H.L Agrawal, C.J:— This appeal arises out of a proceeding for compensation on account of an accident in which the husband of respondent No. 1 was killed and is directed against the order of a learned Single Judge of this Court (reported in 1978 A.C.J 61).
2. The significant question of general importance that falls for our consideration in this case is as to whether the widow of a victim will cease to be entitled to the compensation under the provisions of the Motor Vehicles Act, 1939 (for short ‘the Act’) in the event of her remarriage. Briefly stated, the facts are as follows:
In the afternoon of 12-6-1969, a Station Wagon bearing registration number ORC 3442 belonging to the State of Orissa in which the deceased Surendra Kumar Nayak, the husband of respondent No. 1, was travelling from Cuttack to Bhubaneswar with other passengers met with a head-on collision with a truck (number ORU 1053) on the National Highway resulting in the death of three passengers including Surendra Kumar Nayak. His widow and the minor girl filed an application under section 110-A of the Act before the 2nd. Motor Accident Claims Tribunal, Puri, claiming a compensation of Rs. 2,00.000/-.
3. The Tribunal gave an award for Rs. 70,000/- but the matter was remanded by this Court in the appeal filed by the State of Orissa and a cross-appeal by the claimants for a fresh disposal by the Tribunal after allowing the parties to lead further evidence on certain points as indicated in the remand order.
4. On the further evidence adduced by the parties, the Tribunal reduced the compensation amount to Rs. 32.000/- only. According to the finding of the Tribunal, the monthly contribution of the deceased for the benefit of the claimants was Rs. 250/-, i, e Rs. 200/- for the widow and Rs. 50/- for the minor child. The Tribunal purported to apply a multiplier for a period of 20 years. But for the fact of remarriage of the widow on 17-9-1973, i.e, after 4 years and 5 months of the death of her husband, and for the submission made on behalf of the opposite parties that on that account she was not entitled to any compensation after the period of her remarriage, the Tribunal awarded Rs. 10,000/- only to her for the said period. It further assessed the pecuniary loss to the child at the rate of Rs. 50/- until the period of remarriage of her mother and at an enhanced rate of Rs. 170/- per month for a period of 16 years. Thereafter allowing certain deductions, it reduced the amount to Rs. 32,000/-. Rs. 10,000/- for the widow and Rs. 22,000/- for the minor child, which was to be kept in a fixed deposit in her name in the State Bank of India. It divided the total liability of compensation of Rs. 32,000/- into half and half between the owners of both the vehicles.
5. An appeal was preferred by the claimants in this Court challenging the quantum of compensation. The learned Single Judge of this Court, who heard the appeal, on reference to several decisions dealing with the question of ‘just compensation’ including the decision in the case of Sabita Pati v. Rameshwar Singh . 1973 A.C.J 319., held that the claimants were entitled to Rs. 63,000/-. On account of the remarriage of the widow, the learned Judge slashed the compensation by 7/24 and ultimately awarded a compensation of Rs. 95,000/-. Out of this, Rs. 25.000/- was set apart for the minor daughter which was to remain in fixed deposit with the State Bank of India in the same manner as directed by the Tribunal, and the remaining sum of Rs. 70,000/- was made payable to the widow “for the benefit of both the claimants.” On the increased amount, interest at 9 percent was also awarded from the date of the application till the date of the payment. The liability of the owners of both the vehicles was, however, made joint and several.
6. The State of Orissa has filed the present appeal under the provisions of the Orissa High Court order and the main ground taken in the appeal is that the widow (respondent No. 1) ceased to be entitled to any compensation after her remarriage and the learned Single Judge, therefore, should not have allowed any compensation to her for the period subsequent to that event.
7. Section 110-A of the Act, while providing for making application for compensation arising out of an accident in case of death, provided that the application has to be made “by all or any of the legal representatives of the deceased.” 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 respondent to the application.
8. Thus it is clear and obvious that the right to claim compensation is in the legal representatives.
9. The expression ‘legal representative’ has not been defined in the Act, but it has been defined under section 2(11) of the Code of Civil Procedure (for short ‘C.P.C’) to mean “a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased.”
10. In several States including Assam, Delhi, Mysore, Rajasthan and U.P the expression ‘legal representatives’ has been defined to have the same meaning as has been assigned to it under section 2(11) of the C.P.C. So much so, the Andhra Pradesh and Madhya Pradesh High Courts have held that even in the absence of any rule to that effect, the definition of ‘legal representative’ as in section 2(11) of the C.P.C would be applicable to the proceedings under this Act, and the expression would mean the same thing even for purposes of section 110-A. Bhagwatidin v. Gheesabibi . 1980 A.C.J 116 M.P. and Vanguard Ins. Co. v. Chellu Hanumantha Rao.3 The Madras High Court has purported to give a wider meaning to this expression. It is, however, not necessary to enter into this controversy. But it does not require much discussion that the right to claim compensation must be confined to those persons alone who are entitled to be maintained and supported by the victim and that they must be his legal representatives. The framers of the Motor Vehicles Act while using the expression ‘legal representatives’ in section 110-A must be deemed to be aware of this expression in the C.P.C and there is no gainsaying that a widow after her remarriage cannot be said to continue as the legal representative of her first husband. Rather, her status comes to an end even after her divorce. In the case of Payee Collins v. Taylor Woodrow Construction Ltd. . 1975 A.C.J 431 Q.B., it has been held that a divorced wife is not a person for whose benefit a claim may be made for compensation.
11. In the backdrop of the above legal position in regard to the right to claim compensation, I now proceed to consider the main point.
12. The effect of remarriage by a widow after the death of her husband has fallen for consideration in several cases from time to time some of which were cited at the Bar & some others I came across while examining the matter. The cases on the subject can be conveniently divided into three categories, namely: (1) where there is simple observation for making some deduction from the total compensation for the apprehended chance of remarriage, (ii) where the view has been taken that remarriage of the widow was of no consequence in computing the compensation, and, (iii) where remarriage has been held to be a disability for the widow to get compensation, the date of marriage being taken to be cotercninus for calculating compensation. However, before coming to the cases, let me examine some analogous provisions in the relevant laws dealing with the rights of the widows.
13. Under Section 2 of the Hindu Widows' Remarriage Act, 1856 (for short ‘1856 Act’), all rights and interests of a widow in her deceased husband's property shall cease upon her remarriage and shall be determined “as if she had then died.” But by virtue of section 4(1) of the Hindu Succession Act, 1956, the provisions of section 2 of the 1856 Act stand abrogated. See Jagdish Mahton v. Mohammad Elahi . A.I.R 1973 Patna 170.. But nonetheless it cannot be disputed that she ceased to be a legal representative of her first husband. It may well be that by virtue of section 14 of the Hindu Succession Act, the property of her husband vested in her cannot be divested, i.e, once a widow succeeds to the property of her husband and acquired an absolute right over the same, she would not be divested of that absolute right on her remarriage. But she would certainly cease to be a legal representative of the first husband on her remarriage. Under section 22 of the Hindu Adoptions and Maintenance Act. 1956, she also ceases to be a dependant and thus if a widow remarries after the death of her husband, her dependency ends.
14. So far as India is concerned, in spite of reformation of the personal laws governing the Hindus and the Society becoming more liberal, remarriage of a widow is still very uncommon and in high class families widow marriage is generally looked upon with disfavour. In any case the chances of remarriage of a widow would largely depend upon her personal accomplishment, age, appearance and the like. As the award has to be made once for all, there being no possibility of varying it in either way, it will always be very difficult to ascertain the possibility of remarriage with any precision.
15. So far as England is concerned, the law has been changed under the law Reform (Miscellaneous Provisions) Act, 1971 and the remarriage of the widow or the chance of her remarriage is not to be taken into account in assessing the damages payable to her, See Thompson v. Price . 1974 A.C.J 501 Q.B..
16. But before 1971, in England also the element of chance of remarriage of a widow was being taken to be a factor for reducing the amount of compensation. Reference, if needs be, can be made to the decisions in Buckley v. John Allen & Form (Oxford) Ltd. . 1967 2 Q.B 637., Mead v. Clarke Chapman & Co. Ltd. . 1956 1 All. E.R 44 C.A., Nance v. British Columbia Electric Railway Co. Ltd. . 1951 A.C 601 at page 615. and Gocrd-burn v. Thomas Cotton Ltd. . 1968 1 Q.B 845..
17. A learned Judge of the Rajasthan High Court in the case of R.B Moondra & Co. v. Mst. Bhanwari . A.I.R 1970 Raj. 111., however, dealing with a case under the Workmen's Compensation Act did not accept the argument that a widow of the deceased on her remarriage would not be regarded as a dependant and, thus, entitled to compensation. The learned Judge declined to follow the provisions of the Hindu Adoptions and Maintenance Act on the sole ground that the definition of the expression ‘dependant’ under the Workmen's Compensation Act was not so restricted and, therefore, remarriage will not disentitle her to claim compensation. But in a recent decision in the case of Makbood Ahmed v. Bhura Lal . 1986 A.C.J 219., the Rajasthan High Court took the view that if a widow remarries after the death of her husband, her dependency ends and the amount of compensation is to be calculated only upto the date of her remarriage. A Bench of the Madhya Pradesh High Court in the case of Majula Devi Bhuta v. Manjusri Raha . 1986 A.C.J 1., in a well considered judgment held that if the widow remarries, loss would be assessed only for the period she remained as a widow. A learned Judge of the Punjab and Haryana High Court in the case of Municipal Committee, Jidlundur v. Jagdish Kaur . 1978 A.C.J 359., however, declined to make any deduction on the possibility of the widow contracting a second marriage. I would, however, like to quote a passage from the aforesaid decision.
“……It is not possible to agree with the contention of the learned counsel for the Municipal Committee and to deny proper compensation to the claim-ant on the speculative plea that she was likely to contract a second marriage……”
18. The Supreme Court in the case of Gobald Motor Service Ltd. v. R.M.K Veluswami . A.I.R 1962 S.C 1., if I may say so with respect, indicated the factors which should be considered for assessing the pecuniary loss to the dependant, and in substance, the general principle enunciated is that “the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source come to them by reason of death, that is, the balance of loss and gain to a dependant by the death must be ascertained”. The actual extent of pecuniary loss must necessarily be an estimate, or even partly a conjecture. In calculating pecuniary loss to the dependants many imponderables enter into the calculation.
19. A decision more on the point is of a learned Single Judge of the Delhi High Court in the case of Jaimal Singh v. Jawala Devi . A.I.R 1976 Delhi 127.. I am tempted to quote paragraph 34 of the said decision.
“One problem which has been much discussed in recent years in England has been the requirement of assessing the likelihood of remarriage of a widow who is claiming damages for the death of her husband. Since these damages are primarily awarded for the loss of financial support the amount to be awarded may be very much less if the widow is likely to remarry in the near future-for she will then have made good her lost support. Consequently a judge is expected, and indeed required, to assess the likelihood that a widow will remarry, this he can only do by listening to what she has to say and by making some assessment of how attractive she appears to be. (See Goodburn v. Thomas Cotton Ltd., (1968) 1 Q.B 845). Judges have not concealed their distaste at being required to perform this exercise. Delicate problems were posed for the Judge who had to determine the issue of widow's remarriage potential. He had to decide whether the widow was attractive or unattract-ive. In Buckley v. John Allen and Ford (Oxford), (1967) 2 Q.B 637 at pp. 644-645 Phillimore, J. said:
“Am I to ask her to put on a bathing dress; because the witness-box is calculated to disguise the figure ?…Am I to label the lady to her face as attractive or unattractive ? If I have the temerity to apply the label, am 1 likely to be right ? Supposing I say she is unattractive; it may well be that she has a friend who disagrees and has looked below the surface and found a charming character.”.
20. The learned Judge in paragraph 40 observed that to cover such apprehension of remarriage of a widow, the defendant can be compelled to pay a lump sum into the Court which would then administer the periodical payments”. In the case before the learned Judge, although 10 years had passed since the death of her husband, the widow had not remarried. She had also a son grown up by that time. He accordingly ruled out the possibility of remarriage of the widow and apportioned the compensation to the three heirs, i.e, the widow, his son and the mother, in different ration.
21. The Ranchi Bench of the Patna High Court in the case Sobha Jain v. Bihar State Tribunal Co. Op. Development Corporation Ltd., Ranchi . A.I.R 1983 Patna 39., where the widow had remarried and although the fact that the second husband had no independent source of income was also taken into account, the widow who was a Hindu was allowed full compensation treating her to be a legal representative. Rather, it was held that “a widow does not cease to be a legal representative of the deceased after remarriage and as such she is entitled to compensation on account of the death of her deceased husband”. I am afiaid, I find myself unable to agree with the view of the Patna High Court nor do I find any discussion on this question in the judgment for arriving at this conclusion, and only referring to the decision in R.B Moondra & Co. v. Mst. Bhanwari (supra), the above conclusion was arrived at.
22. Learned counsel for the claimants, on the other hand placed reliance on a decision of the Supreme Court in the case of M.P State Road Transport Corporation v. Sudhakar . 1977 3 SCC 64, where in an accident an earning wife was killed and the husband who had made a claim application had remarried within 11 months of the accident. But on this fact no deduction was made from the amount of compensation assessed on the ground that the husband may not be dependant on the wife's income. This decision is hardly of any assistance to the claimants as in Indian Society it is the house wife who is dependant upon the husband and not the husband upon the income of the wife. Apart from this fact, taking a second wife does not make a change in the right of the husband to maintain the action for compensation as the legal representative of the deceased wife. But in the case of a wife remarrying on the death of her husband, as already indicated, there is a cessation of her status as the legal representative of her husband and she suffers a civil death so far as the estate of her first husband is concerned.
23. From the above discussions, the irresistible conclusion that would follow is that Archana Nayak (respondent no. 1), the widow of the deceased, will be entitled to compensation only for the period she remained as his widow, i.e, until the date of her remarriage (17-9-1973). As a matter of course, therefore, she can get compensation only for the period of 4 years and 5 months as was done by the Claims Tribunal.
24. The Tribunal calculated the compensation for the widow @ 200/- per month for the said period. But on her appeal this Court adopted a different mode and awarded a net amount of Rs. 95,000/- Rs. 25,000/- was ordered to be put in a Bank to the credit of the minor and the balance amount of Rs. 70,000/- payable to Smt. Archana Nayak for the benefit of both the claimants. It would appear from the judgment under appeal that the learned Single Judge on the basis of the monthly contribution has calculated the compensation taking Rs. 500/- as the monthly contribution for the benefit of the family whereas the Tribunal had taken Rs. 250/- only as the monthly contribution. In this way, the learned Single Judge computed the compensation on the basis of a larger monthly contribution. Applying the standard of contribution found by the High Court, the compensation of Rs. 32,000/- calculated by the Tribunal should be raised to Rs. 64,000/- and similarly the respective appropriation in respect of both the claimants (respondent nos. 1 and 2) can be raised from Rs. 44,000/- to the daughter and Rs. 20,000/- to the widow of the deceased. I would, therefore, reduce the amount of compensation from Rs. 95,000/- to Rs. 64,000/- by adopting a simpler mode and without going into the various complexities of calculation discussed in detail in the two orders. In this amount of Rs. 64,000/- the share of the widow being only Rs. 20,000/-, the rest should go to the daughter. According to the judgment under appeal Rs. 25,000/- should be kept in a fixed deposit. Therefore, a further sum of Rs. 19,000/- remains to be paid to the daughter. I would, therefore, direct that a sum of Rs. 20,000/- be paid to respondent no. 1 (Smt. Archana Nayak) as her personal compensation and Rs. 19,000/- to her for the benefit of the daughter. If the daughter in the meantime has attained majority, this amount be paid in cash to her. The direction regarding interest shall remain intact.
25. In the result, therefore, this appeal is allowed in part but without any order as to costs.
B.K Behera, J.:— I have read the judgment of my Lord the Chief Justice.
26. The term ‘legal representative’ has not been defined in the Act. This Court, in M.A No. 168 of 1974 decided on April 8, 1976 which has not been fully reported and has been indicated in State of Orissa v. Kapil Biswal . 42 1976 C.L.T Notes 84 61. and some other High Courts have given an extended meaning to the term ‘legal representative’ without circumscribing its limit to the definition of this term provided in section 2(11) of the Code of Civil Procedure—See Mohammad Habibullah v. K. Seethammal . A.I.R 1967 Madras 123., M. Ayyappan v. Moktar Singh . A.I.R 1970 Mysore 67., Kasturilal Gopaldas v. Prabhakar Martand Patki . A.I.R 1971 M.P 145., M. Basuvalingaiah v. T.P Pappanna . A.I.R 1972 Mysore 63. and Mahendra Singh…(); v. Smt. Krishna Devi…(). . A.I.R 1979 Allahabad 4.. This question does not fall for consideration in this case inasmuch as the widow and the child are the legal representatives whether a wider meaning is given to the expression ‘legal representative’ or a narrower.
27. The moot question is: Can the widow maintain her claim for compensation after her remarriage ? This question has given rise to divergence in judicial opinion. A Division Bench of the Patna High Court had ruled in Sobha Jains case (supra) that under section 110-A of the Act; a legal representative of the deceased is entitled to compensation and the widow of the deceased does not cease to be a legal representative after her remarriage and is entitled to compensation on account of the death of her husband. In that case, it was noticed that the second husband of the widow had no independent source of income whereas her previous husband was in service at the time of his death and it was observed that the widow was entitled to compensation for the death of her first husband. The opposite view has been taken by a Division Bench of Allahabad High Court in The Oriental Fire and General Insurance Company v. Smt. Chandrabati . A.I.R 1983 Allahabad 174. It has been held that on remarriage, the dependency of the widow comes to an end and she is not entitled to any amount of compensation. A learned Single Judge of the Rajasthan High Court in Makbood Ahmed's case, (supra) has also taken the same view.
28. Compensation is granted for loss of dependency. It is assessed with reference to the loss of future pecuniary benefit, that is to say, the loss of the financial contribution which the deceased would have made had he lived. The widow ceases to be a dependant upon her remarriage. (See section 21(iii) read with section 22 of the Hindu Adoption and Maintenance Act). Under the Hindu Law, a widow daughter-in-law is entitled to be maintained by the father-in-law under certain circumstances. But the obligation to maintain ceases on the remarriage of the daughter-in-law. (See section 19 of the Hindu Adoptions and Maintenance Act). Similarly, a direction for payment of permanent maintenance given by the Court while passing any decree for judicial separation or divorce or any time subsequent thereto, may be rescinded by the Court upon remarriage. (See sub-section (3) of section 25 of the Hindu Marriage Act). The juristic principle is that the entitlement ceases upon remarriage. If wife could not claim financial contribution from the husband upon her remarriage, on parimateria reasoning, the widow cannot claim compensation on the basis of loss of dependency after her remarriage.
29. The question can be approached from another point of view. To maintain the application, the claimant must not only be a legal representative at the time of the death of the husband and at the time of presentation of the application, but should also continue to be a legal representative until the final decision. Upon her remarriage, she ceases to be a legal representative for the purpose of section 110-A of the Act.
30. When it is permissible to take into account the prospect of remarriage of the widow of the deceased as a factor in the assessment of compensation, her remarriage may destroy her claim for compensation from the date of remarriage. If the fact of remarriage is ignored, the widow is compensated from the loss which she does not suffer.
31. In the case on hand, the widow of the deceased had remarried and her husband had substantial income. I would agree with my Lord the Chief Justice with regard to the quantum of compensation payable to the claimants.
32. Appeal allowed,