Allahabad High Court
New India Assurance Co Ltd vs Ram Swaroop Sahu And Othrs on 25 May, 2017
Bench: Attau Rahman Masoodi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Reserved
Court No. - 18
1. Case :- FIRST APPEAL FROM ORDER No. - 249 of 1993
(Arising out of MACT No. 109 of 1992)
Appellant :- New India Assurance Co Ltd
Respondent :- Ram Swaroop Sahu And Othrs
Counsel for Appellant :- M.S.Kotwal,Herpal S. Chadha,Inderprret S. Chadha
Counsel for Respondent :- H.O.Singh,B.C.Agrawal,G.P.Gupta
2. Case :- FIRST APPEAL FROM ORDER No. - 250 of 1993
(Arising out of MACT No. 148 of 1992)
Appellant :- New India Assuranvce Co. Ltd.
Respondent :- Ram Swarup Sahu & Others
Counsel for Appellant :- M.S.Kotwal,Herpal S. Chadha,Inderpreet S. Chadha
Counsel for Respondent :- H.O.Singh
3. Case :- FIRST APPEAL FROM ORDER No. - 254 of 1993
(Arising out of MACT No. 92 of 1992)
Appellant :- New India Assurance Co Ltd
Respondent :- Ram Swaroop Sahu And Others
Counsel for Appellant :- M.S.Kotwal,Herpal S. Chadha,Inderprret S. Chadha
Counsel for Respondent :- H.O.Singh
4. Case :- FIRST APPEAL FROM ORDER No. - 255 of 1993
(Arising out of MACT No. 91 of 1992)
Appellant :- New India Assurance Co Ltd
Respondent :- Ram Swaroop Sahu And Others
Counsel for Appellant :- M.S.Kotwal,Herpal S. Chadha,Inderprret Chada
Counsel for Respondent :- H.O.Singh
5. Case :- FIRST APPEAL FROM ORDER No. - 256 of 1993
(Arising out of MACT No. 93 of 1992)
Appellant :- The New India Assurance Co Ltd
Respondent :- R.S.Sahu And Others
Counsel for Appellant :- M.S.Kotwal,Herpal S. Chadha,Inderprret S. Chadha
Counsel for Respondent :- H.O.Singh
6. Case :- FIRST APPEAL FROM ORDER No. - 269 of 1993
(Arising out of MACT No. 93 of 1992)
Appellant :- The Oriental Insurence Co Ltd.
Respondent :- Ram Swarop & Others
Counsel for Appellant :- B.C.Agarwal
Counsel for Respondent :- M.S.Kotwal,Hari Om Singh
7. Case :- FIRST APPEAL FROM ORDER No. - 270 of 1993
(Arising out of MACT No. 92 of 1992)
Appellant :- The Oriental Insurence Co Ltd.
Respondent :- Ram Swarop & Others
Counsel for Appellant :- B.C.Agarwal
Counsel for Respondent :- M.S.Kotwal,Hari Om Singh
8. Case :- FIRST APPEAL FROM ORDER No. - 271 of 1993
(Arising out of MACT No. 91 of 1992)
Appellant :- The Oriental Insurance Co Ltd
Respondent :- Ram Swaroop Sahu And Others
Counsel for Appellant :- B.C.Arawal,Suresh Panjwani
Counsel for Respondent :- M.S.Kotwal,H O Singh
AND
9. Case :- FIRST APPEAL FROM ORDER No. - 272 of 1993
(Arising out of MACT No. 148 of 1992)
Appellant :- The Oriental Insurance Co Ltd
Respondent :- Ram Swaroop Sahu And Others
Counsel for Appellant :- B.C.Arawal
Counsel for Respondent :- M.S.Kotwal,H.O.Singh,Shiv Pravesh Dhar Dubey
Hon'ble Attau Rahman Masoodi,J.
Heard Shri B.C. Agarwal learned counsel for the appellant i.e. Oriental Insurance Company. Shri M.S. Kotwal learned counsel for New India Insurance Company has passed away, thus on the principle of law, arguments were advanced by Shri B.C. Agarwal, learned counsel. Learned counsel for opposite parties were also heard.
This bunch of appeals filed under Section 173 of Motor Vehicles Act has arisen from the judgment/award rendered by the tribunal in five separate claims filed by one Ram Swaroop Sahu who filed five separate claim petitions(numbered as MACT Nos. 91, 92, 93, 109 and 148 of 1992) claiming compensation exclusively on the accidental death of his elder brother, brother's wife and their three minor children on 10/11.02.1992 while the parents were alive.
Two more claims filed by some other claimants arising out of the same accident on being decided by the tribunal gave rise to four other appeals i.e. F.A.F.O. Nos. 266 of 1993, 253 of 1993, 274 of 1993 and 248 of 1993 but the same were compromised and decided accordingly.
The family members who died in the present bunch of appeals include one Bhola Prasad Sahu aged about 32 years, his wife Smt. Rajrani and three minor children; Km. Varsha aged about 5 years, Km. Mamta aged about 3 years and Master Pankaj aged about 8 months. The legal heirs left behind by the deceased family members were the parents of Bhola Prasad Sahu. Ram Swaroop Sahu being the younger brother claimed himself to be a dependent. Five claims were separately instituted before the motor accidents claims tribunal at Sitapur, wherein, the younger brother(Ram Swaroop Sahu) claimed himself to be the sole dependent for payment of compensation.
It appears that an objection was raised against the exclusive entitlement of compensation as claimed by Ram Swaroop Sahu, thus the parents came to be impleaded as defendants in claim petition no. 109 of 1992. The tribunal thereafter proceeded with the adjudication of claim petitions. It is relevant to note that the defendant nos. 5 and 6(parents) in paragraph 15 and 16 of the written statement filed in the claim petition relating to the death of Bhola Prasad Sahu stated as under :-
15. That the deceased was the first son of the respondents. The respondent no. 5 is a real mother of the deceased and the respondent no. 6 is the father of the deceased. Being the heirs, legal representatives and dependent of the deceased, the respondents are entitled to get the amount of compensation.
16. That the deceased was living separately at Haldwani and was carrying on his independent business their. The claimants being real younger brother was also living with the deceased since his childhoodness and the claimant remained in actual care and custody of the deceased. The claimant was actually dependent on the deceased.
It is clear from the above averments that the parents of deceased (Bhola Prasad Sahu) and grand parents of the minor children have duly claimed compensation but at the same time they have also pointed out that Ram Sawaroop Sahu was also residing along with the deceased Bhola Prasad Sahu as a family member.
There is no admission that Ram Swaroop Sahu was the sole dependent upon his deceased elder brother Bhola Prasad Sahu. This Court would note that after filing of the written statement before the tribunal, the parents did not appear before the tribunal in evidence. The parents never relinquished their claim in favour of Ram Swaroop Sahu who from the very inception of proceedings had claimed himself to be the sole claimant in the claim petitions.
The learned tribunal having regard to the evidence on record adjudicated upon the respective claims and separately quantified the amount of compensation at Rs. 3,28000/- in the case of death of Bhola Prasad Sahu, out of which, an amount of Rs. 30,000/ was allowed in favour of the mother and father each whereas an amount of Rs. 2,68,000/- was awarded in favour of the younger brother who had instituted the claim petition mentioning himself to be the sole dependent. In the claim petition arising out of death of Rajrani, a total amount of Rs. 1.6 lacs was exclusively allowed in favour of Ram Swaroop Sahu. Insofar as the minor children are concerned, the learned tribunal in each of the claims arising from the death of three minor children has awarded Rs. 30,000/- in each claim exclusively in favour of Ram Swaroop Sahu being the uncle of deceased children.
Thus, all the five claims were allowed at a point of time when first/second category legal heirs of all the five deceased members were alive and had set up their claim. The claim petitions were allowed merely on the basis of an admission of Smt. Sundari Devi and Shri Satya Narain Sahu(parents) that the claimant was residing with the deceased Bhola Prasad Sahu. Although as per Section 15(1)(b) of Hindu Succession Act, 1956, the Succession even in the case of a female Hindu dying intestate would devolve upon the heirs of the husband provided there is no other legal heir of the category prescribed under clause (a) of Section 15(1), yet the claim was allowed in favour of the husband's brother.
In the present case, Smt. Sundari Devi being the mother of Bhola Prasad Sahu, mother-in-law of Smt. Rajrani and grand mother of the minor children was the legal heir of first category as per the provisions of Hindu Succession Act, 1956.
The claimant Ram Swaroop Sahu upon whom the succession has not opened and would not open so long as his mother Smt. Sundari Devi is alive, thus in the case at hand he could not claim exclusive right on the premise of being a legal representative.
It is to be noted that proceedings before the tribunal were not instituted for the award of compensation to the legal heirs but for the own benefit of claimant on the ground of dependence. The question that crops up is as to whether a person upon whom the rights of estate do not devolve as per the provisions of Hindu Succession Act 1956, can such a person bring about an exclusive claim under Section 166(1) of the M.V. Act for award of compensation. A further question would arise as to whether the claimant Ram Swaroop Sahu(younger brother) on the basis of being a dependent would at all be entitled to claim compensation once the first category legal heirs are alive till date.
In the case of death of a person in motor accident, claim for the benefit of family members upon whom the succession opens as a legal heir or dependent, the courts of law have to bear in mind very clearly the object of welfare legislation. A legal heir who is a dependent family member in normal course is the person recognized under law within the scope of Section 166(1) or 163-A of the Act. A mere dependent while the legal heirs bonded in a family are alive, cannot institute proceedings on the sole ground of dependence to the exclusion of legal rights of the legal heirs as is the case at hand. To be a legal heir under the succession laws and thus legal representative is one thing to say but it is all together different when a person is not a legal heir nevertheless he claims to be legal representative on the ground of dependence. Suffice it to say that succession of claim opens under the succession laws to the immediate legal heirs in the family but to prove a case solely on the ground of dependence, it would firstly not oust the claim of legal heirs defined under succession laws and secondly the sole dependence has no legal sanctity under the Motor Vehicles Act, 1988..
In the present case, the tribunal has merely relied upon the written statement of defendants no. 5 and 6(parents) who were not produced in evidence. Moreover, the parents of the deceased Bhola Prasad Sahu had not given up their claim altogether leaving any scope for the claimant's exclusive right to be agitated on the ground of dependence. The fact of dependence was also not proved on the basis of evidence in any of the claim petitions and the tribunal has not recorded any finding as to how the uncle aged about 25 years would be a dependent upon the minor children and wife of his elder brother. These aspects of the matter were not established before the tribunal at all nor there is any indication in the pleadings on the basis of which right of receiving compensation by Ram Swaroop Sahu can be derived solely on the basis of dependence contrary to the succession laws in place.
It is true that right to receive compensation is a collective right of legal heirs who are dependents as family members but in the present case, the plea of dependence even if assumed to be admitted in the written statement was not proved nor the case set up by the claimant before the tribunal was representative in nature. The proceedings on the basis of exclusive rights could not be instituted at all but a joint claim on the strength of dependence, if any, was nevertheless bound to be proved and for this purpose, reliance placed upon the written statement of defendant nos. 5 and 6 is legally erroneous. The factual statements in the written statement unless the claim was relinquished could not be construed against the legal heirs themselves without they being asked to appear in evidence. The claims had to be established on the strength of the own case put up by the claimant which the impugned judgment/award rendered by the tribunal does not fortify legally on the strength of law and evidence available on record.
Thus, in so far as the claim of Ram Swaroop Sahu is concerned, the same not being maintainable in the eye of law could not be entertained in the capacity of an exclusive claimant and so far as his dependence is concerned, the same was also not proved on the basis of evidence, hence all the claim petitions fail on his behalf. So far as the claim of Sundari Devi and Satya Narain Sahu is concerned, compensation to the tune of Rs. 50,000/- under Section 140 of the MV Act arising out of the death of each of the five members became admissible under law as on the date of their death. A sum of Rs. 1 lakh is additionally allowed towards love and affection and Rs. 50,000/- towards other expenses. A total sum of Rs. 4 lacs along with 6% simple interest is thus allowed in favour of the defendants-claimants no. 5 and 6(parents) and the impugned award is thus modified accordingly.
The appeals are thus allowed in part and the impugned award is modified. The award shall be implemented by the tribunal as per the observations and quantification made herein-above. Statutory amount deposited before this Court be remitted to the tribunal for necessary adjustment.
Original record may be sent back forthwith.
No order as to cost.
Order Date :- 25.5.2017
kanhaiya
