IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.: 454 of 2001 & Cross Objection No. 91 of 2002. Date of decision : 6.11.2009 Babu Ram and others. ….Appellant. Versus Bagan Devi and others ….Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellants: Mr. Ramakant Sharma, Advocate. For the Respondents Mr. K.D.Sood, Advocate. Deepak Gupta, J.(Oral) By this judgement the appeal and cross-objections filed by the parties are being disposed of. Briefly stated, the facts of the case are that the deceased Kishan Chand was allegedly assaulted and killed by the defendants on 15.10.1993. The defendants Babu Ram, Vijay Kumar, Kulwant Singh and Shakti Devi were arrayed as defendants and faced trial under Section 302 IPC. Vide judgement dated 20th July, 1995 (Ext.P-4) the learned Sessions Judge convicted the defendants for having committed an offence punishable under Section 304, Part- II, of the Indian Penal Code and sentenced them to undergo imprisonment for four years each and to pay fine of Rs.5,000/- each. The defendants-accused filed an appeal in this Court which 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 appeal was disposed of on 5th August, 1998 vide judgement Ext.P- 5. The conviction was confirmed. However, the sentence was reduced to the period already undergone. Thereafter, the State filed an appeal in the Apex Court which was disposed of on 19th November, 1999 vide Ext.PX. Though the appeal of the State for enhancement of sentence was dismissed but fine was enhanced from Rs.20,000/- to Rs.35,000/- in all. The plaintiffs, who are the widow, three major sons and one minor daughter of Kishan Chand filed a suit on 15th December, 1998 claiming damages of Rs.4,00,000/- alongwith interest on account of the death of Shri Kishan Chand. This suit was contested by the defendants. They contended that they had not killed Kishan Chand. They also pleaded that the suit was not within limitation. The learned trial Court held that the suit was within limitation. He further went on to hold that Kishan Chand had been killed by the wrongful act of the defendants and proceeded to award damages of Rs. 35,000/- in favour of the plaintiffs. The defendants have filed the present appeal challenging the judgement and decree passed by the learned trial Court. The claimants have filed cross- objections claiming that the award of compensation is very low and the same may be enhanced. The first question which arises for decision is whether the deceased died as a wrongful act of the defendants. As already mentioned above, the defendants have been convicted and in criminal proceedings they have been held liable for death of the deceased right upto the Apex Court. 3 The degree of proof required in a criminal case is much higher than that required in a civil Court. It may be true that a decree cannot be passed merely on the basis of the judgement of a Criminal Court and independent evidence has to be led in this regard but the findings of the Criminal Court are definitely relevant pieces of evidence. In the present suit also evidence has been led by the plaintiffs to show that the deceased died as a result of the injuries caused to him by the defendants. PW-2 Baljeet Singh, MHC has proved the F.I.R. Ext.PW-2/A. PW-3 Ashok Kumar son of deceased is an eye witness to the incident and has clearly stated that when his father was preparing tea the defendant No.1 beat him with a bamboo stick and thereafter other defendants chased his father and beat him. The testimony of PW-3 is supported by the post mortem conducted by Dr. R.K.Gautam, PW-6. Keeping all these factors into consideration, I am of the considered view that the plaintiffs have proved to the satisfaction of the Court that the death of the deceased was caused due to the wrongful acts of the defendants. In fact, the defendants do not deny the death of the deceased Kishan Chand but according to them it was Kishan Chand who had started the quarrel and resultantly he died. After having gone through the entire evidence, I have no doubt in my mind that the trial Court rightly held that the death of Kishan Chand was the result of the injuries inflicted on him by the defendants. The oral evidence led in this Court coupled with the findings of the criminal Court lead to only one irresistible conclusion 4 that the deceased died as a result of the injuries inflicted upon him by the defendants. Next comes the question of limitation. The learned trial Court held that Article 82 of the Limitation Act is not applicable as the claim for damages has not been filed under the Fatal Accidents Act but the plaintiffs are only exercising their rights under common law. The learned trial Court relied upon a judgement of the learned Single Judge of Punjab and Haryana High Court in Partap Singh vs. Gurdial Kaur and another, AIR 1999 P&H 86, while coming to this conclusion. In the case before the Punjab and Haryana High Court the question of law relating to limitation involved was exactly what is involved in the present case. The learned Single Judge held that provisions of the Fatal Accidents Act are not applicable since the suit claiming damages was filed for the intentional killing of the husband of the plaintiff by the defendants and not an accidental death. The learned Single Judge held that under common law a personal right of action dies with the person and at common law no one can recover damages for the death of another. This Rule was established in Baker vs. Bolton (1808) 1 Camp 493. It is well established that under common law no action could lie for the death of person. The basic principle behind this law was that no person can claim damages for the death of another and the cause of action does not survive after the death of the person who has received the injuries which has resulted in his death. Even the preamble of the Fatal Accidents Act clearly lays down that no action 5 or suit is 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 made answerable are required to be damages for the injuries caused by him which resulted in the death of the other. To overcome the lacuna in common law wherein no action lay on account of the death of a person even if caused by the wrongful act of another the Fatal Accidents Act, 1846 was enacted in England and for the first time the heirs of a deceased person were given the right to file an action claiming damages for the death of their predecessor. Based on this English Act, the Indian Fatal Accidents Act, 1855 was enacted and extended to British India and later to the whole of the country. Section (1A) of this Act reads as follows:- “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.” A bare reading of the section itself shows that when the death of a person is caused by the wrongful act of another which would have entitled the person injured to claim damages then notwithstanding the fact that the person injured has died as a result of the injuries his heirs can file an action for damages. The last portion of Section makes it absolutely clear that such an action 6 will lie even though the death may have been caused on account of an act which amounts in law to felony or other crime. Therefore, it is more than obvious that even in the case when death is caused due to a wrongful act which may be a criminal act then also compensation can be claimed under the Fatal Accidents Act. Since no action lay under common law the only provision entitling the heirs of the deceased to claim damages is the Fatal Accidents Act itself. For the aforesaid reasons, I am in respectful disagreement of the judgement rendered by the Punjab and Haryana High Court. In view of the above discussion, I held that the present suit is covered by the provisions of the Fatal Accidents Act and limitation is governed by Article 82 of the Schedule to the Limitation Act, which reads as follows:- Description of suit. Period of limitation Time from which period beings to run By executors, administrators or representatives under the Indian Fatal Accidents Act, 1855 (13 of 1855) Two years. The date of the death of the person killed. It is clear that the suit must be filed within two years of the date of death of the person killed. Therefore, the mere fact that criminal proceedings are pending will not extend the period of limitation and to that extent the findings given by the learned trial Court are against law and accordingly set-aside. In the present case, the death took place on 15th October, 1993 and the limitation expired on 15th October, 1995 and suit was filed on 15th December, 1998 and hence it was not within limitation qua the persons who were majors. Two of the heirs of the 7 deceased, namely, Ashok Kumar and Savitri Devi were minors when Kishan Chand died. Ashok Kumar attained majority on 15.4.1996 since his date of birth is 15.4.1978. Savitri Devi was born on 9.5.1980 and thus attained majority only on 9.5.1998. Therefore, in view of the provisions of Section 6 of the Limitation Act, limitation of two years as far as the two minor plaintiffs are concerned would start from the date when they attained majority. Limitation, as far as, Ashok Kumar is concerned expired on 15.4.1998 prior to the filing of the suit but the suit qua Savitri Devi is well within limitation since she attained majority only six months prior to the filing of the suit. Now comes the question with regard to the amount of compensation to which the plaintiff Savitri Devi alone is entitled since I have held that the suit is not within limitation qua the other defendants. The evidence on record clearly shows that the deceased was aged about 54 years. He was an ex-serviceman getting pension of Rs.1490 /- per month. In addition thereto he was also doing agricultural work. The deceased was a able bodied man and his wife has stated that the deceased was running a water mill and was also rearing cattle and selling milk and earning Rs.6000/- per month. Similar is the statement of PW-3. No doubt, there is no direct evidence other than the statement of these two witnesses with regard to the income of the deceased. However, keeping in view the fact that the deceased was an ex-serviceman and was an able bodied person it would not be unjust to hold that the deceased must have been earning Rs.2000/- per month in 8 addition to his pension from all pursuits. Out of the amount which he was earning the deceased would have been spending on his wife, minor children. Therefore, the contribution of the deceased towards the plaintiff Savitri Devi can easily be assessed at a minimum of Rs.500/- per month or Rs.6000/- per year. The deceased was 55 years old and the daughter was only about 13 years when her father was killed. Therefore, keeping all these factors into consideration it would not be unjust to apply a multiplier of 10 and the loss on account of loss of dependency is assessed at Rs.60,000/- qua plaintiff Savitri Devi. This is a suit for damages under the Fatal Accidents Act and the plaintiff can claim non-pecuniary damages which cannot be granted under the Motor Vehicles Act. Here is a young child aged only 13 years who has lost the love of her father at a tender age. She is without the support of her father and keeping in view all these aspects I feel that it would be fair and just to award a sum of Rs.40,000/- for loss of love, deprivation of the company of her father, etc. The total damages payable to the claimant Savitri Devi is assessed at Rs.1,00,000/-. The plaintiff out of this amount must have received Rs.7000/- as her share out of the fine imposed by the Apex Court since the fine was ordered to be paid as compensation to the family members. The said fine is liable to be deducted in terms of Section 357 of the Code of Criminal Procedure. After deducting the amount of fine the compensation payable to the claimant works out to Rs.93,000/-. The claimant Savitri Devi shall also be entitled to interest @ 9% per annum on 9 this amount from the date of filing of the suit i.e. 15.12.1998 till payment/deposit of the entire amount. In view of the above discussion, the appeal filed by the defendants is allowed to the extent that the claim of widow and three sons is held to be time barred. However, the cross- objections are allowed and it is held that even though only the suit of Savitri Devi was within limitation, the damages are enhanced from Rs.35,000/- to Rs.93,000/- with interest as aforesaid. The appeal and cross-objections are disposed of in the aforesaid terms. Decree sheet be drawn up accordingly. No order as to costs. 6th November, 2009. ( Deepak Gupta ) ™ Judge.