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Shanker Rao Vs. Babulal Fouzdar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (First) Appeal No. 156 of 1976
Judge
Reported inAIR1980MP154
ActsInsurance Act, 1938 - Sections 46; Fatal Accidents Act, 1855 - Sections 1A and 2; Motor Vehicles Act, 1939 - Sections 110A to 110F; Motor Vehicles (Amendment) Act, 1956
AppellantShanker Rao
RespondentBabulal Fouzdar and anr.
Appellant AdvocateV.S. Dabir and ;A.G. Dhande, Advs.
Respondent AdvocateA.R. Choubey and ;P.C. Naik, Advs.
DispositionAppeal partly allowed
Cases ReferredBhagwatidin Gangadin v. Gheesalal Nathulal
Excerpt:
- - ..the principle in its application to the indian act has been clearly and succinctly stated by a division bench of the lahore high court in secretary of state v. under the former section the damages are made payable to one or the other relations, enumerated therein whereas the latter section provides for the recoupment of any pecuniary loss to the estate of the deceased 'occasioned by the wrongful act complained of. ..12. it is well known that fatal accidents act, 1855 enacts exception to the general rule action personal is moritur cum persona which means, a personal action dies with the person'.the damages claimable under the fatal accidents act, as already shown, fall under two heads. in other words such an action would not fail in its entirety simply because there is in.....j.s. verma, j. 1. this is a claimant's appeal under section 110-b of the motor vehicles act against the award dated 12-3-1976 passed by the motor accidents claims tribunal east nimar, khandwa in claims case no. 12 of 1974 dismissing the entire claim for compensation made under section 110-a of the motor vehicles act, 2. the motor accident giving rise to the claim occurred on 26-1-1974 when deceased ambadas was knocked down by a bus mfc 4757 which came from behind. ambadas when he was walking on the correct side of the road at khandwa near the bus stand. the deceased ambadas was a peon in the government irrigation department and was aged about 40 years at the time of his death. he was drawing in all rs. 196/- per month as his salary. the deceased succumbed to his injuries soon after the.....
Judgment:

J.S. Verma, J.

1. This Is a claimant's appeal under Section 110-B of the Motor Vehicles Act against the award dated 12-3-1976 passed by the Motor Accidents Claims Tribunal East Nimar, Khandwa in Claims Case No. 12 of 1974 dismissing the entire claim for compensation made under Section 110-A of the Motor Vehicles Act,

2. The motor accident giving rise to the claim occurred on 26-1-1974 when deceased Ambadas was knocked down by a bus MFC 4757 which came from behind. Ambadas when he was walking on the correct side of the road at Khandwa near the Bus stand. The deceased Ambadas was a peon in the Government Irrigation Department and was aged about 40 years at the time of his death. He was drawing in all Rs. 196/- per month as his salary. The deceased succumbed to his injuries soon after the accident in which he was crushed under the front wheel.

The deceased was unmarried and the sole claimant Shanker Rao is his elder brother. The claimant alleged that he was being paid Rs. 100/- per month by the deceased for meeting the house hold and other expenses. On this basis a claim for compensation had been made by him as a result of death of Ambadas. Respondent No. 1 is the owner, respondent No, 2 is the driver and respondent No, 3 is the insurer of the offending bus.

3. The Tribunal has held that the accident occurred entirely on account of negligence of the bus driver and the deceased Ambadas died as a result of injuries sustained by him in that accident. It has further been held that respondent No. 2 Hari Prasad who was driving the bus had no driving licence and he 'was also not an employee of the insured. Accordingly the insurer has been absolved from liability for payment of any compensation. It has also been held that the claimant being the brother of the deceased, ha was not entitled to recover any compensation as there was no pecuniary loss to him and a brother is not entitled to claim compensation under Section 1A of the Fatal Accidents Act On this reason alone the entire claim has been dismissed against all the respondents. That has led to the filing of this appeal by the claimant.

4. The first question before us is about the negligence of Hari Prasad respondent No. 2 who was driving the bus when it knocked down the deceased and its effect. The finding of the Tribunal is that Hari Prasad was driving the bus on being so asked by the regular driver Mahabir Prasad employed by the insured owner. There is no dispute that in such a case, for the negligence of Hari Prasad, the owner of the bus would be vicariously liable, The fact that Hari Prasad was negligent in driving the bus is beyond controversy on the facts of this case. In broad day-light the deceased was knocked down from behind on the main road by the bus, without any fault of the deceased. The negligence of Hart Prasad in driving the bus is, therefore, obvious, as a result thereof the vicarious liability of the owner respondent No. 1 is beyond controversy and is not disputed. The further question however is of the insurer's liability which has been negatived by the Tribunal.

5. The insurer pleaded in the present case that Hari Prasad who was driving the bus had no licence and was also not in the employment of the insured. On this basis the liability of the insurer was denied under terms of the policy. There is no evidence to prove that Hari Prasad had a driving licence. In fact the respondents defended the claim by denying the fact that Hari Prasad was driving the bus on being asked by the regular driver Mahabir Prasad. However, this defence has been found to be false and in our opinion rightly. Apart from the question whether Hari Prasad held a driving licence, the further question is whether Hari Prasad was in the employment of the insured i.e. bus owner. D.W. 1 ---Babulal a Munim of respondent No. 1 has stated on the basis of employees' register maintained by the respondent No. 1, that Hari Prasad respondent No. 2 was not one of the employees. That being so, on the conclusion that the bus was being driven at the time of accident by Hari Prasad, it is obvious that the driver at the time of accident was not even an employee of the insured bus owner respondent No. 1. According to one of the terms; of the policy of insurance the insurer's liability is subject to the condition that person driving the vehicle holds a licence to drive the vehicle or has held and is not disqualified from holding or obtaining such a licence and provided he is in the employment of insured and is driving on his order or with his permission. Unless the person driving the vehicle falls in that category, the insurer is not liable under the policy and is, therefore, exempted from indemnifying the insured. In the present case, apart from the question whether Hari Prasad held a driving licence or not, he was neither in the employment of the insured nor was he driving the bus at the time of the accident on the order or with the permission of the insured. The insurer, therefore, is exempt from any liability under the terms of the policy and there is no infirmity even in this con-elusion reached by the Tribunal,

6. The question now, which in fact is the main question in controversy, is whether the claimant who is brother of the deceased is entitled to recover compensation. This question has to be answered In the light of substantive law applicable for determining the liability of the wrongdoer.

7. The first point which arises is whether the substantive law applicable for determination of liability is contained in the Fatal Accidents Act, 1855 or in Section 110-A of the Motor Vehicles Act, 1939. If the substantive law is contained in the Fatal Accidents Act, 1855 then the difference between Sections 1A and 2 thereof and its result has to be examined. The question whether a brother of the deceased who is not one of the persons specified in Section 1A of the Fatal Accidents Act is entitled to recover compensation as a result of the fatal accident would depend on the answer to this question.

8. In this Court it has never been doubted that in the cases of fatal accidents resulting even from the use of a motor vehicle the substantive law for determination of the liability and its extent is that contained in the Fatal Accidents Act, 1855, the provisions contained in Sections 110-A to 110-F of the Motor Vehicles Act, 1939 being merely procedural or adjectival but not substantive in nature: these provisions introduced in the Motor Vehicles Act by the Amendment Act of 1956 are meant only to provide a cheap remedy to the claimants who were earlier required to file a civil suit paying ad valorem court-fees in the courts of general jurisdiction; and therefore, any question pertaining to a substantive right has to be determined in accordance with the general law of Tort and the Fatal Accidents Act; Kamla Devi v. Kishanchand, 1970 MPLJ 273: (AIR 1970 Madh Pra 168) (DB); Kas-turilal v. Prabhakar. 1970 Acc CJ 1 (AIR 1971 Madh Pra 1451- (DB); Mangi-]al v. Parasram, 1P70 MPLJ 1 : (AIR 1971 Madh Pra 5) (FBI and State of Madhya Pradesh v. Raj Pehlajraj Dwarkadas, 1976 MPLJ 317: (AIR 1976 Madh Pra 2081 (DB). It was on this basis that the court repelled consistently the argument of there being no need to prove negligence as required by the general law of Tort for raising liability of the wrongdoer and it was held that proof of negligence in order to fasten liability on the wrongdoer was necessary even in a claim filed under Section 110-A of the Motor Vehicles Act because the liability was to be determined in accordance with the general law of Tort, The Full Bench was constituted in Mangilal's case (supra) to settle this point. The same view is also taken subsequently by the Supreme Court and therefore, the matter is now beyond controversy. In New India Insurance Co. Ltd. v. Smt. Shanti Mishra, AIR 1976 SC 237, it was expressly ruled that these provisions in the Motor Vehicles Act were only a change of adjectival or procedural law and not of substantive law. It was for this reason that the jurisdiction of Civil Court was held to be barred retrospectively under Section 110-F of the Motor Vehicles Act in respect of claims filed subsequent to the constitution of Claims Tribunal under Section 110 of Motor Vehicles Act, even in respect of accidents occurring prior to its constitution on the ground that the change of law being merely procedural, it operated retrospectively and the claimant had to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. It is difficult to appreciate how a contrary view on this point is now possible after the Supreme Court's decision.

9. It follows that in a claim filed before a Claims Tribunal under Section 110-A of the Motor Vehicles Act, the liability and its extent has to be determined in accordance with the Fatal Accidents Act and the general law of Tort. For this reason, the scope of and distinction between Sections 1A and 2 of the Fatal Accidents Act have to be seen. Under Section 1A compensation is awarded for the benefit of the wife, husband, parent and child, if any, of the deceased for the pecuniary loss suffered by these persons specified in the provision. The section also provides that the action has to be brought in the name of the executor, administrator or representative of the persons deceased. Accordingly, even though the action can be brought by the executor, administrator or representative of the deceased under this section, it is only for the benefit of the specified persons to recover the pecuniary loss suffered by them as a result of the fatal accident. This section does not permit award of compensation for pecuniary loss, if any, to any other relative of the deceased who is not specified in the section itself, even though the action can be brought for the benefit of the specified relatives by a person who is the executor, administrator or representative of the deceased. It is settled that the action is a representative action and only one such action can be brought for the benefit of all the specified relatives. Section 2 then provides for recovery of loss to the estate of the deceased. It is in the nature of a proviso to Section 1A and says that by such action the executor, administrator or representative of the deceased may insert a claim for recovery of any pecuniary loss to the estate of the deceased, which sum when recovered shall be deemed part of the assets of the estate of the deceased. It is clear that this additional claim permitted to be made under Section 2 is for recovery of the economic loss to the estate of the deceased and is independent of the pecuniary loss to the specified relatives of the deceased awardable under Section 1A of the Fatal Accidents Act. It is significant that the claim under Section 2 of the Act is for the benefit of the estate and not merely for the benefit of relatives specified in Section 1A.

19. The reason for this distinction between the two sections is obvious. Section 1A was enacted to compensate the dependants specified therein for their pecuniary loss as a result of the death in the fatal accident of the person who provided for them. On the other hand, Section 2 is meant to enable recovery of the economic loss to the estate of the deceased as a result of the fatal accident which is likely to occur independent of the pecuniary loss to the dependants, if any, of the deceased. There may be economic loss sustained by the estate as a result of the fatal accident, even when there are no dependants of the deceased of the category specified in Section 1A and in such a case a claim for loss to the estate under Section 2 would lie even though no compensation for any pecuniary loss under Section 1A would be awardable in the absence of any dependant specified in Section 1A. In our opinion, the construction of these two provisions of the Fatal Accidents Act is clear from the plain language of the provision. It is also settled by decisions of the Supreme Court to which a brief reference is made hereafter.

11. In Gobald Motor Service Ltd. v. R.M.K. Veluswami, AIR 1962 SC 1, it was held as follows:

'While Section 1 of the Act is in substance a reproduction of the English Fatal Accidents Act, 9 and 10 Vict Ch. 93, known as the Lord Campbell's Acts. Section 2 thereof corresponds to a provision enacted in England by the Law Reform (Miscellaneous Provision) Act, 1934. The cause of action under Section 1 and that under Section 2 are different. While under Section 1 damages are recoverable for the benefit of the persons mentioned therein, under Section 2 compensation goes to the benefit of the estate; whereas under Section 1 damages are payable in respect of loss sustained by the persons mentioned therein, under Section 2 damages can be claimed inter alia for loss of expectation of life. Though in some cases parties that are entitled to compensation under both the sections may happen to be the same persons, they need not necessarily be so; persons entitled to benefit under Section 1 may be different from those claiming under Section 2. Prima facie as the two claims are to be based upon different causes of action, the claimants whether the same or different, would be entitled to recover compensation separately under both the heads...... .....,'

'The principle in its application to the Indian Act has been clearly and succinctly stated by a Division Bench of the Lahore High Court in Secretary of State v. Gokal Chand, ILR 6 Lah 451 : AIR 1925 Lah 636. In that case, Sir Shadi Lal C.J. observed (at p. 453 of ILR Lah) : (at p. 636 of AIR) thus:

'The law contemplates two sorts of damages; the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate'.........

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.'

In C.K. Subramania Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376: 1970 Acc CJ 110, their Lordships reiterated as follows :--

'The rights under the two provisions are quite distinct and independent. Under the former section the damages are made payable to one or the other relations, enumerated therein whereas the latter section provides for the recoupment of any pecuniary loss to the estate of the deceased ' occasioned by the wrongful act complained of. Sometimes, the beneficiaries under the two provisions may be the same. Section 1A is in substance a reproduction of the English Fatal Accidents Acts 9 and 10 Vict. Ch. 93 known as the Lord Campbell's Acts. Section 2 corresponds to one of the provisions in the English Law Reform (Miscellaneous Provisions) Act, 1934.' ...............

'The law on the point arising for decision may be summed up thus: Compulsory damages under Section 1A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2, the measure of damages is the economic loss sustained by the estate......'

12. It is well known that Fatal Accidents Act, 1855 enacts exception to the general rule action personal is moritur cum persona which means, 'a personal action dies with the person'. The damages claimable under the Fatal Accidents Act, as already shown, fall under two heads. Under Section 1A of the Act, it is recoverable for the pecuniary loss sustained by the dependants specified therein while Section 2 enables recovery of economic loss to the estate of the deceased occasioned by the wrongful act, neglect or default resulting in the fatal accident. It is also clear that the action for recovery of compensation both under Sections 1A and 2 can be brought by the executor, administrator or representative of the deceased and that the same is a representative action for the benefit of the person specified in Section 1A and or the estate of the deceased, as the case may be.

13. The result which follows from this discussion is that where the claimant is a person specified in Section 1A for whose benefit a claim for recovery of pecuniary loss under Section 1A can be made, then there is no difficulty and damages under both the heads can be claimed and recovered. Where however, an action is brought by a person who is the executor, administrator or representative of the deceased, but there is in existence no person specified in Section 1A for whose benefit pecuniary loss can be awarded thereunder, the action would lie for recovery only of the compensation claimed and recoverable under Section 2 of the Act, there being no basis to make any award under Section 1A. In other words such an action would not fail in its entirety simply because there is in existence no person specified in Section 1A entitled to recover the pecuniary loss, if a claim for award of compensation under Section 2 for economic loss to the estate of the deceased is made out. Such an action for recovery of compensation under Section 2 alone would lie at the instance of the executor, administrator or representative of the deceased, even though they are not amongst the relatives specified in Section 1A.

14. It is now necessary for us to refer to some decisions which appear to take a contrary view and which have been relied on recently in a single Bench decision of this Court in Bhagwatidin Gangadin v. Gheeaalal Nathulal, 1980 MPLJ 95. Relying on those decisions the learned single Judge in Bhagwatidin's case has come to the conclusion that a brother of the deceased in the absence of any relative specified in Section 1A of the Fatal Accidents Act is entitled to claim compensation for pecuniary loss recoverable under Section 1A. The reasoning of the learned single Judge is that Section 110-A of the Motor Vehicles Act is not merely procedural and it confers a substantive right on all the legal representatives of the deceased, it having the effect of overriding Section 1A of the Fatal Accidents Act. It has been held that the words 'legal representatives used in Section 110-A of the Motor Vehicles Act must be construed as defined in Section 2(11) of the Civil P.C. and since Section 110-A of the Motor Vehicles Act is a substantive provision conferring a right by itself to recover compensation, all persons falling within the definition of 'legal representatives' of the deceased are entitled to claim compensation for pecuniary loss independent of Section 1A of the Fatal Accidents Act.

15. With the utmost respect we are of the opinion that the single Bench decision in Bhagwatidin's case, (1980 MPLJ 95) was reached by overlooking the full impact of the consistent view of this court including a Full Bench decision and also the Supreme Court decision in Smt. Shanti Misra's case (AIR 1976 SC 237) (supra). The view that Section 110 A supersedes the provisions of the Fatal Accidents Act and by itself confers a substantive right which is not merely procedural, is in direct conflict with earlier decisions of this court of greater authority as well as the Supreme Court decision. We are, therefore, unable to accept the view expressed by the learned Single Judge in Bhagwatidin's case.

16. There is no difficulty in holding that the expression 'legal representatives' used in Section 110-A should be construed as defined in Section 2(11) of the Civil P.C. as held in Bhagwatidin's case, (1980 MPLJ 95). In fact that was said earlier also by a Division Bench of this Court in Kasturi Lal v. Prabhakar, 1970 Acc CJ 1 : (AIR 1971 Madh Pra 145) which has been followed in Bhagwatidin's case. However the result thereof is not the same as reached in Bhagwatidin's case. Construing the expression 'legal representatives' used in Section 110-A of the Motor Vehicles Act as it is - defined in Section 2(11) of the Civil P.C. only means that any person falling within that definition is entitled to file the application for compensation to a Claims Tribunal under Section 110-A and nothing more. This cannot automatically mean that a person entitled to file an application for compensation under Section 110-A because of falling within the definition of 'legal representatives' is for that reason alone entitled to claim compensation for pecuniary loss to himself unless this provision be held further as the sole repository of the substantive right for claiming compensation. In fact it was to overcome this difficulty that Section 110-A has been construed in Bhagwatidin's case and the cases of other courts relied on therein as the provision conferring a substantive right superseding Section 1A of the Fatal Accidents Act. This further conclusion reached in Bhagwatidin's case that Section 110-A confers a substantive right superseding Section 1A of the Fatal Accidents Act is, as already shown, contrary to the settled view of this Court and the view of the Supreme Court.

17. One of the cases relied on in Bhagwatidin's case, (1980 MPLJ 95) is The Vanguard Insurance Co. Ltd. v. Ghallu Hanumantha Rao, 1975 Acc CJ 344 (Andh Pra). Reading that decision as a whole in the context in which it was given, we do not think that it takes a contrary view. In that case the claim was filed under Section 110-A of the Motor Vehicles Act initially by the mother of the deceased claiming pecuniary loss to her amounting to Rupees 9,000 in addition to the claim for economic loss to the estate. That was, therefore, a claim for compensation both under Sections 1A and 2 of the Fatal Accidents Act. The mother having died during the pendency of the claim, the claim of Rs. 9,000/- was given up and it was tried after sub-stituting the brother, only for the claim falling under the second head. The Tribunal awarded compensation under the other head which fell under Section 2 of the Fatal Accidents Act. Against the award of the Tribunal one of the objections taken in appeal before the Andhra Pradesh High Court was that the brother of the deceased was not entitled to claim compensation since he was not a relative specified in Section 1A of the Fatal Accidents Act. That objection was rejected and the Tribunal's award of compensation under the second head as of economic loss to the estate was upheld. While doing so the Andhra Pradesh High Court expressly stated that the provisions contained in Sections 110-A to 110-F of the Motor Vehicles Act only relate to procedure and have nothing to do with the substantive right of the parties which continue to be determined under the Law of Torts, the Legal Representatives Suits Act and the Fatal Accidents Act The definition of 'legal representatives' -contained in Section 2(11) of the C.P.C. was relied on to construe the expression 'legal representatives' used in Section 110-A of the Motor Vehicles Act, but that was done only to uphold the brother's right as a 'legal representative' of the deceased to file a claim under Section 110-A of the Motor Vehicles Act for recovery of compensation for economic loss to the estate of the deceased falling under Section 2 of the Fatal Accidents Act. As we read the decision, there is nothing therein to show that the brother of the deceased in the absence of any relative specified in Section 1A of the Fatal Accidents Act was held entitled to recover compensation for pecuniary loss under Section 1A of the Fatal Accidents Act or under Section 110-A of the Motor Vehicles Act treating it as a provision conferring by itself a substantive right to claim compensation. In our opinion, this decision of the Andhra Pradesh High Court, as we read it, does not support the conclusion reached in Bhagwatidin's case.

18. A person falling within the ambit of the definition of 'legal representative' as denned in Section 2(11), Civil P.C. is entitled to file the claim application under Section 110-A of the Motor Vehicles Act but not necessarily for his own benefit as already shown. In fact, Clause (c) of Sub-section (1) of Section 110-A of the Motor Vehicles Act shows that even a duly authorised agent is empowered to file such an application. This, however, does not mean that the agent is a person who can claim compensation for himself treating Section 110-A as conferring a substantive right.

19. The next case relied on by the learned single Judge in Bhagwatidin's case, (1980 MPLJ 95) is Mohammad Habibullah v. K. Seethammal, AIR 1967 Mad 123. It is sufficient for us to say that this decision of Madras High Court taking the contrary view was expressly dissented from by a Division Bench of this Court in Kamla Devi's case, (AIR 1970 Madh Pra 168) (supra). We have already shown that the view taken by the Division Bench in Kamla Devi's case was not only the same as taken by a Full Bench in Mangilal's case, (AIR 1971 Madh Pra 5) but is also in accordance with the Supreme Court's decision in New India Insurance Co. Ltd. v. Smt. Shanti Misra (AIR 1976 SC 237) (supra). Moreover, in Perumal v. G. Ellusamy Reddiar, 1974 Acc CJ 182 the Madras High Court itself did not follow it

20. Another decision relied on in Bhagwatidin's case, (1980 MPLJ 95) is Megjibhai Khimji Vira v. Chaturbhai Tallabhai, 1977 Acc CJ 253: (AIR 1977 Guj 195) of Gujarat High Court. It is sufficient for us to say that the view taken by the Gujarat High Court is in direct conflict with the settled view of this court as also that of the Supreme Court in the aforesaid decision. It is significant that the Gujarat High Court preferred to follow the view taken by the Madras, Delhi and Punjab High Courts in the cases referred therein, with all three of which a Division Bench of this Court differed in Kamla Devi's case, (AIR 1970 Madh Pra 168). The Supreme Court decision in Smt. Shanti Misra's case, (AIR 1976 SC 237) (supra) was noticed by the Gujarat High Court, but the impact thereof was not properly appreciated and it was distinguished on the ground that the language of Section 110-A and Section 110-F of the Motor Vehicles Act were construed by the Supreme Court for the limited purpose of determining the question of jurisdiction. With great respect we are unable to see how the clear language used in the Supreme Court decision is not inconsistent with the view of the Gujarat High Court. We respectfully express our inability to concur with the view taken by the Gujrat High Court in Megjibhai Khimji Vira's case, the cases relied on therein and the view taken by the learned single Judge of this Court in Bhagwatidin's case placing reliance thereon. We may also add that the view we are taking is in accord with the view of a Division Bench of the Kerala High Court in P.B. Kedar v. Thatchamma, AIR 1970 Ker 241. We are, therefore, constrained to say that the Single Bench decision of this Court in Bhagwatidin's case reports in, Bhagwatidin Gangadin v. Gheesalal Nathulal, (1980 MPLJ 95) strongly relied on by the counsel for the respondents, cannot be upheld as correct.

21. Our conclusion, therefore, is that the appellant who is the brother of the deceased is not a person entitled to claim compensation for pecuniary loss, if any, to him under Section 1A of the Fatal Accidents Act. This being so, the further question whether he has suffered any pecuniary loss or not as a result of the death in a fatal accident of deceased Ambadas is of no consequence. Moreover, the Tribunal has also held that he has not suffered any pecuniary loss as a result of the fatal accident and we find that conclusion is supported by the evidence. This is however not sufficient to dismiss the entire claim, if a claim for economic loss to the estate under Section 2 of the Fatal Accidents Act has been made out. In our opinion, such a claim for award of compensation for economic loss to the estate of the deceased is made out in the present case and the appellant as brother of the deceased being a legal representative is, therefore, entitled to file the application under Section 110-A of the Motor Vehicles Act to recover the same for benefit of the estate.

22. The only surviving question now is with regard to the quantum of compensation for economic loss to the estate of the deceased under Section 2 of the Fatal Accidents Act. The evidence in the case is that the deceased was aged 40 years and was unmarried; he was earning Rs. 200/- per month out of which he was sending approximately Rs. 100/- per month to the appellant for expenses incurred in the management of the landed property owned by the deceased which was being managed by the appellant. It is therefore, clear that the premature death of Ambadas in the fatal accident has deprived his estate of this benefit which would have been available till his retirement for augmenting the estate of the deceased. The compensation awarded under this head has to be moderate and conventional. Taking into account the age of the deceased, his income and the money spared by him for augmenting his estate, a lump sum of Rs. 5,000/- under this head would be appropriate compensation to award as economic loss to the estate, We direct accordingly.

23. We have already held that the insurer (respondent No. 3 -- New India Insurance Company) is not liable for payment of any compensation. This award is, therefore, made only against respondent No. 1 -- Babulal Fcuzdar and respondent No. 2 - Hariprasad who are liable for its payment jointly and severally.

24. Consequently, this appeal succeeds partly. The claim is decreed jointly and severally against respondents Nos. 1 and 2 for recovery of Rs. 5,000/- only under Section 2 of the Fatal Accidents Act as the economic loss to the estate and the same shall form a part of the estate of the deceased Ambadas Appellant shall also get interest at the rate of 6 per cent per annum on this amount from the date of claim petition till payment. The appellant shall also get proportionate costs of both courts from respondents Nos. 1 and 2. Counsels' fee Rs. 200/- if certified. Rest of the parties to bear their own costs.


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