Tort – Damages – Liability of Insurer – Impleadment after Limitation Period – Application of Limitation Act, 1963, Section 21 – Order I Rule 10(5), CPC
The plaintiff, an artist, sustained injuries due to an attack by an elephant owned by the 1st defendant (Kuttankulangara Devaswom) during a festival. The trial court awarded Rs.75,000/- as compensation, holding the 1st defendant liable but exonerating the 3rd defendant (insurer) on the ground that their impleadment was beyond the limitation period. The 1st defendant appealed, arguing that the insurer, impleaded after the limitation period, should be liable due to a valid insurance policy covering the elephant.
Held: The High Court allowed the appeal, setting aside the trial court’s decision to exonerate the insurer. The Court held that the insurer’s liability arises from a contractual obligation to indemnify the 1st defendant, and the plaintiff had no independent cause of action against the insurer. Relying on Oriental Insurance Company v. Ananda Pai [2002 KHC 57], the Court ruled that provisions of Order I Rule 10(5), CPC, and Section 21 of the Limitation Act do not strictly apply when the impleaded party (insurer) has a contractual duty to indemnify, and the plaintiff was unaware of the insurance at the time of filing the suit. Further, under the proviso to Section 21(1) of the Limitation Act, the delay in impleading the insurer was a bona fide mistake, as the plaintiff learned of the insurance only through the 1st defendant’s written statement. The impleadment was thus deemed effective from the date of the suit’s institution. The insurer was directed to pay the compensation awarded to the plaintiff.
Cases Referred: Oriental Insurance Company v. Ananda Pai [2002 KHC 57]; Kerala State Insurance Department, Kozhikode v. P. Rajan [2022 (4) KLJ 500].
Keywords: Tort, Damages, Elephant Attack, Insurance Liability, Limitation Act, Bona Fide Mistake, Impleadment.
Citations: 2025 KER 43237 : 2025 (6) KLR 182
High Court of Kerala – Regular First Appeal – RFA No. 61 of 2017 – Decided on 18 June 2025 – C. Pratheep Kumar, J.
