BIJAY KUMAR MAHASETH Vs. DINANATH JHA

JUDGEMENT

(1.) On 7th September, 1977, two boys, each aged 15 years were kilied in a road accident and cheir respective fathers filed claim petitions on 15-10-1977 under Sec. 110-A of the Motor Vehicles Act claiming damages from the petitioner. The cases were registered as Misc. Case nos. 40 and 41 of 1977. On 30-11-1978, applications were filed for adding the respective mothers of the victims as parties, which were allowed, by orders dated 1-12-1978. The petitioner has challenged the orders in the present civil revision applications, which have been, at the request of the parties heard together and are being disposed of by this common judgment.

(2.) 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 presence of the mother, cannot maintain a claim petition aad the mother who is the rightful claimant cannot be added as party to the proceeding afcer expiry of the period of limitation for filing claims. It has been argued that the provisions of the Code of Civil Procedure are not appliable to the proceeding question and, in any event, the inherent power cannot ba exercised by a Court to overcome limitation. Mr. P. N. Jha, learned counsel for the opposice party 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 legil 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 deseased and consequently their respective mothers. 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 Sec. 110-A of the Act and the direction in this regard exercised by the Court should not be interfered with by a revisional court. Learned counsel also referred to Sec. 1-A 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 faeher 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 Insuranse Ltd. V. Smt Shanti Mishra, 1975 BBCJ 811 Supreme court That case arose out of an application for compensation filed under Sec. 110-A of the Motor Vehicles Act, 1939 and in paragraph 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 Accident Act, 1885. It was argued that this clearly indicated that the legal representative in the present context included the father also.

(3.) While dealing with the expression legal representative' as used in the old Code of Civil Procedure, the Calcutta High Court in Dinamani Chaudhurani v. Elahadut Khan (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 represent the estate of a deceased person. The Supreme Court in Andhra Bank Ltd. v R. Srinivasan (AIR 1962 Supreme Court, 332) pointed out that the aforesaic observation of the Calcutta High Court was embodied in the definition of legal representative in the new Code. In paragraph 18 of the judgment, 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 "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 Fatal Accidents Act cannot be applied to the present case. The Fatal Accidents Act with only four sections cannot be con sidered 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 two Acts clearly supplement each other. Although in circumstances not quite similar to those in the present case, the Allahabad High Court in Mahendra Singh v. Krishna Devi (AIR 1979 Allahabad 4) considered the provisions of the Fatal Accidents Act for construing the term legal representative" in a proceeding under Sec. 110-A of the Motor Vehicles Act. I am, therefore, of the view that a reference to Sec. 1-A of the Fatal Accidents Act for finding out the meaning of the term 'legai 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 Madhya Pradesh High Court in Jayalakshmi v. The Rubby General Insurance Co., AIR 1971 MP 143. The judgment of the Supreme Court in New India Insurance Co. Ltd. v. Smt. Shanti Mishra 1975 BBCJ 811 SC (supra) is also helpful. I, therefore, hold that the application filed by the father of the deceased in each of the cases before me was in a representative capacity on behalf of all the legal representatives and the argument that the applications having been filed by father were not maintainable, has no substance.