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2012 DIGILAW 208 (RAJ)

LR’s of Surja Ram @ Surjan v. Satpal

2012-01-24

VINEET KOTHARI

body2012
JUDGMENT 1. - The petitioners-defendants, who are the legal representatives of deceased-Daulat Ram. are aggrieved by the order dated 18.4.2009 passed by learned trial Court in a suit for damages under the Fatal Accidents Act, 1855 (for brevity, hereinafter referred to as 'Act of 1855'), in which three preliminary issues being Issues No. 3 to 5 have been decided against the defendant by the learned trial Court. 2. Learned counsel for the petitioners, Mr. Ramandeep Singh Sidhu submitted that the present suit filed by the legal representatives of deceased defendant-Daulat Ram, who died on 7.6.1996, namely, Satpal and others, which was filed after nine years of the death in the year 2005 viz. Suit No. 58/2005, was not only barred by limitation but no relief under the Act of 1855 could be granted in favour of plaintiffs because Surja Ram, the person alleged to have killed Daulat Ram had himself died in the year 2008; and, therefore, the suit could not be proceeded against the legal representatives of said Surja Ram @ Surjan. He, therefore, submitted that the Issues No. 3 and 5 particularly have been decided against the defendant wrongly, hence, the present revision petition. In support of contentions, learned counsel for the petitioners relied upon a decision of Punjab and Haryana High Court in the case of Pratap Singh v. Gurdial Kaur & Anr. reported in AIR 1999 Punjab and Haryana 86 , in which the learned Single Judge of Punjab and Haryana High Couit has held as under: "In cases where actions are brought arising out of an accident resulting in death, the wrong done is not strictly the death; the wrong done which gives rise to the cause of action is injury which may or may not sooner or later result in death. A person who is still alive can always and has been able to bring an action in such circumstances and in the event of death of such a person, the right of that person to seek damages for the injury caused to him has been given to his dependents under the Fatal Accidents Act. The right of the person, who sustained the injury which ultimately resulted in his death, is independent of the right of his dependents for the personal loss suffered by the dependents. The right of the person, who sustained the injury which ultimately resulted in his death, is independent of the right of his dependents for the personal loss suffered by the dependents. The provisions of the Indian Fatal Accidents Act, 1855 are supplemental in addition to the rights of the plaintiff to claim damages under the ordinary civil law. The provisions of the Indian Fatal Accidents Act are not applicable to the present case as the plaintiff has not brought any action under the Fatal Accidents Act. It is a suit claiming damages for the intentional killing of the husband of the plaintiff by the defendants. It is not a case of any accidental death due to the wrongful act, neglect or default on the part of the 1st defendant-appellant. The death of the husband of the plaintiff was homicidal, but not accident." 3. On the other hand, Mr. Mohit Vyas, learned counsel for the respondents-plaintiffs relying upon the judgment of the Hon'ble Supreme Court in the case of Saha Singh & Anr. v. Davinder Kaur & Anr. reported in 2011(4) RLW 2785 and Division Bench decision of Kerala High Court in the case of Francis & Ors. v. Jess & Anr. reported in 2005(2) Civil Court Cases 172 (Kerala) submitted that the learned trial Court was justified in holding the present suit to be within limitation since the plaintiffs were minor on the date of fatal accident i.e. on 7.6.1996; and as soon as Satpat, the eldest son of the deceased became major, within one year thereof, the present suit for damages was filed, whereas the limitation is three years. He further submitted that as per Section 6 of the said Act, limitation is three years start in his case when he attained the majority on 12.7.2004 and, therefore, the suit filed on 15.7.2005 was clearly within limitation. He also submitted that as per the Hon'ble Supreme Court decision even if accused defendant is convicted under Section 304 Part-I of I.P.C. for causing death, the suit under the Act of 1855 is maintainable and the Division Bench of the Kerala High Court has held that on the death of defendant, his legal heirs are liable to the extent of estate of the deceased to pay such compensation under the said Act. 4. 4. The Hon'ble Supreme Court in the case of Suba Singh (supra) while expressing their anguish over the antiquated law, namely, Fatal Accidents Act, 1855, recommended the Union Government to bring a comprehensive and contemporaneous legislation on the subject in paras 20 and 21 of the said decision. More so, while negativing the contention of the defendant that it would amount to double jeopardizes if the defendant was to proceeded under the Act of 1855 inspite of there being a provision in Section 357 of the Code of Criminal Procedure for award of similar compensation to the victim or his legal representatives. The relevant para 10 of the judgment along-with paras 16, 20 and 21 of the said judgment are reproduced hereunder for ready reference. : "10. The rule against double jeopardy is contained in sub-article (2) of Article 20 of the Constitution of India which mandates that "no person shall be prosecuted and punished for the same offence more than once". Now, it is elementary that an action for civil damages is not prosecution and a decree of damages is not a punishment. The rule of double jeopardy, therefore, has no application to this case. 16. We are constrained to observe that a suit for damages for murder of a person, like the present one, is filed under the Fatal Accidents Act, 1855. As the year of its enactment shows the Act dates back to the period when the greater part of the country was under the control of the East India Company with the last Mughal "Emperor", Bahadur Shah Zafar as the ineffective, though, titular monarch on the throne of Delhi. 20. It is a matter of grave concern that such sensitive matters like payment of compensation and damages for death resulting from a wrongful or negligent act are governed by a law which is more than one and a half centuries old. Twenty one years ago a Constitution Bench of this Court in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 , a case arising from the Bhopal Gas Tragedy, had taken note of this antiquated law and in paragraph 168 made the following observations: "168. While it may be a matter for scientists and technicians to find solutions to avoid such large scale disasters, the law must provide an effective and speedy remedy to the victims of such torts. While it may be a matter for scientists and technicians to find solutions to avoid such large scale disasters, the law must provide an effective and speedy remedy to the victims of such torts. The Fatal Accidents Act, on account of its limited and restrictive application, is hardly suited to meet such a challenge. We are, therefore, of the opinion that the old antiquated Act should be drastically amended or fresh legislation should be enacted which should, inter alia, contain appropriate provisions in regard to the following matters : (i) The payment of a fixed minimum compensation on a "no fault liability" basis (as under the Motor Vehicles Act), pending final adjudication of the claims by a prescribed forum; (ii) The creation of a special forum with specific power to grant interim relief in appropriate cases; (iii) The evolution of a procedure to be followed by such forum which will be conducive to the expeditious determination of claims and avoid the high degree of formalism that attaches to proceedings in regular Courts; and (iv) A provision requiring industries and concerns engaged in hazardous activities to take out compulsory insurance against third party risks." (Emphasis supplied) 21. It is unfortunate that the observations of the Supreme Court have so far gone completely unheeded. We hope and trust that the Union Government would at least now take note of the urgent need to bring a contemporaneous and comprehensive legislation on the subject and proceed to act in the matter without any further delay." 5. The Division Bench of Kerala High Court in the case of Francis & Ors. (supra) also negativated the applicability of common law maxim 'actio personalis moritur cum persona', and similar contention is being raised by the counsel for the defendant in the present case also in following terms in para 14 of the judgment and ruled out the applicability of such maxim to the provisions of Fatal Accidents Act, 1855. The relevant paras 14 and 15 of the said judgment are reproduced hereunder for ready reference : "14. Points Nos. 2 and 3 : The liability as per Fatal Accidents Act, 1855 is not open to dispute. The counsel for the appellants/defendants has raised a feeble contention on the basis of the common law maxim 'actio personalis moritur cum persona' (a personal right of action dies with the person). Points Nos. 2 and 3 : The liability as per Fatal Accidents Act, 1855 is not open to dispute. The counsel for the appellants/defendants has raised a feeble contention on the basis of the common law maxim 'actio personalis moritur cum persona' (a personal right of action dies with the person). The contention is absolutely meritless in view of Section 1-A of the Fatal Accidents Act, 1855 which specifically rules out the application of the above maxim in the cases of this nature. It is made clear that civil liability will be fastened on any person who committed the wrongful act or actively aided or abetted its commission and thereby took part directly in committing it. The Division Bench of this Court in Madan Gopal v. Dr. Rugmini, 1988(2) KLT 4412 has well construed the law on the point. The Kerala Torts (Miscellaneous Provisions) Act, 1976, also makes it clear that on the death of any person, all causes of action subsisting against or vested in him shall survive for the benefit of his estate. The lower Court has considered the testimony of PWs-1, 8,2, 3 and 5 as well as that of DW-1 to the contra that the annual income of the deceased who was aged only 28 at the time of death, would come to Rs. 800/- per month. Of course, the appellants/plaintiffs in A.S. 2005/1995 have alleged that the income calculated is too low and half of his income deducted towards personal expenditure of the deceased is too high. The appellants in A.S. 56/1990 have assailed that the multiplier adopted is exorbitantly high. As per the guidelines, i.e. after the commencement of the 1994 amendment to the Motor Vehicles Act, 1986 and the incorporation of the structured formula and the Apex Court judgment in UPSRTC v. Trilok Chandra, 1996(1) Apex Court journal 661 (SC) ; 1996(2) KLT 218 (SC) , the maximum multiplier can be only 18. So also the notional income has to be taken at Rs. 1,500/- per month; and only 1/3 is liable to be deducted for personal expenditure. We particularly take note of the fact that the decision of the lower Court was rendered in March 1989 in the suit of 1984. Furthermore, the statute does not contemplate the application of any rigid mathematical formula. 15. In the above backdrop, we find no reason to interfere with the findings of the lower Court. We particularly take note of the fact that the decision of the lower Court was rendered in March 1989 in the suit of 1984. Furthermore, the statute does not contemplate the application of any rigid mathematical formula. 15. In the above backdrop, we find no reason to interfere with the findings of the lower Court. We find that the income calculated by the lower Court can be accepted as reasonable expectation of the benefit to the plaintiffs had the deceased been alive and not just a mere speculative possibility. The evidence of PWs-1, 8, 2, 3 and 5 as to the income of the deceased is not liable to be discarded as such just because they are friends and relatives." 6. In view of above legal position, the contentions of the learned counsel for the petitioners that the Issues No. 3 to 5, which are the preliminary issues, have wrongly been decided against the petitioners, are not found to be worthy of acceptance and they are liable to be rejected and are accordingly rejected. The suit for damages under the provisions of Fatal Accidents Act, 1855 could not have been thrown out and it could not be held that plaintiffs were not entitled to claim any damages under the provisions of the said Act even though the petitioners father, namely, Surja Ram @Surjan was convicted for the offence under Section 302 of I.P.C. in the Criminal Case No. 265/1996 by the District and Sessions Judge, Sri Ganganagar. 7. The decision of the preliminary issues, however, will not adversely affect the rights of the petitioners-defendants to raise their arguments on merits on the basis of evidence led by them before the learned trial Court, particularly on Issue No. 5 and before the appellate Courts. 8. Accordingly, the present revision petition is disposed of. No costs.Revision Disposed of. *******