The New India Assurnce Co Ltd vs Dori Lal And Ors
2023 Latest Caselaw 6221 Raj/2

[2023:RJ-JP:28479]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

          S.B. Civil Miscellaneous Appeal No. 4051/2007
The New India Assurance Company Ltd., Nehru Place, Tonk Road,
Jaipur.
                                                                    ----Appellant
                                    Versus
1. Dori Lal, aged 45 years.
2. Lala Ram, aged 40 years.
3. Daya Ram, aged 35 years.
4. Rampal, aged 30 years.
All are son of Shri Rambharose, R/o - Ganva Narhi NOva Nangla,
Tehsil - Hafiz Ganj,      Distt. Bareli, U.P., at present residing at
Bhiwadi, Tehsil - Tijara, Alwar.
                                                     ----Claimant-Respondent

5. Sunder Singh S/o Mansingh, R/o Sathlaka, Tehsil - Tijara, Distt. - Alwar. Driver of Vehicle (Scooter)

6. Mansingh s/o Chandra Singh, R/o Sathlaka, Tehsil - Tijara, Distt. - Alwar. Owner of Vehicle (Scooter)

For Appellant(s) : Mr.Rajpal Choudhary For Respondent(s) : Mr.Virendra Agrawal Mr.Rahul Tiwari

HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order

Date of Reserve :: 14/07/2023 Date of Pronouncement :: 20/10/2023

1. The present appeal has been filed by the appellant - New

India Assurance Company Ltd. (hereinafter referred to as "the

Insurance Company") under Section 173 of the Motor Vehicles

Act, 1988 (hereinafter referred to as "the Act of 1988") against

the judgment dated 09.08.2007 (hereinafter referred to as

"impugned judgment") passed by Judge, Motor Accident Claims

Tribunal, Kishangarhbas, Alwar (hereinafter referred to as the

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"learned Tribunal") in Claim Petition No.75/2001 (Dori Lal & Ors.

Vs. Sunder Singh & Ors.).

2. As per the brief facts of the case, one Ishwar Prasad

(hereinafter referred to as "deceased") died in a road accident on

10.07.2001. At the time of his death, the deceased was unmarried

and was of 21 years of age. The respondents-claimants, namely,

Dori Lal, Lala Ram, Daya Ram & Rampal are real brothers of the

deceased, who filed claim petition under Section 166 of the Act of

1988, claiming compensation to the tune of Rs.23,26,600/-.

3. The claim petition was contested by the appellant - Insurance

Company.

4. After evaluating the evidence, produced on behalf of the

respondents-claimants, the learned Tribunal passed the impugned

judgment and compensation of Rs.3,41,400/- was awarded in

favour of the respondents-claimants.

5. The appellant - Insurance Company has filed the present appeal

on the ground that the deceased was unmarried, of 21 years of

age and the respondents-claimants are elder brothers of the

deceased, therefore, they cannot be said to be dependent on the

deceased, hence, they were not entitled for any compensation.

Accordingly, on the aforesaid ground itself, the impugned

judgment deserves to be quashed and set aside.

6. Alternatively, learned counsel for the appellant - Insurance

Company has also taken a ground that the respondents-claimants,

at the most, were entitled for the compensation under the

conventional head only and the learned Tribunal erred in awarding

Rs.3,41,400/- under the head of loss of dependency. Therefore,

the impugned judgment and award is liable to be quashed.

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7. While drawing attention of this Court to the law laid by the Apex

Court in the case of Manjuri Bera Vs. Oriental Insurance Co.

Ltd. & Anr. [2007 ACJ 1279], learned counsel for the appellant

- Insurance Company has argued that the respondents-claimants,

who are elder brothers of the deceased, cannot be said to be

dependent on the deceased, therefore, they are not entitled for

any amount under the head of loss of dependency. However, they

are entitled only to the amount, which is confined only to the "no

fault liability" under Section 140 of the Act of 1988.

8. Per contra, learned counsel for the respondents-claimants

submitted that the claim petition can be brought by the legal

representatives of the deceased.

9. Learned counsel for the respondents-claimants submitted that

Section 166 of the Act of 1988 does not limit rights to claim

compensation to the dependents only.

10. Learned counsel further submitted that the respondents-

claimants are brothers of the deceased, therefore, they are legal

heirs of the deceased. Hence, they are entitled for compensation

under Section 166 of the Act of 1988.

11. Learned counsel for the respondents-claimants has drawn

attention of this Court to the law, laid down by the Apex Court on

the following judgments :

(i) Gujarat State Road Transport Corporation, Ahmadabad

Vs. Ramanbhai Prabhatbhai & Anr. [1987 (3) SCC 234] ;

(ii) Montford Brothers of St. Gabriel & Anr. Vs. United India

Insurance & Anr. [2014(3) SCC 394] ;

(iii) Malliga Vs. Diamond Abraham & Anr. [Civil Misc. Appeal

No. 2368/2015, decided on 24.09.2018] ;

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(iv) National Insurance Company Limited Vs. Birender &

Anr. [(2020) AIR (SC) 434] ;

(v) N.Jayasree & Ors. Vs. Cholamandalam MS General

Insurance Company Ltd. [Civil Appeal No.6451/2021,

decided on 25.10.2021] ;

12. I have considered the submissions made by learned counsel

for the parties and perused the material, available on record.

13. Before proceeding further, it would be appropriate to quote

Section 166 of the Act of 1988, hence, the same is quoted

hereunder for ready reference :

"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.

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Provided further that where a person accepts compensation under section 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 [section 159] as an application for compensation under this Act.

(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."

14. From the bare perusal of Section 166 of the Act of 1988, it is

clear that where death has resulted from the accident, the claim

petition can be filed by all or any of the legal representatives of

the deceased. Section 166 of the Act of 1988 does not say any

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word that such an application can be moved only by the

dependents of the deceased, who lose dependency.

15. The Apex Court, in the case of Gujarat State Road Transport

Corporation, Ahmadabad (supra), while considering the

entitlement of brother of deceased, who died in a motor vehicle

accident, 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 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 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 Vir v.Chturbhai Tljabhagujri 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."

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16. The Apex Court, in the case of Montford Brothers of St.

Gabriel & Anr. (supra), has widened the scope of the

dependents/legal representatives to the members of a charitable

society. In the aforesaid case, the deceased, after renouncing the

world, joined a registered charitable society, which was running

various institutions as a constituent unit of Catholic church. The

members of the society were known as 'brother'. In this case, the

deceased, who was a 'brother', died in a motor vehicle accident

and the claim petition was filed by the appellant-society, seeking

compensation on account of death of the said 'brother'. The claim

petition was rejected by the High Court on the ground of its

maintainability. The Apex Court, after examining various

provisions of the Act of 1988, held that the appellant-society was

the legal representative of the deceased 'brother' and 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

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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."

17. The Madars High Court, in the case of Malliga (supra), found

even married sister to be entitled for getting compensation under

Section 166 of the Act of 1988 due to death of her brother.

18. In the case of National Insurance Company Limited (supra),

even major sons, who were married and gainfully employed or

earning separately, were held entitled to get compensation under

Section 166 of the Act of 1988. In the aforesaid case, the claim

petition was filed due to death of mother of the claimants. The

Apex Court, in this case, held that even 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 representative was fully dependent or

not on the deceased and not limit the claim only to the

conventional heads.

19. In the case of N.Jayasree & Ors. (surpa), the mother-in-law of

the deceased, who was living with the deceased was also held

entitled to get compensation due to death of her son-in-law. Para

No.16 & 17 of the said judgment are quoted hereunder for ready

reference :

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"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.

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."

20. Therefore, this Court is of the considered view that the

respondents-claimants, who are real brothers of the deceased, are

legal representatives. Therefore, they are entitled to get

compensation, which cannot be limited to the amount, which is

granted for "no fault liability" under Section 140 of the Act of

1988.

[2023:RJ-JP:28479] (10 of 10) [CMA-4051/2007]

21. Therefore, there is no force in the plea taken by learned

counsel for the appellant - Insurance company that as the

respondents-claimants were not dependents on the deceased,

they are not entitled for any compensation.

22. Now, this Court comes to the quantum of the compensation,

awarded in favour of the respondents-claimants.

23. The deceased - Ishwar Prasad was 21 years of age on the date

of accident. He was said to be earning Rs.3200/- per month by

doing work of Operator in a Drugs and Pharmaceutical Company.

Since, the respondents-claimants failed to prove the income of the

deceased, so pleaded by them before the learned Tribunal, the

learned Tribunal assessed monthly income of the deceased to be

Rs.2400/- per month and on this amount, the compensation has

been calculated, that too, without adding any amount under the

head of future prospects. The total amount quantified, as

compensation, by the learned Tribunal is Rs.3,41,400/-, which, in

any case, cannot be said to be on a higher side. Therefore, the

amount of compensation, awarded in favour of the respondents-

claimants, cannot be said to be unjust.

24. In view of the discussion made hereinabove, it is clear that the

present appeal is devoid of merit, hence, the same is dismissed.

25. Pending application(s), if any, also stand(s) disposed of.

(ASHUTOSH KUMAR),J

Preeti Asopa /8

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