Death and the Fatal Accidents Act 1855

Section 2. One suit only, and the claim for the estate. Not more than one action shall be brought for and in respect of the same subject matter of complaint. The proviso allows the executor, administrator or representative to add a claim for any pecuniary loss to the estate of the deceased occasioned by the wrongful act, and what is recovered on that claim forms part of the assets of the estate.

Section 3. Pleading. The plaint must give full particulars of the persons for whose benefit the action is brought and of the nature of the claim.

Section 4. Interpretation. "Person" applies to bodies politic and corporate. "Parent" includes father and mother and grandfather and grandmother. "Child" includes son and daughter, grandson and granddaughter, stepson and stepdaughter.

Read section 4 carefully: it is where the marks are, because "parent" and "child" go two generations and include step-relations. A grandmother dependent on a grandson is within the Act.

The two claims the Act allows, and how they differ

The limitation the Act once carried, and why it is gone

The original section 2 required every such action to be brought within twelve calendar months of the death. Those words were omitted in 1871, and the footnote to the Act records that limitation is now governed by the Limitation Act 1963. That is a small point with a large consequence: a student who quotes a twelve month period from an old book is quoting a rule repealed a hundred and fifty years ago.

What the Motor Vehicles Act 1988 does to the maxim

For a death caused by a motor accident the practical claim is not under the Act of 1855 at all: it is a claim before a Claims Tribunal under section 166 of the Motor Vehicles Act 1988, and chapters [The Application for Compensation] and [Computing Just Compensation] work it out.

Two things there matter here.

Who may claim is wider. In Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690, decided on 11 May 1987, the brothers of a boy killed by a Corporation bus applied to the Tribunal. The Corporation argued that only the wife, husband, parent and child named in the Fatal Accidents Act 1855 could claim and that the Tribunal provisions were merely procedural.

Held. The petition was maintainable. The brother of a person who dies in a motor accident may claim if he is a legal representative of the deceased; every legal representative who suffers by the death should have a remedy; and it is for the Tribunal to determine what compensation appears to it to be just and to specify the persons to whom it is payable. The Court also held that the no-fault provision then in force departed from the common law rule that negligence must be proved.

Why it matters here. It is the case that separates the narrow class in section 1A from the wider class of legal representatives under the Motor Vehicles Act.

And a legal representative need not be a dependant. In Manjuri Bera v. Oriental Insurance Co. Ltd, (2007) 10 SCC 643, decided on 30 March 2007, a married daughter claimed the statutory no-fault amount for her father's death and it was objected that she was not dependent on him.

Held. A person who is a legal representative but not a dependant may still be a beneficiary. The no-fault liability is a statutory liability for a fixed, crystallised sum which forms part of the estate of the deceased, and the legal representative who inherits the estate is entitled to receive it. The expression "legal representative" is not defined in the Act and is to be given a wide meaning.

And the injured person's own claim now survives. Section 166(5) of the Motor Vehicles Act 1988, inserted by the amendment of 2019 and in force from 1 April 2022, provides that the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is related to the injury or not. That is a direct statutory reversal of actio personalis moritur cum persona for motor accident claims.

A worked example

Vasant, aged forty, is knocked down and killed by a lorry driven negligently. He leaves a widow, a son of six, a dependent mother, and a brother who lived with him. He had been in hospital for a week before he died, and the family spent Rs. 2,00,000 on his treatment.

Under the Fatal Accidents Act 1855 the action is brought by his executor, administrator or representative, for the benefit of the widow, the son and the mother, who are within the class of wife, child and parent in section 1A read with section 4. The brother is not within that class. The measure is what the death cost each of them. The hospital expenses are claimed under the proviso to section 2 as a pecuniary loss to the estate, and one suit covers both claims.

Under the Motor Vehicles Act 1988, which is the route actually used, the application goes to the Claims Tribunal under section 166. The brother may apply too, if he is a legal representative, on the authority of Ramanbhai Prabhatbhai. The family may take the fixed amount under section 164 without proving fault at all, and the Tribunal awards what is just under section 168.

What it does NOT mean

The Act does not create a new tort. It gives a new plaintiff for an existing wrong. If the deceased could not have sued had he lived, nobody can sue after his death; section 1A says so in terms.

It does not give damages for grief. The measure is the pecuniary loss resulting from the death. The conventional sums awarded for loss of consortium and for loss of estate are worked out in chapter [Computing Just Compensation].

It does not allow several suits. Section 2 permits one action only for the same subject matter.

Its twelve month limitation is not the law. Those words were omitted in 1871 and limitation is governed by the Limitation Act 1963.

Quick revision

1. Actio personalis moritur cum persona: a personal action dies with the person, in both directions.
2. The Fatal Accidents Act 1855 was passed because it was cheaper to kill than to injure.
3. Section 1A: an action lies for the benefit of the wife, husband, parent and child, brought by the executor, administrator or representative.
4. Section 4: "parent" includes grandparents, "child" includes grandchildren and stepchildren.
5. Section 2: one suit only, plus a claim for pecuniary loss to the estate.
6. Section 3: the plaint must give particulars of the beneficiaries and the claim.
7. The twelve month limitation in the original section 2 was omitted in 1871.
8. Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690: a brother who is a legal representative may claim under the Motor Vehicles Act.
9. Manjuri Bera v. Oriental Insurance Co. Ltd, (2007) 10 SCC 643: a legal representative who is not a dependant may still take the statutory no-fault amount, as part of the estate.
10. Section 166(5) of the Motor Vehicles Act 1988, in force from 1 April 2022: the injured person's claim survives to his legal representatives whatever the cause of death.

Test yourself

1. Explain the maxim actio personalis moritur cum persona and the changes made to it in India. The maxim means that a personal action dies with the person: at common law the death of either party extinguished the claim. Applied to a death caused by a wrong it meant that neither the estate nor the family of the deceased had any action, which made it cheaper to kill a man than to injure him. The Fatal Accidents Act 1855 altered this by giving the wife, husband, parent and child an action for the loss resulting to them from the death, brought by the executor, administrator or representative, and by allowing a claim for pecuniary loss to the estate to be added. For motor accidents the Motor Vehicles Act 1988 goes further: a claim may be made by any legal representative, and section 166(5), in force from 1 April 2022, provides that the injured person's own right to claim survives to his legal representatives irrespective of whether the cause of death was related to the injury.

2. Who may claim under the Fatal Accidents Act 1855, and who brings the action? The action is for the benefit of the wife, husband, parent and child of the deceased. Section 4 extends "parent" to grandfather and grandmother and "child" to grandson, granddaughter, stepson and stepdaughter, so the class covers three generations and step-relations. The action itself is brought by and in the name of the executor, administrator or representative of the deceased, not by the beneficiaries in their own names, and the amount recovered, after deducting costs, is divided among them in the shares the court directs. Only one action may be brought for the same subject matter, and a claim for pecuniary loss to the estate may be added to it under the proviso to section 2.

3. Distinguish the claim under section 1A from the claim under the proviso to section 2. The section 1A claim is for the loss the death causes to the dependants named in that section, and what is recovered is divided among them as the court directs. The claim under the proviso to section 2 is for pecuniary loss caused to the estate of the deceased by the wrongful act, such as medical and funeral expenses, and what is recovered forms part of the assets of the estate and passes to the heirs generally. The first compensates the family for what they lost by the death; the second restores to the estate what the wrong took from it. Both are made in one suit, because section 2 permits only one action.

4. A man dies in a road accident leaving a married sister who was not dependent on him. Can she claim? Not under section 1A of the Fatal Accidents Act 1855, because a sister is not within the class of wife, husband, parent and child even as extended by section 4. She may claim under the Motor Vehicles Act 1988 if she is a legal representative of the deceased. Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690, holds that a sibling who is a legal representative may maintain a claim petition, and Manjuri Bera v. Oriental Insurance Co. Ltd, (2007) 10 SCC 643, holds that a legal representative who is not a dependant may still receive the statutory no-fault amount, because it is a crystallised sum forming part of the estate which she inherits. What she cannot recover is a dependency she never had.