Hemant Gupta, J.:— This order shall dispose of Civil Writ Petition Nos. 3398 and 3423 of 2007 challenging the order dated 24.8.2005 passed by the Railway Claims Tribunal, Chandigarh Bench, Chandigarh, declining applications for compensation on account of death of the Harpreet Kaur and Baljinder Kaur sisters of the Petitioner No. 2 a minor and grand daughters of Petitioner No. 1.

2. On 14.12.2004, Harpreet Kaur and Baljinder Kaur and their parents boarded DMU passenger train from railway station Jalandhar City for journey to Pathankot. The said train collided head on with Ahmedabad bound Jammu Tawi Express train near Harse Mansar village (about 25 Km. from Pathankot) as a result of which both sisters' of the petitioner No. 2 and their parents died. The deceased were unmarried girls of 20 and 19 years of age. It is the case of the petitioners that except the petitioners there is no other legal heir or dependent who is entitled to claim compensation on account of death of deceased Baljinder Kaur and Harpreet Kaur.

3. The learned tribunal dismissed the claim application filed by the petitioners on the ground that the petitioners do not fall within the definition of dependent as in Section 123(b) of the Railway Act, 1989 (for short “Railways Act”), therefore, the claim application is not maintainable. It was found that the minor brother of the deceased cannot be taken to be dependent upon the deceased sisters when parents of petitioner No. 2 were alive. It is the said finding which is, disputed in the present writ petitions.

4. Learned counsel for the petitioners has vehemently argued that the remedy of compensation under the Railways Act and the Railway Claim Tribunal Act, 1987 (hereinafter referred to as the “RCT Act”) is the remedy to provide compensation at an early date by the Tribunal specifically constituted under the aforesaid Acts. The jurisdiction of the Civil Court is barred in terms of Section 15 of the RCT Act as the matter of compensation falls within the scope of Sections 13(1) and (1-A) of the RCT Act. It is contended that the minor brother, paternal grandparents are dependent within the meaning of Sections 123(b)(ii) and (iv) of the Railways Act. It is further contended that the dependents in clauses (ii) and (iv) are not the financially dependent but has to be construed as the one who is entitled to claim compensation on account of loss of the estate as well. It is contended that in the absence of any other legal heir, the petitioner No. 2 who is the nearest legal heir of the deceased would be entitled to compensation on account of the death of Baljinder Kaur and Harpreet Kaur in the manner provided for under the Railways Act. It is contended that in terms of section 2 of the Fatal Accidents Act, 1855, the action for death caused by any wrongful act, neglect or default is for the benefit of the representatives of the deceased on account of loss of his estate. Therefore, the Tribunal has erred in law in declining compensation to the petitioners on account of death of Baljinder Kaur and Harpreet Kaur in the railway accident. The learned counsel for the petitioners has relied upon Gobald Motor Service Limited v. R.M.K Veluswami, A.I.R 1962 Supreme Court 1, Gujarat State Road Transport Corporation, Ahmedabad v. Ramanthai, 1987 (II) Accidents Claims Journal 561 and a Full Bench decision of this Court reported as Parkash Chand v. Pal Singh, (1985-1) 87 P.L.R 538.

5. The relevant clauses of the Fatal Accidents Act, 1855, and that of the Railways Act, 1989 and the Railway Claims Tribunal Act, 1987 read as under:

The Fatal Accidents Act, 1855

“1-A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.— 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:

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 recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.

2. Not more than one suit to be brought. — Provided always that not more than one action or suit shall be brought for, and in respect of the same subject-matter of complaint.

Claim for loss to the estate may be added.— Provided that, in any such action or suit, 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 such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased”.

The Railways Act, 1989

“123. Definitions.— In this chapter, unless the context otherwise requires—

(a) “accident” means an accident of the nature described in Section 124;

(b) “dependent” means any of the following relatives of a deceased passenger, namely:

(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent;

(ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of pre-deceased son, if dependent wholly or partly on the deceased passenger.

(iii) a minor child of a pre-deceased daughter, if wholly dependent on the deceased passenger:

(iv) the paternal grandparent wholly dependent on the deceased passenger”.

“125. Application for compensation.—(1) An application for compensation under Section 124 (or Section 124-A) may be made to the Claims Tribunal—

(a) by the person who has sustained the injury or suffered any loss, or

(b) by any agent duly authorized by such person in this behalf, or

(c) where such person is a minor by his guardian, or

(d) where death has resulted from the accident, or the untoward incident by any dependent of the deceased or where such a dependent is minor, by his guardian.

(2) Every application by a dependent for compensation under this Section shall be for the benefit of every other dependent”.

The Railway Claims Tribunal Act, 1987

“13. Jurisdiction, powers and authority of Claims Tribunal.—(1) The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any civil court or a Claims Commissioner appointed under the provisions of the Railways Act—

(a) relating to the responsibility of the railway administration as carriers under Chapter VII of the Railways Act in respect of claims for—

(i) compensation for loss, destruction, damage deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage of railway;

(ii) compensation payable under section 82-A of the Railways Act or the rules made thereunder; and

(b) in respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.

(IA) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Section 24-A of the Railwavs Act. 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any civil Court in respect of claims for compensation now payable by the railway administration under Section 124-A of the said Act or the rules made thereunder.

(2) The provisions of the Railways Act, 1989 (24 of 1989) and the rules made thereunder shall, so far as may be, applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act.

15. Bar of jurisdiction.— On and from the appointed day, no court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in sub-sections (1) and (IA) of Section 13.

16. Application to Claims Tribunal.—(1) A person seeking any relief in respect of the matters referred to in sub-section (1) or sub-section (1-A) of Section 13 may make an application to the Claims Tribunal.

(2) Every application under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee in respect of the filing of such application and by such other fees for the service or execution of processes as may be prescribed:

Provided that no such fee shall be payable in respect of an application under sub-clause (ii) of clause (a) of sub-section (1) or, as the case may be, sub-section (1-A) of Section 13”.

6. It may be noticed that under the Railways Act, it is fixed amount of compensation alone which can be awarded to the person entitled to compensation.

7. In Gobald Motor Service Limited's case (supra), Hon'ble Supreme Court has examined the provisions of Section 2 of Fatal Accidents Act, 1855 and held that compensation under the aforesaid section goes to the benefit of the estate, whereas under Section 1 (as it existed prior to amendment by Act No. 3 of 1951) compensation is payable in respect of loss sustained by the persons mentioned therein i.e loss of dependency. It was held that though in some cases parties entitled to compensation under both the sections may happen to be the same persons but they need not necessarily be so. As the two claims are based upon two different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. Supreme Court quoted with approval the decision of Lahore High Court reported as Secretary of State v. Gokal Chand, AIR 1925 Lah 636 and held to the following effect:

“The principle in its application to the Indian Act has been clearly and succinctly stated by a Division Bench of the Lahore High Court in Secretary of State v. Gokal Chand, I.L.R 6 Lah. 451 : AIR 1925 Lah 636. In that case, Sir Shadi Lal, CJ observed at p. 453 (of I.L.R Lah) : (at p. 636 of AIR) thus:

“The law contemplates two sorts of damages-the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the later is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate”.

“12. The law on this branch of the subject may be briefly states thus:

The rights of action under Sections 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under Section 1 of the Act, that portion shall be excluded in giving compensation under Section 2 and vice versa”.

8. A question arose before a Full Bench of this Court in Parkash Chand's case (supra) whether the brothers are entitled to claim compensation on account of loss of the deceased. While considering the provisions of section 2 of the Fatal Accidents Act, 1855, it was held that in case of intestate succession, the dependents could obviously be the persons who would be entitled to initiate action for damages in regard to the estate of the deceased person if, under law, they were entitled to succeed the estate of deceased, but where the deceased has made a will for devolution of his entire estate upon a person other than the dependents, then even the said person would be the representative of the said person for the purpose of section 2 of the Fatal Accidents Act, 1855. It was held to the following effect:

“15 …… In other words, the term ‘representative’ of the deceased would refer not only to such persons as under the law of succession applicable to the deceased were entitled to the estate of the deceased but also to a person, if the deceased died after making a will, who is entitled under the will to inherit the estate of the deceased if such latter person happens to be other than former set of persons.

16. In so far as the expression ‘representative’ for the purpose of Section 1-A of the Fatal Accidents Act is concerned, it would refer to the whole of body of such persons as are under the law of succession applicable to the deceased entitled to succeed to his estate, including the dependents and, therefore, all or any of such persons would be entitled to initiate action for claiming damages under Section 1-A of the Fatal Accidents Act for the benefit of any or all of the dependents surviving the deceased in regard to the pecuniary loss suffered by any such dependent. One can envisage a situation where the surviving dependent lay totally unconscious and the deceased had died intestate. In such a situation, only representative of the deceased could bring action.

17. If the term ‘representative’ of the deceased in Section 1-A of the Fatal Accidents Act was held to connote only the dependents, and the dependent or dependants were not in a position to bring an action, then such dependents would have to forego the damage on account of pecuniary loss that they have suffered as a result of the death of the person deceased. One cannot attribute such a lack of foresight to the legislature and, therefore, the term ‘representative of the deceased’ occurring in Section 1-A cannot be conceived to be referring to only the dependents. Of course, damages realized as a result of the action would ensure for the benefit of the dependents alone and hot for the representative of the deceased who had initiated the action if that representative of the deceased happened to be a person other than the dependent person himself.

18. The dichotomy in regard to the nature of damages available to the dependents and to the estate of the deceased obtaining in the Fatal Accidents Act does not find mention in the relevant provisions of the Motor Vehicles Act. Section, 110-A of the Motor Vehicles Act provides for filing of an application by any or all the legal representatives of the person deceased and that such action would be for the benefit of all the legal representatives of the deceased. Section 110-A thus entitles the legal representatives to be the beneficiaries of the damages realized as a result of the application for damages. The section thus makes no difference between the two sets of beneficiaries, that is, the dependents for sharing pecuniary loss suffered by them and the pecuniary loss suffered by the estate, as mentioned in the Fatal Accidents Act.

19. So the question would arise as to which particular loss, the compensation or damages so awarded would be referable. Section 110-A of the Motor Vehicles Act does not talk either of pecuniary loss to the dependents or pecuniary loss to the estate. In such a situation, where the provisions of the specific Act are silent, the substantive provisions of the general Act would be applicable. When so viewed, the compensation awarded under section 110-A would include damages on account of pecuniary loss suffered by the dependents, if any, as also the pecuniary loss suffered by the estate”.

9. After the aforesaid discussion, the Court in the facts of the case found that the deceased had left behind no dependents and, therefore, in terms of the provisions of the Hindu Succession Act, 1956. as applicable to the deceased, found that the brother would be entitled to compensation as legal representative. It was held as under:

“24. In the case in hand, the person deceased Dharam Pat has left behind no dependent. The deceased, as his name suggests, is a Hindu by religion and so his estate would be inheritable in accordance with the provisions of the Hindu Succession Act. Section 8 of the Hindu Succession Act, 1956, deals with the intestate succession to a male. According to the said section, brothers fall in category (b). By virtue of the said section person falling in a given category succeeds equally and persons falling in (a) category excludes the persons mentioned in category (b) and so forth. It is nobody's case that the deceased had left behind any of the persons falling in category (a). It is also nobody's case that the deceased had left behind any person other than the applicant-appellant falling in category (b). In view of this, the applicant-appellant would fall in such category of legal representative as would be entitled to enjoy the damages that may be awarded by the Tribunal. The damages in this regard would be referable to the loss to the estate of the deceased which would be equal to the lost earnings for the lost years of the deceased life. In other words, the possible saving of the deceased after accounting for the personal expenditure multiplied by a suitable multiple having regard to the years by which the working life of the deceased had been cut short by the accident….”

10. In Gujarat State Road Transport Corporation's case (supra), Hon'ble Supreme Court found that Section 110-A of the Motor Vehicles Act, 1939, in a way is a substitute to the extent indicated for the provisions of Section 1-A of the Fatal Accidents Act, 1855, but a legal representative entitled to claim compensation need not necessarily be a wife, husband, parent and child as contemplated under Section 1-A of the Fatal Accidents Act, 1885 and that right created in favour of the legal representative cannot be hedged in by all the limitations of an action under the Fatal Accidents Act, 1885. The Court approved the view of Gujarat High Court in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, 1977 A.C.J 253, wherein it was held that the nephews of the deceased could maintain application under Section 110-A of the Motor Vehicles Act, 1939. It was held to the following effect:

“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 realization of compensation 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 Accidents Claims 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 persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section-110-B of the Act amongst the legal representatives for whose benefit an application may be filed under section 110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and sometimes 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 provisions contained in the Act in relation to cases arising out of motor vehicle accidents. We express our approval to the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, 1977 A.C.J 253 (Gujarat) 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”.

11. The provisions of the Motor Vehicles Act, 1939, authorized a legal representative of the deceased to claim compensation. Under the Railway Act, the legal representatives have not been specifically made eligible to apply for compensation. The Railway Act being a Central Act, as also Fatal Accidents Act, can be deemed to supersede such provisions of the Fatal Accidents Act for which corresponding provision is made under the Railways Act. Since there is no corresponding provision in the Railway Act in respect of compensation for the loss of estate and the person entitled to claim compensation, would continue to be governed by the provisions of Fatal Accidents Act, 1855. Therefore, loss to the estate falling within section 2 of the Fatal Accidents Act, 1855 could be claimed by the legal representatives of the deceased. The Railways Act will only supersede the provisions of Section 1-A of the Fatal Accidents Act, 1855, whereas loss to the estate computable under section 2 of the Fatal Accidents Act can be claimed by the legal representatives but from a forum created under the RCT Act in view of the bar of jurisdiction of civil Court. The provisions of section 2 of the Fatal Accidents Act, 1855, cannot be deemed to be superseded by enactment of Railways Act and the Railway Claims Tribunal Act, 1987. The substantive right created by the Fatal Accidents Act, 1855, cannot be deemed to have been curtailed in any manner by the enactment of the aforesaid Acts. The subsequent enactment has only changed the forum from the Civil Court to Tribunal constituted under the Railway Claims Tribunal Act, 1987. Thus, the compensation on account of loss of estate could be claimed by the eligible legal representatives from the Railway Claims Tribunal in accordance with the procedure prescribed under the Railways Act.

12. The matter can be examined from another angle as well. Section 123(b) of the Railways Act defines “dependent” to include minor brother if dependent partly or wholly on the deceased passenger. The word dependency is not restricted to economic dependence but dependence of love, affection, care and protection of the deceased passenger as well. The word “dependent” in clause (ii) or Section 123(b) of the Railways Act is not to be given restrictive meaning but contextual meaning keeping in view the objective of the statute so as to compensate unfortunate death of a passenger in railway accident. Such provision cannot be interpreted so as to benefit the tortfeasor which in the present case would be the Railways. Sub-section (ii) of Section 123(b) of the Railways Act deals with dependency wholly or in part, therefore, the dependence of care at protection, love and affection by the deceased on their minor brother would be dependence within the meaning of the Act. It may be noticed that the parental grand parents can be said to be dependents only if they are wholly dependent on the deceased passenger. Such dependency is in contravention to even par dependency of a minor brother under clause (ii) of Section 123(b) of the Railways Act.

13. In view of the above, we are of the opinion that the order passed by the Tribunal is not based upon correct interpretation of law. Consequently, we set aside the same holding petitioner No. 2 i.e, minor brother to claim compensation as legal representative and dependent of the deceased.

Appeal allowed.