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Megjibhai Khimji Vira and anr. Vs. Chaturbhai Taljabhai and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 600 of 1974
Judge
Reported in1977ACJ253; AIR1977Guj195; (1978)0GLR216
ActsMotor Vehicles Act, 1939 - Sections 110 to 110-F; Fatal Accidents Act, 1955 - Sections 1-A and 2
AppellantMegjibhai Khimji Vira and anr.
RespondentChaturbhai Taljabhai and ors.
Appellant Advocate S.B. Majmudar, Adv.
Respondent Advocate V.J. Desai, Adv.
Cases Referred(Punj) and Smt. Ishwar Devi Malik v. Union of India
Excerpt:
motor vehicles - compensation - sections 110 to 110-f of motor vehicles act, 1939 and sections 1-a and 2 of fatal accidents act, 1955 - compensation claimed by brother and nephews of deceased who died in accident - accident caused due to negligence of owner of vehicles - compensation denied on ground that claimants were not dependents of deceased under section 1-a - as per section 1-a only wife, husband, parent and child recognised as dependents and beneficiaries - sections 110-a (1) (b) confers right on all legal representatives of deceased victim of tortious act to claim compensation from wrong-doer - section 110-a (1) (b) is substantive and special provision dealing with accidents arising out of use of motor vehicles - said section has overriding effect upon provisions of section 1-a -.....ahmadi, j. 1. on the morning of 8th may, 1972 at about 6.00 a.m. gordhanbbai tarjabhai was driving his bullock cart laden with cotton along national highway no. 8 towards vasad cross roads with aheshbhai ranchhodbhai resting on top of the cotton bales. a speeding ambassador car no. m. h. c. 7144 driven by one chandrashekhar k. nair came from behind and dashed against this bullock cart, which was proceeding at a leisurely pace towards vasad cross roads. as a result of this violent impact from behind, the cart driver gordharibhai was killed instantaneously. maheshbhai, who was sitting on the top of the cotton, was thrown out and sustained injuries. one bullock died on the spot and the other was injured. the cart was reduced to a shambles. the brother and the nephews of the deceased filed a.....
Judgment:

Ahmadi, J.

1. On the morning of 8th May, 1972 at about 6.00 A.M. Gordhanbbai Tarjabhai was driving his bullock cart laden with cotton along National Highway No. 8 towards Vasad Cross roads with Aheshbhai Ranchhodbhai resting on top of the cotton bales. A speeding Ambassador Car No. M. H. C. 7144 driven by one Chandrashekhar K. Nair came from behind and dashed against this bullock cart, which was proceeding at a leisurely pace towards Vasad cross roads. As a result of this violent impact from behind, the cart driver Gordharibhai was killed instantaneously. Maheshbhai, who was sitting on the top of the cotton, was thrown out and sustained injuries. One bullock died on the spot and the other was injured. The cart was reduced to a shambles. The brother and the nephews of the deceased filed a claim application No. 78 of 1972 before the Motor Accident Claims Tribunal, Kaira at Nadiad claiming a sum of Rs.20,000/- by wav of com- pensation on the ground that the accident was the direct result of negligence on the part of the driver of the motor car in question. The Claims Tribunal, however, awarded a sum of Rs.9,000/- by way of compensation from the owner and the insurer of the motor car with interest at 6% per annum from the date of the claim application and proportionate costs. The owner and the insurer 'being aggrieved by this award made by the Claims Tribunal, have preferred the present appeal. The claimants have also filed cross-objections claiming an additional amount of Rupees 6,000/-on the around that the Claims Tribunal had failed to award just compensation to them.

2. The owner and the Insurance Co. of the motor car involved in the accident, filed separate written statements contending that the driver of the vehicle got 'dazzled' by the light of the vehicle coming from the opposite direction and as there was no reflector affixed to the cart, 'he could not notice the cart ahead of him and as a result ran into that vehicle. The fact that the car driver Chandrashekhar K. Nair was in the employ of the first opponent, Meghjibhai Khimji Vira, is not in dispute. The opponents, however, deny their liability to pay compensation for the accident to the claimants.

3. The first question which arises in this appeal is whether the finding of the Tribunal that the accident was the direct result of negligence on the part of the driver of the motor vehicle involved in the accident, is well founded. Mr. Majimudar contended that the burden of establishing negligence lay heavily on the claimants and the claimants had failed to discharge the burden, inasmuch as, they had not led an evidence except the evidence of the sole interested witness Maheshbhai Ranchhodbhai, P. W. 2, who was himself injured in the accident. His contention was that the Tribunal ought not to have accepted the uncorroborated interested testimony of this witness Maheshbhai to hold that the accident was due to the negligence of the car driver. The accident occurred on the morning of 8th May, 1972 at about 6.00 A. M. on National Highway No. 8 at a short distance from the Vasad cross roads. The bullock cart in question was proceeding towards the north and was about 65 ft. south of the Kilometer Stone No. 89/2 when this car came from behind and dashed against it. The panchnama showing the physical condition of the place of accident was prepared by the police at about 10.30 A. M. and it shows that the width of the tar road was 22 ft. with 6 ft. wide shoulders on either side. The damaged cart was lying about 28 ft. to the north from the scene of occurrence. The car was found at a distance of about 55 ft. to the north with the right side front head light, bumper, mud-guard and wheel plate badly damaged. It is significant to note that the damage is exclusively to the right front side of the vehicle. We have it from the evidence of Maheshbhai P. W. 2 that the car came from behind and tried to over-take the bullock cart from the wrong side i.e. from its left and in the process the collision took place. This part of the evidence of Maheshbhai is corroborated by the fact that the right front side of the motor car is badly damaged. Even if we turn to the written statements filed on behalf of the owner and the Insurance Company the explanation given is that the car driver was dazzled by the front lights of the on coming vehicle and as a result ran into the bullock cart. There is, therefore, no reason why we should doubt the testimony of Maheshbhai, P. W. 2 on which the Tribunal has placed reliance. The driver of the car has not entered the witness box to give his account of the accident. In fact, the opponents have not examined any witness to controvert the evidence of Maheshbhai. We are, therefore, of the opinion that there is no merit in the contention of Mr. Majmudar that the finding of the Tribunal that the accident occurred because of the negligence of the driver of the motor car is not well founded. We, therefore confirm that finding.

4. The deceased, Gordhanbhai Tarjabhai had two brothers, Chaturbhai Tarjaand Somabhai Tarjabhai. Somabhai pre-deceased him and claimants Nos. 2 and 3 are his sons. Claimant No. 1, Chaturbhai died during the pendency of the claim application before the Tribunal without any issue. The two sons of the deceased Somabhai are the legal representatives of Chaturbhai also. Mr. Majmudar raised a neat question of law involving the interpretation of the provisions of Ss. 1A and 2 of the Fatal Accidents Act, 1855 (hereinafter referred to as 'the 1855 Act') on the one hand and Ss. 110 to 110-F of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the 1939 Act') on the other. He argued that a Claims Tribunal inquiring into a claim for compensation in respect of a fatal accident arising out of the use of a motor vehicle must app1v the law contained in Ss. 1A and 2 of the 1855 Act. According to him, the claimants, who were the brother (who died pendente lite) and the nephews of the deceased, were not dependants under S. 1A of the 1855 Act as that section recognises only the wife, husband, parent and child as beneficiaries and hence the claimants cannot maintain an action in damages because of the death of Gordhanbhai. Mr. Desai on the other hand contended that Ss. 110 to 1:10-F of the 1939 Act provide a complete Code and all claims for compensation arising out of the use of a motor vehicle would be governed by the aforesaid provisions and the Claims Tribunal was not concerned to look into the provisions of the 1855 Act. According to him, the provisions of the 1939 Act confer a right on the 'legal representatives' of the deceased to receive 'just compensation' and, therefore, the claimants application cannot 'be thrown out on the ground that the claimants are not persons named in S. 1A of the 1855 Act. We must frankly confess that there is a sharp difference of opinion on the rival contentions, canvassed before us amongst the different High Courts and we shall presently point out the cleavage.

5. The first group of cases Bishan Das v, Ram Labhaya, AIR 1916 Lah 133 (2), Northern India Transporters insurance Co. Ltd. v. Smt Amrawati, AIR 1966 Punj 288 (FB); Smt. Kamla Devi v. Kishan chand, : AIR1970MP168 ; P. B. Kader v. Thatchamma, : AIR1970Ker241 ; Prabh Kumari v. Surrinder Nat, 1970 ACJ 80: (1971 Lab IC 116) (J & K) and Dewan Hari Chand v. Municipal Corporation of Delhi, : AIR1973Delhi67 take the view that every claim application for compensation arising out of a fatal accident would be governed by the substantive provisions in Ss. 1A and 2 of the 1855 Act and no dependant of the deceased other than the wife, husband, parent or child would be entitled to commence an action in damages against the tortfeasors.

6. The second group of cases Perumal v. G. Ellusamy Reddiar, 1974 ACJ 182 (Mad) and the Vanguard Insurance Co. Ltd. v. Hanumantha Rao, 1975 ACJ 344 (Andh Pra) steer a middle course and take the view that the provisions contained in Ss. 110 to 110-F of the 1939 Act are adjectival or procedural in nature and they do not impinge upon the substantive provisions contained in Ss. 1A and 2 of the 1855 Act, which alone give a right to the dependants of the victim of a fatal accident to commence an action in damages against the tortfeasors, These cases, however, draw a distinction between a claim under S. 1A which is restricted to the relatives of the deceased named therein and a claim under S. 2 which may be brought by representatives of the deceased, who are entitled to succeed to the estate of the deceased. In other words, these authorities take the view that under S. 1A compensation for wrongful death is strictly limited to the loss suffered by the beneficiaries named therein, whereas under S. 2 the measure of compensation being the economic loss occasioned to the estate of the deceased, his representatives would be entitled to claim thereunder.

7. The third group of cases Mohmamed Habibullah v. K. Seethammal, : AIR1967Mad123 , Veena Kumari Kohli v. Punjab Roadways, 1967 ACJ 297 (Punj), and Smt. Ishwar Devi Malik v. Union of India, : AIR1969Delhi183 take the view that a claim for compensation arising out of the use of a motor vehicle would be exclusively governed by the provisions of Ss. 110 to 110-F of the 1939 Act and bears no connection to claims under the 1955 Act and the Claims Tribunal need not follow the principles laid down under the latter Act.

8. The point which we are called upon to decide in this First Appeal is not covered by any decision of this court; at least our attention has not been invited to any such decision. We, therefore, propose to examine the rival points of view unaided and unhampered by authority. In order to appreciate the contentions of the learned counsel, it is necessary to peep into the past for a while and capitulate the Position in law as obtaining before the enactment of the 1855 Act. It is well known that under the Common Law of England no action could be laid by the dependants or heirs of a person whose death was brought about by the tortuous Act of another on the maxim action per sonalis moritur cum persona although a person injured by a similar act could validly claim damages for the wrong done to him. That is why it was commented that it was cheaper to kill than to maim, the classic illustration to it being provided in Baker v. Balton (1808) 1 Camp 493.That was a case of a couple, husband and wife travelling in an omnibus which turned turtle because of the negligence of the driver of the said vehicle. The husband escaped with minor injuries but the unfortunate wife passed away. The husband could successfully sue the defendants in damages for the injuries sustained by him but he had no remedy for the death of his wife. It did seem rather illogical that a husband could claim damages on being deprived of the company of his wife temporarily but not if the company was lost for ever. At common law, this dictum was followed right upto 1846 and even thereafter with the exception of Jackson v. Watson & Sons,(1909) 2 KB 193 in which case the plaintiff was awarded compensation for breach of contract on the death of his wife who ate the defendants, tinned salmon. This unfortunate situation was remedied in England by the passing of the Fatal Accidents Act, 1846, popularly known as Lord Campbell's Act. The inroad made by Lord Campbell's Act into the maxim action personalis moritur cum persona was made absolute by the Law Reforms Act, 1934, which has rendered the maxim obsolete. The rule in Baker v. Bolton was followed in all countries including India where the English Common Law applied. Hot on the heels of Lord Campbell's Act, the Indian Legislature enacted the Legal Representatives Act, 1855 (Act No. 12 of 1855) and the Fatal Accidents Act, 1855 (Act No. 13 of 1855) both of which came into force on the same day. namely, March 27, 1855.

9. The 1855 Act is fashioned on the lines of the English Act of 1846. The Preamble of the 1855 Act states the reasons for its enactment. It says that 'where no action or suit is now maintainable in any court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often times right and expedient that the wrong-doer in Such cases should be answerable in damages for the injury so caused by him, it has become necessary to make provision giving a right to the dependants named therein to maintain an action in damages in respect of a death arising out of a fatal accident. It becomes at once clear that the law, as it stood before the enactment of the 1855 Act, precluded action for recovery of damages being brought on the death of a person occasioned by the wrongful act of another. Section 1A of the 1855 Act is divided in three paragraphs. The first paragraph confers a new right and provides that whenever the death-of a person shall be caused by the wrongful act, neglect or default and the act 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. This statutory enactment has the effect of removing the protective umbrella thrown by the maxim action personalis moritur cum personal and makes the tort whose wrongful act has caused death, liable in damages. The second paragraph of that section says that 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. The third paragraph then provides that 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 cost 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. Section 2 of the 1855 Act, which is in the nature of a proviso, says 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, 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. It is lastly provided by Section 3 that the plaint in .any such action or suit shall give particulars of the person or persons for whom, or on whose behalf, such action or suit shall be brought and of the nature of the claim in respect of which damages shall be sought to be recovered. It is clear on a plain reading of these provisions that the 1855 Act makes provisions for two distinct kinds of damages. Under S. 1A, the damages are recoverable for the loss occasioned to the dependants of the deceased by his death, while under S. 2, the damages are awardable for the pecuniary loss resulting to the estate of the deceased.

10. The Legal Representatives Suits Act (No. 12 of 1885) was enacted to enable executors, administrators or representatives to sue and be sued for certain wrongs (which according to the existing law did not survive) causing pecuniary loss to the estate of deceased person where action might have been maintained by such person for compensation for such wrong during his lifetime. Again by Section 306 of the Succession Act the right to prosecute any action or proceeding existing in favour of a person at the time of the decease is made to survive to his executors or administrators except causes of action for personal injuries not causing the death of the -party. A plain reading of this section undoubtedly shows that the cause of action regarding personal injuries causing the death of the party enures after his death to his executors or administrators, the maxim action personalis moritur cum persona' notwithstanding.

11. The 1855 Act although brought on the statute book with effect from March 27, 1855, has not undergone any change. To quote the words of Krishna Iyer J. (as he then was) in P. B. Kadar v. Thatch- : AIR1970Ker241 , the Act is a trifle archaic in form and somewhat obsolescent in content. Under the Indian Act, which is largely modelled on the English statute of 1846, brothers and sisters are not entitled to rank as depend- although in England, the mother country (I mean of the statute), by S. 2 of the Fatal Accidents Act, 1855, b brother, sister, uncle and aunt of the deceased and the issue of such relatives have been inducted into the area of statutory dependency. The other progressive amendments to the English statute also have not been copied in our country. It is, however, necessary to note that with the advent of the motor car and the rapid increase in its number, heavy demands were made on our otherwise narrow roads increasing the number of accidents in their endeavour to unceremoniously push out pedestrians and slow moving vehicles on the edges. The motor accidents involving 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 1939 Act make substantive provisions to compel the owners of motor cars to take out insurance policies to safeguard the interest of the third parties who become victims of negligent driving of motor vehicles. It is indeed true that before the introduction of Sections 110 to 110-F in the 1939 Act, the substantive provisions contained in the 1855 Act governed claims arising out of the fatal accidents involving the use of motor vehicles. Section 110, which was brought on the statute book by Act No. 100 of 1956, provides for the constitution of Claims Tribunals 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, S. 110-A next provides that an application for compensation arising out of an accident of the nature specified In subsee. (1) of S. 110 may be made by the person, who has sustained the injury, or where death has resulted from the accident, by all or any of the legal representatives of the deceased; S. 110-B next provides. that the Claims Tribunal shall hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specify the person or 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 S. 110-CC to award simple interest at such rate and from such date as it may specify on the claim allowed. Section 110-E provides for the recovery of the compensation money from the insurer as arrears of land revenue.

11-A. 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 Ss. 110 to 110-F 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 Ss. 110 to 110-F 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 S. 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 S. 1A of the 1855 Act is concerned, in that S. 110-A thereof provides that an application for compensation arising out of an accident of the nature specified in sub-s. (1) of S. 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 representatives of 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 S. 110-A of the 1939Act 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 S. 1A of the 1855 Act is a substantive provision, as was contended before us by Mr. Majmudar we fail to understand why C1 (b) of sub-s. (1) of S. 110-A, 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, : [1955]2SCR603 . We have, therefore, no doubt in our minds that Clause (b) of sub-s. (1) of Section 110-A 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 S. 1A of the 1855 Act.

12. We have noticed earlier that Section 1A of the1855 Act provides that the quantum of damages shall be proportioned to the loss resulting from the death to the dependants. The limits of the court's discretion in fixing the amount of damages in such cases have been clearly demarcated by the Legislature by the use of the words 'the court may give such damages as it may think proportionate to the loss resulting from such death to the parties'. On the other hand, S. 110-B of the 1939 Act provides that the Claims Tribunal shall make an award 'determining the amount of compensation which appears to it to be just'. By this provision the concept of 'just compensation' has been introduced. Under the third paragraph of S. 1A of the1855 Act, the compensation to be awarded must be proportioned to the loss resulting from the death to the parties for whom and for whose benefit the action is commenced, whereas, under S. 110-B of the1939 Act, the legal representatives of the deceased victim of a fatal,, accident caused by a motor vehicle are entitled to 'just compensation'. The words of limitation cir- the court's discretion under S.1A of the 1855 Act to award damages proportioned to the loss resulting to the dependants from death would clearly debar considerations of contributory negligence and the like which enter the field in the matter of assessment of compensation under the 1939 Act. There can, therefore, be no doubt that S. 110-B of the 1939Act gives wider scope to the Claims Tribunal in the matter of assessment of compensation and we do not find limitative words as are noticed in the third para. of S. 1A of the 1855 Act. If the third paragraph of S. 1A of the 1855Act is a substantive provision. As submitted by Mr. Majmudar, we fail to understand why S. 110-B of the 1939 Act, which also deals with the same subject, cannot be said to be a substantive provision. It is not necessary to repeat that S. 110-B of the 1939 Act being a special provision, shall override the general provision contained in para. 3 of S. 1A of the 1855 Act.

13. For the above reasons, we are inclined to think that the introduction of Ss. 110-A to 110-F in the 1939Act have brought about certain radical changes impinging upon the provisions contained in Ss. 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 110-A to 110-F in the 1939 Act was merely adjectival or procedural in nature We are, therefore, of the opinion, that Cl (b) of sub-s. (1) of S. 110-A and Section 110-B of the 1939 Act clearly deal with substantive law and being wider in scope than Ss. 1A and 2 of the 1855 Act must prevail over the general law. In view of the difference in the language o Ss, 1-A and 2of the 1855 Act and Sections 110-A and 110-B 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

14. Considerable reliance was placed by Mr. Majmudar on the decision of the Supreme Court in New India Insurance Co, Ltd. v. Smt. Shanti Misra, : [1976]2SCR266 . In that case accident occurred on llth September, 1966 in which Shri Amar Nath Misra met his death due to collision between his motor cycle and a truck. Cause of action accrued to the widow and children of the deceased to claim compensation under the 1855 Act. A suit could have been brought under Art. 82 of the Lim. Act, 1963 within two years of the occurrence but in the mean time the Government of Uttar Pradesh constituted a Claims Tribunal under Section 110 of the 1939 Act by a notification Published on 18th March, 1967. The claim application was filed under Section 110-A on 8th July, 1967 and the appellants objected to the jurisdiction of the Tribunal to entertain the application. The Tribunal spurned the objection whereupon the appellants filed a writ petition in the High Court, which was allowed by a single Judge. In appeal filed against that decision, there was a difference of opinion between the two Judges constituting the Division Bench and on a reference to a third Judge, the view taken by the High Court was that the Tribunal had jurisdiction to entertain the application. It will appear from these facts that the contention before the Supreme Court was limited to the question of jurisdiction of the Tribunal to entertain the claim application, cause of action for which accrued before its constitution on llth September, 1966. Dealing with this limited question, the Supreme Court after referring to the relevant provisions of Sections 110-A and 110-F of the 1939 Act, observed as under:

'On the plain language of Ss. 110-A and 110-F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e. a change of adjectival or procedural law and not of substantive law. It is a well established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum.' Dealing with the expressions 'arising out of an accident' occurring in sub-s. (1) and 'over the area in which the accident occurred', mentioned in sub-s. (2), the Supreme Court observed that they clearly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred. The provision of limitations of 60 days contained in sub-s. (3) did not constitute an impediment, because, in the opinion of the Supreme Court the delay could be condoned under the proviso. It is, therefore, clear that the Supreme Court considered the language of Ss. 110A and 110F for the limited purpose of determining the question of jurisdiction and it was never called upon to consider the, effect of clause (b) of subs. (1) of Ss. 110A and 110B of the 1939 Act, qua Ss. 1 and 2 of the 1855 Act. We are, therefore of the opinion that the decision of the Supreme Court, on which considerable reliance has been placed by Mr. Majumdar, has no application to the facts of the present case and that decision is not an authority for the proposition that the aforesaid sections do not deal with substantive law.

15. For the above reasons we are of the view that the present claim application by the nephews of the deceased Gordhanbhai Tarjabhai is clearly maintainable, It was not contended by Mr. Majmudar that the claimants were not the legal representatives of deceased Gordhanbhai. We, therefore agree with the view taken in the third group of cases, namely, Mohammad Habibullah v. K. Seethammal, : AIR1967Mad123 ; Veena Kumari Kohli v. Punjab Roadways, 1967 ACJ 297 (Punj) and Smt. Ishwar Devi Malik v. Union of India, : AIR1969Delhi183 , on the principal contention regarding the maintainability' of the claim application by the nephews of the deceased.

16. Now to the question of assessment of compensation. The claimants claimed an amount of Rs. 20,000/- in the claim application. The Tribunal has awarded Rs. 9,000/- with 6 per cent interest and proportionate costs. The original claimants have filed cross-objections claiming an additional amount of Rs. 6,000/-. Mr. Desai pointed out that so far as the bullock which succumbed to the injuries is concerned, the claim was for Rs. 1,000/- on the receipt Ex. 46, which evidences that the bullock was purchased for Rs. 1100/-on Falgun Vad 10 of S. Y. 2025. In the panchnama Ex. 34 the estimated value of the bullock is Rs. 700/-. The Tribunal has awarded a sum of Rs. 700/- on the ground that the bullock was used for agricultural purposes upto May 8, 1972 after its purchase and secondly because its value was estimated at Rs. 700/- in the panchnama. Now so far as the panchnama is concerned, it is merely an estimate and can be relied upon in the absence of any other reliable evidence. It is true that the bullock was used for agricultural purposes upto May 8, 1972 but then expenses had to be incurred for its maintenance upto that time. Since it was purchased for Rs. 1100/- we are of the opinion that the Tribunal ought to have awarded a sum of Rs. 1,000/- for the loss of the bullock. The second bullock was injured as is clear from the evidence of Ranchhodbhai Somabhai Patel and Maheshbhai Ranchho,dbhai Patel. The former deposes to have spent a sum of Rs. 200/- for the treatment of the injured bullock. There is practically no cross-examination on this point. That is the claim made in the claim application also. The Tribunal has not awarded any amount on the around that there is no reliable evidence. A statement made on oath, if not contested in cross-examination, can be accepted without demur. We therefore think that this claim should be allowed. The claimants have claimed a sum of Rs. 1,000/-damage to the cotton which was being carried in the cart at the time of the accident. The cotton loaded in the cart was a well known ''Shenkar 4' variety. It appears from the panchnama Ex. 34 that after the accident, cotton was found littered all over the road near about the place of the accident. Witness Ranchhodbhai Somabhai Patel has deposed that cotton worth Rs. 1,000/- was rendered useless because of the accident. Making some allowance for exaggeration, there being no independent evidence in this behalf, we are inclined to think that at least a sum of Rs. 500/- ought to have been allowed by the Tribunal. Mr. Desai's main grievance was that the Tribunal has allowed a meager amount of Rupees 4000/- as against the claim of Rs. 13,000/- loss to the estate and dependency benefit. The evidence shows that the family had 9 Bighas of land under cultivation. In addition, the deceased Gordhanabai was cultivating an extra field of about 6 Bighas fetching an income of Rs. 900/- per annum The exact age of the deceased is not on record but the evidence permits an inference that he was aged about 55 to 60 years on the date of the accident. By his death, the income of Rs. 900/- per annum is completely lost to the family. Besides after his death, a labourer was required to be hired on a salary of Rs. 100/- per month i.e. Rs. 1200/- per annum. It is true that the deceased was spending about Rupees 2,000/- for his maintenance, It is also true that the agricultural income from the field admeasuring about 9 bighas has not diminished after the death of Gordhanbhai There can, however, be no doubt that the services of Gordhanbhai have been lost to the family. The family has to spend an extra amount of Rs. 1200/-annum by way of salary to the hired labourer. The income of Rs. 900/- per annum from the other field of 6 Bighas is totally lost. In these circumstances, there is justification in the contention of Mr. Desai that the award of Rs. 4,000/- against the claim of Rs. 13,000/- is extremely low. Even if we multiply the loss of Rs. 1200/- per annum by a multiple of 5, the amount works out to Rs. 6,000/-. Since the claimants are earning members, we do not purpose to assess the compensation as liberally as we would have done in case of a widow and minor children. Even this conservative assessment enhances the total amount of compensation from Rs. 9,000/- to Rs. 12,500/-.

17. In the result, therefore, the appeal is dismissed with costs. The cross-objection are partly allowed, in that the original claimants will be entitled to additional amount of Rs. 3,500/- by way of compensation. The award of the Claims Tribunal will, therefore, 'be modified, in that, the figure 'Rs. 12,500/-' will be substituted for the figure 'Rs. 9,000/-' in the award. The claimants will get full costs on the cross-objections in this Court.

18. Appeal dismissed.


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