REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5197 of 2003

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

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.

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