Suba Singh & Anr vs Davinder Kaur & Anr

Suba Singh & Anr. ...Appellants

Versus

Davinder Kaur & Anr. ..Respondents

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

2 25/27 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

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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

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was 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

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judgment 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

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be 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.- (1) 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

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loss of the same if such property is restored to the possession of

the person entitled thereto.

(2) 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.

(3) 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.

(4) 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.

(5) 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

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the 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

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satisfied 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"

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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.

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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

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(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.