Gujarat High Court
National Insurance Co Ltd vs Shobhnaben Mukeshbhai Parmar on 16 March, 2023
Bench: Gita Gopi
C/FA/2469/2019 JUDGMENT DATED: 16/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2469 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 2469 of 2019
With
R/FIRST APPEAL NO. 2470 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 2470 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair
3 NO
copy of the judgment ?
Whether this case involves a substantial
question of law as to the interpretation of the
4 NO
Constitution of India or any order made
thereunder ?
======================================
NATIONAL INSURANCE CO LTD
Versus
SHOBHNABEN MUKESHBHAI PARMAR
======================================
Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
for the Defendant(s) No. 3,4
JENIL M SHAH(7840) for the Defendant(s) No. 1,2
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Page 1 of 20
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C/FA/2469/2019 JUDGMENT DATED: 16/03/2023
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 16/03/2023
ORAL JUDGMENT
1. Challenge in these appeals is given to a common
judgment and award passed by the learned Motor Accident
Claims Tribunal (Main), Bhavnagar (the Tribunal) on
31.12.2018 in Motor Accident Claim Petition Nos. 217 of 2014
and 218 of 2014 (claim petition). The claimants are married
daughters of deceased parents, who, on 15.05.2014 were
going from Bhavnagar to Surat in a Car bearing registration
No. GJ-5-CM-2986. The said car was driven by father -
Shamjibhai. It is stated that he was driving the car slowly and
on correct side of the road and the mother was the occupant in
the said car. It is further stated that while the car was heading
forward, a luxury bus No. GJ-5-AZ-2970, being driven in rash
and negligent manner and in full speed, dashed with the car.
Both got injured and succumbed to the severe injuries.
2. The learned Tribunal was pleased to grant compensation
as under:
Head MACP No. MACP No.
217 of 2014 218 of 2014
Future loss of income 2,37,000/- 2,90,400/-
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Loss of estate 15,000/- 15,000/-
Funeral Expenses 15,000/- 15,000/-
Total 2,67,600/- 3,20,400/-
3. Learned advocate Mr. Sunil B. Parikh for the appellant -
insurance company contended that both the claimants, as
married daughters, cannot be considered as dependents of the
parents and hence, the amount granted under the head of
future loss of income / dependency loss, is erroneous and
illegal. Learned advocate Mr. Parikh relied upon a decision of
Division Bench of this Court, rendered in First Appeal No.
1850 of 2019 in TATA AIG General Insurance Co. Ltd. v.
Kunjal Jitendra Joshi with allied matters, on 13.05.2022 and
the decision in First Appeal No. 177 of 2011 dated 22.02.2017
between Oriental Insurance Co. Ltd. v. Mahadevbhai
Gandabhai Koli and 7 and the decision in First Appeal No.
2255 of 2020 between Oriental Insurance Co. Ltd. v.
Bipinbhai Muljibhai Padhiyar dated 21.12.2022 to contend
that married daughters would be entitled to file the petition as
heirs and legal representatives but would not be entitled to
compensation as they are not dependents on the parents
under the head of loss of dependency.
C/FA/2469/2019 JUDGMENT DATED: 16/03/2023
4. Countering the arguments, learned advocate Mr. Jenil M.
Shah for the respondent Nos. 1 and 2, by relying on decisions
in National Insurance Co. Ltd. v. Birender and Ors.,
(2020) 11 SCC 356; in Manjuri Bera (Smt.) v. Oriental
Insurance Co. Ltd. and Anr., (2007) 10 SCC 643 and in
Bajaj Allianze General Insurance Ltd. v. Thakor
Jayantibhai Piraji, 2022 ACJ 902 submitted that with the
development in the Hindu Succession Act and the personal
laws, the concept of dependency has merged into the
expression 'legal representative' and stated that, now, there
would not be any difference between a daughter and a son to
exclude them as being the legal representatives. Learned
advocate Mr. Shah submitted that in a case when a son has
not been found to be an earning member of the family or is
earning less than the parents, the son is also considered as a
dependent and when the daughters are not found to be an
earning person, then they, as legal representatives, would be
entitled to even the dependency loss.
4.1 In Manjuri Bera (supra), the Apex Court has laid down
the meaning of 'legal representative' referred to in Section
2(11) of Civil Procedure Code, 1908 (CPC) in paragraph 11,
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which reads as under:
"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)."
4.2 Thereafter, in the same judgment, referring to the
decisions of Custodian of Branches of BANCO National
Ultramarino v. Nalini Bai Naique, 1989 Supp (2) SCC
275, the definition of 'legal representative' under Section
2(11) CPC is considered to be inclusive in character and it is
found that the scope is not limited to the legal heirs only and
that the person, who may or may not be a legal heir,
competent to inherit the property of the deceased can
represent the asset of the deceased person. The relevant
paragraph 12 thus reads as under:
"As observed by this Court in Custodian of
Branches of BANCO National Ultramarino v. Nalini
Bai Naique the definition contained in Section 2(11)
CPC is inclusive in character and its scope is wide,
C/FA/2469/2019 JUDGMENT DATED: 16/03/2023
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
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."
4.3 After considering the provisions under the Motor Vehicles
Act, 1988 (MV Act), it has been observed that there are several
facts are to be noted and that the liability under Section 140 of
the Act does not cease because of the absence of dependency
and right to file a claim petition has to be considered in the
background of right of entitlement and multiplier is considered
to be the measure for assessing the quantum. As further
observed that 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 nature
of recovery proceedings and thus, thereafter, it has been laid
down that the liability in terms of Section 140 of Act does not
cease because of the dependency.
C/FA/2469/2019 JUDGMENT DATED: 16/03/2023
4.4 Learned advocate Mr. Parikh for the appellant has placed
reliance on the decision in United India Insurance Co. Ltd.
v. Diptiben Ureshbhai Vora and Ors., 2017 ACJ 234 and
has referred to the observations made in the judgment, where
the Court has referred to the decision in Manjuri Bera
(supra) and Gujarat State Road Transport Corporation v.
Ramanbhai Prabhatbhai & Anr., 1987 ACJ 561 (SC) and
thus, has observed in paragraph 10 as under:
"10. Thus, considering the object and purpose of
awarding compensation under the head of loss of
dependency / future loss of income, though at the
instance of claimant, who was a legal
representative but not dependent upon the
deceased / victim of the accident, claim petition for
seeking compensation under the Motor Vehicles Act
shall be maintainable, but such claimant, who was
not dependent upon the deceased / victim of the
accident, shall not be entitled to any compensation
under the head of loss of dependency / future loss
of income, for the simple reason that at the time of
accident, such a claimant was not dependent upon
the income of the deceased / victim of the accident
and therefore, there shall not be any loss of
dependency / future loss of income to such a
claimant. However, such claimant shall be entitled
to compensation under other heads such as
medical expenses, funeral expenses, transportation
charges etc. which may fall under pecuniary loss /
pecuniary damages, as the same can be said to be
loss to the estate and the claimant shall also be
entitled to compensation under other conventional
heads such as loss of consortium, loss of love and
affection, loss of estate etc. Under the
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circumstances, it is held that the claim petition
seeking compensation under the Motor Vehicles Act
for the death of the deceased / victim of the
accident, at the instance of a claimant, who is heir
and legal representative but not dependent, shall
be maintainable and as observed by the Hon'ble
Supreme Court in the case of Manjula Devi (supra),
such compensation shall not be less than the
amount as provided under section 140 of the Motor
Vehicles Act. Thus, the claimant in such a case,
shall be entitled to minimum compensation as
provided under section 140 of the Motor Vehicles
Act. It is further observed and held that as such
claim petition is held to be maintainable, such a
claimant, who is legal heir but not a dependent,
shall not be entitled to any amount of
compensation under the head of loss of
dependency / future loss of income, but shall be
entitled to compensation under other heads
towards pecuniary loss / damages such as medical
expenses, transportation, special diet, attendance
charges and under the conventional heads such as,
loss of consortium, loss of estate, loss of love and
affection etc."
4.5 The Division Bench in First Appeal No. 1850 of 2019
and allied matter (supra), after having made the reference
of decisions in Diptiben Ureshbhai Vora (supra), Sarla
Verma and Ors. v. Delhi Transport Corporation and
Anr., (2009) 6 SCC 121, Manjuri Bera (supra), Birender
(supra), referring to the facts of the case, has noted that the
claimant is a resident of Canada for more than a decade and is
having his independent income as well as income of his wife
and the evidence on record, therefore, does not exhibit that
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the claimant, in any manner, can be said to be largely
dependent on the earning of parents / brother, nor it is the
case of the claimant that he was staying with his parents /
brother and hence, in that case, he was not considered to fall
under the term "dependent". The facts of the case of
Birender (supra) was distinguished with the case before the
Division Bench to observe that the facts in Birender (supra)
were totally different whereas in the case of claimant, he was
well settled in Canada and was earning in foreign currency and
in the facts and circumstances, Birender's case was not
made applicable and following the decision in Diptiben
Ureshbhai Vora (supra), it was observed that the claimant
cannot be termed as 'dependent'.
4.6 In the Division Bench decision in Bajaj Allianze General
Insurance Ltd. (supra), the claimant was a sister of the
deceased. The parents of the deceased died before the
accident. Except the claimant, there was no one representing
the assets of the deceased. On the facts of the case, it had
been laid down in paragraphs 11, 11.1 and 11.2 as under:
"11. The fact that the opponent no.6 is the only
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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 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."
4.7 On the observations so made, in view of the legal
position, it was held that the sister of the deceased was
entitled to claim compensation in the capacity of legal
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representative.
4.8 Here, in the instant case, both the sisters are the only
legal heirs of the deceased parents. In Manjuri Bera's case
(supra), an argument was raised that married daughters could
not be covered by the expression "legal representative"
considering Section 166 of the Act and would not be entitled to
any compensation unless she is dependent on the deceased.
4.9 The Apex Court in Ramanbhai Prabhatbhai & Anr.
(supra), while referring to the provisions of the Fatal Accidents
Act, 1855 and the expression 'legal representative' has held as
under:
"11 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 representatives 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 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. The
expression 'legal representative' has not been
defined in the Act. Section 2(11) of the Code of Civil
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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 representative 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 representatives of the
deceased to make it. The proviso to sub-section (1)
of section 110-A of the Act appears to be of some
significance. 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 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 substitute 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
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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
deceased. 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 situations and
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new dangers require new strategies and new
remedies."
4.10 While referring to various decisions of this Court as well
as other Hon'ble High Courts, in the very same judgment, the
application made by a nephew of the deceased, who had died
on account of a motor vehicle accident, was considered to be
clearly maintainable under the Act. The observations of the
Court is at paragraph 12, which read as under:
"12. Amongst the High Courts in India there is a
cleavage in the opinion as regards the
maintainability of action under section 110-A of the
Act by persons other than the wife, husband,
parent and child of the person who dies on account
of a motor vehicle accident. All these cases are
considered by the High Court of Gujarat in its
decision in Magjibhai Khiraji Vira and another v.
Chaturbhai Taljabhai and others (supra). The first
set of cases are those which are referred to in
paragraph 5 of the above decision which lay down
that every claim application for compensation
arising out of a fatal accident would be governed by
the substantive provisions of sections 1A and 2 of
the 1855 Act and no dependent of the deceased
other than the wife, husband, parent or child would
be entitled to commence an action for damages
against the tort tensors. Amongst these cases are
P.B. Kader and others v. Thatchamma and others,
A.I.R. 1970 Kerala 241 and Dewan Hari Chand and
others v. Municipal Corporation of Delhi and
another, A.I.R. 1973 Delhi 67. The second group of
cases are those referred to in paragraph 6 of the
decision of the Gujarat High Court. They are
Perumal v. Ellusamy Reddiar, [1974] ACJ 182 (Mad)
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and the Vanguard Insurance Co. Ltd. v.
Hanumantha Rao, [1975] ACJ 344 (Andhra
Pradesh). These cases lay down that while the
compensation payable under section 1A of the
Fatal Accidents Act, 1855 is restricted to the
relatives of the deceased named therein the
compensation payable under section 2 thereof may
be awarded in favour of the representatives of the
deceased who are entitled to succeed to the estate
of the deceased. The third group of cases are those
referred to in paragraph 7 of the judgment of the
Gujarat High Court. They are Mohammed
Habibullah and another v. K. Seethammal, A.I.R.
1967 Mad. 123; Veena Kumari Kohli v. Punjab
Roadways, [1967] ACJ 297 (Pb.) and Smt. Ishwar
Devi Malik v. Union of India, A.I.R. 1969 Delhi 183
which take the view that a claim for compensation
arising out of the use of a motor vehicle would be
exclusively governed by the provisions of sections
110 to 110-F of the Act and bears no connection to
claims under the 1855 Act and the Claims Tribunal
need not follow the principles laid down under the
latter Act. Having considered all the three sets of
decisions referred to above, Ahmadi, J. who wrote
the judgment in Megjibhai Khimji Vira and another
v. Chaturbhai Taljabhai and others (supra) came to
the conclusion that an application made by the
nephews of the deceased who died on account of a
motor vehicle accident was clearly maintainable
under section 110-A of the Act."
4.11 The referred judgment of Ramanbhai Prabhatbhai &
Anr. (supra), thus in paragraph 13 observes that the view
taken by this High Court is in consonance with the principles of
justice, equity and good conscience having regard to the
condition of Indian society. It has been observed thus that
every legal representative who suffers on account of the death
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of a person due to motor vehicle accident should have a
remedy for realization of the compensation under Act. And
that the provisions under the MV Act are in consonance with
the principle of law of torts that every injury must have a
remedy and it is for the Motor Accident Claims Tribunal to
determine the compensation which appears to be just as
provided under the Act and to specify the person or persons to
whom the compensation shall be paid. The determination of
the compensation payable is to be done in accordance with the
well know principles of law and thus, remembering the Indian
conditions, it has been observed that in Indian families,
brothers, sisters, children and sometimes, foster children live
together and they are dependent on the breadwinner of the
family. That there would be no justification to deny
compensation relying upon the provisions of the Act.
4.12 Here in this case, both the claimant daughters are the
legal representatives of the deceased parents. They have no
brothers and ultimately, it could be considered that such
daughters were looking after the parents, though not
physically staying with them but as the heirs of the parents.
With the development of law in Hindu Succession Act, under
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Section 6, the daughters are considered as heirs in co-
parcenery property by birth. Even if followed the provisions of
the Section 8 of the Hindu Succession Act, the daughters would
be the Class-I heir of the parents and thus, this Court considers
that the daughters being the heirs would be entitled for
claiming compensation on the death of parents. The
daughters, thus, being a legal representative, would be and
since had no other male person to support the parents in their
old age, the parents would have certainly relied on the
daughters for the future needs had they been alive and being
legal representative, the daughters would have inherited the
parents' estate.
4.13 In Ramanbhai Prabhatbhai & Anr. (supra) the
concluding portion at penultimate paragraph, it has been
noted as:
"15. Before concluding we may add that although
the Act was extensively modified after the receipt
of the report of the Law Commission, Parliament
did not choose to amend section 110-A of the Act
by defining the expression 'legal representatives' in
relation to claims under Chapter VIII of the Act as
'the spouse, parent and children of the deceased'
as recommended by the Law Commission. The Law
Commission had observed in its 85th report that it
would be appropriate to assign to the expression
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'legal representative' the same meaning as had
been given to the expression 'representative' for
the purposes of the Fatal Accidents Act, 1855 and
that would effectively carry-out the purpose of
social justice underlying Chapter VIII of the Act, to
which the Fatal Accidents Act, 1855 was the
nearest approximation. This recommendation was
made after referring to the divergent views
expressed by the various High Courts on the
meaning of the expression 'legal representatives' in
section 110-A of the Act. The fact that Parliament
declined to take any action on the recommendation
of the Law Commission of India suggests that
Parliament intended that the expression 'legal
representatives' in section 110-A of the Act should
be given a wider meaning and it should not be
confined to the spouse, parent and children of the
deceased."
4.14 In Manjuri Bera (supra), the Apex Court has held that
the No Fault Liability envisaged under Section 140 of the MV
Act, is distinguishable from the rule of 'Strict Liability'. It is
further held that right to make an application has to be
considered in the background of right to entitlement and while
assessing the quantum of compensation, the multiplier system
is applied because of deprivation of dependency. In the said
judgment, it is also being held that since the amount to be
awarded under Section 140 of the MV Act is a fixed/crystalised
amount, the same is to be considered as a part of the estate of
the deceased. Apart from that, there can be claim to
compensation under other conventional heads necessarily
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incurred in the case of deaths.
4.15 In Birender (supra), in paragraph 14 of the judgment
reported in (2020) 11 SCC 356, the Apex Court concluded
that now, it is thus settled that the legal representatives of the
deceased have a right to apply for compensation, having
observed so, it was held to be necessarily followed that even
the major married and earning sons of the deceased being
legal representatives have a right to apply for compensation
and therefore, it would be bounden duty of the Tribunal to
consider the application irrespective of the fact whether the
legal representative concerned was fully dependent on the
deceased and not to limit the claim towards conventional
heads only.
4.16 The general principle for dependency has been clarified
in the decision in Sarla Verma (supra) wherein, the
observation made in the decision in U. P. State Road
Transport Corporation v. Trilok Chandra, (1996) 4 SCC
362, has been adopted to consider the concept as 'just
compensation' to express, as is adequate compensation which
is fair and equitable on the facts and circumstances of the
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case, to make good the loss suffered as a result of the wrong
as far as money can do so by applying the well settled
principles relating to award of compensation. Here in this
case, the claimants are the only heirs to the parents and the
daughters would have been expected to depend upon the
income of the parents as there were no other supporting
sharer in the family. Thus, this Court is of the view that in the
facts and circumstances of the case, both the daughters
though are married, would be entitled to claim compensation
on the loss of parents and hence, would be entitled to
dependency loss.
5. For the forgoing discussion and observations, the appeals
fail and are dismissed accordingly. Notice of admission is
discharged. R&P, if received, be transmitted back to the
Tribunal concerned, forthwith.
5.1 In view of the main appeals are dismissed, civil
application therein, also stand dismissed.
[ Gita Gopi, J. ]
hiren
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