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Case Number

Miscellaneous First Appeal No. 281 of 1977 against the judgment and award passed by the Motor Accidents Claims Tribunal, (I Additional District Judge) Dharwar, in Mis. (MVC) No. 22 of 1975 on his file dated 15th December 1976

Advocates

Sri C.M Desai for Appellant.
Sri R.P Hiremath for Respondent.

Judges

Bhimiah
Bopanna, JJ.

Acts

Section 110B of the Motor Vehicles Act, 1939 (hereinafter referred to as the 1939 Act).
FATAL ACCIDENTS ACT 1855
Section 23 of the Land Acquisition Act or Sections 73 and 74 of the Contract Act
Act 100 of 1956 introduced Sections 110 to 110F in the 1939 Act
2 of Section 1-A. Whereas under Section 110-B of the 1939 Act
Sections 110 to 110-F of the 1939 Act and the 1855 Act
Section 1-A of the 1855 Act and 110-B of the 1939 Act
1939 Act and (2) that the provisions of the 1855 Act
Rule 342(2) of the Mysore Motor Vehicle Rules 1963
Section 110-B of the 1939 Act, the said provision
Sections 1A and 2 of the 1855 Act. Sections 110
sub-section (i) of Section 110. In the 1855 Act
Section 110-A to 110-F of the Motor Vehicles
INDUSTRIAL DISPUTES ACT
SECTION 2 FATAL ACCIDENTS ACT
Sections 11-A to 110-F of the 1939 Act,
Sections 110 to 110-F of the 1939 Act
rule of interpretation Section 110-B
provisions of the Amendment Act
Amendment Act 56 of 1969,
Section 110-B

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Smart Summary

Structured Summary of the Opinion (Bopanna, J.)

Factual and Procedural Background

This appeal arises from an award by the Motor Accidents Claims Tribunal, Dharwar in Misc. (M.V.C.) No. 22 of 1975 which had awarded Rs. 6,000 as compensation. The appellant is the General Manager, Karnataka State Road Transport Corporation; there are cross-objections by respondents 1 and 2 (the deceased's brother and sister) seeking enhanced compensation.

Material facts (not in dispute): On 8 October 1974 at about 4:45 p.m., the vehicle bearing registration No. MYF 4176 belonging to the appellant and driven by the third respondent caused the death of Laxman Parasappa Sangolli due to the driver's rash and negligent driving. Respondents 1 and 2 claimed Rs. 25,500 as damages. The Tribunal found the appellant's driver guilty of rash and negligent driving (relying on PW-4) but declined to award general damages for loss of dependency on the ground that the claimants did not fall within the category of dependants under Section 1A of the Fatal Accidents Act, 1855; it awarded Rs. 6,000 for loss to the estate instead. The present appeal challenges the quantum awarded and the cross-objections seek enhanced compensation including dependency.

Legal Issues Presented

Whether Sections 110 to 110-F of the Motor Vehicles Act, 1939 are merely procedural/adjectival or whether they confer substantive rights enabling legal representatives (including brothers and sisters) to claim compensation for loss of dependency in fatal motor-vehicle accidents.
If Sections 110–110F are substantive, whether brothers and sisters (as legal representatives) are entitled to dependency compensation under those provisions notwithstanding that Section 1A of the Fatal Accidents Act, 1855 lists dependants more narrowly.
On the facts, whether the claimants (the brother and sister) have proved dependency and, if so, what is the correct quantum of compensation for loss of dependency and loss to the estate.

Arguments of the Parties

Appellant's Arguments

The appellant did not seriously challenge the Tribunal's finding of negligence but contended that the award of Rs. 6,000 for loss to the estate was excessive given that the deceased was earning Rs. 6 per day.
The appellant earlier resisted the claim on grounds including that the accident was not due to his driver's rash and negligent driving and that the deceased was contributorily negligent (this defence was rejected by the Tribunal).

Cross-Objectors' (Claimants') Arguments

Counsel for the claimants argued that the Tribunal's finding denying dependency compensation to the brother and sister was untenable having regard to Section 110B of the Motor Vehicles Act, 1939, and relied on the Gujarat High Court decision in M.K. Vira v. C. Taljabhai (1977 A.C.J. 253) to support the contention that Sections 110–110F form a comprehensive code governing claims arising from motor vehicle accidents and thus govern entitlement to compensation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
M.K. Vira v. C. Taljabhai, 1977 A.C.J. 253 (Gujarat High Court)	Cited for the proposition that claims tribunals must apply Sections 110–110F of the 1939 Act (a self-contained code) and that persons beyond the narrow list in the 1855 Act (e.g., brothers/nephews) could press claims under the 1939 Act.	Relied upon by claimants; the Court considered this decision as supporting the view that the 1939 Act (Sections 110–110F) governs entitlement in motor-vehicle fatality claims.
Gobald Motor Service Ltd. v. R.M.K. Veluswami (Supreme Court)	Discussed scope of Sections 1A and 2 of the Fatal Accidents Act (1855); historical reference to pre-1939 law.	Referred to for background on how claims were governed by the 1855 Act prior to introduction of Sections 110–110F; used to contextualise legislative change.
Garikapati Veeraya v. N.S. Choudhary (Supreme Court)	Authority for the proposition that a right of appeal is not merely procedural but substantive; used analogously to discuss substantive character of rights in Chapter VIII.	Cited to support the view that Chapter VIII provisions (including right of appeal) are substantive in character and thus to argue Chapter VIII cannot be merely procedural.
Dewan Hari Chand v. Municipal Corporation of Delhi (Delhi High Court)	Single-judge view that brothers are not entitled to compensation under Section 110-A and that entitlement should be determined by reference to the Fatal Accidents Act, 1855.	Not followed; the Court analysed the reasoning and found it inconsistent with the interpretation that Sections 110–110F are substantive and confer rights on legal representatives.
M. Basavalingiah v. T.P. Papanna (Bench decision of this Court)	Discussed whether the father of the deceased could be a person entitled to benefit and bring claim as representative under the 1939 Act.	Court noted that this Bench decision does not support the Delhi High Court view; it was distinguished on its facts and scope.
Suman v. General Manager, M.P.S.R.T.	Decided that a widow could file for compensation without joining her children.	Not directly on point; relied upon by the Delhi High Court but the present Court found it did not decide the specific issue of brothers' entitlement.
Chain Sukh v. Gopi Ram	Involved a suit under the Fatal Accidents Act when the 1939 Act was not in force.	Held to be inapplicable to the present issue because it pre-dated Sections 110–110F.
P.B. Kader v. Thatchamma (Kerala High Court)	Held that brothers and sisters are not dependants under Section 1-A of the 1855 Act (did not consider effect of Sections 110–110F).	Referred to as one of the cases taking the contrary view; Court observed it did not examine the effect of Chapter VIII of the 1939 Act.
Orissa Co-operative Insurance Society Ltd. v. B. Sahu	Held that Claims Tribunal is a substitute for a civil court and substantive law is still law of torts (single-judge decision).	Noted by the Court but found not to address the effect of Sections 110-A and 110-B on entitlement and apportionment of compensation.
M. Ayyappan v. Moktan Singh	Interpreted "legal representatives" in Section 110-F broadly and held that Rule 342(2) of the Mysore Motor Vehicle Rules (1963) was beyond State rule-making power when it restricted that meaning.	Referred to in support of a broad understanding of "legal representatives"; noted that issue of brothers/sisters' entitlement to dependency was not considered in that case.
Mohammed Habibullah v. K. Seethammal (Madras High Court)	Held that Sections 110–110F form a self-contained code and adjudication under the 1939 Act should be without reference to the 1855 Act.	Cited as authority supporting the view that the 1939 Act governs entitlement for motor-vehicle fatality claims; Court treated it as persuasive.
Vanguard Insurance Co. v. Chellu Hamimantha Rao (Andhra High Court)	Held that because 'legal representatives' is not defined in the 1939 Act, the Civil Procedure Code definition must be relied upon, permitting brothers to claim.	Noted by the Court as one of the authorities supporting a broader scope for "legal representatives."
Perumal v. Elluswmay Reddiar (Madras High Court)	Bench decision dissenting from an earlier Madras view; held brothers and sisters are not dependants under Section 1-A but might claim loss of estate; treated Sections 110–110F as not displacing substantive law of torts.	Discussed and critiqued by the Court for not adequately considering Chapter VIII and subsequent amendments reinforcing substantive rights.

Court's Reasoning and Analysis

The Court proceeded through a multi-step analysis grounded in legislative history, statutory construction and comparative review of case law:

Classification of prior decisions: The Court observed that High Court authorities on the point fall into three groups: (a) those holding the 1855 Act governs all fatal-accident claims and limits dependants to Section 1A categories; (b) those adopting a middle view that Sections 110–110F are procedural/adjectival and that a distinction exists between claims under Section 1A (dependants) and Section 2 of the 1855 Act (estate claims by representatives); and (c) those holding Sections 110–110F of the 1939 Act alone govern motor-vehicle accident claims and are not fettered by the 1855 Act.
Historical and legislative context: The Court traced the raison d'être of the Fatal Accidents Act, 1855 (Lord Campbell's Act) which allowed certain dependants to sue despite the old common-law doctrine that actions died with the person. It noted that prior to the introduction of Sections 110–110F, fatal-accident claims (motor or otherwise) were governed by the 1855 Act. The Parliament introduced Sections 110–110F by Act 100 of 1956 to provide a speedy remedy for dependants of those killed in motor-vehicle accidents.
Examination of Chapter VIII (Motor Vehicles Act): The Court examined Sections 93–106 and other provisions dealing with mandatory insurance, insurers' duties, protection of third parties, powers of the Claims Tribunal (including Section 110C and Section 110D right of appeal). The Court concluded that these provisions could not be considered merely procedural because they confer substantive protections and rights (for example, mandatory insurance obligations, insurer's duty to satisfy judgments, and rights of appeal).
Substantive vs. procedural distinction: The Court invoked authoritative discussion (including Garikapati Veeraya) on the substantive character of rights like appeals to show that procedural labels do not necessarily make provisions non-substantive. It observed that many procedural rules may have practical operation equivalent to substantive rules.
Statutory language comparison: The Court compared the language of Section 1A of the 1855 Act (which talks of damages proportioned to loss to enumerated dependants) with Section 110-B of the 1939 Act (which empowers the Tribunal to determine "just compensation" and to specify "person or persons" to whom compensation shall be paid). The Court found the words "just compensation" and "person or persons" to be wider and materially different from the narrower language of the 1855 Act.
Rule of interpretation and special v. general: The Court emphasised that the 1939 Act is a special Act for motor-vehicle accidents, and special provisions controlling the same field should override general provisions. Applying the settled rule of interpretation, the Court held Section 110-B should override para 3 of Section 1A of the 1855 Act where they conflict.
Conclusion on substantive character: From the foregoing, the Court concluded that Sections 110-A to 110-F are not merely adjectival or procedural but also substantive in nature and that "persons" in Section 110-B can include legal representatives who are not beneficiaries under Section 1A of the 1855 Act (for example, brothers and sisters), provided dependency is proved.
Application to present facts: The Tribunal's denial of dependency compensation to the brother and sister was therefore erroneous. The Court remitted to the factual inquiry whether dependency was proved and proceeded to evaluate the evidence on dependency and quantum.
Fact-based computation: Accepting evidence that the deceased earned Rs. 6 per day (with employer saying Rs. 7–8 some days), the Court deducted 50% for personal expenses (savings of Rs. 3 per day). It accepted that the brother and sister were dependent on him. It calculated monthly dependency at about Rs. 90, yearly Rs. 1,080, and, given the deceased's age (about 25) and prospects (immediate prospects of marriage to an elder sister's daughter), assessed dependency for a period of five years yielding Rs. 5,400.
Adjustment of loss to estate: The Court reduced the Tribunal's original award for loss to the estate from Rs. 6,000 to Rs. 5,000 having regard to the deceased's earnings and nature of work.
Aggregate award and consequential directions: The Court aggregated Rs. 5,400 (dependency) and Rs. 5,000 (loss to estate) to Rs. 10,400, rounded off to Rs. 10,000, awarded interest at 6% per annum from the date of the petition until realisation, ordered no costs, dismissed the M.F.A. and partly allowed the cross-objections.

Holding and Implications

Holding: The Court held that Sections 110-A to 110-F of the Motor Vehicles Act, 1939 are not merely procedural/adjectival but also substantive in character. Consequently, legal representatives (including brothers and sisters) can be entitled to compensation for loss of dependency under Section 110-B of the 1939 Act, notwithstanding that they are not enumerated as dependants under Section 1A of the Fatal Accidents Act, 1855, provided they prove dependency.

Implications:

Direct effect on parties: The Tribunal's denial of dependency compensation to the deceased's brother and sister was set aside. The Court awarded Rs. 5,400 for loss of dependency and reduced loss to the estate to Rs. 5,000; a global compensation of Rs. 10,400 (rounded to Rs. 10,000) was awarded with 6% interest from the date of the petition. The M.F.A. was dismissed and cross-objections were partly allowed.
Legal consequence: The decision establishes that claims tribunals may apply Sections 110–110F substantively to determine both entitlement and apportionment of compensation in motor-vehicle fatal-accident cases. It endorses a broader class of persons (legal representatives beyond the narrow list of Section 1A, 1855 Act) as potentially eligible recipients of "just compensation" under Section 110-B, subject to proof of dependency. This interpretation gives Chapter VIII of the Motor Vehicles Act substantive operation in rights and remedies concerning motor-vehicle fatalities.
Scope of precedent: The Court explicitly rejects the position that Sections 110–110F are purely procedural and confined the applicability of the 1855 Act to limit beneficiaries; instead, it treats the 1939 Act as a special statute that must be given overriding effect where relevant.

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The General Manager, Karnataka State Road Transport Corporation, Bangalore v. Peerappa Parasappa Sangolli And Others

Bopanna, J.:— This appeal arises out of the judgment and award of the Motor Accidents Claims Tribunal, Dharwar, in Misc. (M.V.C) No. 22 of 1975 awarding a sum of Rs. 6,000 as compensation to the claimants therein. The appellant in this appeal is the General Manager, Karnataka State Road Transport Corporation. There is also cross-objections by the claimants, who are respondents 1 and 2 herein, claiming enhanced compensation.

2. The facts of the case are not in dispute and may be briefly stated as follows: On 8th October 1974 at about 4.45 p.m the vehicle bearing registration No. MYF 4176 belonging to the appellant and driven by the appellant's driver, i.e, the third respondent herein, caused the death of the deceased Laxman Parasappa Sangolli, as a result of the rash and negligent driving of the driver. Respondents 1 and 2, who are the brother and the sister of the deceased, claimed damages amounting to Rs. 25,500 from the appellant and respondent No. 3. The appellant resisted the claim contending, inter alia, that the accident was not due to the rash and negligent act of his driver and the deceased only was responsible for his death on account of his contributory negligence.

3. The claims Tribunal disbelieved the case put up by the appellant and found the appellant's driver guilty of rash and negligent act on the basis of the evidence of an eye-witness, PW-4.

4. The learned counsel for the appellant has net seriously challenged the finding of the Claims Tribunal on this point but his grievance is that a sum of Rs. 6,000 awarded by the Claims Tribunal for the loss to the estate of the deceased is on the excessive side regard being had to the facts that the deceased was earning Rs. 6 per day.

5. We will consider this case at a later stage after we deal with the cross-objections of respondents 1 and 2 since the cross objections raise an important question of law for our determination.

6. The Claims Tribunal, though it found the driver guilty of actionable negligence, did not award any general damages to the Claimants on the ground that they did not fall within the category of the dependants under Section 1A of the Fatal Accidents Act, 1855, (hereinafter referred to as the ‘1855 Act’). Hence it confined its award to the grant of Rs. 6,000 for loss to the estate of the deceased and awarded the said sum to the claimants who are brother and sister as stated earlier, in the absence of nearer relations. Is held that succession opens by personal law and in, the absence of nearer relatives, the brother and the sister become the legal heirs.

7. Mr. Hiremath, learned counsel for the cross-objectors, maintained that the finding of the Claims Tribunal that the brother and the sister of the deceased are not entitled to claim compensation for loss of dependency is untenable regard being had to the language of Section 110B of the Motor Vehicles Act, 1939 (hereinafter referred to as the ‘1939 Act’). In support of his case he relied on the latest decision of the Gujarat High Court in 1977 A.C.J 253 (M.K Vira v. C. Taljabhai)(1). In the said case, the claimants were the brothers of the deceased. During the pendency of the claim application claimant No. 1, i.e, the first brother, passed, away’ without leaving any issues. The other brother predeceased the first brother leaving behind two sons. These two sons of the second brother were the legal representatives of the first brother also. They continued the proceedings for claiming compensation for the loss caused by the death of their uncle. The contention raised before the Court on behalf of the claimants was that a Claims Tribunal inquiring into claims for compensation in respect of fatal accidents arising out of the use of a motor vehicle must apply the law contained in Sections 110 to 110F of the 1939 Act since the said provisions provide a complete code for determining compensation for actionable negligence arising out of the use of motor vehicles as also for the determination of persons who are entitled to compensation and such determination is not governed by the 1855 Act. The opposite view put forth before the Court was that Sections 110 to 110-F of the 1939 Act are of procedural nature and the Claims Tribunal has to inquire into a claim for compensation in respect of a fatal accident arising out of the use of a motor vehicle under the law contained in Section 1A and 2 of the 1855 Act. According to this view, the nephews of the deceased were not dependants under Section 1A of the 1855 Act as that section recognises only the wife, husband, parent and child as dependants and, therefore, it was contended that the nephews of the deceased could not maintain an action for damages. A large number of cases for and against were cited before that Court in support of the respective contentions and the High Court itself felt that there was a sharp difference of opinion on the rival contentions canvased before it.

8. Though we did not have the benefit of detailed arguments on this controversial issue, we were taken through some of the decisions of other High Courts which could be classified into three categories. The first group of cases take the view that every claim application for compensation arising out of a fatal accident would be governed by the 1855 Act and no dependant other than the persons mentioned in Section 1A of the said Act can maintain an action for damages against the tort-feasors. The second group of cases take a via media view in that the provisions contained in Sections 110 to 110F of the 1939 Act are adjectival or procedural in nature and they draw a distinction between a claim under Section 1A of the 1855 Act and a claim under Section 2 of the said Act which could be brought by the representatives of the deceased who are entitled to succeed to the estate of the deceased. The third group of cases take the view that a claim for compensation arising out of the use of a motor vehicle could be determined only under Sections 110 to 110-F of the 1939 Act and the 1855 Act has no relevance to such determination and the principles laid down under that Act need not fetter the discretion of the Claims Tribunal in awarding just compensation to persons who are entitled to it.

9. The evolution of law relating to compensation in fatal accidents involving motor vehicles leading up to the enactment of Sections 110 to 110F of the 1939 Act may be briefly stated for a proper determination of the issue in this case. The 1855 Act came on the Statute Book to mitigate the rigour of the legal maxim ‘actio personal is moritur cum persona’ in the law of torts. The common law in England which rested on the fundamental principle that whenever a man has a right the law should give a remedy, did not provide any remedy to the dependents or the heirs of the deceased person whose death was caused by a tortious act of another persons because the cause of action to sue died with the person. On the other hand, a person who was slightly or seriously injured could maintain an action in damages against the tortfeasor. Hence the legislature stepped in to remove this anamoly and enacted the 4855 Act which is also known as Lord Campbell's Act in England. The 1855 Act in India rendered the maxim cited above obsolete and ineffective and under that Act the persons mentioned in Section 1A of the Act, viz., wife, husband, parent and child could maintain an action against the tortfeasor and recover damages for the tortuous action notwithstanding the death of the person injured. Section 2 of the Act provides that in any such action for damages 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 the tortuous act complained of and which sum when recovered shall be deemed part of the assets of the estate of the deceased. The preamble to the 1855 Act brings out plainly the propose of this enactment and till Sections 110 to 110F of the 1939 Act were enacted by the Parliament by an amendment to the Act, all claims under the fatal accidents in India involving motor vehicles or otherwise were governed by the Fatal Accidents Act. In this connection reference may be made to the decision of the Supreme Court in (Gobald Motor Service Ltd. v. R.M.K Veluswami)(2). The Supreme Court in that case dealt with the scope of Section 1A and 2 of the 1855 Act in a suit arising out of a claim for actionable negligence causing the death of certain persons in a motor vehicle accident and the Supreme Court laid down the law explaining the scope of Sections 1A and 2 of the 1855 Act. Sections 110 to 110F were not in the Statute Book when the suits for damages were filed in that case. The suit filed in the year 1948 reached its finality in the year 1961. Realising the difficult of the dependants of persons killed in motor vehicle accidents in obtaining compensation within the shortest period possible without going through the tortuous course of a regular civil suit, an appeal or second appeal as the case may be, the Parliament by Act 100 of 1956 introduced Sections 110 to 110F in the 1939 Act for providing a speedy remedy for the dependants of the deceased.

10. The scheme of Chapter VIII of the 1939 Act will also throw some light on the question whether the provisions of Sections 110 to 110F are only procedural in nature or whether they confer certain substantive rights to the persons who seek the remedies under those provisions. Sections 93 to 106 relate to insurance of motor vehicles against third party risks. These provisions are intended to ensure that the persons who claim compensation in respect of accidents involving motor vehicles do not obtain a mere paper decree but realise the fruits of the decree substantially by virtue of the provisions which make it obligatory for the owner of the motor vehicle to take a policy of insurance complying with the requirements of Chapter VIII. It also provides coverage for the owners of the vehicles who may innocently or negligently be involved in the motor accident. Section 95 specifies the requirements of the policy and the limits of liability of the insurance company. Section 96(1) imposes a duty on insurance companies to satisfy judgments against persons insured in respect of third party risks. Section 97 protects the rights of third parties against insurers on the insolvency of the insured. Section 110C(i) Confers powers on a claims tribunal to prevent the abuse of the insurance policy taken by the owners by permitting the insurance companies to take over the defence of the owner when there is collusion between the claimant and the owner and contest the claim on all or any of the grounds that are available to the owner against whom the claim has been made. This is the protection given to the insurer on account of the limited defence that is available to him under Section 96(2) of the Act. Under Section HOD there is a right of appeal to the High Court against an award of the Claims Tribunal. These provisions do show that the provisions contained in Chapter VIII of the 1939 Act could not be termed as only procedural. Reference may be made in this connection to (Garikapati Veeraya v. N.S Choudhary)(3). The Supreme Court while dealing with the right of appeal and the repeal thereof by subsequent legislation has held that the right of appeal is not a mere right of procedure but it is a substantive right and once this right is vested in a person it can be taken out only by a subsequent enactment. Chapter VIII which contains the provisions Section 110 to 110F enables the claimants to seek compensation in respect of accidents involving motor vehicles either against the owner or his driver and also against the insurance company which has covered the risk of the owner in terms of the mandatory requirements of Section 94 and empowers the Tribunal to determine the compensation which appears to it to be just and thereafter apportion the compensation to person or persons who are entitled to receive the same and further apportion the liability of the insurance company or the owner or the driver of the vehicle involved or by any of them as the case may be and the party aggrieved by the award has also a right of appeal under Section 110D. These provisions leave no doubt in our minds that Chapter VIII which contains Sections 110 to 110F do confer substantive rights on the parties who seek the remedy under the said sections.

11. The right to claim damages and pecuniary loss to the estate of the deceased is founded in the Law of Torts. The 1855 Act confers that right to certain persons mentioned in Sections 1A and 2 of the said Act. The 1939 Act singles out fatal accidents involving motor vehicles and gives the legal representatives of the deceased a right to bring an action for compensation under Section 110A(i)(b). Section 110B confers on the Tribunal a right to determine just compensation and specify the person or persons to whom compensation shall be paid.

12. The Key sections for the purpose of this case are Sections 110A and HOB of the 1939 Act. Section 110-A determines the persons who can apply for compensation: Section 110-B empowers the Claims Tribunal to hold an inquiry into the claim and make an award determining the amount of compensation which appears to it to be just and specify the person or persons to whom compensation shall be paid. Under this section the Claims Tribunal also has the powers for apportionment of compensation payable by the insurer, the owner or the driver of the vehicle involved in the accident. “In civil law, the rules as to the measure of damages pertain to the substantive law, no less than those declaring what damage is actionable. To define procedure as concerned not with rights, but with remedies, is to confound the remedy which the process by which it is made available.” (See salmond on Jurisprudence 12th Edition P. 461). The learned author had further observed:

“Although the distinction between substantive law and procedure is sharply drawn in theory, there are many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law. In such cases the difference between these two branches of the law is one of form rather than of substance. A rule belonging to one department may by a change of form pass over into the other without materially affecting the practical issue. In legal history such transactions are frequent, and in legal theory they are not without interest and importance.”

13. It may be noted that Section 110-A of the 1939 Act enables all or any of the legal representatives of the deceased to apply for compensation arising out of an accident of the nature specified in sub-section (i) of Section 110. In the 1855 Act the second paragraph of Section 1A provides for compensation for the benefit of the wife, husband, parent and child of the deceased person. If Section 1A is construed as a substantive provision, Section 110-A which enables all the legal representatives to maintain an action for compensation must also be treated as a substantive provision. The 1939 Act is a special Act providing for adjudication of claims in respect of accidents involving motor vehicles and while dealing with a special Act we should take notice of the fact that the special Act or rule controls the general act or the rule in the same field. Even in respect of damages that may be awarded under the 1855 and 1939 Acts, the yard-stick for the quantification is not the same. Under the 1855 Act the Court is empowered to give such damages as it may think proportioned to the loss resulting from such death to the parties for whose benefit the action for damages has been brought and it further empowers the Court to apportion the damages amongst the persons who are entitled to receive it under para 2 of Section 1-A. Whereas under Section 110-B of the 1939 Act the Tribunal is empowered 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. Here also the material difference in the language of Section 1-A of the 1855 Act and 110-B of the 1939 Act may be noticed. The words ‘just compensation’ and ‘person or persons’ in Section 110-B are not the same thing as damages proportioned to the loss resulting from the death of the deceased to the parties who could only mean wife, husband, parent and child of the deceased person under the 1855 Act. The language of Section 110-B in the matter of determination of compensation and recipients of compensation is wider than the language of Section 1-A of the 1855: Act. Due regard being had to these wide powers under Section 110-B of the 1939 Act, the said provision cannot be construed as a procedural provision but as a substantive provision and applying the settled rule of interpretation Section 110-B should override the general provision contained in para 3 of Section 1-A of the 1855 Act

14. The law in India which governs cases for compensation for tortious acts of tortfeasors is the law of torts. This branch of common law is literally borrowed from the common law of England. The Fatal Accidents Act was enacted in the year 1855 with the limited object of providing for compensation to families for loss occasioned by the death of a person on account of an actionable wrong. Such actionable wrong may be committed by a person while driving a motor vehicle or riding a horse or a bicycle. In the year, 1855, the motor vehicle was neither invented nor was it in existence India and though the 1855 Act has been modified upto 1967 is no reference to Motor vehicles in the Act. In the circumstances, the view of some High Courts that notwithstanding the provisions of Sections 110 to 110-F of the Act, the claim for compensation involving accidents caused by motor vehicles should be governed by the 1855 Act does not appear to be sound. The determination of compensation under Section 110-B of the Act is covered by the law of torts for that is the common law of the land and in the absence of any guide-lines for determining compensation as provided for under Section 23 of the Land Acquisition Act or Sections 73 and 74 of the Contract Act or under the relevant provisions of the Industrial Disputes Act, the Claims Tribunal necessarily has to follow the common law of torts for determining compensation. If that point is conceded, then the persons who are entitled to compensation cannot be specified with reference to the provisions of the 1855 Act. Therefore, we are of the view that the ‘persons’ in Section 110-B of the Act could be persons who are not beneficiaries under Section 1-A of the 1855 Act but persons who come within the meaning of the word ‘legal representatives’ under the 1939 Act and there is no dispute that the brothers and the sisters of the deceased person in this case are ‘legal representatives’. There is also no dispute that the deceased was killed in an accident involving a motor vehicle. Therefore, the brothers and the sisters of the deceased are entitled to compensation as legal representatives, provided they prove their dependancy on the deceased.

The net result of this discussion is that Sections 110-A to 110F of the 1939 Act are not merely adjectival or procedural but also substantive in nature.

15. Now the cases which have taken the contrary view may be briefly referred to. In Dewan Hari Chand v. Municipal Corporation of Delhi(4) a single Judge of the Delhi High Court has taken the view that the brothers of the deceased are not entitled to claim compensation under Section 110-A of the 1939 Act. The view taken by the learned Judge is that question has to be determined by a reference to the Fatal Accidents Act 1855. The reasoning of the learned Judge is that Section 110-A only specifies the persons who are competent to file an application for compensation but it does not mean that such persons in their own right are entitled to receive compensation. The Court observed ‘it has been generally recognised that only such persons would be entitled to receive compensation under the Act as are entitled to receive’ compensation under the 1855 Act and such persons are specified in Section 1-A of the 1855 Act, i.e, the wife, husband, parent and child of the deceased ‘. The Delhi High Court referred to the ruling of this Court in M. Basavalingiah v. T.P Papanna(5). We do not find anything in the Bench decision of this Court to support the view taken by Delhi High Court. What was considered by this count was whether the father of the deceased is one of the persons who is entitled to the benefit of compensation and whether he can bring a claim petition as a representative of the person deceased. This Court reversing the decision of the Claims Tribunal held that the father is a legal representative of the deceased and he can make a claim under Section 110F of the 1939 Act without joining the mother of the deceased though she is a heir of the deceased under the Hindu Succession Act.

The other case referred to by the Delhi High Court is Suman v. General Manager, M.P.S.R.T(6). That case also did not decide the point in issue before us. What was decided there was that the widow of the deceased could file an application for the compensation without joining her children in the petition.

The third case referred to by the Delhi High Court is Chain Sukh v. Gopi Ram(7). This case does not require any examination because this dealt with a suit which was filed under the Fatal Accidents Act as admittedly the 1939 Act was not in the Statute Book at that time.

The fourth case relied upon by the Delhi High Court is (P.B Kader v. Thatchamma)(8). The kerala High Court while holding that the brothers and sisters are not entitled to rank as dependants under Section 1-A of the 1855 Act did not consider the change in the law effected by Sections 11-A to 110-F of the 1939 Act, but they did observe that the 1855 Act ‘is a trifle archaic in form and somewhat obsolescent in content, but courts are called upon to enforce the statute as it is’. They referred to progressive amendments to the English statute which have not been copied in cur country and pointed out that in England under Section 2 of the Fatal Accidents Act, 1959 brother, sister, uncle and aunt of the deceased and the issue of such relatives have been inducted into the area of statutory dependants. There is no consideration of the effect of Section 110-A to 110-F of the Motor Vehicles Act.

The last case referred to by the Delhi High Court is Orissa Co-operative Insurance Society Ltd. v. B. Sahu(9). This is also a judgment of a single Judge which held that claims tribunal is just a substitute of a civil court and the substantive law is still the law of torts. The point for consideration there was whether the kartha of the joint family could maintain an application for compensation without making the other heirs of the deceased parties to the petition. That case also does not deal with the effect of the provisions of Sections 110-A and 110-B of the Act which enable the legal representatives to maintain an application and enable the court to award compensation to such persons as it may think fit.

16. This Court in M. Ayyappan v. Moktan Singh(10) while defining the scope of the expression ‘legal representatives’ in Section 110-F of the Act held that the meaning and the scope cannot be restricted to the definition given in Section 2(ii) of the C.P.C and in that view of the matter it held that Rule 342(2) of the Mysore Motor Vehicle Rules 1963 which restricts the meaning of the term legal representative is beyond the rule making powers of the State. Whether the brothers and sisters are entitled to damages for toss of dependancy was not considered in that case.

17. The Madras High Court in (Mohammed Habibullah v. K. Seethammal(11) had occasion to consider the point before us under more or less similar circumstances. In that case a bachelor died in a motor accident leaving behind a married sister. She field a claim for compensation under Section 110-A of the 1939 Act. The plea that she had no right to claim compensation because she was not a representative of the deceased within the meaning of the term as defined in the 1855 Act was negatived by a Bench of the Madras High Court and they expressed the view that Sections 110 to 110-F of the Act are part of a self contained code in the adjudication of claims for compensation on behalf of the victims of a motor accident and such adjudication must be made without reference whatever to the provisions of the 1855 Act.

18. The Andhra High Court in (Vanguard Insurance Co. v. Chellu Hamimantha Rao(12) has taken the view that the brother of the deceased is entitled to claim compensation because the expression ‘legal representatives’ is not defined in the 1939 Act, and therefore, one has to rely on the expression as defined in the Civil Procedure Code.

19. It may be noticed that the earlier decision of the Madras High Court in (Mohammed Habibullah's case) was dissented by another Bench of the Madras High Court in (Perumal v. Elluswmay Reddiar)(13). Justice Kailasam (as he then was) and Justice Ramaswamy, who constituted the Bench, took the view that the brothers and the sisters of the deceased are not entitled to compensation for loss of benefit as they are not ‘dependants’, under Section 1-A of the 1855 Act but they would be entitled to claim compensation towards loss of estate of the deceased as persons who represented his estate. They opined that neither of the contentions, viz., (i) that the sisters and brothers are not ‘dependants’ under Section 1-A of the 1855 Act and hence they cannot claim compensation under the 1939 Act and (2) that the provisions of the 1855 Act have no application to a claim before the Claims Tribunal and that the provisions of the 1939 Act give a right to all legal representatives of the deceased to maintain a claim for compensation, is correct. This view of the Madras High Court was on the premise 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 tortuous acts. They proceeded on the assumption that Sections 110 to 110-F of the Act do not say that in every case of accident, whether as a result of a tortuous act or not, the injured or the legal representatives of the deceased are entitled to compensation. It is only under the general law of torts that the substantive right to claim compensation arises. Referring to Section 110-B of the Act which provides for determination of the amount of compensation which appears to be just, they interpreted the same as to mean that the Tribunal should look to the law of torts in determining such compensation. They also referred to the amended Section 95 of the Act which provides for covering of passenger risks of public service vehicles irrespective of the culpability of the owner or the driver of such vehicle in any accident in which it may be involved provided there was no contributory negligence on the part of the victim. However, they did not answer the effect of the amendment because of two reasons: firstly, the amendment came into effect in the year 1969 before the cause of action arose to the claimants in that case and secondly, the amendment provides for absolute liability, if any, in respect of passengers in a public service vehicle and in the case before them they were not concerned with any passenger who was injured or dead in the accident. Though the learned Judges were right on the first point in not considering the effect of the amendment to Section 95 of the Act by Act 56 of 1969, we are of the view that the second reasoning that they were not concerned with any passenger who was injured or dead in the accident in the case before them, does not appear to be sound. What was urged before the learned Judges was that regard being had to the Amendment Act 56 of 1969, the persons injured or the legal representatives of the persons who are killed in accidents involving motor vehicles are conferred with certain rights and those rights make the provisions of Sections 110 to 110-F substantive in character and not merely procedural. In the absence of any consideration of the effect of Chapter VIII of the Act, the view of the learned Judges that the provisions of the Act are only procedural does not appears to be correct.

20. After referring to the 1855 Act, the learned Judges of the Madras High Court came to the conclusion that the legal representatives i.e, the brothers and the sisters of the deceased in that case were entitled to claim compensation for loss of estate of the deceased on this proposition, there cannot be any dispute and this Court has also consistently taken the same view, but the learned Judges of the Madras High Court did not make a comparative analysis of the provisions of Sections 110-A and 110-B of the Act with the provisions of the 1855 Act before coming to the conclusion that the provisions of the Amendment Act are wholly procedural in nature.

21. Our attention was invited to two decisions of the Supreme Court holding that the provisions of Section 110 and other related sections are procedural in nature. The observations of the Supreme Court in those cases were made in the context of questions involving the law of limitation and jurisdiction of civil courts and the Supreme Court had no occasion to consider the right of legal representatives to claim compensation for loss of dependency.

22. In the view that we have taken on the legal position relating to grant of compensation on the head—Loss to the dependency to the brother and sister who are legal representatives of the deceased, the Tribunal is in error in disallowing compensation on that head. We do not agree with the finding. Hence, it is set aside. We hold that the brother and sister are entitled to the award of compensation for loss to the dependency.

23. The next question for determination is whether they have proved their dependency and if so what is the quantum of compensation which they are entitled to get.

24. The evidence discloses that the deceased was earning Rs. 6 every day. Deducting 50 per cent for his personal expenses he was saving Rs. 3 per day. He was a member of the joint family. His Brother and sister were depending on him. His brother has deposed that he was giving his earning to him. To the same effect is the evidence of the sister. We are inclined to accept their evidence and hold that they were depending on the contribution made by the deceased for their maintenance. He was aged about 25 years. His employer has also deposed that he was paying him Rs. 7 to Rs. 8 per day. So it can be reasonably assumed that he was contributing to the family not less Rs. 3 per day. At that rate the dependency per month would be about Rs. 90 and per year it would be Rs. 1,080. Since he was unmarried and had the immediate prospects of marrying his elder sister's daughter, we will assess his dependency for a period of five years and that comes to about Rs. 5,400. Accordingly, we award a sum of Rs. 5,400 for loss of dependency to the claimants.

25. As regards loss of estate, we think the amount of compensation should be reduced to Rs. 5,000 regard being had to the earnings of the deceased and the nature of his work. Accordingly, a sum of Rs. 5,000 is awarded under this head.

26. Thus a global compensation of Rs. 10,400 rounded off to Rs. 10,000 is Awarded to the cross-objector—claimants with interest at 6 per cent per annum from the date of the petition up to the date of, realisation. No costs. The M.F.A is dismissed Cross-objections partly allowed.

The General Manager,... v. Peerappa Parasappa S...