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.

                                                                     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


                                                 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


                                              3




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


                                               4




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


                                               5




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


                                              6




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


                                                     7




         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


                                                 8




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


                                             9




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"


                                             10




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.


                                               11




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


                                                      12




          (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.