Telangana High Court
Icici Lombard General Insurance Co. ... vs Thuthurla Swamy And 2 Others on 14 February, 2025
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
M.A.C.M.A. No. 47 OF 2014
JUDGMENT:
1. This Motor Accidents Civil Miscellaneous Appeal is filed
aggrieved by the judgment, dt.17.09.2013, in O.P.No.73 of 2011,
on the file of the Motor Accidents Claims Tribunal-cum-II
Additional District Judge, Jagityal, Karimnagar District (for short
'the Tribunal'), wherein the Tribunal while partly allowing the
claim of respondent No.1 herein, had awarded compensation of
Rs.1,50,000/- with proportionate costs and interest at 7.5% per
annum from the date of petition payable by appellants and 3rd
respondent herein.
2. The appellants herein are respondent Nos.3 and 4 before the
Tribunal and insurers of the offending vehicle.
3. Heard the learned counsel appearing for the respective
parties and perused the record.
4. The instant O.P. was filed by the Respondents No.1 herein,
being the elder brother of the deceased.
5. The brief facts of the case are that, on 26.09.2010 the
Respondent No.1's deceased brother Mr. Srinivas and one Mr. Sai
Kumar were standing behind the offending vehicle, when the
Respondent No.2 herein had abruptly reversed the vehicle without
sounding the horn. The abrupt action of the Respondent No.2
herein had resulted in the instant death of the Respondent No.1's
brother and had caused injuries to Mr. Sai Kumar. Thereupon,
police had registered a case under Sections 337 and 304-A IPC
against the Respondent No.2 and filed charge sheet. The
Respondent No.1 herein being the brother of the deceased filed
OP.No.73 of 2011 under Section 166(1)(c) of the Motor Vehicle
Act, 1988 claiming compensation of Rs.5,00,000/- against the
driver, owner and insurer of the offending vehicle. Before the
Tribunal, the Respondents No. 2 and 3 here who are the driver and
owner of the offending vehicle remained ex-parte. The Appellants
herein had filed a counter before the Tribunal resisting the claim of
the Respondent No.1 herein on the ground that the Respondent
No.1 was not entitled to claim any compensation as he was not a
dependent of the deceased. It was further contended that as the
Respondent No.3 herein violated the terms and conditions of the
policy, no liability arose on the Appellants.
6. The Tribunal, after considering the oral and documentary
evidence on record, allowed the O.P., in part awarding a total
compensation of Rs.1,50,000/- along with proportionate costs and
interest @ 7.5% per annum from the date of petition, payable by
Appellants herein. Aggrieved by the same the present appeal is
preferred.
7. Learned counsel for the Appellants contends that the
judgment and decree of the Tribunal is contrary to law, weight of
evidence and probabilities of the case; and that the Tribunal has
erred in fastening the liability on them when the driver of the
offending vehicle had violated the terms of the policy. It is further
contended that the Respondent No.1 was not a dependant of the
deceased and on the contrary that the deceased was a dependent of
the Respondent No.1 herein as specifically noted by the Tribunal
from the ration card marked as Ex.B-1, ought not to have awarded
compensation; and thus prayed for setting aside the impugned
judgment.
8. I have taken note of the above contentions.
9. At the outset, there is no dispute as regards the finding of the
Tribunal that the accident occurred due to the rash and negligent
driving of the offending vehicle, owned by the Respondent No.3
herein and insured with the Appellants herein, resulting in the
instantaneous death of the deceased. It is also not in dispute that
the insurance policy issued by the Appellant No.1 was in currency
as on the date of accident.
10. The ground on which the insurance company is aggrieved by
the judgment of the Tribunal, is that the Tribunal having acceded to
the contention of the insurance company that the Respondent No.1
is not dependent on the earnings of the deceased, had erred in
granting compensation to respondent No.1 as claimant under the
head of grievous and simple injuries, besides other heads of loss of
estate, transportation and funeral expenses, even though the
accident had resulted in the death of the Respondent No.1's
brother.
11. However, no cross appeal has been filed by the Respondent
No.1 against the order of the Tribunal. Thus, the appeal filed by the
insurance company aggrieved by the order awarding compensation
with a direction to 'Pay and Recover' is taken up for disposal.
12. The Hon'ble Supreme Court, in the case of N. Jayasree v.
Cholamandalam MS General Insurance Company Ltd1 while
referring to the earlier judgment in Gujarat State Board
Transport Corporation, Ahmedabad v. Ramanbhai
Prabhatbhai & Another2 dealt with the expression 'legal
representative' for the purpose of claiming compensation. In
Ramanbhai Prabhatbhai's case(2 supra), the entitlement of the
brother of a deceased to maintain a claim petition has been dealt
with. It was observed therein 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 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 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
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
compensation relying upon the provisions of the Fatal Accidents Act,
1 2021 SCC Online SC 967
2 1987 AIR 1690 = 1987 SCR (3) 404
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 Taljabhagujri4 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. In the light of the above principle of law, the petitioner, who
is the brother of the deceased, being a legal representative can
maintain the claim petition. Further, in view of the observations in
Ramanbhai Prabhatbhai's case (2 supra), that in an Indian
Family, brothers and sisters live together, though the Respondent
No.1 herein is not a dependent of the deceased he is entitled for
compensation under section 166 of the Act. This view finds
support from the full bench decision of this Court in Gangaraju
Sowmini and Ors. Vs. Alavala Sudhakar Reddy and Ors 3, as
under
14. In view of the plain language under Section 166 of the Motor
Vehicles Act, 1988, which is a substantive provision for making
application for compensation, it is clear that either the injured person or
the legal representative of the deceased are entitled to make an
application for award of compensation. Dependency is a matter, which
will have a bearing on the issue with regard to fixation of
compensation and apportionment of compensation if there are more
than one claimant, but at the same time, in view of the plain and
unambiguous language used under Section 166 of the Motor Vehicles
Act, the term 'legal representative' does not mean dependant only. It
is fairly well settled that the legal representative is one who can represent
AIR2016AP162
the estate of the deceased. Further, in the judgment in Manjuri Bera's
case 2011 ACJ 737 (supra), the Hon'ble Supreme Court has held that the
no fault liability envisaged under Section 140 of the Motor Vehicles Act
is distinguishable from the rule of 'strict liability'. In the aforesaid
judgment, it is further held that right to make an application has to be
considered in the background of right to entitlement. It is further held
that while assessing the quantum of compensation, the multiplier
system is applied because of deprivation of dependency. In the same
judgment, it is also held that since the amount to be awarded under
Section 140 of the Motor Vehicles Act is a fixed/crystalised amount,
the same is to be considered as a part of the estate of the deceased.
Apart from the same, there can be a claim for compensation under
other conventional heads which are to be necessarily incurred in the
case of deaths.
14. In the light of the above although a non-dependent legal
representative of the deceased is entitled to receive compensation
under conventional heads in addition to the compensation under
section 140 of the Act, compensation under the head of loss of
dependency cannot be granted. The Gujarat High Court in United
India Insurance Co. Ltd. Vs. Diptiben Ureshbhai Vora and Ors4,
has held as under:
"8.04. Therefore, as such while assessing/awarding compensation under
the head of loss of dependency/future loss of income, whether the
claimant/s was/were dependent or not, is a relevant consideration.
Therefore, if the claimant who is not at all dependent upon the
deceased, shall not be entitled to any loss of dependency/future loss
of income.
8.05. The nomenclature "loss of dependency" itself is suggestive of
the fact that it is towards the loss which the dependents would be
MANU/GJ/0730/2016
suffering because of untimely death of the deceased - victim of the
accident, upon whom he/she/they was/were dependent.
9. Thus, considering the object and purpose of awarding compensation
under the head of loss of dependency/future loss of income, though at the
instance of claimant, who is a legal representative but not dependent
upon the deceased/victim of the accident, claim petition for seeking
compensation under the Motor Vehicles Act shall be maintainable, but
such claimant, who is not dependent upon the deceased/victim of the
accident, shall not be entitled to any compensation under the head of
loss of dependency/future loss of income, for the simple reason that
at the time of accident, such a claimant was not dependent upon the
income of the deceased/victim of the accident and therefore, there
shall not be any loss of dependency/future loss of income to such a
claimant. However, such claimant shall be entitled to compensation
under other heads such as medical expenses, funeral expenses,
transportation charges etc. which may fall under pecuniary
loss/pecuniary damages, as the same can be said to be loss to the
estate and the claimant shall also be entitled to compensation under
other conventional heads such as loss of consortium, loss of love and
affection, loss of estate etc. Under the circumstances, it is held that the
claim petition seeking compensation under the Motor Vehicles Act for
the death of the deceased/victim of the accident, at the instance of a
claimant, who is heir and legal representative but not dependent, shall be
maintainable and as observed by the Hon'ble Supreme Court in the case
of Manjula Devi (supra), such compensation shall not be less than the
amount as provided under Section 140 of the Motor Vehicles Act.
Thus, the claimant in such a case, shall be entitled to minimum
compensation as provided under Section 140 of the Motor Vehicles Act.
It is further observed and held that as such claim petition is held to be
maintainable, such a claimant, who is legal heir but not a dependent, shall
not be entitled to any amount of compensation under the head of loss of
dependency/future loss of income, but shall be entitled to compensation
under other heads towards pecuniary loss/damages such as medical
expenses, transportation, special diet, attendance charges and under the
conventional heads such as, loss of consortium, loss of estate, loss of love
and affection etc."
15. In the facts at hand, the deceased was a daily labourer
earning an income of Rs. 6,000/-. The Respondent No.1 herein is a
driver by profession, although had claimed to be a dependent of the
deceased, he had not led any evidence to prove that he was earning
lesser than the deceased. Further, in view of the specific finding of
the Tribunal that the deceased was shown as a dependent in Ex.B-1
i.e., ration card of the Respondent No.1, this Court is of the view
that Respondent No.1 was not a dependent of the deceased.
Therefore, in the view of this Court, the Tribunal had rightly
refused to grant compensation under for loss of dependency.
16. However, in such cases compensation is to be awarded in
terms of Section 140 of the Act in the Tribunal in addition to the
conventional heads of compensation. Thus, in the view of this
Court the Tribunal had erred in calculating the compensation for
the injuries suffered by the deceased.
17. In view of the foregoing discussion, the compensation
awarded by the Tribunal is thus modified as under:
Sl.No. Heads of Compensation Amount (in Rupees)
1. Compensation as per 50,000/-
section 140 of the Act
2. Loss of Estate 16,500/-
3. Loss of Consortium 44,000/-
4. Funeral Expenses 16,500/-
TOTAL 1,27,000/-
18. Accordingly, the present Motor Accident Civil
Miscellaneous Appeal is partly allowed. The compensation
awarded by the Tribunal is reduced from Rs.1,50,000/- to
Rs.1,27,000/- payable with interest of 7.5% per annum.
19. Pending miscellaneous applications, if any, shall stand
closed. No order as to costs.
______________________
T. VINOD KUMAR, J
14th February, 2025
mrkr/vsv
