Harold Clive Johnson And Ors. And … vs The Madras Railway Company on 19 April, 1905

Madras High Court
Harold Clive Johnson And Ors. And … vs The Madras Railway Company on 19 April, 1905
Equivalent citations: (1905) 15 MLJ 363


1. In one of these cases the plaintiffs are the minor children of one, Johnson, a railway passenger who was killed in the Mangapatam railway accident. The plaintiffs sue with their mother, the widow of the deceased, as their next friend; in the other suit the plaintiffs are the minor children of a Hindu named Narayanasamy Mudali, another Railway passenger who lost his life in the same accident. They also sue with their mother, the widow of the deceased as their next friend. In neither case is there any executor or administrator of the deceased. The suits are brought against the Madras Railway Company for compensation under Act XIII of 1855 and were instituted after the expiry of one year from the death of persons referred to. The question is whether the suits are time-barred. The answer to this question must be in the affirmative with reference to Art, 21 of Schedule IT of the Indian Limitation Act unless the bar is saved by the provisions of Sections 7 or 8 of the Act.

2. Before proceeding to consider the applicability of those provisions to the cases, it is necessary to see what is the precise nature of the right conferred by Act XIII of 1855 under which the claims are made. As stated in the preamble of the Act itself the relations of a person whose death was caused by the wrongful act of another were not, prior to its enactment, entitled to claim compensation on account of the death. The right to claim compensation in respect of such a death was created by the Act. It is provided that every suit shall be for the benefit of certain specified near relations of the deceased” and shall be brought by and in the name of the executor, administrator or representative of the person deceased.

3. The learned Advocate-General for the defendants contends that in the case of ” Europeans and Eurasians” the only ” representative” of a deceased man is his executor or administrator, and that in this Act the word ” representative” has no application to Europeans and Eurasians but is used only with reference to Hindus and Mahomedans. Mr. Chamier for the plaintiffs contends that the word ” representative” in the Act is equivalent to, and includes, all the ” heirs” of the deceased. We do not think that either of these views is correct. That the word is not equivalent to ” heirs” seems clear from the fact that in Act XII of 1855 which was passed on the same day as Act XIII and which deals with a cognate subject, the right is given to bring a Suit against ” heirs or representatives” of the deceased wrong-doer. Nor do we think that there is any reason for limiting the meaning of ” representative ” in the narrow way suggested by the Advocate-General. We think that the word means and includes all or any one of the persons for whose benefit a suit under the Act can be maintained. These persons are the representatives of the deceased in the sense that they are the persons taking the place of the deceased in obtaining reparation for the wrong done.

4. In cases where the deceased is represented by an executor or an administrator such an executor or administrator is given the power to sue for the compensation for the benefit of the specified relations. Where there is no executor or administrator or where there is one and he fails or is unwilling to sue, then in our opinion the suit may be instituted by and in the name of the ” representative of the person deceased.” But one suit only is allowed to enforce the claims of all the persons beneficially entitled, it being provided that the rights of each and every one of them shall be adjudged and adjusted by the Court in such suit. The right of each beneficiary is only to receive compensation in proportion to the loss occasioned to him by the death of his deceased relative.

5. From this it follows and it was in effect so decided in Pym v. The Great Northern Railway Company 4 B.& S. P. 396 with reference to the provisions of Lord Campbell’s Act, that the right of the beneficiaries to compensation is a right distinct in each. In short, the beneficiaries entitled to compensation under Act XIII of 1855 are not persons entitled to claim compensation jointly but are parties entitled to relief severally in respect of the same cause of action which is enforceable at the suit of all or any one of them suing for himself and the rest. If this is the correct view of the statutory right given to persons in the position of the plaintiffs in these cases, it is clear that Section 7 of the Limitation Act has no application to suits such as the present, since in each case there is a widow of the accused who was under no disability and who could have sued, and therefore all the persons entitled to the compensation and capable of instituting the suit were not minors or otherwise inoapable of suing within the period of one year prescribed by Article 21. With reference to the view that in cases like the present the suit might have been brought by any one for the benefit of all, the case is analogous to that of a joint decree-holder who can, with the permission of the Court under Section 231, C.P.C. take out execution of the decree for the benefit of himself and the other decree-holders, but who was held not to be a person entitled to apply in his own right within the meaning of Section 7 of the Limitation Act. See the Pull Bench decision in Periasami v. Krishna Aiyan I.L.R. 25 M. 431 where it was held that the time with reference to an application for the execution of a decree passed in favour of several persons jointly ran against all the decree-holders notwithstanding the minority of some of the decree-holders, and notwithstanding that any one of them might, with the permission of the Court, have executed the whole decree on behalf of all.

6. Passing now to Section 8 of the Limitation Act, that also must be held to be inapplicable. Of course persons having claims such as those sought to be enforced here are not joint creditors, and unless they can be held to be joint claimants of the kind mentioned in the section, the benefit thereof cannot be claimed by them. From the language of the whole section it is obvious that the term ” joint claimants” is used with reference to persons whose substantive right is joint, or to put it otherwise with reference to more than one individual possessing the same identical substantive right. The latter part of the section relating to the discharge by one of the joint-creditors or claimants, without the concurrence of the Johnson others, conclusively points to the correctness of this view.

7. The expression therefore does not comprehend persons whose rights are distinct and different, but who are permitted to enforce such separate rights by one judicial process to which all are parties or by a process instituted by one on behalf of all. Ahimsa Bibi v. Abdul Kader Sahib I.L.R. 25 M. 26 is distinguishable on the ground that the right to sue for an account and share of profits of the partnership sought to be enforced by the heirs of the deceased partner was joint and indivisible notwithstanding the several character of their interests inter se in the profits if any.

8. Now with reference to suits brought for compensation under the Act as it is stood before it was amended by Act IX of 1871, the question of the disability of any or all of the persons entitled to compensation was immaterial, and the suit had to be brought within a year from the date of death. Whether when the words ” and that every such action shall be brought within 12 calendar months after the death of such deceased persons” in Section 2 of Act XIII of 1855 were repealed and Article 21 of the second schedule to Indian Limitation Act was introduced, there was an intention to make a real change in the law it is not easy to say. Having regard to the object and purpose of Act XIII of 1855, and the inexpediency of postponing the trial of questions of fact involved in a claim to be made under the provisions of the Act, it is not probable that the running of time was meant to be suspended on account of any disability on the part of some of the persons beneficially entitled. It is not improbable that the repeal of the provision as to limitation contained in Act XIII of 1855 as it stood before the amendment and the enactment of Article 21 in lieu of it, were merely for the sake of symmetry, as urged by the learned Advocate-General, still the mere absence of evidence that the legislature intended to effect a real change in the law would not justify the Court in holding that the present suits are barred by limitation if the language of Section 7 or 8 was grammati cally capable of application to them. That, however, as already pointed out, is not the case.

9. The conclusion of the learned Judge is therefore right and the appeals fail and are dismissed with costs (two counsel).

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