Rajasthan High Court - Jaipur
Rajasthan State Road Transport ... vs Smt. Kistoori Devi And Ors. on 17 October, 1985
Equivalent citations: I(1987)ACC344, AIR1986RAJ192, 1986(2)WLN145
Author: N.M. Kasliwal
Bench: N.M. Kasliwal
JUDGMENT Kasliwal, J.
1. One Chiranjilal died in a motor accident and his legal representatives Smt. Kistoori Devi and others filed a claim under Section 110B of the Motor Vehicles Act, 1939, hereinafter referred to as the 'Act'. The learned Motor Accident Claims Tribunal by judgment dated 13-10-80 awarded an amount of Rs. 30,750/- in all by way of compensation to the claimants. The aforesaid amount of compensation also included an amount of Rs. 1,500/- allowed to Smt. Kistoori Devi widow of Chiranjilal deceased by way of mental shock and loss of consortium, and Rs. 800/- each to Banwarilal, Brajesh Kumar, Kamlesh Kumar, Vipin Behari and Chandra Shekhar, all sons of deceased Chiranjilal by way of loss of love and affection and mental agony, The Rajasthan State Road Transport Corporation, hereinafter referred to as the 'Corporation', filed an appeal challenging the Award dated 13-10-80 given by the Tribunal.
The learned single Judge considered that an important question of law had been raised during the arguments of the appeal in respect of admissibility of compensation on the following heads in the case of fatal accidents:--
(1) Loss of love and affection of spouse/ children/parents.
(2) Consortium, (3) Loss of future happy life of deceased.
(4) Mental shock (5) Mental and physical agony, pain and sufferings.
2. In the opinion of the learned single Judge, there was controversy and conflict of judgments in respect of the effect and implication of Sections 1 and 1A of the Fatal Accidents Act (1855), compared with Section 110B of the Act. As several cases were pending before this court at Jaipur and Jodhpur and further Accident Claims Tribunal of Rajasthan were required to consider the above question in all cases of fatal accidents, in the opinion of the learned single Judge, the question whether compensation can be allowed in fatal accident claims in all or any of the above heads, required an authoritative decision of a larger bench. In these circumstances, the matter has come up for consideration before the Full Bench.
3. In order to appreciate the arguments made by the learned counsel for the parties and the case law cited at the bar, it would be proper to quote Section 1A and Section 2 of the Fatal Accidents Act and Section 110B of the Act:
"1 A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong -- 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.
(***) Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased.
and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs so recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct."
"2. Not more than one suit to be brought --Provided always that not more than one action or suit shall be brought for, and in respect of the same subject-matter of complaint:
Claim for loss to estate may be added --Provided that in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default which sum, when recovered, shall be deemed part of the assets of the estate of the deceased."
Section 110B : "On receipt of an application for compensation made under Section 110A, the Claims Tribunal shall, after giving the parties, an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be."
4. The provision contained in Section 1A confers a new right and has the effect of removing protective umbrella thrown by the maxim 'actio personalis moritur cum persona' and makes the tort-feasor whose wrongful act has caused death, liable for damages. The second paragraph of the above section provides that every such action or suit shall be for the benefit of the wife, husband, parent and child. The third paragraph of Section 1A provides that in every such action, the Court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought. Section 2 of the Fatal Accidents Act which is in the nature of the proviso, lays down that not more than one action or suit shall be brought for and in respect of the same subject-matter of complaint. It is further provided that in any such action or suit, a claim can also be inserted and recovery can be made of any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased.
5. On the other hand, provisions for compensation in the Act were made taking in view the advent of the motor vehicles and the rapid increase in its number and increasing number of accidents by such motor vehicles. The motor accidents involving the third parties were ever on the increase and that compelled the legislature to step in to provide for compulsory insurance in respect of third party risk. Sections 94 to 97 of the Motor Vehicles Act make substantive provisions to compel the owners of motor vehicles to take out insurance policies to safeguard the interest of the third parties who become victims of negligent driving of motor vehicles. It is no doubt correct that before the introduction of Sections 110 to 110F in the Act, claims arising out of the fatal accidents involving the use of motor vehicles were governed by the provisions contained in the Fatal Accidents Act. Section 110 of the Act provided for the constitution of Motor Accident Claims Tribunal for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Section 110A provided that an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made, (a) by the person who has sustained the injury; or (aa) by the owner of the property; or, (b) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(c) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Thereafter. Section 110B provides that the Claims Tribunal snail hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just, and specify the persoivor persons to whom compensation shall be paid. It is further provided that in making the Award, the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. The Tribunal is empowered by Section 110CC to award simple interest at such rate and from such date not earlier than the date of making the claim, as it may specify in this behalf. Section 110E provides for the recovery of the compensation money in the same manner as an arrear of land revenue. Section 110F provides that where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.
6. The question whether the provisions of the Act would override or exclude the provisions of the Fatal Accidents Act, in case the fatal accident occurs by use of a motor vehicle, can be considered in the light of three groups of decided cases.
7. The first group of cases takes the view that every claim application for compensation arising, out of a fatal accident would be governed by the substantive provisions contained in Sections 1A and 2 of the Fatal Accidents Act, and no dependent of the deceased other than the wife, husband, parent or child would be entitled to commence an action in damages against the tort feasor. In the case of fatal accidents, resulting even from the use of a motor vehicle, the substantive law for determination of the eligibility and its extent, as contained is the Fatal Accidents Act, shall be applied and provisions of Sections 110 to 110F of the Act shall not be applied as the same are merely procedural or adjectival but not substantive in nature. According to the view contained in these cases, the provisions introduced in the Act are meant only to provide a cheap remedy to the claimants who were earlier required to file a civil suit by paying ad valorem court-fees in the courts of general jurisdiction.
8. The second group of cases steers a middle course and takes the view that the provisions contained in Sections 110 to 110F of the Act are adjectival or procedural in nature and they do not impinge upon the substantive provisions contained in Sections 1A and 2 of the Fatal Accidents Act. These cases, however, draw a distinction between a claim under Section 1A which is restricted to the relatives of the deceased named therein and a claim under Section 2 which may be brought by the representatives of the deceased to become entitle to succeed to the estate of the deceased. In other words, these authorities take the view that under Section 1A compensation for wrongful death is stricly limited to the loss suffered by the beneficiaries named therein, i.e. wife, husband, parent and child, whereas under Section 2, the measure of compensation being the economic loss occasioned to the estate of the deceased, his representative could be entitled to claim thereunder.
9. The third group of cases takes the view that the claim for compensation arising out of the use of a motor vehicle would be exclusively governed by the provisions of the Act and bars no action to claims under the Fatal Accidents Act and the Claims Tribunal need not follow the principles laid down under the latter Act. The reasoning given in these cases is that the language of Section 110B of the Act in the matter of determination of compensation and also in the matter as to who can file claims is wider than the provisions contained in the Fatal Accidents Act. Due regard being had to these wide powers under Section HOB of the Act, the said provision cannot be construed as merely procedural. The provisions contained in the Act in this regard are substantive provisions and this being a special law should override the general provisions contained in para 3 of Section 1A of the Fatal Accidents Act.
10. We would first mention the cases cited at the bar.
Punjab View In Lachhmart Singh v. Gurmit Kaur, AIR 1979 Punj & Har 50, a Full Bench of the Punjab & Haryana High Court held that keeping in view the decisions in the Supreme Court cases and some English cases, the following principles be observed and followed while assessing the compensation :
"It is manifest from a perusal of the various judgments of this Court that the multiplier method has not been applied and compensation in cases under the Act, and the Motor Vehicles Act, has been assessed oh erroneous basis. Keeping in view the decisions in the Supreme Court cases, and some English cases, noticed above, we hold that the following principles be observed and followed while assessing the compensation;
(1) The compensation to be assessed is the pecuniary loss caused to the dependents by the death of the person concerned, and no compensation is to be assessed on any extraneous consideration like love, affection, mental agony or any such similar consideration. Solatium is alien to the concept of compensation.
(2) For the purpose of calculating the just compensation, annual dependency of the dependents should be determined in terms of the annual loss accruing to them due to the abrupt termination of life. For this purpose, annual earning of the deceased at the time of the accident and the amount out of the same which he was spending will be the determining factor. This basic figure will then be multiplied by a suitable multiplier;
(3) The suitable multiplier, as referred to in 2 above, shall be determined as held in Sudhakar's case, AIR 1977 SC 1189 (supra), decided by the Supreme Court as well as in Mallett's case 1969 Acc CJ 312 (HL) (supra), by taking into consideration the number of years of the dependency of the various dependents, the number of years by which the life, of the deceased was cut short and the various imponderable factors such like early natural death of the deceased, his becoming incapable of supporting the dependents due to illness or any other natural handicap or calamity, the prospects of the remarriage of the widow, the coming up of age of the dependents and their developing their independent sources of income as well as the pecuniary benefits which might accrue to the dependents on account of the death of the person concerned. Such benefits, however, should not include the amount of the insurance policy of the deceased to which the dependents may become entitled on account of its maturity as a result of the death.
(4) The method adopted in certain decisions of this Court of multiplying the amount of the annual loss to the dependents with the number of years by which the life has been cut short without anything else cannot be sustained and all those decisions in which this view has been taken are hereby overruled;
(5) The compensation cannot be assessed on the basis of the so-called interest theory as the same provides the dependents with the capital as well as the amount of annual loss earned by way of interest and it also suffers from a number of other defects, as have been discussed in this judgment; and (6) Considerations of ever growing inflation and the decrease in the money value are also not relevant for the purpose of assessment of compensation."
11. It may be mentioned that the above case was not of an accident of a motor vehicle but was a case of murder and provisions of the Act could not have been applied in the above case. In para 28, the facts of the case have been mentioned which show that one Karnail Singh aged 23 years, was murdered by the appellants on September 30, 1960. Suit for damages was filed by the parents, widow, two minor sons and two minor daughters of the deceased.
Mysore View
12. In Government of India v. Jeevaraj Alva, AIR 1970 Mys 13, it was observed as under : --
"Point No. III. Section 1A of the Fatal Accidents Act, 1855, as amended by Act No. III of 1951 is in pari materia with the provisions of Sections 1 and 2 of the Fatal Accidents Act, 1846 (9 and 10 Vict. C.93) and therefore, the decisions of courts in the United Kingdom under the Fatal Accidents Act will be useful in deciding cases under the Indian Act. The law as settled in England is : Damages are based on the amount of actual pecuniary benefit which the persons mentioned in the section might reasonably have expected to enjoy had the deceased person not been killed. Damages cannot be recovered for the gravity of the injury to the deceased, or as a compassionate allowance or solatium for the mental anguish or loss of society due to the death. The pecuniary loss is not limited to the value of money lost, or to the money value of the benefits lost, but includes the monetary loss incurred by replacing services rendered gratuitously by the deceased, if there was a reasonable prospect of their being rendered freely in the future but for the death of the deceased. The pecuniary loss may be evidenced by proof of a reasonable expectation of some future pecuniary benefit. (Vide Halsbury's Laws of England Vol. 28-III Edition, page 10 at paras 110-111)."
13. The above case was also filed under the Fatal Accidents Act and a regular suit was brought for damages.
Allahabad View
14. In Mahendra Singh v. Krishna Devi, AIR 1979 All 4, it was observed as under : --
"The third submission of the learned counsel for the appellant relates to the maintainability of the claim petition, at the instance of the claimant who is the mother of the deceased.
According to the argument of the learned counsel, a mother is not a legal representative of a deceased son and the claimant could not therefore seek any compensation on account of death of Om Pal Singh, her son.
We are unable to accept this submission. It is true that Section 110A of the Motor Vehicles Act provides that where death has resulted from an accident, the application of compensation arising out of the accident may be made by all or any one of the legal representatives of the deceased or by an agent duly authorised by them. The Act, however, does not specify as to who is to be treated as legal representative for the purpose of Section 110A of the said Act. It has, therefore, to be seen as to who would constitute a legal representative for the purposes of a claim petition under Section 110A of the Motor Vehicles Act in respect of an accident in which a person has lost his life. In the instant case, guidance can be taken from the Hindu Succession Act, 1956. In the case of a male Hindu who dies intestate, the property under Section 8 of the said Act, shall devolve, firstly, upon the heirs being relatives specified in Class I of the Schedule. Mother is an heir falling in Class I of the Schedule to the Act. The Fatal Accidents Act, 1855 also affords guidance on the question. Section 1A of the said Act, inter alia, enables the parents of a person losing life in an accident caused by the wrongful act or default of another to claim damages. The submission, therefore, that the term 'legal representative' should be so construed as to exclude a claim petition by a person who does not represent the estate of a deceased person and the definition of legal representative as contained in Section 2(11), C.P.C., narrowly construed should be imported into Section 110A of the Motor Vehicles Act, does not appeal to us. Having regard to the object with which the provisions of Sections 110 to 110F were enacted it is proper that the term legal representative as used in Section 110A must be given an extended meaning so as to include all such persons who have a right to claim damages under the Fatal Accidents Act while deciding the question as to who can claim compensation when death has resulted from an accident. The claim petition in the instant case could, in our opinion, be maintained by the mother of the deceased to whom the Tribunal has awarded the compensation".
15. In the above case, the Motor Accident Claims Tribunal, Meerut had awarded a sum of Rs. 25,000A to Smt. Krishna Devi, mother of Ompal Singh who died in the accident on the spot. It was argued before the High Court that the claim petition could not have been filed at the instance of the mother of the deceased. Argument was made that a mother is not a legal representative of a deceased son, and the claimant could not, therefore, seek any compensation on account of death of Ompal Singh, her son. The above contention was negatived by making the observations quoted above. It was observed, as mentioned above, that the term 'legal representative' as used in Section 110A must be given an extended meaning so as to include all such persons who have a right to claim damages under the Fatal Accidents Act, while deciding the question as to who can claim compensation when death has resulted from an accident. The controversy now raised before us was not directly under consideration in the above case.
*
16. In Motilal Vishwakarma v. Guru Bachan Singh, 1980 Acc CJ 462 : (1979 All LJ 222) it was observed as under : --
"Section 4 then provides that the expression parent occurring in the Act would include within its ambit father, mother, grandfather and grandmother and the expression child would mean son, daughter, grandson, granddaughter step-son and step-daughter. It is thus clear that by enacting Fatal Accidents Act, 1855, an inroad was made on the doctrine actio personalis moritur cum persona and it was provided that even in the case of death of a person by tortious act an action to receive compensation would be at the instance of persons specified therein. Ever since passing of the Fatal Accidents Act suits were being filed by the relations mentioned in Section 1A of the Act for recovering compensation for deaths caused by tortious acts. However, the legislature again intervened and enacted section 100 of the Motor Vehicles Act, 1939, providing therein that the State Government could by notification in Official Gazette constitute one or more Accidents Tribunals for such area as may be specified for the purposes of adjudicating a claim for compensation in respect of accidents involving death or fatal injury to persons arising out of use of motor vehicles or damages to any property of a third person so arising or both. Consequently, after establishment of Claims Tribunals, claim for compensation in respect of accidents involving death or fatal injury to persons arising out of use of motor vehicles was to be made before the Claims Tribunal and not in Civil Courts."
"Section 110A of the Act then provides that an application for compensation arising out of an accident of the nature specified in Subsection (1) of Section 110 may be made by a person where death has resulted from the accident by all or any of the legal representatives of 'the deceased. The expression legal representative of the deceased has not been defined, but in the context it obviously must include within its ambit person who under the law would be entitled to recover compensation on account of the death of the deceased. By enacting sections 100 and 110A in the Motor Vehicles Act, the Legislature did not intend to affect the rights of the persons who under the Fatal Accidents Act had been entitled to receive compensation for the death of a person and such persons must for purposes of Section 110 of Motor Vehicles Act, 1939, be considered to be legal representatives of the deceased. Accordingly, if as a result of some ones death his grandparents, parents or children or grandchildren suffer loss who could file a suit for compensation against the person who is responsible for committing the death because of an action for which he would normally have been liable under tort if the deceased had not died would be covered by the expression legal representative as used in Section 110A of the Motor Vehicles Act.
"It is also clear that a person who is neither an heir of the deceased nor is he one of the persons enumerated in Section 1A of the Fatal Accidents Act, he cannot be considered to be a legal representative of the deceased within the meaning of Section 110A of the Motor Vehicles Act,"
16A. In the above case, the controversy was as to who amongst the claimants was entitled to receive compensation. Motilal being the brother of the deceased was held not entitled to claim any compensation as he was neither a heir nor did he belong to the category of persons mentioned in Section 1A of the Fatal Accidents Act. Motilal was rightly held not to be a heir as children, father and mother of the deceased were already present to claim compensation.
17. In Dyer Meakin Breweries Ltd. v. Smt. Bimla Gupta, AIR 1985 All 147, a Division Bench of the Allahabad High Court observed as under : --
"Shri S. K. Sharma submitted that no separate compensation could be awarded for loss of consortium or for marriage expenses. The general principle is that the pecuniary loss suffered by the claimants should be made good. He placed reliance on Sheikhpura Transport Co. Ltd. v. Northern India Transporter's Transport Insurance Co. Ltd. 1971 Acc CJ 206: AIR 1971 SC 1624. In para 6 of the Supreme Court held : --
"Under Section 110-B of the Motor Vehicles Act, 1939 the tribunal is required to fix such compensation which appears to it to be just. The power given to the tribunal in the matter of fixing compensation under that provision is wide. Even if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required to be done under Fatal Accidents Act, 1855 (Act 13 of 1855), the pdecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be as estimated or even partly a conjecture."
Himachal Pradesh View
18. In State of Punjab v. Harbhajan Lal Kochhar, 1980 Acc CJ 437 (Him Pra), Rs. 3,000/- were allowed as conventional figure of damages for loss of expectation of life. There is no discussion regarding the provisions of the Motor Vehicles Act or the Fatal Accidents Act throwing any light on the controversy raised before us.
19. In H. P. Road Transport Corporation v. Pandit Jai Ram, 1980 Acc CJ 1 : (AIR 1980 Him Pra i6), it was observed as under : --
"While considering the question of choosing a suitable method for assessing compensation under both the sections, one important fact which the Court should bear in mind is that under Section 110-B of the Motor Vehicles Act it is the 'just' compensation which is required to be awarded. Therefore, no method of calculation of compensation would be justified if it does not result in awarding the amount which is not 'just' looking to the peculiar facts of each case. In other words, every method of calculation must be treated as subordinate to the necessity of giving a "just" compensation. Therefore, though while adopting various methods of determining compensation for loss of dependency and loss to the estate the Court may take into consideration the principles propounded by judicial pronouncements with regard to the implementation of the provisions contained in Section 1A and Section 2 of the Fatal Accidents Act; in so far as the ultimate figure of compensation is concerned, the Court is not bound by any rigid mathematical formula if it finds that the justness of the case requires either increase or decrease-in that figure."
20. Thus, in the above case, it has been clearly observed that under Section 110-B of the Motor Vehicles Act, it is the 'just1 compensation which is required to be awarded. No method of calculation of compensation would be justified if it does not result in awarding the amount which is not "just" looking to the peculiar circumstances of each case. The Court is not bound by any rigid mathematical formula if it finds that the justness of the case requires either increase or decrease in that figure.
Madhya Pradesh View
21. In Hari Mohan Matadin v. Jagannath Prasad Sharma, 1982 Acc CJ (Suppl) 40, the learned single Judge of the Madhya Pradesh High Court observed as under :--
"The decisions under the Fatal Accidents Act are not directly applicable to a claim made under the Motor Vehicles Act The Claims Tribunal is empowered to determine the amount of compensation which appears to it to be just. The word 'just' has wider ambit than the word used in Sections 1A and 2 of the Fatal Acciden Act. The Tribunal need not strictly follow and apply the basis of the assessment of compensation indicated in the various decisions under the Fatal Accidents Act., or under English law. It is, however, to be noted on a perusal of decision, that ultimately compensation was awarded under the head, namely, compensation for pecuniary or material loss caused by death of a person. It was stated that this principle provides a sound and reasonable basis assessing just compensation under the Motor Vehicles Act. The principle enunciated by the Supreme Court in Gobald Motor Services v. R.M.K. Veluswami, AIR 1962 SC 1, which was a case arising out of the Fatal Accidents Act was applied in this case also. It was observed that no other head of claim was canvassed before them. It is thus seen that the observations that the Tribunal under the Motor Vehicles Act is not bound by the provisions of the Fatal Accidents Act or by the ordinary law of Torts are only in the nature of obiter."
"It is, however, unnecessary to consider this question further as we have already held that even under the provisions of the Fatal Accidents Act, the husband is entitled to damages for the loss of consortium. In this case, the Tribunal has fixed damages under this head at Rs. 4,000/-. Though the Tribunal has not given any basis for arriving at this amount, it has not been shown as to how this amount is excessive. The wife was aged about 50 years and said to be hale and healthy. The husband has given his age as 56 years. We cannot say that Rs. 4000/- under this head is excessive so as to require interference in appeal."
Relying on this judgment, I hold that the applicant is entitled to get damages for loss of consortium and taking into consideration the age of the applicant and his wife at the time of her death, I am of the view that Rs. 5,000/-
will be sufficient compensation on this account."
22. In the above case, Rs. 500/- given as damages for mental shock and sufferings, by the Claims Tribunal was also upheld by the High Court.
23. Thus, in the above case, it was also held that the husband was entitled to get benefit for the loss of consortium of his wife.
24. In Ramesh Chandra v. Madhya Pradesh State Road Transport Corporation, Bhopal, AIR 1982 Madh Pra 165, it was held that in addition to damages for loss of dependency under Section 1A of the Fatal Accidents Act, the mother is also entitled as a legal representative of the deceased to claim compensation under Section 2 of that Act for loss to the estate of the deceased. Following the decision of House of Lords in Gammell v. Wilson, (1981) 1 All ER 578, it was held that damages recoverable for loss to the estate of the deceased under Section 2 of the Fatal Accidents Act, must include damages for loss of earnings of the lost years.
Delhi View
25. In Smt. Ishwar Devi Malik v. Union of India, AIR 1969 Delhi 183, it was observed as under:--
"On the other hand, the Motor Vehicles Act is a special law which, by Sections 110 to 110-F provides for adjudication upon claims for compensation in respect of accidents involving the death of, or injury to, persons arising out of the use of motor vehicles. By Section 110, a State Government is empowered to constitute one or more Motor Accidents Claims Tribunals for adjudications upon the aforesaid claims for compensation. Section 110-A provides that an application for compensation arising out of an accident of the nature specified in Section 110(1) may be made by the person who has sustained the injury, or where death has resulted from the accident, by the legal representatives of the deceased, or by an agent duly authorised by the person injured or the legal representative of the deceased, as the case may be, and also prescribes the period within which such an application may be made. Section 110-B provides for the holding of an enquiry into the claim and for the making of an award by the said Tribunal. Section 110-C contains provisions regarding the procedure and the powers of the Claims Tribunal. Section 110-D provides a right of appeal to the High Court to a person aggrieved by the Award. Section 110-E provides for the recovery of money due from an insurer under an award, as arrears of land revenue. Section 110-F bars the jurisdiction of Civil Courts to entertain any question relating to any claim for compensation which may be adjudicated upon by a Claims Tribunal. The Act purports to consolidate and amend the law relating to motor vehicles.
The present Sections 110 to 110-F were substituted in the place of the old Section 110 by Section 80 of the Motor Vehicles (Amendment) Act, 1956 (Act No. 100 of 1956) and were intended to provide a cheaper and speedier remedy by way of an application before a Claims Tribunal instead of the remedy of a suit in a Civil Court as provided in the Fatal Accidents Act. Thus, the Act is a self-
contained Act, and as such, an application filed under Section 110-A of the Motor Vehicles Act is governed by the provisions in the Motor Vehicles Act and not by the provisions in the Fatal Accidents Act. A similar view was taken by a Division Bench of the High Court of Madras (Ananta Narayanan, C. J. and Ramakrishnan, J.) in Mohd. Habibula v. K. Sitammal, 1966 Acc CJ 349 : (AIR 1967 Mad
123) in which the learned Judges observed as follows:
"But the law has not been stationary since that Central Act was enacted in 1855. On the contrary, there has been considerable development since then, and it is also obvious that in the subsequent century that has elapsed, the volume of motor traffic and the statistics of motor accidents, fatal or otherwise, must both have originated and increased beyond all proportions. In this perspective, the Legislature has deliberately enacted the Motor Vehicles Act, and provided by virtue of Sections 110 to 110-F of that Act, not merely a self contained Code for the adjudication of claims to compensation on behalf of the victims ot a motor accident but also a complete machinery for the adjudication of such claims. Under Section 110-F, the jurisdiction of the Civil Court is specifically ousted by the Claims Tribunal for the area. The claim in the present case is under Sections 110 to 110-F of the Motor Vehicles Act. It has no connection whatever with the Indian Fatal Accidents Act (No. 13 of 1855) and is not advanced under any section or provision of that Act. It is noteworthy that Sections 110 to 110-F that we have-referred to make no mention of any kind any of the provisions of the Fatal Accidents Act, and do not incorporate any such provision even by the most oblique reference".
26. It was further observed as under : --
"There are various decisions in which Courts had to deal with claims under the Fatal Accidents Act and interpret the above mentioned words in Sections 1A and 2 of the Fatal Accidents Act. But, in view of the difference between the language of Sections 1A and 2 of the said Act and Section 110-B of the Motor Vehicles Act the decisions under the Fatal Accidents Act are not directly applicable to a claim made under the Motor Vehicles Act. A Claims Tribunal under the Motor Vehicles Act is empowered to determine the amount of the compensation which appears to it to be just. What amount of compensation would be just has necessarily to depend upon the circumstances in a given case. The word 'just' has a wider ambit than the words used in Sections 1A and 2 of the Fatal Accidents Act. Therefore, a Claims Tribunal dealing with a claim to consider what appears to it to be just compensation on the facts and circumstances of the case before it, and need not strictly follow and apply the basis of the assessment of compensation indicated in the various decisions under the Fatal Accidents Act or under English Law."
27. It was further observed as under : --
"The said decisions, Indian or English, can at the most, if at all, be of general guidance. The Claims Tribunal may in deciding the just compensation in a case, bear in mind and apply any general principle or principles laid down in the aforesaid Indian or English decisions as far as they may be applicable, and in so far as they may promote the interests of justice on the facts and the circumstances of each case. In other words, the said principles laid down in the decisions under the Fatal Accidents Act may be used or applied if they, in the opinion of the Tribunal, would serve as a proper measure of what is just compensation on the facts and circumstances of the case in hand."
28. In Dewan Hari Chand v. Municipal Corporation of Delhi, AIR 1973 Delhi 67, the learned single Judge of the Delhi High Court followed the decision in M. Basavalingiah v. T. P. Papanna, AIR 1972 Mys 63 and observed as under: --
"Section 110-A of the Act or for the matter of that, any other provision of the Act does not specify the persons who would be entitled to receive compensation. But it has been generally recognised that only such persons who would be entitled to receive compensation under the Act as are entitled to receive compensation under the Fatal Accidents Act, 1855. Such persons are specified in Section 1A of the Fatal Accidents Act and they are the wife, husband, parents and child of the deceased."
29. It was also observed in the above case that the life expectancy of the deceased will not be a relevant factor in computing the compensation.
30. In our view, no reasons have been given in the above case as to how Section 110A of the Act does not specify the persons entitled to receive compensation. In Section 110A(1) it has been clearly mentioned that an application for compensation can be made by persons mentioned in Clauses (a), (aa), (b) and (c). No reason has also been given as to why the life expectancy of the deceased will not be a relevant factor for determining the compensation.
31. In Dewan Hari Chand v. Municipal Committee of Delhi, AIR 1981 Delhi 71, it was held as under : --
"We will take the last question first to find out the law which is applicable to the determination of compensation payable for death caused by the negligence of the driver of a motor vehicle and the loss thereby caused to the dependents of the deceased. As was pointed out in Amarjit Kaur v. Vanguard Insurance Co. Ltd. 1969 Acc CJ 286 (Delhi), the law applicable to the claim for compensation is the common law of torts as modified by the statutes in India. The first modification was made by the Fatal Accidents Act, 1855, which was based on the Lord Campbell's Act in England. This was necessary because in common law the death of a person did not provide a cause of action for a suit for compensation to his dependents. It is only because the Fatal Accidents Act provides for the payment of such compensation that the cause of action arises in favour of the dependent of the deceased killed in a fatal accident. One species of such fatal accidents is those caused by motor vehicles which are dealt with by the newly added Sections 110A to 110F of the Motor Vehicles Act The provisions of the Motor Vehicles Act only provide a forum and a procedure for the claim for compensation. The substantive law is contained in the Fatal Accidents Act modifying the common law. The application under the Motor Vehicles Act is to be made by the legal representatives. What is the meaning of the term 'legal representative'? In the broad dictionary sense, they mean the legal heirs of the deceased who can also represent the estate of the deceased. Who are the legal heirs? This would be determined in the case of Hindus by the Hindu Succession Act. Unfortunately for the brothers of the deceased, the Hindu Succession Act has made the father of the deceased alone as a preferential heir to exclude the brothers of the deceased. Even under the Fatal Accidents Act, the dependents who can sue for compensation for death include the father but not the brothers.
32. In the above case a view has been taken that the provisions of the Act only provide a forum and a procedure for the claim for compensation. The substantive law is contained in the Fatal Accidents Act modifying the common law. We are in respectful disagreement with the view taken in this case and would give our reasons later.
Karnataka View
33. In The General Manager, Karnataka State Road Transport Corporation, Bangalore v. Peerappa Parasappa Sangolli, AIR 1979 Kant 154, a Division Bench of the Karnataka High Court held as under : --
"It may be noted that Section 110A of the 1939 Act enables all or any of the legal representatives of the deceased to apply for compensation arising out of an accident of the nature specif ied in Sub-section (i) of Section 110. In the 1855 Act the second paragraph of Section 1A provides for compensation for the benefit of the wife, husband, parent and child of the deceased person. If Section 1A is construed as a substantive provision, Section 110A which enables all the legal representatives to maintain an action for compensation must also be treated as a substantive provision. The 1939 Act is a special Act providing for adjudication of claims in respect of accidents involving motor vehicles and while dealing with a special Act we should take notice of the fact that the special Act or rule controls the general Act or the rule in the same field. Even in respect of damages that may be awarded under the 1855 and 1939 Acts, the yardstick for the quantification is not the same. Under the 1855 Act the Court is empowered to give such damages as it may think proportioned to the loss resulting from such death to the parties for whose benefit the action for damages has been brought and it further empowers the Court to apportion the damage amongst the persons who are entitled to receive it under para 2 of Section 1A. Whereas under Section 110B of the 1939 Act the Tribunal is empowered to make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. Here also the material difference in the language of Section 1A of the 1855 Act and Section 110B of the 1939 Act may be noticed. The words 'just compensation' and 'person or persons' in Section 110B are not the same thing as damages proportioned to the loss resulting from the death of the deceased to the parties who could only mean wife, husband, parent and child of the deceased person under the 1855 Act. The language of Section 110B in the matter of determination of compensation and recipients of compensation is wider than the language of Section 1A of the 1855 Act. Due regard being had to these wide powers under Section 110B of the 1939 Act, the said provision cannot be construed as a procedural provision but as a substantive provision and applying the settled rule of interpretation Section 110B should override the general provision contained in paragraph 3 of Section 1A of the 1855 Act."
34. It was further observed as under : --
"The law in India which governs cases for compensation for tortuous acts of tort-feasors is the law of torts. This branch of common law is literally borrowed from the common law of England. The Fatal Accidents Act was enacted in the year 1855 with the limited object of providing for compensation to families for loss occasiond by the death of a person on account of an actionable wrong. Such actionable wrong may be committed by a person while driving a motor vehicle or riding a horse or a bicycle. In the year 1855, the motor vehicle was neither invented nor was it in existence in India and though the 1855 Act has been modified up to 1967, there is no reference to motor vehicles in the Act. In the circumstances, the view of some High Courts that notwithstanding the provisions of Sections 110 to 110F of the Act, the claim for compensation involving accidents caused by motor vehicles should be governed by the 1855 Act does not appear to be sound. The determination of compensation under Section 110B of the Act is covered by the law of torts for that is the common law of the land and in the absence of any guidelines for determining compensation as provided for under Section 23 of the Land Acquisition Act or Sections 73 and 74 of the Contract Act or under relevant provisions of the Industrial Disputes Act, the Claims Tribunal necessarily has to follow the common law of torts for determining compensation. If that 'point is conceded, then the persons who are entitled to compensation cannot be specified with reference .to the provisions of the 1855 Act. Therefore, we are of the view that the 'persons' in Section 110B of the Act could be persons who are not beneficiaries under Section 1A of the 1855 Act but persons who come within the meaning of the words 'legal representatives' under the 1939 Act and there is no dispute that the brothers and the sisters of the deceased person in this case are 'legal representatives'. There is also no dispute that the deceased was killed in an accident involving a motor vehicle. Therefore, the brothers and the sisters of the deceased are entitled to compensation as legal representatives, provided they prove their dependency on the deceased.
The net result of this discussion is that Sections 110A to 110F of the 1939 Act are not merely- adjectival or procedural but also substantive in nature."
35. In the above case, Karnataka High Court did not agree with the view taken by learned single Judge of Delhi High Court in Dewan Hari Chand v. Municipal Corporation of Delhi AIR 1973 Delhi 67 and also distinguished the case of Mysore High Court M. Basavalingiah v. T. P. Papanna, AIR 1972 Mys 63.
36. In Basappa v. K. H. Sreenivasa Reddy, 1982 Acc a (Suppl) 583 : (AIR 1982 Kant 30), a Division Bench of the Karnataka High Court' allowed compensation to the husband for the loss of consortium of his wife as Rs. 10,000/-.
Gujarat View
37. In Megjibhai Khimji Vira v. Chaturbhai Taljabhai, AIR 1977 Guj 195, a Division Bench of the Gujarat High Court, held as under : --
"There cannot be any gainsaying that the 1939 Act makes provision for the constitution of the Claims Tribunal to provide a cheap and speedy mode of enforcing liability arising out of the use of motor vehicles. It is a benevolent legislation which calls for liberal and broad interpretation so that the real purpose underlying the enactment of Sections 110 to 110F is achieved and full effect is given to the legislative intent It is well settled that if while interpreting a welfare legislation any provision of the Act is capable of two constructions, that construction should be preferred which furthers the policy of the Act and is more beneficial to the class in whose interest the law has been made. The contention that the group of Sections 110 to 110F merely lays down the procedure and powers of the Tribunal and do not deal with liability at all, in other words, they are merely adjectival or procedural in nature, does not seem to be wholly correct. The first para of Section 1A of the 1855 Act, no doubt, has the effect of nullifying the principle contained in the maxim 'actio personalis moritur cum persona'. The second para of that section merely provides that every action or suit shall be brought for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused. The 1939 Act makes an inroad in so far as the second para of Section 1A of the 1855 Act is concerned, in that Section 110A thereof provides that an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110, may be made where the death has resulted from the accident by all or any of the legal representatives of the deceased. The proviso says that if all the legal representativesof the deceased do not join in the application, the application shall be made "on behalf of or for the benefit of all the legal representatives of the deceased". It is, therefore, clear on a plain reading of Section 110A of the 1939 Act that the right to apply for compensation where death has resulted from the accident is conferred on all the legal representatives of the deceased. If para 2 of Section 1A of the 1855 Act is a substantive provision, as was contended before us by Mr. Majmudar, we fail to understand why Clause (b) of Sub-section (1) of Section 110A which confers a right on the legal representatives of the deceased to claim compensation cannot be termed to be a substantive provision. The 1939 Act is undoubtedly a special legislation dealing with accidents arising out of the use of motor vehicles. According to the cardinal rule of construction, a particular or special rule must control or cut down the general rule (Bengal Immunity Co. Ltd. v. State Of Bihar, AIR 1955 SC 661). We have, therefore, no doubt in our minds that Clause (b) of Sub-section (1) of Section 110A of the 1939 Act is a substantive provision which confers a right on all the legal representatives of the deceased-victim of a tortious act to claim compensation from the wrong-doer, and being a special provision dealing with accidents arising out of the use of motor vehicles, it has the effect of overriding para 2 of Section 1A of the 1855 Act."
38. Thus, in the above case, it has been clearly held that 1939 Act is undoubtedly a special legislation dealing with accidents arising out of use of motor vehicles. According to the cardinal rule of construction, a particular or special rule must control or cut down the general rule.
39. It was further observed in the above case as under: --
"For the above reasons, we are inclined to think that the introduction of Sections 110A to 110F in the 1939 Act have brought about certain radical changes impinging upon the provisions contained in Sections 1A and 2 of the 1855 Act. We, therefore, cannot agree with the learned counsel for the appellants that the change brought about by the introduction of Sections 110A to 110F in the 1939 Act was merely adjectival or procedural in nature. Clause (b) of Sub-section (1) of Section 110A and Section 110B of the 1939 Act clearly deal with substantive law and being wider in scope than Sections 1A and 2 of the 1855 Act, must prevail over the general law. In view of the difference in the language of Sections 1A and 2 of the 1855 Act and Sections 110A and 110B of the 1939 Act, we are of the opinion that the latter Act being a special Act, must override the general law contained in the former Act."
Andhra Pradesh View
40. In K. Narayana Reddiar v. P. Venugopala Reddiar, 1976 Acc CJ 474: (AIR 1976 Andh Pra 184) a Division Bench of Andhra Pradesh High Court, held as under :
"The learned counsel for the respondent contended that even assuming that damages under this head could not be awarded under the Fatal Accidents Act, compensation for loss of consortium can be awarded under the Motor Vehicles Act. He relied on Section 110B of the Act which provides that the Claims Tribunal shall determine the amount of compensation which appears to it to be just. He therefore submitted firstly, that the amount awarded by the Tribunal as compensation is distinct from damages and secondly, the Tribunal is entitled to award such compensation which appears to it to be just and so, whatever may be the position under the ordinary law of Torts or under the Fatal Accidents Act, the Tribunal is free to award such compensation which appears to it to be just untrammelled by the provisions of the Fatal Accidents Act or the ordinary Law of Torts. He also drew our attention to the fact that the expression which is used in Section 110A which deals with the establishment of Claims Tribunal Section 110A which deals with the application for compensation to be made in the case of an accident, as well as Section 110B which deals with the award of Tribunal is 'compensation' and not 'damages'. If it appears to be just to the Tribunal to award compensation for the loss of consortium, it was free to do so. On the other hand, it was pointed out by Mr. Venugopal Reddy that the Tribunal has to apply the ordinary law just like any other Civil Court. In assessing the compensation it has to be guided by the principles which the Civil Court will follow in a similar case. The provisions relating to claims arising out of the accidents involving motor vehicles are only intended for providing an easy and summary remedy for obtaining relief in the case of an accident. Instead of filing a regular suit in a Civil Court, the relations or other persons referred to in Section 110A are entitled to approach the Tribunal for relief. The substantive Law of Torts as amended by statute is not altered or intended to be altered by the above provisions of the Motor Vehicles Act.
We are inclined to agree with this submission.
The object of introducing these provisions was to provide a speedy remedy for the adjudication of claims relating to accidents involving motor vehicles. We do not think that the legislature intended that a different Law of Tort should be applicable to persons injured in motor as vehicles accidents from those injured in other accidents. We do not think that it was intended by the use of the expression 'compensation' that the persons injured should be entitled to more than damages which they would be entitled under the Law of Tort. The expression 'just' in our view does not have any added significance, as compensation would by itself mean a proper recompense for the injuries. Even without the addition of the word 'just' there can be no doubt that the compensation awarded must be what is considered 'just' by the Court in the circumstances of the case. The learned counsel for the respondent relied upon the decision is Ishwari Devi v. Union of India in which it was observed that the Fatal Accidents Act is a general law providing for compensation to the representatives of a deceased person or to his estate for the loss occasioned by his death as a result of an accident. On the other hand, the Motor Vehicles Act is a special law, which by Sections 110 to 110-F provides for adjudication upon claims for compensation in respect of accidents involving the death of, or injury to persons, arising out of the use of motor vehicles. The decisions under the Fatal Accidents Act are not directly applicable to a claim made under the Motor Vehicles Act. The Claims Tribunal is empowered to determine the amount of compensation which appears to it to be just. The word 'just' has wider ambit than the word used in Sections i-A and 2 of the Fatal Accidents Act. The Tribunal need not strictly follow and apply the basis of the assessment of compensation indicated in the various decisions under the Fatal Accidents Act or under English Law. It is, however, to be noted, on a perusal of decision, that ultimately compensation was awarded under the head namely, compensation for pecuniary or material loss caused by the death of a person. It was stated that this principle provides a sound and reasonable basis in assessing just compensation under the Motor Vehicles Act. The principle enunciated by the Supreme Court in Gobald Motor Service v. Veluswami, (AIR 1962 SC 1), which was a case arising out of the Fatal Accidents was applied in this case also. It was observed that no other head of claim was canvassed before them. It is thus seen that the observations that the Tribunal under the Mqtor Vehicles Act is not bound by the provisions of the Fatal Accidents Act or by the ordinary Law of Tort are only in the nature of obiter."
41. In the above case, however, it was observed that even under the provisions of the Fatal Accidents Act, the husband is entitled to damages for the loss of consortium. The Tribunal had fixed damages under this head at Rs. 4,000/- and the High Court upheld the above order of the Tribunal by saying that Rs. 4,000/- under this head cannot be said to be excessive so as to require any interference in appeal
42. In C. Venkatesham v. General Manager, Andhra Pradesh State Road Transport Corporation, Hyderabad, 1977 Acc CJ 536 : (AIR 1978 Andh Pra 285) a Division Bench of the Andhra Pradesh High Court allowed an amount of Rs. 6,000/- under the head of loss of consortium to the husband and loss of love and affection to the children.
43. In The United India Fire & General Insurance Company Ltd. v. S. Saraswathi Bai, 1978 Acc CJ 43 a Division Bench of the Andhra Pradesh High Court allowed an amount of Rs. 3,000/- towards pain and sufferings to the parents or claimants on account of death of deceased.
44. In Polavarapu Somarajyam v. Andhra Pradesh Road Transport Corporation, Hyderabad, AIR 1983 Andh Pra 407 a Division Bench of the Andhra Pradesh High Court held as under : --
"On a consideration of the principles laid down in the above cases, we are inclined to agree with the learned senior standing counsel for the Corporation. Mr. C. Anandarao, that Sections 110 to 110-E of the Motor Vehicles Act provide cheap, efficacious and expeditious remedy and also a complete code with regard to the forum to entertain to adjudicate the claims, to give award of just compensation and to execute the same. The substantive law applicable to the claims arising out of the accidents while using the motor vehicles in which the death has occurred, etc., would be the Fatal Accidents Act as well as power given under Section 110-B, viz., to 'determine the amount of compensation which appears to it to be just'. Both would operate in the same field within the principles laid down under Sections 1A and 2 of the Fatal Accidents Act. Both the provisions have to be construed harmoniously; or else, by process of interpretation we would be rendering the substantive power to determine just compensation given under Section 110-B surplusage. No doubt, no guidelines or principles were laid down therein. By that omission it cannot be said that the above power is not substantive. It would appear that the Legislature thought that they would be unnecessary because they are already laid down in Sections 1A and 2 of the Fatal Accidents Act since the Fatal Accidents Act is genus embracing varied tortious acts of which the claims under the Act are some species. In Crawford's Statutory Construction at page 260 the principle of harmonious construction was stated as under : -
"Hence, the Court should, when it seeks the legislative intent, construe all the constituent parts of the statute together, and seek to ascertain the legislative intention from the whole Act, considering every provision thereof in the light of the general purpose and object of the Act itself and endeavouring to make every part efffective, harmonious and sensible. This means of course, that the Court should attempt to avoid absurd consequences in any part of the statute and refuse to regard any word, phrase, clause or sentence superfluous, unless such a result is clearly unavoidable".
The above principle equally proprio vigore applies here. Following the above principle, in this case, we are inclined to hold that both the substantive provisions intended to supplement each other. Any other construction would render the later surplusage. It was never the intendment of the legislature to that end. The endeavour of the Court should be to construe the parallel provisions harmoniously to allow both the Acts to have their full play and operation."
45. In the Chairman, A.P.S.R.T.C. v. Smt. Shafiya Khatoon, AIR 1985 Andh Pra 83, a Division Bench of Andhra Pradesh High Court dissented from the view taken in AIR 1981 Delhi 71, AIR 1970 Ker 241 and AIR 1981 Madh Pra 151. It was further held that Section 110-B of the Act provided that the Tribunal shall hold an enquiry into the claims of the parties and shall make an Award and specify the person or persons to whom compensation shall be paid. It was further observed as under :--
"In our view that provisions under Section 110-B of the Motor Vehicles Act, 1939 not only empower the Tribunal to make an award which is just but also empower the said Tribunal to specify the person or persons to whom the compensation shall be paid, thereby permitting apportionment of compensation payable under the Fatal Accidents Act to persons other than those enumerated in the Fatal Accidents Act, 1855. In our view all the legal representatives of the deceased according to the personal law applicable to the deceased will be entitled to apportionment of the dependency according to their needs and according to their age and that apportionment is not limited to the class of persons enumerated under Section 1A of the Fatal Accidents Act read with Section 4 thereof. The observations of their Lordships of the Supreme Court in relation to the wider scope of Section 110-B of the Motor Vehicles Act 1939 in Sheikhupura Transport Company v. N. I. T. Insurance Company, AIR 1971 SC 1624 are in our view apposite. Hegde, J. of the Supreme Court observed :
"Under Section 110-B of the Motor Vehicles Act 1939 the Tribunal is required to fix such compensation which appears to it to be just. The power given to the Tribunal in the matter of fixing compensation under the provisions is wide. Even if we assume (we do not propose to decide that question in this case) that compensation has to be fixed on the same basis as required to be done under the Fatal Accidents Act 1855 (Act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. (Emphasis ours)."
46. The Andhra Pradesh High Court, in the above case, also followed the liberal view taken in AIR 1977 Punj & Har 214 (FB), AIR 1979 Kant 154, AIR 1967 Mad 123, AIR 1981 Him Pra 87 and AIR 1977 Guj 195.
Bombay View
47. In Sanaulla v. Sanjiva Anna Shetty, 1982 Acc CJ (Suppl) 509 a Division Bench of the High Court considered it reasonable to allow conventional amount of Rs. 5,000/-towards loss of expectation of life of the deceased. Further amount of Rs. 5000/- was allowed to the wife of the deceased towards loss of husband.
48. In Abdulkadar Ebrahim Sura v. Keshinath Moreshwar Chandani, 1968 Acc CJ 78 : (AIR 1968 Bom 267) a Division Bench of the Bombay High Court held as under : --
"The next question is. whether applicant No. 1 in both the cases is entitled to damages on the ground of loss of consortium. Under common law, a husband can always bring an action for physical injury caused to his wife and also the wife could. The husband could sue the wrong-doer for the loss of her society and service, that is, consortium et servitium. However, in the case of death, no claim on this ground could be made and, therefore, if death ensued, the husband's claim for loss of consortium et servitium is limited to the interval between her injury and her death. But then by the Fatal Accidents Act, the common law itself was modified and actions came to be permitted even where a person died by the wrongful act of another. The section as worded clearly entitles all those for whose benefit the action is brought to an award of damages for the injury suffered by any one of the claimants. The word 'injury' is a word of large import and cannot be restricted to mean monetary injury only. If this is so, apart from claiming monetary damages that the claimant has suffered, the claimant would also be entitled to compensation in respect of any other injury suffered, and one of the heads of such injury would be the loss of society of the deceased. Mr. Pagnis contended that there is no decision which has recognised this right under the Fatal Accidents Act. It may be that because of the position obtaining in common law, a specific claim may not have been made in England. It may be that it may have been made and allowed and the cases have not been noticed. No case has defined and limited the heads under which under Section 1 of the said Act such claim could lie. In Berry v. Humm & Co., (1915-1 KB 627). Scrutton J. negatived a contention that under Section 1 compensation only for pecuniary loss was available to the relatives. The learned Judge said (p. 631) :
".....I can see no reason in principle why such pecuniary loss should be limited to the value of money lost, or the money value of things lost, as contributions of food or clothing, and why I should be bound to exclude the monetary loss incurred by replacing services rendered gratuitously by a relative, if there was a reasonable prospect of their being rendered freely in future but for the death."
Inasmuch as the section does not limit the claim only to pecuniary losses, but enables the claimant to make the claim in respect of the injury sustained by the claimant, it seems to us that the applicants are entitled to make a claim on this ground also."
Supreme Court Cases:
49. In Gobald Motor Service Ltd. v. R. M. K. Veluswami, AIR 1962 SC 1 a suit was filed by the claimants for compensation under the provisions of the Fatal Accidents Act. The provisions of the Act did not come up for consideration in the above case. Dealing with the provisions of the Fatal Accidents Act, their Lordships observed as under : --
"The law on this branch of the subject may be briefly stated thus: The rights of action under Sections 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under Section 1 of the Act, that portion shall be excluded in giving compensation under Section 2 and vice versa."
50. It was held that under Section 2, both the Courts awarded damages for the loss to the estate of the deceased in a sum of Rs. 5,000/-. That figure represents the damages for the mental agony, sufferings and loss of expectation of life. There was no duplication in awarding damages under both the heads.
51. In Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co.
Ltd., AIR 1971 SC 1624 their Lordships of.the Supreme Court held as under : --
"Under Section 110-B of the Motor Vehicles Act, 1939 the Tribunal is required to fix such compensation which appears to it to be just. The power given to the tribunal in the matter of fixing compensation under that provision is wide. Even if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required to be done under Fatal Accidents Act, 1855 (Act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained -- See Gobald Motor Service Ltd. v. R. M. K. Veluswami, (1962) 1 SCR 929 = AIR 1962 SC 1."
Rajasthan View:
52. In Smt. Gyarsi Devi v. Sain Das, AIR 1982 Raj 30 Hon'ble Section C. Agrawal J. held as under:--
"The next question which arises for consideration is as to amount of compensation that should be awarded to the claimant. The Claims Tribunal has assessed the compensation at Rs. 30,600/- on the basis that the deceased was earning about Rs. 200/- per month out of which he must be spending about Rs- 50/- per month over himself and was giving Rs. 150/-per month to the claimant. The Claims Tribunal has observed that the age of the claimant at the time of accident was 35 years and she is likely to survive for another 20 years and that the deceased, notwithstanding his marriage, would have continued extending financial help to the claimant at the rate of Rs. 150/- per month for a period of 20 years. The Claims Tribunal held that because of the death of her son as a result of the accident the claimant has been deprived of reasonable expectation of pecuniary benefit to the extent of Rs. 36,000/- and after deducting Rs. 5,400/-15% for lump sum payment and uncertainties of life, the Claims Tribunal assessed the amount of compensation at Rs. 30,600/-. In making the aforesaid assessment, the Claims Tribunal failed to notice that in the claim petition, the claimant has claimed Rs. 25,000/-only on account of deprivation of benefit of the support from her son and the loss on account of expectation of life of the deceased. In the claim petition the claimant has claimed a sum of Rs. 25,000/ - for nervous shock, pain and mental agony suffered by her on account of the accident resulting in the death of her son. I find that the Claims Tribunal has not recorded any finding with regard to second head of the claim based on nervous shock, pain and mental agony suffered by her. The law is, however well settled that in the event of a fatal accident, compensation can be claimed by the relatives of the deceased for the loss of their dependency under Section 1A of the Fatal Accidents Act 1855 and the legal heirs of the deceased can claim compensation for the loss caused to the estate of the deceased under Section 2 of the Fatal Accidents Act 1855. The dependants are not entitled to any compensation for sentimental damage harassment or pain and suffering (See Davies v. Powell Duffryn Associated Collieries Ltd.. 1942 AC 601 Per Lord Wrighy Lachman Singh v. Gurmit Stngh, 1979 Acc CJ 170 AIR 1979 Punj & Har 50 (FB) H.P. Road Transport Torporation v. Pandit Jai Ram (1980) Acc CJ 1 AIR 1980 Him Pra 160. The claimant could not. therefore be awarded any compensation under the second head and the Claims Tribunal has not committed any error in not awarding any compensation to the claimant under that head. As regards compensation for loss of dependency and loss to the estate on account of expectation of life, the claimant cannot be awarded more than the sum of Rs. 25,000 -claimed by her in the claim petition and the Claims Tribunal has committed an error in awarding compensation in excess of the amount claimed by the claimant in the claim petition. The compensation that can be awarded to the claimant as against Respondents Nos. 1 and 3 can only be to the extent of Rs. 25.000 claimed by the claimant in the claim petition."
53. In the above case, though it was a claim made before the Motor Accident Claims Tribunal and appeal was heard in the High Court against the Award given by the Tribunal but view was taken that in the event of a fatal accident, compensation can be claimed by the relatives of the deceased for the loss of their dependency under Section 1A of the Fatal Accidents Act, 1855 and the legal heirs of the deceased can claim compensation for the loss caused to the estate of the deceased u/s. 2 of the Fatal Accidents Act. It was further held that the dependents were not entitled to any compensation for sentimental damage, harassment or pain and sufferings. The provisions of the Act under which the claim for compensation was filed, were not taken into consideration. No reasons have been given as to why a liberal and extended meaning should not be given to the term 'just compensation' as contained in Section 110-B of the Act.
54. A perusal of the entire case law mentioned above would show that Gujarat, Karnataka. Bombay. Himachal Pradesh and Allahabad High Courts have taken the view that provisions of the Act are substantive in nature and have to be given full and extended meaning in determining the compensation as well as the persons who are entitled to claim damages. Delhi High Court in AIR 1969 Delhi 183 took a view that Motor Vehicles Act being a special law has to be applied but in a later decision in AIR 1981 Delhi 71, it was held that'the Act only provides forum and procedure while substantive law is contained in Fatal Accidents Act. The Andhra Pradesh High Court has allowed compensation on account of loss of consortium as well as on account of loss of love and affection to young children. So far as the view taken in AIR 1979 Punj & Har 50 (FB) is concerned, we have already pointed out that it was a case of murder and provisions of the Act could not have been attracted in the above case. The observations, if any, made in the above case, are not relevant for the purpose of deciding the controversy raised before us. We are inclined to follow the liberal view taken by Gujarat, Karnataka, Bombay, Himachal Pradesh and Allahabad High Courts.
55. A perusal of the scheme and provisions of the Act clearly goes to show that it is a self contained Act and not only deals with the procedural or adjectival law, but also deals with the substantive law. There can be no manner of doubt that the Act makes provision for the constitution of the Claims Tribunal to provide a cheap and speedy remedy of enforcing liabilities arising out of the use of motor vehicles. It is a benevolent and welfare legislation and must be given a liberal and broad interpretation. Sections 94 to 97 of the Act lay down substantive provisions to compel the owners of motor vehicles to take out insurance policies to safeguard the interest of the third parties who become victims of negligent driving of motor vehicles. The legislature while enacting the Act had taken note that there was rapid increase in the number of motor vehicles and there were increasing number of accidents involving third parties.
56. Before the introduction of Sections 110 to 110-F in the Act, claims arising out of the fatal accidents involving the use of motor vehicles were governed by the provisions contained in the Fatal Accidents Act. But after coming into force of the Act, if any case is covered within the provisions of the Act which being a special Act, in our view, the provisions of the Fatal Accidents Act cannot restrict the provisions of the Act.
57. An application for compensation under Section 110-A of the Act could only be filed where it arises out of an accident of the nature specified in sub-sec, f 1) of Section 110. This means that this would cover such cases where claims for compensation are made in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Section 110-A also provides that such application for compensation can be made (a) by the person who has sustained the injury; or (aa) by the owner of the property; or (b) where death has resulted from the accident, by all or any of the legal representatives of the deceased;
or (c) by any agent duly authorised by the person injured or af! or any of the legal representatives of the deceased, as the case may be. This is a clear departure from the provisions of the Fatal Accidents Act where such action or suit could only be brought for the benefit of the wife, husband, parent and child. Obviously, under the Fatal Accidents Act, no other category of parsons except those mentioned above could bring any action or suit, while under Section 110-A of the Act, such action or claim can be brought by all or any of the legal representatives of the deceased. The legal representatives can be determined by the provisions of personal law governing such a case. Then, under Section 110-B of the Act, it has been clearly provided that the Claims Tribunal may make an Award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. The word 'just' compensation certainly gives a wider scope to the Claims Tribunal in determining the compensation in comparison to that as given in the Fatal Accidents Act. It would, however, depend upon the facts and circumstances of each case as to what should be the just compensation. Section 110-C provides for procedure and powers of Claims Tribunals, Section 110-CC provides for award of interest where any claim is allowed, Section 110-CCC provides for award of compensatory cost in certain cases and Section 110 D provides for appeals. Section 110-E provides that the money can be realised from the insurer as arrears of land revenue and Section 110-F provides that where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area Thus, all the above provisions leave no manner of doubt that Sections 110 to 110-F of the Act provides not only procedural provisions but also contain substantive provisions and these provisions being special provisions dealing with accidents arising out of the use of motor vehicles, they will have the effect of overriding the provisions of the Fatal Accidents Act. Thus, the provisions of the Act shall apply in determining the amount of compensation as well as the persons who would be entitled to such compensation.
58. We are neither concerned nor called upon in this reference as to what would be the quantum of such compensation and it would be for the concerned Court to decide as to what would be the just compensation in the facts and circumstances of each individual case. We would now consider the question of admissibility of compensation in respect of the following heads for which the learned single Judge has made this reference :
1. Loss of life and affection of spouse/children/parents.
In determining the just compensation, the Court is entitled to grant compensation on the above head.
2. Consortium We have already cited number of cases where compensation has been allowed for loss of consortium but in case the amount of compensation is allowed to a spouse under the first head, then, the question of further allowing compensation under the head of loss of consortium will not arise.
3. Loss of future happy life of deceased.
Any compensation under this head appears to be over-lapping the compensation already considered under the first head of loss of life and affection of spouse/children/parents. Thus, no separate compensation need to be considered when the same has already been considered under the first head.
4. Mental shock
59. The question came up for consideration recently before the House of Lords in Mc Loughlin v. O'brian, (1984) 1 ACC (BJ) 56. In this case, the facts were that the husband and three children of the plaintiff met with an accident caused by the negligence of the defendants. At the time of accident the plaintiff was at home two miles away from the place of accident. The plaintiff was told of the accident by a person who had been at the scene of accident and was taken to the hospital where she saw the injured members of the family and heard that her daughter had been killed. As a result of hearing and seeing the result of the accident, the plaintiff suffered severe nervous shock. The plaintiff claimed damages against the defendants for the nervous shock, distress and injury to her health caused by the defendant's negligence. Both the trial Judge and the Court of appeal dismissed her claim; the plaintiff appealed to the House of Lords, the appeal was allowed. Lord Wilberforce made the following speech : --
"But, these discounts accepted, there remains, in my opinion, just because 'shock' in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation on the extent of admissible claims. It is necessary to consider three elements inherent in any claims: the class of persons whose claims should be recognised; the proximity, of such persons to the accident; and the means by which the shock is caused. As regards the class of persons, the possible range is between the closest of family ties, of parent and child, or husband and wife, and the ordinary bystander. Existing law recognises the claims of the first; it denies that of the second, either on the basis that such persons must be possessed of fortitude sufficient to enable them to endure the calamities of modern life or that defendants cannot be expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls within the first class it is strictly unnecessary to say more. I think, however, that it should follow the other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident."
60. All the Law Lords in the above case found that where the result of the negligence is considered to have been a reasonable foreseeable, the defendants are liable in damages. Thus, in order to decide the question of compensation under the above head of mental or nervous shock, it would depend on the facts of the each individual case. We would quote the apt observations in the speech of Lord Bridge of Harwich in the above case.
"My Lords, I have no doubt that this is an area of the law of negligence where we should resist the temptation to try yet once more to freeze the law in a rigid posture which would deny justice to some who, in the application of the classic principles of negligence derived from Donoghue v. Stevenson, (1932) AC 562, (1932) All ER Rep 1, ought to succeed in the interests of certainty, where the very subject-matter is uncertain and continuously developing, or in the interests of saving defendants and their insurers from the burden of having sometimes to resist doubtful claims. I find myself in complete agreement with Tobriner, J. that'the defendant's duty must depend on reasonable foreseeability and--
"must necessarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant's obligation in every situation by a fixed category: no immutable rule can establish the extent of that obligation for every circumstance of the future."
61. Thus, it would depend on the facts and circumstances of each case but in case the claimants may bring their case within the principles enunciated in the above case of House of Lords, they would be entitled to claim compensation under this Act.
5. Mental and physical agony, pain & sufferings.
62. The claimants under the above head cannot claim any compensation for their own mentai and physical agony or pain and sufferings on account of the death of a person in an accident. However, it would be a different case where the claimant himself suffers an injury in an accident and on that count, he claims compensation of his own injuries, in that case, the claimant would be entitled to compensation for the expenses incurred by him in connection with the medical treatment or any disability of temporary or permanent nature incurred by him. Similarly, if any amount is spent on the treatment of a person during the period he remained alive from the time of his accident till his death, compensation can also be awarded to the claimants on that count.
63. The reference is thus answered in the manner indicated above.