1) A divorced wife or a widow can also maintain a
petition under Section 166 of the Motor Vehicles Act, is a
proposition now beyond doubt. Even if a remarried widow is
not a dependent of the deceased, absence of dependency
will not dis-entitle the widow to become a legal
representative. In the judgment in Manjuri Bera v. Oriental
Insurance Co. Ltd. [2007 ACJ 1279], the Apex Court held
that compensation constitutes part of the estate of the
deceased. As a result, the legal representative of the
deceased would inherit the estate. Going by the said
judgment, even employed sons and married daughters can
maintain an application under Section 166 of the Act. The
principle underlying the exposition would equally apply to a
remarried widow.
2) In Gujarat SRTC v. Ramanbhai Prabhatbhai
[(1987) 3 SCC 234], the Apex Court held that 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. Widow of
a deceased victim, even after remarriage, continues to be
the legal representative of her husband. The right of
succession accrues immediately on the death of the
husband and in the absence of any provision, she cannot be
divested from the property vested in her due to remarriage.
The right of the widow is a statutory right and the remarriage
does not affect that right.{Para 18}
3) It is to be noted that the 1st appellant would not
have thought of a remarriage, but for the untimely death of
her husband. It was not a remarriage on account of divorce.
The Court has to consider the psychological hurdles that the
widow will face on account of remarriage. The society is
changing. The age old concept of a remarried widow cutting
off all relations with the family of her ex-husband, is
becoming a story of the past. Fact remains that the 1st
respondent was dependent on the deceased and would
have remained so, but for the demise of her husband
consequent to the accident. The death has indeed resulted
in loss of dependency. After the death of husband, a widow
may go for employment and become self-dependent or may
opt for remarriage. Either way, the loss of dependency
consequent to the death of the husband does not cease
merely because she has remarried or became self-reliant.
The word dependency and legal representative, therefore,
should receive a pragmatic interpretation. While computing
compensation for dependency of a widow on the death of
her husband under Section 166 of the Motor Vehicles Act,
1988, her remarriage shall not be a decisive factor.{Para 22}
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
MR.JUSTICE N.NAGARESH
MACA.No.1936 OF 2008
GLANIS,W/O.LATE ANIL ABRAHAM, Vs LAZAR MANJILA,S/O. JOY MANJILA,
Dated this the 30th day of June, 2020
The question inter alia arising in this appeal is
whether the entitlement of a widow for compensation
consequent to the death of her husband in a road traffic
accident, will diminish due to her remarriage during the
pendency of the proceedings before the Motor Accidents
Claims Tribunal under Section 166 of the Motor Vehicles
Act, 1988.
2. The 1st appellant is the wife and 2nd and 3rd
appellants are the parents of late Anil Abraham. Anil
Abraham, who was employed in Saudi Arabia and was
earning ₹25,000/- per month, was on leave. On 08.01.2002,
while he was riding a motorcycle through Ernakulam-
Palarivattom road, a car driven by its owner, took a U-turn
and knocked down Anil Abraham. Anil Abraham sustained
serious injuries. Though treated for injuries, he succumbed
to the injuries, on 21.01.2002. Thereupon, the appellants
filed OP(MV) No.581/2002 in the Motor Accidents Claims
Tribunal, Muvattupuzha seeking a compensation of
₹25,00,000/-.
3. The 1st respondent-owner of the car contested
the OP. The 1st respondent stated that accident was solely
due to the negligent driving of motorcycle by the deceased
Anil Abraham. The compensation claimed is exorbitantly
excessive. The vehicle was covered by an insurance policy
of the 2nd respondent-insurer. Therefore, the 1st respondent
is not liable to pay any compensation.
4. The 2nd respondent-insurer stated that as the
policy was issued in favour of the 3rd respondent in the
OP(MV), it is not bound to indemnify the 1st respondent.
The policy holder did not report the accident to the insurer
and consequently, policy condition is violated. The 2nd
respondent also stated that the accident was due to the
negligent driving by the deceased Anil Abraham. The
compensation amount claimed is high. The 2nd respondentinsurer
further stated that after filing the OP(MV), the 1st
appellant married another person and is living with him.
There is therefore cessation of dependency and 1st
appellant is not entitled to any amount as compensation for
the death of her former husband.
5. The appellants produced Exts.A1 to A27
documents. The 2nd respondent produced Exts.B1 and B2
documents. The appellants examined PWs 1 to 3. One
Rev. Fr. C.K. Issac was examined as RW1 by the 2nd
respondent.
6. Appreciating the evidence, the Tribunal
concluded that the accident occurred due to the negligence
of the 1st respondent, who was the driver of the car. The
Tribunal accordingly passed an Award allowing a total
compensation of ₹7,64,500/- under the following counts:-
1. Compensation for the death ₹5,28,000/-
2. Transportation expenses ₹2,000/-
3. Funeral expenses ₹5,000/-
4. Loss of estate ₹2,500/-
5. Medical expenses ₹1,82,000/-
6. Compensation for pain and suffering ₹20,000/-
7. Loss of consortium ₹10,000/-
8. Compensation for loss of love and
affection
₹15,000/-
Total ₹7,64,500/-
=========
The 1st appellant was held entitled to 25%, whereas
appellants 2 and 3 were held entitled to 30% and 45%
respectively, of the compensation amount. The Tribunal
also granted interest at the rate of 8.5% per annum from
the date of the OP(MV). The 2nd respondent-insurer was
directed to make the payment.
7. The 2nd appellant-father of the deceased passed
away during the pendency of this MACA and his surviving
children were impleaded in the appeal as additional
appellants 4 and 5.
8. Learned counsel for the appellants argued that
the deceased was a Diploma holder in Engineering and an
Instrument Technician working in a Gulf country. In 2002,
the year of accident, the deceased was 29 years old. It is
the argument of the counsel for the appellants that in spite
of sufficient proof of the monthly income of ₹25,000/- of the
deceased Anil Abraham, the Tribunal fixed notional monthly
income at ₹6,000/-. The appellants had produced bank
remittance statements of the deceased and perusing the
same, the Tribunal itself had found that monthly remittances
in Bank alone, by the deceased, can be treated as ₹7,500/-.
But, in spite of that, the Tribunal held that the monthly
income of the deceased Anil Abraham is ₹6,000/- and
monthly contribution to the family is ₹4,000/-. Such fixation
is abysmally low.
9. The Tribunal also omitted to consider future
prospects in employment of the deceased while computing
his notional income, contended the counsel for the
appellants. In the light of the judgments of the Hon'ble Apex
Court in National Insurance Co. Ltd. v. Pranay Sethi and
others [(2017) 16 SCC 680] as also in Rajesh and others
v. Rajbir Singh and others [2013 (3) KLT 89], the Tribunal
ought to have taken into account future employment
prospects of the deceased.
10. The Tribunal adopted a multiplier of 11, taking
into consideration the age of appellants 2 and 3. In fact,
multiplier 17 should have been adopted on the basis of the
age of the deceased, argued the counsel for the appellants.
Such grave mistakes by the Tribunal has resulted in
substantial loss to the appellants. The amount of ₹15,000/-
awarded towards loss of love and affection to parents, is too
low. Similarly, towards loss of consortium, only an amount
of ₹10,000/- is awarded. Towards loss of estate, the amount
of compensation awarded is only ₹2,500/-. The Tribunal
granted only a token amount of ₹5,000/- towards funeral
expenses. The amounts awarded under each of the afore
heads are nowhere near to 'just compensation'. The
learned counsel for the appellants relied on the judgments in
National Insurance Co. Ltd. v. Nelphona and others
[2012 CDJ 3706], National Insurance Co. Ltd. v. Birender
and others [2020 ACJ 759] and Amrit Bhanu Shali and
others v. National Insurance Co. Ltd. and others [2012
(2) KLJ 816] to urge his points.
11. Learned Standing Counsel appearing for the 2nd
respondent, on the other hand, argued that the amount of
compensation awarded by the Tribunal is just and
reasonable. The appellants failed to produce any reliable
evidence to establish that the deceased had a monthly
income of ₹25,000/-. The Tribunal has fixed the monthly
income as ₹6,000/-, after appreciating the evidence.
Similarly, the Tribunal adopted multiplier of 11 taking into
account remarriage of the 1st appellant-wife.
12. The Standing Counsel argued that while
computing compensation due to the wife of a deceased,
who has remarried subsequently, necessarily the
compensation should be brought down, having regard to the
remarriage. The learned Standing Counsel relied on the
observations contained in the judgment of the Apex Court in
The Managing Director, TNSTC v. Sripriya and others
[(2007) 13 SCC 641]. The amount of compensation
calculated by the Tribunal is therefore not liable to be
interfered with, contended the Standing Counsel.
13. Heard learned counsel for the appellants and
learned Standing Counsel for the 2nd respondent.
14. As regards the claim of income of the deceased
Anil Abraham, the appellants produced Exts.A8, A10 and
A16 documents to show that the deceased had passed Pre
Degree course, obtained National Trade Certificate in
Electronic-Mechanic and had undergone part-time course in
TV Servicing and Repair under the LBS Centre for Science
and Technology. The Tribunal disbelieved Ext.A16 certificate
relating to the part-time course. Even discounting the said
part-time course, the fact that the deceased had passed Pre
Degree Course and held National Trade Certificate, is
beyond dispute. Ext.A13 produced by the appellants was
an identity card issued by the employer and Ext.A25, a work
permit. The Tribunal itself perused documents relating to
bank transactions of the deceased marked as Exts.A21,
A23, A24, A26 and A27 and concluded that the deceased
had been contributing ₹7,500/- per month in an average,
while he was abroad. This amount must be necessarily
excluding the living and personal expenses of the deceased
while he was abroad. Nevertheless the Tribunal fixed the
income of the deceased as ₹6,000/- per month and his
contribution to the family was fixed as ₹4,000/-.
15. Looking at the documents produced and proved
by the appellants, this Court is of the opinion that the
notional income so arrived at by the Tribunal, was much on
a lower side. Considering the qualifications of the deceased
and the remittances he was making while he was working
abroad, the Tribunal ought to have fixed the income of the
deceased at least at ₹7,500/- without making any
deductions towards personal and living expenses. The
Tribunal also ought to have granted enhancements towards
future prospects in employment of the deceased. Viewed in
this angle, the monthly income of the deceased is liable to
be fixed as ₹10,500/- (₹7,500 + ₹3,000 towards future
prospects at the rate of 40%), for the purpose of computing
compensation for dependency.
16. The next point arising for consideration is whether
any reduction is to be made while computing compensation
for dependency due to the appellants for the reason that the
1st appellant had remarried subsequent to the demise of late
Anil Abraham. The judgment in The Managing Director,
TNSTC (supra) of the Apex Court relied on by the 2nd
respondent-insurer, related to adoption of multiplier. While
generally dealing with the principles followed in framing the
multiplier and calculating the multiplicand, the Hon'ble Apex
Court referred to the opinion of Lord Wright in Davies v.
Powell Duffryn Associated Collieries Ltd. [All ER 665 AB],
which was as follows:-
“The starting point is the amount of wages
which the deceased was earning, the ascertainment
of which to some extent may depend on the
regularity of his employment. Then there is an
estimate of how much was required or expended for
his own personal and living expenses. The balance
will give a datum or basic figure which will generally
be turned sum, however, has to be taxed down by
having due regard to uncertainties, for instance, that
the widow might have again married and thus
ceased to be dependent, and other like matters of
speculation and doubt.”
The question whether dependency compensation has to be
reduced in case of remarriage of the widow of a deceased,
was not an issue in the case before the Apex Court.
Therefore, the observations contained in Davies (supra)
cannot be treated as the law laid down by the Apex Court.
17. A divorced wife or a widow can also maintain a
petition under Section 166 of the Motor Vehicles Act, is a
proposition now beyond doubt. Even if a remarried widow is
not a dependent of the deceased, absence of dependency
will not dis-entitle the widow to become a legal
representative. In the judgment in Manjuri Bera v. Oriental
Insurance Co. Ltd. [2007 ACJ 1279], the Apex Court held
that compensation constitutes part of the estate of the
deceased. As a result, the legal representative of the
deceased would inherit the estate. Going by the said
judgment, even employed sons and married daughters can
maintain an application under Section 166 of the Act. The
principle underlying the exposition would equally apply to a
remarried widow.
18. In Gujarat SRTC v. Ramanbhai Prabhatbhai
[(1987) 3 SCC 234], the Apex Court held that 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. Widow of
a deceased victim, even after remarriage, continues to be
the legal representative of her husband. The right of
succession accrues immediately on the death of the
husband and in the absence of any provision, she cannot be
divested from the property vested in her due to remarriage.
The right of the widow is a statutory right and the remarriage
does not affect that right.
19. The objection of the learned Standing Counsel for
the 2nd respondent is more on the compensation for
dependency to be paid to the 1st appellant-widow, than on
the maintainability of a petition at her instance. Here, it is to
be noted that the 1st appellant married the deceased in the
year 2001 and within 90 days of marriage, her husband met
with the accident on 08.01.2002 and died on 21.01.2002.
The 1st appellant was only 21 years old at the time of her
marriage. The 1st appellant had a remarriage on
23.01.2005. The question is whether remarriage by the
widow after three years of the demise of her husband
should be a reason to bring down compensation for
dependency.
20. The couple had no children. Perhaps, the 1st
appellant was persuaded by her former in-laws (parents of
late Anil Abraham) to go for a remarriage or perhaps, the 1st
appellant herself opted for it. In the present day society, no
one wants or expects a young widow to lace herself in white
attire or wear widow's weeds and mourn her entire life. The
society has evolved. In spite of remarriage, a widow may
keep her relations and discharge her duties towards her
former in-laws even after remarriage. Such matters cannot
be speculated. Those are all imponderables. Courts will not
normally entertain actuarial evidence on such
imponderables.
21. In National Insurance Co. Ltd. represented by
its Branch Manager, Trichy v. Nelphona and others [CDJ
2012 MHC 3706], the Madurai Bench of the Hon'ble Madras
High Court observed that social change is an inevitable
phenomena of every society. Whether the social change
comes through legislation or through judicial interpretation, it
indicates the change in the accepted mode of life or perhaps
a better life. The changing patterns of life do have an
impact on the law and life of a given society and the law
must keep pace with the changing socio-economic trend in
the society. In other words, the law should be an instrument
of social change.
22. It is to be noted that the 1st appellant would not
have thought of a remarriage, but for the untimely death of
her husband. It was not a remarriage on account of divorce.
The Court has to consider the psychological hurdles that the
widow will face on account of remarriage. The society is
changing. The age old concept of a remarried widow cutting
off all relations with the family of her ex-husband, is
becoming a story of the past. Fact remains that the 1st
respondent was dependent on the deceased and would
have remained so, but for the demise of her husband
consequent to the accident. The death has indeed resulted
in loss of dependency. After the death of husband, a widow
may go for employment and become self-dependent or may
opt for remarriage. Either way, the loss of dependency
consequent to the death of the husband does not cease
merely because she has remarried or became self-reliant.
The word dependency and legal representative, therefore,
should receive a pragmatic interpretation. While computing
compensation for dependency of a widow on the death of
her husband under Section 166 of the Motor Vehicles Act,
1988, her remarriage shall not be a decisive factor.
23. In the case on hand, it is to be noted that while
apportioning the compensation amount among the
appellants, the Tribunal has divided and allocated only 25%
to the 1st appellant-widow and has awarded 75% of the
compensation amount to the parents of the deceased. This
is also one reason for this Court to hold that no further
deduction on the compensation for dependency need to be
made in respect of the amount payable to the 1st appellant.
24. The further question arising for consideration is
the adoption of multiplier in computing the compensation.
The Tribunal adopted the multiplier of 11. The Tribunal has
adopted such multiplier mainly for the reason that the
parents of the deceased are between the age group of 55
and 60 years. The Hon'ble Apex Court has held in the
judgment in Amrut Bhanu Shali and others v. National
Insurance Co. Ltd. and others [2012 (2) KLJ 816] that the
selection of multiplier is based on the age of the deceased
and not on the basis of the age of the dependent. There
may be a number of dependents of the deceased whose
age may be different. The age of dependents has no nexus
with the computation of compensation. A Division Bench of
this Court has also held the same view in Annamkutty v.
United India Insurance Co. Ltd. [2013 (4) KLT 160]. In
view of the authoritative pronouncements made by the
Supreme Court and this Court on the multiplier to be
adopted in a proceeding under Section 166 of the MV Act in
the case of death, it is the age of the deceased that has to
be taken into consideration and not that of the dependents.
It necessarily follows that the multiplier to be adopted in the
case on hand is 17, the age of the deceased at the time of
death being 29 years.
25. In the light of the discussions made above, it is
held that the compensation for loss of dependency to which
the appellants are entitled to, would be ₹21,42,000/-
(₹10,500 x 12 x 17). The Tribunal has already granted
₹5,28,000/- to the appellants for loss of dependency.
Therefore, the appellants are held entitled to an additional
compensation of ₹16,14,000/- towards loss of dependency.
26. The Tribunal has granted only ₹5,000/- towards
funeral expenses. Following the judgment in Pranay Sethi
(supra) it has to be held that the appellants are entitled to
₹15,000/- towards funeral expenses. Accordingly, it is
declared that the appellants are entitled to an additional
compensation of ₹10,000/- (₹15,000/- minus ₹5,000/-
already awarded by the Tribunal) towards funeral expenses.
The Tribunal has awarded only ₹2,500/- as compensation
for loss of estate. Following the standardised rates laid
down in Pranay Sethi (supra), the appellants are entitled to
₹15,000/- under this head. Therefore, it is declared that the
appellants will be entitled to an additional compensation of
₹12,500/- (₹15,000/- minus ₹2,500/- already awarded by the
Tribunal) towards loss of estate.
27. The accident was on 08.01.2002 and the injured
died on 21.01.2002. The Tribunal awarded ₹20,000/-
towards pain and suffering. As the year of death is 2002,
the amount awarded by the Tribunal towards pain and
suffering is just and reasonable. The Tribunal awarded
₹10,000/- as compensation for loss of consortium. Adopting
the rates contained in Pranay Sethi (supra), it is to be held
that the appellants are eligible for a compensation of
₹40,000/- towards loss of consortium. Accordingly, it is
declared that the appellants will be entitled to an additional
compensation of ₹30,000/- (₹40,000/- minus ₹10,000/-
already awarded by the Tribunal) towards loss of
consortium.
28. The appellants have been awarded ₹15,000/- as
compensation towards loss of love and affection. The
appellant was aged 29 years at the time of death. The 1st
appellant was newly married and the parents have lost their
son at a young age. Considering the totality of the
circumstances, the appellants should be held eligible for a
compensation of ₹1,50,000/- (₹50,000 x 3) towards loss of
love and affection. Accordingly, it is declared that the
appellants will be entitled to an additional compensation of
₹1,35,000/- (₹1,50,000/- minus ₹15,000/- already awarded
by the Tribunal) under the head.
29. In view of the above, it is declared that the
appellants will be entitled to a total additional compensation
of ₹18,01,500/- under the following heads:-
(i) Additional compensation towards loss
of dependency
₹16,14,000/-
(ii) Additional compensation towards
funeral expenses
₹10,000/-
(iii) Additional compensation towards loss
of estate
₹12,500/-
(iv) Additional compensation towards loss
of consortium
₹30,000/-
(v) Additional compensation towards loss
of love and affection
₹1,35,000/-
Total ₹18,01,500/-
=========
The additional compensation so awarded will also carry
interest at the rate of 8.5% per annum from the date of the
OP(MV). The 2nd respondent is directed to pay the
additional compensation within thirty days.
MACA is allowed as above.
Sd/-
N. NAGARESH, JUDGE
25/06/2020
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