Madras High Court
Manonmani vs R.Ranjitham on 27 March, 2006
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/03/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.No.491 of 2005 1.Manonmani 2.Rajammal 3.Selvaraj ... Appellants Vs 1.R.Ranjitham 2.M/s.United India Insurance Company Ltd., East Car Street, Tenkasi. 3.Kaniammal 4.Kathiresan 5.Mahalakshmi ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree made in M.C.O.P.No.14 of 2001, dated 21.12.2004, on the file of the Motor Accidents Claims Tribunal -Sub Court, Ambasamudiram. !For Appellant : M/s.N.R.Balaji ^For Respondents : Mr.S.S.Thesigan :JUDGMENT
This appeal has been preferred against the award passed in M.C.O.P.No.14 of 2001, dated 21.12.2004, on the file of the Motor Accidents Claims Tribunal - Sub Court, Ambasamudiram. The 3rd, 4th and 5th respondents in M.C.O.P.No.14 of 2001 are the appellants herein.
The short facts of the case relevant for the purpose of deciding this appeal are as follows:
2. The deceased Ponnusamy Nadar was working in the Highways Department at the time of the accident and was earning Rs.4,000/- per mensum. After his retirement, he was working as an agricultural labourer. The first claimant is the second wife of the deceased Ponnusamy Nadar and the claimants 2 and 3 are the children of the deceased Ponnusamy Nadar through the second wife/first claimant. The third respondent/first claimant is the first wife of the deceased Ponnusamy Nadar. The respondents 4 and 5 are the children of the deceased Ponnusamy Nadar through the first wife/third respondent/first appellant. On 30.10.2000, at about 10.30 p.m., while the said Ponnusamy Nadar was proceeding from north to south along the Kadayam - Tenkasi Main road, the lorry bearing Registration No.TN-72-Z-5707 belonging to the first respondent, was driven in a rash and negligent manner without observing the traffic rules, dashed against Ponnusamy Nadar, causing instantaneous death to him. The deceased Ponnusamy Nadar was earning Rs.4,500/- per mensum by doing agricultural work. The second wife of Ponnusamy Nadar along with her children were residing with Ponnusamy Nadar till his death and they are the dependants of Ponnusamy Nadar. The claimants have filed the claim petition claiming compensation of Rs.3 lakhs towards compensation for the death of Ponnusamy Nadar.
3. The first respondent remained ex-parte. The second respondent in his counter has stated that the claimants are not the dependants of Ponnusamy Nadar.
The claimants have to prove that the accident had occurred only due to the rash and negligent driving of the driver of the lorry bearing Registration No.TN-72- Z-5707. On the other hand, the accident had occurred only due to the contributory negligence of Ponnusamy Nadar.
4. The 3rd and 4th respondents have filed a joint counter, contending that the claimants are not the legal representatives of the deceased Ponnusamy Nadar and they are also not the dependants of Ponnusamy Nadar. The respondents 3 to 5 have filed M.C.O.P.No.151 of 2001 before the Motor Accident Claims Tribunal, Punalur, Kerala for compensation for the death of Ponnusamy Nadar in the accident. The 3rd respondent is the legally wedded wife of Ponnusamy Nadar. The 3rd respondent is receiving family pension from the Government after the death of Ponnusamy Nadar. The first respondent is not the legally wedded wife of Ponnusamy Nadar. The 2nd and 3rd claimants are the children of the deceased Ponnusamy Nadar. The first claimant is the wife of one Ayyadurai of Muthumalaipuram. The second and third claimants are the children of Ayyadurai and the first claimant. Ponnusamy Nadar was working as a NMR labourer in P.W.D and he had taken leave from 01.04.1969 on the ground of having undergone Vasectomy operation.
5. Before the learned Tribunal, P.W.1 and P.W.2 were examined and Exs.P.1 to P.9 were marked on the side of the claimants. On the side of the respondents, R.W.1 and R.W.2 were examined and Exs.R.1 and R.2 were exhibited.
6. After going through the oral and documentary evidence, the learned Tribunal has come to a conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the lorry bearing Registration No.TN-72-Z-5707 and has awarded Rs.90,000/- [Rs.30,000/- for each of the claimants] towards compensation.
7. Aggrieved by the award of compensation, the alleged first wife of Ponnusamy Nadar namely, the third respondent and her children R4 and R5 have preferred this appeal.
8. Now, the substantial question of law to be decided in this appeal is whether the claimants 1,2 and 3 will come under the definition of 'legal representatives' of Ponnusamy Nadar to claim compensation under Section 166(1)(c) of the Motor Vehicles Act, 1988?
The Point:
9. Under Section 166(1)(c) of the Motor Vehicles Act, only if the claimants prove that they are legal representatives of the deceased Ponnusamy Nadar, they will be entitled to claim compensation, which is not defined under the Motor Vehicles Act. The terms legal representative has been defined under Section 2(11) of C.P.C 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."
So, as per the above definition only a person who is competent to represent the estate of the deceased person will come under the ambit of the definition "legal representative".
10. Admittedly, the first appellant / the third respondent in M.C.O.P.No.14 of 2001 is the first wife of Ponnusamy Nadar at the time of the accident at Keelakadayam village, where the deceased Ponnusamy Nadar was risiding with the claimants 1,2 and 3 on the date of the accident. The appellants are admittedly residing at Saruvilaiputhanveedu, Ottakkal Post, Thenmala Village, Kollam District, Kerala. The appellants have also filed another claim petition in M.V.(O.P).No.151 of 2001 before the Motor Accident Claims Tribunal, Punalur for the death of Ponnusamy Nadar claiming compensation for the accident which took place on 30.10.2000. The appellants to show that they are the legal representatives of the deceased Ponnusamy Nadar have filed Ex.R.2, Xerox copy of the Pension Passbook. The learned Tribunal after going through Ex.R.2, pension passbook and also the evidence of R.W.1, Mrs.Manomani (3rd respondent / the first appellant) has come to a conclusion that the said pension passbook Ex.R.2 stands in the name of one Ponvaikundam. But, in the affidavit filed by her, she has mentioned her as the wife of late Ponnusamy Nadar and not as the wife of Ponvaikundam. Since, the first appellant had failed to prove that Ex.R.1, belongs to the deceased Ponnusamy Nadar, the contentions of the learned Counsel for the appellants herein, to the effect that they are the legal representatives of Ponnusamy Nadar under Ex.R.2, was rejected correctly by the learned Tribunal. It is pertinent to note from Ex.R.1, that Motor Accidents Claims Case No.151 of 2001 was filed by the appellants 1, 2 and 3 herein before the Motor Accidents Claims Tribunal, Punalur at Kerala. Since, the appellants 1,2 and 3 are residing at Punalur at Kerala, they have filed the claim petition before the Motor Accidents Claims Tribunal, Punalur, Kerala. Ex.R.1, itself will go to show that the appellants were not residing along with the deceased Ponnusamy Nadar at the time of the accident. The reason for the separation is not known, but the fact remains that there was no legal separation between the first appellant and the deceased Ponnusamy Nadar till his death. Unless, the marital status between the parties are separated by a legal separation, it cannot be said that Ponnusamy Nadar had divorced his first wife, namely, the first appellant herein. So, as far as the marital tie between the deceased Ponnusamy Nadar and the first appellant herein survives, the first claimant Mrs.Kaniammal cannot claim any legal status as that of a legally wedded wife to Ponnusamy Nadar. As long as the first appellant is alive, and the legal status of wife subsists, the first claimant, Mrs.Kaniammal cannot under law represent the estate of the deceased Ponnusamy Nadar. So, the first claimant cannot claim compensation in M.C.O.P.No.14 of 2001 under Section 166(1)(c) of the Motor Vehicles Act as that of a legal representative of the deceased Ponnusamy Nadar. The learned Counsel for the appellant would contend that the second and the third claimants cannot also be construed as legal representatives of the deceased Ponnusamy Nadar, because, the first claimant was living with Ayyadurai of Muthumalaipuram and the second and third claimants are the children of Ayyadurai through the first claimant and it was also contended on behalf of the respondents 3 to 5 / the appellants herein, before the learned Tribunal that since Ponnusamy Nadar had undergone Vasectomy Operation and had applied for leave on that score from 01.09.1969 to 15.09.1969, there is no possibility for a consummation of the first claimant through Ponnusamy Nadar. These facts were clearly discussed by the learned Tribunal at paragraph 11 of the award and negatived on the ground that there was no document produced on the side of the respondents 3 to 5 / appellants herein, to show that the deceased Ponnusamy Nadar had undergone Vasectomy Operation in the year 1969. The evidence of R.W.2, was to the effect that he is not aware whether Ponnusamy Nadar had subjected himself to a Vasectomy Operation. Further there was also no evidence let in before the learned Tribunal to the effect that the first claimant had married one Ayyadurai previously and they lived together as husband and wife. Under such circumstances only, the learned Tribunal has come to a unassailable conclusion that the claimants 2 and 3 are not the children of the Ayyadurai and the first claimant.
11. Now, let us see, whether the claimants 2 and 3 will come under the definition of legal representative as defined under Section 2(11) of C.P.C. The evidence of P.W.1, the first claimant, that she was living with the deceased Ponnusamy Nadar as second wife and the claimants 2 and 3 were born to her through the deceased Ponnusamy Nadar. Even if we take the second and third claimants as illegitimate children, they can be construed as legal representatives as defined under Section 2(11) of C.P.C.
12. The learned Counsel for the respondent relying on the decision in Cholan Roadways Corporation Limited Vs. Pavunraj and others reported in 2000 - 1
- L.W. 796 and contended that the question whether the legal representative is entitled to a compensation or not is one thing and the question whether the legal representative could maintain the petition under Section 166 of the Motor Vehicles Act is another thing. The facts of the said case that in C.M.A.1171 of 1993, an award was challenged on the ground that the claimant/dependant who is already married, was living separately and since he was not a dependant upon the income of the deceased, he is not entitled for any amount of award as compensation. It was held that at the time of death of his father, though he got married while his deceased father was alive he was a dependant under his father as the deceased used to give Rs.1,000/- per month to him out of his total income of Rs.3,000/- per month and it has been held as follows:
"To maintain an application under Section 166 of the Act the condition precedent is that a person so maintaining should be a legal representative. The object of the Act is to provide opportunity and remedy to all the legal representatives to approach the Court for award of compensation if they are otherwise entitled to receive such compensation by the Tribunal. The provisions of the Act do not permit exclusion of a person who is living separately though he is a legal representative. To decide whether a particular legal representative is entitled to compensation or not is one thing; the question whether the legal representative could maintain the petition under Section 166 of the Act is another thing."
13. So, it is clear in this case that as far as marital relationship between the first appellant and the deceased Ponnusamy Nadar survives, the first claimant Kaniammal cannot file any claim petition under Section 166(1)(c) of the Motor Vehicles Act to claim compensation for the death of Ponnusamy Nadar in the capacity as second wife. But, the claimants 2 and 3 are admittedly, the dependants of the deceased Ponnusamy Nadar, even if we take them as illegitimate children under law, they are entitled to be construed as legal representatives as defined under Section 2(11) of C.P.C.
14. Hence, I hold on the point that the claimants 2 and 3 will alone come under the definition of legal representative under Section 2(11) C.P.C and are entitled to maintain the claim petition No.14of 2001 in the capacity of legal representative under Section 166 (1)(c) of the Motor Vehicles Act. The first claimant is not entitled to maintain the claim petition No.14 of 2001 under Section 166 (1)(c) of the Motor Vehicles Act, since she has no marital status with the deceased Ponnusamy Nadar, as the marriage between the first appellant and the deceased Ponnusamy Nadar still subsists and not dissolved by any legal separation. The point is answered accordinlgy.
15. In the result, the appeal is allowed in part and the award passed in M.C.O.P.No.14 of 2001, dated 21.12.2004, on the file of the Motor Accidents Claims Tribunal -Sub Court, Ambasamudiram, in favour of the first claimant is hereby set aside and in other respects, the award is confirmed. No costs.
rsb To The Motor Accidents Claims Tribunal -
Sub Court, Ambasamudiram,