Gujarat High Court
Tata Aig General Insurance Co. Ltd vs Umesh Khanajibhai Dodiya on 29 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 215 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/FIRST APPEAL NO. 215 of 2025
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TATA AIG GENERAL INSURANCE CO. LTD.
Versus
UMESH KHANAJIBHAI DODIYA & ORS.
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant being aggrieved
and dissatisfied with the judgment and award dated 7.11.2024
passed by the Motor Accident Claims Tribunal, Ahmedabad
Rural @ Dholka in Motor Accident Claim Petition No.14 of 2022.
2. Facts in brief for admission of this appeal are as under:-
2.1 That on 22/05/2022 deceased Khanajibhai Karsanbhai
Dodiya was going to Saparka field on the Motorcycle of his friend
and at about 9.00 am when he was passing by Naganes road,
Near Essar Petrol Pump at that time, one Skoda Car bearing
Registration No. GJ-38-BD-3031 came from behind the
Motorcycle in full speed and in rash and negligent manner and
dashed with the Motorcycle of the deceased from rear side due to
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which deceased sustained serious injuries and died during
treatment. It is submitted that the accident occurred due to sole
negligence and carelessness of the driver of the said Car. That,
the complaint was also lodged against the driver of the said Car
in Ranpur Police Station vide CR No.I-294/2022. It is further
submitted that the deceased was 55 years old at the time of
accident and he earned Rs.20,000/- per month by doing mason
as well as agriculture work. Hence, this claim petition is filed by
the original claimants for getting compensation of Rs.30 lakh.
3. Learned advocate for the appellant raised solitary
contention that the claimants Nos.1 to 3 are the major sons and
daughter of the deceased Khanajibhai and therefore, they are not
dependents upon the deceased and as such, the learned
Tribunal ought to have deducted 1/2 towards personal and
pocket expenses. Upon such submission, she prays to allow this
First Appeal.
4. Whether married son or daughter can be considered as
dependent of the deceased or not and can maintain claim
petition u/s 166 of the MV Act has been addressed and settled
by this Court in case of Prernaben @ Purviben Mansukhlal
Mehta Decd.Thr Heirs Versus Daudkhan Usmankhan Belim,
2024 (0) JX(Guj) 1446 after referring plethora of judgments of
the Hon'ble Apex Court. Relevant para is 11 to 14, which reads
as under:-
"11. It was argued by learned advocates for the
insurance company that deceased Preranaben was
unmarried and therefore, the claimants who are father
and brother of the deceased cannot claim dependency
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loss. I am not impressed by the submission canvassed
by the learned advocates. Plain reading of section 166(1)
of the Act permits legal representatives of the deceased
to prefer claim petition. The MV Act, 1988 does not
define term "legal representative", but section 2(11) of
the CPC, reads as under:-
"SECTION 2 : Definitions In this Act, unless there is
anything repugnant in the subject or context,- (11)
"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;
12. Plain reading of section 2(11) of the CPC indicates
that in case of death of a person in the motor vehicle
accident, the right is available to the legal representative
or the agent of the deceased or injured to claim for
compensation under the MV Act. The issue as to who is
a legal representative or its agent is basically an issue of
fact and may be decided one way or the other dependent
upon the facts of a particular case. But as a legal
proposition it is undeniable that a person claiming to be
a legal representative has the locus to maintain an
application for compensation under Section 166 of the
Act. Said issue came up before the Hon'ble Apex Court
for decision in case of Montford Brothers of St. Gabriel
and Anr. vs. United India Insurance and Anr., (2014) 3
SCC 394 , whereby, the Full Bench of the Hon'ble Apex
Court after referring to the earlier judgment in case of
Gujarat State Road Transport Corporation, Ahmedabad
vs. Ramanbhai Prabhatbhai and Anr., (1987) 3 SCC 234
, in para 11 to 17 held as under:-
"11. Learned counsel for the Insurance Company tried
to persuade us that since the term `legal representative'
has not been defined under the Act, the provision of
Section 1-A of the Fatal Accidents Act, 1855, should be
taken as guiding principle and the claim should be
confined only for the benefit of wife, husband, parent
and child, if any, of the person whose death has been
caused by the accident. In this context, he cited
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judgment of this Court in the case of Gujarat State Road
Transport Corporation, Ahmedabad V/s. Raman Bhai
Prabhatbhai & Anr., AIR 1987 SC 1690 . In that case,
covered by the Motor Vehicles Act of 1939, the claimant
was a brother of a deceased killed in a motor vehicle
accident. The Court rejected the contention of the
appellant that since the term `legal representative' is not
defined under the Motor Vehicles Act, the right of filing
the claim should be controlled by the provisions of Fatal
Accident Act. It was specifically held that Motor Vehicles
Act creates new and enlarged right for filing an
application for compensation and such right cannot be
hedged in by the limitations on an action under the
Fatal Accidents Act.
12. Paragraph 13 of the report reflects the correct
philosophy which should guide the courts interpreting
legal provisions of beneficial legislations providing for
compensation to those who had suffered loss.
"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 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 wellknown
principles 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
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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/s. Chaturbhai
Taljabhai, (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."
13. From the aforesaid quoted extract it is evident that
only if there is a justification in consonance with
principles of justice, equity and good conscience, a
dependant of the deceased may be denied right to claim
compensation. Hence, we find no merit in the
submission advanced on behalf of the respondent-
Insurance Company that the claim petition is not
maintainable because of the provisions of the Fatal
Accidents Act.
14. On behalf of the appellants it has been rightly
contended that proceeding before the Motor Vehicle
Claims Tribunal is a summary proceeding and unless
there is evidence in support of such pleading that the
claimant is not a legal representative and therefore the
claim petition be dismissed as not maintainable, no
such plea can be raised at a subsequent stage and that
also through a writ petition. The objection filed on
behalf of the Insurance Company, contained in
annexure P.2, does not raise any such objection nor
there is any evidence led on this issue. As noted earlier,
the Tribunal did frame any issue regarding
maintainability of the claim petition on law and fact as
issue no.1 but the findings recorded by the Tribunal at
page 41 of the paper book show that this issue together
with issue nos. 2 and 3 were not pressed by the
opposite parties during trial and were accordingly
decided in favour of the claimants.
15. In the aforesaid circumstances, the order under
appeal dated 20.8.2002 allowing the writ petition suffers
from apparent mistake in not noticing the relevant issue
decided by the Tribunal and also the fact that the
Insurance Company, which was the writ petitioner, had
not pressed this issue. It had neither raised pleadings
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nor led evidence relevant for the said issue.
16. On coming to know about the High Court judgment
the appellants filed a review petition in which they gave
all the relevant facts including the constitution of the
society appellant no.1 in support of their claim that a
`Brother' of the Society renounced his relations with the
natural family and all his earnings and belongings
including insurance claims belonged to the society.
These facts could not have been ignored by the High
Court but even after noticing such facts the review
petition was rejected.
17. A perusal of the judgment and order of the Tribunal
discloses that although issue no.1 was not pressed and
hence decided in favour of the claimants/appellants,
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 dependants 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
organization may suffer considerable loss due to 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 reported in AIR 1987 Pat. 239, 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."
13. Worthy assistance can be taken from the judgment
of Hon'ble Apex Court in the case of National Insurance
Company Ltd. v/s. Birender and Ors [(2020) 11 SCC
356] , whether married and major sons having gainful
employment or earning elsewhere can claim
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compensation and whether claim petition at their
instance is maintainable was issue before the Hon'ble
Apex Court in the matter. Hon'ble Apex Court in para
12 to 14 has observed as under :-
"12. 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 subsection (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
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 de ceased 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
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similar terms is the definition of legal representa tive
under the Arbitration and Conciliation Act, 1996 i.e. un
der Section 2(1)(g).
12. 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, 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 prop erty 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 adminis trators in possession of
the estate of the deceased. All such persons would be
covered by the expression "legal represen tative". As
observed in Gujarat SRTC v. Ramanbhai Prabhatb hai
[(1987) 3 SCC 234 a legal representative is one who suf
fers on account of death of a person due to a motor
vehicle accident and need not necessarily be a wife,
husband, parent and child."
13. In paragraph 15 of Majnuri Bera, 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.
14. Yet, in another judgment of the Hon'ble Apex Court
in case of N.Jayasree Versus Cholamandalam Ms
General Insurance Company Ltd., 2022 (14) SCC 712 ,
where the mother-in-law has been considered
dependent of the deceased, the Hon'ble Apex Court after
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referring judgment in case of Ramanbhai Prabhatbhai
(supra) as well as Montford Brothers (supra) held that if
legal representatives suffers on account of the death of a
person in a motor vehicle accident should have a
remedy for realization of compensation. The relevant
para of Hon'ble Apex Court is para 14 to 20, which
reads as under:-
"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.
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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, 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., (1987) 3 SCC 234 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
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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, 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 110A of
the Act if he is a legal representative of the deceased."
19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and
Ors., (2007) 10 SCC 715 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 (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 Prabhatbhai3 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."
20. In Montford Brothers of St. Gabriel and Anr. vs.
United India Insurance and Anr., (2014) 3 SCC 394 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
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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 Choudhary,
AIR 1987 Pat 239 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."
5. In view of above, the submission of learned advocate Ms.
Pathak has no force.
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6. As as per Order 41 Rule 11 of the CPC, the Court has
power to dismiss the First Appeal summarily at admission stage
if found no substantial ground to issue notice to lower Court as
well as to the respondent. Order 41 Rule 11 of the CPC reads as
under:-
"041 ORDER XLI-APPEALS FROM ORIGINAL DECREES
RULE 11 : Power to dismiss appeal without sending
notice to Lower Court
6 [(1) The Appellate Court after fixing a day for
hearing the appellant or his pleader and hearing
him accordingly if he appears on that day may
dismiss the appeal.]
(2) If on the day fixed or any other day to which
the hearing may be adjourned the appellant does
not appear when the appeal is called on for
hearing, the Court may make an order that the
appeal be dismissed.
(3) The dismissal of an appeal under this rule shall
be notified to the Court from whose decree the
appeal is preferred.
7 [(4) Where an Appellate Court, not being the
High Court, dismisses an appeal under sub-rule
(1), it shall deliver a judgment, recording in brief
its grounds for doing so, and a decree shall be
drawn up in accordance with the judgment.]"
7. Resultantly, First Appeal fails and stands dismissed in
limine at admissions stage. Consequently connected civil
application also stands disposed of.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
