Budh Singh vs Vijender Singh And Ors.
2011 Latest Caselaw 3421 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  MAC.APP. NO.326/2010


BUDH SINGH                                        ..... Appellant
                            Through:   Mr. Navneet Goyal, Advocate

                   versus

VIJENDER SINGH AND ORS.                          ..... Respondents
                  Through:             Ms. Neerja Sachdeva,
                                       Advocate.


%                           Date of Decision : July   19, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                            JUDGMENT

: REVA KHETRAPAL, J.

1. By way of this appeal, the appellants seek to assail the

judgment and award of the Motor Accident Claims Tribunal

dated 06.03.2010.

2. The brief facts leading to the filing of the appeal are as

follows:-

On 04.10.2007 the deceased was travelling in tempo no. HR-

69-4806. When the said tempo reached G.T.K. Road, Singhu

Border, the driver of the tempo halted his vehicle behind a

stationary truck at the toll gate. In the meanwhile, a truck

bearing no. HR-38-E-9293 driven by its driver at a very high

speed, in a rash and negligent manner, came from the back side

and hit the stationary tempo. As a result of the forceful impact,

the said tempo got sandwiched between the truck standing

ahead of it and truck no. HR-38-E-9293. The deceased

sustained injuries all over his body to which he succumbed on

10.10.2007. A claim petition claiming compensation of Rs. 20

lakhs alongwith interest at the rate of 18% per annum was filed

by the mother and father of the deceased before the Motor

Accident Claims Tribunal, Rohini, Delhi, against the driver, the

owner and the insurer of the offending vehicle i.e., the truck no.

HR-38-E-9293, being the respondents no. 1, 2 and 3 herein.

3. By an order dated 02.09.2008, the learned Tribunal awarded an

interim compensation of Rs. 50,000/-, that is, Rs. 25,000/- each

to the mother and father of the deceased. The mother of the

deceased died during the pendency of the proceedings and her

name was deleted from the array of parties. By its judgment

and award dated 06.03.2010, the learned Tribunal by adopting

the following process of reasoning held that the aforesaid

amount of Rs. 50,000/- paid to the claimants as interim

compensation, was just and reasonable compensation.

4. The learned Tribunal noted that the mother of the deceased had

expired in July 2008, i.e. after about 9 months from the

accidental death of the deceased. It further noted that in his

testimony PW1, the father of the deceased, had stated that he

was working as a peon with the State Bank of Patiala and was

earning around Rs. 10,000/- per month, and that he had three

sons besides the deceased, all of whom were older to the

deceased. The learned Tribunal, thus, came to a conclusion that

the father of the deceased was not dependent upon the deceased

and was entitled only to compensation for the loss of love and

affection and support from the deceased or at the most towards

the loss of estate of the deceased. The father of deceased was

not entitled to compensation on account of loss of dependency.

The mother of the deceased was entitled to compensation

during her life time for loss of dependency, which was for a

period of nine months only. Accordingly, the interim

compensation granted by the order dated 02.09.2008 to the

extent of Rs. 50,000/-, that is, Rs. 25,000/- to each of the

parents of the deceased, was held to be just and reasonable

compensation.

5. In arriving at the aforesaid conclusion, the Tribunal relied upon

the following observations made by the Supreme Court in the

case of Smt. Sarla Verma & Ors. Vs. Delhi Transport

Corporation & Anr., (2009) 6 SCC 121.

"Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend

more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. 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 family of the bachelor is large and dependant 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 one-third and contribution to the family will be taken as two-third."

6. Aggrieved by the aforesaid award, the appellant who is the

father of the deceased has preferred the present appeal.

7. Mr. Navneet Goyal, the learned counsel for the appellant,

contended that the mother of the deceased was alive at the time

of the accident and the amount of compensation fell due on the

date of the accident when the cause of action accrued. After

the death of the mother, the compensation to which she was

entitled devolved upon her legal representatives. He further

contended that a claim petition does not abate if the mother of

the deceased dies during the pendency of the claim petition,

and the learned Tribunal erred in not considering the loss

suffered by the claimants including the mother of the deceased.

He submitted that the deceased, who was 18 years of age at the

time of his death, was earning a sum of Rs. 6,000/- per month

as a farmer. His earnings were being used for the welfare of the

family, which had suffered economic loss due to his death. It is

also contended by him that the income of the deceased formed

part of the estate of the deceased and his death has resulted in

the loss of estate to all his legal representatives.

8. Another contention raised by the counsel for the appellant is

that the dependency of the legal representatives is not

necessary for the purpose of entitlement to compensation. He

submits that legal representative of the deceased are entitled to

compensation under the Motor Vehicles Act, 1988 even if they

are not dependent upon the income of the deceased or where

the deceased was not employed, as for instance in the case of

minors and school going children. He seeks to support his

contention by arguing that the legislature while drafting Section

166 of the Act has not used the word „dependents‟, but the

expression „legal representatives‟ has been used. The learned

counsel for the appellant points out that even in the case of

Sarla Verma (supra), the claim petition had been filed by the

widow, three minor children, parents and grandfather of the

deceased and in the said case the entire family had been taken

to be dependent upon the deceased, including the father and the

grand-father of the deceased.

9. Ms. Neerja Sachdeva, the learned counsel for the respondent

no. 3, the insurer of the offending vehicle, naturally sought to

support the award, and to rebut the contentions of the learned

counsel for the appellants by contending that just compensation

had been awarded to the appellant and there was no scope for

the enhancement of the same.

10.After hearing the counsel for the parties at some length, I find

merit in the arguments advanced by the counsel for the

Appellant.

11.The expression „legal representatives‟, used in Section 166

(1)(c) of the Motor Vehicles Act, 1988 has not been defined

anywhere in the Act. The Legislature not having given the

definition of expression „legal representatives‟ in the Motor

Vehicles Act, the definition of the expression „legal

representatives‟ as given in Section 2 (11) of the Civil

Procedure Code, 1908 must be resorted to. According to

Section 2(11) of the Civil Procedure Code, the expression

„legal representative‟ means a person who in law represents the

estate of a deceased 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. According to sub-section (1) of Section 166 where death

has resulted from the accident, an application for compensation

may be made by all or any of the representatives of the

deceased {clause (c)} or by any agent duly authorized by all or

any of the legal representatives of the deceased {clause (d)}.

The proviso is significant, inasmuch as it provides 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. In the circumstances, if the brothers and sisters

of the deceased can be held to be within the purview of the

definition of the "legal representatives" as given in Section

2(11) of the Civil Procedure Code qua the deceased involved in

the accident, such brothers and sisters will be entitled to claim

compensation, and if found entitled to the same to receive the

compensation. Thus, all heirs and legal representatives of a

victim are entitled to maintain an application under Section 166

of the Act, irrespective of the fact whether or not they are

financially dependant upon the victim.

12.The Supreme Court in Smt. Manjuri Bera Vs. The Oriental

Insurance Company Ltd. And Anr. AIR 2007 SC 1474 has

held as under:-

"9. According to Section 2(11) of CPC, 'legal representative' means a person who in law represents the estate of a deceased 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)."

10. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, [1989] 2 SCR 810 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] 3 SCR 404 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."

13.In view of the aforesaid legal position, the inescapable

conclusion is that the learned Tribunal has not assessed the

amount of compensation payable to the appellants by following

the correct legal principles. The mother of the deceased was

alive at the time of the death of the deceased and the amount of

compensation, most certainly, fell due on the date of the

accident. She died nine months after the demise of the

deceased and her share of the compensation, had it been

awarded by the Claims Tribunal before her death, would have

obviously devolved upon her legal representatives viz., her

husband and her children. The learned Tribunal did not at all

consider this aspect of the matter. Even otherwise, as discussed

above, the dependency of the legal representatives is not a sine

qua non for the purpose of entitlement of the claimants to

compensation, that is to say, even if the claimants are found not

to be dependant upon the income of the deceased, they are

entitled to the loss to the estate of the deceased as a result of his

death. Such loss to the estate of the deceased would have to be

ascertained keeping in view the income of the deceased and the

amount the deceased would have spent on himself and the

savings of the deceased which would then have to be quantified

by the use of an appropriate multiplier with reference to the age

of the claimants.

14.In the instant case, the claim petition has been presented by the

mother and the father of the deceased. The quantum of

compensation must, therefore, be ascertained on the basis of

the fact that the mother of the deceased was alive on the date of

the accident, and the right to sue for compensation accrued on

said date. Had the Tribunal decided the claim petition

instituted by her during her lifetime, in the event of her

death, the entire amount would have devolved upon her legal

representatives. Merely because she died during the pendency

of the claim petition, by no stretch can be construed to mean

that her claim abated.

15.In view of the aforesaid, the matter is remanded back to the

learned Tribunal for determining the compensation payable to

the appellant in accordance with law. Parties shall appear

before the learned Tribunal on 01.08.2011.

16.Records be sent back to the Tribunal forthwith.

REVA KHETRAPAL (JUDGE) July 19, 2011 sk