Suba Singh & Anr.
Vs. Davinder Kaur & ANR.
J U D G M E N T
AFTAB ALAM,J.
1.
This
appeal by special leave arises from a suit for damages filed by the plaintiffs-respondents,
the widow and the minor daughter of one Surinder Singh, claiming a sum of
rupees three lakhs as damages from the defendants-appellants for causing the death
of Surinder Singh by their wrongful act.
2.
In
an occurrence that took place on July 1, 1991, Surinder Singh died as a result
of gun shot injuries. An F.I.R (no.166) was lodged by his father Balbir Singh, under
sections 302/307/ 34 of the Penal Code and section 225/27 of the Arms Act in
which the two appellants, Suba Singh and Shingara Singh, father and son
respectively, were named as accused.
3.
On
November 16, 1991, respondent no.1 filed a suit on behalf of herself and on
behalf of her minor daughter, who was at that time about 4-5 years old, against
the defendants-appellants claiming damages for the death of her husband and the
father of the young child. In the plaint, it was alleged that Suba Singh and
his son Shingara Singh had committed the murder of Surinder Singh. Shingara
Singh came to the place of occurrence armed with the licensed gun of his father
and urged by him, he fired a shot killing Surinder Singh on the spot. At the
time of death, the age of Surinder Singh was about 25 years.
He was a peasant and a
motor vehicle driver by vocation. As a professional driver, he was in private service
of certain persons named in the plaint. He also used to help his father in
agricultural operations and his income from all the sources was about Rs.16,000/-
per annum. It was stated that after the death of Surinder Singh, the plaintiffs
did not have any source of income to maintain themselves. Hence, the claim for
compensation by way of damages of rupees three lakhs from the defendants.
4.
The
defendants contested the suit questioning its maintainability. They denied the
allegations made in the plaint and stated that they were in no way responsible
for causing the death of Surinder Singh. It was alleged that Surinder Singh
claimed the common wall between their houses and at the time of the occurrence he
was throwing brickbats at the defendants causing injuries to them. In that
situation Suba Singh fired a shot and a stray pellet hit Surinder Singh who was
sitting on the wall, resulting in his death.
5.
During
the pendency of the suit, the defendants were tried by the Additional Sessions
Judge, Sirsa, in Sessions Trial No.46 of 1991, charged variously of offences
under sections 302, 307, 302/34, 307/34 IPC and under section 25/27 of the Arms
Act. The learned Additional Sessions Judge, by his judgment and order dated
March 6, 1992, acquitted Shingara Singh of all the charges leveled against him
but found Suba Singh guilty of the offence under section 304 Part-I, holding
that he had exceeded his right of private defence. Accordingly, he sentenced Suba
Singh to rigorous imprisonment for 10 years and a fine of Rs.50,000/- and in default,
to rigorous imprisonment for a further period of 2 years.
The matter was taken
to the High Court in appeals preferred both by the State and by Suba Singh
besides a revision preferred by the informant Balbir Singh, the father of the
deceased. The High Court by a common judgment and order allowed the appeal
filed by the State and held Shingara Singh guilty of the offence under section 302
and 307 of the Penal Code. Suba Singh was found guilty and convicted under
sections 302/34, 307/34 of the Penal Code. Shingara Singh 4was also found
guilty of the offence under section 27 of the Arms Act. Both, Suba Singh and
Shingara Singh were sentenced to life imprisonment and to pay fines with
default clauses.
6.
While
the suit was pending before the trial court, the widow of Surinder Singh
plaintiff no.1 got married to his younger brother in the year 1998 and from
him, she has two children.
7.
On
November 27, 1999, the learned Civil Judge, Sirsa (Haryana) decreed the suit and
awarded compensation of rupees three lakhs to the plaintiffs-respondents along
with interest @ 12% per annum from the date of the filing of the suit. The appellants
filed an appeal (Civil Appeal No.191/1999) before the District Judge, The District
Judge partly allowed the appeal and by judgment dated March 7, 2002 reduced the
amount of compensation from rupees three lakhs to rupees two lakhs, thirty two
thousand seven hundred, leaving the rate of interest unchanged. The appellants took
the matter in second appeal before the High Court but the same was dismissed by
the impugned judgment and order, dated October 3, 2002, holding that it did not
raise any substantial question of law. The matter is now brought before this
Court by grant of special leave.
8.
To
complete the facts it may be stated that shortly after leave was granted in the
present appeal, the appellants' criminal appeals against the 5judgment and order
passed by the Punjab and Haryana High Court (registered as Criminal Appeal
Nos.682-683 of 1996 with Criminal Appeal Nos.1345-1347 of 2003) came to be
heard by this Court. By the judgment and order dated November 4, 2003, the appeal
of Shingara Singh was allowed and he was acquitted of all the charges and the
conviction of Suba Singh was converted from one under section 302 to section
304 Part I of the Penal Code. In other words, this Court set aside the judgment
of the High Court and restored the judgment passed by the trial court, though giving
Suba Singh a reduced sentence of 5 years rigorous imprisonment and a fine of
Rs.10,000/- and in default of payment of fine to further imprisonment for a
period of 1 year.
9.
Now,
coming back to the present appeal, the judgments of the High Court and the
courts below were assailed by the counsel for the appellants on the plea of double
jeopardy. It was submitted that the appellants were being punished twice over for
the same offence. Learned counsel also referred to section 357 of the Code of
Criminal Procedure and submitted that there being a specific provision there
for payment of compensation, a suit for damages would not be maintainable.
10.
The
rule against double jeopardy is contained in sub-article (2) of Article 20 of
the Constitution of India which mandates that "no person shall 6be
prosecuted and punished for the same offence more than once". Now, it is
elementary that an action for civil damages is not prosecution and a decree of
damages is not a punishment. The rule of double jeopardy, therefore, has no
application to this case.
11.
The
submission based on section 357 of the Cr.P.C. is equally without substance.
Section 357 of the Code reads as under: "357. Order to pay compensation.-
I.
When
a Court imposes a sentence of fine or a sentence (including a sentence of
death) of which fine forms a part, the Court may, when passing judgment, order
the whole or any part of the fine recovered to be applied-
a. in defraying the expenses
properly incurred in the prosecution;
b. in the payment to any
person of compensation for any loss or injury caused by the offence, when
compensation is, in the opinion, of the Court, recoverable by such person in a
Civil Court;
c. when any person is convicted
of any offence for having caused the death of another person or of having abetted
the commission of such an offence, in paying compensation to the persons who are,
under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from
the person sentenced for the loss resulting to them from such death;
d. when any person is
convicted of any offence which includes theft, criminal misappropriation, criminal
breach of trust, or cheating, or of having dishonestly received or retained, or
of having voluntarily assisted in disposing of, stolen property knowing or
having reason to believe the same to be stolen, in compensating any bona fide purchaser
of such property for the loss of the same if such property is restored to the
possession of the person entitled thereto.
I.
II.
If
the fine is imposed in a case which is subject to appeal, no such payment shall
be made before the period allowed for presenting the appeal has elapsed, or if
an appeal be presented, before the decision of the appeal.
III.
When
a Court imposes a sentence, of which fine does not form a part, the Court may,
when passing judgment, order the accused person to pay, by way of compensation
such amount as may be specified in the order to the person who has suffered any
loss or injury by reason of the act for which the accused person has been so
sentenced.
IV.
An
order under this section may also be made by an Appellate Court or by the High
Court or Court of Session when exercising its powers of revision.
V.
At
the time of awarding compensation in any subsequent civil suit relating to the same
matter, the Court shall take into account any sum paid or recovered as compensation
under this section." (emphasis supplied)
12.
The
contention made on behalf of the appellants is fully answered by clauses (b)
and (c) of sub-section (1) and sub-section (5) of section 357 of the Code. In
those provisions there is a clear and explicit recognition of a civil suit at
the instance of the dependents of a person killed, against his/her killers. In
sub-section (1)(c) of section 357 there is clear indication that apart from the
punishment of fine, the person convicted of any offence of having caused the
death of another person or of having abetted the commission of such an offence
may also be liable to face a civil action for damages under 8the Fatal
Accidents Act, 1855 in a suit for damages and sub-section (5) of section 357 of
the Code makes it all the more clear by stipulating that at the time of awarding
compensation in a subsequent civil suit relating to the same matter the court
shall take into account any sum paid or recovered as compensation under that
section.
13.
In
the end, counsel for the appellants, rather feebly submitted that the widow of
Surinder Singh was not entitled to any compensation because she had remarried
during the pendency of the suit. We find no substance in this submission
either. It may be noted that the first appellate court has taken the sum of Rs.12,400/-
as the annual input by the deceased towards the maintenance of his wife and the
minor child. The remarriage of plaintiff no.1 took place after seven years of filing
of the suit. The amount of compensation reckoned for 7 years at the rate of Rs.12,400/-
per annum would be Rs.86,800/-. The balance being Rs.1,45,900/-, would be a
modest and reasonable amount as compensation for defendant no.2, the minor
child of the deceased till she attained majority and got married. We,
therefore, see no scope for any interference with the amount of compensation
awarded by the first appellate court.
14.
It
is indeed true that the courts below have awarded interest at the rather higher
rate of 12% per annum. In the facts of the case, we are 9satisfied that simple
interest at the rate of 6% per annum from the date of the filing of the suit till
payment would meet the ends of justice. We, accordingly, modify and reduce the
rate of interest to 6% per annum.
15.
Having,
thus, considered and disposed of all the contentions raised on behalf of the
appellants, we would like to advert to another issue that is a cause of no
little concern to us.
16.
We
are constrained to observe that a suit for damages for murder of a person, like
the present one, is filed under the Fatal Accidents Act, 1855. As the year of
its enactment shows the Act dates back to the period when the greater part of
the country was under the control of the East India Company with the last Mughal
"Emperor", Bahadur Shah Zafar as the ineffective, though, titular
monarch on the throne of Delhi.
17.
The
Act is based on the Fatal Accidents Act, 1846 and according to the short title
given to it by the Indian Short Titles Act, 1897, it is "An Act to provide
compensation to families for loss occasioned by the death of a person caused by
actionable wrong". Its Preamble reads as follows: "Whereas no action or
suit is now maintainable in any Court against a person who, by his wrongful
act, neglect or default, may have caused the death of another person, and it is
often- times right and expedient that the wrong-doer in such case should be answerable
in damages for the injury so caused by him"
18.
It
originally consisted of three sections, but, the original section 1 was
renumbered as section 1A by the Part B States (Laws) Act (3 of 1951), S. 3 and Schedule,
with effect from April 1, 1951. Section 1A of the Act provides as follows: "1A.
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."
19.
Later
on the operation of the Act was extended to different parts of the country and
as on date it extends to the whole of India except the State of Jammu and
Kashmir.
20.
It
is a matter of grave concern that such sensitive matters like payment of compensation
and damages for death resulting from a wrongful or negligent act are governed by
a law which is more than one and a half centuries old. Twenty one years ago a
Constitution Bench of this Court in Charan Lal Sahu v. Union of India, (1990) 1
SCC 613, a case arising from the Bhopal Gas Tragedy, had taken note of this antiquated
law and in paragraph 168 made the following observations: "168. While it
may be a matter for scientists and technicians to find solutions to avoid such
large scale disasters, the law must provide an effective and speedy remedy to
the victims of such torts. The Fatal Accidents Act, on account of its limited
and restrictive application, is hardly suited to meet such a challenge.
We are, therefore, of
the opinion that the old antiquated Act should be drastically amended or fresh legislation
should be enacted which should, inter alia, contain appropriate provisions in regard
to the following matters: (i) The payment of a fixed minimum compensation on a
"no- fault liability" basis (as under the Motor Vehicles Act),
pending final adjudication of the claims by a prescribed forum; (ii) The
creation of a special forum with specific power to grant interim relief in
appropriate cases; (iii) The evolution of a procedure to be followed by such
forum which will be conducive to the expeditious determination of claims and
avoid the high degree of formalism that attaches to proceedings in regular
courts; and (iv) A provision requiring industries and concerns engaged in hazardous
activities to take out compulsory insurance against third party risks." (emphasis
supplied)
21.
It
is unfortunate that the observations of the Supreme Court have so far gone completely
unheeded. We hope and trust that the Union Government would at least now take note
of the urgent need to bring a contemporaneous and comprehensive legislation on
the subject and proceed to act in the matter without any further delay.
22.
Let
a copy of this judgment be brought to the notice of the Attorney General for India.
A copy of the judgment may also be sent to the Law Commission of India.
23.
In
the result, the appeal is dismissed, subject to the modification in the rate of
interest. There will be no order as to costs.
..............................J.
(AFTAB ALAM)
..............................J.
(R.M. LODHA)
New
Delhi;
July
6, 2011.
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