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PETITIONER: GUJARAT STATE ROAD TRANSPORT CORPORATION,AHMEDABAD.

       Vs.

RESPONDENT: RAMANBHAI PRABHATBHAI & ANOTHER

DATE OF JUDGMENT11/05/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1987 AIR 1690            1987 SCR  (3) 404  1987 SCC  (3) 234        JT 1987 (2)   384  1987 SCALE  (1)1027  CITATOR INFO :  R          1987 SC2158  (14)  RF         1991 SC1769  (10,11)

ACT:     Motor Vehicles Act,  1939--Section  110A--’Legal repres- enatives’--Who are-Not to be confined to spouse, parent  and children of the deceased.     Civil  Procedure  Code,  1908--Section  2   (ii)--’Legal representalive’--Who is. Words and Phrases--’Legal representative’--Meaning of.

HEADNOTE:     The  respondents-brothers of the  deceased-instituted  a petition  before the Motor Accidents Claims  Tribunal  under the Motor Vehicles Act, 1939, claiming compensation for  the death  of  their brother in an accident on the  ground  that they  were  the heirs and legal representatives of  the  de- ceased. The Tribunal awarded a compensation of Rs.32,000  to the claimants, and directed the Gujarat State Road Transport Corporation  to  pay the said amount to the  claimants.  The appeal of the Gujarat State Road Transport Corporation under Section 110D of the Act was dismissed by the High Court.     In  the  special  leave petition to this  Court  it  was contended that the Tribunal and the High Court were in error in  awarding compensation in favour of the brothers  of  the deceased, since in law they were not entitled to any compen- sation  under  the provisions of the  Fatal  Accidents  Act, 1855,  and it was submitted that the provisions  in  Chapter VIII of the Motor Vehicles Act, 1939 were merely  procedural in character under which an alternative forum is created for deciding the question of compensation payable in respect  of injuries  and  death  caused on account  of  motor  vehicles accidents,  that  they have not modified in any  manner  the substantive law governing the said question, and, therefore, the principles contained in the law of torts as modified  by the  Fatal Accidents Act, 1855, alone would govern the  said question even now. Dismissing the special leave petition, this Court     405     HELD:  1. Where a pedestrian, without negligence on  his part, is injured or killed by a motorist whether negligently

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or not, he or his legal representatives, as the case may be, should  be entitled to recover damages if the  principle  of social justice should have any meaning at all. [416C]     2.  T0  a limited extent relief has been  granted  under Section 92A to the legal representatives of the victims  who had died on account of motor vehicle accidents. Compensation of Rs. 15,000 can be claimed without proof of any negligence on  the  part of the owner of the vehicle or  of  any  other person. This part of the Act is clearly a departure from the usual common law principle that a claimant should  establish negligence  on the part of the owner or driver of the  motor vehicle  before claiming any compensation for the  death  or permanent  disablement caused on account of a motor  vehicle accident.  To that extent the substantive law  stands  modi- fied. [416H, 417A-B]     3. The brother of the person who dies in a motor vehicle accident  is entitled to maintain a petition  under  Section 110A  of  the  Act if he is a legal  representative  of  the deceased. [422C]     4. Every legal representative who suffers on account  of the death of a person due to a motor vehicle accident should have  a remedy for realisation of compensation and  that  is provided  by Sections 110A to 110F of the Act. These  provi- sions are in consonance with the principles of law of  torts that  every  injury must have remedy. It is  for  the  Motor Vehicles  Accidents Tribunal to determine  the  compensation which  appears to it to be just as provided in Section  110B of  the  Act and to specify the person or  persons  to  whom compensation shall be paid. The determination of the compen- sation payable and its apportionment as required by  Section 110B of the Act amongst the legal representatives for  whose benefit  an application may be filed under Section  110A  of the Act have to be done in accordance with well-known  prin- ciples of law. [421F-H, 422A]     5.1 Clause (b) of sub-section (1) of Section 110A of the Act  provided that the application for compensation  arising out of an accident may be made where death has resulted from the  accident by all or any of the legal representatives  of the deceased. The proviso to sub-section (1) of Section 110A provides  that  where all the legal representatives  of  the deceased have not joined in any such application for compen- sation,  the application shall be made on behalf of  or  for the benefit of all the legal representatives of the deceased and  the legal representatives who have not so joined  shall be impleaded as respondents to the application. [419A-B] 406     S.2  The expression ’legal representative’ has not  been defined  in  the  Act. Section 2(11) of the  Code  of  Civil Procedure,  1908 defines ’legal representative’ as a  person who  in law represents the estate of a deceased  person  and includes any person who intermeddles with the estate of  the deceased and where a party sues or is sued in a  representa- tive  character, the person on whom the estate  devolves  on the death of the party so suing or sued. [419C-D]     5.3 A legal representative ordinarily means a person who in  law  represents  the estate of a deceased  person  or  a person on whom the estate devolves on the death of an  indi- vidual. [419D]     5.4  A  legal representative in a given  case  need  not necessarily be a wife, husband, parent and child. [420B]       In  an Indian family brothers, sisters  and  brothers’ children  and some times foster children live  together  and they  are dependent upon the bread-winner of the family  and if the bread-winner is killed on account of a motor  vehicle accident,  there is no justification to deny them  compensa-

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tion relying upon the provisions of the Fatal ACcidents Act, 1855,  which has been substantially modified by  the  provi- sions contained in the Act in relation to cases arising  out of motor vehicle accidents. [422A-B]     5.6  The fact that the Parliament declined to  take  any action  on  the  recommendation of the  Law  Commission  to’ define  the expression ’legal representative’ suggests  that Parliament  intended that the expression ’legal  representa- tives’  in Section 110A of the Act should be given  a  wider meaning and it should not be confined to the spouse,  parent and children of the deceased. [422G]     6.1  Although  Chapter VIII of the Act provides  for  an alternative forum for realisation of compensation payable on account  of motor vehicles accidents, these  provisions  are not merely procedural. They substantially affect the  rights of the parties. As the right of action created by the  Fatal Accidents  Act,  1855 was "new in its species,  new  in  its quality, new in its principles, in every way new", the right given to the legal representatives under the Act to file  an application for compensation for death due to motor  vehicle accident is equally new and an enlarged one. This new  right cannot  be  hedged in by all the limitations  of  an  action under the Fatal Accidents Act, 1855. New situations and  new dangers  require  new strategies and  new  remedies.  [415G, 420E-F] 407     6.2 While the Fatal Accidents Act, 1855 provides that  a suit  shall be for the benefit of the wife, husband,  parent and  child  of the deceased, Section 110A(1)  of  the  Motor Vehicles  Act, 1939 says that the application shall be  made on behalf of or for the benefit of the legal representatives of  the deceased. Section 110A(1) in a way is  a  substitute for  the  provisions of Section 1-A of the  Fatal  Accidents Act,  1855.  Similarly, Section 110B  which  authorises  the Claims  Tribunal to make an order determining the amount  of compensation which appears to it to be just, and  specifying the person or persons to whom the compensation shall be paid takes the place of the third paragraph of Section I-A of the Fatal Accidents Act, 18’55 which provides that in every such action,  the  court may give such damages as  it  may  think proportionate  to the loss resulting from such death to  the parties  respectively, for whom and for whose  benefit  such application shall be brought. [420A-C]     6.3  Persons for whose benefit such application  can  be made and the manner in which the compensation awarded may be distributed  amongst persons for whose benefit the  applica- tion is made are dealt with by Sections 110A and 110B and to that  extent  the  provisions of the Act  do  supersede  the provisions  of  the Fatal Accidents Act,  1855,  insofar  as motor vehicle accidents are concerned. [420D]     Megjibhai Khimji Vira and another v. Chaturbhai  Taljab- hai and others, AIR 1977 Gujarat 195 affirmed; Budha v. Union of India and Ors., [1981] M.P. 151 overruled;     Minu B. Mehta and Another v. Balkrishna Ramchandra Nayan and  Another,  [1977]  2 S.C.R. 886;  Rylands  v.  Fletcher, [1868]  L.R.  3  H.L. 330, 340; P.B.  Kader  and  others  v. Thatchamma  and others, A.I.R. 1970 Kerala 241;  Dewan  Hari Chand  and  Others  v. Municipal Corporation  of  Delhi  and another, A.I.R. 1973 Delhi 67; Perumal v. Ellusamy  Reddiar, [1974]  ACJ 182 (Mad); Vanguard Insurance Co. Ltd. v.  Hanu- mantha Rao, [1975] ACJ 344 (Andhra Pradesh); Mohammed  Habi- bullah  and another v. K. Seethammal, A.I.R. 1967 Mad.  123; Veena Kumari Kohli v. Punjab Roadways, [1967] ACJ 297  (Pb.) and  Smt. Ishwar Devi Malik v. Union of India,  A.I.R.  1969 Delhi 183, referred to.

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JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 2802 of 1987. 408     From  the  Judgment and Order dated 24.12. 1986  of  the Gujarat High Court in F.A. No. 1379 of 1986. S.K. Dholakia, R.C. Bhatia and P.C. Kapur for the  Petition- er. C.S. Vaidyanathan for the Respondents. The Order of the Court was delivered by     VENKATARAMIAH, J. The question involved in this case  is whether  a  brother  of a person who is killed  in  a  motor vehicle  accident  can claim compensation  in  a  proceeding instituted  before a Motor Accidents Claims Tribunal  estab- lished under the provisions of the Motor Vehicles Act,  1939 (hereinafter  referred to as ’the Act’). The High  Court  of Gujarat  has upheld such a claim in this case. This  Special Leave  Petition  is filed against the judgment of  the  High Court questioning the correctness of the said decision.     The brief facts of the case are these. On account of the negligence  on the part of the driver of a bus belonging  to the  petitioner, the Gujarat State Road  Transport  Corpora- tion,  Ahmedabad, a boy named Bhanubhai, aged 14 years,  was run over by the bus resulting in his untimely death. Ramanb- hai  and Dineshbhai, who were the brothers of the  deceased, instituted  a  petition before the  Motor  Accidents  Claims Tribunal  (Auxiliary), Vadodara, claiming  compensation  for the death of their brother alleging that they were the heirs and  legal  representatives of the  deceased.  The  Tribunal awarded   a  sum  of  Rs.32,000  as  compensation   to   the claimants-and  directed  the Gujarat  State  Road  Transport Corporation to pay the said amount to the claimants. Against the  award  of  the Tribunal, the  Gujarat  State  Transport Corporation filed an appeal before the High Court of Gujarat under  section 110D of the Act. That appeal  was  dismissed. This Special Leave Petition is filed against the judgment of the High Court.     The only point convassed before us in this Special Leave Petition  is  that the Tribunal and the High Court  were  in error in awarding compensation in favour of the brothers  of the  deceased,  since in law they were not entitled  to  any compensation  under  the provisions of the  Fatal  Accidents Act,  1855 and in support of the said  contention,  reliance was  placed by the petitioner on the decision of the  Madhya Pradesh  High Court in Budha v. Union of India  and  others, A.I.R. 1981 M.P. 151. In the present case the High Court  of Gujarat while passing its order has preferred to follow  its own decision in Magjibhai 409 Khimji Vira and another v. Chaturbhai Taljabhai and  others, A.I.R.  1977 Gujarat 195 in which it had held that  all  the heirs and legal representatives of the deceased could  main- tain  the claim petition under section 110-A of the Act  and had  awarded  compensation in favour of the nephews  of  the deceased. On account of the divergence of opinion prevailing in the High Courts on the question involved in this case  we have  found it necessary to give reasons in support  of  our decision on this Special Leave Petition.     On  account  of the close association which came  to  be established  between  India and Great Britain owing  to  the British  rule  which lasted for over two centuries,  in  the High  Courts  established in India the  English  Common  Law

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which  was based on principles of justice, equity  and  good conscience came to be applied wherever they were called upon to award damages or compensation for civil wrongs  committed by  the  defendants  in the suits. The  application  of  the English  Common Law, however, had to conform to Indian  cir- cumstances  and  conditions  which  necessarily  involved  a selective  application  of the English Law  in  India.  "The adoption  of the rules of English Law by the Indian  Courts" observes  M.C.  Setalvad in his ’Common Law in  India’  (The Hamlyn  Lectures,  Twelfth  Series, Page  53)  "was  neither automatic  nor  uncritical.  Although they  started  with  a presumption  that a rule of English Law would be in  accord- ance  with the principles of justice, equity and  good  con- science,  they bore in mind the reservation which was  later expressed  by the Privy Council in the words ’if  found  ap- plicable  to  Indian  society and  circumstances."’  In  the course  of the application of the principles of the  English Law  of Torts in India the Indian courts came  to  recognise and apply the maxim action personalis moritur cum persona--a personal  action dies with the parties to the cause  of  ac- tion.  An  action for a tort had to be begun  in  the  joint lifetime of the wrongdoer and the person injured. The devel- opment of railways in England, led to a great upsurge in the number  of accidents, many of which were fatal. When it  was realised  that the cause of action for recovery  of  damages for  the  death of a person caused by the  wrongful  act  of another person did not survive on the death of the person to his  legal  representatives in England as a measure  of  law reform the Fatal Accidents Act, 1855 was passed for  compen- sating the families of persons killed by accidents. That Act provided  that  "whensoever the death of a person  shall  be caused  by wrongful act, neglect, or default, and  the  act, neglect,  or  default  is such as would (if  death  had  not ensued)  have  entitled  the party injured  to  maintain  an action  and recover damages in respect thereof, then and  in every  such  case the person who would have been  liable  if death had not ensued shall be 410 liable  to an action for damages, notwithstanding the  death of  the person injured". The said Act further provided  that "every  such  action shall be for the benefit of  the  wife, husband,  parent, and child of the person whose  death  shah have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as  they may  think  proportioned to the injury resulting  from  such death  to  the parties respectively for whom and  for  whose benefit  such  action shall be brought; and  the  amount  so recovered, after deducting the costs not recovered from  the defendant,  shall  be divided amongst the  before  mentioned parties  in such shares as the jury by  their.verdict  shall find  and direct." Within a few years after the  passing  of the said English Fatal Accidents Act, 1846, the Fatal  Acci- dents Act, 1855-came to be passed on the 27th of March, 1855 in India. This Act contains in all five sections. Its pream- ble runs thus:               "Whereas no action or suit is now maintainable               in  any  Court against a person  who,  by  his               wrongful  act, neglect, or default,  may  have               caused the death of another person, and it  is               often-times  right  and  expedient  that   the               wrong-doer  in such case should be  answerable               in damages for the injury so caused by him. It               is enacted as follows:-"                   Sections  1A and 2 of that Act  which  are

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             relevant for our present purpose read thus:               "1A.  Whenever the death of a person shall  be               caused  by wrongful act, neglect, or  default,               and  the act, neglect or default is  such  as’               would (if death had not ensued) have  entitled               the  party injured to maintain an  action  and               recover damages in respect thereof, the  party               who  would have been liable if death  had  not               ensued,  shall be liable to an action or  suit               for damages, notwithstanding the death of  the               person  injured, and although the death  shall               have  been caused under such circumstances  as               amount in law to felony or other crime.                        Every  such action or suit  shall  be               for  the benefit of the wife, husband,  parent               and  child, if any, of the person whose  death               shall  have  been  so  caused,  and  shall  be               brought  by and in the name of  the  executor,               administrator or representative of the  person               deceased;               411               and  in every such action, the Court may  give               such  damages as it may think proportioned  to               the  loss  resulting from such  death  to  the               parties  respectively, for whom and for  whose               benefit such action shall be brought, and  the               amount so recovered, after deducting all costs               and  expenses, including the costs not  recov-               ered  from the defendant, shall  be  cleivided               amongst  the before-mentioned parties, or  any               of  them, in such shares as the Court  by  its               judgment or decree shall direct.               2.  Provided  always that not  more  than  one               action  or  suit shall be brought for  and  in               respect  of  the same subject matter  of  com-               plaint:                        Provided  that in any such action  or               suit the executor, administrator or  represen-               tative 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."  (emphasis               added)     The comparison between the English Fatal Accidents  Act, 1846  and  the Indian Fatal Accidents Act, 1855  shows  that they  are almost identical insofar as the persons for  whose benefit  action  for compensation could be  brought  on  the death  of a person, and they are, wife, husband, parent  and child  of the deceased. The English law was, however,  modi- fied  insofar  as the above question was  concerned  by  the Fatal  Accidents Act, 1959. Section 1 of that  Act  provides that the persons for whose benefit and by whom an action may be brought under the Fatal Accidents Act, 1846 shall include any  person  who is, or is the issue of a  brother,  sister, uncle  or  aunt of the deceased person and in  deducing  any relationship  for  the purposes of the said Act  it  further provides  that (a) an adopted person should be treated as  a child  of the person or the persons by whom he  was  adopted and not of the child of any other person; and subject there- to  (b) any relationship by affinity should be treated as  a relationship by consanguinity, any relationship of the  half blood  as  a relationship of the whole blood and  the  step- child  of  any person as a child; and  (c)  an  illegitimate

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person should be treated as a legitimate child of his mother and  reputed father. After the above Act was passed in  1959 in  England there came to be appointed a Commission,  called the  Royal Commission on Civil Liberty and Compensation  for Personal Injury under the Chairman- 412 ship  of Lord Pearson in the year 1973 to consider  to  what extent, in what circumstances and by what means compensation should  be payable in respect of personal injury  (including ante-natal injury) suffered by any person (a) in the  course of  employment;  (b) through the use of a motor  vehicle  or other  means  of  transport; (c)  through  the  manufacture, supply or use of goods or services; (d) on premises  belong- ing  to or occupied by another or (e) otherwise through  the act  or  omission of another where  compensation  under  the present  law is recoverable only on proof of fault or  under the rules of strict liability having regard to the cost  and other  implications of the arrangements for the recovery  of compensation,  whether  by way of  compulsory  insurance  or otherwise.  During the period when the Royal Commission  was still  collecting evidence to prepare its Report  the  Fatal Accidents  Act, 1976’which was a consolidating Act  incorpo- rating  the provisions of the Fatal Accidents Acts  1846  to 1959 was brought into force on September 1, 1976 in England. The  Royal Commission submitted its report in  March,  1978. After  considering the evidence placed before it on the  law prevailing  in many of the countries the Pearson  Commission recommended as follows:               "399.  Claims for damages following death  may               be made under the present law on behalf of the               relatives of the deceased and on behalf of his               estate.               The relatives’ claim for pecuniary Loss.               400.  An  action may be brought on  behalf  of               certain  dependent relatives of  the  deceased               for pecuniary loss (lost dependency) under the               Fatal  Accidents  Acts in England,  Wales  and               Northern Ireland. In Scotland, the  equivalent               action  is  for loss of  support  and  funeral               expenses  under  the  Damages  (Scotland)  Act               1976.               The entitlement to claim.               401. Claims under the Fatal Accidents Acts may               be  made on behalf of the  deceased’s  spouse,               parent, grandparent, child, grandchild, broth-               er,  sister, uncle, aunt, and-in the  case  of               the  last four relatives--their  issue.  Rela-               tionships  by  marriage are treated  as  blood               relationships;  a  legally  adopted  child  is               treated  as a natural child; and an  illegiti-               mate child is treated as the legitimate  child               of  his mother and reputed father. ’Half’  and               ’step’ relationships               413               are treated as full relationships.               402.  In  Scotland, those  entitled  to  claim               damages  for loss of support also include  all               ascendants and descendants; any person accept-               ed  by the deceased as a child of  his  family               (whether  or not legally adopted); and  a  di-               vorced  spouse.  The full list,  contained  in               Schedule  I  to the  Damages  (Scotland)  Act,               1976, is as follows:               a.  any  person  who  immediately  before  the               deceased’s  death  was the spouse of  the  de-

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             ceased;               b. any person who was a parent or child of the               deceased;               c.  any person not falling within  paragraph-b               above  who was accepted by the deceased  as  a               child of his family;               d. any person who was an ascendant or descend-               ant  (other  than a parent or  child)  of  the               deceased;               e. any person who was, or was the issue of,  a               brother,  sister,  uncle or aunt  of  the  de-               ceased; and               f. any person who, having been a spouse of the               deceased,  had ceased to be so by virtue of  a               divorce.               403.  We think that there is a good  case  for               extending the present entitlement in  England,               Wales  and  Northern Ireland to  conform  with               Scots  law. We agree with the  Law  Commission               that  a  child accepted by  the  deceased  and               maintained by him as a ’child of the  family’,               even though not legally adopted, has at  least               as good a claim to damages for lost dependency               as,  say, a step child; and that where  a  di-               vorced  spouse can demonstrate  dependency  on               the  deceased (if, for example, he or she  has               been  awarded maintenance payments) he or  she               should  also  be able to  claim  damages.  The               inclusion  under Scots law of  all  ascendants               and descendants further means that claims by a               dependent  great-grandparent  or  great-grand-               child can be considered. Although the  likeli-               hood of such claims is in practice remote,  we               see no reason why they should in principle  be               excluded.               414               404. We recommend that the relatives  entitled               to  claim damages for lost dependency in  Eng-               land, Wales and Northern Ireland should be the               same  as those entitled to claim  damages  for               loss  of support under the Damages  (Scotland)               Act, 1976." From  the  recommendation of the British  Royal  Commission. which is extracted above, it is seen that the Royal  Commis- sion  recommended  that the area of entitlement  to  damages following death should be expanded so as to include a larger number of relatives. In our country the FataI Accidents Act, 1855  has remained unamended. but we have still to  consider the effect of the amendment of the Act, i.e., Motor Vehicles Act,  1939  on the Fatal Accidents Act,  1855.  But,  before examining the relevant provisions of the Act it is necessary to  refer to the 85th Report of the Law Commission of  India on  claims  for compensation under Chapter VIII of  the  Act which was submitted as late as May, 1980. The Law Commission of India after taking into consideration the differences  of opinion  prevailing in the various High Courts on the  ques- tion of the persons who should be entitled to claim  compen- sation on the death of a person, recommended that the  enti- tlement  to  such  compensation should be  confined  to  the spouse, parent and children of the deceased as specified  in the  Fatal  Accidents Act, 1855 overlooking  the  amendments made in England and other countries by expanding the list of relatives  who  are entitled to claim  compensation  on  the death of a person. It is surprising that the Law  Commission of India recommended that the provisions of the Fatal  Acci-

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dents Act, 1855 should be adhered to insofar as the  persons who  were entitled to claim compensation was  concerned.  We shall now proceed to consider the effect of the amendment of the  Act insofar as the question of compensation payable  on the  death of a person as a result of a motor vehicle  acci- dent is concerned.      It is submitted that the provisions in Chapter VIII  of the Act to which we shall presently refer are merely  proce- dural  in  character  under which an  alternative  forum  is created for deciding the question of compensation payable in respect  of  injuries and death caused on account  of  motor vehicles  accidents and that they have not modified  in  any manner  the substantive law governing the said question.  In other  words it is argued that the principles  contained  in the  Law of Torts, as modified by the Fatal  Accidents  Act, 1855,  alone  would govern the said question  even  now.  In support  of the above submission reliance is placed  on  the decision  of  this  Court in Minu B. Mehta  and  Another  v. Balkrishna  Ramchandra  Nayan and Another, [1977]  2  S.C.R. 886. In 415 that case that Court affirmed the finding of the High  Court that  the motor vehicle accident which was the cause of  the death in that case had happened on account of the negligence of the driver of the vehicle and hence damages were  payable to the claimant therein and at page 894 this Court  observed that  the said finding was sufficient to conclude the  judg- ment  but the Court felt that it was desirable to deal  with the question of law that had been dealt with at considerable length  by the High Court as to whether it was incumbent  on the  claimant to prove negligence on the part of the  driver of the motor vehicle before he would be entitled to  compen- sation.  The  High Court had in the course of  its  judgment after upholding that the driver was negligent, observed that having  regard to the changed conditions of  modern  society where a large number of motor vehicles were put on road thus exposing  innocent  third parties to  grave  accidents  very often resulting in injuries to their lives and limbs, it was necessary in public interest to take the view that proof  of negligence was unnecessary on the part of the drivers of the motor  vehicles  before claiming compensation.  The  learned Judges  of  this Court were, however, of the view  that  the above observation was inconsistent with the law of the  land and  that no damages could become payable without  proof  of negligence  on the part of the driver of the  motor  vehicle involved  in  the accident. They further observed  that  the provisions of Chapter VIII of the Act were merely procedural and had not altered the substantive law. With great  respect it should be observed that the observations of this Court on the above question were in the nature of obiter dicta  since as  already  stated there was no necessity to  go  into  the question  whether  proof of negligence on the  part  of  the driver  of the motor vehicle was necessary or not  to  claim damages  under Chapter VIII of the Act because it  had  been found both by the High Court and this Court that such negli- gence  had been infact established. In the case  before  us, however, it is necessary to examine the provisions of  Chap- ter VIII of the Act to ascertain whether there has been  any modification  by necessary implication of the provisions  of the Fatal Accidents Act, 1855 insofar as the persons who are entitled to claim compensation on account of motor  vehicles accidents, is     It is true that Chapter VIII of the Act provides for  an alternative forum for realisation of compensation payable on account of motor vehicles accidents but as we shall present-

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ly show it is not correct to say that the said provisions in Chapter VIII of the Act are merely procedural. When the Fatal Accidents Act, 1855 was enacted there were no 416 motor  vehicles on the roads in India. Today, thanks to  the modern civilization, thousands of motor vehicles are put  on the  road and the largest number of injuries and deaths  are taking  place on the roads on account of the motor  vehicles accidents.  In  view of the fast and  constantly  increasing volume of traffic, the motor vehicles upon the roads may  be regarded  to some extent as coming within the  principle  of liability defined in Rylands v. Fletcher, [1868] LR. 3  H.L. 330, 340. From the point of view of the pedestrian the roads of  this country have been rendered by the use of the  motor vehicles  highly  dangerous. ’Hit and run’ cases  where  the drivers of the motor vehicles who have caused the  accidents are  not known are increasing in number. Where a  pedestrian without  negligence  on his part is injured or killed  by  a motorist whether negligently or not, he or his legal  repre- sentatives as the case may be should be entitled to  recover damages  if the principle of social justice should have  any meaning at all. In order to meet to some extent the  respon- sibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation through out the world to make the liability for damages arising  out of motor vehicles accidents as a liability without fault. In order to meet the above social demand on the  recommendation of the Indian Law Commission Chapter VIIA was introduced  in the Act. Sections 92-A to 92-E of the Act are to be found in Chapter  VIIA.  Section 92-E of the Act  provides  that  the provisions of Chapter VIIA shall have effect notwithstanding anything  contained in any other provision of the Act or  of any  other law for the time being in force. Section 92-A  of the Act provides that where the death or permanent  disable- ment of any person has resulted from an accident arising out of  the use of a motor vehicle or motor vehicles, the  owner of the vehicle shall, or, as the case may be, the owners  of the vehicles shall, jointly and severally, be liable to  pay compensation  in  respect of such death  or  disablement  in accordance  with  the provisions of the  said  section.  The amount  of compensation which is payable thereunder  in  re- spect  of the death of any person is a fixed sum of  fifteen thousand rupees and the amount of compensation payable under it in respect of the permanent disablement of any person  is a fixed sum of seven thousand and five hundred rupees.  Sub- section (3) of section 92-A of the Act provides that in  any claim for compensation under sub-section (1) of section  92- A, the claimant shall not be required to plead and establish that the death or permanent disablement in respect of  which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. It is thus seen that to  a limited extent relief has been granted under section 92-A of the Act to the legal representatives of the victims who have died on 417 account of motor vehicles accidents. Now they can claim  Rs. 15,000  without proof of any negligence on the part  of  the owner  of the vehicle or of any other person. This  part  of the  Act  is clearly a departure from the usual  common  law principle that a claimant should establish negligence on the part  of  the owner or driver of the  motor  vehicle  before claiming  any compensation for the death or permanent  disa- blement  caused on account of a motor vehicle  accident.  To that extent the substantive law of the country stands  modi-

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fied.  The special provisions contained in section 109-A  to section 109-C of the Act providing for a scheme for granting relief to victims or the legal representatives of victims of ’hit and run’ motor vehicle accident cases is another  novel effort on the part of the Government to remedy the situation created by the modern society which has been responsible for introducing  so many fast moving vehicles on roads.  Now  we shali  analyse  the provisions of Chapter VIII  of  the  Act which  deals  with the insurance of motor  vehicles  against third party risk. Sections 93 to 111-A are in that  Chapter. The  Act  insists that the owner of a motor  vehicle  should take  out  an  insurance policy to cover  third  party  risk except  in  some  specified cases. Section 102  of  the  Act provides that notwithstanding anything contained in  section 306  of  the  Indian Succession Act, 1925, the  death  of  a person  in whose favour a certificate of insurance has  been issued,  if it occurs after the happening of an event  which has  given rise to a claim under the provisions  of  Chapter VIII  of the Act shall not be a bar to the survival  of  any cause  of action arising out of the said event  against  his estate  or against the insurer. The death of an owner  of  a motor vehicle which is involved in a motor vehicle  accident in  whose favour a certificate of insurance has been  issued is  thus  no longer a bar to the survival of  any  cause  of action arising out of the said event. Section 110 of the Act provides  for  the  establishment of  Claims  Tribunals.  It provides that a State Government may by notification in  the Official  Gazette,  constitute one or.more  Motor  Accidents Claims  Tribunals for such areas 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  damages to any property of a third  party  so arising, or both. Section 110-F of the Act bars jurisdiction of  Civil Courts where any Claims Tribunal has been  consti- tuted for any area to entertain any question relating to any claim for compensation which may be adjudicated upon by  the Claims  Tribunal  for that area. On the  occurrence  of  any motor  vehicles  accident, an application  for  compensation arising  out of it can be made before the  Claims  Tribunal. Section  110˜A of the Act which is material for the  purpose of this case reads thus: 418                        "110-A.  Application  for   compensa-               tion.--(1)  An  application  for  compensation               arising  out  of  an accident  in  the  nature               specified  in sub-section (1) of  section  110               may be made--               (a)  by the person who has sustained  the  in-               jury; or               (aa) by the owner of the property; or               (b)  where death has resulted from  the  acci-               dent,  by all or any of the legal  representa-               tives of the deceased; or               (c) by any agent duly authorised by the person               injured or all or any of the legal representa-               tives of the deceased, as the case may be.                        Provided  that, where all  the  legal               representatives  of  the  deceased  have   not               joined  in any such application for  compensa-               tion, the application shall be made on  behalf               of or for the benefit of all the legal  repre-               sentatives  of  the  deceased  and  the  legal               representatives  who have not so joined  shall               be  impleaded as respondents to  the  applica-

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             tion.                        (2)  Every  application  under   sub-               section (1) shall be made to the Claims Tribu-               nal having jurisdiction over the area in which               the  accident occurred, and shall be  in  such               form and shall contain such particulars as may               be prescribed.                        Provided  that where any   claim  for               compensation under section 92A is made in such               application,  the application shall contain  a               separate statement to that effect  immediately               before the signature of the applicant.                        (3) No application for such compensa-               tion  shall be entertained unless it  is  made               within  six  months of the occurrence  of  the               accident:                        Provided that the Claims Tribunal may               entertain the application after the expiry  of               the said period of six months if it is  satis-               fied  that  the  applicant  was  prevented  by               sufficient  cause from making the  application               in time."   419     Clauses (b) and (c) of sub-section (1) of section  110-A of  the  Act provide that an  application  for  compensation arising  out  of  an accident may be made  where  death  has resulted from the accident by all or any of the legal repre- sentatives  of the deceased or by any agent duly  authorised by all or any of the legal representatives of the  deceased. The  proviso  to sub-section (1) of section  110-A  provides that  where  all the legal representatives of  the  deceased have  not joined in any such application  for  compensation, the application shall be made on behalf of or for the  bene- fit of all the legal representatives of the deceased and the legal  representatives who have not so joined shall  be  im- pleaded  as respondents to the application.  The  expression ’legal  representative’  has not been defined  in  the  Act. Section  2(11) of the Code of Civil Procedure, 1908  defines ’legal representative’ as a person who in law represents the estate  of  a deceased person and includes  any  person  who intermeddles  with  the estate of the deceased and  where  a party  sues  or is sued in a  representative  character  the person on whom the estate devolves on the death of the party so  suing or sued. The above definition, no doubt, in  terms does  not apply to a case before the Claims Tribunal but  it has  to  be stated that even in ordinary parlance  the  said expression is understood almost in the same way in which  it is  defined in the Code of Civil ’Procedure. A legal  repre- sentative  ordinarily means a person who in  law  represents the  estate  of a deceased person or a person  on  whom  the estate devolves on the death of an individual. Clause (b) of sub-section  (1) of section 110-A of the Act authorises  all or any of the legal representatives of the deceased to  make an  application for compensation before the Claims  Tribunal for the death of the deceased on account of a motor  vehicle accident  and clause (c) of that sub-section authorises  any agent duly authorised by all or any of the legal representa- tives of the deceased to make it. The proviso to sub-section (1)  of section 110-A of the Act appears to be of some  sig- nificance. It provides that the application for compensation shall  be  made on behalf of or for the benefit of  all  the legal  representatives of the deceased. Section 110-A(1)  of the  Act thus expressly states that (i) an  application  for compensation may be made by the legal representatives of the deceased or their agent and (ii) that such application shall

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be  made  on behalf of or for the benefit of all  the  legal representatives. Both the persons or person who can make  an application  for  compensation  and the  persons  for  whose benefit  such application can be made are thus indicated  in section 110-A of the Act. This section in a way is a substi- tute  to  the extent indicated above for the  provisions  of section  1A of the Fatal Accidents Act, 1855 which  provides that "every such action or suit shall be for the benefit  of the  wife, husband, parent and child, if any, of the  person whose death shall have 420 been  so caused, and shall be brought by and in the name  of the executor, administrator or representative of the  person deceased." While the Fatal Accidents Act, 1855 provides that such  suit  shall be for the benefit of the  wife,  husband, parent  and child of the deceased, section 110-A(1)  of  the Act says that the application shall be made on behalf of  or for  the  benefit of the legal representatives  of  the  de- ceased.  A  legal representative in a given  case  need  not necessarily  be  a wife, husband, parent and  child.  It  is further  seen from section 110-B of the Act that the  Claims Tribunal  is  authorised to make an  award  determining  the amount  of compensation which appears to it to be  just  and specifying the person or persons to whom compensation  shall be  paid. This provision takes the place of the third  para- graph  of section 1A of the Fatal Accidents Act. 1855  which provides that in every such action, the Court may give  such damages  as it may think proportioned to the loss  resulting from  such death to the parties respectively, for  whom  and for whose benefit such action shall be ’brought. Persons for whose benefit such an application can be made and the manner in which the compensation awarded may be distributed amongst the  persons for whose benefit the application is  made  are dealt with by section 110-A and section 110-B of the Act and to  that extent the provisions of the Act do  supersede  the provisions  of  the Fatal Accidents Act, 1855 in so  far  as motor vehicles accidents are concerned. These provisions are not merely procedural provisions. They substantively  affect the rights of the parties. As the right of action created by the  Fatal Accidents Act, 1855 was "new in its species,  new in its quality, new in its principles, in every way new" the right  given to the legal representatives under the  Act  to file  an  application for compensation for death  due  to  a motor  vehicle accident is equally new and an enlarged  one. This new right cannot be hedged in by all the limitations of an  action under the Fatal Accidents Act, 1855.  New  situa- tions  and new dangers require new strategies and new  reme- dies.     Amongst the High Courts in India there is a cleavage  in the  opinion as regards the maintainability of action  under section  110-A  of the Act by persons other than  the  wife, husband, parent and child of the person who dies on  account of a motor vehicle accident. All these cases are  considered by  the High Court of Gujarat in its decision  in  Magjibhai Khiraji Vira and another v. Chaturbhai Taljabhai and  others (supra). The first set of cases are those which are referred to in paragraph 5 of the above decision which lay down  that every  claim application for compensation arising out  of  a fatal  accident would be governed by the substantive  provi- sions of sections 1A and 2 of the 1855 Act and no  dependent of the deceased other than the wife, husband, pa- 421 rent  or child would be entitled to commence an  action  for damages  against the tort tensors. Amongst these  cases  are P.B. Kader and others v. Thatchamma and others, A.I.R.  1970

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Kerala  241  and Dewan Hari Chand and  others  v.  Municipal Corporation of Delhi and another, A.I.R. 1973 Delhi 67.  The second  group of cases are those referred to in paragraph  6 of the decision of the Gujarat High Court. They are  Perumal v.  Ellusamy Reddiar, [1974] ACJ 182 (Mad) and the  Vanguard Insurance Co. Ltd. v. Hanumantha Rao, [1975] ACJ 344 (Andhra Pradesh).  These cases lay down that while the  compensation payable under section 1A of the Fatal Accidents Act, 1855 is restricted  to the relatives of the deceased  named  therein the  compensation  payable under section 2  thereof  may  be awarded in favour of the representatives of the deceased who are  entitled to succeed to the estate of the deceased.  The third group of cases are those referred to in paragraph 7 of the  judgment of the Gujarat High Court. They  are  Mohammed Habibullah  and another v. K. Seethammal, A.I.R.  1967  Mad. 123;  Veena Kumari Kohli v. Punjab Roadways, [1967] ACJ  297 (Pb.)  and Smt. Ishwar Devi Malik v. Union of India,  A.I.R. 1969 Delhi 183 which take the view that a claim for  compen- sation  arising out of the use of a motor vehicle  would  be exclusively  governed by the provisions of sections  110  to 110-F of the Act and bears no connection to claims under the 1855 Act and the Claims Tribunal need not follow the princi- ples  laid down under the latter Act. Having considered  all the  three sets of decisions referred to above,  Ahmadi,  J. who wrote the judgment in Megjibhai Khimji Vira and  another v.  Chaturbhai  Taljabhai  and others (supra)  came  to  the conclusion  that an application made by the nephews  of  the deceased who died on account of a motor vehicle accident was clearly maintainable under section 110-A of the Act.     We feel that the view taken by the Gujarat High Court is in  consonance  with the principles of justice,  equity  and good  conscience  having  regard to the  conditions  of  the Indian  society. Every legal representative who  suffers  on account  of  the death of a person due to  a  motor  vehicle accident  should have a remedy for realisation of  compensa- tion and that is provided by sections 110-A to 110-F of  the Act. These provisions are in consonance with the  principles of law of torts that every injury must have a remedy. It  is for  the Motor Vehicles Accidents Tribunal to determine  the compensation  which appears to it to be just as provided  in section  110-B of the Act and to specify the person or  per- sons  to whom compensation shall be paid. The  determination of  the  compensation payable and its apportionment  as  re- quired  by section 110B of the Act amongst the legal  repre- sentatives for whose 422 benefit  an application may be filed under section 110-A  of the Act have to be done in accordance with well-known  prin- ciples  of law. We should remember that in an Indian  family brothers.  sisters  and brothers’ children  and  some  times foster  children live together and they are  dependent  upon the  bread-winner of the family and if the  bread-winner  is killed  on account of a motor vehicle accident, there is  no justification  to  deny them compensation relying  upon  the provisions of the Fatal Accidents Act, 1855 which as we have already  held has been substantially modified by the  provi- sions contained in the Act in relation to cases arising  out of motor vehicles accidents. We express our approval of  the decision in Megjibhai Khimji Vira and another v.  Chaturbhai Taljabhai and others, (supra) and hold that the brother of a person  who dies in a motor vehicle accident is entitled  to maintain a petition under section 110-A of the Act if he  is a legal representative of the deceased.     We have carefully gone through the decision of the  High Court  of  Madhya  Pradesh in Budha v. Union  of  India  and

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others (supra). We feel that the view taken in that decision is a narrow one and does not give full effect to the  object with which sections 110-A and 110-B of the Act were enacted. We over rule the said decision.     Before  concluding we may add that although the Act  was extensively modified after the receipt of the report of  the Law  Commission, Parliament did not choose to amend  section 110-A of the Act by defining the expression ’legal represen- tatives’ in relation to claims under Chapter VIII of the Act as  ’the  spouse, parent and children of  the  deceased’  as recommended  by the Law Commission. The Law  Commission  had observed in its 85th report that it would be appropriate  to assign  to  the expression ’legal representative’  the  same meaning as had been given to the expression ’representative’ for  the purposes of the Fatal Accidents Act, 1855 and  that would  effectively carry-out the purpose of  social  justice underlying  Chapter  VIII  of the Act, to  which  the  Fatal Accidents  Act,  1855 was the  nearest  approximation.  This recommendation  was  made after referring to  the  divergent views expressed by the various High Courts on the meaning of the  expression ’legal representatives’ in section 110-A  of the  Act.  The  fact that Parliament declined  to  take  any action on the recommendation of the Law Commission of  India suggests that Parliament intended that the expression ’legal representatives’ in section 110-A of the Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased.   423     We, therefore, do not find any ground to interfere  with the  judgment of the Gujarat High Court against  which  this Special  Leave  Petition has been filed. The  Special  Leave Petition is dismissed. N.P.V.                                       Petition   dis- missed. 424