1. In this suit which is under the Fatal Accidents Act, issues were struck by me on 2nd April 1968. The first issue was:—
“Has Mr. K.L Khana left two sons? If so, are they necessary parties in this suit? O.P defendant No. 1.”
2. This issue was based on the preliminary objection raised by the defendants in paragraphs No. 1 of their written statement which runs as under:—
“That the deceased K.L Khana had two sons. One of them is a Doctor and other is a professor. They are also legal heirs of the deceased. So they are also necessary parties in the case. The suit cannot proceed unless they are also made parties.”
3. When this issue was struck, the plaintiffs produced Dr. Naresh Kumar Khana son of the deceased as a witness and the defendant Surrinder Nath appeared as his own witness. Arguments were heard about this issue on 31-12-68. After the arguments Mr. Ishwar Singh, the learned counsel for the plaintiffs put in an application on 2-1-69 for amending the plaint and adding the two sons of the deceased as parties in this case. The application was contested by the defendants. Later on two affidavits, one by Dr. S.K Khana and the other by Dr. N.K Khana, properly sworn by the deponents, the two sons of the deceased were put in by Mr. Ishwar Singh alongwith an application on 23-1-69.
4. In these affidavits both Dr. S.K Khana stated that they did not want to make any claim for compensation for the death caused to their father by the rash and negligent driving as they were well provided and were not dependant on their father late Mr. K.L Khana. This application also was opposed by the learned counsel for the defendants and I have heard arguments in this case.
5. Messrs Sehgal, Dawarka Nath and Soomnath, learned counsel for the defendants, have argued that under the Fatal Accidents Act, (hereinafter referred to as the Act in this order) any action or suit has to be brought for the benefit of the wife, husband, parent and child, if any, of the person whose death has been caused and secondly, the suit shall be brought by and in the name of the executor, administrator or representative of the person deceased vide section 1 paragraph 2 of the Act. Section 3 of the Act makes it compulsory to give full particulars of the person or persons for whom or on whose behalf, such action or suit shall be brought and of the nature of the claim in respect of which damages shall be sought to be recovered. The present suit has been brought on behalf of the widow Mrs. Prabha Kumari Khana and Miss Suman daughter of deceased. From the evidence of the parties it is proved or rather it is admitted now that the deceased K.L Khana left two sons Dr. S.K Khana and Dr. N.K Khana besides the widow Prabha Kumari and daughter Kumari Suman. According to the learned counsel for the defendants the suit had to be brought for the benefit of the sons of the deceased also and they have not been joined as plaintiffs. Secondly the suit should have been brought in the name of the executor, administrator or representative of the deceased. The plaintiffs are neither the executors, nor administrators of the deceased. They may be representatives but are not all the representatives. Therefore, the suit is bad. Further argument of the learned counsel for the defendants was that the plaint had under the provisions of section 3 of the Act to give full particulars of the person or persons for whom or on whose behalf, such action or suit was brought. The suit was to be brought on behalf of all the children of the deceased also. The plaint does not give any particulars much less full particulars of the sons of the deceased. Therefore also the suit is bad and should be dismissed, amendment sought should not be permitted because if these two people i.e the sons of the deceased are added as parties to the suit, the period of limitation having already expired, the suit shall be time barred. Therefore under the provisions of Order 6 Rule 17 Civil Procedure Code no such amendment should be permitted. The learned counsel for the defendants have cited the following authorities before me. A.I.R 1947 Cal. 195 : A.I.R 1934 Cal. 632 : A.I.R 1934 Cal. 712 and A.I.R 1958 Raj. 188.
6. Mr. Ishwar Singh the learned counsel for the plaintiffs has on the other hand argued, the suit has no doubt to be brought for the benefit of the wife, husband, parent and child, if any, of the person deceased but Page: 82in this case the two sons of the deceased namely Dr. S.K Khana and Dr. N.K Khana have put in their affidavits that they were not dependent upon the deceased and they did not claim any amount of compensation for the death caused to their father. Therefore, there non-inclusion as parties will not at all affect the suit. He has further argued that the word ‘representative’ used in this section has to be constructed liberally and it does not strictly speaking mean the ‘legal’ representatives as defined in the Code of Civil Procedure. So far as objection under section 3 of the Act is concerned, he says in the first place as the suit has not been brought either for or on behalf of the sons, the omission of their particulars in this plaint will not affect the merits of this case at all. He has referred me to A.I.R 1947 Cal. 195 and 1961 Allahabad 14. I have also given my attention to the points raised by the learned counsel for the parties.
7. One thing is very clear that the two sons of the deceased K.L Khana, Dr. S.K Khana, and Dr. N.K Khana do not claim any compensation on account of the death of their father, K.L Khana. To my mind the object of paragraph 2 of section 1 of the Act is two fold, one who can claim a benefit under this Act; the person who can claim damages for the death caused under this Act are only the relations mentioned in this paragraph. They are wife, husband parent and child. No other heir whether the case is governed by Mohammedan Law or Hindu Law or any other law of succession can be granted any compensation for the death so caused. It limits the number of claimants. Any one or more of them can claim but nobody other than these near relations mentioned in this paragraph can claim any amount as compensation, that is the one principle underlying this paragraph. The second is as to who can bring a suit. The suit may be brought by the executor, administrator or representative of the deceased. Representative can mean one representative or more representatives. What are we to understand by the word. ‘Representative’ is not defined in this Act. It is not equivalent to the ‘legal representative’ as defined in the Code of Civil Procedure. It is not equivalent to the word ‘heir’ also. This word means and includes all or any one of the persons for whose benefit a suit under the Act can be maintained and these persons shall be deemed to be the representatives of the deceased in the sense that they are the persons taking the place of the deceased in obtaining reparation for the wrong done. The intention of the legislature seems to have been that in the absence of an executor or administrator, anyone or more of the persons, for whose benefit the right of action was given, should be deemed to be a representative of the deceased, for the purpose of maintaining a suit under the Act.
8. The same view has been taken in I.L.R XXVIII (1905) Madras 479. Therefore the suit could be brought by the wife, daughter or the sons of the deceased, jointly, individually or by any one or more of them. But what the law requires is that there should be only one claim and the different persons mentioned in paragraph 2 of section 1 of the Act cannot bring separate suits. Therefore, there is nothing wrong, if the suit has been brought by only the widow and the daughter of the deceased K.L Khana.
9. The second point is that full particulars of the persons for whom or on whose behalf the suit has been brought have not been given in the plaint. In the first place this point does not arise for consideration at all in this case because the suit has not been brought for the benefit of or on behalf of the sons of the deceased. They have, by means of affidavits above mentioned, given up any claim they had to the compensation that can be recovered from the defendants for the death of their father, but as the plaintiffs themselves made an application for adding them as parties, they can be added. As no relief is claimed for these people and as the suit could be brought only by any one of the persons entitled to claim the compensation, this amendment will not affect the suit in any manner whatsoever.
10. Now I shall discuss the authorities Page: 83cited by the learned counsel for the defendants. In A.I.R 1947 Cal. 195, it has been held that the plaint in a suit under section 1 of the Act must give full particulars of all the persons for whose benefit the suit is filed and must state the nature of the claim in respect of which damage is sought to be recovered. The father in the case was not mentioned as a beneficiary in the plaint. It was held that such an omission was not sufficient to dismiss the suit at the appellate stage though it may be sufficient to dismiss the pauper application. This authority clearly holds that this omission was not fatal to the suit but it might have been of some consequence if this objection was raised in the trial court in a proper application. A.I.R 1934 Cal. 632 also does not help the defendants because the finding in that case is if a suit is brought under the Fatal Accidents Act and partly under some other Act and if the application is defective so far as the Fatal Accidents Act is concerned but is clearly in its form under the other Act, forma pauperis application should be allowed to proceed. The case in A.I.R 1934 Cal. 712 was again the case of an application forma pauperis. Under Order 33 Rule 2 any application which does not comply with all the requirements of that provision has to be rejected and in that case as the application did not conform to the requirements of law, it was rejected. To the same effect is A.I.R 1958 Raj. 188. Here the suit is not in forma pauperis but the plaintiffs have paid full court fees on the amount claimed by them. Therefore, these authorities do not help the defendants at all. On the other hand A.I.R 1947 Cal. 195 clearly lays down that a suit under the Fatal Accidents Act can be brought by any one of the following persons namely executor administrator, or representative i.e wife or husband, or parent or child of the deceased. It further lays down that failure to mention father as a beneficiary was not sufficient to dismiss the suit at the appellate stage. In A.I.R 1961 All 14 the suit was by the wife of the deceased, plaintiff did not mention the father of the deceased as a beneficiary. Father supported wife's claim, it was held that the omission to mention the father as a beneficiary was not fatal to maintainability of the suit. So these authorities do not support any of the extreme contentions raised by learned counsel for the defendant, I shall have ordered the suit to proceed as it is, but as the plaintiffs themselves want to add the two sons of the deceased in this case, I allow them to add the two sons of the deceased as defendants but the plaintiffs should clearly indicate in the amended plaint that no relief is to be granted in favour of these two sons of the deceased. For this amendment the plaintiffs shall pay a sum of Rs. 100/- as costs to other side. The amended plaint shall be presented within four weeks from today.