1. This is an appeal against an order passed by the Claims Tribunal, Indore, awarding compensation in respect of the death of one Anilkumar, the eldest son of respondent No. 1, in a motor accident. This appeal is filed by the two appellants, one being the owner of the truck with which the accident occurred and the other the insurance company with which the said vehicle was insured. The driver of the truck has been joined as respondent No. 2.
2. The applicant-respondent No. 1 filed an application before the Claims Tribunal, Indore, alleging that on 30th May 1963, at about 6.30 P.M., his son Anilkumar, aged 13 years, was going on a bicycle from east to west on the road which runs on the southern side of Pagnis-Paiga Municipal Garden, Indore, Truck No. MPE 6888, which was then being driven by the respondent-Shantilal alias Sampatlal, came from the south and was moving towards the north on the road which meets the road on which Anilkumar was proceeding. When at the cross-roads Anilkumar, on his bicycle, had hardly entered the crossing to turn towards the south that he met with an accident by the aforesaid truck. The front bumper of the truck struck Anilkumar down and he was run over. As a result of this accident, Anilkumar died on the spot instantaneously.
3. It was alleged by the respondent-applicant that the truck had no horn as its electric horn was out of order and the truck was not fitted with a rubber-bulb horn, and that, therefore, before entering the cross-roads no horn was blown. It was further alleged that the road on which the truck was moving was closed for heavy vehicular traffic as the area was such where schools of small children were situated; that the accident took place as a result of the rash and negligent driving of the truck by the driver; and that the truck was not in a fit condition owing to various reasons mentioned in the application. The respondent-applicant joined in his application the owner of the truck, its driver and the insurance company as non-applicants Nos. 1, 9 and 10 respectively. In addition, the applicant also joined non-applicants Nos. 2 to 8, who were alleged to be the financiers of M/s. 'Enterprise' of Indore. It was also alleged in the application that the deceased Anilkumar, who was the sop of the respondent-applicant, was thirteen years old at the time of the accidents and that he had a brilliant career throughout and had appeared for the Middle School Examination and in the result, which came on the next day of his death, he was declared to have passed in First Class. Anilkumar was the eldest son of the respondent-applicant, and on this basis compensation to the tune of Rs. 70,000/- was claimed by the respondent-applicant.
4. The insurance company, the driver of the truck and the non-applicants Nos. 2 to 8 in the petition filed their written-statements. In their written statements they contested all the allegations made in the petition. The owner of the truck, who was non-applicant No. 1 in the petition and is one of the appellants in the present appeal, did not file any written-statement.
5. The Claims Tribunal came to the conclusion that the accident was as a result of rash and negligent driving of the vehicle; and consequently awarded to the respondent-applicant compensation amounting to Rs. 19,500/-. As the vehicle was insured with the insurance company, and the third-party risk covered under the policy was upto the extent of Rs. 20,000/-, the Tribunal directed the insurance company to pay the amount of compensation to the extent of their liability in accordance with the terms of the policy. It is against this order of the Tribunal that the present appeal has been preferred by the owner of the truck and the insurance company.
6. Shri Jhanvar, learned counsel for the appellants, raised three contentions before us. The first was that the respondent-applicant being the father of the deceased was not a 'legal representative' of the deceased within the meaning of the term; that under the Motor Vehicles Act, 1939 an application for compensation could only be made by a legal representative of the deceased. that as the mother of the deceased was alive, as had come in evidence, and was the preferential heir of the deceased son, she alone could be said to be the legal representative of the deceased who could prefer the claim for compensation; and that she not having been joined in the petition, the petition deserved to be thrown out. The second contention was that the only rash and negligent act attributed in the petition was that the vehicle was being driven at an excessive speed; and that this allegation of the respondent-applicant having been negatived by the Tribunal, no liability could have been fastened on the appellants as a consequence of the accident- The third and the last contention was the amount of damages awarded by the Tribunal was excessive.
7. Shri Chitale, learned counsel for the respondent-applicant, contended that this appeal has been filed by the owner of the truck and the insurance company; that the owner of the truck did not file any written-statement before the Tribunal nor raised any issue about the maintainability of the application by the father of the deceased; and that, therefore, the question of the maintainability of the petition being a mixed question of law and fact, the owner of the truck could not be permitted to raise that question for the first time in this Court. Shri Cbitale further contended that Section 96 (2) of the Motor Vehicles Act, 1939, provided certain grounds of defence and the appellant insurance company could not raise any ground of defence other than those provided in the said provision and thus the insurance company could not raise before this court the question of the maintainability of the application for compensation.
8. Shri Chitale further contended that the term 'legal representative', used in the provisions of the Motor Vehicles Act, 1939, could not be construed to mean only the heir of the deceased. According to him, the right to claim compensation in the case of death in an accident came for the first time into existence by the passing of the Fatal Accidents Act, 1855, and Section 1A of that Act provided a list of persons for whose benefit an application for compensation could be preferred. This provision of the Fatal Accidents Act also indicates that proceedings for compensation are in the nature of representative proceedings and are in the interest of persons entitled to damages as a result of the death. Shri Chitale. therefore, contended that the term 'legal representative', used in Section 110-A of the Motor Vehicles Act, ought to be construed in the context of the provisions of the Fatal Accidents Act and in the light of the definition of that term given in Section 2(11), Civil P. C. and that in that light when the respondent-applicant, who is the father of the deceased, made an application for damages, that application should be deemed to be an application on behalf of and in the interest of the deceased's mother as well. The provisions of the Fatal Accidents Act provided that such an application shall be for the benefit of the wife, husband, parent and child, if any; and that, therefore, according to Shri Chitale, an application by father will mean an application in the interest of the parents and could be deemed to be on behalf of the deceased's mother as well.
9. As regards the rash and negligent act, Shri Chitale, learned counsel for the respondent-applicant, contended that the evidence indicated that the road on which the truck was going was closed for heavy vehicular traffic; that apart from this when a heavy vehicle approaches a cross-road, there is a responsibility of the driver of the heavy vehicle to take certain precautions viz. blowing of horn, slowing down the speed, and of entering the crossing with due care; that if the driver of the vehicle takes all these precautions, there is no reason why he cannot avert the accident; that it was in evidence that there was no horn, either electric or bulb; although it was suggested that there was a pressure horn in the truck, but the evidence indicated that no horn was at all blown; and that, under these circumstances, the accident did take place as a result of the rash and negligent act of the driver.
10. Regarding the quantum of compensation, it was contended for the respondent that no hard and fast rules could be laid down for fixing the amount of compensation to be awarded; that the compensation awarded by the Tribunal could not be said to be excessive; and that the Tribunal having considered all the circumstances of the case and having come to some particular conclusions, it could not be said that the conclusions arrived at by the Tribunal are unreasonable and, therefore, the judgment of the Tribunal could not be assailed on that ground.
11. The proceedings before the Tribunal indicate that the appellant No. 1, who is the owner of the vehicle did not file any written-statement before the Tribunal, although he joined the proceedings and participated in the trial. According to him, he was in the vehicle at the time of the accident and, therefore, he had personal knowledge of the circumstances in which the accident took place. But, in spite of this, he chose not to file any written statement. In any event, the question regarding the maintainability of the application for compensation made by the father of the deceased was not raised by the appellant No. 1 in the court below. The driver of the truck who is the second respondent in this appeal, had, however, raised an objection. He, in his written-statement, only said that 'para No. 5 is denied.' He did not raise any specific objection to the maintainability of the application. Shri Jhanvar, however, contended that he made an application before the Tribunal on behalf of the driver of the truck and the insurance company for amendment of the written-statement; that the application for amendment was rejected by the Tribunal; and thus he was not permitted to raise the objection although an application for amendment was made- He also made a grievance of the order passed by the Tribunal on his application for amendment.
12. So far as the insurance company is concerned, the provisions of Section 96 of the Motor Vehicles Act, 1939, lay down the grounds of defence which an insurance company can raise in a claim for compensation under the Act. Sub-sections (2) and (6) of Section 96 provide--
'96(1) * * * *(2) No stun shall be payable by an insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than, fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105; or
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely :
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organized racing and speed testing, or
(c) for a purpose not allowed by the permit trader which the vehicle is used, where the vehicle is a public service vehicle or a goods vehicle, or
(d) without side-car being attached, where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(c) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.
* * * * (6) No insurer to whom the notice referred to in Sub-section (2) or Subsection (2-A) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment as is referred to in Sub-section (1) or Sub-section (2-A) otherwise than in the manner provided for in subsection (2) or in the corresponding law of the State of Jammu and Kashmir or of the reciprocating country, as the case may be.'
These provisions very clearly lay down the grounds of defence open to an Insurance-company and it cannot be disputed that the insurance company cannot raise any ground other than those provided by Section 96(2) of the Motor Vehicles Act. In B. I. G. Insurance Co. v. Itbar Singh (AIR 1959 SC 1331) it has been held that an insurance company cannot raise any ground of defence except the grounds available to it under the provisions of Section 96 of the Motor Vehicles Act. The Supreme Court in that case observed--
'It would follow that an insurer is entitled to defend on any of the grounds enumerated and no others. If it were not so, then of course no grounds need have been enumerated. When the grounds of defence have been specified, they cannot be added to. To do that would be adding words to the statute.'
Thus, in the present case, so far as the insurance company is concerned, it could not raise the ground in question regarding the maintainability of the application for compensation, and hence could not raise it in appeal.
13. If we look to the application for amendment, referred to above, it would indicate that it did not contain the plea which is now being raised. What was sought to be inserted in the written-statement by the application for amendment was as under--
'That the mother of the deceased Anilkumar being a legal representative of the deceased is a necessary party to the suit but as she has not been joined as party to the suit the application suffers from non-joinder of necessary party and the application deserves to be dismissed on this count alone. However, without prejudice to the above statement, if this Hon'ble Tribunal comes to the conclusion that the suit does not fail on this count alone, this defendant prays that if compensation is awarded to the petitioner he is entitled only the half of the amount of which will be assessed as total damages.' (sic)
Thus it appears that what probably was contemplated was to contend that the mother was also a necessary party, which is altogether different from the contention that is now being raised. What is sought in that application was that as mother has not been joined in the application, the father alone would be entitled only to his share of compensation, which was alleged to be half of the amount that would be ultimately awarded. By its order dated the 13th November 1964, the Tribunal rejected this amendment application. The learned Tribunal held that the case was instituted on 26th July 1963 whereas the application for amendment was made on 9th November 1964 and that, therefore, the application for amendment was belated.
14. Thus it is clear that the appellant No. 1 never raised the question about the maintainability of the application before the Tribunal and the insurance company was not entitled to raise it' and hence it cannot be permitted to raise that contention in appeal. It cannot be doubted that the contention raised is a mixed question of law and fact. It cannot also be doubted that if this objection had been raised at the earliest by the appellant No. 1, the owner of the truck who was entitled to raise it, the mother of the deceased Anilkumar could have also been joined as an applicant to the petition. But as this was not done, it will not be proper and fair to permit the appellant No. 1 to raise the objection here for the first time.
15. As to the merits of the contention, it is no doubt true that Section 110-A of the Motor Vehicles Act lays down that an application for compensation, where death has resulted from an accident, would be competent by the legal representative of the deceased. The term 'legal representative' has not been defined in the Motor Vehicles Act. Mr. Jhanvar, learned counsel for the appellants, contended that as that term is defined in the Code of Civil Procedure, which is an earlier statute, the term 'legal representative' occurring in Section 110-A of the Motor Vehicles Act ought to be interpreted in the light of that definition. For this contention, he relied on the following observations made at page 144 in Shri G. P. Singh's 'Principles of Statutory Interpretation'--
'As already noticed use of same words in similar connection in a later statute gives rise to a presumption that they are intended to convey the same meaning as in the earlier statute.'
Shri Jhanvar also placed reliance on the decision in Andhra Bank Ltd. v. Srinivasan, AIR 1962 SC 232.
16. The term 'legal representative' has been defined in Section 2(11) of the Civil P. C. thus--
' legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.'
Accordingly, Shri Jhanvar contended that the only legal representative could be the heirs under the Hindu Succession Act, 1956. He placed reliance on Seethamma v. Benedict D'Sa, 1966 ACJ 178 = (AIR 1967 Mys 11), Dhool Chand v. Ganpat Lal, (AIR 1957 Raj 283) and Kalyanmal Mills Ltd. v. Volimohammad, (AIR 1965 Madh Pra 72).
17. The decision in (AIR 1962 SC 232) has also been relied upon by the respondents. In this decision, their Lordships of the Supreme Court, while construing the scope of the term 'legal representative', considered the scope of the term 'legal representative', as it now stands in Section 2(11), Civil P. C. Their Lordships, quoting the observations of Woodroffe, J. in Dinamoni Chaudhurani v. Elahadut Khan, ((1904) 8 Cal WN 843), said:--
'the view thus expressed by Woodroffe, J. has been embodied in the present definition of 'legal representative' by Section 2(11)'.
Woodroffe, J. examined several judicial decisions bearing on the point and observed--
'from this review of the authorities It will appear that judicial decisions have extended the sense of the term legal representative' beyond that of its ordinary meaning of 'administrator, executor and heir', and though such extension has been attended with doubt and has in some cases been the subject of conflicting decisions it appears to me to be too late to endeavour, however convenient it might be, to secure for the term that which is perhaps its strict and legitimate sense. I agree, therefore, in holding that the term is not limited to administrators, executors and heirs and am of opinion that it must now be held to include any person who in law represents the estate of a deceased judgment-debtor.'
Thus the definition of the term 'legal representative', as it now stands in Section 2(11) of the Civil P. C., cannot be narrowed down to mean the legal heir alone. It is also significant that the right to claim compensation has been for the first time conferred by the Fatal Accidents Act. Before the passing of that Act a claim for compensation as a result of death could not have been maintained. Section 1A of the Fatal Accidents Act, 1855, provides that--
'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 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 not 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.'
Thus Section 1A provides that such an 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. Hence the right to claim damages conferred under the Fatal Accidents Act is in favour of the parent. The provisions of the Motor Vehicles Act do not confer any right, but only provide for an expeditious remedy for an action for compensation in matters arising out of accidents from motor vehicles. In these circumstances, Section 110-A of the Motor Vehicles Act only provides the procedure and lays down that an application has to be filed by the legal representative. The term 'legal representative' must be construed in the context of the provisions of Section 2(11), C. P. C. and further also in the context of the provisions of the Fatal Accidents Act. Thus the parents of the deceased would be entitled to make an application for compensation. It appears that it was in this context that the amendment was sought by the driver before the Tribunal contending that as the mother was not joined as a party, at best the father was entitled to only half the compensation. The provisions of the Fatal Accidents Act clearly show that the proceedings or action for compensation are in the nature of representative proceedings and, therefore, when an application is made it shall be for; the benefit of the persons enumerated in the provisions of that Act. In the decision of the Mysore High Court in (1966 Acc CJ 178) = (AIR 1967 Mys 11), on which reliance was placed by Shri Jhanvar, it was observed:--
'Every one of the remaining three respondents, respondents 1, 2 and 3, denied that the claimants were the legal representatives of the deceased Padmanabha, but since P. W, 5 who is Padmanabha's mother gave evidence that she was the mother of her son and since as provided by Section 8 of the Hindu Succession Act read with Section 17, the mother who is in Class I is the sole legal representative of Padmanabha to the exclusion of claimants 2, 3 and 4 who are either the sisters or the brother of Padmanabha and who fall within Class II to the Schedule of the Hindu Succession Act. So, it is not disputed before us by Mr. Vittal Rao that the first claimant is the legal representative of Padmanabha and therefore entitled to compensation such as could be properly claimed by her in these proceedings.'
In Krishnamma v. Alice Veigas, (1966 ACJ 366 (Mys)), the Mysore High Court itself came to the conclusion that--
'............ the application as made in the form prescribed must be held, in the circumstances, to have been made on behalf of all the legal representatives of the deceased, and the observation made by the Claims Tribunal, even without raising an issue, that the claim petition has been made only on behalf of the widow, and not on behalf of her children, is not warranted.'
This decision of the Mysore High Court is a later decision than the decision in 1966 ACJ 178 = (AIR 1967 Mys 11) (supra) to which a reference has been made earlier and which was relied upon by Shri Jhanvar. In Palani Animal v. Safe Service Ltd., (1966 ACJ 19 (Mad)) the Madras High Court held that--
'The object of Section 110-A to Section 110-F of the Motor Vehicles Act, 1939, is to provide a cheaper and speedy remedy for recovery of compensation for injuries and death caused by the use of motor vehicles. No new right or even a new remedy has been created by these provisions. The forum alone has been changed. The provisions are merely procedural.'
The Rajasthan High Court in State of Rajasthan v. Parwati Devi, (1966 ACJ 123) = (AIR 1966 Raj 210) laid down that such suits were by virtue of the provisions of Section 1A of the Fatal Accidents Act representative suits like suits under Order 1, Rule 8, Civil P. C. and all the persons for whose benefit they were filed should constructively be deemed to be parties to the suit. Similarly the High Court of Punjab in N. I. T. Co. Ltd. v. Amra Wati, (1966 ACJ 165 (Punj)) held that in view of the provisions of the Fatal Accidents Act. 1855, an application filed by the widow was essentially a claim on behalf of all the legal representatives of the deceased and there was, therefore, no justification to exclude the compensation payable to the daughters. In a recent decision of a Division Bench of this Court in Chuharmal v. Haji Wali Mohammed, (1968 MPLJ 780), it was held that an application by father alone for compensation for death of his son is competent and that mother, even if not an applicant originally, can on her death, be represented by her legal representatives. In pur opinion, therefore, in the present case' the application for compensation filed by the father is competent as ft should be deemed to have been filed on behalf of the mother also. Thus the contention of the appellants about the maintainability of the application for compensation has no force and must be rejected.
18. As regards the question of negligence, the evidence in the case discloses that the accident took place at a crossing of roads. It is established by evidence and is also not seriously disputed that on the date of the accident the truck had no electric horn in order and also no bulb-horn fitted. It was suggested that the pressure-horn, which is known to create a very loud alarm, was blown. But there is no evidence to show that the pressure horn was blown. The road on which the truck was going was closed for heavy vehicular traffic. About this aspect of the matter, the evidence is no doubt not very clear. But that apart, the driver of the truck when he approaches a cross-road, has to take certain precautions. In this context, the question of speed is also material. Speed on a straight road may not be excessive. But at cross-roads sometimes even a speed, which ordinarily would be normal, proves to be excessive if at that speed it was not possible for the driver to control the vehicle in the event of any pedestrian or a vehicle crossing the road. In this context, not blowing the horn and entering the cross-roads with a speed at which it was not possible for the driver to control the vehicle would lead to an inference of rash and negligent driving on the part of the driver. It was contended at length that the accident in the present case did not take place with collision on the front side of the truck. According to Shri Jhanvar the bicycle of Anilkumar collided against the side of the truck. He, therefore, contended that such a collision could not have been contemplated by the driver. The photographs produced by the defence indicate the position where the cycle was lying beneath the truck. If the collision has taken place from the side, it does not appeal to reason as to how the bicycle came to be found beneath the truck. The circumstances and the situation of the place of accident, coupled with the evidence on record, clearly show that the bicycle came in contact with the front part of the truck. In view of all these circumstances and the evidence on record, it is clear that the learned Tribunal was right in coming to the conclusion that the accident was a result of rash and negligent driving of the truck by the driver.
19. So far as the question of compensation is concerned, Shri Jhanvar, learned counsel for the appellants, placed before us various decisions where different amounts of compensation were awarded in cases of accidents to children of various ages. Some decisions have also been cited by the respondents on this question. But it cannot be disputed that on the question of quantum of compensation, precedents can hardly be of any assistance. Each case has to be decided on its own particular facts and circumstances and no hard and fast rule can be laid down for determining the quantum of compensation that can be awarded. In view of all the circumstances of the case, the Claims Tribunal has come to certain conclusion on the question of the quantum of compensation. To us it appears that the amount of compensation awarded by the Tribunal is quite reasonable and cannot be interfered with.
20. For all these reasons, we have come to the conclusion that decision of the Claims Tribunal is correct and there is no reason to interfere with it. Consequently, this appeal is dismissed. The respondent No. 1 is entitled to the costs of this appeal. Counsel's fee is fixed at Rs. 350/- if certified.
21. In this appeal, on the basis of an agreement between the parties an order was passed on 30th April 1965 directing the appellant No. 2 to deposit an amount of Rs. 20,000/- in the State Bank of Indore, Siyaganj Branch. Indore and get a bank-guarantee in favour of the Motor Vehicles Claims Tribunal, Indore. Now, as the appeal has been dismissed, the respondent No. 1 is entitled to the claim decreed by the Tribunal. In these circumstances, the Claims Tribunal is directed to get the decreed amount of compensation of Rs. 19,500/-, with interest on that amount from the date of deposit, from the State Bank of Indore, Siyaganj Branch, Indore, paid to the respondent No. 1 out of the amount if deposited and if, after the satisfaction of the respondent No. 1's claim decreed by the Court, including the costs, anything remains in balance, the same be paid back to the appellant No. 2 who deposited the amount.