Skip to content


Perumal and ors. Vs. G. Ellusamy Reddiar and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Reported in(1974)1MLJ292
AppellantPerumal and ors.
RespondentG. Ellusamy Reddiar and anr.
Cases ReferredGobald Motor Service v. Veluswami
Excerpt:
- ramaswami, j.1. the claimants in o.p. no. 225 of 1965 before the motor accidents claims tribunal, madras, whose petition has been dismissed, are the appellants. the three appellants are the brothers and sister of one kadirvelu who was killed in a motor accident which occurred at about 1 p.m. on 25th august, 1965 in gbantz road, madras. the lorry bearing registration no. mdj 2172 owned by the 1st respondent is the vehicle which was involved in the accident. kadirvelu was actually standing on the steps of a tea shop off the pedestrian pavement east of the road and the lorry in question swerved, went over the pavement and knocked against the said tea shop, in the process jamming kadirvelu to death. the appellants claimed a total sum of rs. 40,000 as compensation, making the owner of the.....
Judgment:

Ramaswami, J.

1. The claimants in O.P. No. 225 of 1965 before the Motor Accidents Claims Tribunal, Madras, whose petition has been dismissed, are the appellants. The three appellants are the brothers and sister of one Kadirvelu who was killed in a motor accident which occurred at about 1 P.M. on 25th August, 1965 in Gbantz Road, Madras. The lorry bearing registration No. MDJ 2172 owned by the 1st respondent is the vehicle which was involved in the accident. Kadirvelu was actually standing on the steps of a tea shop off the pedestrian pavement east of the road and the lorry in question swerved, went over the pavement and knocked against the said tea shop, in the process jamming Kadirvelu to death. The appellants claimed a total sum of Rs. 40,000 as compensation, making the owner of the vehicle and the insurer thereof as respondents 1 and 2 respectively. The two respondents contested the petition and the Tribunal came to the conclusion that the accident was not due to any negligence or rashness on the part of the dirver of the lorry, that it was an inevitable accident due to an unforeseen mechanical defect and that therefore the claimants are not entitled to any compensation. The Tribunal also gave a finding that if the claimants are entitled to compensation on the ground that the accident was a result of rash or negligent driving of the vehicle, a sum of Rs. 5,400 would be the just compensation payable to them. But the petition came to be dismissed on the abound that there was no rashness or negligence on the part of the driver of the lorry. Therefore the claimants have filed this Civil Miscellaneous Appeal pressing their claim.

2. The first question that arises for consideration is whether the accident was as a result of negligence. The road in question runs north to south and the width of the road as spoken to by P.W.3, the police officer who visited the scene after the accident, is 28 feet 9 inches. On the eastern side of the road there is a pedestrian pavement, 4 feet wide. There is a tea shop called Gopal Tea Stall east of the pavement. Kadirvelu (since deceased) was standing on the steps just in front of the said tea shop, facing the same (facing eastwards) and taking tea. It was then the lorry, which proceeded from north to south in the road, swerved, jumped over the pavement a ad dashed against the tea stall, in the process of which Kadirvelu was caught between the lorry and the tea stall and crushed to death.

3. The accident is spoken to by Arumugam (P.W.5.) on behalf of the claimants and Kandan (R.W. 1.) who was the driver of the lorry, on behalf of the respondents. We have also the evidence of P.W. 3, the police officer who visited the scene sometime after the accident and he has drawn a plan as per Exhibit P-1 showing the tyre marks and other particulars.

4. P.W. 5 was also near the tea shop in question and be was also injured in the accident, but he escaped with minor injuries. All that he says is that while himself and the deceased were taking tea facing the tea stall and standing on the steps close to the same, the lorry came and hit them. He added that there was no sounding of horn by the lorry at about the time of the accident. R.W. 1 the driver of the lorry, stated that he was driving the lorry from north to south, that the lorry was empty (i.e.) without any load, that two bullock carts were going ahead of the lorry, that he overtook the said two bullock carts by going to his right side (western side of the road), that after he so overtook the two carts, he wanted to bring the lorry to the centre of the road, that then the steering began to wobble, that the steering wheel turned left and could not be brought to the normal position, that when he applied the brakes they failed and that therefore the vehicle got over the platform on the eastern side of the road and dashed against the tea shop, only after which the vehicle came to a stop. P.W. 3 the police officer, stated that he found tyre marks to a distance of 56 feet from the place of impact, that the said marks were straight (north to south) to a certain distance and then it took a turn across the road diagonally up to the place of impact. The left front wheel was found detached and lying on the left side of the lorry in between the steps of two adjacent shops off the pedestrian pavement. The front part of the tea shop in question, as well as the southern wall of an adjacent stall were found badly damaged. This witness also stated that the brakes of the vehicle were found to be efficient.

5. The respondents examined one Velayutham, who is an automobile Ergineer, as R.W. 2 to give opinion evidence in order to support their case that the accident was as a result of a sudden mechanical breakdown. The witness explained as to how the left front wheel in the vehicle could have come out from its position. He stated that in case the nuts had come out of the sub-axle, the wheel would start to come out by a few inches before it finally drops out. According to him, it is possible that nuts may come out unnoticed by the driver. The sub-axle being about 6 inches long, before the wheel comes out completely and falls down, it would be rolling on the bearing even after the nuts had slipped, but in that position the brakes would not act. He added that accidents do happen due to slipping of sub-axle outs. It was also sought to be made out through his evidence that the coming out of the front left wheel was not due to the impact itself. The witness stated that had the wheel come out due to the impact, the bearings as well as the hub would have been broken and the threads of the sub-axle would be wiped away completely. As it is not in evidence that either the bearings or the hub was found broken or about the sub-axle threads having been wiped away, it was sought to be made out through the evidence of R.W. 2 that the coming out of the left front wheel of the lorry was not due to the impact but it was only due to a latent mechanical defect.

6. As I said, the Tribunal below held that the accident was a result of the mechanical defect and the accident was not due to any negligence or rashness. But on a careful consideration, I am unable to accept the finding of the Tribunal below on this paint. There are two aspects of the question. The first is whether the accident was due to rash or negligent driving by R.W. 1, the driver of the vehicle. The second is, even if the accident was a result of mechanical defect, whether reasonable care had been taken to prevent such breakdown resulting in the accident. The lorry had admittedly gone out of the road, jumped over the pavement and attacked the deceased who was actually standing on the steps of the tea stall. Under such circumstances, the doctrine of res ipsa loquitur would come into play. It is then, the burden shifts on to the respondent to prove that the accident was not due to negligence. The doctrine of res ipsa loquitur means that an accident may by its nature be more consistent with its being caused by negligence for which the defendant is responsible than by other causes, and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Then the burden of roof is on the defendant to explain and to show that it occurred without fault on his part. I will assume in this case that the coming off of the left front wheel was not due to the impact itself but because of the sub-axle nuts breaking or slipping all of a sudden. But the respondent cannot escape liability by merely showing that the accident was as a result of a mechanical defect. He should further show that he took reasonable care to avoid such mechanical defect. There is no evidence as to whether the sub-axle nuts broke or slipped.

7. Bingbam in Motor Claims Cases (6th Edition, page 183) points out that if an accident is due to a latent defect which is not discoverable by reasonable care, there is no negligence. Therefore it is not enough for the respondent to prove that the accident is due to latent it defect, but he must further prove that the said defect was not discoverable by reasonable care. Regarding cases of mechanical defect causing accident, it is pointed out in R. v. Spruge (1961) 2 All E.R. 688. that the defence of mechanical defect has no application where the defect is known to the driver or should have beer, discovered by him had he exercised reasonable prudence. In the present case, no doubt, there is. no evidence to show that the defective nature of the sub-axle nuts was known to the driver or the owner of the vehicle. But the matter does not rest there. It must be shown by the respondent that the defect could not be detected in spite of exercise of reasonable care. In the case of mechanical break-down unless the defendant satisfies the Court that he arranged periodical check-up and carried out necessary repanis regularly and that he did everything in his power to eliminate mechanical unsoundness, the break-down would be only a neutral factor and not a valid deferce. In the present case, there is absolutely no evidence to show that the 1st respondent took any care to avoid the mechanical defect. R.W. 1 the driver of the lorry, said that he did not know whether the mechanism was ever checked. Therefore I think the 1st respondent has not discharged his burden of rebutting the presumption arising from the doctrine of res. ipsa loquitur.

8. The next point to be considered is whether the appellants, who are the brothers and sister of Kadirvelu (since deceased) are persons entitled to claim compensation under Section 110-A of the Motor Vehicles Act (hereinafter referred to as the Act). The contention on behalf of the respondents is that in view of the fact that the appellants are not dependants under Section 1-A of the Fatal Accidents Act, they cannot maintain any claim for compensation regarding the death of Kadirvelu. Per contra, the contention on behalf of the appellants is that the provisions of the Fatal Accidents Act have no application to 3 claim before the Motor accidents Claims Tribunal, that the provisions under the Motor Vehicles Act give a right to all legal representatives of the deceased to maintain to claim for compensatior, that the term 'legal representatives' occurring in section 110-A of the Act would take in the brothers and sister of a deceased who died a bachelor and that therefore their claim cannot be negatived on the ground that they are not dependants as defired under Section 1-A of the Fatal Accidents Act. I am of the opinion that neither of the contentions is correct. Even in (respect of claims before the Motor Accidents Claims Tribunal, one has necessarily to look to the provisions of the Fatal Accidents Act because the provisions of the Motor Vehicles Act do not create substantive rights but they any only procedural in character. Even so, the appellants being the brothers and sister of the deceased, are not wholly without remedy. Though they are not entitled to compensation for loss of benefit as they are not dependants under Section 1-A of the Fatal Accidents Act, they would be entitled to claim compensation towards loss of estate of the deceased as persons who represent his estate.

9. The contention on behalf of the appellants proceed on the footing that Sections 110 to 110-F of the Act create substantive rights and that they are not merely procedural. It is on that basis it is contended that in respect of claims under Section 110-A of the Act, one should not look to the provisions in the Fatal Accidents Act in order to determine whether the claimants are entitled to compensation and if so, to what amount. On an examination of all the relevant provisions, I am quite clear that Sections 110 to 110-F of the Act do not purport to change the substantive. law under which persons can claim compensation for either death or injury caused by tortious acts. First of all, it must be noted that Sections 110 to 110-F of the Act do not say that in every case of accident (whether the accident is as a result of tortious act or not), the injured or the legal representatives of the deceased, as the case may be, are entitled to compensation. Undoubtedly the substantive right to claim compensation is only under the general law of torts. It cannot be disputed and, as a matter of fact, it is not disputed that either an injured or the legal representatives of the deceased, as the case may be, should establish that the accident was as a result of rashness or negligence on the part of the owner of the motor vehicle or his servant, before ever they can claim compensation in espect of the accident. That being so, merely because Section 110-A says that either the injured person or the legal representatives of the deceased, as the case may be, can file application for compensation and Section 110-B' says that the Claims Tribunal may make an award determining the amount of compensation which appears to be just, it cannot be claimed that any new right is created under these provisions.

10. The Tribunal making an award 'determining the amount of compensation which appears to it to be just' has naturally to look to the law of torts in determining such compensation. If the owner of the vehicle is not a tort-feaser, then, in spite of the accident causing either injury or death, as the case may be, no compensation can be awarded by the Tribunal. Therefore, the mere fact that the section says that the Tribunal would determine the amount of compensation which appears to it to be just, does not mean that any new right is created to the claimants. The claimants have necessarily to trove that the owner of the motor vehicle concerned is guilty of a tortious at t, either directly or vicariously, resulting in the accident.

11. It is stated that in the latest amendment of the Act, Section 95 has been so amended in order to create an absolute liability in respect of injuries caused to passengers in public service vehicles. Section 95 of the Act is the. one which specifies the requirements of the insurance policies to be taker in respect of motor vehicles. Section 95(1)(b) as it originally stood stated that the insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by him or them in respect of the death of or, bodily injury to, any person caused by or arising out of the use of the vehicle in a public place. There is also a proviso to this Clause 95(1)(b) but that need not be referred to now. By Act (LVI of 1969), Section 95(1)(b) has been substituted by a new clause. As far as it is now material, it is as follows :--

95. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--

(a) * * * * *

(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2).

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.

As in the new Clause (b)(i) it is stated that the insurance is to he against any liability which may be incurred by the person or classes of persons specified in the policy but Clause (b)(ii) simply says that the insurance is to be against the death of or bodily injury to any passenger of a public service vehicle, without referring to any liability which may be incurred by the person or classes of persons insured in respect of such death of or bodily injury to any passenger, it is said that under the abovesaid clause, viz., new Clause (b)(ii), an absolute liability in respect of passengers travelling in a public service vehicle has been created. In this connection, the statement of objects and reasons for the Amending Act (LVI of 1969), which introduced the abovesaid new provision, is pointed out. In paragraph 6 of the said objects and reasons it is stated that the bill seeks to provide for covering of passenger risks for public service vehicles irrespective of the culpability of the owner or driver of such vehicle for any accident in which it may be involved, provided that there was no contributory negligence on the part of the victim. From this it is stated that even though the driver of a public service vehicle might not have been rash or negligent in respect of the accident in which any of the passengers in the vehicle is injured or dead, the insurer shall to liable to pay compensation to such victims. Though the statement of objects and reasons mentioned above supports the above view, whether the said object has been achieved or not has to he examined.

12. Assuming without deciding that the new Section 95(1)(b) creates an absolute liability in respect of injury or death to passengers in a public service vehicle, that has nothing to do with the present question, for two grounds, viz., this amendment comes into effect only in the year 1969 and (2) the absolute liability, if any, is only in respect of passengers in a public service vehicle. In the present case, we are not con(sic)erned with any passenger who was injured or dead in the accident.

13. This is a case where s lorry attacked and killed a person who was standing on the pedestrian pavement. If really the present Section 95(1)(b) creates an absolute liability in respect of passengers in a public service vehicle, that fact would only highlight the position that in respect of other claimants there is no question of absolute liability and that the claimants can succeed only by proving that the injury or the death, as the case may be was due to tortious act on the part of the owner of the motor vehicle, either directly or vicariously.

14. If one has necessarily to look to the law of torts, then it must be remembered that before the coining into force of the Legal Representatives Suits' Act, 1855 (XII of 1855) and the Indian Fatal Accidents Act (XIII of 1855) under the maxim of actio personalis moritur cum persona, no action could be maintained by any one in respect of the death of a person, even though the death bad been caused by the defendant by committing a tortious act. The maxim which means 'a personal claim dies with the person' is a general rule applicable to torts and prevents representatives of the deceased from suing in his right for the suffering and pecuniary loss caused to the deceased during his lifetime by reason of the injury of which the deceased ultimately died. The result was that the person who caused the death of other cannot be sued in tort, though if death had not been caused but only injury had been caused, the injured would be entitled to sue and recover damages for the tortious act. The position was 'it was cheaper to kill than to maim or cripple'. In England, the above unsatisfactory state of law was overcome by the passing of the Law Reforms Act and of the Fatal Accidents Act, 1846, which is commonly known as Lord Campbell's Act.

15. The Indian Fatal Accidents Act (XIII of 1855) followed the above English Act of 1846. Under Section 1-A of the Fatal Accidents Act, a new right is created in favour of certain defendants who are named therein, to maintain an action or suit for damages in respect of the death of a person. The dependants for whose benefit an action can be maintained under Section 1-A of the Act are the wife, husband, parents (which term includes not only father and mother but also grandfather and grandmother) and child (which term includes not only son and daughter but also grandson and grand-daughter and step-son and step-daughter). This Act viz., the Indian Fatal Accidents Act and the Legal Representatives' Suits Act of 1855 came into force on one and the same date, viz., 27th March, 1855.

16. Under the Legal Representatives' Suits Art (XII of 1855) which corresponds to the Law Reforms Act in England the cause of action in respect of loss to the estate of a person whose death had been caused (by tortious act) is made to survive and be available to the executors, administrators or representatives of the deceased. The long title of this Act is 'An Act to enable executors, administrators, or representatives to sue and be sued for certain wrongs'. The preamble says that whereas it is expedient to enable executors, administrators or representatives in certain cases to sue and be sued in respect of certain wrongs which, according to the present law, do not survive to or against such, executors, administrators or representatives, the law is enacted.

17. It must be remembered that the claim on behalf of the dependants mentioned in Section 1-A of the Fatal Accidents Act is entirely different from what is compendiously called 'loss of estate of the deceased'. Under Section 1-A, compensation is claimable in respect of loss of benefit to the dependants mentioned therein. But it is under the other Act, viz, the Legal Representatives' Suits Act, 1855 the cause of action regarding loss of estate was made to survive to the executors, administrators or representatives of the deceased. If the person wronged does not die as a result of the wrong-doing, under the general law of torts he always has the right to maintain an action for loss of estate (I will come to the question what exactly is the loss of estate, a little later). Before the passing of the Legal Representatives' Suits Act, such right to loss of estate died with the wronged and the same did not survive to the executors, administrators or representatives of the deceased. After the passing of the said Act, the executors or administrators or representatives of the deceased, as the case may be, can maintain a suit for loss of estate of the deceased.

18. The Fatal Accidents Act, 1855 comtemplates that there should be only one action or suit for loss of benefit in respect of a wrongful act. That is the first part of section a of the said Act which says : 'Provided always that not more than one action or suit shall be brought for, and in respect of the same subject-matter of complaint'. If a person dies of a tortious act, there could not be one action for the loss of benefit to one of the dependants as contemplated under Section 1-A of the said Act and a separate action for loss of such benefit to another dependent, though a separate suit or action for the loss of estate can be brought by the executors or administrators or representatives of the deceased, as the case may be. But the second part of the abovesaid Section 2 of the Fatal Accidents Act is an enabling provision by which in any suit or action for the less of benefit to the dependants as contemplated under Section 1-A a claim in respect of loss of estate can also be inserted by the executor, administrator or representative of the deceased, as the case may be. The second part of Section 2 of the Fatal Accidents Act says : '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'.

19. In the whole of the Fatal Accidents Act, the reference to the loss of estate is only in the above provision. It may he seen that this provision contained in Section 2 of the Fatal Accidents Act itself is procedural in character as it does not create any substantive right in the executor, administrator or representative of the deceased to claim pecuniary loss to the estate of the deceased. The substantive right is always in the general law of torts. But as the law originally stood, such right to claim pecuniary loss to the estate would have died with the deceased and no action could be maintained by the deceased's executor, administrator or representative. The Legal Representatives' Suits Act altered the position and made the cause of action for such pecuniary loss to the estate of the deceased to survive to the executor, administrator or representative of the deceased. Section 2 of the Fatal Accidents Act only says that the executor, administrator or representative of the deceased may insert a claim for pecuniary loss to the estate of the deceased in a suit or action brought on behalf of the dependants of the deceased for less of benefit as contemplated under Section 1-A. Thus it is dear that Section 2 of the Fatal Accidents Act itself does not create any right, but it is only an enabling provision saying that if there is an action or suit for loss of benefit to the dependants the executor, administrator or representative of the deceased may insert a claim for pecuriary loss to the estate of the deceased in the same action.

20. Section 306 of the Indian Succession Act (and the corresponding provisions in the earlier Acts, viz., Probate and Administration Act of 1881 and the Indian Succession Act of 1865) says that cause of action for personal injuries does not survive to and against the executors or administrators of a deceased person. But the exception is in respect of personal injuries causing the death of the patty. In case of personal injuries causing the death of the party, the cause of action does survive to the executors or administrators of the deceased. This is in accordance with the Legal Representatives' Suits Act of 1855. But for that Act, under the maxim actio personalis moritur cum persona, the cause of action even in respect of injuries causing the death of the person would die with him.

21. There is no distinction between a motor accident causing fatal injuries, to a person and other accidents or any other act causing such fatal injuries regarding rights and liabilities of the parties. The liability of the defendant in all such cases, including cases of motor accidents, is founded only on the law of torts. As the motor vehicles increased and motor accidents were also on the increase, the Legislature compelled the owners of motor vehicles to have insurance cover in respect of third party risks. Under Section 110 of the Motor Vehicles Act, 1039 as it stood before the amendment of the year 1956, the State Governments had been empowered to appoint persons to investigate and report on motor accidents. But such persons so appointed were not empowered to adjudicate on the liability of the insurer or on the amount of damages to be awarded, except at the express desire of the insurance company concerned. Therefore, till the amendment of the Act in the year 1956, the claimants in respect of injury or death due to a motor accident had to go only to the civil Court just like in any other case of tort.

22. Then in the year 1956, the Legislature substituted the present Section 110 for the former section and also introduced Sections 110 A-to 110-F. The present provisions contained in Sections 110 to 110-F came into effect on 16 February, 1957. The statement of objects and reasons for substituting the present Sections 110 to 110-F in the place of the original Section 110 is significant. It is stated that the original provision had not helped persons of limited means in preferring claims on account of injury or death because a Court decree has to be obtained before the obligation of an insurance company to meet the claims can be enforced and it is therefore proposed to empower State Governments to appoint Motor Accidents Claims Tribunals to determine and award damages. Thus it is clear that in respect of claims relating to motor accidents, which were being entertained by the civil Courts, the Legislature paved the way for the creation of a new forum in the shape of Motor Accidents Claims Tribunal. There can be no doubt, therefore, that the provisions cortained in Sections 110 to 110-F of the Motor Vehicles Act which speak of the constitution of Motor Accidents Claims Tribunals and how applications to such Tribunals should be made and disposed of, relate only to procedure and they have nothing to do with the substantive rights and liabilities of parties. It is needless to stress that the substantive right of a claimant and the liability of the defendant have to be determined only as per the law of torts and that but for the Legal Representatives' Suits Act and the Fatal Accidents Act (both of the year 1855), there would be no cause of action available to any ore in respect of injuries resulting in the death of the injured.

23. Till the recent amendment of the Act by Act (LVI of 1060), section 110 stated that the Accidents Claims Tribunal is to be constituted 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. It did not say anything about personal properties lost by the injured or the person who died in such motor accident. Under substantive law, if a person is injured owing to the defendant's tortious act, be would, among other things, be entitled to the value of damages, if any, to his personal property. If a person goes on a cycle and he is knocked down by a motor car due to the negligence or rashness on the part of the motor car driver, then the person who is so knocked down would be entitled to claim the value of the damaged cycle, apart from other damages. Even if the injured dies as a result of the injuries, his legal representatives can maintain a claim in respect of the value of damages to the cycle as part of loss to the estate of the deceased. Section no of the Act, as it stood before, the recent amendment of 1969, did not specifically provide for the Motor Accidents Claims Tribunal going into the question such damages to property. In Selvaroj v. Jagannathan (1968) 81 L.W. 386. the question arose whether the civil Court has no jurisdiction to entertain even a claim in respect of damage to property in a motor accident. That is a case where a person was injured and his cycle was damaged by a motor accident. He filed a suit in the civil Court for damages towards his personal injuries as well as damages to the cycle. As a Motor Accidents Claims Tribunal had been constituted, the civil Court returned the plaint holding that it had no jurisdiction to entertain any part of the claim. On a revision against such an order, Veeraswami, J. (as he then was), held that in so far as the claim in respect of personal injuries is concerned, Sections 110(1) and 110-F of the Motor Vehicles Act make it clear that the claim for bodily injury is triable only by the Claims Tribunal having territorial jurisdiction, but the jurisdiction of such Tribunal is limited by the terms of the statute and did not cover claims of damages to property and that therefore the civil Court had jurisdiction to try the suit in so far as that relates to the claim of compensation for demage to the property. The learned Judge was aware of the difficulty in two forums entertaining claims in respect of one and the same accident--one forum regarding personal injuries and the other regarding damages to property--for there is likely to be conflict of findings. But the learned Judge said that such difficulty would not make any difference to the limits of the jurisdiction of the statutory Tribunal set by the terms of the legislation. To rectify the above unsatisfactory position the Legislature has now amended Section 110(1) of the Act by the Amending Act (LVI of 1969). In my opinion, this recent amendment makes it abundantly clear that Sections 110 to 110-F of the Act are only procedural in character and they do not deal with substantive law. Section no (1) before the recent amendment, read as follows :--

A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification 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.

The words 'motor vehicles' occurring in the above sub-section have now been substituted with other words and a proviso has also been added and Section 110(1), as amended, reads as follows :--

A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damage to any property of a third party so arising, or both :

Provided that where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a civil Court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to enertain any question relating to such claim.

It is clear that after the amendment, in respect of a motor accident which involves not only the death of, or bodily-injury to, a person but also damage to property--such damage being more than Rs. 2,000--the civil Court and the Motor Accidents Claims Tribunal would have concurrent jurisdiction, as it were, and the claimant in such a case would have the option to choose the forum. The provision also makes it clear that if, in such a case, the claimant chooses the civil Court, the jurisdiction of the Claims Tribunal would be completely ousted. It must be noted that in such a case the entire claim, viz., the claim for personal injuries or death, as the case may be, and damages to property can be entertained by the civil Court and once the claimant chooses the civil Court for making his claim, the jurisdiction of the Claims Tribunal would be ousted. Therefore there can be no doubt that Sections 110 to 110-F prescribe only a special forum in the place of the civil Court in respect of claims relating to motor accidents and those sections have nothing to do with the substantive rights and liabilities of parties.

24. Before dealing with the case law on the point, I would like to dispose of another aspect. The State Government has framed the Madras Motor Accidents Claims Tribunals Rules, 1961. Under Rule 2(c) of the said rules, the terms legal representative' occurring in Section 110-A is stated to have the same meaning assigned to it under Section 2(11) of the Code of Civil Procedure. I am of the opinion that the term 'legal representative' occurring in Section 110-A of the Act has wider import than the definition of the terms contained in Section 2(11) of the Code of Civil Procedure and that particular rule made by the State Government is beyond its rule-making power and therefore it should be struck down. The said rules are purported to be made under Section 110(1) of the Act. But Section 110(1) does not really give power to the State Government to make any rules. That only speaks of the power of the State Government to constitute Motor Accidents Claims Tribunals. It is Section 111-A that gives power to the State Government to make rules 'for the purpose of carrying into effect the provisions of Sections 110 to 110-E '. I take it that the Motor Accidents Claims Tribunals Rules, 1961 are made under the above provision, viz., under Section 111-A. Rule 2(c) of the said rules says :

'Legal representative ' shall have the meaning assigned to it under Clause (11) of Section 21 of the Code of Civil Procedure, 1908.

'Section 21' occurring in the above rule is an obvious mistake for 'section 2'.

25. No doubt the definition of the term 'Legal representative' under Section 2(11) of the Code of Civil Procedure is wide. It takes in not only administrators, executors and heirs but all other persons who represent the estate of the deceased. The definition says that the terms include even persons who intermeddle with the estate of the deceased. Even so, this definition would not take in all the persons who would be entitled to file claim as per the provisions contained in the Fatal Accidents Act and the Legal Representatives Suits Act. Under the Legal Representatives' Suits Act, an action can be maintained by an executor, administrator or representative of the deceased person in respect of pecuniary loss to the estate. Under the Fatal Accidents Act, a claim for loss of benefit to the dependants mentioned under Section 1-A shall be brought in the name of the executor, administrator or representative of the deceased person. Therefore both the claims, viz., the claim for loss of benefit as well as that for loss of the estate, can be brought not only by an executor or administrator but also by a representative of the deceased As already pointed out, if there is a claim for loss of benefit to the dependants mentioned in Section 1-A of the Fatal Accidents Act, a claim for loss to the estate (the cause of action for which claim is preserved by the Legal Representatives' Suits Act) can be inserted in the same claim.

26. The term 'representative' occurring in Section 1-A of the Fatal Accidents Act, in my opinion, has a different connotation than the definition of the term 'legal representative' contained in Section 2(11) of the Code of Civil Procedure. I am also of the opinion that the term 'legal representative' occurring in Section 110-A of the Act takes in persons covered by the term 'representative' occurring in Section 1-A of the Fatal Accidents Act. Section 2(11) of the Cede of Civil Procedure, though wide to cover not only administrators, executors and heirs but also other persons, it would certainly not take in persons who do not represent the estate of the deceased. But in my opinion, the term 'representative' occurring in Section 1 A of the Fatal Accidents Act has different connotations and the term takes in even persons who do not represent the estate of the deceased.

27. In Shwe My a v. Maung Ho Haaung (1923) 44 M.L.J. 732 : 49 I.A. 395 A.I.R. 1922 P.G. 359. the Privy Council had observed that the word 'representative' is a term of ambiguous meaning and must be construed according to its context. In Stroud's Judicial Dictionary, it is stated that the meaning of the term 'representatives', 'legal representatives', 'personal representatives' or 'legal personal representatives' may be controlled by the context. It is pointed out that in certain contexts such terms would mean next-of-kin and not executors or administrators. In Ramanatha. Aiyar's Law Lexicon it is stated that the ordinary legal sense of the terra 'representatives' without the addition of 'legal' or 'personal', is executors and administrators, but contextually 'representatives' may be taken to mean as 'next-of-kin' or the 'descendants'. It is said in the same book that the term 'legal representative' ordinarily means the executor or administrator, though sometimes, when required by the context and surrounding circumstances, it is held to mean next-of-kin and, under rave and peculiar facts, may mean heirs, who themselves, in a broad sense, are often regarded as the legal representatives of the decedent. Therefore it is clear that the term 'representative' or 'legal representative' should ordinarily denote a person who represents the estate of the deceased, but the said terms may denote even next-of-kin if the context warrants it. We are of the opinion that the term 'representative' occurring in Section 1-A of the Fatal Accidents Act means next-of-kin and not merely heirs or persons who represent the estate of the deceased.

28. It should be remembered that the claim under Section 1-A of the Fatal Accidents Act is for the benefit of certain persons who are termed as dependants of the deceased. Section 1-A says that the wife, husband, parent and child are such dependants and section 4 of the said Act interprets the term 'parent' as to include not only father and' mother but also grandfather and grandmother and that the word 'child' shall include not only son and daughter but also grandson and grand-daughter and step-son and step-daughter. The claim made on behalf of them need not be as representative of the estate of the deceased. A representative of the estate of the deceased can claim on behalf of the estate only such right winch the deceased could have claimed in his own lifetime. A claim towards loss of benefit to the dependants mentioned in Section 1-A of the Fatal Accidents Act is certainly not a claim which he deceased could have possibly made during his lifetime. As I said earlier, the right to claim loss of benefit on behalf of the dependants mentioned in Section 1-A is a new light created by the statute. It is in this context we have to understand the word 'representative' occurring in Section 1-A of the Fatal Accidents Act.

29. If the term 'representative' in the above section is not to be understood as next-of-kin, then some of the dependants mentioned in that section may not be entitled to make a claim in their own name. The father of the deceased, as well as the grandfather of the deceased, is a dependant entitled to claim compensation or less of benefit, though, of course, there must be proof that but for the death of the deceased he would have been receiving some benefit from him and the quantum of compensation has to be determined in favour of each dependant separately according to the nature and extent of dependency. But such father or grandfather may not be an heir if the deceased has left a widow or mother or child and the parties are Hindus and he may not also be a person representing the estate of the deceased as contemplated under Section 2(11) of the Code of Civil Procedure. Though it is clear that for a person to be one representing the estate of the deceased, he need not necessarily be an administrator, executor or heir, still he must have something to do with the estate of the deceased. Therefore if the father or grandfather, who is not an heir, has no possession of any part of the estate of the deceased and he has nothing to do with such estate, he may not be a person representing the estate of the deceased in any sense of the term. That means if the term 'representative' occurring in Section 1-A of the Fatal Accidents Act is understood as a person representing the estate of the deceased, a father or grandfather of the deceased may not be in a position to bring an action in his own name for loss of benefit. Under the above circumstances, I am of the opinion that the term 'representative' occurring in Section 1-A of the Fatal Accidents Act should be understood as referring to next-of-kin who are the dependants of the deceased as contemplated under that Act.

30. The term 'representative' occurring in the Legal Representatives' Suits Act need not have the same meaning because of the context. Under that Act, the cause of action for a claim of loss to the estate of the deceased is made to survive the death of the person. Therefore a claim under the Legal Representatives' Suits Act can be only the loss to the estate of the deceased. That being so, the term 'representative' occurring in that Act should refer to persons who represent the estate of the deceased and that need not take in next-of-kin who would be dependants of the deceased under the Fatal Accidents Act but may not be persons who represent the estate of the deceased. I have already pointed out that the word 'representative' has to be understood according to context. Therefore the word 'representative' occurring in Section 1-A and the same term occurring in the Legal Representatives' Suits Act need not have the same meaning. In fact, the term 'representative' occurring in Section 2 of the Fatal Accidents Act has to be understood only in the same way as in the Legal Representatives' Suits Act, (i.e.,) as a person representing the estate of the deceased, for that section speaks of claim relating to the pecuniary loss to the estate of the deceased. The above conclusion of mine would mean that the term 'representative' occurring in different sections of the Fatal Accidents Act would have different meanings. While under Section 1-A the term 'representative' should refer to next-of-kin who are dependants, in Section 2 the same term has to refer to persons representing the estate of the deceased. But when the term has to be understood according to context, we do not see any difficulty in placing such construction on the term which differs from one section to another.

31. Sections 110 to 110-F of the Act being only procedural in character and having nothing to do with the substantive rights and liabilities of parties, do not make any reference to either loss of benefit or loss to the estate as heads on which compensation can be claimed in the case of a person whose death was caused by a motor accident. The said sections do not also mention anything about the circumstances under which the owner of the motor vehicle concerned would be liable to pay compensation. As I pointed out, even though the said sections merely speak of payment of compensation, undoubtedly a claimant cannot succeed unless he proves a tortious act on the part of the owner of the vehicle, either by himself or vicariously. A claim for compensation even in respect of a motor accident is certainly governed by the law of torts and only ty virtue of the Legal Representatives' Suits Act and the Fatal Accidents Act claims for compensation in respect of the death of a person in such an accident could be made. Only compensation for loss to the estate of the deceased (the cause of action for which is preserved by the Legal Representatives' Suits Act) and loss of benefit to the dependants (which right has been created by Section 1-A of the Fatal Accidents Act) can be claimed in case of death of a person in any accident, including a motor accident. In respect of any other accident amounting to a tortious act, the claim has to be necessarily made in the ordinary civil Court. But in respect of a motor accident similarly amounting to a tortious act, the claim has to be made before the Motor Accidents Claims Tribunal, except under certain circumstances. It was a heady noted that under the amended provisions of Section 110(i), under certain circumstances, the claimant can choose the forum and if he opts to make the claim before the ordinary civil Court, the jurisdiction of the Motor Accidents Claims Tribural would be completely ousted in such a case.

32. It is in the above context, one has to see the sense in which the term 'legal representative' is used in Section 110-A of the Act. As I said, the relevant sections in the Act do not speak of either loss of benefit to the dependants or loss to the estate, though undoubtedly in case of death, only under those two main heads compensation can be claimed. Under Section 110-A of the Act, in the case of death of a person, compensation could be claimable not only for the loss to the estate but also loss of benefit to the dependants as contemplated under Section 1-A of the Fatal Accidents Act. The term 'legal representative', therefore, should necessarily include not only persons who represent the estate of the deceased (who can claim loss to the estate of the deceased), and the next-of-kin who are mentioned as dependants under Section 1-A of the Fatal Accidents Act who can claim compensation for loss of benefit to themselves, whether they represent the estate of the deceased or not. In other words it should take in all persons who can maintain an action under the Legal Representatives' Suits Act (or under Section 2 of the Fatal Accidents Act, as the case may be) as well as those who can maintain an action under Section 1-A of the Fatal Accidents Act. That being so, one cannot restrict the meaning of the term 'legal representative' occurring in Section 110-A of the Act as that in Section 2(11) of the Code of Civil Procedure.

33. It is true that the Supreme Court has pointed out in Andhra Bank Ltd. v. Srinivasan : [1962]3SCR391 . that the term 'legal representative' as defined in the Code of Civil Procedure is not limited to administrators, executors and heirs but includes any person who, in law, represents the estate of the deceased. In so saying their Lordships of the Supreme Court have quoted with approval the observations of Woodroffe J. in Dinamoni Chaudhurani v. Elahadut Khan (1904) 8 C.W.N. 843. in dealing with the connotation of the term 'legal representative' occurring in Section 234 of the Code of Civil Procedure, 1882. The Supreme Court further points out that because of the above observations of Woodroffe, J. in the said case, in the subsequent Code of Civil Procedure, viz., the present Code, Section 2(11) defining the term 'legal representative' has widened the scope of the said term. The Supreme Court points out that as per Section 2(11) of the present Code of Civil Procedure, 'a person who in law represents the estate of a deceased person' must include different legatees under the will and that there is no justification for holding that the 'estate' in the context must mean the whole of the estate. It is also pointed out that a person who is in possession of a part of the estate of the deceased would be an intermeddler with the estate, coming within the scope of Section 2(11) of the Code. Even so, as I already pointed out, a legal representative as contemplated under Section 2(11) of the Code of the Civil Procedure should necessarily represent the estate of the deceased A person who is a dependant under Section 1-A of the Fatal Accidents Act need not necessarily be one who represents the estate of the deceased. Therefore the term 'legal representative.' occurring under Section 110-A of the Act cannot be equated with the term in Section 2(11) of the Code of Civil Procedure. I am clearly of the opinion that the said term occurring in Section 110-A has a wider connotation than that in the Code of Civil Procedure.

34. Rule 2(c) of the Madras Motor Accidents Claims Tribunals Rules, 1961 is certainly beyond the rule-making power of the State Government. First of all, Section 111-A of the Act gives power to the State Government to make rules only for the purpose of carrying into effect the provisions of Sections 110 to 110-F. Under the guise of this power, the State Government cannot possibly make a rule as to who are entitled to file an application which would touch upon the substantive rights of parties. The attempted definition under Rule 2(c) is not necessary for the purpose of carrying into effect the provisions of Sections 110 to 110-B of the Act.

35. Further as I already pointed out, if the term 'legal representative' occurring in Section 110-A is to have the same meaning as in Section 2(11) of the Code of Civil Procedure, then the rights of some of the dependents under Section 1-A of the Fatal Accidents Act who may not be persons representing the estate of the deceased, would be affected and they would be out of Court. Surely Sections 110 to 110-F of the Act are not meant to affect the rights of parties under substantive law which is in force. Under all these circumstances, I hold that Rule 2(c) mentioned above is beyond the rule-making power of the State Government.

36. The State of Mysore had made a similar rule as Rule 2(c) of the Madras Motor Accidents Claims Tribunals Rules, 1961. A Division Bench of the Mysore High Court held that that was beyond the powers of the State Government and ultra vires the Act, in M. Ayyappan v. Moktar Singh (1969)3 Mys.L.J. 264 : (1969) A.C.J. 439 : A.I.R. 1970 Mys. 67. In a later case, M. Basavalingiah v. T.P. Papanna (1971) 2 Mys.L.J. 351 : (1971) A.G.J. 404. another Bench of the same High Court seems to hold that the decision of the earlier Bench is not correct and that the definition of the term 'legal representative' occurring in Section 2(11) of the Code of Civil Procedure (which definition is applied to the term in Section 110-A of the Act by the rule in de by the State Government) would take in all the dependants mentioned under Section 1-A of the Fatal Accidents Act. That was a case where the question was whether the father of the deceased can maintain an action for compensation regarding the death of his son when the mother of the deceased is alive. Under Hindu Law, the father is not an heir of the son when the mother is alive. The contention was that the father was not a legal representative as contemplated under Section 110-A of the Act and therefore his claim should be negatived. This contention, if I may say so with respect, was rightly rejected by the Bench of the Mysore High Court. But in doing so, they seem to hold that all the dependants mentioned under Section 1-A of the Fatal Accidents Act would come under the definition of Section 2(11) of the Code of Civil Procedure. With respect, I am unable to agree with that view. As I already pointed out, under Section 2(11) of the Code of Civil Procedure, unless a person represents the estate of the deceased, he cannot be called a legal representative and some of the dependants under Section 1-A of the Fatal Accidents Act need not necessarily be persons who represent the estate of the deceased. In the case before the Mysore High Court, the father was certainly entitled to maintain the claim not because he would necessarily be a legal representative as contemplated under Section 2(11) of the Cede of Civil Procedure but because he is a legal representative under Section 110-A of the Act which is wider in scope than Section 2(11) of the Code of Civil Procedure. I am of the opinion that the decision of the earlier Bench of the Mysore High Court in M. Ayyappan v. Moktar Singh (1969) 2 Mys.L.J. 264 : (1969) A.C.J. 439. A.I.R. 1970 Mys. 67. holding that the rule made by the State Government equating the term 'legal representative' occurring in Section 110-A of the Act with Section 2(11) of the Code of Civil Procedure is beyond the rule-making' power of the State Government and ultra vires the Act, is the correct view. In Kasturi Lal v. Prabhakar (1970) A.G.J. 1. a Division Bench of the Madhya Pradesh High Court held at page 8.

The term 'legal representative' must be construed in the context of the provisions of Section 2(11), Civil Procedure Code, and further also in the context of the provisions of the Fatal Accidents Act.

With respect, I agree with the above observation.

37. One of the contentions raised on behalf of the appellants is that as Section 110-B of the Act speaks of the Tribunal making 'an award determining the amount of compensation which appears to it to be just', the powers of the Tribunal are independent of the provisions of the Fatal Accidents Act (as well as that under the Legal Representatives' Suits Act) and that therefore the provisions of the Act must be construed as substantive provisions and not merely procedural in character. This contention is fallacious. It is true that the Tribunal has to determine 'the amount of compensation which appears to it to be just'. But the question is, compensation for what. If it is a claim by an injured person, he can certainly claim compensation for the pain, suffering, etc. loss of earning, other pecuniary loss arising out of the injury and shortening of expectation of life, if any, provided the injury or injuries had been caused by a tortious act by the owner of the vehicle, by himself or vicariously. So, even though the Claims Tribunal is given power to determine the amount of compensation which appears to be just, it has necessarily to look to the law of torts in determining such 'just' compensation. Similarly, in case of death due to injuries, 'just' compensation awardable by the Tribunal should naturally be only towards loss of benefit, if any, and loss of estate, if any, provided again that the death was caused by a tortious act. Therefore by the mere use of the words 'compensation which appears to it to be just' in Section 110-B, the relevant provisions of the Act (Sections no to 110-F of the Act) cannot be said to create new rights or liabilities. It can never be contended that these provisions in the Act are in any way meant to alter or amend the pre-existing law relating to substantive rights and liabilities of the parties.

38. I think I have said enough to show that Sections 110 to 110-F of the Act are only procedural in character and for substantive rights and liabilities of the parties one has necessarily to look to the law of torts read with the Legal Representatives' Suits Act and the Fatal Accidents Act. The recent amendment of Section 110(1) of the Act itself puts the position beyond the pale of controversy. In the recent amendment (i.e.,) under amending Act LVI of 1969, some new sections have been added, one of which (section 110-CC) gives power to the Claim Tribunal to award simple interest on the amount awarded from the date of the claim application. It cannot be said that that creates any new right and thereby the provisions in the Act become substantive law and not merely procedural in character, for even the civil Court is not incompetent to award such interest.

39. Now I turn to the case law on the point whether Sections 110 to 110-F are only procedural in character or not. In Palani Ammal v. The Safe Service Ltd. (1966) A.G.J. 19. a Division Bench of this Court had to deal with the question as to which is the proper forum in respect of an accident which occurred prior to the constitution of the Claims Tribunal. The Division Bench observed at page 21 :

As we pointed out, section 110 provides a speeder remedy, obviously conceived as a better one from the point of view of the injured person or his unfortunate dependants. No new right or even a new remedy has beer created by that provisions; the forum alone is changed. The right to claim damages by the legal representatives of a deceased in respect of an accident, where the latter met with, his death, was actionable under the pre-existing law, in civil Court. The effect of the new provision is to create a new forum, thus, taking away the jurisdiction of the ordinary civil Court. The aggrieved person has, as before, a remedy for damages in respect of the injury. The forum alone is changed. The period of limitation has also been curtailed, but these two are matters of procedure.

Then at page 22, the Division Bench held that as the above provisions in the Act relate only to procedure, the law prevailing at the time of the institution of the action alone will govern such matters. The conclusion was that even in respect of accidents which occurred prior to the constitution of the Tribunal, only the Tribunal will have exclusive jurisdiction and the jurisdiction of the civil Court is ousted. With respect, I agree with the view expressed by the above Bench.

40. In Kasturi Lal v. Prabhakar (1970) A.C.J. 1. (which was referred to earlier in some other connection), the Madhya Pradesh High Court has followed the above decision of this Court and held that Sections 110 to 110-F of the Act only provide a more expeditious remedy and that they do not create any new rights. In Kamla Devi v. Kishan Chand : AIR1970MP168 as well as Mangilal v. Parasram : AIR1971MP5 . the Madhya Pradesh High Court has taken the same view. The last decision mentioned is by a Full Bench of the Madhya Pradesh High Court. In Shri Ram Pertap v. Punjab Roadways, Ambala A.I.R. 1968 Punj. 540. a similar view has been taken and it has been held that Sections 110 to 110-F merely deal with the subject of the substitution of Motor Accidents Claims Tribunal in place of civil Courts for the purpose of adjudicating on claims for compensation and they do not deal with the question of substantive rights and liabilities of parties. The Mysore High Court has taken a similar view in Ariyamma v. Narasumha (1972) A.G.J. 22. The Orissa High. Court has also taken a similar view in two cases viz., Orissa Co-operative Insurance Society Limited v. Bhagaban Sahu (1971) A.G.J. 49. and The Oriental Fire and General Insurance Co. Limited v. Kamal Kamini Das (1972) A.G.J. 92. In Amarjit Kaur v. Vanguard Insurance Co. Limited (1969) A.G.J. 286. the Delhi High Court has also taken a similar view. P.B. Kader v. Thatchamma : AIR1970Ker241 . is also of the same view.

41. However, there is another line or cases starting from, a Bench decision of this Court taking a different view, Mohammed Habibullah v. Seethammal (1966) A.G.J. 349. is a decision of a Division Bench of this Court dismissing a Letters Patent . Appeal in limine. That is a case where the sister of a person who died in a motor accident claimed compensation. The claim was upheld by Venkatadri, J., Over that, the owner of the vehicle and the insurer thereof filed the Letters Patent Appeal. Ananthanarayanan, G.J., and Ramakrishnan, J., refused to admit the Letters Patent Appeal and dismissed it. While doing so, they have made certain observations which are not in consonance with the view expressed in Palani Ammal v. The Safe Service Limited' (1966) A.G.J. 19. (a decision by a Division Bench of this Court consisting of Ramachandra Iyer, C.J., and Venkatadri, J.) and other cases. The sister of a deceased person is no doubt not a dependant as contemplated under Section 1-A of the Fatal Accidents Act, but still, if she represented the estate of the deceased, she could certainly maintain an action for claim on the ground of loss to the estate of the deceased. Therefore there is nothing wrong in awarding compensation to her towards the death of her brother. The learned Judges concluded at page 350.

The only point was whether the claim could be advanced by the married sister of the deceased who died as bachelor. It can certainly be so advanced, since Section 110-A definitely provides for the foundation of a claim by any legal representative of the victim of the accident.

This conclusion does not go counter to the view expressed by us and in Palani Ammal v. The Safe Service Limited (1966) A.G.J. 19. as well as other cases already referred to. But the learned Judges (Anantanarayanan, C.J., and Ramakrishnan, J.,) in the course of their order dismissing the Letters Patent Appeal in limine, have observed that Sections 110 to 110-F have no connection whatsoever with the Indian Fatal Accidents Act and that they constitute a self-contained code for the adjudication of claims to compensation on behalf of the victims of a motor accident and the Legislature provided a complete machinery for the adjudication of such claims. The learned Judges, however, did not specifically go into the question whether Sections 110 to 100-F of the Act are only procedural in character or whether they lay down substantive law.

42. The decision of the earlier Bench (i.e.) in Palani Ammal v. The Safe Service Limited (1966) A.G.J. 19. does not seem to have been brought to the notice of the learned Judges who decided in Mohammed Habibullah v. Seethammal (1966) A.G.J. 349. It is against the judgment of Venkatadri, J., the Letters Patent Appeal had been filed before Anantanarayanan, C.J., and Ramakrishnan, J., Venkatadri, J., is a party to the decision in Palani Ammal v. The Safe Service Limited (1966) A.G.J. 19. which specifically holds that Sections 110 to 110-F of the Act are only procedural in character and they do not create any new rights or liabilities. Therefore Venkatadri, J., in the judgment which was challenged in the Letters Patent Appeal before Anantanarayanan, G.J. and Ramakrishnan, J., could not have expressed a different view. As I said, even Anantanarayanan, G.J. and Ramakrishnan, J., have not specifically dealt with the question whether the abovesaid sections of the Act are only procedural in character or they constitute substantive law. Anyway, the decision of Anantanarayanan, G.J. and Ramakrishnan, J cannot be treated as a precedent in view of the fact that the judgment was not rendered after full arguments and it was only a dismissal of the Letters Patent Appeal even at the admission stage. The Nagpur High Court had held in Kanglu Baula v. Chief Executive Officer A.I.R. 1955 Nag. 49 . that an argument addressed at motion hearing is rarely full and that a decision given at such a hearing must be held to be one given by the learned Judge per incuriam and that such a decision by a Court per incuriam is not binding as a precedent. In Rex v. Charles Leslic Norman L.R. (1924) 2 K.B. 315. and Nicholas v. Penny L.R. (1950) K.B. 466. it has been held that decisions rendered without hearing both the sides are not entitled to great weight. These decisions have been followed by one of us in Abdul Malik v. Collector of Dhormapuri : (1968)1MLJ9 . Therefore the. decision by Anantanarayanan, C.J., and Ramakrishnan, J. is not a precedent, apart form the fact that the point in question has not been specifically dealt with in that judgment.

43. In Veena Kumari Kohli v. Punjab Roadways (1967) A.G.J. 297. a single Judge of the High Court of Punjab and Haryana observed that in fixing the quantum of compensation in respect of a motor accident, the principles enunciated by the Supreme Court in Gobald Motor Service limited v. R.M.K. Veluswami : [1962]1SCR929 . do not apply on the ground that the claim is not made under the Fatal Accidents Act but only under the provisions of the Motor Vehicles Act. This decision seems to suggest that Sections 110 to 110-F of the Act are not merely procedural in character. The earlier decision of the same High Court, (i.e.) Ram Pratap v. Punjab Roadways . taking the view as I do in this case, has not been considered by the Judge who decided in Veena Kumari Kohli v. Punjab Roadways (1967) A.C.J. 297 Ishwari Devi v. Union of India (1968) A.G.J. 141. W.S. Bahg Singh and Sons v. Om Parkash Kaith (1971) A.G.J. 324. and Ramji Das v. Shorn Singh (1971) A.G.J. 468. are all judgments of the Delhi High Court expressing the contrary view. The first of these three cases has followed the judgment of Anantanarayanan, G.J. and Ramakrishnan, J., (Mohammed Habibullah v. Seethammal (1966) A.G.J. 349. In Domyanti Devi and Ors. v. Sita Devi (1972) A.G.J. 334. the Punjab and Haryana High Court has followed the judgment of Anantanarayanan, G.J. and Ramakrishnan, J., in Mohammed Habibullah v. Seethammal (1966) A.G.J. 349. as well as the decision of the Delhi High Court in Iswari Devi v. Union of India (1968) A.G.J. 141. In these decisions, the view expressed by Ramachandra Iyer, C.J. and Venkatadri, J., in Palani Ammal v. The Safe Service Limited (1966) A.G.J. 19. and the other cases which take a similar view, have not been considered. For the reasons discussed earlier I am unable to follow the view contained in the above decisions.

44. In M.A. Rahim v. Sayari Bai : AIR1973Mad83 . a Division Bench of this Court referred to the decision of Anantanarayanan., C.J. and Ramakrishnan, J., in Mohammed Habibullah v. Seethammal (1966) A.G.J. 349. with approval. The decisior of the earlier Bench of this Court viz., that of Ramachandra Iyer, C.J. and Venkatadri, J., in Palani Ammal v. The Safe Service Limited (1966) A.G.J. 19. does not seem to have been brought to the notice of the learned Judges. The amendment to Section 110(1) of the Act made by Act LVI of 1969 which, as I said earlier, strengthens the view that Sections 110 to 110-F of the Act are only procedural in character and have nothing to do with the substantive rights and liabilities of parties, also dots not seem to have been brought to the notice of the learned Judges.

45. That apart, this Division Bench though has stated that Sections 110 to 110-F of the Act are self-contained and exhaustive, has not held that they create new rights or liabilities. The claimant in the case before the Division Bench is the mother of the victim who would be entitled to claim loss of benefit under Section 1-A of the Fatal Accidents Act as well as loss to the estate of the deceased as a person representing his estate. Therefore the only question before the Division Bench was regarding the principles which are to be applied in determining the quantum. The learned Judges said in respect of the determination of the quantum that the decisions rendered under the general law of tort and under the Fatal Accidents Act will undoubtedly be relevant and constitute broad guidelines, but they would not be binding on the Tribunal in the sense that the method of approach should be the same and identical as in the cases arising under the Fatal Accidents Act. I am of the view that the latter part of the above observations of the learned Judges who decided M.A. Hakim v. Sayari Bai : AIR1973Mad83 . would not have been made if the decision of the earlier Bench in Palani Ammal v. The Safe Service Limited (1966) A.G.J. 19. and the amendment to Section 110(1) of the Act made by the amending Act LVI of 1969 had been brought to their notice.

46. The only other decision which has to be referred to in this connection is Chinnaponnu Ammal v. T.N. Mooka Pillai (1968) A.G.J. 24. which is one by a single Judge of this Court. That was a case where the sister of a person who died in a motor accident claimed compensation.

47. The Motor Accidents Claims Tribunal dismissed the claim on the ground that the sister is not a dependant as contemplated under Section 1-A of the Fatal Accidents Act. The appeal filed by the sister was allowed. The sister, as a person representing the estate of her deceased brother, would certainly be entitled to claim compensation for loss to the estate of the deceased. But surely she would not be entitled to claim loss of benefit to herself because she is not a dependant under Section 1-A of the Fatal Accidents Act. In allowing the appeal, the learned Judge has observed that the Motor Vehicles Act, 1939, is a special enactment and that it excludes the general enactment, viz., the Fatal Accidents Act, 1855. This observation cannot be held to be good law. If the claim is towards loss of benefit, it should necessarily be under the Fatal Accidents Act and without invoking the provisions therein there is no scope for awarding compensation for loss of benefit.

48. The resulting position form the above discussion is that in respect of applications under Section 110-A of the Act for the death of a person in a motor accident, the claimants must prove that the accident amounted to a tortious act and if that is proved, compensation can be awarded for loss of benefit to the claimants if they are dependents as contemplated under the provisions of the Fatal Accidents Act and compensation can also be awarded towards loss to the estate of the deceased, whether the claimants are dependants under the Fatal Accidents Act or not.

49. It is unnecessary to deal with the principles that would govern the assessment of the quantum of compensation towards loss of benefit in this case because the claimants (appellants before us) are not dependants of the deceased as contemplated under Sections 1-A and 4 of the Fatal Accidents Act. However, I may mention that it is settled law that while fixing the quantum of compensation towards loss of benefit, any pecuniary advantage received by the claimants upon the death of the deceased should also be taken into consideration and compensation awarded towards loss to the estate of the deceased would also be such pecuniary advantage which should be taken into consideration in assessing the quantum towards loss of benefit. If there is pecuniary advantage to the claimants, that should go in reduction of the quantum of compensation awarded towards loss of benefit.

50. Any one who represents the estate of the deceased would be entitled to claim compensation towards loss to the estate. Such person who represents the estate need not necesarily be the heir of the deceased. But in this case the claimants being the brothers and sister of the deceased who was a bachelor and he having left no parents are his nearest heirs, they are undoubtedly entitled to claim loss to the estate of the deceased.

51. There can be no dispute that under the head 'loss to the estate of the deceased' (which at times is called 'loss of estate'), damages towards pain and suffering, loss of earnings and other damages actually suffered by the victim between the date of the accident and the moment of death, damages towards loss of personal property and damages for loss of expectation of life may be awarded (vide Halsbury's Laws of England, Volume 28, page 100). If a person who is injured lives for sometime but later succumbs to the injuries sustained in the accident, a person who represents the estate of the deceased can claim damages for the pain and suffering of the deceased as well as loss of earnings and other damages actually suffered by the victim between the date of the accident and the date of death. But in the present case, the man was killed instantaneously. Therefore there was no pain and suffering to the deceased or any loss of earning from the time of accident till the time of death. There is also nothing to show that the deceased suffered any other damages due to the accident. Therefore the only ground on which compensation can be claimed under the head 'loss to the estate of the deceased' is loss of expectation of life. What exactly is loss of expectation of life, is the question. As the law of torts is not governed by any statute, Courts in our country follow the principles laid down by the Courts in England. The earliest case which recognised damage towards loss of expectation of life is Flint v. Lovell (1935) 1 K.B. 354. That was a case not of death of the victim but only a case of injury to the victim. The Court of Appeal decided that the injured in that case, whose expectation of life had been diminished by reason of his injuries, was entitled to be compensated in damages for loss of expectation of life. The injured in that case was a man aged 61 years at the date of the accident. It was found as a matter of fact, by the trial Judge that in spite of old age, the injured had been in good health and good condition and, in the ordinary course of events, could expect to have lived for at least a further 8 or 9 years. The trial Court found that as a result of the injuries, his expectation of life : had been very materially shortened. There was a compendious award of 4,000 towards pain and suffering, physical disabilities and loss of expectation of life. Damages for loss of expectation had not been separately indicated. In Rase v. Ford (1937) A.G. 326. the House of Lords ' held that damages for loss of expectation of life could be recovered on behalf of the deceased's estate in an action under the Law Reform (Miscellaneous Provisions) Act, 1934. Flint v. Lovell (1935) 1 K.B. 354. is referred to by the House of Lords and they held that the principle laid down in that case, viz., that damages can be claimed for loss of expectation of life, is not confined to the case where the injured person is alive at the date of the action and therefore the said damages can be claimed by the representative of the estate of the deceased as part of loss to the estate, as a cause of action which entitled the injured to sue for loss of expectation of life survived to the person representing the estate of the injured who died, under the Law Reform (Miscellaneous Provisions) Act, 1934. In Benham v. Gambling (1941) A.G. 157. the House of Lords explained the measure of damages for loss of expectation of life.

52. It is pointed out that damages given for shortening of life (loss of expectation of life) should not be calculated solely, or even mainly, on the basis of the length of life that is lost but they should be fixed at a reasonable figure for the loss of a measure of prospective happiness. It is also pointed out that if the character or habits of the deceased are calculated to head him to a future of unhappiness or despondency, that would be a circumstance justifying a smaller award. It is further pointed out that damage under this ground viz., loss of expectation of life, is not on the basis of loss of future pecuniary prospects but it is only for the loss of a measure of prospective happiness. In the case before the House of Lords, the victim was an infant child of 21/2 years and the father of the child who died in the accident claimed compensation for loss of expectation of life. The House of Lords reduced the award from 1,200 to 200 only. At page 166, Viscount Simon, L.C. spoke.

The question thus resolves itself into that of fixing a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness. Such a problem might seem more suitable for discussion in an essay on Aristotelian Ethics than in the judgment of a Court of law, but in view of the earlier authorities, we must do our best to contribute to its solution. The learned Judge observed that the earlier decisions quoted to him assumed 'that human life is, on the whole, good'. I would rather say that, before damages are awarded in respect of the shortened life of a given individual under this head, it is necessary for the Court to be satisfied that the circumstances of the individual life were calculated to lead, on balance, to a positive measure of happiness, of which the victim has been deprived by the defendant's negligence. If the character or habits of the individual were calculated to lead him to a future of unhappiness or despondency, that would be a circumstance justifying a smaller award. It is significant that, at any rate in one case we were informed, the jury refused to award any damages under this head at all. As Lord Wright said in Rose v. Ford (1937 A.G. 826. special cases suggest themselves where the termination of a life of constant pain and suffering cannot be regarded as inflicting injury, or at any rate as inflicting the same injury as in more normal cases. I would further lay it down that, in assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not of loss of future pecuniary prospects.

In rorkshire Electricity Board v. Naylor (1968) A.G. 529. the claim was towards loss of expectation of life claimed by the mother of a victim who was aged 20 years and 4 months on the date of accident. The principles stated in Benham v. Gambling (1941) A.G. 157. were reaffirmed and the House of Lords said that only moderate figures should be chosen towards damages on this ground, viz., 1. loss of expectation of life. Burns v. Edman (1970) 2 Q.B. 541. is a case where the wife of a person who was killed in an accident claimed damages for loss of expectation of life. The deceased in that case had been leading the life of a criminal. It Was pointed out that since the Court was entitled to take judicial notice of the fact that the life of a criminal was not a happy one, damages for loss of expectation of life, which in reality were damages for loss of the element of happiness in life, should be assessed only at half of the maximum sum usually awarded. Thus it would be clear that on the ground of loss of expectation of life, compensation is to be assessed only for the loss of future happiness and such assessment should be of a moderate amount. If there are materials to show that the victim would not have led a happy life if he had not been killed in the accident, the assessment of compensation for loss of expectation of life has to be lower than in normal cases. Loss of expectation of life has nothing to do with loss of earnings during the period in which the deceased would have lived but for the accident. In Road Accident by D.W. Eliot and Harry Street, at page 208 the grounds on which loss to the estate of the deceaed can be claimed are summarised thus :

The estate can claim damages for the loss of earnings, pain and suffering and other damage actually suffered by the victim between the date of the accident and the moment of death. The House of Lords held in one case that the estate could recover for the loss of future happiness of the victim, but Viscount Simon was soon to persuade his fellow Law Lords that this claim should be strictly contained : the result is that no more than 500 or so is recoverable by the estate for this...The estate cannot claim for loss of earnings in the period during which the victim would otherwise have lived; there is no claim for future loss of amenities or limbs and the like. These last denials do not rest on express statutory provisions; it is merely that the Courts in practice will not countenance those claims.

Charlesworth on Negligence, 4th Edn., at page 571, paragraph 1236, says that loss of the wages that the deceased would have earned during the years by which his life has been reduced are to be disregarded while assessing the loss of expectation of life. I would quote the relevant passage :

In assessing damages under this head, regard must be had to the injured party's normal expectation of life and not to his expectation of life in his injured condition, or to the fact that his injuries are such that he does not want his life to be prolonged or does not know it has been shortened. Loss of the wages he would have earned during the years by which his life has been reduced are to be disregarded. 'The only relevance of earnings which would have been earned after death is that they are an item of damages for loss of expectation of life, in the sense that they are one of the minor elements which indicate that a person earning a reasonable livelihood is more likely to have an enjoyable life.' Nothing can be awarded for loss of prospects of making provisions for dependants.

In T.V. Gnanavelu and Anr. v. D.P. Kannayya and Ors. A.A.O. No. 35 of 1965. Ismail, J., had to deal with a case where loss of expectation of life had to be assessed in respect of a man aged 60 who was killed in a motor accident. The deceased was a retired Junior Superintendent of the Hindu Religious and Charitable Endowments Department and be was drawing a pension of only Rs. 35.15 per month. There was no prospect of his earning anything more in the years to come and there was no question of his saving anything out of it. But his sons, whom he had educated earlier, were fairly well-placed in life. It was also in evidence that the deceased though aged 60, was keeping good health. Considering these facts, Ismail, J., held that the deceased could have expect d to be looked after well and maintained comfortably by his sons and that therefore by his death there was loss of prospective happiness to the deceased that the assessment of the same at Rs. 4,000 was not so excessive that called for interference and that the same could be claimed as part of loss to the estate of the deceased.

53. On behalf of the appellants it cannot be contended that money which the deceased would have earned in future but for his death in the accident and the possible savings therefrom should also be taken as part of loss to the estate of the deceased. Such future earnings have nothing to do with loss of expectation of life except perhaps that the possible future earnings would be an element only for the purpose of finding out whether the man's life would have been happy if he had lived. The illustration given by the Supreme Court in Cobald Motor Service Limited v. R.M.K. Veluswami : [1962]1SCR929 cannot be construed as a proposition of law to the effect that loss of future earnings of the deceased would be part of loss to the estate claimable by the legal representatives of the deceased. The case before their Lordships of the Supreme Court was one in which a sum of Rs. 25,200 had been awarded to the claimants towards loss of benefit and a sum of Rs. 5,000 had been awarded towards loss to the estate. The question that was argued before their Lorships of the Supreme Court was as to whether the sum of Rs. 5,000 awarded towards loss to the estate is a duplication and therefore it should go in reduction of the sum of Rs. 25,000 odd awarded for loss of benefit. Their Lordships at page 8, paragraph 13 concluded :

In the instant, case under Section 1 of the Act both the Courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200. This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them. Under Section 2 both the Courts awarded damages for the loss to the estate in a sum of Rs. 5,000. That figure represents the damages for the mental agony, suffering and loss of expectation of life. There was no duplication in awarding damages under both the heads.

Their Lordships of the Supreme Court stress the fact that the right of action in respect of compensation for loss of benefit and that towards loss to the estate are quite distinct and independent and that there was nothing wrong in awarding compensation under both the heads even though the claimants may be the same. However there can be no dispute that any sum paid to a dependant of the deceased (who is entitled to compensation towards loss of benefit) as compensation for loss to the estate would be a pecuniary advantage to him. But for the death of the deceased, there would be no occasion for the said dependant to receive compenation towards loss to the estate as a person representing the estate of the deceased. There can also be no dispute that any pecuniary advantage, including that by way of compensation for loss to the estate, should be taken into consideration in assessing the quantum of compensation payable for loss of benefit. Their Lordships of the Supreme Court do recognise this, for they quote with approval Rose v. Ford (1937) A.G. 826. and Ors. cases of the Courts in England which make it clear that when the claimant under both the heads is the same, the sum awarded towards loss to the estate should go in reduction of compensation for loss of benefit. It is true that the Supreme Court upheld the award of Rs. 25,200 for loss of benefit in spite of the fact that Rs. 5,000 had been awarded under the other head, but there is nothing to show that in that case the trial Court in fixing the quantum of compensation towards loss of benefit had not taken into consideration the award under the other head. A sum of Rs. 25,200 had been fixed as the compensation for loss of benefit in that case and that works out only to about 8 years' purchase of the annual dependency. Considering the age of the deceased, his earnings, the benefits that the dependants would have got and other circumstances, it is quite possible that the trial Court would have fixed the compensation for loss of benefit at a higher amount but for the fact that a sum of Rs. 5,000 was being awarded towards loss to the estate. Only under such circumstances it has been held that there was no ground to reduce the sum of Rs. 25,200 awarded towards loss of benefit on the alleged ground that there was duplication in awarding damages. We are, however, not concerned with this aspect of the matter in the present case.

54. It is while discussing the point that the compensation awarded under the two heads, viz., one for loss of benefit and the other towards loss to the estate, are two independent claims, their Lordships of the Supreme Court have referred to what is loss to the estate. It is pointed out that loss of expectation of life is part of loss to the estate which was recoverable under Section 2 of the Fatal Accidents Act. In the concluding paragraph which I have quoted above, their Lordships have indicated what would constitute loss to the estate. It is stated that damages for mental agony and suffering and loss of expectation of life would be part of loss to the estate. In the above concluding paragraph, their Lordships have not stated that the expected future earnings of a deceased person or the possible savings therefrom would be part of loss to the estate. It cannot also be said that their Lordships were of the view that loss of expectation of life would include the expected future earnings of the deceased. It was already noticed that loss of expectation of life is nothing but loss of the element of prospective happiness. Rose v. Ford (1937) A.G. 826. referred to by us earlier and some other decisions of the Courts in England have been referred to by their Lordships of the Supreme Court with approval, though for the other aspect, viz., that the two heads of claim are independent of each other but when the claimant is the same, the amount awarded towards loss to the estate should go in reduction of compensation for loss of benefit. Those decisions make it abundantly clear that loss of expectation of life is only loss of prospective happiness. The illustration in the decision of the Supreme Court was not for showing what is loss to the estate, for the question that was under consideration by their Lordships was not as to what was loss of estate or what is loss of expectation of life. The question that was argued before them was that the sum of Rs. 5,000 awarded towards loss to the estate should go in reduction of the sum of Rs. 25,200 awarded towards, loss of benefit. Nowhere in the judgment of the Supreme Court there is any observation that the expected future earnings of the deceased or the savings there form is, part of 'loss of expectation of life,' or any other item of loss to the estate. Under all these circumstances, the illustration, cannot be understood as saying that the possible future earnings of the deceased or savings therefrom, are to be calculated as part of loss to the estate.

55. I have already said that in the present case the deceased did not undergo any pain or suffering as he had been killed instantaneously. So on the head of loss to the estate of the deceased, the only ground on which compensation can be awarded in this case is loss of expectation of life, viz., loss of prospective happiness. The deceased was a young man and a manual labourer. But for the accident he can be expected to have a happy life as happiness does not depend upon wealth or status. If the deceased had not been killed but only crippled and thereby there was shortening of his life, he himself would have been entitled to claim compensation for loss of expectation of life. He having been killed, his legal representatives are entitled to claim the said compensation as part of the estate of the deceased. I think that a sum of rupees five thousand would be a proper assessment of compensation on this ground.

56. Accordingly, the appeal is allowed to the extent that there will be an award in favour of the appellants (claimants before the Tribunal below) for rupees five thousand, which sum is payable by the 2nd respondent the insurance company, within a month from this date. There will be no order as to costs.

Kailasam, J.--The facts of the case have been fully set out by nay learned brother and need not be reiterated. The questions that arise in this Civil Miscellaneous Appeal are whether the accident was due to the negligence on the part of the driver of the lorry and whether the claimants who are the brothers and sisters of the person who was killed in the accident are persons entitled to compensation under Section 110-A of the Motor Vehicles Act. I have no hesitation in concurring with the finding of my learned brother that the driver of the lorry was guilty of negligence. Regarding the question whether the brothers and the sisters of the deceased are entitled to claim compensation, there could be no difficulty in holding that they are entitled to compensation towards loss of estate of the deceased; but not as claimants under Section 1-A of the Indian Fatal Accidents Act, 1855 (VIII of 1855)

58. It has been held by this Court in Palani Ammal v. The Safe Service Limited (1966) A.G.J. 19. that Sections 110-A to 110-F do not create any new right or even a new remedy; but the forum alone had been changed. The case law on this subject has been fully discussed by my learned brother and I agree with the preponderance of judicial opinion and the conclusion arrived at by my learned brother that the provisions in Sections 110-A to 110-F of the Motor Vehicles Act, are only procedural and do not purport to confer any substantial right or liability on the parties.

59. I agree with the conclusion of my learned brother that all persons who are entitled to make an application for compensation under Section 110-A of the Motor Vehicles Act. will be legal representatives of the deceased within the meaning of the said section; but I am unable to associate myself with the view that the definition of the term 'legal representative' in Section 2(11) of the Code of Civil Procedure, would not include all persons who are entitled to apply for compensation under Section 110-A of the Motor Vehicles Act, and that Rule 2(c) of the Madras Motor Accidents Claims Tribunals Rules, 1961, which provides that the term 'legal representative' shall have the meaning assigned to it under Clause (11) of Section 2 of. the Code of Civil Procedure, is ultra vires the rule-making powers of the Government. On our conclusion that all claimants under Section 110-A of the Motor Vehicles Act, are legal representatives of the deceased and are entitled to compensation as provided for under Section 11 o-B, strictly the question as to whether, in view of the scope of the definition of the term 'legal representative' in Section 2(11) of the Code of Civil Procedure, Rule 2(c) of the Motor Accidents Claims Tribunals Rules, 1961, is ultra vires or not does not arise in this case. But as the question had been discussed at some length by my learned brother, I would indicate my opinion briefly.

60. The term 'legal representative' was not defined under the old Code. Under the English law, the primary meaning of the expression is 'executor or administrator' though it may, under special circumstances be controlled by the context. In Indian law while in earlier cases a strict meaning was given to the expression 'legal representative', subsequently the term was construed to cover all persons representing the estate of the deceased person. Under the old Code, a strict meaning was given to the term 'legal representative' as in the English law. In Dinamoni Chaudhurani v. Elahedut Khan (1904) 8 C.W.N. 843. the scope of the term 'legal representative' is discussed. Brett J., in repelling the contention that the term should be construed strictly and cannot include anybody except the heir, executor or administrator of the deceased as the term and the definition were taken from English law and that when the Legislature used the term 'legal representative' in the section and not the word 'representative' it must have intended to use it in the strict sense, observed, that the section appears to have been drawn for the protection of the decree-holders and to give them a right to relief against the successor in property or estate of the deceased judgment-debtor. The learned Judge held that the term 'legal representative' appears to have been used as one which would cover ordinary cases of succession. After discussing the case law on the point, the learned Judge held that both in English and Indian law cases have arisen in which the erm 'legal representative has no' been strictly confined to its primary meaning. It was held that the term 'legal representative' has been used in Section 234, Code of Civil Procedure, to meet the circumstances of a certain event, viz., the passing of the property, the subject of the litigation, on the death of the deceased judgment-debtor to her successor and to include such successor either to her estate or to the property in suit. It was further held that it should not be so strictly interpreted as to defeat the rights of, of a decree-holder in an exceptional case for which the Legislature could not have been expected to have otherwise specially provided. Woodroffe, J., observing that in their strictest and most ordinary sense the words 'legal representatives' are understood to mean executors and administrators only, held that the term is yet one which is naturally capable of a more extended sense than that in which it is ordinarily and strictly employed. The definition has also been extended to the case of a person who without title as administrator, executor, heir, revensioner or surviving coparcener is the de facto possessor of the estate of the deceased Hindu it having been held that he must be treated for some purposes as his representative and that a judgment obtained against such a representative is not a mere nullity. After an elaborate review of the authorities, the learned Judge summed up the position thus :--

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 now 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.

The definition of the term 'legal representative' in Section 2(11) of the Code of Civil Procedure, is too wide and the Legislature has in fact given effect to the views expressed in Dinamoni Chaudhurani v. Elahadut Khan (1904) 8 G.W.N. 843. and introduced the present definition of the term 'legal representative' in Section 2(11) of the Code of Civil Procedure which reads as follows :--

'Legal representative' means a person who in law represents the estate of a deceased person and includes any person who intermeddless 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.

According to the present definition, the term 'legal representative' is very wide in its amplitude and covers all persons who in law represent the estate of the deceased person. The words executor, administrator, etc., are all omitted and what is now required is that the person must in law represent the estate of the deceased person.

61. In Shwe Mya v. Mating Ho Hnaung (1923) 44 M.L.J. 732 : 49 I.A. 395 : A.I.R. 1922 P.G. 359. the word 'representative' Was held to be a term of ambiguous meaning and it must be construed according to its context. In Stroud's Judicial Dictionary, it is stated that the meaning of the term ' representative', ' legal representative', ' personal representative' or ' legal personal representative' may be controlled by the context.

62. In Andhra Bank Limited v. Srinivasan : [1962]3SCR391 . the Supreme Court after quoting with approval a passage from the judgment of Woodroffe, J referred to supra, held that a legatee who obtains only a part of the estate of the deceased under a will can be said to represent his estate under Section 2(11) of the Code of Civil Procedure. The Court held that the whole object of widening the scope of the expression 'legal representative' which the present definition is intended to achieve would be frustrated if it is held that legatees of different portions of the estate of a deceased do not fall within its purview. Thus, it is settled law that any person who becomes entitled to a part of the estate can be held to represent the estate and thereby a legal representative of the deceased.

63. The point that arises is whether a person who claims compensation on the death of a person, is a person who in law represents the estate of the deceased person.

64. Section 1-A of the Fatal Accidents Act, 1855, provides that a suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong is maintainable. The section provides that such a suit shall be for the benefit of the wife, husband, parent or child, if any, of the person whose death has been caused and it shall be brought by and in the name of the executor, administrator or representative of the person deceased. In such an action, the Court will award damages in proportion to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought. The amount shall be divided amongst the parties mentioned in such shares as the Court by its judgment or decree shall direct. Section 2 provides that not more than one action or suit shall be brought in respect of the same subject-matter of complaint and that in any such suit or action, 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. Reading Sections 1-A and 2 of the Act as a whole, it appears that the scheme of the Act is for the administrator, executor or representative of the deceased to file a suit for the benefit of the dependants, and in such a suit to include a claim for any pecuniary loss to the estate of the deceased. Prima facie, the Act does not contemplate a suit by everyone of the dependants, but only a suit on behalf of the dependants by the executor, administrator or representative of the deceased.

65. The scope of Sections 1-A and 2 of the Fatal Accidents Act 1855, came up for consideration in Johnson v. The Madras Railway Co. I.L.R. (1905) Mad. 479 : 15 M.L.J. 363. The learned Judges in summing up the provisions of Sections 1-A and 2 of the Act observed as follows :--

In cases where the deceased is represented by an executor or an administrator such an executor or administrator is given the power to sue for the compensation for the benefit of the specified relations. Where there is no executor or administrator or where there is one, and he fails, or is unwilling to sue, then in our opinion the suit may be instituted by, and in the name of, the representative of the person. deceased. But one suit only is allowed to enforce the claims of all the persons beneficially entitled, it being provided that the rights of each and every one of them shall be adjudged and adjusted by the Court in such suit. The right of each beneficiary is only to receive compensation in proportion to the loss occasioned to him by the death of his deceased relative.

Regarding the term 'representative' of the deceased, the Court held that there was no reason for limiting the meaning of the word in a narrow way and found that the word meant and included all or any one of the persons for whose benefit a suit under the Act can be maintained, and that these persons are the representatives of the deceased in the sense that they are the persons taking the place of the deceased in obtaining reparation for the wrong done. This decision is an authority for the proposition that the word 'representative' of the deceased in Act XIII of 1855, would include any person who takes the place of the deceased for obtaining reparation for the wrong done. To be a 'legal representative' under Section 2(11) of the Code of Civil Procedure, a person in law must represent the estate of the deceased person. When a person is taking the place of the deceased as his representative, it would follow that he represents also the estate of the deceased. The extended meaning given to the word 'representative' of the deceased in Johnson v. The Madras Railway. Co. I.L.R. (1905) Mad. 479 : 15 M.L.J. 363. especially when the procedure contemplated under the Act enabled the executor, administrator or representative of the deceased to file a suit on behalf of the dependants and others, with equal force, will apply to the term 'legal representative', and the persons taking the place of the deceased for obtaining reparation for the wrong done will not only be representatives for the purpose of the Act (XIII of 1855), but also under Section 2(11) of the Code of Civil Procedure. It would be too narrow a construction that though the persons taking the place of the deceased are representatives of the deceased, they are not the representatives of the deceased's estate. The observation in Johnson v. The Madras Railway Co. I.L.R. (1906) Mad. 473 : 15 M.L.J. 363. is that the term representative would apply to any person taking the place of the deceased in a suit under Act XIII of 1855 which would include a claim for the benefit to the estate also. It follows therefore that the definition of the term 'legal representative' in the context is wide enough to cover all persons who can maintain a claim for compensation taking the place of the deceased person. The extended meaning of the word 'representative' under Act XIII of 1855 has been given following Johnson v. The Madras Railway Company I.L.R. (1906) Mad. 473 : 15 M.L.J. 363. in later cases like Mrs. R.V. Penheiro v. M. Minney : AIR1934Cal655 .

66. Under Sections 110-A to 110-F of the amended Motor Vehicles Act, the procedure has been made simpler and a suit by the executor, administrator or representative of the deceased on behalf of the claimants has been dispensed with and all the persons entitled to compensation are enabled to maintain an application under Section 110-A, thereby giving effect to the extended meaning of the word 'representative' in Section 1-A of the Fatal Accidents Act rendered in Johnson v. The Madras Railway Co. I.L.R.(1906) Mad. 473 : 15 M.L.J. 363. In the circumstances, the term 'legal representative' can be construed as including all claimants under Section 110-A of the Motor Vehicles Act.

67. The only other point that needs reference is the scope of the words 'loss of benefit to the estate'. This question has been fully dealt with by my learned brother and I do not want to add anything more except to state that taking all the circumstances, it does not appear that the Supreme Court by its illustration given in Gobald Motor Service v. Veluswami : [1962]1SCR929 . intended to lay down that loss of future earning of the deceased would be part of loss to the estate claimable by the legal representatives, making a complete departure from the established law in England. As in this case the question does not arise, as the deceased who was a labourer would not have accumulated any earnings for future during his life time, the petitioners would not be entitled to any increase in the compensation awarded to them on the ground of likely loss of future earnings or savings therefrom occasioned to the estate of the deceased.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //