Gujarat High Court
The Oriental Insurance Co. Ltd vs Chhotalal Kevaldas Kuhar on 14 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2771 of 2024
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THE ORIENTAL INSURANCE CO. LTD.
Versus
CHHOTALAL KEVALDAS KUHAR & ORS.
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Appearance:
MR ANAL S SHAH(3988) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1,10,11,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 14/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - Insurance
Company being aggrieved and dissatisfied with the judgment
and award dated 05.03.2021 passed by the Motor Accident
Claims Tribunal, Patan in Motor Accident Claim Petition No.207
of 2017.
2. Learned advocate Mr.Shah for the appellant raised
contention that learned Tribunal has taken up income of the
deceased on higher side. He would submit that deceased was
home maker, yet learned Tribunal has taken Rs.8000/- as
monthly income of the deceased, having no evidence on record.
He submits that learned Tribunal has wrongly assessed
compensation. Therefore, it is submitted to allow the appeal.
3. In the present case, deceased Kesarben lost her life while
she was going in Swift Car, which had been dashed with Scorpio
Car coming from opposite side. Resultantly, Swift Car got dashed
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with Mahindra Max Tempo and thus triple accident become
killer as stated earlier, Kesarben lost her life. According to
claimant, deceased was 50 years. It is also claimed that she was
helping in blacksmith and animal husbandry work. She was
healthy and therefore, claimants claimed Rs.15,000/- income
per month. Learned Tribunal adopted income of Rs.8,000/- per
month in absence of evidence but what could be noticed that
deceased was home maker. She was keeping family intact and
bind. She was providing gratuitous services to the family 24/7
and 365 days. Her services to the family is invaluable though
she did not do professional work, but her role as home maker
cannot be discarded. In such circumstances, income of
deceased cannot be less than daily wager. Accident took place on
14.09.2016 and rate of minimum wages for labourer in the State
of Gujarat for said period was Rs.8133/- per month.
4. At this juncture, I may refer to judgment of Hon'ble Apex
Court in the case of Arvind Kumar Pandey v/s. Girish Pandey
[Civil Appeal No.2512 of 2024]. Para 7 and 8 of said judgment
reads as under :-
"7. Assuming that the deceased was not employed, it
cannot be disputed that she was a homemaker. Her direct
and indirect monthly income, in no circumstances, could
be less than the wages admissible to a daily wager in the
State of Uttarakhand under the Minimum Wages Act.
8. It goes without saying that the role of a homemaker is as
important as that of a family member whose income is
tangible as a source of livelihood for the family. The
activities performed by a home-maker, if counted one by
one, there will hardly be any doubt that the contribution of
a home-maker is of a high order and invaluable. In fact, it
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is difficult to assess such a contribution 3 in monetary
terms."
5. Applying ratio laid down above and considering the fact
that rate of minimum wages at the relevant time was Rs.8133/-,
taking up income of Rs.8000/- for the deceased, by no means
can be said on higher side.
6. Another contention is raised by learned advocate for the
appellant / claimant that claimant nos.2 to 5 are major sons and
daughters and they cannot be treated as dependent upon the
deceased / mother. The contention is totally merit-less. In case
on hand, the Court is considering invaluable services of home-
maker and it is difficult to assess her contribution in terms of
money. For assessment of compensation, this Court has
approved finding of taking up income of deceased at Rs.8000/-.
Major sons and daughters may not be fully dependent on the
mother but in the killer road accident, they have lost their
mother. Their love and affection has been drastically effected.
Emotionally they are ruined. In the case on hand, it was never
case of financial dependency. Loss of mother is biggest loss. In
view of that contention that claimant nos.2 to 4 cannot be
treated as dependency on mother is unacceptable. The issue is
squarely covered by judgment of Hon'ble Apex Court in the case
of National Insurance Company Limited v/s. Birender And Ors
[2020 (11) SCC 356]. In para 14, it is held as under :-
"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
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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 sub-section 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 who claims for
the same.
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 [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
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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."
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."
7. In view of above, the First Appeal sans merits and
accordingly, it is dismissed.
8. The Tribunal shall disburse the entire awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest
thereon, if any, to the claimant, by account payee cheque /
NEFT / RTGS, after proper verification and after following due
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procedure.
9. While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
10. Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
