The evidence on record shows that the second wife has spent Rs. 4,90,000/- towards medical expenses at Sagar Apollo Hospital and therefore, she is exclusively entitled to the said amount. The Tribunal has awarded a sum of Rs. 15,000/- towards loss of consortium to the first wife, even though she was not living with her husband for more than 25 years. As such it is not justified. It is the second wife who would be entitled to Rs. 15,000/- towards loss of consortium. The first wife would be entitled to Rs. 10,000/- towards loss of estate, which has not been awarded at all.
Equivalent Citation: 2015(1) AKR 168, 2015(1)KCCR353,AIR 2015(NOC)687 KAR
IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)
MFA Nos. 24051 and 24165/2012 and MFA No. 24186/2012 (MV)
Decided On: 25.02.2014
Appellants: Lalita
Vs.
Respondent: M.R. Sunilkumar and Ors.
Vs.
Respondent: M.R. Sunilkumar and Ors.
Hon'ble Judges/Coram:
1. These three appeals are preferred against a common order passed by the claims Tribunal. Therefore, they are taken up for consideration together.
2. MVC No. 102/2008 is filed by Smt. Lalitha, for compensation claiming to be the first wife of the deceased Rudragouda Patil; MVC No. 73/2009 is also filed for compensation by Pushpa and Neethi, claiming to be the wife and daughter of deceased Rudragouda Patil. Both these petitions were clubbed with another petition, where claim for injury was made, common evidence was recorded and impugned order came to be passed, dismissing the petition filed by Pushpa and Neethi and MFA No. 24186 of 2012 is filed against the said dismissal order. In MVC No. 102/2008, while awarding compensation to Lalitha, a finding was recorded that Pushpa, the third respondent therein is not the wife of Rudragouda Patil and therefore, she is not entitled to any compensation. Therefore, Smt. Pushpa has preferred MFA No. 24051/2012. Smt. Lalitha, who claims to be the first wife, has also preferred MFA No. 24165/2012 seeking enhancement of compensation. As such these three appeals are taken together for consideration and disposed of by a common order.
3. Rudragouda Patil was working as Regional Manager with Omni-Lens Pvt. Ltd., and was drawing handsome salary of Rs. 15,000/- per month plus other perquisites. He was also running paying guest home and was earning Rs. 35,000/-. That apart, he was also earning Rs. 2,00,000/- from agriculture. In all the deceased was earning more than Rs. 9,00,000/-. On the fateful day that is 6.09.2007 he had gone to bring milk on his Active-Honda vehicle and when he was near Big Bazar, Bangalore at about 6:30 a.m., a Tata Sumo bearing No. KA-13/A-2969 driven in a rash and negligent manner by its driver came and dashed against him and also one pedestrian. Due to the impact, he was dragged for more than 25 to 35 feet and sustained severe head injuries and other injuries all over the body. Immediately he was taken to nearby Shekar Hospital, from where he was taken to Nimhans Hospital in Bangalore, where it was advised that he should be taken to Sagar Apollo Hospital in Bangalore. Accordingly he was admitted as an inpatient from 16.09.2007 to 30.11.2007 in Sagar Apollo Hospital; more than ten major operations were conducted under general anesthesia. The claimants claim that they have spent about Rs. 20,00,000/-. In spite of best efforts and best treatment, Rudragouda Patil succumbed to the injuries on 30.11.2007; his body was taken to Victoria Hospital for postmortem and thereafter funeral ceremony was conducted in Bangalore.
4. Smt. Pushpa claiming to be the wife and Neethi, her daughter originally preferred a claim petition in MVC No. 9087/2007 on the file of the MACT, Bangalore. Smt. Lalitha claiming to be the first wife preferred a claim petition in MVC No. 102/2008 on the file of the MACT, Hubli claiming compensation of Rs. 90,00,000/-. On coming to know of the filing of the petition by Pushpa and Neethi, Smt. Lalitha moved this Court in Civil Petition No. 506/2008 and got the petition on the file of MACT, Bangalore transferred to the Tribunal at Hubli. That is how both these petitions were clubbed together and a common trial was conducted before the Tribunal at Hubli.
5. After service of notice, respondents entered appearance. The owner of the vehicle in question remained ex parte. It is only the insurance company which filed the statement of objections contending that the accident occurred on account of rash and negligent driving of the deceased and, therefore, it was not liable to pay any compensation. However, it did not dispute the accident and the insurance coverage to the vehicle in question.
6. On the basis of the aforesaid pleadings, the Tribunal framed the following issues in MVC No. 102/2008 and M.V.C. No. 73/2009.
"ISSUES IN MVC No. 102/2008
1. Whether the petitioner proves that her husband by name Rudragouda died in a motor vehicle accident that occurred on 16.09.2007 at about 6.30 a.m. on east end ring road near Big Bazaar, Bangalore, on account of the rash and negligent driving of the Tata Sumo bearing registration No. KA-13/2969 by its driver?
2. Whether the respondent No. 2 proves that accident was due to the negligent riding of the deceased himself?
3. Whether the petitioner is entitled to compensation? If yes, what is the quantum and from which of the respondents?
4. What order or award?"
"Issues IN MVC No. 73/2009
1. Whether the petitioners prove that Rudragouda Rayanagouda Patil died in a motor vehicle accident that occurred on 16.09.2007 at about 6.30 a.m. on east end ring road near Big Bazaar, Bangalore, on account of the rash and negligent driving of the Tata Sumo bearing registration No. KA-13/2969 by its driver?
2. Whether the petitioners are entitled to compensation? If yes, what is the quantum and from which of the respondents?
3. What order or award?"
7. The claimants in both the claim petitions were examined. Smt. Lalitha was examined as P.W. 1, Smt. Pushpa R. Patil, was examined as P.W. 4 and five other witnesses were also examined. They, in all, produced 94 documents marked as Exs. P.1 to P.94. On behalf of the respondents, no evidence was adduced.
8. The Tribunal, on consideration of the aforesaid oral and documentary evidence on record, held that the accident occurred on account of rash and negligent driving of the driver of the Tata Sumo vehicle bearing registration No. KA-13/2969 and thus, the claimants had established actionable negligence. Thereafter, it held that Smt. Lalitha, the claimant in M.V.C. Nos. 102 of 2008, who is the legally wedded wife of Rudragowda R. Patil, had not established her claim regarding damage to the vehicle. It held that Rudragowda R. Patil was employed. He had filed income-tax returns immediately prior to his death. His income was taken as Rs. 1,20,000/- per annum, 50% of the said amount was deducted towards his personal expenses, his age was taken as 52 years, applying the multiplier of 13, the Tribunal held that the claimant was entitled to a sum of Rs. 7,80,000/- under the head 'loss of dependency'. Thereafter, it also awarded a sum of Rs. 15,000/- towards loss of consortium', Rs. 1,000/- towards transportation of dead body and Rs. 10,000/-, towards funeral expenses a sum of Rs. 26,000/-. Thus, in all under conventional heads, it awarded a sum of Rs. 8,06,000/- with interest at 6% per annum.
9. Insofar as the claim petition filed by Smt. Pushpa R. Patil is concerned, the Tribunal dismissed the same on the ground that she being the 2nd wife, was not entitled in law to maintain a petition nor to any compensation. However, the Tribunal did not go into the question of the claim of the daughter of the deceased through Smt. Pushpa Patil.
10. Aggrieved by the said judgment and award passed by the Tribunal, Smt. Lalitha has preferred M.F.A. No. 24165/2012 seeking enhancement of compensation, while Smt. Pushpa Patil and Neethi Patil have preferred M.F.A. No. 24051/2012 challenging the order of dismissal of their claim petition and claiming compensation. However, the insurance company has accepted the award.
11. In M.F.A. No. 24165/2012, the learned counsel appearing for Smt. Lalitha contended that Smt. Lalitha being the first wife and when a declaration to that effect has been given by a competent Civil Court, as per Exs. P.30 and 31, she is entitled to entire compensation. Smt. Pushpa Patil is not the legally wedded wife. Even if she is construed as the second wife, her marriage is void in law and she cannot put forth any claim. The Tribunal has not properly appreciated the evidence on record. Though the income was taken as Rs. 1,20,000/-, it erred in deducting 50% and even the amount awarded under the conventional heads is on the lower side and, therefore, he submits that a case for enhancement is made out.
12. Learned counsel appearing for the appellants-Smt. Pushpa Patil and Neethi Patil submits that Smt. Pushpa Patil is not a party to the proceedings between Smt. Lalitha and the deceased and, therefore, the said decree does not bind them. Smt. Pushpa Patil is the wife of the deceased, she lived with the deceased from the date of marriage till his death; Neethi Patil is born to them and, therefore, it is she who has suffered loss on account of death of the deceased. Smt. Lalitha never lived with the deceased, she was not dependent on him and, therefore, the Tribunal erred in denying the compensation to Pushpa Patil and awarding compensation to Smt. Lalitha. At any rate, Smt. Neethi Patil being the daughter, even if she is an illegitimate child, is entitled not only to maintain a claim petition, but also for compensation as Class-I heir. The Tribunal committed a serious error in deducting 50% towards personal expenses of the deceased and it ought to have deducted only 1/3rd. The Tribunal erred in taking the age of the deceased as 52 years as against 49 and therefore, the multiplier applied is also incorrect. They are also entitled to future prospects at 30% of the total income and the amount paid under the conventional heads is inadequate. Therefore, he prays that the finding of the Tribunal be set aside, the entire compensation be paid to Smt. Pushpa Patil and Neethi Patil and the compensation be enhanced.
13. Per contra, learned counsel appearing for the insurance company submitted that the award passed by the Tribunal is just and proper and no case for interference is made out.
14. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration are as under:
"(i) Is Smt. Lalitha, the 1st wife of the deceased, entitled to compensation though she was not living with the deceased from the date of marriage till his death?
(ii) Whether Smt. Pushpa Patil, even if she is considered as the second wife, is entitled to maintain a claim petition under Section 166 of the Motor Vehicles Act and entitled to compensation?
(iii) Whether Neethi Patil, the daughter of the deceased through Smt. Pushpa Patil, is entitled to maintain the claim petition and to compensation?
(iv) Whether a case for enhancement of compensation is made out?
(v) What order?"
15. The material on record discloses that Smt. Lalitha filed a suit against the deceased in O.S. No. 306/1981 for a declaration that she was the legally wedded wife and for consequential injunction restraining the deceased from marrying any other person during the subsistence of marriage. The deceased had filed written statement contesting the matter. Issue No. 2 in the said suit was whether the plaintiff proves that she is the legally wedded wife of defendant No. 1. Issue No. 3 in the said suit was whether she proves that defendant No. 1 is contemplating a second marriage. Both the parties adduced evidence. By a detailed order, the learned Principal Munsiff, Dharwad, answered the said issues holding that the plaintiff had proved that there was a valid marriage and the defendant was attempting to marry on 02.11.1981 in Rajanahalli Dharmashala at Davanagere. However no decree of injunction was granted. It appears that the deceased preferred an appeal in R.A. No. 69/1989 against the said judgment and decree and the said appeal came to be dismissed for non-prosecution on 21.07.1985.
16. In the evidence before the Tribunal in the present case, Smt. Lalitha had deposed that after marriage with the deceased, their family did not accept her and therefore, she had to go back to her brother's place at Hubli and was living there. Smt. Lalitha had not produced any other material to show that she lived with her husband after the marriage till the date of the accident for nearly 25 long years.
17. In view of the fact that a competent Civil Court has declared that Lalitha as the wife of the deceased, she is the legally wedded wife of the deceased. At the same time, the evidence on record, i.e., Exs. P.23, 66 and 67, show that the deceased married Smt. Pushpa on 2nd November 1981 at Rajanahalli Dharmashala, Davanagere. In fact, in the plaint filed by Smt. Lalitha, she has mentioned the very same date and the choultry and she wanted that marriage to be prevented. Ex. P.74 is the photograph taken at the time of marriage between the deceased and Smt. Pushpa. Ex. P.81 is the birth certificate of Smt. Neethi showing her birth on 20.08.1987 at JJM Hospital, Davanagere, to the deceased and Smt. Pushpa. She was admitted to St. Paul's English School and Ex. P.79 is the study certificate issued by the said school, dated 23.05.2003, which shows that she studied from 1st to 8th standard from the year 1993-94 to 2000-01 in ICSE. Ex. P.80 is the school leaving certificate which shows the name of the deceased as the father; Ex. P.83 is the voter's identity card of Neethi Patil issued by the Election Commission of India. Ex. P.84 is the identity card of Pushpa R. Patil issued by the Election Commission of India. Ex. P.82 is the pass book issued by Canara Bank in favour of Smt. Pushpa Patil and the deceased jointly.
18. P.W. 6-Neela R. Patil, the sister of the deceased, has spoken about the marriage of the deceased with Pushpa, the birth of child and their living together. On the death of the deceased, the dead body was handed over to Pushpa, who made preparations for his burial and Ex. P.64 is the receipt issued by Bangalore Mahanagara Palike in this behalf. Ex. P.65 is the acknowledgment by Smt. Pushpa R. Patil for having received the dead body. She has collected the death certificate from the Registrar of Birth and Death, as per Ex. P.63. She was the one who was attending to the deceased when he was an inpatient in the hospital for more than two months. This clearly shows that the deceased had married Smt. Pushpa and Neethi Patil was born to them; they were all living together at the premises No. 2019, South End "E" Cross, 9th Block, Jayanagar Bangalore-560009.
19. The Tribunal proceeded on the assumption that Smt. Pushpa R. Patil, having been married during the subsistence of the marriage between the deceased and Lalitha, the said marriage was void and therefore, as a second wife, she was not entitled to claim any compensation.
20. Smt. Lalitha, after marriage was not living with her husband for more than 25 years. She was not dependent on the deceased. At the same time, though Pushpa R. Patil is the second wife she lived with the deceased for more than 26 years and gave birth to a child. It is to be noticed here that it is Smt. Pushpa who has produced the medical records. In fact, the Medical Superintendent of the Sagar Apollo Hospital is also examined and he has also produced documents. A careful scrutiny of those documents shows that the total medical expenses incurred is more than 12 Lakhs whereas only a sum of Rs. 4,96,000/- is acknowledged by the hospital. The said amount has been paid by Smt. Pushpa R. Patil. There is nothing to show that Smt. Lalitha was ever present near her husband after the accident till his death in the hospital.
21. In this context, it is necessary to look into the statutory provisions on the point. Section 166 of the Motor Vehicles Act, 1988, (hereinafter for short referred to as "the Act") deals with the application for compensation. It reads as under:
"166. Application for compensation. - (1) An application for compensation arising out of an accident of the nature specified in subsection (1) of section 165 may be made -(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:"Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application."
22. A perusal of the aforesaid provision makes it clear that where death has resulted from the accident, an application for compensation may be made by all or any of the legal representatives of the deceased. The word 'legal representative' is not defined under the Motor Vehicles Act. Therefore, recourse is to be taken to the term 'legal representative' defined under the Code of Civil Procedure. It is defined under Section 2(11) of the Code and reads as under:
"2. Definitions.- In this Act, unless there is anything repugnant in the subject or context-
XXX XXX XXX
11. "Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;"
23. Therefore, who is a 'legal representative' is now clearly provided for in the aforesaid definition. They are:
"(a) a person who in law represents the estate of a deceased person;
(b) any person who intermeddles with the estate of the deceased;
(c) where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."
24. The words "unless there is anything repugnant in the subject or context" have been inserted with a view to enable anomalies being avoided in cases where a strict adherence to the definitions contained in the code would involve such anomalies. The effect of such words like "unless there is anything repugnant in the subject or context" is that though a definition may be exhaustive, the word defined pointing out to a certain thing, yet it is possible for the word to have a somewhat different meaning in different sections. The court has always to look to the context, the collocation and the subject of such words relating to such matters and interpret the meaning intended to be conveyed by the use of word.
25. Right of heirship is not involved in determining as to who is or is not a legal representative. Though ordinarily all legal heirs are also legal representatives, the converse is not true. It is also held that the legal representative, for the purpose of one proceeding in a suit is not necessarily the same as for another proceeding in the same suit and the court must determine who the legal representative is for the proceedings. Thus, the expression "legal representative" is inclusive in character and its scope is very wide. Executors, administrators, reversioners, Hindu coparceners, assignees, legatees under a will etc have been held to be the legal representatives.
26. The Gujarat High Court in the case of Megjibhai Khimji Vira and Another v. Chaturbhai Taljabhai and Others reported in [MANU/GJ/0080/1977 : AIR 1977 GUJ 195], dealing with the question who is a 'legal representative' for the purpose of accident claims under the Motor Vehicle Act, 1939, has held as under:--
"11-A. There cannot be any gainsaying that the 1939 Act makes provision for the constitution of the Claims Tribunal to provide a cheap and speedy mode of enforcing liability arising out of the use of motor vehicles. It is a benevolent legislation which calls for liberal and broad interpretation so that the real purpose underlying the enactment of Ss. 110 to 110-F is achieved and full effect is given to the legislative intent. It is well settled that if while interpreting a welfare legislation any provision of the Act is capable of two constructions, that construction should be preferred which furthers the policy of the Act and is more beneficial to the class in whose interest the law has been made. The contention that the group of Ss. 110 to 110-F merely lays down the procedure and powers of the Tribunal and do not deal with liability at all, in other words, they are merely adjectival or procedural in nature, does not seem to be wholly correct. The first para, of S. 1A of the 1855 Act, no doubt, has the effect of nullifying the principle contained in the maxim 'actio personalis moritur cum persona'. The second para, of that section merely provides that every action or suit shall be brought for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused. The 1939 Act makes an inroad in so far as the second para, of S. 1A of the 1855 Act is concerned, in that S. 110-A thereof provides that an application for compensation arising out of an accident of the nature specified in sub-s. (1) of S. 110, may be made where the death has resulted from the accident by all or any of the legal representatives of the deceased. The proviso says that if all the legal representatives of the deceased do not join in the application, the application shall be made "on behalf of or for the benefit of all the legal representatives of the deceased". It is, therefore, clear on a plain reading of S. 110-A of the 1939 Act that the right to apply for compensation where death has resulted from the accident, is conferred on all the legal representatives of the deceased. If para. 2 of S. 1A of the 1855 Act is a substantive provision, as was contended before us by Mr. Majmudar we fail to understand why C1 (b) of sub-s. (1) of S. 110-A, which confers a right on the legal representatives of the deceased to claim compensation, cannot be termed to be a substantive provision the 1939 Act is undoubtedly a special legislation dealing with accidents arising out of the use of motor vehicles. According to the cardinal rule of construction, a particular or special rule must control or cut down the general rule (Bengal Immunity Co. Ltd. v. State of Bihar, MANU/SC/0083/1955 : AIR 1955 SC 661). We have, therefore, no doubt in our minds that Clause (b) of sub-s. (1) of Section 110-A of the 1939 Act is a substantive provision which confers a right on all the legal representatives of the deceased victim of a tortious act to claim compensation from the wrong-doer, and being a special provision dealing with accidents arising out of the use of motor vehicles, it has the effect of overriding para. 2 of S. 1A of the 1855 Act."
27. This view of the Gujarat High Court has been affirmed by the Apex Court in the case of Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and Another reported in MANU/SC/0469/1987 : AIR 1987 SC 1690, where it is held as under:
"9. Clauses (b) and (c) of sub-section (1) of section 110-A of the Act provide that an application for compensation arising out of an accident may be made where death has resulted from the accident by all or any of the legal representatives of the deceased or by any agent duly authorised by all or any of the legal representatives of the deceased. The proviso to sub-section (1) of Section 110-A provides that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application. The expression 'legal representative' has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 defines 'legal representative' as a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The above definition, no doubt, in terms does not apply to a case before the Claims Tribunal but it has to be stated that even in ordinary parlance the said expression is understood almost in the same way in which it is defined in the Code of Civil 'Procedure. A legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. Clause (b) of sub-section (1) of Section 110-A of the Act authorises all or any of the legal representatives of the deceased to make an application for compensation before the Claims Tribunal for the death of the deceased on account of a motor vehicle accident and clause (c) of that sub-section authorises any agent duly authorised by all or any of the legal representatives of the deceased to make it. The proviso to sub-section (1) of Section 110-A of the Act appears to be of some significance. It provides that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased. Section 110-A(1) of the Act thus expressly states that (i) an application for compensation may be made by the legal representatives of the deceased or their agent and (ii) that such application shall be made on behalf of or for the benefit of all the legal representatives. Both the persons or person who can make an application for compensation and the persons for whose benefit such application can be made are thus indicated in Section 110-A of the Act. This section in a way is a substitute to the extent indicated above for the provisions of Section 1A of the Fatal Accidents Act, 1855 which provides that "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." While the Fatal Accidents Act, 1855 provides that such suit shall be for the benefit of the wife, husband, parent and child of the deceased, Section 110-A(1) of the Act says that the application shall be made on behalf of or for the benefit of the legal representatives of the deceased. A legal representative in a given case need not necessarily be a wife, husband, parent and child. It is further seen from Section 110-B of the Act that the Claims Tribunal is authorised to make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. This provision takes the place of the third paragraph of Section 1A of the Fatal Accidents Act, 1855 which provides that 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. Persons for whose benefit such an application can be made and the manner in which the compensation awarded may be distributed amongst the persons for whose benefit the application is made are dealt with by Section 110-A and Section 110-B of the Act and to that extent the provisions of the Act do supersede the provisions of the Fatal Accidents Act, 1855 in so far as motor vehicles accidents are concerned. These provisions are not merely procedural provisions. They substantively affect the rights of the parties. As the right of action created by the Fatal Accidents Act, 1855 was "new in its species, new in its quality, new in its principles, in every way new" the right given to the legal representatives under the Act to file an application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitations of an action under the Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
11. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by sections 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by section HOB of the Act amongst the legal representatives for whose benefit an application may be filed under section 110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and some times foster children live together and they are dependent upon the bread-winner of the family and if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira and another v. Chaturbhai Taljabhai and others, [MANU/GJ/0080/1977 : AIR 1977 GUJ 195] (supra) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under section 110-A of the Act if he is a legal representative of the deceased.
13. Before concluding we may add that although the Act was extensively modified after the receipt of the report of the Law Commission, Parliament did not choose to amend section 110-A of the Act by defining the expression 'legal representatives' in relation to claims under Chapter VIII of the Act as 'the spouse, parent and children of the deceased' as recommended by the Law Commission. The Law Commission had observed in its 85th report that it would be appropriate to assign to the expression 'legal representative' the same meaning as had been given to the expression 'representative' for the purposes of the Fatal Accidents Act, 1855 and that would effectively carry-out the purpose of social justice underlying Chapter VIII of the Act, to which the Fatal Accidents Act, 1855 was the nearest approximation. This recommendation was made after referring to the divergent views expressed by the various High Courts on the meaning of the expression 'legal representatives' in section 110-A of the Act. The fact that Parliament declined to take any action on the recommendation of the Law Commission of India suggests that Parliament intended that the expression 'legal representatives' in section 110-A of the Act should he given a wider meaning and it should not he confined to the spouse, parent and children of the deceased."
(Underlining by us)
28. Subsequently, the Apex Court in the case of Montford Brothers of St. Gabriel and Another v. United India Insurance and Another, reported in [MANU/SC/0061/2014 : (2014) 3 SCC 394] after referring to Section 166 of the 1988 Act held as under:--
"9. The Act does not define the term "legal representative" but the Tribunal has noted in its judgment and order that clause (C) of Rule 2 of the Mizoram Motor Accident Claims Tribunal Rules, 1988, defines the term "legal representative" as having the same meaning as assigned to it in clause (11) of Section 2 of the Code of Civil Procedure, 1908, which is as follows:"Section 2(11) 'Legal representative' means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."10. From the aforesaid provisions it is clear that in case of death of a person in a motor vehicle accident, right is available to a legal representative of the deceased or the agent of the legal representative to lodge a claim for compensation under the provisions of the Act. The issue as to who is a legal representative or its agent is basically an issue of fact and may be decided one way or the other dependent upon the facts of a particular case. But as a legal proposition it is undeniable that a person claiming to be a legal representative has the locus to maintain an application for compensation under Section 166 of the Act, either directly or through any agent, subject to result of a dispute raised by the other side on this issue.
11. Learned counsel for the Insurance Company tried to persuade us that since the term "legal representative" has not been defined under the Act, the provision of Section 1-A of the Fatal Accidents Act, 1855, should be taken as guiding principle and the claim should be confined only for the benefit of wife, husband, parent and child, if any, of the person whose death has been caused by the accident. In this context, he cited judgment of this Court in the case of Gujarat State Road Transport Corporation, Ahmedabad v. Raman Bhai Prabhatbhai & Anr. in that case, covered by the Motor Vehicles Act of 1939, the claimant was a brother of a deceased killed in a motor vehicle accident. The Court rejected the contention of the appellant that since the term "legal representative" is not defined under the Motor Vehicles Act, the right of filing the claim should be controlled by the provisions of Fatal Accident Act. It was specifically held that Motor Vehicles Act creates new and enlarged right for filing an application for compensation and such right cannot be hedged in by the limitations on an action under the Fatal Accidents Act.
13. From the aforesaid quoted extract it is evident that only if there is a justification in consonance with principles of justice, equity and good conscience, a dependant of the deceased may be denied right to claim compensation. Hence, we find no merit in the submission advanced on behalf of the respondent-Insurance Company that the claim petition is not maintainable because of the provisions of the Fatal Accidents Act.
17. A perusal of the judgment and order of the Tribunal discloses that although issue No. 1 was not pressed and hence decided in favour of the claimants/Appellants, while considering the quantum of compensation for the claimants the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependants or earning? For answering this issue the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or organization may suffer considerable loss due to death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court reported in MANU/BH/0024/1987 : AIR 1987 Pat. 239, which held that the term 'legal representative' is wide enough to include even "intermeddlers" with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure."
29. Section 1A of the Fatal Accidents Act, 1855 provides that "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. The Law Commission had observed in its 85th report that it would be appropriate to assign to the expression legal representative' in the Act, the same meaning as had been given to the expression 'representative' for the purposes of the Fatal Accidents Act, 1855 and that would effectively carry-out the purpose of social justice underlying Chapter VIII of the Act, to which the Fatal Accidents Act, 1855 was the nearest approximation. This recommendation was made after referring to the divergent views expressed by the various High Courts on the meaning of the expression 'legal representatives' in section 110-A of the Act. The fact that Parliament declined to take any action on the recommendation of the Law Commission of India suggests that Parliament intended that the expression 'legal representatives' in section 110-A of the Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased.
30. The expression legal representative' as defined in Section 2(11) of the Code of Civil Procedure, 1908, in terms does not apply to a case before the Claims Tribunal, but it has to be stated that even in ordinary parlance the said expression is understood almost in the same way in which it is defined in the Code of Civil Procedure. The issue as to who is a legal representative or its agent is basically an issue of fact and may be decided one way or the other dependent upon the facts of a particular case. As is clear from opening words of Section 2, the meaning to be assigned to the word legal representative' is what is mentioned in Section 2(11) of the CPC provided there is nothing repugnant in the subject or context. Therefore, even the word legal representative' as defined in Section 2(11) in the context of a claim petition under Section 166 of the Act has to be construed liberally keeping in mind that it is a beneficial piece of legislation as well as a social legislation. The whole object of the said legislation and in particular the said provision is that, every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realization of compensation that is provided for by Section110A to 11 of the 1939 Act. These provisions are in consonance with the principles of law that is, every injury must have a remedy. When a bread winner of the family is killed on account of a motor vehicle accident, all persons who are dependant upon the bread winner are entitled to compensation. That is why the words mentioned in the Fatal Accidents Act, i.e., wife, husband, parent and child, are conspicuously missing in the Motor Vehicles Act. The Parliament advisedly, consciously has not adopted the said provision. The person, who is dependant on the bread winner of the family who died in a motor vehicles accident is also entitled to compensation. That in essence is the principles of Law of Torts.
31. It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them. It may be that even where the definition is exhaustive, in as much as, the word defined is said to mean a certain thing, it is possible for the word to have a some what different meaning in different sections of the Act depending upon the subject or context. That is why all definitions in statutes generally begin with the qualifying words namely "unless there is anything repugnant in the subject or context". Therefore, in finding out the meaning of the word "legal representative" in section 166 of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But, this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely "unless there is anything repugnant in the subject or context". In view of this qualification, the Court has not only to look at the words but also look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances.
32. Therefore, the Apex Court in Montford's case held that, only if there is a justification in consonance with principles of justice, equity and good conscience, a dependant of the deceased may be denied right to claim compensation. Otherwise all dependants of the deceased are entitled to claim compensation. If we keep in mind the object behind the Motor Vehicles Act, the principles of Torts, it is clear that a dependant on the bread winner who died in a motor vehicle accident falls within the definition of legal representative' and is entitled to claim compensation. In other words, in the context of the Motor Vehicles Act, the word legal representative' includes a dependant of the deceased. That is why in Section 166 of the 1988 Act a provision is made for filing an application for compensation by all or any of the legal representatives of the deceased. The proviso provides that, where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. The legislature has advisedly not used the word legal heir' to whom compensation shall be paid.
33. In this context it is necessary to have a look at Section 168 of the 1988 Act dealing with awards of Claim Tribunals which reads as under:--
"168. Award of the Claims Tribunal. - (1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:"
34. A careful reading of the aforesaid provision makes it clear that on receipt of application for compensation made under Section 166 of 1988 Act, the Claims Tribunal shall give notice of the application to the insurer. After giving the parties, including the insurer, an opportunity of being heard, hold an enquiry into the claim or each of the claims and make an award determining the amount of compensation, that appears to be just. After such determination, the section provides that the Tribunal has to apply its mind and specify the person or persons to whom the compensation should be paid and not the parties to whom the compensation is payable. A person may have the right to maintain a petition, he may move the Tribunal for determination of the compensation payable. But the compensation is to be paid to a person, who has suffered on account of the loss of dependency or any other count. A legal heir is entitled to succeed to the estate of the deceased, but not automatically entitled to compensation paid under the head of loss of dependency. To be entitled to compensation under the head of loss of dependency, the condition precedent is he or she must be dependent on the deceased for his or her living. In deciding the person or persons to whom the compensation is payable, certainly, the Tribunal has to take into consideration the aspect of loss of dependency. It is in that context, the definition of legal representatives, which is an inclusive one, assumes importance. A person, who is not a legal heir but a person, who was dependent on the deceased at the time of accident, is the person, who suffers loss on account of the accident and consequential death and therefore would be the person entitled to compensation. But such person need not be a legal heir. Therefore, the legislature has cautiously used the word "the person or persons" and not the parties.
35. These provisions are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by the Fatal Accidents Act, 1855 was new in its species, new in its quality, new in its principles, in every way new. Similarly, the right given to the legal representatives under the Act to file an application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by any of the limitations of an action under the Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies. We should remember that in an Indian family, it is not only the wife, children and parents live together, the brothers, sisters, brothers children and some times foster children live together and they are dependant upon the bread winner of the family. If the bread winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation on the ground that they are not legal heirs. Therefore, while awarding compensation under the Act, the test should be of dependency upon the bread winner of the family and not necessarily the blood relationship or family relationship. A legal representative in a given case need not necessarily be a wife, husband, parent and child. He or she need not be a legal heir. All legal heirs are legal representatives. But, all legal representatives are not legal heirs.
36. From the foregoing discussions it is clear that, under the Act a legal representative includes a legal heir of the deceased, a dependant of the deceased as well as a person who represents the estate of the deceased and a person who intermeddles with the estate of the deceased. Viewed from that angle and keeping in mind the object with which the legislation is passed, coupled with the hard realities of life that in most of the cases, the first wife might have been deserted by the husband and while living with the second wife and children, if he dies in an accident, it is those persons, who are dependent on his earnings for their living and, who suffer on account of the accident would be entitled to the compensation payable. Though the second marriage if recognized in any form, would defeat the very object of the Hindu Marriage Act prohibiting bigamy and indirectly it may encourage bigamy, the Courts cannot lose sight of the hard realities of life. It is a question of survival of a human being. It is in the nature of a human right. An illegitimate child born to a second wife during the subsistence of the first marriage is conferred all the rights of a legitimate child in the property of the parents. In other words, an illegitimate child is a legal heir, i.e., Class I legal heir under the Hindu Succession Act. However, the mother of such illegitimate child who is a Class I heir is not a legal heir. A child born to a wife who is not a legal heir has been conferred the status of a legal heir. It is because the second marriage is void ab initio. The wife of such marriage is not entitled to any right in the estate of her husband. It is the general law. Nonetheless second wife is a member of the family of the husband. If the husband is living with her and the children are born to her, she is dependant on her husband. The Parliament taking note of the recent trends in the Indian Society where there is new tendency to have live in relationship has extended a helping hand to a woman who has such live in relationship. She is neither a first wife nor she is a second wife. She is not married to him at all. But she lives with him as a wife.
37. The Parliament has enacted the Protection of Women from Domestic Violence Act, 2005. The said Act covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. Therefore, Section 2(f) of the Act of 2005 defines 'domestic relationship' as under:--
"2(f) 'Domestic Relationship' means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, or adoption or are family members living together as a joint family".
(underlining by us)
38. The word 'aggrieved person' has been defined under Section 2(a) as under:--
"2(a) 'Aggrieved person' means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent."
39. Section 20 of the Act of 2005 provides for monetary reliefs to such aggrieved persons which may include but not limited to the loss of earnings, the medical expenses, loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of CPC or any other law for the time being in force.
40. Therefore, the Parliament taking note of the new situations and new dangers has provided new strategies and new remedies. The Parliament has now conferred benefits such as right of maintenance, right of residence, etc., to a person other than a legally wedded wife. A woman living in a shared household through a relationship in the nature of marriage is entitled to all the monetary relief as mentioned in Section 20 of the Act of 2005. Can it be said when a person who is not legally married to the deceased is entitled to maintenance and other monetary benefits during his life time, such a woman is not entitled to claim compensation under the Motor Vehicles Act, on the death of the person with whom she was living during his life time and on whom she was dependant during his life time and who was maintaining her. He was the bread winner. She was completely dependant on his earning and he was looking after all her needs and if he dies in a motor vehicle accident, in law as his legal representative is she not entitled to compensation? Can such a person who had a right during his lifetime for maintenance be denied the compensation payable on account of his death? Therefore, the definition of a legal representative cannot be confined only to the legal heirs. It has to be enlarged, liberally construed, and all persons who are dependant on the deceased for the living should also be entitled to compensation payable on account of his death. The change in the social set up, the progress of law in that direction and principles of justice, equity and good conscience have to be kept in mind while interpreting the definition of the word "legal representative" in the context of Motor Vehicles Act. Therefore, in the context of Motor Vehicles Act, even a wife whose marriage is void, if she was living with her husband as his family member and was dependant on his earning for her living is entitled to compensation as a "legal representative". A second wife is not entitled to any compensation under the Motor Vehicles Act, as the said marriage is void. But, if she was dependent on the deceased, she is entitled to compensation as a "dependent" and not as a second wife.
41. It was contended that, in two judgments of this Court, two Division Benches have held that a second wife whose marriage is void is not entitled to compensation and, therefore, if this Court is not agreeing with the said view, the matter should be referred to a larger Bench. In support of their contention, reliance is placed on the judgment in the case of Parvathamma and Etc v. C. Subramanyam and Others reported in MANU/KA/0458/2000 : AIR 2000 KAR 309, where it is held as under:--
"15..................The principle laid down there would be applicable to the claim petition filed by the legal representatives under the Motor Vehicles Act as well. The question which required to be determined under both the Acts is as to who is entitled to succeed to the estate of the deceased. The subsequent marriage being void, the second wife would not be entitled to succeed to the estate of the deceased under the Hindu Succession Act and therefore could not be termed as legal representative representing the estate of the deceased. Claim petitions for grant of compensation would not be maintainable under Section 166(c) of the Motor Vehicles Act on their behalf"
42. As is clear from the aforesaid judgment, the Division Benches relied on the judgment of the Supreme Court in the case of Rameshwari Devi v. State of Bihar and Others reported in MANU/SC/0043/2000 : AIR 2000 SC 735, where it was held as under:--
"15. Rameshwari Devi has raised two principal objections : (1) marriage between Yogmaya Devi and Narain Lal has not been proved, meaning thereby that there is no witness to the actual performance of the marriage in accordance with the religious ceremonies required for a valid Hindu marriage and (2) without a civil court having pronounced upon the marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights, it cannot be held that the children of Yogmaya Devi with her marriage with Narain Lal would he legitimate under Section 16 of the Hindu Marriage Act First objection we have discussed above and there is nothing said by Rameshwari Devi to rebut the presumption in favour of marriage duly performed between Yogmaya Devi and Narain Lal. On the second objection, it is correct that no civil court has pronounced if there was a marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rites. That would, however, not debar the State Government from making an inquiry about the existence of such a marriage and act on that in order to grant pensionary and other benefits to the children of Yogmaya Devi. On this aspect we have already adverted to above. After the death of Narain Lal, inquiry was made by the State Government as to which of the wives of Narain Lal was his legal wife. This was on the basis of claims filed by Rameshwari Devi. Inquiry was quite detailed one and there are in fact two witnesses examined during the course of inquiry being (1) Sant Prasad Sharma, teacher, DAV High School, Danapur and (2) Sri Basukinath Sharma, Shahpur Maner who testified to the marriage between Yogmaya Devi and Narain Lal having witnessed the same. That both Narain Lal and Yogmaya Devi were living as husband and wife and four sons were born to Yogmaya Devi from this wedlock has also been testified during the course of inquiry by Chandra Shekhar Singh, Rtd. District Judge, Bhagalpur, Smt. (Dr.) Aran Prasad, Sheohar, Smt. S.N. Sinha, w/o Sri S.N. Sinha, ADM and others. Other documentary evidence were also collected which showed Yogmaya Devi and Narain Lal were living as husband and wife. Further, the sons of the marriage between Yogmaya Devi and Narain Lal were shown in records as sons of Narain Lal."
43. The question therein was, when a Hindu male dies intestate, who is entitled to the family pension and death-cum-retirement gratuity payments which are governed by the relevant Rules. In that context it was held that, a second wife is not entitled to those benefits as the marriage was in contravention of clause (i) of Section 5 of the Hindu Marriage Act whereas the children born to her are legitimate children under Section 16 of the Hindu Marriage Act and are entitled to those benefits. It was not rendered in the context of Motor Vehicles Act. The Division Bench did not notice the judgment of the Supreme Court in Ramanbhai Prabhatbhai's case which is directly on the point as to who is the legal representative that is entitled to compensation under the Motor Vehicles Act nor it went into the question as to who is a legal representative under Section 2(11) of the CPC.
44. The other judgment on which reliance was placed is in the case of Annappa Naika & Anr. v. Chand Basha & Ors. reported in MANU/KA/0592/2009 : 2010(1) AIR Kar 289 where it is held as under:
"8........................... As per the law laid down by the Apex Court and this Court in hosts of judgment, 5th respondent who is the second wife of the deceased is not legally entitled to any compensation on account of the death of her husband deceased Sri Lokyanaika. Therefore, we deem it fit to modify the judgment and award passed by the Claims Tribunal in so far as it relates to awarding a sum of Rs. 64,000/- in favour of 5th respondent holding that the 5th respondent being the second wife of the deceased is not legally entitled to any compensation and the appellants-1 and 2 and respondents-4, 6 and 7 are equally entitled for the amount which has been awarded in her favour."
45. In that case they proceeded on the assumption that, as per the law laid down by the Apex Court and this Court in host of judgments, a second wife is not legally entitled to any compensation on account of the death of the husband. No judgment of the Apex Court nor any judgment of this Court is cited. No law is laid down in that case. On the contrary they were only following the judgment of the Apex Court and this Court, for which no reference is made. The only judgment of the Apex Court under the Motor Vehicles case is the one set out above which does not lay down any such proposition of law. The definition of the term legal representative as defined under Section 2(11) of the Code is also not noticed. However, in a later judgment, a Division Bench of this Court in the case of Shantawa v. The Managing Director, NWKRTC, Belgaum Division and Others reported in MANU/KA/2168/2012 : ILR 2012 KAR 5899, has held as under:
"5...............The grant of compensation under Motor Vehicle Accident is the discretion of the Court and the Court need not necessarily he guided by the Rules under the Personal Law of Succession. There is no material before the Court to suggest whether the marriage of the appellant with the deceased was conscious bigamous marriage. The law under the Domestic Violence Act also recognizes grant of maintenance for a woman who was in live-in-relationship. In that context, denial of share in the compensation to the appellant does not appeal to be sound and proper. The appellant, first wife, children and mother of the deceased are all entitled to equal share in the compensation awarded and entitled to interest at 6% p.a. on the enhanced compensation."
46. In the judgments of Parvathamma and Annappa Naika referred to supra, they did not notice the judgment of the Supreme Court in the case of Ramanbhai Prabhatbhai nor the definition of 'legal representative' as contained in Section 2(11) of the Code. The aforesaid two judgments of this Court were delivered without reference to the judgment of the Apex Court in Ramanbhai Prabhatbhai where the word 'legal representative' was interpreted. They have also not taken note of the statutory provision contained in Section 2(11) of the CPC. Moreover, subsequently, the Apex Court in the aforesaid Montford Brothers' case, has affirmed the judgment in Ramanbhai Prabhatbhai's case and has categorically held that the right of filing the claim petition under the Motor Vehicles Act should not be controlled by the provisions of Fatal Accidents Act which confines claim petition only to the benefit of wife, husband and parent and child. It is held that a dependant of the deceased should not be denied the right to claim compensation without any justification in consonance with the principles of justice, equity and good conscience. The law is fairly settled. That apart the Parliament has enacted Protection of Women from Domestic Violence Act, 2005, giving a right to a woman who is not married as per the requirement of the Hindu Marriage Act, 1956 and who is living together with a man in a shared house hold through a relationship in the nature of marriage. This law was not there when the judgment in Parvathamma's case was delivered. In Annappa Naika's case this law was not noticed. There is a perceptible change in the law which is brought about to protect a woman. The definition of legal representative includes a wife and not a second wife whose marriage is void. But a second wife, who is dependent on the deceased, also becomes a legal representative under the Act, who is entitled to compensation payable on account of the death of the deceased. The question whether a second wife in her capacity as a "dependent", would fall within the definition of the word legal representative used in the Section 166 of the Act, was not considered in the said two judgments. We are not holding any thing contrary to the said decision. We agree with the said statement of law that the second wife, whose marriage is void is not entitled to compensation. But, if the second wife is "dependant" on the deceased for her living, then the legal position would be different. As a "dependant" on the deceased, she would be entitled to compensation under the Act as held by the judgments of the Apex Court referred to supra. This aspect has not been considered in the aforesaid two judgments. Therefore, it is not necessary to refer this appeal to a larger Bench.
47. In the judgment of Montford Brothers' case, the Apex Court categorically holds that, only if there is a justification in consonance with principles of justice, equity and good conscience, a dependant of the deceased may be denied right to claim compensation. Therefore, a dependent of the deceased is entitled to compensation. It is purely a question of fact. We have to find out in the instant case whether the second wife is the dependant and whether principles of justice, equity and good conscience excludes her to claim compensation.
48. The admitted evidence on record shows that Smt. Lalitha was the first wife of the deceased. He married Pushpa on 2.11.1981 in Rajanahalli Dharmashala at Davanagere. The first wife was living separately from the deceased even prior to the marriage of Pushpa because as she belonged to a different caste. The family of the deceased did not allow her to join him as she belonged to a different caste namely Brahmin. Therefore, from 2.11.1981 till the date of accident, i.e., 16.9.2007, more than 25 years Pushpa lived with the deceased as his second wife. She gave birth to a child Ms. Neethi on 20.8.1987 at JJM Hospital, Davanagere. The child was admitted to St. Paul's English School where she studied from I to VIII standard from 1993-94 to 2000-01 in ICSE. The deceased met with an accident on 16.9.2007. It is Smt. Pushpa who admitted him to the Sagar Apollo Hospital, Bangalore. He was an inpatient in the Hospital from 16.9.2007 till his death on 30.11.2007. The evidence on record shows that 10 major operations were conducted under general anesthesia. In spite of the same he succumbed to the injuries on 30.11.2007. His body was taken to Victoria Hospital for post mortem. Thereafter, his body was handed over to Smt. Pushpa. It is Smt. Pushpa who buried him as per Ex. P64, the receipt issued by the Bangalore Mahanagara Palike in this behalf. Therefore, Pushpa was residing with the deceased for more than 25 years. It is she who admitted him to the hospital. She was by his side for 2 1/2 months in the hospital. It is she who took the dead body and buried him and performed the obsequies ceremonies. The total medical bill runs to Rs. 12,00,000/-. The evidence on record shows that she has paid Rs. 4,96,000/-. Now, the question is, is Smt. Pushpa a total stranger? Does she have no right to claim compensation? Was she not a member of the family of the deceased? Is she not a mother of the daughter of the deceased who is entitled to compensation? In the facts of this case, it would be cruel to deny Smt. Pushpa her legitimate share in the compensation payable on account of the death of the deceased. She was dependant on the deceased. As such she is the legal representative of the deceased. To be called a legal representative', it is not necessary that a person should have some interest or right in the estate of the deceased. An intermeddler having right or interest in the estate of the deceased would fall within the definition of legal representative, as it is an inclusive definition. Seen from that angle, if a second wife though her marriage is void, is living with her husband for more than 20 to 25 years, given birth to a child and is in possession of all his belongings on the date of death of the deceased, she would fall within the definition of intermeddler and, as an intermeddler, also she would be a legal representative and therefore can maintain a petition for compensation.
49. Even a wife who is not dependent on the husband, who is living separately from her husband is entitled to maintain a petition under Section 166 of the MV Act, because she as a legally wedded wife succeeds to the estate of the deceased. Even otherwise, during the subsistence of the marriage, if a wife is living separately, she is entitled to maintenance and, therefore, she is entitled to maintain a claim petition and she is entitled to compensation because of the legal right flowing from the subsistence of a valid marriage. In other words, though she is not actually dependent on the deceased on the date of his death, she has a right of maintenance. In law; she as the legally wedded wife, not only can maintain a petition, but also is entitled for compensation.
50. Therefore, in the instant case, on facts it is established that the deceased was living with the second wife; and the second wife and children were depending solely on the income of the deceased. Having regard to the provisions contained in Section 168 of the 1988 Act, it cannot be said that the second wife is not entitled to any maintenance or that she has to be excluded from the compensation payable by the Tribunal. Therefore, we are of the view having regard to the intention of the legislature as reflected in Section 168 of the 1988 Act, where it is a legal representative of the deceased and not a legal heir, who is entitled to maintain a petition and when the definition of the term 'legal representative' includes intermeddler, the second wife, as she would be intermeddling with the estate of the deceased by virtue of the fact that she was living with him at the time of his death would be entitled to maintain a petition. She also would be entitled to compensation, as a dependant, as she was depending on him for her living and sustained loss on account of his death. At the same time the first wife, who had been living separately, for whatever reason and even if she was not dependent on the deceased, would be entitled to compensation, as a legally wedded wife and also as a person entitled to the estate of the deceased. Similarly, the daughter of the second wife, though illegitimate, by virtue of Section 16(1) of Hindu Marriage Act, is to be treated as legitimate child. She would be entitled to a share in the estate of the father as class-I heir and the petition filed by her can neither be dismissed nor she can be denied the compensation. In the light of the aforesaid discussion, we are of the view that in the facts of this case, the order passed by the Tribunal holding that the petition filed by the second wife is not maintainable is not correct and therefore, it has to be set aside. The second wife, as dependent on the deceased and an intermeddler of his estate and who has sustained loss is entitled to compensation along with the first wife and her own daughter. Therefore all of them are entitled to compensation. We therefore have to first determine the amount of compensation payable and then specify the person or persons to whom compensation is payable and then specify the amount payable to such persons out of the compensation so determined.
51. In this case, the material on record discloses that the Tribunal has taken Rs. 1,20,000/- as annual income of the deceased and deducted 50% towards personal expenses of the deceased, which is patently incorrect. Since the deceased left behind three persons, the proper deduction towards his personal expenses would be 1/3rd and the multiplier to be adopted is 13. Therefore, the total compensation payable under the head loss of dependency would be Rs. 10,40,000/-. Out of the said amount a sum of Rs. 3,50,000/- is payable to the first wife, Rs. 3,50,000/- is payable to the daughter and Rs. 3,40,000/- is payable to the second wife.
52. The evidence on record shows that the second wife has spent Rs. 4,90,000/- towards medical expenses at Sagar Apollo Hospital and therefore, she is exclusively entitled to the said amount. The Tribunal has awarded a sum of Rs. 15,000/- towards loss of consortium to the first wife, even though she was not living with her husband for more than 25 years. As such it is not justified. It is the second wife who would be entitled to Rs. 15,000/- towards loss of consortium. The first wife would be entitled to Rs. 10,000/- towards loss of estate, which has not been awarded at all.
53. A sum of Rs. 1,000/- is awarded towards transportation of dead body and Rs. 10,000/- towards obsequies ceremonies and for burial. That amount is to be paid to the second wife, as she took the body and buried her husband, as is clear from the documentary evidence on record. The daughter too would be entitled to Rs. 10,000/- towards loss of love and affection.
54. To sum up, the claimants would be entitled to the following amounts:
55. Thus, the total amount of compensation payable by the Insurance Company to the claimants is in a sum of Rs. 15,76,000/-. The said amount shall carry interest at the rate of 6% p.a. from the date of filing the petition till the date of payment.
56. We, therefore, pass the following order:
ORDER
"(i) The appeals are partly allowed.
(ii) The claimants in both the petitions together are entitled to a sum of Rs. 15,76,000/- with interest at the rate of 6% p.a. from the date of filing petition till the date of payment.
(iii) The said amount is apportioned in the following manner:(iv) A sum of Rs. 3,00,000/- shall be deposited in the Nationalized Bank, in the name of each of them and the balance amount shall be paid to them. However each of them would be entitled to draw periodical interest from such deposit. The said deposit be initially for a period of 5 years.
(v) No costs."
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