Branches of BANCO National Ultramarino v. Nalini
Bai Naique [1989]2SCR810 the definition contained in
Section 2(11) CPC is inclusive in character and its
scope is wide, it is not confined to legal heirs only.
Instead it stipulates that a person who may or may not
be legal heir competent to inherit the property of the
deceased can represent the estate of the deceased
person. It includes heirs as well as persons who
represent the estate even without title either as
executors or administrators in possession of the estate
of the deceased. All such persons would be covered by
the expression 'legal representative'. As observed in
Gujarat State Road Transport Corporation v.
Ramanbhai Prabhatbhai and Anr. [1987]3SCR404 a
legal representative is one who suffers on account of
death of a person due to a motor vehicle accident and
need not necessarily be a wife, husband, parent and
child.
11. There are several factors which have to be noted.
The liability under Section 140 of the Act does not cease
because there is absence of dependency. The right to file
a claim application has to be considered in the
background of right to entitlement.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No. 4260 of 2008(O&M)
Date of decision : May 08, 2014
Charanjit Kaur ..... Appellant
v.
Suresh Kumar and others ..... Respondents
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI
Citation; 2016(2) ALLMR (JOURNAL) 17
This appeal has been filed by the appellant-claimant for
enhancement of compensation in respect of the death of her brother
Lakhwinder Singh and for the injuries sustained by the appellant-claimant
in a motor vehicle accident which took place on 28.2.2005 in the area of
Shahabad when the car in which she was travelling along with some other
persons, met with an accident with the offending bus coming from Ambala
side being driven in a rash and negligent manner by respondent No.1 who, in
the process of overtaking a tractor-trolley in a reckless manner, caused the
accident. The occupants of the car sustained injuries and one of them also
died. The claimant-appellant also sustained multiple grievous injuries.
The claim petition filed by Charanjit Kaur has been contested
by Jaswant Kaur who states herself to be the legally wedded wife of the
deceased. She states that for this reason she is entitled to compensation with
regard to death of deceased Lakhwinder Singh.
The Tribunal rejected the claim of both i.e. Charanjit Kaur and
Jaswant Kaur for compensation for the death of Lakhwinder Singh. With
regard to Charanjit Kaur the Tribunal held that she being the married sister
cannot be said to be dependent on her brother and in respect of Jaswant Kaur
she was not proved to be his legally wedded wife.
Counsel for the Insurance Company has argued that the whole
system of compensation for motor vehicle accidents in India is based upon
the question of dependency and since the sister was not dependent on the
brother, she could not have been granted any compensation. He has relied
upon Manjuri Bera v Oriental Insurance Company and another, 2007
ACJ 1279 to contend that even if the claimants are held entitled to
compensation even though they are not dependents the maximum limit can
be only Rs. 50,000/-. Paras 10 and 11 of the aforesaid judgment are
reproduced as under:-
“10. As observed by this Court in Custodian of
Branches of BANCO National Ultramarino v. Nalini
Bai Naique [1989]2SCR810 the definition contained in
Section 2(11) CPC is inclusive in character and its
scope is wide, it is not confined to legal heirs only.
Instead it stipulates that a person who may or may not
be legal heir competent to inherit the property of the
deceased can represent the estate of the deceased
person. It includes heirs as well as persons who
represent the estate even without title either as
executors or administrators in possession of the estate
of the deceased. All such persons would be covered by
the expression 'legal representative'. As observed in
Gujarat State Road Transport Corporation v.
Ramanbhai Prabhatbhai and Anr. [1987]3SCR404 a
legal representative is one who suffers on account of
death of a person due to a motor vehicle accident and
need not necessarily be a wife, husband, parent and
child.
11. There are several factors which have to be noted.
The liability under Section 140 of the Act does not cease
because there is absence of dependency. The right to file
a claim application has to be considered in the
background of right to entitlement. While assessing the
quantum, the multiplier system is applied because of
deprivation of dependency. In other words, multiplier is
a measure. There are three stages while assessing the
question of entitlement. Firstly, the liability of the
person who is liable and the person who is to indemnify
the liability, if any. Next is the quantification and
Section 166 is primarily in the nature of recovery
proceedings. As noted above, liability in terms of
Section 140 of the Act does not cease because of
absence of dependency. Section 165 of the Act also
throws some light on the controversy. The explanation
includes the liability under Sections 140 and 163A.”
He has thus contended that in the present case, liability had to
be fixed under Section 140 of the Act.
Learned counsel for the appellant has relied upon a decision of
this Court in Smt.Sundri Devi and another v. Vinod Kumar and others
reported as MANU/PH/1249/2010 . In that case this Court was considering
the right of a married daughter who was not dependent upon the deceased to
claim compensation. His lordship referred to Manjuri Bera v Oriental
Insurance Company and another, 2007 ACJ 1279 and to the judgment of
Karnataka High Court in A.Manavalagan v. A. Krishnamurthy and
others reported as 2005 ACJ 1992 and also to Gobald Motor Service v.
R.M.K. Veluswami, (1962) 1 SCR 929.
In the case of A. Manavalagan v. A. Krishnamurthy
and others (supra) the Division Bench of the Karnataka High Court headed
by Justice R.V.Raveendran relied upon a judgment of the Hon'ble Supreme
Court wherein their Lordships distinguished between Sections 1 and 2 of
the Fatal Accidents Act(Sections 1-A and 2 after the amendment). Their
Lordships had noticed that while under Section 1(1-A) damages are
recoverable for the benefit of the persons mentioned therein, under Section
2, compensation goes to the benefit of the estate. Under Section 1-A
damages are payable in respect of the loss sustained by the persons
mentioned therein and under Section 2 damages can be claimed for loss of
expectation of life as well as loss to the estate. The Hon'ble Supreme Court
held that persons who claim benefit under Sections 1 and 2 may not be the
same as the claims under the said Sections are based on different causes of
action. Ultimately in A. Manavalagan v. A. Krishnamurthy and others
(supra) the Division Bench held that both for loss of dependency and loss of
estate compensation would be worked out on the basis of the income of the
deceased minus expenses but further held that depending on the facts and
circumstances of each case the amount of expenses would be different. For
instance a person may spend more money on himself if he is an unmarried
bachelor rather than if he had been a married man having two or three
dependent children. Their lordships further held that for non-dependent
siblings the rate of loss to the estate would be only 15% of the total income.
Counsel for the appellant has argued that Section 166 of the
Motor Vehicles Act stipulates that applications for compensation would be
made by `all or any of the legal representatives of the deceased' and under
Section 168 of the Motor Vehicles Act, the Tribunal is to make an award
`determining the amount of compensation which appears it to be just and
specifying the person or persons to whom compensation shall be made.' As
per him, the concept of dependency has been devised by the Courts because
in overwhelming majority of cases, the legal representatives also happen to
be dependents of the deceased but this cannot be construed to mean that only
dependents are entitled to compensation because this interpretation would be
contrary to the provisions of the Motor Vehicles Act. Thus even nondependent
legal representative would be entitled to the actual loss to the
estate and not to the notional loss to the estate as awarded in the present
case. He has relied upon a decision of the Hon'ble Supreme Court in
Montford Brothers of St. Gabriel and another v. United India Insurance and
another, 2014(1) RCR(Civil) 884. In this case, the deceased was a Catholic
Priest who had joined the Montford Brothers of St. Gabriel. He died in an
accident. The Brothers filed a claim petition on the ground that on joining
the Brotherhood, every thing received by Brothers as of right would go into
the common purse. It was consequently their case that the Society was legal
representative of the deceased and was entitled to compensation. The
Tribunal accepted the plea and awarded compensation of ` 2.52 lacs. The
High Court, however, held that the Society was not dependent on the
deceased and consequently set aside the Award. In appeal, the Hon'ble
Supreme Court, while upholding the Award of the Tribunal, held as
follows:-
“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 vs. Raman Bhai Prabhatbhai & Anr.[1]. 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. Paragraph 11 of the report reflects the
correct philosophy which should guide the courts
interpreting legal provisions of beneficial legislations
providing for compensation to those who had suffered
loss.
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 110-B 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 v. Chaturbhai Taljabhai, (AIR
1977 Guj.195) 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.”
“16. 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 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.”
Resultantly it has to be held that the Tribunal erred in
dismissing the claim petition in entirety by holding the appellant Charanjit
Kaur to be not entitled to even file the claim petition in respect of the death
of her brother Lakhwinder Singh. In the circumstances this court would
have to compute the compensation payable also.
Learned counsel has argued that the income taken at Rs. 3000/-
is highly inadequate and as per minimum wages the income had to be Rs.
3208/-. Learned counsel for the insurance company has not denied it.
In the circumstances I take the income of the deceased at Rs.
3300/-.
Learned counsel has further argued that nothing has been
awarded for future prospects. The deceased was of the age of 52 years,
therefore, an additional increase of 15% should have been granted towards
future prospects. In view of the decision of this Court in FAO No. 929 of
2014, National Insurance Company Limited v. Gurdev Kaur and others,
decided on 18.02.2014 I award future prospects to the extent of 15%.
Learned counsel has further argued that as per Sarla Verma v.
DTC, 2009 ACJ 1298(SC) multiplier of 14 should have been applied while
computing compensation. I agree with learned counsel and grant multiplier
of 14.
As held above the appellant would be entitled to 15% of this
amount. I further award an amount of Rs. 20,000/- for funeral expenses.
Interest is awarded at the rate of 10% p.a. The appellant and the
proforma respondents No. 4 to 9 would be equally entitled to compensation
amount.
As regards the claim for enhancement of compensation in
injury case I find that there is no scope for interference and consequently
dismiss the same.
The appeal stands disposed of accordingly.
( AJAY TEWARI )
May 08, 2014
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