Bijoy Kumar Mahaseth vs Baijnath Jha and Others and Shibji Sahu and Others

Lalit Mohan Sharma, J.—On September 7, 1977, two boys, each aged 15 years, were killed in a road accident and their respective fathers filed claim petitions on October 15, 1977, u/s 110A of the Motor Vehicles Act claiming damages from the petitioner. The cases were registered as Misc. Cases Nos. 40 and 41 of 1977. On November 30, 1978, applications were filed for adding the respective mothers of the victims as parties, which were allowed, by orders dated December 1, 1978. The petitioner has challenged the orders in the present civil revision application, which have been, at the request of the parties, heard together and are being disposed of by this common judgment.

Mr. S. P. Srivastava, appearing for the petitioner, has contended that the father of a Hindu boy not being his heir and legal representative in the presence of the mother, cannot maintain a claim petition and the mother who is the rightful claimant cannot be added as party to the proceeding after the expiry of the period of limitation for filing claims. It has been argued that the provisions of the CPC are not applicable to the proceedings in question and, in any event, the inherent power cannot be exercised by the court to overcome limitation. Mr. P. N. Jha, learned counsel for the opposite parties Nos. 1 and 2 in both the cases, has urged that it is true that a claim petition under the Act has to be filed by the legal representative of the deceased, but the expression " legal representative should not be, in this connection, interpreted very strictly. Any person including an intermeddler who is, in fact, representing the estate of a deceased, can be treated to be a legal representative and, therefore, in the present case, the respective fathers of the two boys should be treated as representing the estate of the deceased and consequently their respective mothers (sic). It was further pointed out that in any event the tribunal has got the power to condone the delay in filing the claim case under the proviso to Sub-section (3) of Section 110A of the Act and the discretion in this regard exercised by the court should not be interfered with by a revisional court. Learned counsel also referred to Section 1A of the Indian Fatal Accidents Act, 1885, and urged that the action for damages lies for the benefit of the wife, husband, parent and child and the expression " parent " includes the father of the deceased also. In reply to the suggestion that the Indian Fatal Accidents Act has no application to proceedings under the Motor Vehicles Act, Mr. Jha referred to the decision in New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, Adult, , which arose out of an application for compensation filed u/s 110A of the Motor Vehicles Act, 1939, and in para. 2 of the judgment, the Supreme Court observed that a cause of action had accrued to the respondents to claim compensation as legal representatives of the deceased under the Indian Fatal Accidents Act, 1885. It was argued that this clearly indicated that the legal representative in the present context included the father also.

While dealing with the expression " legal representative " as used in the old Code of Civil Procedure, the Calcutta High Court in Dinamoni Chaudhurani v. Elahadut Khan [1904] 8 CWN 843, had observed that the term should not be given a limited interpretation and it must be held to include any person who represents the estate of a deceased person. The Supreme Court in The Andhra Bank Ltd. Vs. R. Srinivasan and Others, , pointed out that the aforesaid observation of the Calcutta High Court was embodied in the definition of legal representative in the new Code. At page 239 the Supreme Court held that a person who intermeddles with a part of the estate of the deceased is included in the term. There does not appear to be any reason to give a restricted meaning to the term " legal representative " in the present context. The purpose to allow a legal representative of a deceased to sue or be sued will be frustrated by giving a narrow meaning. Besides, I do not agree with the argument of Mr. Srivastava that the provisions of the Fatal Accidents Act cannot be applied to the present case. The Fatal Accidents Act with only four sections cannot be considered to be complete in itself and on the other hand the Motor Vehicles Act does not confer any right but only provides for an expeditious remedy for an action for damages arising out of road accidents. The Acts clearly supplement each other. Although in circumstances not quite similar to those in the present case, the Allahabad High Court in Mahendra Singh Vs. Smt. Krishna Devi, , considered the provisions of the Fatal Accidents Act for construing the term " legal representative " in a proceeding u/s 110A of the Motor Vehicles Act. I am, therefore, of the view that a reference to Section 1A of the Fatal Accidents Act for finding out the meaning of the term " legal representative " must be held to be permissible. The provisions of the Fatal Accidents Act indicate that a suit or an action- otherwise for recovery of compensation, is representative in character for the benefit of all the persons enumerated in the section. This view is supported by the decision of the Madras High Court in Jayalakshmi and Others Vs. The Ruby General Insurance Co., Madras and Another, . The judgment of the Supreme Court in New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, Adult, , is also helpful. I, therefore, hold that the application filed by the father of the deceased in each of the cases was in a representative capacity on behalf of all the legal representatives and the argument that the applications having been filed by the father were not maintainable, has no substance.

Mr. Srivastava strenuously contended that the provisions of the CPC are not applicable at all to proceedings commenced u/s 110A of the Motor Vehicles Act and, therefore, no new party can be added either under Order 1, Rule 10 or Section 151 of the Code of Civil Procedure. I am not in a position to accept this contention either. Section 151 of the CPC does not bestow any special right on the court, it merely declares the power which is inherently there. Even if it be assumed that the CPC does not apply, it cannot lead to the conclusion that the Tribunal has no inherent power to add a necessary or proper party. Besides, I am in respectful agreement with the observation of the Punjab High Court in New India Assurance Co. v. Punjab Roadways, AIR 1964 Punj 235, that in the absence of a restraining provision a tribunal is at liberty to follow any procedure that it may choose to evolve for itself so long as the said procedure is orderly and consistent with the rules of natural justice and does not contravene the provisions of any law. Reference may also be made to the observations of the Supreme Court in State of Haryana Vs. Smt. Darshana Devi and Others, , while approving the application of Order 33 of the Code on the ground that the Claims Tribunals have the trappings of a civil court.

There is yet another valid reason for not interfering with the present case which sustains the impugned orders independent of the grounds mentioned above. Sub-section (3) of Section 110A of the Motor Vehicles Act fixes six months'' period of limitation, but the proviso thereto permits a Claims Tribunal to entertain an application even after the expiry of the period if it is satisfied that sufficient cause has been shown. It was contended before the court below that the mothers of the application (sic) were not mentioned in the claim applications as a result of wrong legal advice and the court accepted the explanation. In that view, even if it be assumed that some right had accrued in favour of the petitioner on account of delay in impleading the mother as a party, it must be held within the power of the Tribunal to condone such delay, and as that has been done in the present cases there does not appear any merit in the objection raised by the petitioner. For all these reasons, the civil revision applications are dismissed, but without costs.