Gujarat High Court

Lalabhai Becharbhai Kahar vs Surendrakumar Narednrakumar Mittal on 14 February, 2024

Author: Gita Gopi

Bench: Gita Gopi

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO. 3531 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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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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            LALABHAI BECHARBHAI KAHAR & 2 other(s)
                          Versus
       SURENDRAKUMAR NAREDNRAKUMAR MITTAL & 1 other(s)
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1,2,3
MR R G DWIVEDI(6601) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 14/02/2024

                                 ORAL JUDGMENT

1. The original claim petition as M.A.C.P.

No.885 of 1996 was filed by the widow - Ratanben

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Becharbhai Kahar of deceased - Becharbhai

Bhattibhai Kahar and elder son - Lalabhai

Becharbhai Kahar. During the pendency of the

claim petition, widow - Ratanben Becharbhai Kahar

died on 11.06.1997. Thereafter an application was

moved at Exh.20 informing the Tribunal that the

claimant no.1 died, leaving behind three sons,

since other three sons and daughters were pre-

deceased. Hence, Lalabhai Becharbhai Kahar,

Manubhai Becharbhai Kahar and Santosh Becharbhai

Kahar were impleaded as applicants on the death

of mother.

2. The Tribunal partly allowing the claim

petition granted amount of Rs.30,020/-, observing

that claimant no.1 - Lalabhai Becharbhai Kahar

would have incurred expenses for medicine and

transportation on the death, who was staying with

the parents, and, thus, under the head of love

and affection, funeral expenses, after death

ritual ceremony, loss to estate and towards

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transportation and attendance charges, granted

Rs.5,000/- under each head, while, medical bills

of Rs.8,020/- was allowed, and Rs.2,000/- towards

diet, and in all total compensation was granted

as Rs.30,020/-.

3. Advocate Mr. Mohsin M.Hakim for the

appellants submitted that it is not a case, where

the injured claimant died during the pendency of

the trial. While in the present case on the death

of the husband, the widow and the elder son, who

was staying with the parents, had filed the claim

petition. Thereafter, all the claimants were

joined as heirs and legal representatives of

deceased mother - Ratanben Becharbhai Kahar. Mr.

Hakim submitted that the right of the widow

stands crystallized on the date of filing of the

claim petition, and thereafter on death of the

mother, all the applicants have been joined as

legal representatives.

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4. While, Advocate Mr.R.G. Dwivedi

submitted that the sons as not the dependents of

the father, so after his death, in claim petition

moved by the widow, sons could even claim as a

legal representative of the deceased mother,

since they would not have primary right to even

make prayer for compensation on the death of the

father, and, thus stated that the Tribunal has

rightly considered the amount which the elder son

had expended after the death of the father.

5. The Tribunal had considered the fact on

record, that the accident occurred on 13.04.1993.

The FIR was filed on 15.04.2019, and after about

10 months, the claim petition came to be filed on

14.02.1993, while the deceased father died on

21.10.1993, and in that facts and circumstances

of the case, the Tribunal had posed a question to

consider the nexus between accidental injuries

and the cause of death.

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5.1 Relying on the cross examination of

Doctor Shailesh Parikh, the learned Tribunal

concluded that the nexus between the cause of

death and accidental injuries could be proved.

6. This Court has no reason to upset the

finding of the Tribunal; however, it requires to

be mentioned here that the claim petition was

filed after the death of the deceased on

14.02.1994, hence, it is not a case, that the

petition was filed by injured claimant, who

subsequently died during the course of the trial.

7. As per the facts of the case, on

13.04.1993, Becharbhai, at 9:30 a.m., was going

at his business place situated near the gate of

Maharani Nursing Home for running his Sugarcane

Juice Shop. He had approached the business place

after crossing the Zebra Crossing and had reached

near the divider, at that time, from the northern

side of railway quarter, the opponent no.1 -

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driver of the Scooter No.Up-80-A-4646 came

driving the vehicle in rash and negligent manner

and dashed the deceased. As a result, the

deceased was thrown away and got dragged to some

distance, ultimately resulting fracture in thigh.

The Tribunal on consideration of the evidence

concluded the sole negligence of the opponent

no.1 scooter.

8. The facts and the evidence by son

Lalabhai, examined at Exh.24, suggests that after

sustaining fracture injury on right thigh, over

and above, bodily injuries, the deceased was

shifted to Doctor Shailesh Parikh Hospital, where

he was operated upon the fracture, and trochanter

and bars were inserted requiring screw. He had

remained indoor patient from 13.04.1993 to

03.05.1993, and confined to bed for about six

months, as was advised by Doctor on discharge

from the Hospital.

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8.1 The evidence was to the effect that due

to deficiency of sufficient nutrition and

nourishment, his health deteriorated and other

bodily complications developed. The treatment

continued with orthopedic surgeon and physician.

The physiotherapy treatment was given. The last

three months prior to his death was on liquid and

was unable to move freely.

8.2 Doctor Shailesh Parikh was examined at

Exh.43, who had treated the injured Becharbhai.

The Doctor had assessed the disability and had

also deposed that the injured was confined to bed

for a considerable period, and because of that,

he had suffered from Decubitus ulcer i.e. bedsore

as well as Enema, Pellagra (deficiency of

vitamin) and Hypoproteinaemia (deficiency of

Protein), and because of deficiency in immunity

power, the infection occurred. It was concluded

by the Tribunal that because of the accidental

injury, the injured suffered from the disease,

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and till his death he was in such condition,

which could not bring any recovery, thus, the

nexus between the accidental injury and the cause

of death was proved.

8.3 It is pertinent to note that thereafter

on his death, on 21.10.1993, the claim petition

was filed on 14.02.1994 by the widow and the son.

9. In the case of Oriental Insurance

Company Limited v. Kahlon alias Jasmail Singh

Kahlon (deceased) Through His Legal

Representative Narinder Kahlon Gosakan and Anr.,

reported in (2022) SCC 494, the case of injured,

who died during the trial was examined, and the

Apex Court observed in paragraph nos.8 to 12 as

under:

"8. The Act is a beneficial and welfare legislation. Section 166(1)

(a) of the Act provides for a statutory claim for compensation arising out of an accident by the

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person who has sustained the injury.

Under clause (b), compensation is payable to the owner of the property. In case of death, the legal representatives of the deceased can pursue the claim. Property, under the Act, will have a much wider connotation than the conventional definition. If the legal heirs can pursue claims in case of death, we see no reason why the legal representatives cannot pursue claims for loss of property akin to estate of the injured if he is deceased subsequently for reasons other than attributable to the accident or injuries under clause

(c) of Section 166(1). Such a claim would be completely distinct from personal injuries to the claimant and which may not be the cause of death. Such claims of personal injuries would undoubtedly abate with the death of the injured. What would the loss of estate mean and what items would be covered by it are issues which has to engage our attention. The appellant has a statutory obligation to pay

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compensation in motor accident claim cases. This obligation cannot be evaded behind the defence that it was available only for personal injuries and abates on his death irrespective of the loss caused to the estate of the deceased because of the injuries.

9. In Umed Chand (supra), giving a broad liberal interpretation to the provisions of the Act so that legal representatives do not suffer injustice, it was observed that the claim for personal injuries will not survive on death of the injured unrelated to the accident but the legal representatives could pursue the claim for enhancement of the claim for loss of the estate which would include expenditure on medical expenses, travelling, attendant, diet, doctor's fee and reasonable monthly annual accretion to the estate for a certain period. It is trite that the income which a person derives compositely forms part of the expenditure on himself, his family and the savings go to the estate. The unforeseen expenses as

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aforesaid naturally have to be met from the estate causing pecuniary loss to the estate.

10. In Maimuna Begum (supra) the defence under Section 306 of the Indian Succession Act, 1925 on the old English Common Law maxim "actio personalis moritur cum persona" was rejected opining that it would be unjust to non-suit the heirs on that ground.

11. In Venkatesan (supra), the injured claimant preferred an appeal dissatisfied, but was deceased during the pendency of the appeal. Compensation came to be awarded under the Act for loss of estate keeping in mind the nature of the injuries, the treatment, the expenditure incurred and loss of income.

12. In Surpal Singh (supra), Justice K.S. Radhakrishnan, C.J. (as he then was), observed that the Act was a social welfare legislation providing for compensation by award to people who sustain bodily injuries or get

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killed. The grant of compensation had to be expeditious as procedural technicalities could not be allowed to defeat the just purpose of the act. The Courts in construing social welfare legislations had to adopt a beneficial rule of construction which fulfils the policy of the legislation favorable to those in whose interest the Act has been passed. Judicial discipline demanded that the words of a remedial statutes be construed so far as they reasonably admit so as to secure that relief contemplated by the statute and it shall not be denied to the class intended to be relieved. Rejecting the maxim of "actio personalis moritur cum persona" on the premise that it was an injury done to the person and the claim abated with his demise it was observed:

"11. The question as to whether injury was personal or otherwise is of no significance so far as the wrong doer is concerned and he is obliged to make good the loss sustained by the injured.






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           Legal                 heirs             and          legal
           representatives                  would        have   also

suffered considerable mental pain and agony due to the accident caused to their kith and kin. Possibly they might have looked after their dear ones in different circumstances, which cannot be measurable in monetary terms. We are therefore in full agreement with the view expressed by the learned Single Judge of this Court in Gujarat State Road Transport Corporation's case (supra) that even after death of the injured, the claim petition does not abate and right to sue survives to his heirs and legal representatives."

9.1 In Budh Singh Vs. Vijender Singh & Ors.,

reported in 2013 ACJ 19, the Delhi High Court in

paragraph no.12, observed as under:

12. The Supreme Court in Smt. Manjuri Bera Vs. The Oriental Insurance Company Ltd. And Another, 2007 2 ACC 365 has held as under:

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"9. According to Section 2(11) of CPC, 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

Almost in similar terms is the definition of legal representative under the Arbitration and Concillation Act, 1996, i.e. under Section 2(1)(g)."

10. The referred case of Kahlan's (supra)

was filed under section 166 (1)(a), while in the

present matter, the claim petition was filed

under section 166(1)(c) of the M.V. Act. The

relevant provision of section 166 is reproduced

here under for ready reference:

"166. Application for compensation.-

(1) An application for compensation arising out of an accident of the

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nature specified in sub-section (1) of section 165 may be made--

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal 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.

Provided further that where a person accepts compensation under section

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164 in accordance with the procedure provided under section 149, his claims petition before the Claims Tribunal shall lapse.]

[(2) Every application under sub-

section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

[(3) No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident.]

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under 6 [section 159] as an application for compensation under this Act.]

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[(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not.]"

10.1 Clause (c) of sub-section (1) of section

166 notes that if the death has resulted from the

accident. The application for compensation could

be filed by or any of the legal representative of

the deceased. Thus, on the death of the father,

the claim petition was filed by widow mother and

the elder son. While during the pendency of the

matter, the mother died, hence, two other sons

were impleaded as a claimant as legal

representative of the deceased.

11. Here, in this case, the cause of action

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for filing the claim petition is death of

Becharbhai owing to the vehicular accident. The

expression "legal representative" used in section

166(1)(c) of the M.V. Act has not been defined

anywhere in the Act. The legislature has also not

given any definition of expression "legal

representative" in the M.V. Act. Section 2(11) of

the C.P.C. defines '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. On

death of a person, which has resulted from the

accident, the application for compensation may be

made by all or any of the legal representative.

The proviso is significant, which in as much as

provides, that when all the legal representatives

of the deceased have not been joined in any such

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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 respondent to the

application.

11.1 In this case, two other sons later on

have been joined as heir of deceased mother. In

fact, mother and elder brother were claiming the

compensation on behalf of all the legal

representatives of the deceased father. Hence,

rest of the two brothers, who were joined in the

claim petition, would have a cause to claim for

compensation on the death of the father itself.

11.2 Now, the right of all the claimants,

would get crystallize on the date of filing of

the application. Hence, all the sons and the

widow mother would have their right to file the

claim petition, which arose on the cause of death

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of the father because of vehicular accident.

Thus, on the date of filing of claim petition on

14.02.1994, all the claimants, the widow mother

and the sons had right to file the claim

petition, and, this aspect has been clarified by

Hon'ble Supreme Court in the case of N. Jayasree

And Ors. v. Cholamandalam MS General Insurance

Co. Ltd., reported in (2022) 14 SCC 712,

observing that the term the term 'legal

representative' should be given a wider

interpretation for the purpose of the M.V. Act

and it should not be confined only to mean the

spouse, parents and children of the deceased. The

M.V. Act being a benevolent legislation enacted

for object of providing monetary relief to the

victims and family. It has been observed by the

Apex Court that only liberal and wider

interpretation would serve the real purpose

undermining the enactment fulfills its

legislative intent. The following observation of

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the Apex Court reads as under:

"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.

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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 110-A to

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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 persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with well-known 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 bread-winner of the family and if the bread-winner is

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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                 [AIR
   1977 Guj 195]                   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."

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 Naique [1989 Supp.

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(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 [(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."

21. This Court after examining

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various provisions of the MV Act held that the appellant-society 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

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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."

22. Coming to the facts of the present case, the fourth appellant was the mother-in-law of the deceased. Materials on record clearly establish that she was

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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 mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law 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.

11.3 N. Jayasree And Ors. (supra), is about

the appellant no.4 being the mother-in-law of the

deceased and she was also considered dependent of

deceased.

12. When the claim petition was filed in the

instant case, mother was alive. She died on

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11.06.1997, the date gets reflected in Exh.20.

The application is required to be considered

under the provision of section 166(1)(c) of the

M.V. Act. The right of the widow of deceased,

mother of all the present claimants, to claim

amount as compensation fell on the date of death

of the husband. The learned Tribunal has failed

to take this aspect into consideration, and has

granted only the amount which the elder son had

expended behind the father. Here, the deceased

widow would have the right to claim compensation

on the date of the application, and the right get

crystalised on filing of the application, hence,

the compensation amount is required to be

ascertained on the date of filing of the claims

petition.

13. The deceased was earning from the

sugarcane juice shop. His earning was urged to be

Rs.2,000/- per month. The mother would be

entitled to receive the amount as a dependency

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loss and the multiplier applicable, would be

considered on the death of the deceased, while

not on the death of the claimant. Considering the

income of Rs.2,000/- per month, the annual income

would come to Rs.24,000/- (2,000 x 12), but

deducting 1/3rd amount as personal expenses

considering the widow as a dependent, the

dependency loss of the widow would be Rs.16,000/-

(24,000 - 8,000). Applying the multiplier of 13,

the dependency loss would be Rs.2,08,000/-.

13.1 The widow would be entitled for the

consortium loss of Rs.40,000/- as per the

judgment of Magma General Insurance Company Ltd.

Vs. Nanu Ram Alias Chuhru Ram & Ors., reported in

(2018) SCC 130 [2018 ACJ 2782].

13.2 The Tribunal has granted Rs.5,000/- each

under the heads of loss to estate and funeral

expense, which requires to be enhanced as

Rs.15,000/- each under both the heads as per

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judgment of National Insurance Company Ltd. v.

Pranay Sethi and Ors., AIR 2017 SC 5157.

13.3. The Medical expense, which could be

proved, the Tribunal has granted Rs.8,020/-,

which is just and proper and requires no

interference.

13.4 The deceased Becharbhai suffered for

almost about six months. The amount granted under

the head of pain, shock and suffering suffered by

the deceased, as that would be considered to be

the amount to the loss of estate to deceased, and

in accordance to evidence of Doctor, Rs.25,000/-

is assessed for the pain shock and sufferings

undergone by the deceased father, as observed in

paragraph no.5.5 of judgment rendered by Division

Bench of this Court in case of Royal Sundaram

Alliance Insurance Co. Ltd. Vs. Jayantibhai

Hemchandbhai Panchal, reported in 2016 (0) JX

(Guj) 1551 : 2016 (0) AIJEL-HC-236456.

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13.5 For special diet Rs.2,000/- and under

the head of attendant charges and transportation

Rs.5,000/- granted by the Tribunal, is just and

proper and not required to be interfered with.

13.6 In view of the above, compensation under

different heads would be:

       Heads           Tribunal                    has            Amount
                       granted
Loss             of              ____                    Rs. 2,08,000/-
Dependency
Consortium                       ____                    Rs.        40,000/-
Loss to mother
Funeral                Rs.         5,000/-               Rs.        15,000/-
Expenses
Loss to Estate Rs.                 5,000/-               Rs.        15,000/-
Attendance     Rs.                 5,000/-               Rs.          5,000/-
charges    and
transportation
Special Diet           Rs.         2,000/-               Rs.          2,000/-
Medical                Rs.         8,020/-               Rs.          8,020/-
expenses
Pain,     shock                  ____                    Rs.        25,000/-
and suffering
undergone    by
the deceased
Loss of love Rs.                   5,000/-                         ____
and affection
       Total           Rs.       30,020/-                Rs. 3,18,020/-






                                                                                           NEUTRAL CITATION




                  C/FA/3531/2014         JUDGMENT DATED: 14/02/2024

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14.          The          Tribunal             has        awarded               total

compensation as Rs.30,020/-. The claimant would

be entitled to get Rs.2,88,000/- (3,18,020 -

30,020) as enhanced compensation. The enhanced

amount be deposited before the concerned Tribunal

within Eight weeks from the date of receipt of

writ of this order at the rate of 7.5%.

15. It has been brought on record that the

elder son, Lalabhai Becharbhai Kahar was taking

care to both the parents. Manubhai Becharbhai

Kahar and Santosh Becharbhai Kahar had filed

affidavit vide Exh.22 and 23 before the Tribunal

that the compensation amount be paid to the elder