H.N. Seth, J.

1. Sri Motilal Vishwakarma has come up in appeal against the order of Motor Accidents Claims Tribunal Allahabad dated November 10, 1975 dismissing his claim petition filed under Section 110-A of the Motor Vehicles Act.

2. Moti Lal Vishwakarma filed an application under Section 110-A of the Motor Vehicles Act and claimed compensation on his own behalf and on behalf of Anandi Prasad, E-am Garib, Smt. Jaggi Devi, Smt. Gayanti Devi and Kumari Phool Kali. According to him, all the claimants were the legal representatives of Soney Lal Vishwakarma who lost his life in an accident which took place on 4th of May 1974 at 3 p.m. on G. T. Road adjoining village Rasulpur Nawada, Police Station Kokhraj District, Allahabad.

3. Case of the claimants was that on the fateful day, deceased Soney Lal, who was aged about 23 years was going on a cycle on G.T. Road adjoining village Rasulpur when suddenly a motor truck No. U. P. C. 6429 which was being driven rashly and negligently came from the opposite side and dashed against him. As a result of the accident Soney Lal died on the spot. Income of Soney Lal which he was spending on the family was about Rs. 400/- per month. The claimants who at that time were being supported by Soney Lal were related to him as follows:

1. Anandi Prasad, Grandfather.

2. Ram Garib, Father.

3. Smt. Jaggi Devi, Mother.

4. Moti Lal, Brother.

5. Smt. Gayanti Devi, Widow.

6. Kumari Phool Kali, Minor daughter.

In the circumstances the claimants were entitled to receive compensation amounting to Rs. 1,63,300/- with costs and pendente lite and future interest against the three Respondents.

4. Respondent No. 1 Sardar Guru Bachan Singh is the owner of truck No. U. P. C, 6429 which was involved in the accident. Respondent No. 2 Punjab National Bank Ltd. had financed the purchase of the aforesaid truck by Respondent No. 1 and the truck had been insured by Respondent No. 3 Messrs. Jupiter General Insurance Co. Ltd.

5. The Motor Accidents Claims Tribunal, after going through the evidence produced in the case, came to the conclusion that from out of the six claimants Anandi Prasad, grand-father and Ram Gharib, father of the deceased, were not dependents on him. Ram Gharib had his own cultivation and Smt. Jaggi Devi is his wife. In these circumstances Smt. Jaggi Devi also was not dependent on her son Smt. Gayanti Devi had remarried one Staya Narain and as such she also was not entitled to receive any compensation. Only claimant for compensation, therefore, if at all, could be Kumari Phool Kali, minor daughter of deceased Soney Lal. The Claims Tribunal also found that monthly income of deceased Soney Lal was about Rs. 400/- and that the liability of the insurance company was not restricted to Rs. 50,000/-. It held that as in this case it had not been proved that the accident which resulted in Soney Lals death took place because of rash and negligent driving by driver of truck No. UPC 6429 the claim petition deserved to be dismissed and dismissed it accordingly. Being aggrieved the claimants have come up in appeal before this Court.

6. It is not disputed that Soney Lal lost his life after being involved in an accident with truck No. 6429. The accident took place at 3 p.m. At that time whereas Soney Lal was proceeding on the road from west to east, the truck was going from east to west. According to the claimants the truck was being driven very fast and negligently on the right side of the road. It collided against the cycle which was being driven by Soney Lal on his own left side of the road. As a result of that impact Soney Lal fell down and died on the spot. At the time of the accident the truck went further to its right side and overturned. The case of the Respondents, however, was that the truck was being driven on its left side of the road. Soney Lal was coming on a cycle on the wrong side of the road. When Soney Lal did not move away, despite the fact that the driver sounded the horn, the driver tried to save him and in the process the truck swerved on the right side and overturned. It was therefore suggested that the accident took place because of Soney Lals negligence, and the Respondents are not liable to pay any compensation.

7. In order to prove their case, the claimants examined P. W. 2 Jumman and P. W. 3 Moti Lal, and the Respondents produced D. W. 4 Mannan to prove their version of the case. The Claims Tribunal did not find the evidence given by Moti Lal and Jumman to be reliable and found that the description of the accident as given by Mannan D. W. 4 appeared to be correct.

P.W. 2, Jumman, is a resident of village Mohabbatpur, which is situated about one mile away from the place where the incident took place. He claimed that on the Fateful day he was going on a cycle from west to east. At that time there was another cyclist who proceeding slightly ahead of him. That cyclist was going on his left side. Suddenly truck No. UPC 6429 came from the other side. It was being driven very fast and in a rash and negligent manner. It collided against the cyclist in front of him, as a result whereof the cyclist died shortly thereafter. Immediately a large crowd gathered at the spot and he came to know that the name of the deceased was Soney Lal. Apparently, the witness is an independent witness, who has no reason to falsely depose against the Respondents. The Claims Tribunal rejected his evidence on the ground that the name of the witness was not mentioned in the first information report lodged by Moti Lal immediately after the incident. Moreover, the claimants did not cite him as a witness at earlier stages of the proceedings. This according to the Claims Tribunal showed that witness was a got up witness and he had came to falsely support the case of the claimants. We are unable to agree with the assessment of evidence of this witness as made by the Claims Tribunal. The witness was not cross-examined on the point and nothing was brought out which might suggest that he was connected with any member of the family of the deceased and that he was interested in supporting their case falsely. As a matter of fact the witness stated that he did know the deceased from before and that he came to know his name for the first time from the persons who had assembled at the spot soon after the incident. There is nothing in the cross-examination of this witness to show that he had a talk with Moti Lal before Moti Lal went and lodged the first information report. The witness has not been cross-examined on the question as to whether or not he had informed Moti Lal about what he had actually seen. We have also gone through the evidence of Moti Lal. There is nothing in his evidence to show that Jumman had disclosed his identity to him and had told him about the manner in which the incident had taken place before he went to lodge the report. In these circumstances merely because name of Jumman was not mentioned in the first information report of the incident, lodged by Moti Lal, it cannot be said that he as a witness who has come to depose in favour of the Appellants and against the Respondents, falsely. So far as the criticism made by the learned Presiding Officer that the witness could not be relied upon as he had not been cited as a witness at the earlier stages of proceedings is concerned, we find that no question was put either to Moti Lal or to Jumman requiring them to state the circumstances in which Jumman had been summoned to give evidence in the case, it is only after the two witnesses had been cross-examined on this point and the explanation offered by them was found to be not acceptable that the Court could brand his evidence as unreliable. In these circumstances we are not satisfied that any of the two reasons given by the Claims Tribunal for rejecting the evidence of Jumman is tenanable. The evidence given by Jumman appears to be natural and unless there are some good cause for not acting upon it, there is no reason why the version of the incident as given by him should not be accepted.

8. So far as the evidence of P W. 3 Moti Lal is concerned he substantially supported the evidence given by P. W. 2 Jumman. He claims that he saw the incident from the field where he was working. Soon after the incident he rushed to the spot and thereafter he went and lodged the first information report at police station Kokhraj the same day at about 4.30 p.m. The only reason given by the Claims Tribunal for rejecting his evidence is that according to this witness the truck fell down in the Nallah towards the right side of the road and was lying there for four days and was taken out on the 5th day. This according to the Presiding Officer, showed that Moti Lal was not present at the time of incident. We fail to appreciate this reasoning. The evidence of Moti Lal shows that the first information report was lodged by him at Police Station Kokhraj soon after the incident. This makes the presence of the witness at the spot probable. We do not see how, from the statement that the truck which had overturned was taken out on the fifth day, it can be inferred that the witness was not present at the time of the incident. There is no cross-examination of Moti Lal on the point that the place of incident was actually not visible from his field where he claims to have been working. It is true that Moti Lal is the brother of the deceased and he may be interested in getting the liability for payment of compensation fixed on the Respondents, but then it does not mean that the version which he is giving is to be rejected on the ground the this presence at the place of incident is doubtful. We find that the version given by him is natural and is corroborated by independent witness like P.W. 2 Jumman.

9. At one place the presiding Officer observed that the first information report filed by Moti Lal is contradictory to the facts of the case. Apart from the fact that the name of Jumman was not disclosed in the first information report as a person who had seen the incident, we do not find any contradiction between the version of the incident as given in the first information report and that appearing from the evidence of Moti Lal. We are, therefore, of opinion that the Claims Tribunal has rejected the statement of Moti Lal and Jumman on untenable grounds.

10. On behalf of Respondents only D.W. 6 Chiranjit Singh was examined to depose about the circumstances in which the incident took place. Chiranjit Singh is the brother of Gurbachan Singh. Naturally he is interested in stating that the accident took place as a result of negligence of Soney Lal. The witness stated that at the time of the accident he also was sitting in the truck and that the truck was going on its left side. Soney Lal deceased was riding his cycle on the wrong side of the road. He did not leave the side even though the driver sounded the horn. Consequently the driver tried -to save the life of Soney Lal and turned the truck to his right side. There was some mud on the patri which made the truck skid and fall into a pit. According to him the truck was not being driven at a fast speed. The witness deposed that before the truck overturned the driver had applied the brakes but then he could not state as to whether it was the hand brake or the foot brake. He further stated that when he saw Soney Lal for the first time he was only 10 or 15 yards ahead of the truck. He could not notice as to what clothes Soney Lal was wearing at that time. He admitted that soon after the incident he did not take any step to go and lodge the report of the accident at police station Kokhraj. The evidence given by this witness shows that in all probability he was, at the time of the accident not at all attentive to what was happening on the road. Had the witness been noticing as to what was happening on the road in front of him, he would have noticed Soney Lal from a much longer distance. He would also have been able to notice as to what clothes Soney Lal was wearing at that time. He also did not get his version of the accident recorded at the police station in the form of a first information report at the earliest. In these circumstances it is difficult to place any reliance on his evidence.

11. Besides all this it is clear from the evidence on the record that the driver of the truck which was unloaded had to suddenly turn it to the right side and that in the process it overturned. It was the month of May. When there are no rains in this part of the country. There is no evidence to suggest that any rains had taken place on that date. The fact that the empty truck had to be suddenly turned towards its right side and that in the process it was overturned, itself suggests that the driver of truck was not attentive and that the truck was being driven at a high speed For if it was not so, there was neither any occasion for the driver to suddenly turn the truck on the right side nor was there any teason for the empty truck to overturn. In these circumstances the greater probability is that driver of the truck, while he was driving it at a high speed had. for some reason lost his concentration. When he saw Soney Lal coming on a cycle short distance away, he suddenly turned the truck on the right side and in the process the truck overturned, and hit Soney Lal. In the circumstances there is no reason why version of the incident as given by Jumman and Moti Lal be not accepted.

We, therefore, hold that the claimants have succeeded in proving that Soney Lal died as a result of an accident with truck No. UPC 6429 and that at that time the truck was being driven rashly and negligently. In the circumstances legal representatives of Soney Lal are entitled to recover compensation for the death of Soney Lal.

12. Next question that arises for consideration is as to was amongst the claimants is entitled to receive compensation. According to English Common Law, which was being applied in this country as well, no action could, on the maxim actio personalis moritur cum persona be brought by dependents or heirs of a deceased person whose death was brought about by tortious act of another, although a person injured by a similar act could validly claim damages for the wrong done to him. Subsequently, the Indian Legislature intervened and framed Fatal Accidents Act, 1855. Preamble of the Act stated that whereas no action or suit was maintainable in any court against a person who by his wrongful act negligence or default caused death of another person and that often it was expedient that the wrong done in such cases should be made answerable in damages for the injuries so caused by him. It had, therefore become necessary to make provision giving a right to the dependent named in the Act to maintain an action in damages in respect of death arising out of a fatal accident. Section 1-A of the Act runs thus:

Whenever the death of a person shall be caused by wrongful act negligence or default and the act of negligence 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 alive 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 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 proportionate to the loss resulting from such death to the party for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting of costs and expenses including the cost of recovery from the defendent, shall be divided amongst the before mentioned parties or any of them in such share as the Court by its judgment or decree shall direct.

13. Section 4 then provides that the expression parent occurring in the Act would include within its ambit father, mother, grandfather and grandmother and the expression child would mean son, daughter, grandson, granddaughter step-son and step-daughter. It is thus clear that by enacting Fatal Accidents Act, 1855, an inroad was made on the doctrine actio personalis moritur cum persona and it was provided that even in the case of death of a person by tortious act an action to receive compensation would be at the instance of persons specified therein. Ever since passing of the Fatal Accidents Act suits were being filed by the relations mentioned in Section 1-A of the Act for recovering compensation for deaths caused by tortious acts. However, the Legislature again intervened and enacted Section 110 of the Motor Vehicles Act, 1939, providing therein that the State Government could by notification in Official Gazette constitute one or more Accidents Tribunals for such area as may be specified for the purposes of adjudicating a claim for compensation in respect of accidents involving death or fatal injury to persons arising out of use of motor vehicles or damages to any property of a third person so arising or both. Consequently, after establishment of Claims Tribunals, claim for compensation in respect of accidents involving death or fatal injury to persons arising out of use of motor vehicles was to be made before the Claims Tribunal and not in civil Courts.

14. Section 110-A of the Act then provides that an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made by a person where death has resulted from the accident by all or any of the legal representatives of the deceased. The expression legal representative of the deceased, has not been defined, but in the context it obviously must include within its ambit person who under the law would be, entitled to recover compensation on account of the death of the deceased. By enacting Sections 100 and 110-A in the Motor Vehicles Act, the Legislature did not intend to affect the rights of the persons who under the Fatal Accidents Act had been entitled to receive compensation for the death of a person and such persons must for purposes of Section 110 of Motor Vehicles Act, 1939, be considered to be legal representatives of the deceased. Accordingly, if as a result of someones death his grand parents, parents or children or grandchildren suffer loss who could file a suit for compensation against the person who is responsible for committing the death because of an action for which he would normally have been liable under tort if the deceased had not died would be covered by the expression legal representative as used in Section 110-A of the Motor Vehicles Act.

15. It is also clear that a person who is neither an heir of the deceased nor is he one of the persons enumerated in Section 1-A of the Fatal Accidents Act, he cannot be considered to be a legal representative of the deceased within the meaning of Section 110-A of the Motor Vehicles Act.

16. A large number of cases having a bearing on interpretation of expression legal representatives, as used in Section 110-A of the Motor Vehicles Act, were brought to our notice, but in none of them has it been held that the persons who are neither heirs of the deceased nor are such persons, as are mentioned in Section 1-A of the Fatal Accidents Act, can be considered to be the legal representatives for the purposes of an action under Section 110 of the Motor Vehicles Act. In the instant case Moti Lal was neither an heir nor did he belong to the category of persons mentioned in Section 1-A of the Fatal Accidents Act. Accordingly no action to recover compensation on his behalf could lie. So far as the remaining applicants are concerned they fall in the category of persons for whose benefit an action for recovery of compensation could have been initiated. Accordingly an application under Section 110-A of the Motor Vehicles Act could lie for their benefit. Claims Tribunal was therefore clearly wrong when it held that the action could lie for the benefit of Kumari Pool Kali alone and not for the benefit of any other claimant.

17. We now proceed to consider as to whether the Claims Tribunal was right in holding that Smt. Gayanti Devi was not entitled to claim compensation as she had remarried Satya Narain Prasad When the claim was instituted Smt. Gayanti Devi was staying with her husbands family members and at that time she had not remarried. The opposite parties took up the case that in case it was found that the claimants were entitled to recover compensation it should be kept in mind that the deceased belonged to a community where remarriage of widows was a common feature. Gayanti Devi was aged about 20 years and in all likelihood she was likely to remarry. This plea was obviously taken with the view that in case it was found that compensation was payable by the Defendants due allowance should be made for this factor as well. While the claimants were producing their evidence they were not required to meet the case that Smt. Gayanti Devi had actually remarried. It was towards the close of their evidence that the Defendants produced one Satya Narain D.W. 3 who claimed that Gayanti Devi had been remarried to him. In support of his case Satya Narain filed a photograph in which Smt. Gayanti Devi and her daughter were to be seen along with him. He claimed that he married Gayanti Devi on 14th of April, 1974 and thereafter she left him on 15th of June, 1974. In his cross-examination the witness admitted that he did not marry Gayanti Devi in a regular manner. According to him both he and Gayanti Devi had acknowledge before four or five persons that they had been married and thereafter, Katha was held and Gayanti Devi was made to wear bangles. According to him this was the procedure in which widows are married in his community. On witnesses own admission, the marriage between him and Gayanti Devi was not regular. Even if that this witness has stated be true, it cannot be said that Gayanti Devi had been regularly married to Satya Narain. As the evidence of Defendants own witness shows that there was no legal marriage between Gayanti Devi and Satya Narain, it is not necessary for us to go into the question as to whether what the witness, had stated was factually correct or not. We, accordingly, hold that the opposite: parties have not succeeded in proving that Gayanti Devi had been married to Satya Narain.

18. Learned Counsel appearing for the claimants stated before us that Anandi Prasad grandfather of the deceased Soney Lal died during the pendency of the claim before the Claims Tribunal. Thereafter the mother of Soney Lal viz. Smt. Jaggi Devi also died. We have already observed that Moti Lal is not one of the persons for whose benefit claim petition can be maintained. Accordingly we are now concerned with computation of compensation that is to be awarded for the benefit of Ram Gharib father, Smt. Gayanti Devi widow and Kumari Phool Kali minor daughter of the deceased, only.

19. Smt. Gayanti Devi has in her statement stated that Soney Lal was spending about Rs. 400/- every month on the family which consisted of Soney Lal and the six claimants. It is thus apparent that whatever Soney Lal was earning he was spending on himself and six members of the family. As Soney Lals income was about Rs. 400/- per month it can be taken that he was spending Rs. 150/- per month on himself and the remaining Rs. 250/- per month for the upkeep of remaining members of the family. Considering that this amount was spent by Soney Lal on the maintenance of his wife, daughter, brother, parents and grand-parents it may be taken that he was spending about Rs. 150/- on his wife, daughter and father and remaining Rs. 100/-on his mother, grand parents and brother. While apportioning the amount in this manner we have taken into consideration the fact that normally a person spends a bit more on his wife and children than what he spends on his brother and grand-parents. It thus appears that Soney Lal was spending a sum of Rs. 150/- per month on his wife, daughter and father and it is for this loss that these three claimants have to be compensated.

20. The age of Soney Lal at the time of his death was 23 years and the evidence discloses that he was in good health. In the circumstances he could easily be expected to live upto the age of 60 years and his life expectancy has been cut short by about 37 years. During this time Soney Lal would have spent about Rs. 66,600/-on the three claimants and it is this amount which the three claimants are going to lose by reason of Soney Lals death and they should be compensated for it, however considering the fact that the compensation would be paid to the claimants in a lump sum a proper deduction should be made in that regard. We consider that in the circumstances the amount of Rs. 66,600/-should be reduced by 30% on this account. Knocking out 30% the amount payable to the three claimants comes to Rs. 46,700/-. We are accordingly of opinion that the three claimants should be awarded a sum of Rs. 46,700/- under this head.

21. Apart from compensation for loss of earning by reason of Soney Lals death, the claimants have claimed compensation under various heads. From out of those heads, learned Counsel appearing for the claimants has pressed for further compensation under following two heads viz. Rs. 2,000/- for out of pocket expenses incurred at funeral rites. Rs. 300/- for loss of goods e.g. wrist watch at Rs. 80, cycle at Rs. 160/- and clothes valued at Rs. 60/-only. In our opinion the claimants must have incurred an expenditure of about Rs. 2,000/- on performance of funeral rites etc. as claimed by them. They must also have suffered a loss about Rs. 300/- by reason of the loss of goods at the time of accident viz. wrist watch, cycle and clothes of the deceased. The compensation claim under these two heads appears to be justified. Claimants therefore are entitled to a further sum of Rs. 2,300/- over and above the sum of Rs. 46,700/- awarded as compensation. The total compensation payable to the claimants therefore comes to Rs. 49,000/-.

22. Next question that arises for consideration is as to how the compensation awarded is to be shared between the widow, the father and the minor daughter of the deceased. From out of a sum of Rs. 150/-which the deceased was spending on his father, wife and daughter, it is unlikely that he would be spending anything more than about Rs. 25/- to 30/- per month on his father. According to the Appellants themselves, the father at the time of the death of Soney Lal was about 55 years. His life expectancy may be taken to be about 9 to 10 years more. We, therefore, feel that it would be apt to award him a sum of Rs. 3,000/- only as compensation. Remaining Rs. 46 000/- are to be shared between the minor daughter and mother. So far as the widow of the deceased is concerned, considering the young age, the likelihood of her marrying over again cannot be ruled out. The real loss in this connection has been suffered by the minor daughter Kumari Phool Kali. In the normal course the deceased would have had to spend a large amount on the performance of her marriage and in bringing her up. In these circumstances we feel that the compensation amounting to Rs. 46,000/- should be shared between Smt. Gayanti Devi and Kumari Phool Kali approximately in the ratio 1:2. We accordingly direct that from out of the compensation so determined Gayanti Devi will get Rs. 16,000/- and the remaining Rs. 30,000/- will go to the minor daughter.

23. In the result the appeal succeeds and is allowed in part. The claim for compensation for the benefit of Sri Ram Gharib, Smt. Gayanti Devi and Kumari Phool Kali is accepted for a sum of Rs. 49,000/- only. The liability to pay the same will be that of Respondent Nos. 1 and 3. As under the insurance policy Respondent No. 3 is liable to cover the risk upto Rs. 50,000/- the entire compensation is to be paid by it. The claim for compensation is rejected as against Respondent No. 2 Punjab National Bank which had merely financed the purchase of the truck by Respondent No. 1 as it cannot be held liable for the tortious act of the driver of Respondent No. 1. In the circumstances we direct the parties to bear their own costs.