Madhya Pradesh High Court
Smt. Ramadevi Rajput vs Bharat Kumar Chourasia on 21 May, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 21st OF MAY, 2024
MISC. APPEAL No. 3209 of 2023
BETWEEN:-
SMT. RAMADEVI RAJPUT W/O AMARSINGH,
AGED ABOUT 46 YEARS, R/O FUTERA WARD
NO.1, DAMOH DISTRICT DAMOH AT PRESENT
R/O SAMANNA RAIYATWARI HAAR, BEHIND
BYPASS DAMOH DISTRICT DAMOH (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI KAPIL PATWARDHAN ADVOCATE )
AND
1. BHARAT KUMAR CHOURASIA S/O
GAJADHAR CHOURASIA, AGED ABOUT 42
YEARS, R/ MAIN MARKET WARD NO.11,
HINDORIA DISTRICT DAMOH (MADHYA
PRADESH)
2. THE ORIENTAL INSURANCE COMPANY
LTD. THROUGH BRANCH MANAGER
BRANCH OFFICE O.P. HUB V INDRAPURI
B.H.E. RAISEN NROAD BHOPAL (MADHYA
PRADESH)
3. RAMSINGH RAJPUT S/O MAANAK RAJPUT,
AGED ABOUT 53 YEARS, NOT MENTION
(MADHYA PRADESH)
4. GOVIND RAJPUT S/O MAANAK RAJPUT,
AGED ABOUT 55 YEARS, NOT MENTION
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DINESH KAUSHAL ADVOCATE )
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 01-06-2024
15:45:10
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This appeal coming on for admission this day, the court passed
the following:
ORDER
This appeal has been filed by the appellant under Section 173
(1) of the Motor Vehicle Act, 1988 against the award dated 14.7.2022
passed in MACC No.240/2018 by Third Addl. MACT, Damoh
seeking enhancement of compensation amount.
2. Learned counsel for the appellant after referring to
M.A.No.2893/2004 (The New India Assurance Vs. Smt. Nalini and
others) submits that in view of definition of legal representative as
provided in section 2 (11) of CPC, sisters can file claim petition for
compensation in relation to death of her brother in motor vehicle.
There is no requirement of any law that claimants are required to be
dependent on deceased, instead, if claimants are legal representative of
deceased then they can file claim petition for compensation. Though,
claimant/ appellant is not dependent on deceased, still, she can claim
compensation. On above grounds, it is urged that suitable
compensation be awarded.
3. Learned counsel for the respondents after referring to
section 8 of the Hindu Succession Act, as well as Schedule 1 attached
with section 8 submits that appellant is sister of deceased. Therefore,
she is not legal heir of deceased under Section 8 of the Hindu
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Succession Act. Brother of deceased/appellant are alive but they have
not filed claim petition. Further, appellant is not dependent on
deceased. Appellant is married. Hence, appellant is not legal
representative of deceased. Therefore, appellant /claimant is not
entitled to receive any compensation. With respect to above, learned
counsel for the appellant has relied upon National Insurance Co. Ltd.
Vs. Bela Ghosh 2023 (4) TAC 890 (Cal.) On above grounds, it is
urged that appeal filed by the appellant be dismissed.
4. Learned counsel for the respondent further submits that
appellant has valued the present appeal for Rs.1,00,000/-, therefore, if
appeal is allowed, then, enhancement be restricted to Rs.1,00,000/-
only.
5. I have heard learned counsel for the parties and perused the
record of the case.
6. Crux of the learned counsel for the respondent insurance
company's submission is that the appellant being married and
deceased being brother of the appellant, appellant is not legal heir \of
her deceased brother under Section 8 of the Hindu Succession Act.
Therefore, she is not entitled to receive any compensation. In this
connection, learned counsel for the respondent insurance company has
referred to section 8 of the Hindu Succession Act, 1956 as well as he
has relied upon in the case of National Insurance Company Ltd. Vs.
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Bela Ghosh and others, 2023 (4) TAC 890 (Cal.) Where as on the
contrary, learned counsel for the appellant claimant after relying upon
New India Insurance Co.Ltd. Vs. Smt. Nalini Verma (supra) submits
that sister and brother of deceased will come within the definition of
legal representative as provided in section 2 (11) of CPC. Therefore,
appellant is entitled to receive compensation.
7. With respect to controversy involved in the case, Section 8
(b), 9, 11 and 19 of Hindu Succession Act, 1956 and schedule attached
to Section 8 are relevant.
8. Section 8 of Hindu Succession Act, is as follows:-
"8. General rules of succession in the case of males-
(a)***********
(b) secondly, if there is no heir class-I, then upon the
heirs, being the relatives specified in class-II of schedule;
(c)*************
(d)**********"
9. Thus, from above, it is evident that class II heirs got only in
the absence of any one of the Class I heirs (Section 9). In Class II there
are nine entries and some of them contain more than one heir. The
heirs in an entry exclude the heirs in subsequent entries (section 9). If
there are no heirs in entry 1, those in entry II take and if there are no
heirs in Entries I and II those in Entry III are entitled and so on. Heirs
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in the same entry take simultaneously and not one after the other. The
use of Arabic numerals while indicating the heirs in some of the
entries in the Class II does not connote preference among the heirs in
those entries and they take together.
10. Section 9 of the Hindu Succession Act, is as follows:-
"9. Order of succession among heirs in the Schedule-
Among the heirs specified in the Scheduled those in
class-I shall take simultaneously and to the exclusion of
all other heirs; those in the first entry in class II shall be
preferred to those in the second entry; those in the second
entry shall be preferred to those in the third entry; and so
on in succession."
11. Thus, while section 8 enumerates all possible heirs of a male
Hindu dying intestate into four categories, this section lays down the
order of succession among the heirs enumerated in section 8. The
Class I heirs will be entitled to take to the exclusion of all others.
Among themselves they take simultaneously Class II heirs will come
in only when there is none of those stated in the list of Class I heirs.
Among Class II heirs again there are nine entries and each entry
excludes the subsequent entries as well as the heirs mentioned in
clauses (c) and (d) of section 8. One entry in class II list may consist of
more than one heir but they take simultaneously and equally as stated
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in section 11 though the word "simultaneously" is not used for Class II
heirs as in case of heirs in Class I.
12. Entry means entry denoted by a Roman number. The Arabic
numbers are not to be treated as entry numbers but the serial
enumeration of heirs in any of the entries.
13. Section 11 of the Hindu Succession Act reads as follows:-
"11. Distribution of property among heirs in class II of
the Schedule.-
"The property of an intestate shall be divided between the
heirs specified in any one entry in class II of the Schedule
so that they share equally."
14. This section provides that the heirs in any one entry of Class
II heirs of the Schedule share equally. For eg. Entry II contains four
heirs viz. (1) daughter's son's son (2) daughter's son's daughter (3)
daughter's daughter's son (4) daughter's daughter's daughter. They
share equally.
15. The numbering of the heirs enumerated in one entry, with
Arabic figures is not to indicate any order of succession among them.
In Satyacharam v Urmila the Supreme Court held that the brothers and
sisters of the husband of a female Hindu should take equally and
simultaneously and the brother is not to be preferred to the sister on
the basis that brother was numbered as (3) and sister as (4) in Entry II
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of Class II heirs in the Schedule. Similarly a brother's daughter, item
(3) in Entry IV, does not exclude the Sister's son, item (2) in Entry IV,
and vice versa. The Madras High Court laid down that The expression
"they share equally" in section 11 refers to the individual shares within
the particular entry and not any particular group of heirs as
constituting one unit. This section is to be read with section 19 which
states that when two or more heirs succeed together, they take per
capita and not per stirpes unless otherwise provided in this Act and hat
such heirs shall take as tenants-in-common and not as joint tenants.
16. Section 19 of the Hindu Succession Act reads as follows-
"19 Mode of succession of two or more heirs- If two or
more heirs succeed together to the property of an intestate,
they shall take the property,-
(a) save as otherwise expressly provided in this Act, per
capita and not per stripes; and
(b) as tenants-in-common and not a joint tenants."
17. Schedule attached to Section 8 of Hindu Succession Act is as
follows-
THE SCHEDULE
(see section 8)
Class-II
I. Father
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II. (1) Son's daughter's son (2) son's daughter's daughter,
(3) brother, (4) sister.
III. (1) Daughter's son's son (2) daughter's son's
daughter, (3) daughter's daughter's son (4) daughter's
daughter's daughter.
IV. (1) Brother's son (2) sister's son (3) brother's daughter
(4) sister's daughter.
V. Father's father, father's mother.
VI. Father's widow; brother's widow.
VII. Father's brother; father's sister
VIII. Mother's father; mother's mother
IX. Mother's brother; mother's sister.
18. Hon'ble Apex Court in Satya Charan Dutta Vs. Urmila
Sundari Dassi and Ors, (1969) 2 SCC 868 has held as under:-
"3 .The sole point which-has to be considered is
whether, according to the order of succession as
laid down in Class II of the Schedule to s. 8 of the
Act, brother would succeed in preference to the
sister or whether the brother and sister would
succeed .jointly having equal shares ?
4. Before the High Court the contention raised on
behalf of the appellant was that "brother" being
prefixed by arabic numeral 3 came before
"sister" which word had the numeral (4) before it
and that the object of using the numerals within a
particular group was to prescribe the order of
precedence or preference. It was also argued that
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the use of the arabic numerals in groups II, III
and IV of Class II must have some meaning;
otherwise the legislature would have used such
numerals in respect of the heirs not only in class
II but in class I as well. The learned judges of the
division bench felt that the use of the arabic
numerals appeared to be redundant but "the
combined effect of this section read with the
others seems to be that the legislature intended
that the heirs named after numerals II,III IV
composed three entries only".
5. We are unable to accede to the argument that
the use of arabic numerals is decisive of the point
whether or not the heirs specified in entry II of
class II succeed simultaneously and equally. It is
inconceivable that a matter of such importance
should have been left to the employment of
numerals alone. If the intention of the legislature
was that each class of relatives shown against the
arabic numerals constituted an entry express and
specific provisions to that effect would have been
made in the substantive sections of the Act.
Indeed s. Il says quite clearly that the property of
an intestate shall be divided between the heirs
specified in any one entry in class II of the
Schedule so that they share equally. That
language would not be consistent with the view
that file heirs shown against the arabic numerals
constitute an entry within the meaning of s. 11.
The Act was meant to lay down a comprehensive
and uniform system of inheritance and its scheme
is to prescribe a set of rules for succession to the
property of male and female Hindus dying
intestate. Sections 8 to 13 contain the general
rules relating to succession to the property of a
male Hindu including the matter of ascertainment
of shares. Sections 15 and 16 contain the general
rules affecting succession to the property of a
female Hindu. The rules relating to preferential
heirs are given in s.10. If the intention was to
give preference among the heirs in Class II
according to arabic numerals treating the same
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as a separate entry some provision would
undoubtedly have been made in s.11 for that
purpose. As noticed before it is that section which
deals with the distribution of property among
heirs in class II of the Schedule. Indeed s.11
would be wholly unnecessary if each one of the
heirs mentioned in each entry of class II were to
take preference to the next one in the. same entry.
It is also. significant that in class 1 male and
female heirs have been treated as equal. There is
no reason why any distinction should have been
made among the heirs in class II on the ground of
the heir being male or female. For instance in
entry II in class Il a brother would have
preference over the sister and in his presence the
later would succeed if the submission on behalf of
the appellant is to. be accepted. No reason or
justification has been suggested for making such
a distinction. Similarly on the appellant's
argument the son's daughter's son should have
preference over the son's daughter's daughter.
That again would run counter to the whole
scheme of the Act that male and female heirs
should get equal treatment. It must be
remembered that the Act incorporated one of the
principal reforms which had become a pressing
necessity owing to the-changed social and
economic conditions in Hindu society that in
succession there should be equal distribution
between male and female heirs.
6. It is true that the draftsmen while employing
the arabic numerals in entries Il to IV of class II
only are likely to have something in mind but on
the whole and in view of the reasons which have
been given above no particular significance can
be given to the use of the arabic numerals.
Generally speaking numbers or numerals are
employed in a statute for the sake of convenient
and easy reference but their use cannot override
the statutory provisions. Nor is it possible in the
'absence of any indication in the sections or in
the Schedule itself to attribute such a radical
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departure from the general scheme of
classification of heirs, as has been suggested,
namely, that in case of three entries only in class
11 the legislature intended to create an order of
preference and lay down the same by the use of
arabic numerals.
19. Hon'ble Apex Court in Ramachandra Pillai vs.
Arunschalathammal and others, (1971) 3 SCC 847 has held as
under:-
"(i) All the heirs mentioned in an item of
Class II of the Schedule take the property
simultaneously and heirs specified in the same
sub-item do not exclude those later in the
sequence.
(ii) Section 16, Rule 3 merely designates
the heirs, it has no relevance in determining the
nature of the property. There is nothing in Rule
3 to support the contention that the estate of a
person dying intestate is to be restored to the
character which it had when it devolved upon
the propositus: the rule specifies a method for
determining the preferential heir, and for that
purpose creates a fiction. The heir of the father,
mother or the husband, of the propositus who
would have taken the estate if he had
immediately died after death of propositus is the
heir to the propositus.
(iii) Section 6 of the Act has no
application to property received by a member of
a joint family on partition. Again section 6 in
terms applies only to those cases where a Hindu
dies after the commencement of the Act having
at the time of his death an interest in a
Mitakshara coparcenary property. The
contention that the property must be deemed to
be restored to the character of interest in
coparcenary property and devolves under
Section 16 is without substance."
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20. Thus, from discussion in the foregoing paras, it is clearly
established that sister as well as brother, both are legal heirs of
deceased brother. Further, co-ordinate Bench of this Court in the New
India Insurance Co. Ltd. Vs. Smt. Nalini Verma (supra) has held that
brother and sister will come within the definition of legal
representative as provided in Section 2 (11) of CPC. Therefore, it
cannot be said that the appellant is not entitled to receive
compensation. Hence, submissions of learned counsel for the
respondent are negated and principle of law laid down in Bela Ghosh
(supra) does not help the respondent in any manner.
21. So far as quantum of compensation is concerned, present
claim petition has been filed by married sister of deceased and in para
28, Tribunal has held that there is no loss of dependency. Therefore,
question arises as to whether in view of above, appellant is entitled to
receive compensation and if so, the quantum of compensation.
22. With respect of above, Hon'ble Apex Court in National
Insurance Company Ltd. Vs. Birender and Others AIR 2020 SCC
434 has held in para-14 and para-15 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 and not fully dependant on
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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© 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 has
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 issued 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
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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
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 Prabhatb Bhai (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
"rightly 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 efficacy of
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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.
15. It is thus settled by now that the legal
representatives of the deceased have a right
to apply for compensation. Having said that,
it must necessarily follow that even the
major married and earning sons of the
deceased being legal representatives have a
right to apply for compensation and it would
be the bounden duty of the Tribunal to
consider the application irrespective of the
fact whether the concerned legal
representatives was fully dependant on the
deceased and not to limit the claim towards
conventional heads only. The evidence on
record in the present case would suggest that
the claimants were working as agricultural
labourers on contract basis and were
earning meagre income between
Rs.1,00,000/- and Rs.1,50,000/- per annum.
In that sense, they were largely dependent
on the earning of their mother and in fact,
were staying with her, who met with an
accident at the young age of 48 years."
23. Issue involved in the case has also been dealt by Hon'ble
Apex Court in New India Assurance India Company Limited Vs.
Vinish Jain (2018) 3 SCC 619 and in para-7 and para-8, Apex Court
has held as under;-
"7. This case relates to death of one A.P. Jain. He
was 78 years of age, at the time of death, his annual
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income was assessed in view the fact that the
claimants are his two major sons and two
granddaughters. The major sons have their own
source of income and were not dependent on the
deceased and two granddaughters are primarily
dependent on their father and not on their
grandfather. We are also of the view that the High
Court has erred in granting Rs.50,000/-/ as loss of
love and affection to each of the claimants. The total
compensation granted is Rs.14,39,980/- along with
interest at the rate of 7.5% per annum.
8. We feel that 50% deduction is called for and if this
facts is taken into consideration then the loss of
dependency is Rs.1,82,250/-/ and if multiplier of 5 is
used, the compensation works out to Rs.9,11,250/-.
In addition, the claimants would be entitled to
Rs.70,000/- for love and affection and funeral
expenses ete. as per the judgment of this Court
passed in the case of Pranay Sethi (Supra).
Accordingly, the amount of compensation is reduced
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to Rs.9,81,250/- along with interest awarded by the
Tribunal."
24. Further, above issue has also been dealt by DB of this Court
in M.P. State Road Transport Corporation Vs. Sohan lal reported
in 2000 ACJ, 186 and it held in para-19 and 20 as under:-
"19. The problem of determining the just
compensation arises where the claimants
were not 'actually' dependent upon the
income of the deceased but had
reasonable expectation from him. For
example where the claimants are parents
having income of their own to support
and maintain themselves, or the
claimants are children or husband who
are not dependant on the income of the
deceased but have income of their own.
In some cases the claimants may be
other legal representatives who were not
being actually maintained by the
deceased. In such cases if it is found that
the deceased was able to save money out
of his income and was keeping the same
in the form of deposits in a bank or in
some other form of investment that was
accretion to his estate and that would
devolve upon his heirs on his natural
death. If his life is cut short by
accidental death naturally the capitalised
value of his income subject to relevant
deductions would be the loss caused to
his estate. The tort-feasor must
compensate for this loss irrespective of
the fact whether the claimants were
actually dependent upon the deceased or
not. If the claimants are not able to
claim under the first category i.e. loss of
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dependency they are definitely entitled to
claim under the second category for loss
to the estate. The diminution of liability
in the first category would
correspondingly increase the liability of
the tort-feasor in the second category as
illustrated by the facts of the Division
Bench case in Ramchandra (supra).
Therefore, the loss to the estate of the
deceased must include damages for loss
of earning of the lost years in order that
the compensation to be awarded be
termed as 'just'.
20. Applying the above test to the present
case the deceased out of his income of
Rs. 3,500/- per month must be saving at
least Rs. 1,000/- per month after meeting
his personal expenses and after
providing some amount to his parents.
The annual saving would come to Rs.
12,000/- and the suitable multiplier
would be 15. That will bring the figure of
Rs. 1,80,000/-. To this the amount of Rs.
18,000/- should he added for expenses
on treatment and pain and suffering of
the deceased. Thus the total
compensation as per section 2 of the
Fatal Accidents Act, 1855 would work
out to Rs. 1,98,000/- which is more than
what has been calculated as per section
1-A of this Act (the amount of Rs.
1,91,000/-). The award of the
compensation by the Tribunal is
essentially correct".
25. Thus, from principles laid down in above pronouncements,
it is clearly established that even if, applicant/claimant is not
dependent on deceased, still, if she/he is legal heir/legal representative
of deceased, then, he/she is entitled to receive compensation.
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26. So far as quantum of compensation is concerned, on the date
of accident, minimum wages of an unskilled labour were Rs.7325/-
and in view of age of deceased, 25% is to be added for future
prospects and multiplier of 13 is to be applied. As appellant was not
dependent on deceased, therefore, in view of law laid down in the case
of Vinish Jain (supra), Birender (supra) and Sohanlal (supra), it would
be appropriate to deduct 1 /2 for personal and living expenses.
27. As appellant is married sister of deceased and appellant was
residing with her husband at Damoh and deceased had brother also,
therefore, appellant is not entitled to receive any amount for loss of
consortium and amount under conventional heads.
28. Hence, in view of above, compensation is recalculated as
under:-
S.No. HEADS COMPENSATION
1. Monthly income of deceased Rs.7325/-
2. Future prospects 40% Rs.9156/-
3. Less Personal & Living Expenses ½
4. Monthly Loss of Dependency Rs.4578/-
5. Annual Loss of Dependency Rs.54936/-
6. Multiplier of 13 Rs.7,14,168/-
7 Total Compensation Rs.7,14,168/-
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8 Compensation awarded by Tribunal. Rs.66,000/-
9. ACTUAL ENHANCEMENT RS.6,48,168/-
29. Hence, compensation awarded by the Tribunal is enhanced
by Rs.6,48,168/-.
30. Enhanced compensation of Rs.6,48,168/- shall carry interest
at the rate determined by the Tribunal. Other findings of the Tribunal
shall remain intact.
31. Appellant has valued his appeal for Rs.1,00,000/- and has
paid court fees accordingly. Therefore, appellant shall be entitled to
receive enhanced compensation amount only after paying deficit Court
fees.
32. Appeal filed by the appellant is partly allowed to the extent
as indicated above.
(ACHAL KUMAR PALIWAL)
JUDGE
hashmi
