Calcutta High Court
Basuri Shaw And Anr. vs New India Assurance Co. Ltd. And Ors. on 13 November, 2006
Equivalent citations: 2007(1)CHN372, AIR 2007 (DOC) 287 (CAL.) (DB)
JUDGMENT Prabir Kumar Samanta, J.
1. This appeal is directed against the Order No. 4 dated 2nd February, 2005 passed by the Motor Accident Claims Tribunal, Malda in M.A.C. Case No. 323 of 2004. By the impugned order the learned Tribunal had allowed the application by the respondent No. 3 praying for dismissal of the said motor accident claim case.
2. An application under Section 166 of the Motor Vehicles Act, 1988 was filed by the respondent No. 3 as well as the appellants jointly. The respondent No. 3 is the widow of the deceased victim, while both the appellants are the unmarried sisters of him. It was contended on behalf of the respondent No. 3 that she being the widow of the deceased is entitled to the amount of compensation alone and, therefore, the joint petition filed by the respondent No. 3 along with the appellants who are the sisters of the deceased was to be dismissed. It is on record that respondent No. 3 alone has further filed an independent claim case, being M.A.C No. 352 of 2004 under Section 163A of the Motor Vehicles Act praying for compensation due to the accidental death of her husband, after the petition under Section 166 as above was filed. The respondent No. 3 accordingly filed an application for dismissal of petition under Section 166 upon allegation that the same was filed beyond her knowledge and consent. The same has been allowed which is the subject-matter of challenge in this appeal.
3. The question arises for consideration here is whether the appellants who claimed to be the sisters of the deceased are also entitled to receive compensation along with the respondent No. 3 being the widow of the deceased.
4. The respondent No. 3 is undoubtedly a Class I heir under the Hindu Succession Act and the appellants are Class II heir. On behalf of the appellants the decision reported in AIR 1987 SC 1690 (Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and Anr.) has been relied upon in support of the proposition that an application for compensation is to be made on behalf of or for the benefit of all the legal representatives of the deceased. The said decision has been rendered under the provisions of Section 110A of the Motor Vehicles Act of 1939 read with Section 1A of Fatal Accidents Act, 1855.
5. True, Section 110 of the Motor Vehicles Act, 1939 provided that an application for compensation shall be made on behalf of or for the benefit of legal representatives of the deceased, while Section 166 of the Motor Vehicles Act, 1988 provides that an application for compensation may be made by all or any of the legal representatives of the deceased.
6. In the said case of GSRTC, Ahmedabad (supra) a boy of 14 years was run over by a vehicle resulting in his untimely death. The petitioners in the said case were the brothers of the deceased who instituted an application before the Motor Accident Claims Tribunal claiming compensation. It was contended before the Supreme Court that the High Court was in error in awarding compensation in favour of the brothers of the deceased since in law they were not entitled to any compensation under the provision of Fatal Accidents Act, 1855. Interpreting Section 110A of the Motor Vehicles Act read with Section 1A of the Fatal Accidents Act, the Hon'ble Supreme Court held that the brothers are also entitled to compensation. The Supreme Court in the said decision has observed in paragraphs 10 and 11 as under:
10. Among the High Courts in India there is a cleavage in the opinion as regards the maintainability of action under Section 110A of the Act by persons other than the wife, husband, parent and child of the person who dies on account of a motor vehicle accident. All these cases are considered by the High Court of Gujarat in its decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai (supra). The first set of the cases are those which are referred to in paragraph 5 of the above decision which lay down that every claim application for compensation arising out of a fatal accident would be governed by the substantive provisions in Sections 1A and 2 of the 1855 Act and no dependent of the deceased other than the wife, husband, parent or child would be entitled to commence an action for damages against the tortfeasors. Amongst these cases are P.B. Kader v. Thatchamma and Dewan Hari Chand v. Municipal Corporation of Delhi . The second group of cases are those referred to in para 6 of the decision of the Gujarat High Court. They are Perumal v. Ellusamy Reddiar 1974 Acc CJ 182 (Mad) and Vanguard Insurance Co. Ltd. v. Hanumantha Rao 1975 Acc CJ 344 (Andh Pra). These cases lay down that while the compensation payable under Section 1A of the Fatal Accidents Act, 1855 is restricted to the relatives of the deceased named therein the compensation payable under Section 2 thereof may be awarded in favour of the representatives of the deceased who are entitled to succeed to the estate of the deceased. The third group of cases are those referred to in para 7 of the judgement of the Gujarat High Court. They are Mohmammed Habibullah v. Seethammai ; Veena Kumari Kohli v. Punjab Roadways 1967 Acc CJ 297 (Punj) and Ishwari Devi Malik v. Union of India which take the view that a claim for compensation arising out of the use of a motor vehicle would be exclusively governed the provisions of Section 110 to 110F of the Act and bears no connection to claims under the 1855 Act and Claims Tribunal need not follow the principles laid down under the latter Act. Having considered all the three sets of decisions referred to above. Ahmadi, J. who wrote the judgement in Megjibhai Khimji Vira v. Chaturbhai Taljabhai (supra) came to the conclusion that an application made by the nephews of the deceased who died on account of a motor vehicle accident was clearly maintainable under Section 110A of the; Act.
11. 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 realization 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 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 and 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 brother's children and sometimes foster children live together and they are dependent upon the bread-winner is killed 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, 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 Taljibhai AIR 1977 Guj 195 (supra) 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.
7. Much later the said question was dealt with by a Division Bench of Gauhati High Court. The decision rendered by it has been reported in AIR 1994 Gauhati 22 (Muhini Thakuria and Ors. v. Dhiraj Kalita and Ors.). In the said decision it has been held that a brother of a deceased may be a legal representative of the deceased, only in the absence of the preferential heirs under the personal law governing the parties. But he cannot be termed as a legal representative when such preferential heirs are in existence even if he may have looked to the deceased for financial support.
8. In another case (Monorama Devi and Ors. v. Oriential Insurance Co. Ltd. and Anr.), it has been held by a Division Bench of this Court that the father of the deceased who is a Class II heir is not entitled to compensation along with the widow and the mother of the deceased who are Class I heirs.
9. The Division Bench of this Court was dealing with a claim case arising out of an application under Section 163A of the Motor Vehicles Act, 1988. The said section reads as under:
163A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in to Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.-For the purpose of this sub-section, 'permanent disability' shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
10. The term "legal representative" has not been defined in the Motor Vehicles Act, 1988. The Civil Procedure Code defines legal representative 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;
11. The definition of 'legal representative' as given in the Code also does not suggest that the same should be restricted to the 'heirs' specified in the Hindu Succession Act, 1956.
12. Interestingly while Section 166 speaks of "legal representatives", the Section 163A mentions "legal heirs". The word "heir" has an import and more so when prefixed with the term "legal". The term "legal heirs" cannot be equated with the term "legal representatives". In this perspective the decision of this Court in the case of Monorama Devi (supra) can not be read to have laid down a principle of law that under Section 166 only the heirs as specified in the Hindu Succession Act, 1956 will be entitled to maintain a claim petition or such of the heirs as are entitled to succeed to the estate of the deceased as per the said Act would be entitled to receive the compensation.
13. These provisions of the Motor Vehicles Act providing for compensation to either the legal representatives or the legal heirs of the victim who has died in a motor accident are no doubt social beneficial legislation. In interpreting such provisions the Court must have a broad perspective over the social structures and avoid narrow pedantic and rigid approach. In doing so it must make an equitable consideration on facts situation so as not to leave any scope for causing injustice in an appropriate case.
14. The observation of the Supreme Court in the case of G.S.R.T Corpn. (supra) that "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 is killed 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 Taljibhai AIR 1977 Guj 195 (supra) 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" is, therefore, very relevant and important for the present purpose.
15. In construing in the manner as discussed above it should always be decided on the basis of the dependency factor of the claimant or the claimants, on the particular fact situation. Apportionment of compensation, if awarded, should also be made on the basis of quality and nature of the dependency of the claimant arising out of the particular fact situation.
16. In the case in hand evidence is yet to be led. There was no material before the Tribunal as to whether the present appellants are truly dependants upon their deceased brother or not; whether the deceased brother was the sole bread earner for them or not and as to the extent of their dependency in case they were dependants upon their deceased brother. At this stage the Tribunal ought not to have dismissed the claim petition as a whole thereby shutting the door permanently on the face of the appellants.
17. In any event the respondent No. 3 alone having approached the Tribunal for rejection and/or dismissal of the claim petition, the Tribunal at least ought not to have dismissed the claim petition on behalf of the appellants sisters. The impugned judgement and order is therefore set aside.
18. Regard being had to the fact that the respondent No. 3 has already filed an application it is directed that if the same is still pending then both the petitions be heard and disposed of analogously by transposing the respondent No. 3 in the category of opposite party in the petition under Section 166 of the Act.
19. The appeal is thus allowed. There will be no order as to costs.
20. Urgent xerox certified copies, if applied for, be supplied to the parties as expeditiously as possible.
Soumitra Sen, J.
21. I agree.