Abdul Raheem S/O Abdul Hameed vs Gnyan Reddy S/O Subhash Reddy ...
2022 Latest Caselaw 5317 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 24TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MFA No.30630/2013 (MV)

Between:

Abdul Raheem S/o Abdul Hameed,
Age: 43 years, Occ: Owner of Trax,
R/o H.No.141, Toad Galli, Humnabad,
Dist. Bidar-585 330.
                                          ... Appellant
(By Sri Basavaraj R.Math, Advocate)

And:

1.     Gnyan Reddy
       S/o Subhash Reddy Algole,
       Age: 28 years,
       Occ: Petty Business, Now Ni.

2.     Shashikala W/o Malreddy,
       Age: 53 years, Occ: Household,

3.     Malreddy S/o Yenkareddy Kapnoor,
       Age: 58 years, Occ: Agriculture,

       All R/o village Kalmood,
       Tq. & Dist. Gulbarga-585 103.
                                2




4.      Santosh S/o Naganath,
        Age: 38 years,
        Occ: Owner of the Vehicle,
        R/o H.No.1-4-3, Hunasgera,
        Tq. Humnabad,
        Dist. Bidar-585 330.

5.      The Manager, Cholamandalam
        M.S. General Insurance Company
        Limited, Head Office at
        Dare House, IInd floor, N.S.C. Bose Road,
        Chennai-600 001.
                                            ... Respondents

(By Sri Babu H.Metagudda, Advocate for R1 to R3;
 Sri S.S.Aspalli, Advocate for R5;
 Notice to R4 is dispensed with
 v/o dated 28.11.2013)


        This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to call for records and set
aside    the   impugned     judgment     and   award    dated
12.12.2012 passed by the Prl. Senior Civil Judge & MACT,
Gulbarga in MVC No.924/2010.


        This appeal coming on for Hearing, this day, the
Court delivered the following:-


                         JUDGMENT

This appeal is filed by the owner under Section

173(1) of the Motor Vehicles Act (for short 'the Act')

challenging the judgment and award dated

12.12.2012 passed by the Principal Senior Civil Judge

and Motor Accident Claims Tribunal, Gulbarga (for

short hereinafter referred to as 'the Tribunal') in MVC

No.924/2010.

2. Parties are referred to as per their ranking

before the Tribunal. Appellant is respondent No.2,

respondent Nos.1 to 3 are the petitioners, respondent

No.4 is respondent No.1 and respondent No.5 is

respondent No.3 before the Tribunal.

3. Facts giving rise to filing of this appeal are

that on 12.07.2010 at about 7.15 hours, while the

deceased-Sunitha, her husband and other couples

were proceeding in a Trax bearing registration No.KA-

39/M-714 from Bangalore to Mysore, in the limits of

Mayaganahalli in front of H.P. Petrol Pump, the driver

of the said Trax drove the vehicle in a rash and

negligent manner with a high speed, endangering the

human life and due to which, he lost control over the

vehicle. As a result, the said vehicle turtled, and the

deceased-Sunitha sustained grievous injuries and

succumbed to the injuries on the way to the hospital.

The petitioners being the legal representatives of the

deceased-Sunitha filed claim petition under Section

166 of the M.V.Act, seeking compensation for the

death of Sunitha in the road traffic accident.

4. The respondents appeared before the

Tribunal through their counsels. Respondents No.1

and 2 filed common written statement denying the

averments made in the claim petition and contended

that respondent No.1 being the driver of Trax bearing

registration No.KA-39/M-714 was having valid and

effective driving licence as on the date of accident and

also contended that the vehicle was insured with

respondent No.3 and prayed to dismiss the claim

petition.

5. The respondent No.3 - Insurance Company

filed written statement denying the averments made

in the claim petition and contended that petitioners

No.2 and 3 are not family members of the deceased

Sunita and they are not dependents of the deceased

Sunitha. Further, respondent No.1, being the driver of

the said vehicle, was not holding valid and effective

driving licence as on the date of accident and prayed

to dismiss the claim petition.

6. The Tribunal on the basis of the pleadings

of the parties framed the issues.

7. The petitioners in order to prove their case,

petitioner No.1 was examined as PW.1 and got

marked the documents as Ex.P1 to Ex.P7. On behalf

of the respondents, respondent No.3 Insurance

Company examined its Officer as RW-1 and got

marked the document as Ex.R1 and the respondent

No.1 owner of offending vehicle examined himself as

RW-2.

8. The Tribunal, after recording the evidence

and considering the material on record, held that the

petitioners have proved that the accident occurred

due to negligent act of the driver of the Trax bearing

registration No.KA-39/M714 and the deceased

Sunitha sustained injuries and died on the spot. As

such, respondent No.2 owner of offending vehicle is

liable to pay the compensation and consequently

allowed the claim petition in part and awarded a

compensation of Rs.4,82,000/-. Respondent No.2,

aggrieved by the judgment and award passed by the

Tribunal, has filed this appeal.

9. Heard the learned counsel for the

respondent No.2 - owner, learned counsel for the

petitioners and also learned counsel for the

respondent No.3 - Insurance Company.

10. The learned counsel for respondent No.2

submits that the Tribunal has committed an error in

fastening the liability on the respondent No.2. He

further submits that the petitioners No.2 and 3 are the

parents of deceased Sunitha and they do not fall

within the definition of family as they are not

depending on the deceased Sunitha. Hence, the

Tribunal has committed an error in awarding the

compensation to petitioners No.2 and 3. Hence, on

these grounds, he prays to allow the appeal.

11. Per contra, the learned counsel for the

petitioners submits that the petitioners No.2 and 3

were dependents of the deceased Sunitha. Hence,

they fall within the definition of legal representatives.

Hence, the Tribunal was justified in awarding

compensation.

12. Per contra, learned counsel for the

respondent No.3 adopts the arguments of learned

counsel for the respondent No.2.

13. Perused the records and considered the

submissions made by the learned counsel for the

parties.

14. The point that arises for consideration is

with regard to liability.

15. It is not in dispute that the deceased

Sunitha met with an accident, sustained grievous

injuries and succumbed to the injuries. In order to

prove that the accident has occurred due to the rash

and negligent driving of the driver of the Trax bearing

registration No.KA-39/M-714, the petitioners have

produced copy of the FIR and charge sheet, which are

marked as Ex.P1 and Ex.P2. Ex.P2 discloses that the

accident has occurred due to the rash and negligent

driving of the driver of the Trax bearing registration

No.KA-39/M-714.

16. Insofar as liability is concerned, respondent

No.3 has taken a specific defence in the written

statement that the deceased Sunitha was traveling as

a gratitious passenger and the risk of the deceased

was not covered in the policy in question and

therefore Respondent No.3 is not liable to pay

compensation to the petitioners.

17. Learned counsel for the petitioners has

contended that the respondent No.3 has admitted the

liability in M.V.C.No.906/2011 and

M.V.C.No.907/2011, claim petitions arising out of the

same accident and already paid the compensation to

the claimants in the aforesaid claim petitions. The

settlement made in M.V.C.No.906/2011 and

M.V.C.No.907/2011 has not been disputed by the

counsel for respondent No.3. Having admitted the

liability in the aforesaid claim petitions, now the

respondent No.3 cannot exonerate from its liability in

the present appeal. Hence respondent No.3 is liable

to indemnify the petitioners in the present appeal.

Further, the Tribunal has committed an error in

recording a finding that the deceased was a paid

passenger. Hence, in view of the above discussion,

respondents No.2 and 3 being the owner and insurer

are jointly and severally liable to pay the

compensation.

18. An interesting question of law that arises in

this appeal is whether the unfortunate parents who

lost their married daughter in a road traffic accident

are entitled for compensation for the death of their

daughter. In order to consider the said question it is

necessary to examine Section 166 of the M.V.Act

which reads as under :

"166. Application for compensation.--

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

Section 166(1)(c) of the M.V. Act permits a legal

representative of a deceased to file a claim petition

seeking compensation. The word legal representative

is not defined in the M.V.Act.

Further, as per Section 2(11) of the Code of Civil

Procedure, wherein the word legal representative is

defined as under :

" '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; "

The said definition of legal representative

includes the parents as it stands wider meaning and

not confining itself to spouse, parents and children of

the deceased. The Hon'ble Apex Court considered the

word "legal representatives" in the case of GUJARAT

STATE ROAD TRANSPORT CORPORATION,

AHMEDABAD v/s RAMANBHAI PRABHATBHAI &

ANOTHER reported in (1987) 3 SCC 234 and held

that brother could maintain a claim petition. The

brother could maintain claim petition there could not

be any difficult in maintaining the application by the

parents. As per the provisions of Fatal Accidents Act,

1855 provides that wife, husband, parents and

children of the deceased person can initiate action or

suit claiming petition for the death. The Hon'ble Apex

Court took a note of the fact when the Law

Commission suggested to define the word "legal

representative" in terms of Fatal Accidents Act, to

include wife, husband, parents and children alone, the

Parliament in its wisdom declined to amend, in terms

of the recommendation of the Law Commission.

Accordingly, the word 'legal representative" as its

stand as a wider meaning and confining itself to the

spouse, parents and children of the deceased. In this

regard I would like to place a reliance of the judgment

in para-15, which reads as follows:

"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 85 th report that it would be appropriate to assign to the expression '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 representative' 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"

After coming into force of the Constitution of

India the dependency of the parents does not cease

on the marriage of the daughter and if such a view is

permitted, it would amount to treating the women as

a property given in marriage. Women are given equal

rights in our constitutional scheme and it could not be

said that the parents of the deceased son could be

treated as a dependant but not the parents of the

deceased married daughter as it would offend Article

14 and 15 and 21 of the Constitution of India. The

statute namely the Maintenance and Welfare of the

Parents and Senior Citizens Act, 2007 should be read

in context of the international convention approved by

the Hon'ble Apex Court read with Article 151 of the

Constitution of India. The parents are thus statutorily

recognized the parents as dependents of the married

daughters and they are given statutory protection to

seek maintenance treating them as a dependents

under Section 2(a), 2(b) and 4 of the aforesaid Act.

Thus, the parents of the deceased married daughters

are entitled to compensation. The said view is

reiterated by the Delhi High Court in the case of SMT.

GANNI KAUR V. THE STATE (NCT) and Ors.

reported in AIR 2007 Delhi 273 held even without

reference to the aforesaid enactment, that the parents

of the deceased daughter are equally entitled to

compensation like the parents of the deceased son.

Paragraph 7 and 16 of the said judgments are

relevant for the purpose of this case and the same are

extracted hereunder:

"7. It was contended on behalf of the petitioner that the general rules of succession provided in Section 15 of the Hindu Succession Act, 1956 do not provide any indication with regard to the compensation on account of death of a girl. It was submitted that this Court has to decide whether the non-obstante clause of Section 15(2)(a) would be applicable in the case of compensation and whether it would have overriding effect over Section 15(1)(b).

Pertinent questions were also raised with regard to the eligibility of the parents of a married girl with respect to compensation for her death. It was also submitted that upon the marriage of the daughter, the parents do not divest themselves of their responsibility to look after her well-being. The traditional view of

giving away the daughter at the time of marriage for all times to come does not hold good any more. It was submitted that judicial notice can be taken of the multitude of dowry harassment cases and cases of cruelty on the part of the husband and the girl's in-laws. In such situations, the parents of the girl have to suffer not only the financial burden, but also the mental trauma associated therewith. In this context, it was submitted that if the compensation is granted in this case only to Respondent No. 3, then it would run counter to all the principles of fairness and equity and would mean that the State as well as the courts give recognition to the rights of the parents of the husband but none to the rights of the parents of the wife.

16. The compensation in question has to be viewed from this perspective, i.e., standard compensation and compensation for pecuniary loss. Insofar as both these elements are concerned, there is no difficulty in straightway coming to the conclusion that the position of the petitioner is no different from that of the respondent No.3. The petitioner lost her

daughter and her grand children as also her son-in-law. Kishan Singh (respondent No. 3) lost his son, his grand children as also his daughter-in-law. The extent of the pain and hurt that could be suffered by both would not be any different. The agony of the loss of a daughter cannot be less than the agony of loss of a son. Similarly, the agony of the loss of the daughter's children cannot be any less than the agony of the loss of the son's children. I do not see how it can even be contended that the right of the respondent No.3 to receive compensation is on a higher footing than that of the petitioner. Reliance placed on the personal law of succession is of no consequence in this case. This is a matter of compensation being awarded by the State which does not function under any personal law. It only functions under the Constitution of India which has established it as a secular state. Wherever the relationship between the State and a Citizen is in issue, the personal law of the citizen has little or no relevance. Personal laws operate mostly in the domain of Citizen v Citizen contests."

The Madras High Court in the case of GLORY

BAI AND ANR. v/s S.K.A. NOORJAKAN BEEVI

AND ORS., reported in 2013 ACJ 32, considering the

judgment of Ganni Kaur V (supra) held that, parents

of deceased married daughter are to be treated as

dependents as per the Act of 2007 and allowed the

claim petition and awarded compensation for the

death of married daughter.

19. Considering the law laid down in the

aforesaid judgments, hence I am of the opinion that

the parents of the deceased married daughters i.e.,

petitioners No.2 and 3 are entitled for compensation

and the Tribunal was justified in awarding

compensation to petitioners No.2 and 3.

20. In view of the above discussion, I proceed

to pass the following:

ORDER

i. The appeal is allowed in part.

ii. The impugned judgment and award passed by the Tribunal is modified.

iii. Respondents No.2 and 3 are jointly and severally liable to pay the compensation as awarded by the Tribunal.

iv. Respondent No.3 is directed to deposit compensation amount before the Tribunal within a period of eight weeks from the date of receipt of certified copy of this judgment.

v. Registry is directed to refund the deposited amount in favour of the respondent No.2.

Sd/-

JUDGE

GRD