Gujarat High Court
Bajaj Allianz General Insurance ... vs Thakor Jayantibhai Piraji on 9 August, 2021
Bench: J.B.Pardiwala
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1792 of 2020
With
R/FIRST APPEAL NO. 2222 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, PUNE
Versus
THAKOR JAYANTIBHAI PIRAJI
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR H M SHAH(3997) for the Defendant(s) No. 1,2
MR PARESH M DARJI(3700) for the Defendant(s) No. 6
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 5
UNSERVED EXPIRED (R)(69) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 09/08/2021
Page 1 of 34
Downloaded on : Sun Jan 16 07:04:20 IST 2022
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. Both the above captioned first appeals under Section 173
read with Section 166 of the Motor Vehicles Act, 1988, arising
out of common judgment and award, are at the instance of the
appellant - original opponent no.6 in First Appeal No.1792 of
2020 and the appellant - original opponent no.3 in the First
Appeal No.2222 of 2020 respectively, and is directed against
the self same judgment and award dated 15.01.2020 passed
by the Motor Accident Claims Tribunal (Main), Gandhinagar in
M.A.C.P. No.151 of 2010 by which the learned Tribunal partly
allowed the claim petition filed by the original claimant
(opponent no.6).
2. The facts giving rise to the present appeal may be
summarized as under:
2.1 The first appeal No.1792 of 2020 is filed by the appellant
- original opponent no.6 (Bajaj Allianz General Insurance Co.
Ltd. - insurance company of the Tavera Car No.GJ-18-AC-7805)
and the first appeal No.2222 of 2020 is filed by the appellant -
original opponent no.3 (ICICI Lombard General Insurance Co.
Ltd. - insurance company of the truck No. GJ-9-P-3278).
2.2 The opponent no.6 (original claimant) herein is the real
sister of the deceased - Rakesh Shantilal Sharma. The claim
petition was filed by the opponent no.6 (original claimant)
being legal representative of the deceased - Rakesh Shantilal
Sharma. Before accident, the deceased was residing with his
sister as she sponsored him and was brought up by her. The
deceased settled in UK with his sister - Minakshi Shantilal i.e.
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
the original claimant. The parents of the deceased died before
the accident. Except the opponent no. 6 - original claimant,
there is no one representing the estate of the deceased.
2.3 On 04.10.2009, at about 5'o clock in the morning, the
deceased was travelling from Dehgam to Ahmedabad in the
Tavera Car, bearing registration No.GJ-18-AC-7805. At the
same time, the truck loaded with wooden log, bearing
registration No.GJ-9-P-3278 was stationary on road. The Tavera
car, in which the deceased was travelling, dashed into the
truck, due to which, the deceased - Rakesh Shantilal Sharma
received fatal injuries and died on the spot.
2.4 A Criminal complaint came to be lodged by the driver of
the truck against the driver of the Tavera car and charge-sheet
came to be filed against the driver of the Tavera car.
2.5 The original claimant, being sister of the deceased -
Rakesh Shantilal Sharma, filed the claim petition before the
MACT (Main), Gandhinagar, claiming an amount of dependency
loss as after completion of education at UK, the deceased was
working as a teacher with South Thames College and the
claimant was dependent on the income of the deceased. It was
further contended that on account of sad demise of the
deceased, the opponent no.6 (original claimant) sufferred
mental shock and agony and lost the love and affection of her
beloved brother. The deceased was earning 2500 pounds per
month and if the accident had not occurred, there were all
chances of increase in income of the deceased in future. The
opponent no.6 (original claimant) claimed the amount of
Rs.2,00,00,000/- towards compensation.
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
2.6 The following issues came to be framed by the Tribunal
at Exh.28 for determination of the claim, which reads thus:
1. Whether it is proved that the deceased died on account of
rash and negligent driving on the part of the driver of the vehicle
involved in the accident?
2. What amount, if any, the claimant is entitled to by way of
compensation and from which of the opponent?
3. What order and award?
2.7 The findings arrived at by the Tribunal on the above
issues reads thus:
1. In the affirmative (60:40)
2. In partly Affirmative, as per final order.
3. As per final order.
2.8 The original opponents nos.1 and 2 being driver and
owner of the truck and the original opponents nos. 4 and 5
being driver and owner of the Tavera car, though served, had
chosen not to appear either in person or through an advocate
to contest the claim petition.
2.9 The original opponent no.6 - Bajaj Alliance General
Insurance Co. Ltd., insurer of the Tavera car, contested the
claim petition by filing the written statement at Exh.28 denying
the averments made in the petition. It was contended that the
driver of the Tavera car did not possess valid driving license at
the time of the accident. It was also contended that the Tavera
car was registered as private car and the deceased was
travelling in the said car as a passenger, which is contrary to
the provisions of Section 2(47) of the Motor Vehicles Act and
therefore, there being clear statutory breach of condition by
the insured, the insurance company could not be held liable for
payment of compensation to the claimant.
2.10 The original opponent no.3 - ICICI Lombard General
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
Insurance Co. Ltd., insurer of the truck, also contested the
claim petition by filing the written statement at Exh.30 denying
the averments made in the petition. It was contended that the
original claimant (opponent no.6) being sister of the deceased,
was not entitled to get the amount of dependency loss as she
could only be legal heir and not dependent on the income of
the deceased. Thus, the Insurance company denied the
entitlement of the original claimant for getting the amount of
compensation.
2.11 The Tribunal, while deciding the issue no.1, held the
driver of the truck No.GJ-9-P-3278 negligent to the extent of
60% whereas the driver of the Tavera car negligent to the
extent of 40% for causing the accident and answered the issue
no.1 in the affirmative.
2.12 The Tribunal, while deciding the issue no.2, held that the
deceased was a bachelor and left behind no heir/legal
representative in class - I to represent his estate. The parents
of the deceased died before the accident. The only surviving
heir of the deceased is the applicant - original claimant. The
UK Family Court has declared the opponent no.6- original
claimant namely Minakshi Shantilal as his heir for properties
and issued a letter of administration in respect of properties
owned by the deceased. The copy of the said order was
produced at Exh.50.
2.13 Considering the definition of the term "legal
representative" and the law settled in the case of Gujarat
State Road Transport Corporation vs. Ramanbhai Prabhatbhai,
1987 ACJ 561 SC, the Tribunal held that the applicant - original
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claimant being dependant of the deceased and only surviving
heir is entitled to receive the amount of dependency loss. After
considering all the contentions raised by both the parties and
after framing issues for determination of the claim, the
Tribunal passed the following order:
"ORDER
1. The present claim petition is hereby partly allowed.
2. The opponents are held, jointly and severally, liable to pay
the compensation award of Rs.85,07,040/- (Rupees Eighty Five
Lakh Seven Thousand and Forty Only) to the applicant with
proportionate cost and with interest thereon @8% per annum from
the date of application till realization of the amount, along with cost
of litigation.
3. It is specifically ordered that after depositing the amount,
disbursement order will be passed.
4. Award to be drawn accordingly."
2.14 Being aggrieved and dissatisfied with the aforesaid
judgment and award passed by the MACT (Main), Gandhinagar,
dated 15.01.2020, the appellants - Insurance companies,
being original opponent no.6 and original opponent no.3
respectively, are here before this Court with the captioned first
appeals.
3. We have heard Mr. Vibhuti Nanavati, the learned counsel
appearing for the appellant - Bajaj Allianz General Insurance
Company Ltd. in First Appeal No.1792 of 2020, Ms. Kirti S.
Pathak, the learned counsel appearing for the appellant - ICICI
Lombard General Insurance Co. Ltd. in First Appeal No.2222 of
2020 and Mr. Paresh Darji, the learned counsel appearing for
the opponent no.6 - original claimant in both the captioned
first appeals.
Submissions on behalf of appellant - Bajaj Allianz
General Insurance Company in First Appeal No.1792 of
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
4. Mr. Vibhuti Nanavati, the learned counsel appearing for
the appellant submitted that while deciding the issue no.1 as
regards the negligence of the opponent no.4 i.e. the driver of
the Tavera car, bearing registration No.GJ-18-AC-7805 the
Tribunal ought to have appreciated that the truck bearing
registration No. GJ-9-P-3278 was stationary on the road on
04.10.2009 at about 5:00 a.m. in the morning. The provisions
of Section 126 and 127 of the Motor Vehicles Act, 1988 read
with Regulation 15 of the Rules of Road Regulations, 1989
were not followed and complied with by the driver of the truck.
Mr. Nanavati, also submitted that the Tribunal failed to taken
into consideration the traffic conditions at the time of the
accident as the drivers coming from behind a vehicle would be
unable to visualize or understand that a vehicle was stationary
on the road.
4.1 Mr. Nanavati, further submitted that the finding recorded
by the Tribunal is contrary to the panchnama drawn of the
place of the accident (Exh.41). The Tribunal committed an
error in holding the driver of the Tavera car negligent to the
extent of 40% though there is no clear finding on the record.
Mr. Nanavati, also submitted that the Tribunal ought to have
held that the opponent no.1 i.e. the driver of the truck, was
solely responsible in causing the accident. Mr. Nanavati,
submitted that the Tribunal erred in considering and awarding
loss of dependency benefits to the claimant who, according to
her own evidence, stated that she is a married woman having
4 children who are also married and she was permanently
residing with her husband, aged about 49 years and her
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
deceased brother, aged about 25 years at the time of the
accident. Mr. Nanavati, submitted that the original claimant
having a legal right to file claim petition in the capacity of legal
representative of the deceased filed the claim petition
however, the Tribunal erred in coming to the conclusion that
she was dependent on the income of the deceased and,
therefore, was entitled to the loss of dependency benefits. Mr.
Nanavati, submitted that the original claimant was not entitled
to the compensation as awarded by the Tribunal in the
capacity of dependent.
4.2 Mr. Nanavati, further submitted that in the absence of
the Income tax returns of the deceased on record, the Tribunal
erred in relying on the salary slips of the deceased. Mr.
Nanavati, submitted that even if the salary as shown in the
salary slip was credited in the bank account as per the bank
statement of the deceased, the Tribunal ought not to have
assumed that the amount credited in the bank account of the
deceased was the salary of the deceased earned serving as a
teacher with the South Thames College. Mr. Nanavati,
submitted that the Tribunal ought to have appreciated that
mere issuance of certificate of administration of the assets of
the deceased would not ipso facto mean that the claimant was
dependent on the income of the deceased.
4.3 Mr. Nanavati, submitted that the Tribunal erred while
adopting the multiplier of 11 years as the claimant would not
be entitled for the loss of dependency or otherwise. Mr.
Nanavati, further submitted that the award of Rs.85,07,040/-
with interest @ 8% p.a. passed by the Tribunal in favour of the
original claimant is contrary to the facts and evidence on
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
record and therefore, the same is required to be quashed and
set aside.
Submissions on behalf of the appellant - ICICI Lombard
General Insurance Co. Ltd. in First Appeal No.2222 of
5. Ms. Kirti Pathak, the learned counsel appearing for the
appellant submitted that the driver of the Tavera car, bearing
registration No.GJ-18-AC-7805 could be said to be solely
responsible for the accident. If the driver of the Tavera car
would have driven his vehicle safely, no accident would have
occurred. Ms. Pathak, submitted that despite the indicators
kept on the stationary truck, bearing registration No.GJ-9-P-
3278 the driver of the Tavera car completely ignored the
indicators, drove his car negligently and banged into the
stationary truck, insured with the appellant. Ms. Pathak, also
submitted that even as per the deposition given by the driver
of the truck, the branches of tree, stone and indicators were
"kept on" while the truck was stationary. Ms. Pathak,
submitted that it is a case of "No Liability" qua the appellant -
ICICI Lombard General Insurance Company since the driver of
the Tavera car is solely negligent in causing the accident.
5.1 Ms. Pathak, submitted that the FIR was lodged by the
driver of the truck, bearing registration No. GJ-9-P-3278 and
there is no cross FIR by the driver of the Tavera car, bearing
registration No. GJ-18-AC-7805. Ms. Pathak, also submitted
that the chargesheet also came to be filed against the driver of
the Tavera car.
5.2 Ms. Pathak, further submitted that there are no clear
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findings recorded by the Tribunal as to why the deposition of
the truck driver was not relevant. Ms. Pathak, also submitted
that the Tribunal ought to have appreciated that the driver of
the stationary truck was the sole eye witness of the accident,
who was examined vide Exh.69 and therefore, there is no
reason to disbelieve the version of the truck driver especially
when the offending vehicle driver remained unexamined.
5.3 Ms. Pathak, submitted that the Tribunal failed to consider
that the claimant has not produced any substantial evidence
i.e. service book, appointment letter, income tax returns,
terms and conditions of employment etc. Ms. Pathak, further
submitted that the deceased was serving as "visiting faculty"
and therefore, the salary of the deceased ought to have been
considered as per what a normal visiting faculty at the Indian
University would earn in the year 2009.
5.4 Ms. Pathak, submitted that the Tribunal ought to have
considered that the claimant being "claimant sister" who had
sponsored him should not have been considered as
"dependent" on the income of the deceased and therefore, she
is not entitled to the dependency benefits. Ms. Pathak, further
submitted that while passing the award, the Tribunal ought to
have considered the interest rate @ 6% p.a. as per prevailing
bank rates.
5.5 Ms. Pathak, submitted that as per the award of the
Tribunal and as per the order passed by this Court on
06.11.2020, the appellant - ICICI Lombard General Insurance
Co. Ltd. has deposited an amount of Rs.95,04,515/- with
proportionate costs and interest with the Tribunal till the date
when the stay order was passed.
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
5.6 Ms. Pathak, further submitted that this Court may partly
allowed the appeal only to the extent of quantum and declare
that the original claimant be entitled to the compensation
whatsoever from the insurance company of Tavera car i.e. the
Bajaj Allianz General Insurance Co. Ltd.
Submissions on behalf of the original claimant in the
captioned two first appeals
6. Mr. Paresh Darji, the learned counsel appearing for the
original claimant - Minakshi Shantilal Sharma submitted that
the Tribunal after considering the oral as well as the
documentary evidence on record has rightly held the driver of
the truck negligent to the extent of 60% and driver of the
Tavera car to the exent of 40%. The findings recorded by the
Tribunal is in consonance with the evidence on record and
therefore, the issue no.1 decided by the Tribunal is just and
proper.
6.1 Mr. Darji, also submitted that the claimant being legal
representative of the deceased has a right to apply for
compensation even when she is married. Mr. Darji, submitted
that it would be the bounden duty of the Tribunal to consider
the application irrespective of the fact whether the concerned
legal representative was fully dependent on the deceased and
not to limit the claim towards conventional heads only. Mr.
Darji, further submitted that the Tribunal has rightly
considered the loss of dependency in favour of the claimant
because the only legal surviving representative is the claimant
- sister, who represent the estate of the deceased.
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
6.2 Mr. Darji, submitted that so far as the calculation of
quantum is concerned, the Tribunal has rightly considered the
calculation based upon the pay slips and conversant rate which
is just and proper. Mr. Darji, further submitted that the award
passed by the Tribunal is just and proper and therefore, this
Court may not entertain the appeals filed by the respective
insurance companies.
7. Heard Mr. Vibhuti Nanavati, the learned counsel
appearing for the appellant - Bajaj Allianz General Insurance
Company, Ms. Kirti Pathak, the learned counsel appearing for
the appellant - ICICI Lombard General Insurance Co. Ltd., and
Mr. Paresh Darji, the learned counsel appearing for the original
claimant.
Analysis:-
Negligence :-
8. Whether the Tribunal committed an error in holding the
driver of the truck negligent to the extent of 60% and driver of
the Tavera car negligent to the extent of 40% while granting
the compensation to the claimant? Second, whether the
opponent no.6 - original claimant being real sister and legal
representative of the deceased is entitled to the compensation
from the appellant - insurance companies?
8.1 The panchnama of the place of the accident (Exh.41)
reads thus: (true translation).
"PANCHNAMA
(1) Jayeshbhai Shankarbhai Sharma
Age about - 32 years, Occupation - Driving,
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
R/o - Dahegam Railway Station Road,
Nathabhai Lallubhai Ni Chali,
Taluka - Dahegam.
(2) Vikramsinh Somaji Thakor
Age about - 30 years, Occupation - Agricultural Work,
R/o - Dahegam, Ramji Na Chhapra,
Taluka - Dahegam, Dist. - Gandhinagar.
We, the above mentioned pancha appeared today at
Dahegam - Naroda road, opposite to Essar Petrol Pump, situated
near Pardhol Village on being called by you - Dabhoda Police.
You, the police gave us understanding about the facts
of the complaint filed by complainant Jayantibhai Piraji Thakor, R/o -
Naroda Bethak, Mafatnagar Na Chhapra, Ahmedabad for the offence
being I CR No.198 of 2009 registered at Dabhoda Police Station
under sections - 279, 304-A of IPC and sections - 177, 183, 184 of
(illegible) and that, a panchnama of scene of offence is to be drawn
and asked us to appear as a pancha, to which, we showed
willingness and appeared as pancha. Upon examining, we dictate
that, the complainant is present here and showing the scene of
offence. The scene of offence is located at Dahegam Naroda Road,
near Pardhol Village, on the road 50 metre away in the west of Essar
Petrol Pump. There are marks of glass and oil of different size on the
southern edge of the road and a metallic silver Tavera car is
standing there. Its registration number written on the rear side is GJ-
18-AC-7805. The front of the car is facing the west. A truck loaded
with woods is standing ahead of the car. The front part of Tavera car
is completely broken. Its main wind-shield, bonnet and the upper
hood are broken. The door of passenger side of the car is broken.
There are blood and pieces of glass on the front seat of passenger
side of the car. The Tavera car has collided with the rear part of the
mini-truck. Therefore, it appears to us that a damage of
Rs.100000.00 has been caused. The registration number of the mini
truck standing ahead of the Tavera car is GJ-9-V-3278. The mini
truck is a green coloured Tata 709 model. It is loaded with fuel
wood. The backside part of driver side of the truck has been
compressed. The truck is facing direction of Naroda, i.e. west
direction. Jay Mataji and Payal, Vijay have been written on the front
part of the cabin. It appears to us that a damage of Rs.10,000/- has
been caused to the truck. The truck and the Tavera car are standing
at a side on Dahegam to Naroda road facing west direction. The
accident is caused by collision of the Tavera car with rear part of the
mini truck. The Tavera car having registration No. GJ-18-AC-7805,
considering its value Rs.2,00,000/- in accidental condition has been
seized for investigation. The road at the scene of offence is about 22
feet wide in the direction of east to west.The west direction leads to
Naroda and the east direction leads to Dahegam. There is Essar
Petrol Pump 50 metre in the north of the road in east direction.
There are makeshift boundary and wire fencing next to the road in
the east direction. There is a paddy field next to the road near the
boundary and wire fencing in the south direction. Apart from the
Tavera car, no other article is seized from the scene of offence.
Thus, we - the pancha read and examined the panchnama
and finding it true and correct and as dictated by us, we put our
signatures below.
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
Date:04/10/2009
16:30 hours to 17:00 hours
Before me,
Sd/- (Illegible)
Police Sub
Inspector
Dabhoda Police
Station
Sd/- (Illegible), Sharma Jayeshbhai Shankarbhai
Sd/- (Illegible), Vikram Somaji Thakor"
8.2 Referring to the above panchmama, the learned counsel
appearing for the respective appellant - insurance company
submitted that the findings recorded by the Tribunal with
regard to the panchmama of the place of the accident
(Exh.41) is contrary to the facts of the case. Both the learned
counsel appearing for the respective appellant - insurance
company have alleged against each other attributing the 100%
negligence to the other insurance company and submitted
that the respective insurance company be exonerated from the
entire liability i.e. 60% and 40% respectively.
8.3 The Tribunal has considered the factual aspects of the
place of the accident and position of both the vehicles and held
drivers of both the vehicles i.e. the truck and the Tavera car
negligent in causing the alleged accident. The driver of the
stationary truck had left the place for nature's call without
taking necessary precautions like putting branches and bushes
of trees. No indicators or necessary obstructions were put up
by the driver. Even no handmade flag was put to show that the
truck was stationary and therefore, it is difficult for the driver
of the other vehicle to notice the parked vehicle even in
headlight as the road was highway and there was no traffic.
The act of the driver parking the truck without any indicators
or obstructions is a negligent act and in violation of rules and
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regulations as contemplated under the Motor Vehicles Act. If
the stationary truck would not have been parked with wooden
logs, the accident might not have been occurred. Therefore,
the act of the driver of the stationary truck appears to be more
serious as compared to driver of the Tavera car.
8.4 On the other hand, at the time of the accident, the
headlights of the Tavera car were ON. The driver of the Tavera
car could not see the stationary truck through headlights and
unable to avoid the accident by slicing down the speed of his
vehicle which also appears to be negligent on his part.
8.5 In view of the aforesaid discussion, we are in agreement
with the findings recorded by the Tribunal qua negligence. We
see no good reason to interfere with the findings recorded by
the Tribunal while deciding the issue of negligence. We are of
the view that the Tribunal has rightly held the liability issue
qua the driver of the truck negligent to the extent of 60% and
driver of the Tavera car negligent to the extent of 40% in
causing the accident. Accordingly, we confirm the findings
recorded by the Tribunal attributing 60% negligence to the
driver of the truck and 40% negligecy to the driver of the
Tavera car.
Quantum:-
9. The learned counsel appearing for the respective
insurance company vehemently submitted that the original
claimant being elder sister of the deceased bachelor was not
dependent on him. It was further contended that even if the
claim petition at the instance of the sister being legal heirs of
the deceased was to be held maintainable, she can be entitled
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to fixed amount under the head of loss of estate i.e. non
pecuniary fixed amount. It was also contended that the
Tribunal erred in awarding compensation to the opponent no.6
- original claimant even though, she was not dependent on the
deceased. It was contended that the Tribunal committed an
error in accepting the contention of the opponent no.6- original
claimant and awarding quantified amount of compensation
towards loss of estate i.e. pecuniary and non-pecuniary both.
9.1 The issue of entitlement of compensation by the legal
representative other than provided in Section 1 of the Fatal
Accidents Act, 1885, i.e. nephews of the deceased under the
Motor Vehicles Act came up before the Division Bench of this
Hon'ble Court in case of Megjibhai Khimji Vira Vs.
Chaturbhai Talijabhai, reported in 1977 SCC Online Guj.3,
wherein it was held that the nephews would be entitled to
claim compensation as they would be legal representatives of
the deceased and covered under Section 110 A of the Motor
Vehicles Act, 1939. Paragraphs 12 to 15 reads thus:
"12. We have noticed earlier that Section 1A of the1855 Act provides
that the quantum of damages shall be proportioned to the loss resulting
from the death to the dependants. The limits of the court's discretion in
fixing the amount of damages in such cases have been clearly demarcated
by the Legislature by the use of the words "the court may give such
damages as it may think proportionate to the loss resulting from such
death to the parties". On the other hand, S. 110-B of the 1939 Act
provides that the Claims Tribunal shall make an award "determining the
amount of compensation which appears to it to be just". By this provision
the concept of "just compensation" has been introduced. Under the third
paragraph of S. 1A of the1855 Act, the compensation to be awarded must
be proportioned to the loss resulting from the death to the parties for
whom and for whose benefit the action is commenced, whereas, under S.
110-B of the1939 Act, the legal representatives of the deceased victim of
a fatal,, accident caused by a motor vehicle are entitled to "just
compensation". The words of limitation cir- the court's discretion under
S.1A of the 1855 Act to award damages proportioned to the loss resulting
to the dependants from death would clearly debar considerations of
contributory negligence and the like which enter the field in the matter
of assessment of compensation under the 1939 Act. There can, therefore,
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be no doubt that S. 110-B of the 1939Act gives wider scope to the
Claims Tribunal in the matter of assessment of compensation and we do
not find limitative words as are noticed in the third para. Of S. 1A of the
1855 Act. If the third paragraph of S. 1A of the 1855Act is a substantive
provision. As submitted by Mr. Majmudar, we fail to understand why S.
110-B of the 1939 Act, which also deals with the same subject, cannot be
said to be a substantive provision. It is not necessary to repeat that S.
110-B of the 1939 Act being a special provision, shall override the
general provision contained in para. 3 of S. 1A of the 1855 Act.
13. For the above reasons, we are inclined to think that the introduction
of Ss. 110-A to 110-F in the 1939Act have brought about certain radical
changes impinging upon the provisions contained in Ss. 1A and 2 of the
1855 Act. We, therefore, cannot agree with the learned counsel for the
appellants that the change brought about by the introduction of Sections
110-A to 110-F in the 1939 Act was merely adjectival or procedural in
nature We are, therefore, of the opinion, that Cl (b) of sub-s. (1) of S.
110-A and Section 110-B of the 1939 Act clearly deal with substantive
law and being wider in scope than Ss. 1A and 2 of the 1855 Act must
prevail over the general law. In view of the difference in the language o
Ss, 1-A and 2of the 1855 Act and Sections 110-A and 110-B of the 1939
Act we are of the opinion that the latter Act being a special Act, must
override the general law contained in the former Act.
14. Considerable reliance was placed by Mr. Majmudar on the decision of
the Supreme Court in New India Insurance Co, Ltd. v. Smt. Shanti Misra,
AIR 1976 SC 237. In that case accident occurred on llth September, 1966
in which Shri Amar Nath Misra met his death due to collision between
his motor cycle and a truck. Cause of action accrued to the widow and
children of the deceased to claim compensation under the 1855 Act. A
suit could have been brought under Art. 82 of the Lim. Act, 1963 within
two years of the occurrence but in the mean time the Government of
Uttar Pradesh constituted a Claims Tribunal under Section 110 of the
1939 Act by a notification Published on 18th March, 1967. The claim
application was filed under Section 110-A on 8th July, 1967 and the
appellants objected to the jurisdiction of the Tribunal to entertain the
application. The Tribunal spurned the objection whereupon the appellants
filed a writ petition in the High Court, which was allowed by a single
Judge. In appeal filed against that decision, there was a difference of
opinion between the two Judges constituting the Division Bench and on a
reference to a third Judge, the view taken by the High Court was that
the Tribunal had jurisdiction to entertain the application. It will appear
from these facts that the contention before the Supreme Court was
limited to the question of jurisdiction of the Tribunal to entertain the
claim application, cause of action for which accrued before its
constitution on llth September, 1966. Dealing with this limited question,
the Supreme Court after referring to the relevant provisions of Sections
110-A and 110-F of the 1939 Act, observed as under:
"On the plain language of Ss. 110-A and 110-F there
should be no difficulty in taking the view that the change
in law was merely a change of forum i.e. a change of
adjectival or procedural law and not of substantive law. It
is a well established proposition that such a change of
law operates retrospectively and the person has to go to
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the new forum even if his cause of action or right of
action accrued prior to the change of forum." Dealing
with the expressions "arising out of an accident"
occurring in sub-s. (1) and "over the area in which the
accident occurred", mentioned in sub-s. (2), the Supreme
Court observed that they clearly show that the change of
forum was meant to be operative retrospectively
irrespective of the fact as to when the accident occurred.
The provision of limitations of 60 days contained in sub-
s. (3) did not constitute an impediment, because, in the
opinion of the Supreme Court the delay could be
condoned under the proviso. It is, therefore, clear that
the Supreme Court considered the language of Ss. 110A
and 110F for the limited purpose of determining the
question of jurisdiction and it was never called upon to
consider the, effect of clause (b) of subs. (1) of Ss. 110A
and 110B of the 1939 Act, qua Ss. 1 and 2 of the 1855
Act. We are, therefore of the opinion that the decision of
the Supreme Court, on which considerable reliance has
been placed by Mr. Majumdar, has no application to the
facts of the present case and that decision is not an
authority for the proposition that the aforesaid sections do
not deal with substantive law.
15. For the above reasons we are of the view that the present claim
application by the nephews of the deceased Gordhanbhai Tarjabhai is
clearly maintainable.... ...."
9.2 While examining as to who can be the claimant in Motor
Accident Cases having regard to the legal representative of the
deceased, the Supreme Court in case of Gujarat State Road
Transport Corporation, Ahmedbad vs. Ramanbhai
Prabhatbhai and Anr. reported in AIR 1987 SC 1690 has
held as under:
"This Act contains in all five sections. Its preamble runs thus:
"Whereas no action or suit is now maintainable in any Court against a
person who, by his wrongful act, neglect, or default, may have caused the
death of another person, and it is often-times right and expedient that the
wrong-doer in such case should be answerable in damages for the injury
so caused by him. It is enacted as follows:-"
Sections 1A and 2 of that Act which are relevant for our present purpose
read thus: "1A. Whenever the death of a person shall be caused by
wrongful act, neglect, or default, and the act, neglect or default is such
as' would (if death had not ensued) have entitled the party injured to
maintain an action and recover damages in respect thereof, the party
who would have been liable if death had not ensued, shall be liable to an
action or suit for damages, notwithstanding the death of the person
injured, and although the death shall have been caused under such
circumstances as amount in law to felony or other crime.
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Every such action or suit shall be for the benefit of the wife, husband,
parent and child, if any, of the person whose death shall have been so
caused, and shall be brought by and in the name of the executor,
administrator or representative of the person deceased;
and in every such action, the Court may give such damages as it may
think proportioned to the loss resulting from such death to the parties
respectively, for whom and for whose benefit such action shall be
brought, and the amount so recovered, after deducting all costs and
expenses, including the costs not recov- ered from the defendant, shall be
cleivided amongst the before-mentioned parties, or any of them, in such
shares as the Court by its judgment or decree shall direct.
2. Provided always that not more than one action or suit shall be brought
for and in respect of the same subject matter of com- plaint:
Provided that in any such action or suit the executor, administrator or
representative of the deceased may insert a claim for, and recover any
pecuniary loss to the estate of the deceased occasioned by such wrongful
act, neglect or default, which sum, when recovered, shall be deemed part
of the assets of the estate of the deceased." (emphasis added)."
When the Fatal Accidents Act, 1855 was enacted there were no motor
vehicles on the roads in India. Today, thanks to the modern civilization,
thousands of motor vehicles are put on the road and the largest number
of injuries and deaths are taking place on the roads on account of the
motor vehicles accidents. In view of the fast and constantly increasing
volume of traffic, the motor vehicles upon the roads may be regarded to
some extent as coming within the principle of liability defined in Rylands
v. Fletcher, [1868] LR. 3 H.L. 330, 340. From the point of view of the
pedestrian the roads of this country have been rendered by the use of the
motor vehicles highly dangerous. 'Hit and run' cases where the drivers of
the motor vehicles who have caused the accidents are not known are
increasing in number. Where a pedestrian without negligence on his part
is injured or killed by a motorist whether negligently or not, he or his
legal repre- sentatives as the case may be should be entitled to recover
damages if the principle of social justice should have any meaning at all.
In order to meet to some extent the respon- sibility of the society to the
deaths and injuries caused in road accidents there has been a continuous
agitation through out the world to make the liability for damages arising
out of motor vehicles accidents as a liability without fault. In order to
meet the above social demand on the recommendation of the Indian Law
Commission Chapter VIIA was introduced in the Act. Sections 92-A to 92-
E of the Act are to be found in Chapter VIIA. Section 92-E of the Act
provides that the provisions of Chapter VIIA shall have effect
notwithstanding anything contained in any other provision of the Act or of
any other law for the time being in force. Section 92-A of the Act provides
that where the death or permanent disable- ment of any person has
resulted from an accident arising out of the use of a motor vehicle or
motor vehicles, the owner of the vehicle shall, or, as the case may be, the
owners of the vehicles shall, jointly and severally, be liable to pay
compensation in respect of such death or disablement in accordance with
the provisions of the said section. The amount of compensation which is
payable thereunder in re- spect of the death of any person is a fixed sum
of fifteen thousand rupees and the amount of compensation payable
under it in respect of the permanent disablement of any person is a fixed
sum of seven thousand and five hundred rupees. Sub- section (3) of
section 92-A of the Act provides that in any claim for compensation under
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sub-section (1) of section 92- A, the claimant shall not be required to
plead and establish that the death or permanent disablement in respect
of which the claim has been made was due to any wrongful act, neglect or
default of the owner or owners of the vehicle or vehicles concerned or of
any other person. It is thus seen that to a limited extent relief has been
granted under section 92-A of the Act to the legal representatives of the
victims who have died on account of motor vehicles accidents. Now they
can claim Rs. 15,000 without proof of any negligence on the part of the
owner of the vehicle or of any other person. This part of the Act is clearly
a departure from the usual common law principle that a claimant should
establish negligence on the part of the owner or driver of the motor
vehicle before claiming any compensation for the death or permanent
disa- blement caused on account of a motor vehicle accident. To that
extent the substantive law of the country stands modi- fied. The special
provisions contained in section 109-A to section 109-C of the Act
providing for a scheme for granting relief to victims or the legal
representatives of victims of 'hit and run' motor vehicle accident cases is
another novel effort on the part of the Government to remedy the
situation created by the modern society which has been responsible for
introducing so many fast moving vehicles on roads. Now we shali analyse
the provisions of Chapter VIII of the Act which deals with the insurance
of motor vehicles against third party risk. Sections 93 to 111-A are in that
Chapter. The Act insists that the owner of a motor vehicle should take out
an insurance policy to cover third party risk except in some specified
cases. Section 102 of the Act provides that notwithstanding anything
contained in section 306 of the Indian Succession Act, 1925, the death of
a person in whose favour a certificate of insurance has been issued, if it
occurs after the happening of an event which has given rise to a claim
under the provisions of Chapter VIII of the Act shall not be a bar to the
survival of any cause of action arising out of the said event against his
estate or against the insurer. The death of an owner of a motor vehicle
which is involved in a motor vehicle accident in whose favour a certificate
of insurance has been issued is thus no longer a bar to the survival of any
cause of action arising out of the said event. Section 110 of the Act
provides for the establishment of Claims Tribunals. It provides that a
State Government may by notification in the Official Gazette, constitute
one or.more Motor Accidents Claims Tribunals for such areas as may be
specified in the notification for the purpose of adjudicating upon claims
for compensation in respect of accidents involving the death of or bodily
injury to, persons arising out of the use of motor vehicles, or damages to
any property of a third party so arising, or both. Section 110-F of the Act
bars jurisdiction of Civil Courts where any Claims Tribunal has been
consti- tuted for any area to entertain any question relating to any claim
for compensation which may be adjudicated upon by the Claims Tribunal
for that area. On the occurrence of any motor vehicles accident, an
application for compensation arising out of it can be made before the
Claims Tribunal. Section 110~A of the Act which is material for the
purpose of this case reads thus:
"110-A. Application for compensa- tion.--(1) An application for
compensation arising out of an accident in the nature specified in sub-
section (1) of section 110 may be made--
(a) by the person who has sustained the in- jury; or (aa) by the owner of
the property; or
(b) where death has resulted from the acci- dent, by all or any of the legal
representa- tives of the deceased; or
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(c) by any agent duly authorised by the person injured or all or any of the
legal representa- tives 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 compensa- tion, the application shall be made on
behalf of or for the benefit of all the legal repre- sentatives of the
deceased and the legal representatives who have not so joined shall be
impleaded as respondents to the applica- tion.
(2) Every application under sub- section (1) shall be made to the Claims
Tribu- nal having jurisdiction over the area in which the accident
occurred, and shall be in such form and shall contain such particulars as
may be prescribed.
Provided that where any claim for compensation under section 92A is
made in such application, the application shall contain a separate
statement to that effect immediately before the signature of the
applicant. (3) No application for such compensa- tion shall be entertained
unless it is made within six months of the occurrence of the accident:
Provided that the Claims Tribunal may entertain the application after the
expiry of the said period of six months if it is satis- fied that the applicant
was prevented by sufficient cause from making the application in time."
Clauses (b) and (c) of sub-section (1) of section 110-A of the Act provide
that an application for compensation arising out of an accident may be
made where death has resulted from the accident by all or any of the
legal repre- sentatives of the deceased or by any agent duly authorised by
all or any of the legal representatives of the deceased. The proviso to sub-
section (1) of section 110-A 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
bene- fit of all the legal representatives of the deceased and the legal
representatives who have not so joined shall be im- pleaded as
respondents to the application. The expression 'legal representative' has
not been defined in the Act. Section 2(11) of the Code of Civil Procedure,
1908 defines 'legal representative' as 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. The above definition, no doubt, in
terms does not apply to a case before the Claims Tribunal but it has to be
stated that even in ordinary parlance the said expression is understood
almost in the same way in which it is defined in the Code of Civil
'Procedure. A legal repre- sentative ordinarily means a person who in law
represents the estate of a deceased person or a person on whom the
estate devolves on the death of an individual. Clause (b) of sub-section (1)
of section 110-A of the Act authorises all or any of the legal
representatives of the deceased to make an application for compensation
before the Claims Tribunal for the death of the deceased on account of a
motor vehicle accident and clause (c) of that sub-section authorises any
agent duly authorised by all or any of the legal representa- tives of the
deceased to make it. The proviso to sub-section (1) of section 110-A of the
Act appears to be of some sig- nificance. It provides that the application
for compensation shall be made on behalf of or for the benefit of all the
legal representatives of the deceased. Section 110-A(1) of the Act thus
expressly states that (i) an application for compensation may be made by
the legal representatives of the deceased or their agent and (ii) that such
application shall be made on behalf of or for the benefit of all the legal
representatives. Both the persons or person who can make an application
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for compensation and the persons for whose benefit such application can
be made are thus indicated in section 110-A of the Act. This section in a
way is a substi- tute to the extent indicated above for the provisions of
section 1A of the Fatal Accidents Act, 1855 which provides that "every
such action or suit shall be for the benefit of the wife, husband, parent
and child, if any, of the person whose death shall have been so caused,
and shall be brought by and in the name of the executor, administrator or
representative of the person deceased." While the Fatal Accidents Act,
1855 provides that such suit shall be for the benefit of the wife, husband,
parent and child of the deceased, section 110-A(1) of the Act says that the
application shall be made on behalf of or for the benefit of the legal
representatives of the de- ceased. A legal representative in a given case
need not necessarily be a wife, husband, parent and child. It is further
seen from section 110-B of the Act that the Claims Tribunal is authorised
to make an award determining the amount of compensation which
appears to it to be just and specifying the person or persons to whom
compensation shall be paid. This provision takes the place of the third
para- graph of section 1A of the Fatal Accidents Act. 1855 which provides
that in every such action, the Court may give such damages as it may
think proportioned to the loss resulting from such death to the parties
respectively, for whom and for whose benefit such action shall be
'brought. Persons for whose benefit such an application can be made and
the manner in which the compensation awarded may be distributed
amongst the persons for whose benefit the application is made are dealt
with by section 110-A and section 110-B of the Act and to that extent the
provisions of the Act do supersede the provisions of the Fatal Accidents
Act, 1855 in so far as motor vehicles accidents are concerned. These
provisions are not merely procedural provisions. They substantively affect
the rights of the parties. As the right of action created by the Fatal
Accidents Act, 1855 was "new in its species, new in its quality, new in its
principles, in every way new" the right given to the legal representatives
under the Act to file an application for compensation for death due to a
motor vehicle accident is equally new and an enlarged one. This new
right cannot be hedged in by all the limitations of an action under the
Fatal Accidents Act, 1855. New situa- tions and new dangers require new
strategies and new remedies.
We feel that the view taken by the Gujarat High Court is in consonance
with the principles of justice, equity and good conscience having regard
to the conditions of the Indian society. Every legal representative who
suffers on account of the death of a person due to a motor vehicle
accident should have a remedy for realisation of compensa- tion and that
is provided by sections 110-A to 110-F of the Act. These provisions are in
consonance with the principles of law of torts that every injury must have
a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the
compensation which appears to it to be just as provided in section 110-B
of the Act and to specify the person or per- sons to whom compensation
shall be paid. The determination of the compensation payable and its
apportionment as re- quired by section 110B of the Act amongst the legal
repre- sentatives for whose benefit an application may be filed under
section 110-A of the Act have to be done in accordance with well-known
prin- ciples of law. We should remember that in an Indian family
brothers. sisters and brothers' children and some times foster children
live together and they are dependent upon the bread-winner of the family
and if the bread-winner is killed on account of a motor vehicle accident,
there is no justification to deny them compensation relying upon the
provisions of the Fatal Accidents Act, 1855 which as we have already held
has been substantially modified by the provi- sions contained in the Act in
relation to cases arising out of motor vehicles accidents. We express our
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approval of the decision in Megjibhai Khimji Vira and another v.
Chaturbhai Taljabhai and others, (supra) and hold that the brother of a
person who dies in a motor vehicle accident is entitled to maintain a
petition under section 110-A of the Act if he is a legal representative of
the deceased."
9.3 The Motor Vehicles Act, 1939 came to be amended in the
year 1988 and thereupon Section 110-A become Section 166 in
the Motor Vehicles Act, 1988. However, the language of the
said Section 166 has remained pari materia to that of Section
110-A of the Motor Vehicles Act, 1939. With respect to Section
166 of the Motor Vehicles Act, 1988, the issue of claim by a
legal representative being married daughter of the deceased,
the Supreme Court in case of Manjuri Bera Vs. Oriental
Insurance Co., reported in (2007) 10 SCC 643 interpreted
the term 'legal representative' as provided in Section 166(1)(c)
of the Motor Vehicles Act, 1988 by referring to the definition of
legal representative under Section 2(11) of the Civil Procedure
Code, 1908 and Section 2(1)(g) of the Arbitration and
Conciliation Act, 1996 held that a married daughter being legal
representative would be entitled to claim compensation and
thereby allowed the claim petition filed under Section 140 of
the Motor Vehicles Act, 1988. Paragraphs 11 to 17 read thus:
"11. There are several factors which have to be noted. The liability
under Section 140 of the Act does not cease because there is
absence of dependency. The right to file a claim application has to
be considered in the background of right to entitlement. While
assessing the quantum, the multiplier system is applied because of
deprivation of dependency. In other words, multiplier is a measure.
There are three stages while assessing the question of entitlement.
Firstly, the liability of the person who is liable and the person who
is to indemnify the liability, if any. Next is the quantification and
Section 166 is primarily in the nature of recovery proceedings. As
noted above, liability in terms of Section 140 of the Act does not
cease because of absence of dependency. Section 165 of the Act
also throws some light on the controversy. The explanation includes
the liability under Sections 140 and 163A.
12. 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
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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).
13. As observed by this Court in Custodian of Branches of
BANCO National Ultramarino v. Nalini Bai Naique [1989]2SCR810
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]3SCR404 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.
14. There are several factors which have to be noted. The
liability under Section 140 of the Act does not cease because there
is absence of dependency. The right to file a claim application has
to be considered in the background of right to entitlement. While
assessing the quantum, the multiplier system is applied because of
deprivation of dependency. In other words, multiplier is a measure.
There are three stages while assessing the question of entitlement.
Firstly, the liability of the person who is liable and the person who
is to indemnify the liability, if any. Next is the quantification and
Section 166 is primarily in the nature of recovery proceedings. As
noted above, liability in terms of Section 140 of the Act does not
cease because of absence of dependency.
15. Section 165 of the Act also throws some light on the
controversy. The explanation includes the liability under Sections
140 and 163A.
16. Judged in that background where a legal representative who
is not dependant files an application for compensation, the
quantum cannot be less than the liability referable to Section 140
of the Act. Therefore, even if there is no loss of dependency the
claimant if he or she is a legal representative will be entitled to
compensation, the quantum of which shall be not less than the
liability flowing from Section 140 of the Act. The appeal is allowed
to the aforesaid extent. There will be no order as to costs. We
record our appreciation for the able assistance rendered by Shri
Jayant Bhushan, the learned Amicus Curiae.
17. In my opinion, "No Fault Liability", envisaged in Section 140 of
the said Act, is distinguishable from the rule of "Strict Liability". In
the former, the compensation amount is fixed. It is Rs. 50,000/- in
cases of death [Section 140(2)]. It is a statutory liability. It is an
amount which can be deducted from the final amount awarded by
the Tribunal. Since, the amount is a fixed amount/crystallized
amount, the same has to be considered as part of the estate of the
deceased. In the present case, the deceased was an earning
member. The statutory compensation could constitute part of his
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estate. His legal representative, namely, his daughter has inherited
his estate. She was entitled to inherit his estate. In the
circumstances, she was entitled to receive compensation under "No
fault Liability" in terms of Section 140 of the said Act. My opinion is
confined only to the "No Fault Liability" under Section 140 of the
said Act. That section is a Code by itself within the Motor Vehicles
Act, 1988."
10. The Supreme Court in case of National Insurance
Company Limited Vs. Birender and Others reported in
(2020) 11 SCC 356, has held that as per the proposition laid
down in Ramanbhai (Supra) and Manjuri (Supra), the legal
representatives are entitled to claim compensation and not to
the limit of conventional heads i.e. fixed amount of loss of
estate, but as per the quantified and calculated loss of estate
that the deceased would have left and the same is to be
awarded to the legal representatives as inherited by them.
Paragraph 14 of the same read thus:
"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 sub-section (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 whom
such compensation would be paid. The latter part
relates to the entitlement of compensation by a person
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who claims for the same.
11. 11. According to Section 2(11) 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).
12. As observed by this Court in Custodian of
Branches of BANCO National Ultramarino v. Nalini Bai
Naique [MANU/SC/0149/1989: 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 Prabhatbhai
[MANU/SC/0469/1987: (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."
10.1 The Supreme Court in case of N. Jayasree & Ors. vs.
Cholamandalam Ms General Insurance Company Ltd.,
Civil Appeal No.6451 of 2021 judgment dated
25.10.2021 has held in paragraphs 9 to 21 as under :-
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"9. In view of the above, the questions for consideration before us
are: (I) whether the High Court was justified in precluding the
motherinlaw of the deceased (appellant no.4) as his
legal representative? (II) whether the High Court was justified in
applying a split multiplier? (III) based on the findings on the
preceding questions, what is the amount of compensation that
should be awarded to the appellants?
(I) whether the High Court was justified in precluding the motherin-
law of the deceased (appellant no.4) as his legal representative?
10. The provisions of the Motor Vehicles Act, 1988 (for short, "MV
Act") gives paramount importance to the concept of 'just and fair'
compensation. It is a beneficial legislation which has been framed
with the object of providing relief to the victims or their
families. Section 168 of the MV Act deals with the concept of 'just
compensation' which ought to be determined on the foundation of
fairness, reasonableness and equitability. Although such
determination can never be arithmetically exact or perfect, an
endeavor should be made by the Court to award just and fair
compensation irrespective of the amount claimed by the applicant/s.
In Sarla Verma1, this Court has laid down as under:
"16. ..."Just compensation" is adequate compensation which is fair
and equitable, on the facts and circumstances of the case, to make
good the loss suffered as a result of the wrong, as far as money can
do so, by applying the wellsettled principles relating to award of
compensation. It is not intended to be a bonanza, largesse or
source of profit."
11. In Sarla Verma1 it was further held that where the deceased was
married, the deduction towards personal and living expenses of the
deceased should be onethird (1/3 rd) where the number of dependent
family members is between 2 and 3, onefourth (1/4 th) where the
number of dependent family members is between 4 and 6, and one-
fifth (1/5th) where the number of dependent family members exceeds
six.
12. In the instant case, the appellants have contended that the
motherinlaw of the deceased was staying with the deceased and his
family members since a long time. Taking into consideration the
number of dependents of the deceased including his motherinlaw
(four in number), the MACT had deducted one fourth (1/4th) of the
income towards his personal expenses. However, the High Court has
held that appellant no.4 being the motherinlaw of the deceased,
cannot be reckoned as a dependent of the deceased. The High Court,
therefore, determined the number of dependents as 3 and
accordingly deducted onethird (1/3 rd) of the income of the deceased
towards his personal expenses.
13. Section 166 of the MV Act provides for filing of an application for
compensation. The relevant portion of the said Section is as under:
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"166. Application for compensation. -- (1) An application for
compensation arising out of an accident of the nature specified in
subsection (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 representatives 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."
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' 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.
15. Indicatively for the present inquiry, the Kerala Motor Vehicle
Rules, 1989, defines the term 'legal representative' as under:
"Legal Representative" means a person who in law is entitled to
inherit the estate of the deceased if he had left any estate at the
time of his death and also includes any legal heir of the deceased
and the executor or administrator of the estate of the deceased."
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
fulfil 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.
17. It is settled that percentage of deduction for personal expenses
cannot be governed by a rigid rule or formula of universal application.
It also does not depend upon the basis of relationship of the claimant
with the deceased. In some cases, the father may have his own
income and thus will not be considered as dependent. Sometimes,
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
brothers and sisters will not be considered as dependents because
they may either be independent or earning or married or be
dependent on the father. The percentage of deduction for personal
expenditure, thus, depends upon the facts and circumstances of each
case.
18. In the instant case, the question for consideration is whether the
fourth appellant would fall under the expression 'legal representative'
for the purpose of claiming compensation. In Gujarat State Road
Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and
Anr.3 this Court while considering the entitlement of the brother of a
deceased who died in a motor vehicle accident to maintain a claim
petition under the provisions of the MV Act, held as under:
"13. We feel that the view taken by the Gujarat High Court is in
consonance with the principles of justice, equity and good
conscience having regard to the conditions of the Indian society.
Every legal representative who suffers on account of the death of
a person due to a motor vehicle accident should have a remedy for
realisation of compensation and that is provided by Sections 110A
to 110F of the Act. These provisions are in consonance with the
principles of law of torts that every injury must have a remedy. It
is for the Motor Vehicles Accidents Tribunal to determine the
compensation which appears to it to be just as provided in Section
110B of the Act and to specify the person or persons to whom
compensation shall be paid. The determination of the
compensation payable and its apportionment as required
by Section 110B of the Act amongst the legal representatives for
whose benefit an application may be filed under Section 110A of
the Act have to be done in accordance with wellknown principles
of law. We should remember that in an Indian family brothers,
sisters and brothers' children and sometimes foster children live
together and they are dependent upon the breadwinner of the
family and if the breadwinner is killed on account of a motor
vehicle accident, there is no justification to deny them
compensation relying upon the provisions of the Fatal Accidents
Act, 1855 which as we have already held has been substantially
modified by the provisions contained in the Act in relation to cases
arising out of motor vehicles accidents. We express our approval
of the decision in Megjibhai Khimji Vira v. Chaturbhai
Taljabhagujri 4 and hold that the brother of a person who dies in a
motor vehicle accident is entitled to maintain a petition
under Section 110A of the Act if he is a legal representative of the
deceased."
19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and Ors.5 it was
held that:
"7. ...12. As observed by this Court in Custodian of Branches of
Banco National Ultramarino v. Nalini Bai Naique6 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
Prabhatbhai3 a legal representative is one who suffers on account
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of death of a person due to a motor vehicle accident and need not
necessarily be a wife, husband, parent and child."
20. In Montford Brothers of St. Gabriel and Anr. vs. United India
Insurance and Anr.7 this Court was considering the claim petition of a
charitable society for award of compensation on account of the death
of its member. The appellantsociety therein was a registered
charitable society and was running various institutions as a
constituent unit of Catholic church. Its members, after joining the
appellantsociety, renounced the world and were known as 'brother'. In
this case, a 'brother' died in a motor vehicle accident. The claim
petition filed by the appellantsociety seeking compensation on account
of the death of aforesaid 'brother' was rejected by the High Court on
the ground of its maintainability. This Court after examining various
provisions of the MV Act held that the appellantsociety was the legal
representative of the deceased 'brother'. While allowing the claim
petition it was observed as under:
"17. A perusal of the judgment and order of the Tribunal discloses
that although Issue 1 was not pressed and hence decided in favour
of the appellant claimants, while considering the quantum of
compensation for the claimants, the Tribunal adopted a very
cautious approach and framed a question for itself as to what
should be the criterion for assessing compensation in such case
where the deceased was a Roman Catholic and joined the church
services after denouncing his family, and as such having no actual
dependents or earning? For answering this issue, the Tribunal
relied not only upon judgments of American and English Courts but
also upon Indian judgments for coming to the conclusion that even
a religious order or an organisation may suffer considerable loss
due to the death of a voluntary worker. The Tribunal also went on
to decide who should be entitled for compensation as legal
representative of the deceased and for that purpose it relied upon
the Full Bench judgment of Patna High Court in Sudama Devi v.
Jogendra Choudhary8, which held that the term "legal
representative" is wide enough to include even "intermeddlers"
with the estate of a deceased. The Tribunal also referred to some
Indian judgments in which it was held that successors to the
trusteeship and trust property are legal representatives within the
meaning of Section 2(11) of the Code of Civil Procedure."
21. Coming to the facts of the present case, the fourth appellant was
the motherinlaw of the deceased. Materials on record clearly establish
that she was residing with the deceased and his family members. She
was dependent on him for her shelter and maintenance. It is not
uncommon in Indian Society for the motherinlaw to live with her
daughter and soninlaw during her old age and be dependent upon her
soninlaw for her maintenance. Appellant no.4 herein may not be a legal
heir of the deceased, but she certainly suffered on account of his
death. Therefore, we have no hesitation to hold that she is a "legal
representative" under Section 166 of the MV Act and is entitled to
maintain a claim petition."
10.2 The Supreme Court in case of Sarla Verma Vs. Delhi
Transport Corp. & Anr. reported in (2009) 6 SCC 121 has
held in paragraphs 31 and 32 as under:
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"31. 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.
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 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."
10.3 The Supreme Court in case of National Insurance
Company Limited Vs. Pranay Sethi and Others reported
in (2017) 16 SCC 680 has held in paragraphs 37 and 41 as
under:
"37. Before we proceed to analyse the principle for addition of
future prospects, we think it seemly to clear the maze which is
vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh and
Munna Lal Jain. Three aspects need to be clarified. The first one
pertains to deduction towards personal and living expenses. In
paragraphs 30, 31 and 32, Sarla Verma lays down:-
"30. Though in some cases the deduction to be made
towards personal and living expenses is calculated on
the basis of units indicated in Trilok Chandra4, the
general practice is to apply standardised deductions.
Having considered several subsequent decisions of this
Court, we are of the view that where the deceased was
married, the deduction towards personal and living
expenses of the deceased, should be one-third (1/3rd)
where the number of dependent family members is 2 to
3, one-fourth (1/4th) where the number of dependent
family members is 4 to 6, and one-fifth (1/5th) where the
number of dependent family members exceeds six.
31. 31. 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
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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 dependant. 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 one-third and
contribution to the family will be taken as two-third.
41. On a perusal of the analysis made in Sarla Verma which has
been reconsidered in Reshma Kumari, we think it appropriate to
state that as far as the guidance provided for appropriate deduction
for personal and living expenses is concerned, the tribunals and
courts should be guided by conclusion 43.6 of Reshma Kumari. We
concur with the same as we have no hesitation in approving the
method provided therein."
10.4 As per the ratio laid down in the above referred cases if
an accident results into the death of the person who is a
bachelor and there is one dependant/claimant/legal
representative then 50% of the amount is required to be
deducted towards personal and living expenses and remaining
50% is required to be awarded as compensation to the legal
representative. Whereas, in case of the deceased bachelor if
there are more dependants claimants/ legal representatives
then 1/3rd is required to be deducted as personal and living
expenses and remaining 2/3rd is required to be awarded as
compensation.
10.5 In the present case, the deceased was a bachelor. The
opponent no.6 - original claimant being sister of the deceased
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
claimed the compensation towards dependency loss. Hence,
considering the living expenses, the Tribunal deducted 50%
amount towards personal expenses and 50% contribution to
the family. The said deduction is taken into consideration by
the Tribunal in conformity with the settled legal position and
hence it cannot be said that the Tribunal committed any error
on fact or law so as to warrant any interference.
11. The fact that the opponent no.6 is the only legal
representative of the deceased is undisputed and the letter of
administration in favour of the opponent no.6 - original
claimant at Exh-50 also fortifies that the opponent no.6 is the
only legal representative of the deceased. The question of any
other person claiming any right from the estate is out of
question in the present case. Even otherwise the provisions of
the Hindu Succession Act, 1956 if taken into consideration
supports the claimant - opponent no.6 who is the sister of the
deceased and in absence of Class-I legal heirs the opponent
no.6 is the legal heir Class-II legal representative as per the
provisions of Section 8 of the Hindu Succession Act, 1956.
11.1 The law is well settled that the Motor Accident Act is a
beneficial legislation enacted with the object to provide
monetary relief to the victim or their family. The Hon'ble
Supreme Court from time to time in its decisions referred to
above has held that the term 'legal representative' is required
to be given a wider interpretation for the purpose of Chapter
XII of the Motor Vehicle Act and the interpretation should not
be confined only to the spouse, parents and children of the
deceased. The Act therefore calls for a liberal and wider
interpretation to serve the underlying purpose of the
C/FA/1792/2020 JUDGMENT DATED: 09/08/2021
enactment and fulfillment of its legislative intent.
11.2 To maintain a claim petition it is sufficient for the
claimant to establish that there is loss of dependency and
every legal representative who suffers on account of death of a
person in a motor vehicle accident have the remedy for
realization of compensation.
12. In view of the above settled legal position, we are of the
view that the opponent no.6 being the real sister of the
deceased - Rakesh Shantilal Sharma is entitled to claim
compensation in her capacity as a legal representative. We are
not inclined to interfere with the findings recorded by the
Tribunal. In our opinion, the Tribunal has taken into
consideration all the above aspects in accordance with the law
as well as per the ratio laid down by the Supreme Court in
various decisions.
13. In the result, both the above captioned first appeals fail
and are hereby dismissed. Interim relief, if any, stands
vacated.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
