. 22,68,000/ -. Alongwith the suit/plaint, an application under Section 5 of the Limitation Act is also filed for condonation of delay. The respondent submitted their written statement wherein a specific objection is raised that the suit filed by the appellants is barred by limitation as the same has been filed after expiry of two years, which is beyond the prescribed period of limitation for filing claim under Section 1A of the Act. Joining issue with the appellants on merits, the respondent completely repudiated the allegation of negligence on the part of department and submitted that the cause of electrocution was own negligence of the deceased inasmuch as he stopped the bus under L.T. Line. It is also submitted in the return that on the roof of the bus some iron articles were there and when those iron articles touched the live wire, current flown which resulted into the calamity. With all these pleadings, the respondent prayed for rejection of the claim.
(3.) THE learned trial Court, on the basis of pleadings of rival parties, framed three issues for determination. In support of the claim, first appellant herself appeared in the witness box and examined two other witnesses, viz., AW1 Moolji Bhai and AW2 Kanti Bhai. That apart, 10 documents were exhibited. To counter the evidence of the appellants, on behalf of respondent, witness NAW Hanumana Ram, Assistant Engineer, appeared in the witness box and testified on oath. Respondent also produced Photo Ex.A/1.;