Law Web: Bombay HC: Parents Living Separately Or At Native Place Entitled To Compensation under Motor vehicles Act Upon child's Accidental Death

In the instance case the Claimant’s are Hindus. Under

the Hindu Succession Act the Class I heirs inherits the entire

property of the deceased to the exclusion of all others. Father of

the deceased son is not a Class-I heir under the Hindu

Succession Act. The father of the deceased is a Class II heir.

However, the father who is Class II heir of the deceased is still

entitled to claim compensation under the MV. Act on account his

dependency on his son. It is required to be noted that as a

general principle, the extent of dependency of the unemployed

widow would be highest on account of her age. The dependency

of minor children would be lesser than the widow but more than

parents. The parents of the deceased on account of their old age

would have lesser dependency as compare to the widow and the

children. Any other dependent can also filed a Claim and the

dependency of the Claimant would be a matter of fact to be

determined by the Tribunal. {Para 13}

14. In the instance case the impugned judgment indicates

that there is no issue raised as regard the dependency of the

parents on the deceased. In the ordinary circumstances in the Indian Social system, parents are dependent on their child to take care of them in their old age, irrespective of the fact that they would be staying in the villages/native place away from the son. The parents of the deceased/son are also entitled for filial consortium for loss of love, affection, care and companionship of the deceased child.

15. The arguments of the Insurance Company that the claim cannot be filed by the parents of the deceased as they were staying separate from the deceased in a native village as such were not dependent on the deceased cannot be accepted and the same is rejected.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO.571 OF 2023

Bajaj Allianz General Insurance Co. Ltd. Vs Smt.Sunita Virendra @ Birendra Sahani

CORAM : ARUN R. PEDNEKER, J.

DATE : 30th JULY 2024

By the present Appeal the Appellant-Insurance

company challenges the award of the Motor Accident Claims

Tribunal, (‘MACT’ for short) Mumbai, allowing the Claim

Petition of dependents of the deceased.

2. The Appeal primarily raises two grounds (i) income

of the deceased is erroneously taken at Rs.6000/- per month and

(ii) the second submission is that the parents of the deceased were

staying at a different place and, where not dependent on the

deceased and, were not entitled to claim of compensation.

3. The facts giving raise to this Appeal in brief is as

under:-

On 25th July 2010 at about 22.30 hours the deceased

was crossing a Road and at that time one autorickshaw bearing

No.MH-02-UA-8927 came from opposite side in a very rash and

negligent manner and gave dash to the deceased. Due to the said

dash deceased was thrown away from the place of the accident

and he sustained injuries. Thereafter, he was moved to specaility

hospital and died on 31st July 2010. The Police registered an

offence against the driver of the autorickshaw. On demise of the

accident victim the Claim Petition was filed by his wife, daughter,

son and parents of the deceased. The Tribunal on consideration

of the material held that the autorickshaw driver was negligent in

driving. However, the Claimant’s were not able to established the

income of the deceased as the employer was not examined but

held that the deceased being a skilled labourer, a notional income

of Rs.6,000/- per month is considered. Accordingly, Tribunal

computed the compensation at Rs.14,14,000/- and apportioned it

in terms of the final order between the Claimants.

4. Challenging the above order passed by the MACT,

the learned counsel for the Appellant submits that the notional

income of Rs.6,000/- ought not to have been fixed. However,

there is no merit in the submission of the Appellant as the

deceased was a skilled worker and in the year 2010, it cannot be

said that, he could have been earning less than Rs.6,000/- per

month. The submission of the learned counsel for the Insurance

Company as regards the income of the deceased, is rejected.

5. The second submission of the Appellant is that the

parents of the deceased were staying separately in a different

village and as such were not dependent on the deceased and thus

not entitled for the Claim under Section 166 of the Motor

Vehicle Act, 1988 (‘M.V. Act’ for short).

6. The issue of dependency and right to Claim

compensation by legal representative is considered in various

judgments of the Supreme Court. The Supreme Court in the case

of Montford Brothers of St Gabriel & Ors V/s.United India

Insurance Co. Ltd. 2014 ACJ 667, has held 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 and it relies upon the principles of law of Torts that every injury must have a remedy.

7. The Supreme Court Montford Brothers (Supra)

accepted the judgment of the Full Bench of the Patna High Court

in the case of Sudama Devi V/s. Jogendra Choudhary

, wherein

its held that the term ‘legal representative’ is wide enough to

include even the successors to the trusteeship and trust property

are legal representatives within the meaning of Section 2(11) of

the Code of Civil Procedure.

8. The Supreme Court in the case of N. Jayshree & Ors.

V/s. Cholamandalam MS general Insurance Co. Ltd.

while

interpreting the word “legal representative” in the M.V. Act at

paragraph Nos.14 and 16 observed as under:-

14. The MV Act does not define the term ‘legal

representative’. Generally, ‘legal representative’ means a

person who in law represents the estate of the deceased person

and includes any person or persons in whom legal right to

receive compensatory benefit vests. A ‘legal representative’

2 AIR 1987 Patna 239

3 2021 ACJ 2685

may also include any person who intermeddles with the estate

of the deceased. Such person does not necessarily have to be a

legal heir. Legal heirs are the persons who are entitled to

inherit the surviving estate of the deceased. A legal heir may

also be a legal representative.

16. In our view, the term ‘legal representative’ should be given

a wider interpretation for the purpose of Chapter XII of MV

Act and it should not be confined only to mean the spouse,

parents and children of the deceased. As noticed above, MV

Act is a benevolent legislation enacted for the object of

providing monetary relief to the victims or their families.

Therefore, the MV Act calls for a liberal and wider

interpretation to serve the real purpose underlying the

enactment and fulfill its legislative intent. We are also of the

view that in order to maintain a claim petition, it is sufficient

for the claimant to establish his loss of dependency. Section

166 of the MV Act makes it clear that every legal

representative who suffers on account of the death of a person

in a motor vehicle accident should have a remedy for

realization of compensation.

9. The Supreme Court in the case of National Insurance

Company Ltd V/s. Pranay Sethi & Ors.

held as under:-

In the absence of evidence to the contrary, brothers and

sisters will not be considered as dependants, because they

will either be independent and earning, or married, or be

dependent on the father.

32. Thus even if the deceased is survived by parents and

siblings, only the mother would be considered to be a

dependant, and 50% would be treated as the personal and

living expenses of the bachelor and 50% as the

contribution to the family. However, where the family of

the bachelor is large and dependent on the income of the

deceased, as in a case where he has a widowed mother and

large number of younger non- earning sisters or brothers,

his personal and living expenses may be restricted to onethird and contribution to the family will be taken as twothird.”

4 (2017) 16 SCC 680

10. In the case of National Insurance Co. Ltd. V/s.

Birender & Ors

, considered the case of the major sons of the

deceased who have married and gainfully employed, whether can

claim compensation under the M.V. Act. At paragraph Nos.14

and 15 has observed as under:-

“14. The legal representatives of the deceased could move

application for compensation by virtue of clause (c) of

Section 166(1). The major married son who is also earning

and not fully dependant on the deceased, would be still

covered by the expression “legal representative” of the

deceased. This Court in Manjuri Bera (supra) had

expounded that liability to pay compensation under the Act

does not cease because of absence of dependency of the

concerned legal representative. Notably, the expression

“legal representative” has not been defined in the Act. In

Manjuri Bera (supra), the Court observed thus: “9. In terms

of clause (c) of subsection (1) of Section 166 of the Act in

case of death, all or any of the legal representatives of the

deceased become entitled to compensation and any such

legal representative can file a claim petition. The proviso to

said subsection makes the position clear that where all the

legal representatives had not joined, then application can be

made on behalf of the legal representatives of the deceased

by impleading those legal representatives as respondents.

Therefore, the High Court was justified in its view that the

appellant could maintain a claim petition in terms of Section

166 of the Act.

10. …..The Tribunal has a duty to make an award,

determine the amount of compensation which is just

and proper and specify the person or persons to

5 2020 ACJ 759

whom such compensation would be paid. The latter

part relates to the entitlement of compensation by a

person who claims for the same.

11. According to Section 2(11) CPC, “legal

representative” means a person who in law represents

the estate of a de ceased 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. Almost in similar terms is the definition of legal

representative under the Arbitration and Conciliation

Act, 1996 i.e. under Section 2(1)(g).

12. As observed by this Court in Custodian of

Branches of BANCO National Ultramarino v. Nalini

Bai Naique [1989 Supp (2) SCC 275 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 SRTC v. Ramanbhai Prabhatb

hai [(1987) 3 SCC 234 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.” In paragraph 15 of

the said decision, while adverting to the provisions of

Section 140 of the Act, the Court observed that even

if there is no loss of dependency, the claimant, if he

was a legal representative, will be entitled to

compensation. In the concurring judgment of Justice

S.H. Kapadia, as His Lordship then was, it is observed

that there is distinction between “right to apply for

compensation” and “entitlement to compensation”.

The compensation constitutes part of the estate of the

deceased. As a result, the legal representative of the

deceased would inherit the estate. Indeed, in that

case, the Court was dealing with the case of a married

daughter of the deceased and the efficacy of Section

140 of the Act. Nevertheless, the principle underlying

the exposition in this decision would clearly come to

the aid of the respondent Nos. 1 and 2 (claimants)

even though they are major sons of the deceased and

also earning.

15. It is thus settled by now that the legal representatives of

the deceased have a right to apply for compensation.

Having said that, it must necessarily follow that even the

major married and earning sons of the deceased being legal

representatives have a right to apply for compensation and

it would be the bounden duty of the Tribunal to consider

the application irrespective of the fact whether the

concerned legal representative was fully dependant on the

deceased and not to limit the claim towards conventional

heads only.”

11. From the law discussed in the above judgments of

the Hon’ble Supreme Court it would be clear that even in

absence of full dependency of the Claimant on the deceased, the

liability to pay compensation to the legal representatives does not

cease and the cause of the action of the legal representative to file

Claim Petition would still survive. It is for the Tribunal to

consider the evidence as to the extent of dependency of the

Claimant on the deceased.

12. Even if a person who dies in motor accident, leaves

behind no dependents, the legal heirs of the deceased would still

be entitled to claim compensation on account of loss of estate (i.e.

loss of savings by the deceased) and would be entitled for

compensation for loss of love and affection, funeral expenses etc.

However, the concept of dependency under the M.V. Act is

distinct from inheritance of the estate of the deceased under the

Succession Law. The issue arose before the Division Bench of

this Court as regards the dependency of the wife of the deceased

and that of parents under the M.V. Act in comparison to the

Mohammedan Law of succession. The Division Bench of this

Court in the case of Abdul Rahman & Others V/s. Dayaram &

Ors. 1989 (2) T.A.C. 423 , at paragraph Nos.5 and 6 has held as under:-

5. Shri Kazi, the learned Counsel appearing for the

appellants, submitted that as per the principles of

Mohammedan law, appellant No. 1 father Abdul Raheman

being the heir of deceased Mohammed Shafi is entitled to

half of the total compensation and mother and widow to

the extent of 1/4th each. We gave anxious consideration

on this aspect. However, the compensation is being paid

taking into consideration the dependency of the claimants.

We are of the opinion that we are not guided by the

apportionment as provided under the Mohammedan law.

6. Appellant No. I father Abdul Raheman is aged 61

whereas mother of deceased is aged about 43. At the time

of incident, appellant No. 3 Shahnazbanu was hardly aged

about 28. Her dependency is comparatively more than

appellants Nos. 1 and 2, taking into consideration her age.

We, therefore, feel that it would be just and reasonable to

pay half of the amount of compensation to appellant No. 3

and rest of the amount in equal share i.e. 1/4th to each

appellant No. 1 and 2.

This Court in the case of Abdul Rahman (Supra) has

held that the compensation under the M.V. Act is to be

apportioned taking into consideration the dependency of the

widow and the parents as contemplated under the M.V. Act and

not guided by the principles of apportionment as provided by the

Mohammedan Law.

13. In the instance case the Claimant’s are Hindus. Under