Gujarat High Court
Oriental Insurance Co Ltd vs Pushpaben Parsottambhai Makwana on 28 January, 2025
NEUTRAL CITATION
C/FA/2580/2015 ORDER DATED: 28/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2580 of 2015
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ORIENTAL INSURANCE CO LTD
Versus
PUSHPABEN PARSOTTAMBHAI MAKWANA & ORS.
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR HIMMAT J PARMAR(2106) for the Defendant(s) No. 5
MR VIJAY J SHAH(3487) for the Defendant(s) No. 1,2,3,4
MS SEJAL V SUTARIA(878) for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 28/01/2025
ORAL ORDER
Being aggrieved and dissatisfied with the aforesaid award dated 25.6.2014 passed by the learned Judge of the Motor Accident Claims Tribunal (Aux.), Ahmedabad Rural in Motor Accident Claims Petition No. 1589/2010, the appellant has preferred this appeal.
2. Learned Advocate for the appellant has assailed this judgment mainly on the ground that claimants are major sons and daughters of the deceased and cannot be treated as dependent of the deceased mother however the learned tribunal committed serious error in taking monthly income of Rs.4,000/- of the deceased while calculating the loss of dependency with future prospect. He would submit that tribunal has also erred in assessing the loss of consortium for major sons and daughters of the deceased and therefore request to interfere with the said finding and to allow this appeal.
3. On the other hand learned Advocate Mr.J P Dastor for Mr.Shah, Page 1 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined learned advocate for the org. claimants would submit that the tribunal has not committed any error and just and fair compensation is awarded by the tribunal and this Court may not interfere with the said finding.
4. Having heard the learned advocates appearing for the respective parties and examined the R & P, what could be seen that whether sole dependent of the deceased can be treated as dependent for calculating the loss of dependency and secondly whether the tribunal erred in taking up the income at Rs.4,000/- for calculating the income of the deceased. In the case on hand, deceased was 45 years old and lost her life in an accident. The role of the deceased was knitting the family and her services are invaluable and cannot be assessed in terms of money.
5. This Court in identical fact situation, in the case of Prernaben @ Purviben Mansukhlal Mehta Decd.Thr Heirs Versus Daudkhan Usmankhan Belim [2024 (0) GUJHC 61440] after referring to various judgments on the issue, in para 11,12,13 and 14 held as under :-
"11. It was argued by learned advocates for the insurance company that deceased Preranaben was unmarried and therefore, the claimants who are father and brother of the deceased cannot claim dependency loss. I am not impressed by the submission canvassed by the learned advocates. Plain reading of section 166(1) of the Act permits legal representatives of the deceased to prefer claim petition. The MV Act, 1988 does not define term "legal representative", but section 2(11) of the CPC, reads as under:-
"SECTION 2 : Definitions In this Act, unless there is anything repugnant in the subject or context,-
(11) "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who Page 2 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined 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;
12. Plain reading of section 2(11) of the CPC indicates that in case of death of a person in the motor vehicle accident, the right is available to the legal representative or the agent of the deceased or injured to claim for compensation under the MV Act. The issue as to who is a legal representative or its agent is basically an issue of fact and may be decided one way or the other dependent upon the facts of a particular case. But as a legal proposition it is undeniable that a person claiming to be a legal representative has the locus to maintain an application for compensation under Section 166 of the Act. Said issue came up before the Hon'ble Apex Court for decision in case of Montford Brothers of St. Gabriel and Anr. vs. United India Insurance and Anr., (2014) 3 SCC 394 , whereby, the Full Bench of the Hon'ble Apex Court after referring to the earlier judgment in case of Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Anr., (1987) 3 SCC 234 , in para 11 to 17 held as under:-
"11. Learned counsel for the Insurance Company tried to persuade us that since the term `legal representative' has not been defined under the Act, the provision of Section 1-A of the Fatal Accidents Act, 1855, should be taken as guiding principle and the claim should be confined only for the benefit of wife, husband, parent and child, if any, of the person whose death has been caused by the accident. In this context, he cited judgment of this Court in the case of Gujarat State Road Transport Corporation, Ahmedabad V/s. Raman Bhai Prabhatbhai & Anr., AIR 1987 SC 1690 . In that case, covered by the Motor Vehicles Act of 1939, the claimant was a brother of a deceased killed in a motor vehicle accident. The Court rejected the contention of the appellant that since the term `legal representative' is not defined under the Motor Vehicles Act, the right of filing the claim should be controlled by the provisions of Fatal Accident Act. It was specifically held that Motor Vehicles Act creates new and enlarged right for filing an application for compensation and such right cannot be hedged in by the limitations on an action under the Fatal Accidents Act.
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12. Paragraph 13 of the report reflects the correct philosophy which should guide the courts interpreting legal provisions of beneficial legislations providing for compensation to those who had suffered loss.
"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 wellknown principles 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 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/s. Chaturbhai Taljabhai, (AIR 1977 Guj.195 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. From the aforesaid quoted extract it is evident that only if there is a justification in consonance with principles of justice, equity and good conscience, a dependant of the deceased may be denied right to claim compensation. Hence, we find no merit in the Page 4 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined submission advanced on behalf of the respondent- Insurance Company that the claim petition is not maintainable because of the provisions of the Fatal Accidents Act.
14. On behalf of the appellants it has been rightly contended that proceeding before the Motor Vehicle Claims Tribunal is a summary proceeding and unless there is evidence in support of such pleading that the claimant is not a legal representative and therefore the claim petition be dismissed as not maintainable, no such plea can be raised at a subsequent stage and that also through a writ petition. The objection filed on behalf of the Insurance Company, contained in annexure P.2, does not raise any such objection nor there is any evidence led on this issue. As noted earlier, the Tribunal did frame any issue regarding maintainability of the claim petition on law and fact as issue no.1 but the findings recorded by the Tribunal at page 41 of the paper book show that this issue together with issue nos. 2 and 3 were not pressed by the opposite parties during trial and were accordingly decided in favour of the claimants.
15. In the aforesaid circumstances, the order under appeal dated 20.8.2002 allowing the writ petition suffers from apparent mistake in not noticing the relevant issue decided by the Tribunal and also the fact that the Insurance Company, which was the writ petitioner, had not pressed this issue. It had neither raised pleadings nor led evidence relevant for the said issue.
16. On coming to know about the High Court judgment the appellants filed a review petition in which they gave all the relevant facts including the constitution of the society appellant no.1 in support of their claim that a `Brother' of the Society renounced his relations with the natural family and all his earnings and belongings including insurance claims belonged to the society. These facts could not have been ignored by the High Court but even after noticing such facts the review petition was rejected.
17. A perusal of the judgment and order of the Tribunal discloses that although issue no.1 was not pressed and hence decided in favour of the claimants/appellants, while considering the quantum of compensation for the claimants the Tribunal adopted a very Page 5 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependants or earning- For answering this issue the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or organization may suffer considerable loss due to death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court reported in AIR 1987 Pat. 239, which held that the term `legal representative' is wide enough to include even "intermeddlers" with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure."
13. Worthy assistance can be taken from the judgment of Hon'ble Apex Court in the case of National Insurance Company Ltd. v/s. Birender and Ors [(2020) 11 SCC 356] , whether married and major sons having gainful employment or earning elsewhere can claim compensation and whether claim petition at their instance is maintainable was issue before the Hon'ble Apex Court in the matter. Hon'ble Apex Court in para 12 to 14 has observed as under :-
"12. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:
"9. In terms of clause (c) of subsection (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 Page 6 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined representative can file a claim petition. The proviso to said subsection 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. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act. 10. ...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 who claims for the same.
11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a de ceased 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). 12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, 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". As observed in Gujarat SRTC v. Ramanbhai Prabhatb hai [(1987) 3 SCC 234 a legal representative is one who suf fers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."
13. In paragraph 15 of Majnuri Bera, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The Page 7 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning. 14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/ and Rs.1,50,000/ per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years. 14. Yet, in another judgment of the Hon'ble Apex Court in case of N.Jayasree Versus Cholamandalam Ms General Insurance Company Ltd., 2022 (14) SCC 712 , where the mother-in-law has been considered dependent of the deceased, the Hon'ble Apex Court after referring judgment in case of Ramanbhai Prabhatbhai (supra) as well as Montford Brothers (supra) held that if legal representatives suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation. The relevant para of Hon'ble Apex Court is para 14 to 20, which reads as under:-
"14. The MV Act does not define the term 'legal representative'. Generally, 'legal representative' means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A 'legal representative' may also include any person who intermeddles with the estate of the deceased. Such person does not necessarily have to be a legal heir. Legal heirs are the persons who are entitled to inherit the surviving estate of the deceased. A legal heir may also be a legal representative. 15. Indicatively for the present inquiry, the Kerala Motor Vehicle Page 8 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined Rules, 1989, defines the term 'legal representative' as under:
"Legal Representative" means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased."
16. In our view, the term 'legal representative' should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation. 17. It is settled that percentage of deduction for personal expenses cannot be governed by a rigid rule or formula of universal application. It also does not depend upon the basis of relationship of the claimant with the deceased. In some cases, the father may have his own income and thus will not be considered as dependent. Sometimes, brothers and sisters will not be considered as dependents because they may either be independent or earning or married or be dependent on the father. The percentage of deduction for personal expenditure, thus, depends upon the facts and circumstances of each case. 18. In the instant case, the question for consideration is whether the fourth appellant would fall under the expression 'legal representative' for the purpose of claiming compensation. In Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Anr., (1987) 3 SCC 234 this Court while considering the entitlement of the brother of a deceased who died in a motor vehicle accident to maintain a claim petition under the provisions of the MV Act, held 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 Page 9 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined 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 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 110B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110A of the Act have to be done in accordance with wellknown 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 breadwinner 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 Taljabhagujri, AIR 1977 Guj 195 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." 19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and Ors., (2007) 10 SCC 715 it was held that:
"7. ...12. As observed by this Court in Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique, 1989 Supp (2) SCC 275 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'. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai3 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." 20. In Montford Brothers of St. Gabriel and Anr. vs. United India Insurance and Anr., (2014) 3 SCC 394 this Court was considering the claim Page 10 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined petition of a charitable society for award of compensation on account of the death of its member. The appellantsociety therein was a registered charitable society and was running various institutions as a constituent unit of Catholic church. Its members, after joining the appellantsociety, renounced the world and were known as 'brother'. In this case, a 'brother' died in a motor vehicle accident. The claim petition filed by the appellantsociety seeking compensation on account of the death of aforesaid 'brother' was rejected by the High Court on the ground of its maintainability. This Court after examining various provisions of the MV Act held that the appellantsociety was the legal representative of the deceased 'brother'. While allowing the claim petition it was observed as under: "17. A perusal of the judgment and order of the Tribunal discloses that although Issue 1 was not pressed and hence decided in favour of the appellant claimants, while considering the quantum of compensation for the claimants, the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependents or earning- For answering this issue, the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or an organisation may suffer considerable loss due to the death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court in Sudama Devi v. Jogendra Choudhary, AIR 1987 Pat 239 which held that the term "legal representative" is wide enough to include even "intermeddlers"
with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure."
6. In the case of National Insurance Company Limited Versus Birender And Ors. [2020 (11) SCC 356], Hon'ble Apex Court has addressed the issue after framing question in para 12 as under :-
Page 11 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined "12. We have heard Mr. Amit Kumar Singh, learned counsel for the insurance company (appellant) and Ms. Abha R. Sharma, learned counsel for the respondent Nos. 1 and 2. The principal issues which arise for our consideration are as follows: -
(i) Whether the major sons of the deceased who are married and gainfully employed or earning, can claim compensation under the Motor Vehicles Act, 1988 (for short, 'the Act')-
(ii) Whether such legal representatives are entitled only for compensation under the conventional heads
(iii) Whether the amount receivable by the legal representatives of the deceased under the 2006 Rules is required to be deducted as a whole or only portion thereof."
6.1. Hon'ble Apex Court in para 13 to 15 has held as under :-
"13. Reverting to the first issue - that needs to be answered on the basis of the scheme of the Act. Section 166 of the Act provides for filing of application for compensation by persons mentioned in clauses (a) to (d) of sub-Section (1) thereof. Section 166 of the Act, as applicable at the relevant time, reads thus: - "Section 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. (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 Page 12 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (3) *** (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." (emphasis supplied) 14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:- "9. 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. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act. 10. .....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 who claims for the same. 11. According to Section 2(11) 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). 12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275 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 Page 13 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined 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". As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [(1987) 3 SCC 234 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." In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."
Page 14 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined 7. Thus, in view of above, it is settled by now that legal
representative of deceased has right to apply for compensation. Loss of dependency cannot be limited to financial dependency. Legal representative are dependent even emotionally to the deceased and therefore, they are entitled to claim compensation under section 166 of MV Act. Thus, the contention raised by the appellant insurance company cannot be accepted and negatived.
8. As stated herein above the mother is playing the role of homemaker and she was died at the age of 45 years and tribunal adopted monthly income at Rs.4,000/- which in the opinion of this Court is just and proper to calculate the loss of dependency and has rightly granted 30% towards the future prospect. However, the amount granted under the head of loss of consortium is erroneous. The tribunal has granted Rs.50,000/- on the basis that defendant no.1 has lost his wife in the road accident and therefore defendant no.1 is entitled to spousal consortium. Since the defendant no.1 was not the claimant rather was defending the claim petition, he cannot be granted compensation under the loss of consortium. But, another error on the part of the tribunal is noticed that total four major sons and daughters who are entitled to loss of consortium and therefore one error is given set off with the another error. In nutshell, the appellant - insurance company has failed to point out any error which requires interference at the hands of this Court.
9. In the result, the appeal fails and is accordingly dismissed. The impugned judgment and award rendered by the tribunal is confirmed. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure in the apportionment if not Page 15 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025 NEUTRAL CITATION C/FA/2580/2015 ORDER DATED: 28/01/2025 undefined done.
Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) sompura Page 16 of 16 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:17 IST 2025