The brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Motor Vehicles Act, 1939 if he is a legal representative of the deceased.

JUDGMENT :

VENKATARAMIAH, J.

1. The question involved in this case is whether a brother of a person who is killed in a motor vehicle accident can claim compensation in a proceeding instituted before a Motor Accidents Claims Tribunal established under the provisions of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act'). The High Court of Gujarat has upheld such a claim in this case. This Special Leave Petition is filed against the judgment of the High Court questioning the correctness of the said decision.

2. The brief facts of the case are these. On account of the negligence on the part of the driver of a bus belonging to the petitioner, the Gujarat State Road Transport Corporation, Ahmedabad, a boy named Bhanubhai, aged 14 years, was run over by the bus resulting in his untimely death. Ramanbhai and Dineshbhai, who were the brothers of the deceased, instituted a petition before the Motor Accidents Claims Tribunal (Auxiliary), Vadodara claiming compensation for the death of their brother alleging that they were the heirs and legal representatives of the deceased. The Tribunal awarded a sum of Rs. 32,000/- as compensation to the claimants and directed the Gujarat State Road Transport Corporation to pay the said amount to the claimants. Against the award of the Tribunal, the Gujarat State Road Transport Corporation filed an appeal before the High Court of Gujarat under section 110-B of the Act. That appeal was dismissed. This Special Leave Petition is filed against the judgment of the High Court.

3. The only point canvassed before us in this Special Leave Petition is that the Tribunal and the High Court were in error in awarding compensation in favour of the brothers of the deceased, since in law they were not entitled to any compensation under the provisions of the Fatal Accidents Act, 1855 and in support of the said contention, reliance was placed by the petitioner on the decision of the Madhya Pradesh High Court in Budha vs. Union of India, AIR 1981 Madh. Pra. 151. In the present case the High Court of Gujarat while passing its order has preferred to follow its own decision in Megjibhai Khimji Vira vs. Chaturbhai Taljabhai, AIR 1977 Guj. 195 in which it had held that all the heirs and legal representatives of the deceased could maintain the claim petition under section 110A of the Act and had awarded compensation in favour of the nephews of the deceased. On account of the divergence of opinion prevailing in the High Courts on the question involved in this case we have found it necessary to give reasons in support of our decision on this Special Leave Petition.

4. On account of the close association which came to be established between India and Great Britain owing to the British rule which lasted for over two centuries, in the High Courts established in India the English Common Law which was based on principles of justice, equity and good conscience came to be applied wherever they were called upon to award damages or compensation for civil wrongs committed by the defendants in the suits. The application of the English Common Law, however, had to conform to Indian circumstances and conditions which necessarily involved a selective application of the English law in India. "The adoption of the rules of English Law by the Indian Courts" observes B.C. Setalwad in his "Common Law in India" (The Hamlyn Lectures, Twelfth Series, page 53) "was neither automatic nor uncritical. Although they started with a presumption that a rule of English Law would be in accordance with the principles of justice, equity and good conscience, they bore in mind the reservation which was later expressed by the Privy Council in the words 'if found applicable to Indian Society and circumstances'." In the course of the application of the principles of the English Law of Torts in India the Indian courts came to recognise and apply the maxim actio personalis moritur cum persona-a personal action dies with the parties to the cause of action. An ac