Whether the damage or death by negligence is caused by the use of a motor vehicle or in some other manner, does not make any difference to the principle of liability in tort.
Prior to the insertion of Section 110 to 110-F in the Motor Vehicle Act 1939 by the amendment of 1956, compensation claims for death caused by negligent use of motor vehicles were pursued by way of suits in Civil Courts. The Courts determined the liability for compensation as also the quantum of compensation according to the well established principles of the law of torts. It is well known that the English Law of torts has been applied by the Indian Courts on the ground that in the absence of any other rule of law, the Courts are to follow the principles of “justice, equity and good conscience”, which have been “generally interpreted to mean the rules of English Law, if found applicable 13 the Indian Society and circumstances,” (Waghela v. Sheikh) The English Law itself has been constantly developing both by judicial decisions and statutory changes. In India also the common law of England as applied to India has been modified by legislation. The English statutes modifying the law of torts do not of course apply to India in terms. If, however, they embody any principles of justice, equity and good conscience, such principles would apply to India, in preference to the common law repealed by legislation as being contrary to such principles. For instance, the doctrine of “common employment” applied to India so long as it was a part of the common law. It was, however, regarded as an unjust doctrine and was, Therefore, abolished by statutes in England. In Secretary of States v. Rukmini Bai, it was held, Therefore, that the doctrine of common employment was no longer to be followed in India as a rule of justice, equity and good conscience as it had been abolished in England as being contrary to the said principle. Dr.J.D.M. Derrett, while tracing the history of the application of the principle “justice, equity and good conscience” in India has come to the same conclusion (“Changing Law in Developing Countries (1963) edited by Anderson page 144). In Namdev v. Namadclbai. paragraphs (15) to (18) and (21) to (23), the Supreme Court had occasion to point out that only the basic principles and not the technical requirements of statutes whether in England or in India could be regarded as the principles of justice, equity and good conscience. The Fatal Accidents Act, 1855 modified the law of torts regarding the payment of compensation for death in India and is, Therefore, to be followed by us first m so far as it applies to our case.
The enactment of Sections 110 to 110-F of the Motor Vehicles Act, in 1956 by the legislature authorised the State Governments to establish Motor Accidents Claims Tribunals for such areas as may be specified in the notifications for the purposes of adjudicating upon the claims for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of Motor Vehicles. u/s 110-B such a Tribunal has to determine the amount of compensation “which appears to it to bejust.” Is this a second answer to the question posed by me above as to how compensation for death caused by motor vehicle is to be determined ? I do not think so. The reasons are obvious. Firstly, Sections 110 to IIO-F do not lay down any new principle either for determining the liability for compensation or for assessing the amount of compensation. They do not say that compensation is to be paid for every personal injury or death caused by a motor vehicle. The provisions of Chapter Viii of the Act makes the insurance of motor vehicles against third party risks compulsory, but do not say that compensation is payable for every accident. It is clear, Therefore, that the above mentioned provisions do not, in any way, override the pre-existing principles of the law of torts governing the determination of the liability to pay compensation and also the fixation of the amount thereof. This was recognised by I. D. Dua, J., as he then was, in Sri Ram Partap v. Ch. Rati Ram
The same conclusion follows if we consider the object of the introduction of sections 110 to IIO-F in the Act in 1956 and the nature and functions of the Tribunal. Enormous increase in the number of use of motor vehicles in India led to an abnormal increase in the number of accidents and deaths caused by the Motor Vehicles. Suits for compensation involving expenses, particularly in the shape of Court fees and delay due to multiple appeals were found to be inadequate as a remedy to the large number of persons aggrieved by Motor Accidents. The amendment of 1956, Therefore, enable such aggrieved persons to claim compensation merely by making an application to the Tribunal without payment of ad valorem Court fees. Appeal against the decision of the Tribunal was provided directly to the High Court. The legislative intention apparently was to substitute a cheaper and more expeditious forum in place of the ordinary Civil Courts. Beyond this, no change was necessary or was intended. In Municipal Corporation of Delhi v. Kuldiplal Bhandari, by Full Bench of this Court I had occasion, in speaking for the Court, to point out that the nature of the jurisdiction of the Tribunal is precisely the same as that of a Civil Court, inasmuch as it entertains the same claim for compensation based on negligence, as was done by the Civil Court. Even now, in those areas in which Tribunals are not established by the State Governments, these claims would be still entertained by the ordinary Civil Courts. As the claims before the Civil Courts and the Tribunals are the same and as they are tried by the same law, the decisions of the Tribunal are like the decisions of the Civil Courts, though they may be called an “award”. Such a claim for compensation is based on a cause of action arising prior to the making of the claim before the Tribunal. The Tribunal determines the legal rights of the parties on the pre-existing legal principles and not on any consideration of policy. It is not concerned with recommending or enforcing what ought to be the right and liability of the parties in future. These are the criteria which were applied both by the majority and the minority of the judicial committee of the Privy Council in United Engineering Workers Union v. K. V. Deyanayagam, (being incidentally the first case in which the right of dissent was exercised by the members of the Judicial Committee), to determine if a Tribunal is a judicial one or an arbitral one. On applying these tests there can be no doubt that the Motor Accidents Tribunal is a judicial one. The Tribunal has not been empowered by Section 110-B of the Act to depart from the established principles of law. In determining the amount of compensation “which appears to be just” the Tribunal is not to invent either a new policy or new law. not being an arbitral Tribunal or an administrative Officer, the Tribunal is not an instrument of carrying out any policy of the legislature or of the Government. Being a judicial Tribunal doing the same work as a Civil Court does, the Tribunal cannot but follow the same principles of law as are followed by Civil Courts. For the above reasons, the correct answer to the question as to how the compensation is to be determined in this case would be that it is to be done according to the existing principles of law of torts applicable to India as modified by Indian Legislation.
In Ishwari Devi v. Union of India, a Division Bench of Delhi High Court observed in paragraph 39 that Section 110 to 110-F of the Act being a special law enacted in 1956 were self-contained and the provisions of the Fatal Accidents Act, 1855 were not applicable in terms to an application made u/s 110-A of the Act. The Division Bench, however, did not say that Sections 110-A to 110-F, of the Act enacted any new principle for the determination either of the liability or of the quantum of compensation and that they were self-contained in these respects. On the contrary, they held on agreement of the learned counsels for both the sides in paragraph 41 that the principles underlying Section 1 of the Fatal Accidents Act, 1855 were applicable to the determination of the compensation for death caused by a motor vehicle. The conclusion of the Division Bench is not, thus, really different from the one reached by me above.
The Rule for fixation of the compensation for death according to the law of torts as pithily expressed in Section A-1 of the Fatal Accidents Act, is that “in every such action the Court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought”. The Supreme Court further explained the rule in Gobald Motor Service Ltd. v. R.M.K. Veluswami, by holding that in calculating the loss caused by the death “any benefit accruing to a dependent by reason of the relevant death must be taken into consideration ………………………… the balance of loss of gain. of a dependent by the death must be ascertained” as was observed by the House of Lords in Devies v. Powel Duffryn Associated Collieries Ltd. (9). In the light of these principles we have to find out the loss caused to the claimants by the death of Ajit Singh and the benefits which accrued to them by the said death, so that compensation to be granted to them should be equivalent to the loss minus the benefit.