Director, Civil Aviation Thru ... vs Kallu & 2 Ors.
2017 Latest Caselaw 319 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Court No. - 18
 
Case :- FIRST APPEAL FROM ORDER No. - 509 of 2005
 
Appellant :- Director, Civil Aviation Thru Director Lucknow Airport
 
Respondent :- Kallu & 2 Ors.
 
Counsel for Appellant :- Standing Counsel
 
Counsel for Respondent :- Atul Srivastava,Mayank Agarwal,Nand Kishore Agarwal
 
Hon'ble Attau Rahman Masoodi,J.

Heard learned counsel for the appellant and Sri Nand Kishore Agarwal, learned counsel who has put in appearance on behalf of respondents no. 2/1 and 3.

This appeal filed under Section 173 of Motor Vehicles Act, 1988 has questioned the correctness of judgement/award rendered by Motor Accident Claims Tribunal, Lucknow in MACT No.37 of 2002 on 31.03.2005 whereby a compensation of Rs.4,12,500/-alongwith 9% interest has been awarded in favour of the claimants.

The appeal filed by the State Government, apart from challenging the quantum, has also questioned the very entitlement of claim laid by the legal representatives of Late Nankey who died in a motor accident. It is further urged by the appellant that though the period of limitation is not prescribed under the Act but a belated claim ought not to have been entertained by the Tribunal in a situation where the parents of the deceased delayed the institution of claim so as to make the widow of deceased suffer and her participation in the case belatedly filed was later on objected.

Insofar as the objection as to the entitlement of claim for compensation is concerned, reference may be made to Section 166 (1) of Motor Vehicles Act which is reproduced hereunder:-

"166. Application for compensation-(1) An application for compensation arising out of an accident of the nature specified in sub-section (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 representative 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."

It is to be noted that legal representatives of a deceased are entitled to join together for laying a claim under Section 166 of of the Motor Vehicles Act, 1988. Even if all the legal representatives have not joined as applicants, it is open to any party in the proceeding to make an application to join an unrepresented legal representative as a respondent to the proceedings. Section-163A of the Act unlike Section-166 has used the term ''legal-heirs'. The question as regards entitlement to claim compensation invariably arises before this Court looking to the language used in the statute.

The term legal representative is not defined under the Motor Vehicles Act, 1988 however, its implication and meaning as per the proforma prescribed for filing a claim under Clause 7 is restricted to the dependents. The term ''legal representative' for the purposes of award of compensation under Motor Vehicles Act in common parlance is understood to mean the ''dependents of a deceased'. The question is as who is to be construed as the legal representative in a case for payment of compensation under the Motor Vehicles Act in contrast to a legal heir or dependent. This question was delved into by this Court in a recent judgment rendered in F.A.F.O. No. 1088 of 2011( Virendra Kumar Tiwari vs. Union of India) reported in 2017 (3) ADJ 528 but the said judgment pertains to a different Act wherein the statute has used a different language and the dependents are defined.

This Court has taken a view that right to claim compensation is a family right and thus the ''dependence' is a relevant criteria and the claim unlike a heritable right that intermeddles with the estate of a person can be claimed by dependents defined under the Act.

In the instant case, the accident in question took place on 25.07.1996 as a result whereof the deceased Nankey is said to have died and a criminal case was also registered in relation to the occurrence.

The death had taken place on spot and at that time the deceased left behind his wife Smt. Kamla and a four month child. The father and mother of the deceased were also alive besides a minor sister in the family. It is surprising that a claim under Section 166 (1) of Motor Vehicles Act was not instituted by all the dependents of Late Nankey soon after the date of accident, although a criminal case was registered. The police report as per provisions of Section 158 (6) must have been forwarded to the Tribunal but formally the claim came to be instituted on 17.01.2002 i.e. after nearly six years from the date of accident. The claim was instituted by the father of the deceased joining with mother and minor sister as dependents. No other person was mentioned to be the dependent as is evident from para-6 of the claim petition wherein family composition was clearly restricted to father, mother and minor sister.

The record reveals that an objection in para 18 of the written statement filed by the State was taken as regards non-impleadment of widow and minor child of the deceased.

To meet the objection an application for amendment i.e. A-16 was filed by the claimants stating that the widow Smt Kamla had re-married and the child had died, thus, they stated that the widow had ceased to be a necessary party. It was further pleaded by the claimants that the amendment would not change the nature of claim. The application was opposed by the State Government stating that the amendment as prayed without disclosure of the name of the widow who allegedly had re-married and the child who had died, was frivolous.

The amendment was allowed but no order was passed as to whether the widow who had re-married after nearly 5 years of accident would be a necessary party or not. Even an issue to that effect was not framed. The record shows that an application i.e. C-26 was filed by the appellant to summon two witnesses viz Sri Kamta Prasad and Smt Kamla who were the father-in-law and widow of deceased Nankey. The application was allowed and this is how the two witnesses came to be summoned for examination and cross-examined before the Tribunal. The fact that Smt. Kamla was the wife of late Nankey was proved yet the Tribunal did not allow her to be impleaded as a defendant. Application C-31 filed on behalf of Smt Kamla reveals that she had prayed to be allowed to contest the proceeding and had thereafter stated in her examination-in-chief that she has made an application for being a party in the proceedings.

The learned Tribunal while adjudicating upon the claim has ignored not only the application of Smt. Kamla for being allowed to contest the claim but even her examination-in-chief and cross examination was completely lost sight of while deciding the claim in favour of the claimants. The manner in which the claim petition was decided is certainly deplorable.

The question that crops up for consideration before this Court is as to whether a claimant/dependent legally entitled to lay claim for compensation at the time of death of the deceased would become disentitled on having re-married. Secondly, whether due to death of parents during pendency of this appeal, the claim would exclusively devolve upon the surviving son being the legal heir.

It is to be noted that widow of the deceased (Smt Kamla) at the relevant point of time seems to have been prevented from agitating her cause for payment of compensation and the four months female child who is stated to have died, speaks of the painful situation and the position can be gathered to some extent from the representation placed on record. The legal position to receive compensation at the time of death of late Nankey and at this point of time when the widow has re-married has varied and there is a substantial change.

At the time of accidental death of deceased Nankey, the legal heirs who were dependents included the widow viz Smt Kamla, female child and mother as per the Hindu Succession Act to the exclusion of all being Ist category successors but at this stage the decree rendered by the Tribunal being heritable also entitles the surviving son (Ram Sewak) to claim the benefit who has been substituted as respondent no.2/1 after the death of mother Smt Ram Kumari (respondent no.2) and remains the sole claimant on the death of father (respondent no.1) but was not a party at the initial stage as dependant.

The widow Smt Kamla was not impleaded as a party to the proceedings before the Tribunal though her statement was recorded on 15.05.2004 when she had already re-married. It seems that Smt Kamla was not impleaded as a party only because she had re-married but as to whether a female can be deprived of the right to receive compensation admissible under the statute simply on the ground of re-marriage is the real question. The question becomes more important when we look at it from the angle of gender discrimination. On the one hand respondent no.3 who was an unmarried minor sister at the time of accident is legally entitled to claim the benefit of compensation being the sister of deceased even after marriage as well as respondent no.2/1 being the son of claimants respondent no.1 and 2 (now deceased) but on the other hand the wife (Smt Kamla) who has re-married is deprived of the benefit simply not being a party on the basis of re-marriage.

It is to be understood that succession to claim compensation opens on the accidental death of a person and this right is not taken away under the statute on the ground of re-marriage or marriage. The purpose of the statute is to aid all the dependents who are left behind at the time of death which is a socio-economic right by its very nature. The widow being the real dependent would thus not stand ousted even after re-marriage.

This court would note that the question of entitlement to receive compensation by a widow who has remarried has arisen in the peculiar facts of the case. The ground urged by the appellant does call for consideration on this aspect being it a legal question that has emerged in the present appeal.

The date of accident on which right to receive compensation accrues is crucial and a dependent in the normal course ought to be paid compensation within the shortest possible time but for the reasons best known to the parties, proceedings did not commence and the real sufferer (widow) alongwith the four months child remained deprived of immediate financial help which in a state of indigence might have helped the dependents. The position of parents and the minor sister may also not have been any better but until now the entire compensation, despite the award having been rendered on 31.03.2005, remains held up.

The parents died during the pendency of appeal and the only surviving claimant is the sister who at the time of filing claim petition was minor but is now married. The surviving brother who was not a party was substituted on an application being made by the appellant that was allowed on 05.02.2016 consequent upon the death of mother.

At the time of hearing of this appeal, the above position stood unfolded and the plight of the widow ( Smt Kamla) when equated with the dependent minor sister of the deceased who has also married after opening succession can not be treated at variance. Thus, a female who statutorily succeeds a right to receive compensation as widow, sister, daughter or mother being a dependent family member would be treated at par with the widower, brother, son and father if not preferentially and shall not be discriminated against on the ground of re-marriage/marriage unless there is a bar contemplated under the special Act. The right to receive compensation being a socio-economic right is a creation of public law with a definite object of tiding over an indigent situation and is a dimension of Act-21 of the Constitution of India to rescue life by the State in a dignified manner. For an effective enforcement of this right the state must have an instant mechanism of recovery and the Tribunals on the basis of police report submitted under Section 158(6) of the Motor Vehicles Act, 1988 wherever the decisive material is traced for a definite opinion they are duty bound to make prompt recovery after undertaking adjudication in the manner akin to enquiry. The police reports so submitted must include information about the number of vehicles involved, age of the deceased, names of the dependents, the income of deceased and relevant transport and insurance papers so as to enable the tribunal to proceed with the matter promptly against the owner/driver/insurer. This report has to be submitted promptly i.e. within 30 days, truthfully and impartially. The dereliction of duty on the part of Investigating Officers to submit a complete report must be viewed seriously and failure on the part of Investigating Officers to submit complete reports must be checked by proposing appropriate action. Reports of hit and run cases should be submitted promptly so that claimants stand guided to choose the forum. The apex court judgments in the case of Jai Prakash vs. National Insurance Co. Ltd. reported in (2010) 2 SCC 607 and M/s. Purohit and Company vs. Khatoonbee and Anr. reported in 2017 SCC Online SC 188 may be kept in mind which require promptness in the filing of police report and discourage belated claims. The sub-ordinate courts/tribunals are expected to be prompt in dealing with this category of cases so that the object and purpose of law remains focused.

Having regard to the facts and circumstances of the present case, this court is of the considered opinion that Smt Kamla who had moved an application to contest the proceeding i.e. C-31 ought to have been allowed to be a party before deciding the claim and the learned tribunal, having regard to Section-168 of the Motor Vehicles Act, 1988, ought to have proceeded to decide the claim by specifying the persons who were proportionately entitled to receive compensation. Failure to discharge this duty has resulted into miscarriage of justice, hence the impugned judgment passed on the aspect of entitlement of compensation attracts Section 168 of the Act and calls for interference. Reference may also be made to the apex court judgments in the case of Cherotte Sugathan (died through LR's) and Ors. Vs. Cherotte Bharthi and Ors. reported in 2007 IR SCW 1962;(2008) 2 SCC 610

Accordingly, though the court does not find any illegality in the assessment of compensation quantified by the Tribunal which of course was not questioned on any tangible ground but on the aspect of right to receive compensation and proportion thereof, each dependent at the time of accident is held entitled to receive the statutory benefit and for this purpose, the matter is remanded back to the Tribunal by allowing Smt Kamla to be a defendant-claimant in the proceeding. The Tribunal shall issue notice to Smt Kamla through her father Sri Kamta Prasad and thereafter apportion equitably the amount awarded by the Tribunal in favour of the respective persons and this exercise shall be completed not later than a period of six months from the date of receipt of this judgment. The amount so fixed be released accordingly as the same has already been deposited by the appellant before the tribunal. The statutory amount may also be remitted to the tribunal for necessary adjustment. Original record may be sent back.

The Senior Registrar of this Court shall forward a copy of this judgment to all the Tribunals through the respective district judges as well as to the tribunal concerned for necessary compliance.

Resultantly, the F.A.F.O stands partly allowed.

No order as to cost.

Order Date :- 09.05.2017/Shahnaz