Andhra HC (Pre-Telangana)
Kommuru Rama Mohan Rao S/O Subba Rao vs V. Kanaka Durgaiah And The Oriental ... on 29 June, 2006
Equivalent citations: 2007(1)ALD459, 2007 A I H C 536, (2007) 1 ANDHLD 459, (2008) 4 ACJ 2235, (2007) 4 TAC 344, (2007) 3 ACC 82
JUDGMENT C.Y. Somayajulu, J.
1. First appellant and K. Hema Kumari filed a claim petition under the provisions of the Motor Vehicles Act, 1988 (the Act) alleging that when Kommuru Suryanarayana (hereinafter called the deceased), was proceeding in a rickshaw along with K. Srinivasarao and reached near Social Welfare Hostel in Kavuru village, a lorry belonging to the first respondent and insured with the second respondent, being driven in a rash and negligent manner dashed against the rickshaw resulting in grievous injuries to the deceased and so he was admitted in the hospital and died while undergoing treatment. The deceased was working as a clerk in a rice- mill and was earning Rs.1,000/- per month. First appellant, Ram Mohan Rao, his paternal uncle and Hema Kumari his widow were entirely depending on his earnings and so they are entitled to a compensation of Rs.1,00,000/- from respondents 1 and 2. Hema Kurmari died during the pendency of the proceedings before the Tribunal and so appellants 2 to 4 were brought on record as her legal representatives as respondents 3 to 5 in the claim petition.
2. Respondents 1 and 2 who appeared through the same counsel filed the counter of the second respondent putting the claimants to proof of the averments in the claim petition and that counter was adopted by the first respondent. Second appellant who was brought on record as the 3rd respondent in the claim petition filed his counter contending that he and appellants 3 and 4 also are entitled to compensation equally along with the first appellant.
3. On the basis of the pleadings, the Tribunal framed six issues for trial. In support of their claim, appellants examined two witnesses as P.Ws.1 and 2 and marked Exs.A.1 to A.3. Second appellant examined himself as R.W.1. Respondents 1 and 2 did not adduce any evidence either oral or documentary. The Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the lorry belonging to the first respondent and without giving a finding on the quantum of compensation payable held that as none of the appellants can be said to be the legal representatives of the deceased, dismissed the claim petition. Hence this appeal.
4. Since the finding of the Tribunal on the issue that the deceased died due to the rash and negligent driving of the driver of the first respondent has become final, the point for consideration is whether the appellants are entitled to and if so to what compensation?
Point:
5. The contention of the learned Counsel for the appellants is that since the widow of the deceased, who undisputedly is a legal representative to the estate of the deceased, is a claimant consequent upon her death, appellants would be her legal representatives by virtue of the provisions of the Hindu Succession Act, and so the Tribunal without dismissing the claim petition on the ground that there are no legal representatives to the estate of the deceased, ought to have arrived at the compensation payable and passed an award in favour of the appellants. He relied on Vanguard Insurance Co. v. C. Hanumantha Rao 1975(1) An.W.R. 327, where it is held that as the expression 'legal representative' used in Section 110A of the Motor Vehicles Act (IV of 1939) is not defined in that Act it should be understood in the light of the definition given in Section 2(11) of the Code of Civil Procedure. The contention of the learned Counsel for the first respondent is that in as much as the legal representatives to the estate of a deceased in an accident alone are entitled to compensation and since none of the appellants can be said to be his legal representatives as they are not the persons enumerated in Section 2 of the Fatal Accidents Act, the Tribunal rightly held that they are not entitled to any compensation. He relied on Bontu Venkata Rao v. Kalla Venkataramana 2003(2) Alt 572, where it is held that the husband of a deceased victim in an accident cannot be considered as dependent on the deceased wife, to claim compensation. He also relied on K. Sankaramma v. Venkateswara Engineering and Construction Ltd. , where it is held that the brother of a deceased victim in a motor accident cannot be considered as the legal representative, D. Nagappa v. General Manager, Karnatake State Road Transport Corporation , where it is held that brothers of a deceased victim in a motor accident are not entitled to compensation and New India Assurance Co. Ltd. v. Dharam Vati , where it is held that brother of a deceased victim in a motor accident is held to be not entitled to compensation and contended that since none of the appellants are heirs to the estate of the deceased, they are not entitled to claim any compensation. The contention of the learned Counsel for the second respondent-Insurance company is that since the appellants are not the legal representatives of the deceased, Tribunal dismissing the claim petition cannot be said to be erroneous.
6. In my considered opinion, none of the decisions relied on by the learned Counsel for the first respondent have application to the facts of this case. As stated above, one of the claimants in the claim petition is the widow of the deceased. The other claimant is the first appellant i.e. paternal uncle of the deceased. The fact that widow is Class-I heir to the estate of the deceased and is one of the persons enumerated in Section 2 of the Fatal Accidents Act is not and cannot be denied. So, immediately on the death of the deceased, she would be entitled to payment of compensation, which is legally due to her, and that compensation to be awarded to her would be her estate. In fact she has a vested right to claim compensation as the provisions of the Fatal Accidents Act read with the Act. So consequent on her death, her estate would pass on to her heirs as per the provisions of the Hindu Succession Act. The evidence of the second appellant as RW.1 shows that he and the other appellants are the paternal uncles of the deceased. The deceased and his wife i.e. 2nd claimant did not have children. So consequent on the death of the second claimant, Hema Kumari, her property would devolve on the heirs of her husband. In the absence of class- I heirs, as per Hindu Succession Act, property will devolve to class-II heirs. As per entry VII in class-II of the Schedule father's brother is class-II heir in the absence of father, children etc. Therefore, appellants are the legal representatives to the estate of Hema Kumari the widow of the deceased. They are not claiming compensation as the legal representatives of the deceased. Appellants 2 to 4 were in fact brought on record as the legal representatives of Hema Kumari. The Tribunal failed to keep in view that Hema Kumari (2nd claimant) gave evidence as PW.1. In the above circumstances the Tribunal ought to have considered the quantum of damages payable to her, and since the appellants would become the heirs to her estate it ought to have apportioned the compensation arrived at, to them.
7. The decisions relied on by the learned Counsel for the first respondent have no application to the facts of this case as the claim petitions in those cases were filed on the ground that they are the legal representatives of the deceased victims in the motor accident. In this case, Hema Kumari, the widow of the deceased, who is his legal representative, filed the claim petition and gave evidence. Therefore, the Tribunal was in error in dismissing the claim petition on the ground that the appellants are not the legal representatives of the deceased without keeping in view the fact that they are legal representatives of Hema Kumari the widow of the deceased. Since the deceased was aged about 24 years, as seen from Ex.A. 2, Panchanama of inquest, and since the accident occurred prior to 1994 amendment to the Act coming into force, the multiplier as per Bhagawandas v. Mohd. Arif 1987(2) A.L.T. 137 can be taken as '18'. Though there is no reliable evidence on record to show the earnings of the deceased, since even a coolie was earning about Rs.20/- per day by the date of the accident, the contribution of the deceased to his wife can be taken around Rs.200/- p.m., it would be Rs.2,400/- per year. Therefore, the pecuniary damages payable to Hema Kumari the widow, due to the death of the deceased, would come to (Rs.2,400/- X 18)= Rs.43,200/-.
8. In Y. Varalakshmi v. M. Nageswara Rao , it is held that the claimants in every case of a fatal accident are entitled to minimum compensation of Rs.15,000/- towards non-pecuniary damages. So Hema Kumari would have been entitled to Rs.15,000/- towards non-pecuniary damages. She would have been entitled to loss of consortium also but since she died and compensation would now go to the appellants, Rs.1,800/- can be fixed as the loss of consortium to the widow. Thus Hema Kumari (2nd claimant) would be entitled (Rs.43,200/- + Rs.15,000/- + Rs.1,800/-)= Rs.60,000/- as compensation due to the death of the deceased and consequent to her death appellants are entitled to the amount in equal shares . The point is answered accordingly. 9. In the result, the appeal is allowed in part and an award is passed for Rs.60,000/- in favour of the appellants, against respondents 1and 2 jointly and severally with interest at 9% p.a., from this date till the date of deposit into the Court with proportionate costs in the Tribunal. Rest of the claim of appellants is dismissed without costs. From out of the said amount, each appellant is entitled to Rs.15,000/- and interest thereon. Parties are directed to bear their own costs in this appeal.