Report No. 149
6.1. Section 166 of the 1988 Act, corresponding to section 110A of the 1939 Act, provides that where death has resulted from an accident, the application for compensation may be made by all or any of the legal representatives of the deceased victim. The expression 'legal representatives' has not been defined in the Act. An earlier report of this Commission had suggested that, for the purposes of this Act also, the definition of the expression in the Fatal Accidents Act, 1855 could be adopted.1
The Supreme Court in Kunhimohammed's case2 has not agreed with this view and has suggested that the definition drafted by the Pearson Committee in England3 and incorporated in the new English enactment on the subject would be more appropriate.4
Though the Bill was under consideration of Parliament when the Supreme Court made its observations, Parliament did not incorporate a definition of 'legal representative' in the 1988 Act. This omission should be remedied. We think, in the circumstances, that it is necessary to insert a definition of the expression "legal representatives" for the purposes of this Act. We suggest that it may be inserted as an Explanation to sub¬section (1) of section 166 of the Act. What should be the wording of the definition of 'legal representatives'?
1. 85th Report (30-5-1980), para. 9.15.
2. AIR 1987 SC 2158.
3. AIR 1987 SC 1695 (1696).
4. See also observations on this issue in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690.
6.2. The definition, inserted in England, on the recommendations of the Pearson Commission,1 and the Law Commission's Report of 19732 is to the following effect:3
"(3) In the Act, 'dependant' means-
(a) the wife or husband or former wife or husband of the deceased;
(b) any person who-
(i) was living with the deceased in the same household immediately before the date of the death;
(ii) had been living with the deceased in the same household at least for two years before that date; and
(iii) was living during the whole of that period as the husband or wife of the deceased;
(c) any parent or other ascendant of the deceased;
(d) any person who was treated .by the deceased as his parent;
(e) any child or other descendant of the deceased;
(f) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;
(g) any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.
(4) The reference to the former wife or husband of the deceased in sub¬section (3)(a) above includes a reference to a person whose marriage to the deceased has been annulled or declared void as well as a person whose marriage to the deceased has been dissolved.
(5) In deducing any relationship for the purposes of sub-section (3) above-
(a) any relationship by affinity shall be treated as a relationship by consanguinity, and relation of the half blood as a relationship of the whole-blood, and the step-child of any person as his child; and
(b) any illegitimate person shall be treated as the legitimate child of his mother and reputed father;
(6) Any reference in this Act to injury includes any disease and any impairment of a person's physical or mental condition."
This is a very comprehensive and all embracing definition enabling almost any person related to the deceased to claim compensation.
1. 1978 Cmd. 7054.
2. Report No. 56 (HC) 373.
3. Section 1 of the Fatal Accidents Act, 1976, as substituted by section 3 of the Administration of Justice Act, 1982.
6.3. The question is whether this definition should be imported verbatim in the 1988 Act as well. It is hardly disputable that the list of persons entitled to compensation under the 1988 Act should, in principle, be evolved, more or less on the same lines as the one drawn up under the Fatal Accidents Act. Unfortunately, the Fatal Accidents Act in India was enacted in 1855, when fatal accidents were not so common as they have become now after the proliferation of fast moving vehicles, but the Act has not undergone any revision thereafter.
It was on account of this circumstance that the Supreme Court of India read into sections 110A and 110B of the 1939 Act an intention to bring in a much wider category of dependants and was unwilling to accept the importation of the narrow definition as contained under the Fatal Accidents Act of 1855 for this purpose.1 The Law Commission has had occasion to consider the provisions of the Fatal Accidents Act, 1855 and forwarded its detailed recommendations.2
That report has discussed at great length the whole question of defining the relatives who should be entitled to receive compensation on the occurrence of the wrongful death of a person. In that report the Commission referred to the definitions in the Fatal Accidents Act of England, the Indian Workmen's Compensation Act, 19233 and the Indian Railways Act, 18904 and finally recommended the following list of relatives:5
(a) Wife or husband;
(c) daughter-in-law, if a widow;
(e) brother or sister's issue;
(f) brother's widow;
(g) sister and sister's issue;
(h) uncle and uncle's issue; and
(i) aunt and aunt's issue.
In this list, the expression "child" is to be understood in a very wide sense so as to include "son, daughter, grandson, grand-daughter, adopted child6 and a person to whom the deceased stood in loco parentis" and the expression "parent" to include "father, mother, grandfather, grand-mother, step father, step-mother, a person who had adopted a child, and a person who stood in loco parentis to the deceased." Provisions on the lines of sub-sections (5) and (6) of section 1 of the English Act, as substituted in 19827 and a further provision to the effect that "all words in this Act expressive of relationship apply to a child in the womb who is afterwards born alive"8 were also recommended.
This definition has virtually incorporated the provisions of the English definition. Recently, while re-codifying the Railways Act, 1989, the Parliament has introduced the definition of 'dependant' for the purpose of enumerating the relatives who can claim compensation on the death of a person in a Railway accident. The definition reads thus:9
"dependant" means any of the following relatives, namely:
(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or a minor, his parent;
7. Section 23(b).
(ii) the parent,10 minor brother, or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a predeceased son, if dependant, wholly or partly on the deceased;
(iii) the minor child of a pre-deceased daughter, if wholly dependant2 on the deceased passenger;
(iv) the paternal grand-parent wholly dependant on the deceased passenger."
1. It included only the wife, husband, parent or child of the deceased: second paragraph of section 1A.
2. 111th Report (16th May, 1985) which, apparently, was not available to the Supreme Court when it decided Kunhimohammed's case, supra.
3. Section 2(d). It contains a list of relatives, based mainly on their dependence on the deceased workman. The scheme of this Act is somewhat different and at least for the present, need not be brought into the legislation under consideration. The Law Commission in its 134th Report (1989) has suggested that the definition be amended to include the wife, husband, children, dependant parents and deceased son's widow and children.
4. Now replaced by the Indian Railways Act, 1989, considered below.
5. Chapter V of the Report.
6. Such a person can be compendiously described as an "adoptive parent".
7. Extracted earlier.
8. These definitions are set out as sections 2 and 4(3) of a draft bill titled 'The Wrongful Death Bill, 1985". Perhaps the split-up of the definition into two provisions was unnecessary.
9. This is not quite clear, as a parent, under clause (i) qualifies as a dependant only where the child is unmarried or a minor. The distinction appears to be that in the latter case, the parent will automatically come in whereas, if the deceased is married or a major, only a dependant parent will be within the definition.
10. In contrast to clause (ii), this requires a complete dependence on the deceased passenger.
6.5. We have thus two definitions to choose from.1 Both the definitions are much wider than the earlier definition given under the Fatal Accidents Act, 1855 and are comprehensive enough to meet the situations envisaged by the Supreme Court.2 Actually, it would be appropriate and proper if the definition of "relative" or "dependant" are identical under all the three enactments i.e. Fatal Accidents Act, 1855; Railways Act, 1989 and Motor Vehicles Act, 1988. It would be, therefore, simple to suggest the adoption of the definition already enacted in the Railways Act, 1989 for the Motor Vehicles Act as well, leaving the same to be also incorporated as and when a new version of the Fatal Accidents Act is enacted. But one finds certain defects in this definition.
Firstly, it emphasises more the point of dependance of the relative on the deceased than his degree of relationship with the deceased. This emphasis is not really needed in the definition, for the compensation receivable by a relative has to be proportionate to the injury caused to him as a result of the death and, if the relative was not at all dependant on the deceased, the relief due to him will be ni1.3
Secondly, the definition in the Railways Act contains certain discriminatory clauses which may perhaps be challenged in a court, e.g., a minor child of a predeceased son can claim compensation even where he/she is partly dependant on the deceased whereas a minor child of a predeceased daughter cannot claim unless he/she is wholly so dependant. A paternal grandparent is included in the definition whereas a maternal grand-parent is excluded.
Thirdly, the definition does not clarify that the expressions 'child' and 'parent' have to be understood in a wide and comprehensive manner. For these reasons, we are of opinion that it will be more appropriate to adopt the definition proposed in the draft Bill forwarded with the 111th Report with some changes, as indicated later.4 We recommend accordingly.5
1. There are also the definitions contained in the Employees' State Insurance Act, 1948, as amended by Act 44 of 1966 and Act 29 of 1989 [section 2(6A)1 and in the Carriage by Air Act, 1972 [Explanation to section 5(2)1. It is, however, sufficient to consider the two definitions referred to as they cover all categories of persons who may be affected by the death in question. It is, however, necessary, as pointed out earlier, that all these definitions should be so amended at some point of time as to bring in uniformity in an area where so much anomaly prevails.
2. In Kunhimohammed v. Ahmedkutty, AIR 1987 SC 2158 and Gujarat State Road Transport Corporation v. Ramanbhai, AIR 1987 SC 1690.
3. Section 1A (third para) of the Fatal Accidents Act, 1855. Also section 6(1) of the draft Bill appended to the 111th Report of the Law Commission. Though not specifically stated so, the principle under the Motor Vehicles Act, 1988 and the Railways Act, 1989, should be the same.
4. Chapter 12, post.
5. Indeed, we would recommend that the definition in the Railways Act, 1989, and other enactments such as the Workmen's Compensation Act, 1923, the Employees' State Insurance Act, 1948, the Carriage by Air Act, 1972 and the Public Liability Insurance Act, 1991 should also be brought in line with this definition.