Madras High Court
United India Insurance Co. Ltd. vs Kasiammal And 4 Ors. on 28 October, 1997
Equivalent citations: 1997(3)CTC346
ORDER Jagadeesan, J.
1. The Insurance Company has filed this appeal against the award of the Motor Accident Claims Tribunal, Kallakurichi dated 6.12.96 in MCOP.395 of 1996.
2. The respondents 1 to 4 herein filed the said claim petition, claiming a compensation of Rs. 1 lakh for the death of one Muthammal. The deceased is the mother of the claimants. She died on 3.7.92 at 11.30 a.m. in a road accident, since the tempo bearing Registration No. TCF 4437 driven in a rash and negligent manner dashed against the deceased. It is the case of the claimants that the accident occurred due to the rash and negligent driving of the tempo by the driver and hence the insurance company is liable to pay the compensation.
3. The appellant herein resisted the claim of the claimants, contending that the accident occurred only due to the negligence of the deceased Muthammal, since she suddenly crossed the road. The driver of the vehicle had driven the vehicle in a careful manner and the accident did not take place in the manner in which it was put forth by the claimants.
4. The Tribunal, after careful consideration of the evidence available on record, awarded the compensation of Rs. 1 lakh. Aggrieved by the same, the present appeal has been filed.
5. In the appeal, the only contention of the counsel for the appellant is that the claimants are married sons and daughters of the deceased and hence they are not entitled for any compensation for the loss of dependence. They are not the dependents of the deceased. However, they will be entitled for the no fault amount alone. Since the Insurance Company has filed the appeal, they are not entitled to question the quantum of compensation.
6. The short question involved is whether the claimants who are married sons and married daughters are entitled for the compensation?
7. Though in the memorandum of grounds in this appeal this plea has been taken and the counsel has also advanced argument, a perusal of the counter filed by the appellant before the Tribunal as well as the perusal of the award of the Tribunal reveals that this issue has not been raised before the Tribunal. But, however, since the liability of the Insurance Company as well as the entitlement of the compensation by the married children of the deceased arises, I thought it is better to give a finding on this issue and hence allowed the counsel for the appellant to raise the plea.
8. To consider this question, it is necessary that the provision of Motor Vehicles Act is to be looked into. Section 110 of the old Act is corresponding to Section 166 of the Motor Vehicles Act, 1988. The same is as follows:-
"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."
In accordance with Clause (c) of Sub-section (1) of Section 166 of the Motor Vehicles Act, 1988 in a case of death, all or any of the legal representatives of the deceased is entitled to file to claim petition. Proviso to the said sub-section further makes it clear that where all the legal representatives have not joined, then the application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as the respondents. The term 'legal representative' used in this section is/entitled for a liberal construction unlike Section 1 of the Fatal Accidents Act, 1855, as held by various High Courts. Section 1-A of the Fatal Accidents Act is divided into three paragraphs. The first paragraph made liable a tort-feasor for paying damages on account of causing death. The second paragraph provided that every said action for damages shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been caused and shall be brought by and in the name of the executor, administrator or representative of the person deceased. The third paragraph authorises the court to 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 is brought and divide the amount of damages between the beneficiaries in such shares as it directs by the judgment or decree. Civil suits for damages were not only expensive but they took long time to fructify. Whereas the plight of the helpless dependents right for good succor. This led to the insertion of the provisions of Sections 110-A to 110-F of Motor Vehicles Act, which inter alia provided an inexpensive forum with a hope for a quick remedy for claiming compensation. The question as to which of the provisions of the enactment is applicable for making the claim has been dealt with elaborately by a Division Bench of Gujarat High Court in the case reported in Megjibhai v. Chaturbhai, . The learned Judges, after elaborately dealing with the Legal Representatives Act, 1855 (Act 12 of 1855) and the Fatal Accidents Act, 1855 (Act 13 of 1855) and Fatal Accidents Act, 1846 of England, popularly known as Lord Campbell's Act found that only the provisions of the Motor Vehicles Act will be applicable as this is a special enactment. The Fatal Accidents Act, 1855 being the general law, the special enactment shall over ride the general law/in the following terms:
"For the above reasons, we are inclined to think that the introduction of Sections 110-A to 110-F in the 1939 Act have brought about certain radical changes impinging upon the provisions contained in Sections 1-A and 2 of the 1855 Act. We, therefore, cannot agree with the learned counsel for the appellants that the change brought about by the introduction of Sections 110-A to 110-F in the 1939 Act was merely adjectival or procedural in nature. We are, therefore, of the opinion, that Clause (b) of Sub-section (1) of Section 110-A and Section 110-B of the 1939 Act clearly deal with substantive law and being wider in scope than Sections 1-A and 2 of the 1855 Act, must prevail over the general law. In view of the difference in the language of Sections 1-A and 2 of the 1855 Act and Sections 110-A and 110-B of the 1939 Act, we are of the opinion that the latter Act being a special Act, must over side the general law contained in the former Act."
Hence there is no doubt that the application for compensation can be filed by any one of the legal representative of the deceased.
9. In the case reported in Krishna Wati, Smt. v. Rudal Singh, 1973 A.C.J. 174 the Delhi High Court has held that the sons who would start earning in a couple of years would also be entitled to compensation. The principle on which the court held so, is, that the compensation paid to the legal representatives is on account of untimely death of their ancestor. Whether the sons of the deceased have or have not started earning, it would not stand to reason that they would not be entitled to compensation on account of untimely death of their ancestor.
10. In fact in judgment reported in Pushpam v. Nirmala, 1991 TLNJ 101 the question considered is whether in a petition claiming compensation for injuries sustained by the claimant, after his death whether the sister can come on record as the legal representative. Venkataswami, J/has held, that the sister of the deceased claimant can be brought on record as the legal representative, in the following terms:-
"In more or less identical circumstances, V. Ramaswami, J, a he then was, in 1981 ACJ 185 (supra), after noticing a Division Bench Judgment of this Court in C.P. Kandaswamy v. Mariappa Stores, 1974 ACJ 3 held that by introducing Section 110-A in the Motor Vehicles Act, Parliament intended not to restrict the statutory right to claim damages to the injured alone. In the case of claims arising out of motor accidents, Clause (b) provides that the cause of action would survive to the legal representative where death has resulted from the accident. This was an exception to the general principle actio personalis moritor cum persona. It is true there is a distinction between case of death resulting from the accident and a case of other personal injuries not causing the death of the party, i.e., the party dying subsequently during the pendency of the proceedings not due to the accident. But the Motor Vehicles Act does not, in my opinion, make any distinction so far as the right to claim damages. The claims in all these cases are no statutory rights. Therefore, there appears to be no reason to restrict the right to the injured alone." Therefore, there appears to be no reason to restrict the right to the injured alone." The learned Judge further distinguished the Division Bench case (1974 ACJ 362) on facts. The learned Judge ultimately held as reasonable question of recovering the actual expenses incurred by the deceased, I have no doubt that the claim will survive since that amount if had not been spent might have been available as the estate of the deceased to be succeeded by his legal representatives." In 1987 II ACJ 561 (supra) the Supreme Court has elaborately considered the expression 'legal representative' in Section 110-A of the Act. After noticing the divergent views of the various High Courts, the Supreme Court has held as follows:-
"In the light of the principles laid down in the above two judgments, I am of the view that the decisions cited by the learned counsel for the first respondent, namely reported in Videowala v. Union of India, 1986 (II) MLJ 345 and reported in Kandaswamy v. Mariappa Stores, 86 L.W. 667, cannot be pressed into service. I am further of the view that the question of bringing on record or coming on record as legal representatives and the further question whether they are entitled to compensation on the facts and circumstances of the case are two different issues. Merely because they are brought on record, that does not automatically entitled them to get compensation. In the light of the wider meaning given to the expression 'legal representative' by the Supreme Court, though in a case of death in a motor accident, the order of the Court below cannot be sustained. Therefore, I hold that the petitioner is entitled to continue the proceedings and it is for the court below to decide whether the petitioner is entitled to compensation at all, and if so, how much in the light of the principles laid down in 1981 ACJ 185 (supra) and other cases."
11. Yet another case reported in Bhagwatidin v. Gheesalal, 1980 ACJ 116 the Madhya Pradesh High Court has held, that the brother of the deceased can claim compensation, in the following terms:-
"There is another, aspect, which requires consideration. The provisions of Sections 110-A to 110-F of the Motor Vehicles Act, were inserted to provide cheap and speedy remedy to the persons, who had suffered loss on account of the accident. The provisions, being benevolent, call for liberal and broad interpretation so that the real purpose of enacting Sections 100-A to 100-F is achieved. It is well settled that if the provisions of a welfare legislation are capable of two interpretations, the interpretation, which furthers the policy of the act and is more beneficial to the persons for whose interest the law has been made, should be preferred. Therefore, if the Parliament has thought it fit not to use the word 'representative', as was used in Fatal Accidents Act, but has used, the word 'legal representative' in Section 110-A of the Motor Vehicles Act, full effect has to be given to the legislative intent. I am, therefore, of the opinion that the category of persons, who are entitled to claim compensation on account of the death of the deceased person, cannot be restricted to the relations specified in Section 1-A of the Fatal Accidents Act, 1855 and I agree with the view taken by the Madras, Andhra Pradesh and Gujarat High Courts in the decisions referred to above that all the legal representatives of a deceased as defined by Section 2(ii) of C.P.C. are entitled to claim compensation for the death of the deceased under Section 110-A of the Motor Vehicles Act, if they have suffered any loss on account of the death of the deceased. In the present case, it is common ground that the appellant being the brother of the deceased was not survived by any other nearer heir. The appellant, therefore, is entitled to claim compensation on account of the death of the deceased from the respondents."
12. In the case reported in G.S.R.T. Corporation Ahmedabad v. Ramanbhai, while dealing with the term 'legal representative' in Clauses (b) and (c) of Sub-section (1) of Section 110-A (corresponding to Section 166(1)(b) and (c) of the Motor Vehicles Act, 1988), the Supreme Court has held as follows:-
"Clauses (b) and (c) of Sub-section (1) of Section 110-A of the Act provide that an application for compensation arising out of an accident may be made where death has resulted from the accident by all or any of the legal representatives of the deceased or by any agent duly authorised by all or any of the legal representatives of the deceased. The proviso to Sub-section (1) of Section 110-A provides that where all the legal representatives of the deceased have not joined in any such 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 jointed shall be impleaded as respondents to the application. The expression 'legal representative' has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 defines 'legal representative' as 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. The above definition, no doubt, in terms does not apply to a case before the Claims Tribunal but it has to be stated that even in ordinary parlance the said expression is understood almost in the same way in which it is defined in the Code of Civil Procedure. A legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. Clause (b) of Sub-section (1) of Section 110-A of the Act authorises all or any of the legal representative of the deceased to make an application for compensation before the Claims Tribunal for the death of the deceased on account of a motor vehicle accident and Clause (c) of that sub-section authorises any agent duly authorised by all or any of the legal representative of the deceased to make it. The proviso to Sub-section (1) of Section 110-A of the Act appears to be of some significance. It provides that the application for compensation shall be made on behalf of or for the benefit of all the legal representative of the deceased. Section 110-A(1) of the Act thus expressly states that (1) an application for compensation may be made by the legal representative of the deceased or their agent and(ii) that such application shall be made on behalf of or for the benefit of all the legal representatives. Both the person or persons who can make an application for compensation and the persons for whose benefit such application can be made are thus indicated in Section 110-A of the Act. This section in a way is a substitute to the extent indicated above for the provisions of Section 1-A of the Fatal Accidents Act, 1855 which provides that "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 representatives of the person deceased." While the Fatal Accidents Act, 1855 provides that such suit shall be for the benefit of the wife, husband, parent and child of the deceased, Section 110-A (1) of the Act says that the application shall be made on behalf of or for the benefit of the legal representative of the deceased. A legal representative in a given case need not necessarily be a wife, husband, parent and child. It is further seen from Section 110-B of the Act that the Claims Tribunal is authorised to make an aware determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. This provision takes the places of the third paragraph of Section 1-A of the Fatal Accidents Act, 1855 which provides that 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. Persons for whose benefit such an 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 of the Act and to that extent the provisions of the Act do supersede the provisions of the Fatal Accidents Act, 1855 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, 1855 was "new in its species new in its quality, new in its principles, in every way new" the right given to the legal representative under the Act to file an 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 Accident Act, 1855. New situations and new dangers required new strategies and new remedies."
From the above referred judgments, it is very clear that any legal representative of the deceased can file the claim petition, claiming compensation.
13. It may be pertinent to refer to two judgments reported in Revanben v. Kantibhai Narottamehai Gohil, 1995 ACJ 548 and U.P. State Road Trans. Corporation v. Tara Devi, 1995 ACJ 1220. In the earlier case, the Gujarat High Court has taken the view that where the widow and the minor children of the deceased are living, then they form a family unit and in such cases the major sons living separately from the deceased father as well as the married daughters are not entitled for compensation. To extract the passage reads as follows:
"Now the original claimant Nos. 4, 5 and 6 are the major sons of the deceased and as per the deposition of the widow of the deceased, Revanben, at Exh.28, these sons are living separately. Similarly, original claimant Nos. 7, 8 and 9 are married daughters of the deceased who are living separately with their respective husbands and in-laws. Thus, the only claimants who would be entitled to compensation would be the widow Revaben and two minor children. Thus, the deceased together with his widow and the two minor children would have constituted the family unit."
14. In the later case, the Allahabad High Court had observed that rightly the Tribunal has held that the major sons are not entitled for compensation in that case as the widow is living. In both the cases, except this reasoning it has not been elaborately discussed as to whether the major sons or the sons living separately are not entitled to claim any compensation as the legal representatives of the deceased.
15. As pointed out earlier, the compensation amount is being paid to the legal representatives on account of untimely death of their ancestor. The dependency of the legal representatives is a question to be considered and does no mean only the dependents can claim compensation. The compensation being the amount for the loss to the estate of the deceased, it has to be considered as to whether the legal representatives had been put to loss because of the death of the deceased. Wherever the deceased is an earning member, naturally his savings is an accumulation for the estate which can be divided by the legal representatives after the death of the deceased. As the legal representatives had been put to loss of the earning of the deceased, the legal representatives are also entitled for the compensation.
16. Further in this case there is absolutely no evidence to show that the married sons are living separately. When they are residing with the mother, naturally the married sons had lost not only the assistance of the deceased mother but also lost her valuable advice in family matters. The deceased, being a widow, naturally she could have lived with any one of the sons. When the legal representatives, the married sons of the deceased are entitled for compensation even though they are residing separately, the claimants herein will be entitled for compensation; especially when they are residing with the deceased. More over, the aged parents in many a house are the watch dogs for the entire house, servants and the grand children except a few exceptional cases. When the claimants had lost such valuable services of their mother they are entitle for compensation. The loss cannot be substituted by any other confident or responsible person either in the family or by appointing a servant. If the contention of the counsel for the appellant is accepted, I do not surprise that in future the appellant may plead that generally the aged ones are only a liability in the family and since due to the accident the aged one died, the family is get rid of the same and the driver should be suitably rewarded by the legal representatives instead of claiming any compensation for the death of the deceased.
17. Further if the contention of the counsel for the appellant that the claimants are entitled only for the no fault amount is accepted, then a person who sustained some grievous injuries will be paid more than the amount that would be paid to the legal representatives i.e., married sons and daughters of the deceased and in that case it would be cheaper to kill than maim. If the claimants are to be paid the no fault amount, that may mean that the claimants are being paid some ex gratia payment out of sympathy and not for the loss of life of their ancestor. Hence the contention of the counsel for the appellant cannot be countenanced and there is absolutely no merit in the appeal and is dismissed.