Allahabad High Court
U.P.Rajya Sadak Parivahan Nigam Sapru ... vs Leelawati Devi And 3 Ors. on 2 December, 2014
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- FIRST APPEAL FROM ORDER No. - 1091 of 2007 Appellant :- U.P.Rajya Sadak Parivahan Nigam Sapru Marg Lko.Through Its Respondent :- Leelawati Devi And 3 Ors. Counsel for Appellant :- Akhter Abbas Counsel for Respondent :- Dharmendra Trivedi Hon'ble Anil Kumar,J.
Heard Sri Akhter Abbas, learned counsel for the appellants and Sri Dharmendra Trivedi, learned counsel for respondents/ claimants.
Undisputed facts of the present case are that on 7.8.2006 at about 7.00 p.m. Sri Ramesh Kumar on his motorcycle (U.P. 33 H/299) alongwith his friend Ram Bahadur are coming from Gaurauli Budhkar to Gadaganj. When they reached the shop of Datadin Maurya, U.P. S.R.T.C. bus (U.P. 33A/9695) due to rash and negligent driving of the driver dashed the motorcycle, as a result of which Sri Ramesh Kumar sustained grievous injuries and died on the spot, his friend Ram Bahadur also sustained grievous injuries. In this regard an F.I.R. at police station Gadaganj under Section 279/337/427/304A I.P.C. At the time of death of Sri Ramesh Kumar was aged about 20 years, passed intermediate, done diploma in computer application from Aman Computer Centre , Rae bareli, employed in Avadh Computer Center, as teacher, his monthly income was Rs.4800/- per month.
In view of the said factual back ground a claim petition has been filed under Section 166 of the Motor Vehicle Act, 1988 ( hereafter referred to as 'Act') by the claimant namely, (1) Smt. Leelawati Devi , mother of the deceased, (2) Sri Pramod Kumar, brother of the deceased and (3) Km. Neelam, sister of the deceased , registered as M.A.C. no. 298 of 2006( Leetalwati and others Vs. U.P. S.R.T.C. , Lucknow and another ) before Motor Accident Claims Tribunal/ Additional District judge, Court no.8, Rae Bareli . By order dated 8.8.2007 allowed the claim petition awarding a sum of Rs.99,000/- to claimant no.1/ Leelawati, mother of the deceased and Rs. 50,000/- each to claimant no.2 / Pramod Kumar Singh and claimant no.3/ Km. Neelam (brother and sister of the deceased) alongwith 7% interest from the date of filing of claim petition.
Sri Akhter Abbas, learned counsel for the appellant while challenging the impugned judgment and award submits that the claim petition filed on behalf of brother and sister of the deceased is not maintainable as they are not "legal representatives" of the deceased Sri Ramesh Kumar because the world 'legal representative' as mentioned under Section 166 of the Act has neither been defined under Section 2 (definition) nor under Section 145 of the Act so as per the provisions of section 2 (24-A) of the U.P. General Clauses Act 1904 quoted as under:-
"(24-A) Legal representative-"Legal representative" shall have the same meaning at in the code of Civil Procedure 1908;"
Read with the definition of legal representative will be same as define under Section 2(11) of the C.P.C. and Section 8 of the Hindu Succession Act quoted herein below:-
" Section 2 (11) C.P.C. " 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;
" Section 8 of the Hindu Succession Act. General rules of Succession in the case of males- The property of a male Hindu dying intestate shall devolve according to the provisions of the Chapter-
(a) Firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) Secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased ; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased."
Once the mother of deceased is alive, claim petition filed on behalf of his brother and sister is not maintainable , liable to be dismissed on ground of mis-joinder of necessary parties.
The next arguments advanced by learned counsel for the appellant is that even if the claim petition is maintainable on behalf of the claimant nos. 2 and 3 , namely Pramod Kumar Singh, brother of the deceased and Km. Neelam , sister of the deceased then in that circumstances, the other two sons of the Smt. Leelawati should joined as claimants or they should have been made respondents in the claim petition as the same has not been done as per the provisions of Section 166 of the Act, the claim petition is not maintainable.
Last arguments raised by learned counsel for the appellants is that the Tribunal has wrongly taken multiplier while awarding the compensation taking into consideration the age of the deceased, it should have been into consideration the age of the mother ( as the claim petition is only maintainable on behalf of the mother ) , so the judgment and award dated 8.8.2007 passed by Tribunal is contrary to law as laid down by Hon'ble the Apex Court in the case of Ramesh Singh and another Vs. Satbir Singh and another) 2008 AIR SCW , 1238, liable to be set aside.
Sri Dharmendra Trivedi, learned counsel for respondents/ claimants submits that the claim petition filed by the claimants is maintainable under Section 166 of the Act . He further submits that there is no illegality or infirmity in the award passed by the tribunal while adopting the multiplier of 16 taking into consideration the age of the deceased/ Ramesh Kumar , hence the present appeal filed by U.P.S.R.T.C lacks merit , liable to be dismissed.
I have heard learned counsel for the parties and perused the record.
Human life is precious. The road users have a fundamental right to life and liberty which includes the right to safety and immediate payment of compensation in the event of unavoidable accidents. It is the duty of the State to ensure safety on roads and to ensure due process of law for expeditious payment of compensation in the event of injury or death of the road users arising out of the use of motor vehicles on the roads.
More people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country Parking of heavy vehicles on the wrong side, hurrying past traffic signals on the sly, neglecting to keep to the left of the road, driving vehicles criss-cross, riding scooters without helmets and with whole families on pillions, thoughtless cycling and pedestrian jay walking with lawless ease, suffocating jam-packing of stage carriages and hell-driving of mini-buses, overloading of trucks with perilous projections and, above all, policemen, if any, proving by helpless presence that law is dead in this milieu charged with melee - such is the daily, hourly scene of summons by Death to innocent persons who take to the roads, believing in the bona fides of the traffic laws.
The precious lives of innocent persons are snatched away by the reckless acts of the drivers in motor accidents, and the victims or the kith and kin of the deceased persons are forced to face the brink of darkness of life. The harrowing tales of the hapless victims in the motor accidents speak volumes of heart-rending sufferings and pessimism in their lives. Serious injuries often cause life-long disability for the victims which fundamentally affect quality of their life and that of their families.
Majority of road crashes involve human error. Careless driving puts the lives of others at risk. The driver not in full control of the vehicle becomes, all too often, a lethal weapon. Freedom and responsibility go hand in hand. Therefore, those who fail to demonstrate responsibility forfeit their right to freedom. A rash, negligent, irresponsible or illegal driver has no business to be on the road. A greater level of scrutiny and accountability is required when life is lost or serious injury inflicted.
In order to get compensation in an accident arising out of the motor vehicle , one has to move an application under Section 166 of the Motor Vehicle Act which reads as under:-
"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 authorized 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.
(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:
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
xx xx xx (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act."
In terms of clause (c) 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.
Section 168 of the Act reads as follows:
"Award of the Claims Tribunal:- On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
Accordingly, 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/ legal representative, who claims for the same by filing a claim petition under Section 166 of the Act.
"Legal representatives" in law represents the estate of the deceased person. The award is an estate in terms of the provisions of law and on the death, it devolves upon the legal representatives. Thus, the legal representatives have every right to reap the fruits of the litigation/award.
The definition of word "estate" is given in The New Oxford Dictionary of English at page 629, which reads as under:
"estate: noun 1 an area or amount of land or property, in particular:
an area of land and modern buildings developed for residential, industrial, or commercial purpose an extensive area of land in the country, usually with a large house, owned by one person or organization all the money and property owned by a particular person, especially at death: in his will, he divided his estate between his wife and daughter. a pr"Estate. The degree, quantity, nature, and extent of interest which a person has in real and personal property. An estate in lands, tenements, and hereditaments signifies such interest as the tenant has therein. 2 Bl. Comm. 103. The condition or circumstance in which the owner stands with regard to his property. Boyd v. Sibold, 7 Wash. 2d 279, 109 P. 2d 535, 539. In this sense, "estate" is commonly used in conveyances in connection with the words "right", "title" and "interest", and is, in a great degree, synonymous with all of them.
When used in connection with probate proceedings, term encompasses totality of assets and liabilities of decedent, including all manner of property, real and personal, choate or inchoate, corporeal or incorporeal. In re Adams' Estate, 148 C.A. 2d 319, 306 P. 2d 623, 625."operty where coffee, rubber, grapes, or other crops are cultivated. (in South Africa) a registered vineyard producing wines made exclusively from grapes grown within its boundaries.
(Emphasis added)"
In Black's Law Dictionary, Sixth Edition, the word "estate" has been defined at page 547 as under:
"Estate. The degree, quantity, nature, and extent of interest which a person has in real and personal property. An estate in lands, tenements, and hereditaments signifies such interest as the tenant has therein. 2 Bl. Comm. 103. The condition or circumstance in which the owner stands with regard to his property. Boyd v. Sibold, 7 Wash. 2d 279, 109 P. 2d 535, 539. In this sense, "estate" is commonly used in conveyances in connection with the words "right", "title" and "interest", and is, in a great degree, synonymous with all of them.
When used in connection with probate proceedings, term encompasses totality of assets and liabilities of decedent, including all manner of property, real and personal, choate or inchoate, corporeal or incorporeal. In re Adams' Estate, 148 C.A. 2d 319, 306 P. 2d 623, 625."
Hon'ble the Apex Court in the Gujrat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai an another) AIR 1987 SC 1690, after taking into considration Section 110A of the Motor Vehicles Act, 1939( which is para meteria of the same as Section 166 of the Motor Vehicles Act, 1988) as well as Section 1-A and 2 of the Fatal Accidents Act, 1855 while interpreting the word 'legal representative' held as under:-
"Para 4" On account of the close association which came to be established between India and Great Britain owing to the British rule which lasted for over two centuries, in the High Courts established in India the English Common Law which was based on principles of justice, equity and good conscience came to be applied wherever they were called upon to award damages or compensation for civil wrongs committed by the defendants in the suits. The application of the English Common Law, however, had to conform to Indian cir- cumstances and conditions which necessarily involved a selective application of the English Law in India. "The adoption of the rules of English Law by the Indian Courts" observes M.C. Setalvad in his 'Common Law in India' (The Hamlyn Lectures, Twelfth Series, Page 53) "was neither automatic nor uncritical. Although they started with a presumption that a rule of English Law would be in accord- ance with the principles of justice, equity and good con- science, they bore in mind the reservation which was later expressed by the Privy Council in the words 'if found ap- plicable to Indian society and circumstances."' In the course of the application of the principles of the English Law of Torts in India the Indian courts came to recognise and apply the maxim action personalis moritur cum persona--a personal action dies with the parties to the cause of ac- tion. An action for a tort had to be begun in the joint lifetime of the wrongdoer and the person injured. The devel- opment of railways in England, led to a great upsurge in the number of accidents, many of which were fatal. When it was realised that the cause of action for recovery of damages for the death of a person caused by the wrongful act of another person did not survive on the death of the person to his legal representatives in England as a measure of law reform the Fatal Accidents Act, 1855 was passed for compen- sating the families of persons killed by accidents. That Act provided that "whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured". The said Act further provided that "every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shah have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before mentioned parties in such shares as the jury by their.verdict shall find and direct." Within a few years after the passing of the said English Fatal Accidents Act, 1846, the Fatal Acci- dents Act, 1855-came to be passed on the 27th of March, 1855 in India. This Act contains in all five sections. Its pream- ble runs thus:
"Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect, or default, may have caused the death of another person, and it is often-times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him. It is enacted as follows:-"
"Para 5" Sections 1A and 2 of that Act which are relevant for our present purpose read thus: "1A. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as' would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;
and in every such action, the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recov- ered from the defendant, shall be cleivided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.
"Para 11" Amongst the High Courts in India there is a cleavage in the opinion as regards the maintainability of action under section 110-A 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 Magjibhai Khiraji Vira and another v. Chaturbhai Taljabhai and others (supra). The first set of 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 provi- sions of 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 tort tensors. Amongst these cases are P.B. Kader and others v. Thatchamma and others, A.I.R. 1970 Kerala 241 and Dewan Hari Chand and others v. Municipal Corporation of Delhi and another, A.I.R. 1973 Delhi 67. The second group of cases are those referred to in paragraph 6 of the decision of the Gujarat High Court. They are Perumal v. Ellusamy Reddiar, [1974] ACJ 182 (Mad) and the Vanguard Insurance Co. Ltd. v. Hanumantha Rao, [1975] ACJ 344 (Andhra Pradesh). 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 paragraph 7 of the judgment of the Gujarat High Court. They are Mohammed Habibullah and another v. K. Seethammal, A.I.R. 1967 Mad. 123; Veena Kumari Kohli v. Punjab Roadways, [1967] ACJ 297 (Pb.) and Smt. Ishwar Devi Malik v. Union of India, A.I.R. 1969 Delhi 183 which take the view that a claim for compen- sation arising out of the use of a motor vehicle would be exclusively governed by the provisions of sections 110 to 110-F of the Act and bears no connection to claims under the 1855 Act and the Claims Tribunal need not follow the princi- ples laid down under the latter Act. Having considered all the three sets of decisions referred to above, Ahmadi, J. who wrote the judgment in Megjibhai Khimji Vira and another v. Chaturbhai Taljabhai and others (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 110-A of the Act. 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 compensa- tion 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 per- sons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as re- quired by section 110B of the Act amongst the legal repre- sentatives for whose benefit an application may be filed under section 110-A of the Act have to be done in accordance with well-known prin- ciples of law. We should remember that in an Indian family brothers. sisters and brothers' children and some times 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, 1855 which as we have already held has been substantially modified by the provi- sions 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 and another v. Chaturbhai Taljabhai and others, (supra) 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.
"Para 12" We have carefully gone through the decision of the High Court of Madhya Pradesh in Budha v. Union of India and others (supra). We feel that the view taken in that decision is a narrow one and does not give full effect to the object with which sections 110-A and 110-B of the Act were enacted. We over rule the said decision.
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 represen- tatives' 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 85th 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 representatives' 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.
This Court in the case of Vidya Dhar Dubey and Ors. Vs. U.P. State Road Trans. Corpn., 1997 ACJ 1388, after taking into consideration the law as laid down by Hon'ble the Apex Court in the case of Ramanbhai Prabhatbhai (Supra) has held that a claim petition filed by the nephew in order to get compensation due to death of his aunt who is widow and issue less is maintainable under Section 110A of the Motor Vehicle Act, 1939 Hon'ble the Apex Court in the case of Manjuri Bera Vs. Oriental Insurance Company Ltd. and another, 2007 (2) TAC 431 (SC), considering the word " legal representative" has held as under :-
"According to Section 2(11) of Code of Civil Procedure, 1908 (in short the '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 is sued 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 definition of legal representative under the Arbitration and Conciliation Act, 1996, i.e. under Section 2(1)(g).
As observed by Hon'ble Apex Court in Custodian of Branches of BANCO National Ultramarino Vs. Nalini Bai Naique (AIR 1989 SC 1589) 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'. In the case of Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr. (AIR 1987 SC 1690), it has been held that "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. "
Madras high Court in the case of Oriental Insurance Co. Ltd. Vs. Rangammal and Ors, 2011 (4) TAC 292, has held that the claim for compensation arising out of use of motor vehicle can be maintained by brothers and nephews who are legal heirs/representatives.
Gauhati High Court, in the case of Oriental Insurance Co. Ltd. Vs. Shri Nirmal Boro and others, 2014 (3) TAC 162 (Gau.),while interpreting the word 'legal reprentative' as provided under Section 166 of the Motor Vehicles Act, 1988 has held as under:-
"In Manjuri Bora V. Oriental Insurance Co. Ltd., (supra) it was held that legal representatives can maintain a petition for compensation under the Motor Vehicle Act. Though there may not be loss of dependency. It was held that the legal representatives would be entitled to the compensation at least under Section 140 of the Motor Vehicle Act. The liability under Section 140 of the Act does not cease because there is absence of dependency. The quantum thus cannot be less than liability under Section 140 of the Act. Therefore even if there is no loss of dependency the claimants who are legal representatives will be entitled to compensation, the quantum of which shall not be less than liability flowing from Section 140 of the Act.
In the case of Gujarat State Road Transport Corporation v. Ramabhai (supra) it was observed:-
....we should remember that in an India Family brothers, sisters and brother's 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 Motor Vehicle accident, there is no justification to deny them compensation"
Thus, legal representatives means a person, who suffers on account of death of a person due to motor vehicle accident and need not necessarily be a wife, husband , parent and child.
In the instant matter , from the perusal of the record the position which emerge out is that Smt. Leelawati (mother) Promod Kumar Singh (elder brother / physically handicapped) have filed claim petition , are dependent upon the deceased Ram Kumar, so keeping in view the said fact claim petition filed by them being legal representatives of deceased Ram Kumar , is maintainable under Section 166 of the Act.
Thus, legal representative, ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolve on the death of an individual in this regard and the law as laid down in this regard by Hon'ble the Apex Court in the case of Gujarat State Road Transport Corporation Vs. Ramabhai Prabhatbhai (supra) , has held as under:-
"Persons for whose benefit such application can be made and the manner in which the compensation awarded may be distributed amongst the persons for whose benefit the application is made are dealt with by Section 110-A and Section 110-B and to that extent the provisions of the Act do supersede the provisions of the Fatal Accidents Act in so far as motor vehicles accidents are concerned. These provisions are not merely procedural provisions. They substantively affect the rights of the parties. As the right of action created by the Fatal Accidents Act was 'new in its species, new in its quality, new in its principles, in every way new' the right given to the legal representatives under the Motor Vehicles Act to file claim application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitations of an action under the Fatal Accidents Act. New situations and new dangers require new strategies and new remedies."
In the instant matter, from the perusal of the record the postiton which emerge out that the claimants, namely, Leelawati Devi , Sri Pramod Kumar and Km. Neelam, are persons who in law represents the estate of a deceased Ramesh Kumar or a person on whom the estate devolve on the death of the deceased because the other two brothers of the deceased who are not impleaded as parties with the claim petition, are not dependent upon the income of Ramesh Kumar (deceased) as per the facts of the present case on record, so keeping the peculiar facts and circumstance of the present case the arguments advanced by learned counsel for the appellant is that other two brothers of the deceased were not impleaded as claimants or as defendants in the claim petition, so the same is not maintainable under Section 166 of the Motor Vehicle Act , has got no force.
So far as the argument raised by learned counsel for the appellant that the tribunal has erred in granting compensation by taking into consideration the age of the deceased by applying the multiplier as provided in second schedule of Section 163 of the Motor Vehicle Act is concerned, in cases resulting in death due to motor vehicle accident, the multiplier method has been accepted as a sound method for determining the compensation to the family of the deceased in law of torts. Reference may be made to Gobald Motor Service Ltd. Vs. Veluswami 1962 (1) SCR 929, Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, Ishwar Devi Malik. v. Union of India, ILR (1968) 1 Delhi 59, Lachman Singh v. Gurmit Kaur, I (1984) ACC 489 ( SB), Lachman Singh V. Gurmit Kaur, AIR 1979 P&H 50, Bir Singh V. Hashi Rashi Banerjee, AIR 1956 Cal. 555. Reference may also be made to Lata Wadhwa Vs. State of Bihar, (2001) 8 SCC 1997; Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100, Jaipur Golden Gas Victims Association Vs. Union of India 164 (2009) DLT 346; Ram Kishore Vs. MCD, 2007 (97) DRJ 445; and Ashok Sharma V. Union of India, 2009 ACJ 1063. The multiplier method is statutorily recognized for computation of compensation in death cases under Section 163A of the Motor Vehicles Act, 1988.
The multiplier method is based on the pecuniary loss caused to the dependents by the death of the victim of the road accident. The dependency of the dependents is determined by taking the annual earning of the deceased at the time of the accident. Thereafter, effect is given to the future prospects of the deceased. After the income of the deceased is established, the deduction is made towards the personal expenses of the deceased which he would have spent on himself. If the deceased was unmarried, normally 50% of the income is deducted towards his personal expenses. If the deceased was married and leaves behind two to three dependents, 1/3rd deduction is made; if the deceased has left behind four to six family members, deduction of 1/4 th of his income is made and where the number of dependent family members exceeds six, the deduction of 1/5th of the income is made. The remaining amount of income after deduction of personal expenses is taken to be the loss of dependency to the family members which is multiplied by 12 to determine the annual loss of dependency. The annual loss of dependency of the dependents of the deceased is multiplied by the multiplier according to the age of the deceased or victim(s) whichever is higher. In Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), this Court held that the multiplier should be used in the following manner:
"21. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years. M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.( see also; National Insurance Co. Ltd. Vs. Ammini Amma and others 2014 ACJ , 927)"
In the case of Ramesh Singh and another Vs. Satbir Singh and another, 2008 AIR SCW, 1238 ( cited on behalf of the appellant) in para-4, it has been held as under:-
"We have given anxious consideration to these contentions and are of the opinion that the same are devoid of any merits. Considering the law laid down in New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720], it is clear that the choice of multiplier is determined by the age of the deceased or claimants whichever is higher. Admittedly, the age of the father was 55 years. The question of mother#s age never cropped up because that was not the contention raised even before the Trial Court or before us. Taking the age to be 55 years, in our opinion, the courts below have not committed any illegality in applying the multiplier of 8 since the father was running 56th year of his life."
In the instant case, Km. Neelam/ claimant no.3 who was aged about 16 years at the time of filing of claim petition, so the tribunal has not committed any illegality or infirmity in taking into consideration the multiplier as per second schedule of Section 163 of the Motor Vehicle Act as the age of the deceased which is higher in comparison to the age of claimant no.3, so the appellant cannot derive any benefit from the law as laid down by Hon'ble Apex Court in the case of Ramesh Singh and another ( Supra) rather the order passed by the claim tribunal is in accordance with the said judgment.
For the foregoing reasons , appeal lacks merit and is dismissed.
No order as to cost.
Order Date :- 02.12.2014 dk/