Jammu & Kashmir High Court
National Insurance Co. vs Haleema Begum And Ors. on 1 September, 2005
Equivalent citations: I(2006)ACC65, 2007ACJ169, 2006(1)JKJ49
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. Relevant facts for the disposal of this appeal are that Haleema Begum, respondent No. 1 herein and her husband Gh. Mohd Shafi, being legal heirs of deceased Abdul Rahim Bhat, filed a claim petition before the Motor Accidents Claims Tribunal, Kishtwar ( hereafter referred to as the Tribunal) on account of death of Abdul Rahim Bhat, who died in a road accident on 27.8.1998 while traveling in Bus No. JK01- 6795 at Jangalwar Nalla, Thathri, when he was coming down from the said bus. It was pleaded that Om Parkash, driver of the Bus, was negligent in not stopping the bus when the deceased was alighting from it. The learned Tribunal framed various issues. The driver and owner of the offending vehicle did not contest the claim petition. The appellant Insurance Company contested the claim petition and raised number of objections and pleaded that driver was not negligent in driving the bus and the claimants are not entitled to compensation. The Tribunal, after recording the evidence held that deceased died due to rash and negligent driving of Om Parkash, driver. The Tribunal rejected the claim of Mohd Shafi as being not the legal heir of the deceased but accepted the claim petition quo Smt. Haleema Begum and passed an award of Rs. 3,27,000/- with interest @ 12% per annum from the date of application. It was further held that appellant Insurance Company is liable to pay the compensation and it has to satisfy the award being insurer of the Bus. Aggrieved of the award, the present appeal has been filed by the Insurance Company.
2. Mr. C.S. Gupta, learned Counsel for the appellant has raised two fold contentions. His first contention is that claim petition filed by the claimant Haleema Begum was not maintainable. According to him Haleema Begum was not dependent legal representative of the deceased. He submitted that claimant Haleema Begum is married with Mohd Shafi and she was residing in her matrimonial house, therefore, she is not entitled to the compensation. In support of his submissions he relied upon JKLR Vol. III, 2001 Samvat, 189, Sultan Loan v. Akbar Dar Kirtikant D. Vadidaria v. State of Gujarat 1988 ACJ 667 Padma Devi v. U.P. State Road Transport Corporation and Ors. , T.S. Rukmani and Anr. v. M.B. Aiyappa and Ors. 1987 ACJ 31 (Madras) N. Lakshmi and Anr. v. Pichaiammal and Ors. 1987 ACJ 245 (P&H), Gurdial Kaur and Ors v. Atma Singh and Ors. 1987 ACJ, 561 (SC) Gujarat State Road Transport Corporation v. Ramanbhai Prabharbhai and Anr. 1989 ACJ 622 (AP), Andhra Pradesh State Road Transport Corporation v. P. Raghavaiah and Ors. 1989 ACJ 1128 (All) Nathi Singh v. Vimlesh Gupta and Ors. Chameli Devi and Anr. v. Delhi Transport Corporation, and , Shiv Kumar and Ors. v. Raj Kumar and Ors.. The second contention raised by learned Counsel for the appellant is that the Tribunal has awarded the compensation on higher side by considering the income of the deceased as Rs. 3000/- per month. He contended that there is no evidence on record to show that deceased was earning Rs. 3000/- per month. He also contended that the Tribunal has committed an error while applying the multiplier, as the multiplier has to be adopted by taking into consideration the age of the deceased as well as of the claimant.
3. Learned Counsel for the respondents submitted that the deceased Abdul Rahim was not having any son or daughter except the claimant Haleema Begum. He submitted that, claimant Haleema Begum, after her marriage was residing along with the deceased as a Khana Nishin. He submitted that Khana Nishin daughter has all the rights and duties as that of a son. He contended that the claimant being the legal heir of the deceased is entitled to the compensation. He further submitted that the learned tribunal has taken into consideration the age of the deceased, claimant as also the income of the deceased while passing the award.
4. After hearing counsel for the parties and perusing the record I am of the considered opinion that the learned Tribunal has not committed any legal or jurisdictional error in passing the award.
The first point which has to be considered in this appeal is whether a Khana Nishin daughter can maintain a claim petition. The Application for compensation has to be entertained under Section 166(1) of the Motor Vehicles Act, which reads as under:
(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) ------------------------------------------------------------------------
(b) ------------------------------------------------------------------------
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased.
(d) -------------------------------------------------------------------
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.
5. Under the clause reproduced above, a claim petition can be filed by the legal representatives of the deceased whose death has resulted by an motor accident. The word "legal representative" has been interpreted in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr. and it has been observed as under:
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 authorizes all or any of the legal representatives of the deceased to male 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 authorizes any agent duly authorized by all or any of the legal representatives 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 representatives of the deceased. Section 110-A(1) of the Act thus expressly states that (i) an application for compensation may be made by the legal representatives 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 1A 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 representative 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 representatives 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 authorized to make an award determining the amount of compensation which appears it to be just and specifying the person or persons to whom compensation shall be paid. This provision takes the place of the third paragraph of Section 1A 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 supercede the provisions of the Fatal Accidents Act, 1855 in so far 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, every way new" the right given to the legal representatives 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 Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
6. A Division Bench of this Court in Gian Singh and Ors. v. Ram Krishan Kohli and Ors. 2002 KLJ 106, has observed as under:
We, therefore, hold that the sisters and brother of a person, who dies in an motor vehicle accident, are entitled to maintain a petition under Section 166 of the Act, if they are legal representatives of the deceased.
In Chandan Singh and Anr. v. S.E.W. Construction Co. Ltd. and Ors. , a Division Bench of Madhya Pradesh High Court has held that claim for compensation under the Act cannot be denied where the legal representative are earning and do not depend upon the deceased for survival.
7. Under Section 8 of Hindu Succession Act, 1956, the property of intestate hindu male shall be divided amongst the heirs in Class I of the Schedule, in accordance with the following rules:
Rule-1 : The intestate's widow, or if there are more widows than intestate shall each take one share.
Rule 2: The surviving sons and daughters and the mother of the each pre-deceased daughter of the intestate shall take between them one share.
Rule 3: The heirs in the branch of each pre-deceased son of each pre-deceased daughter of the intestate shall take between them one share.
Rule 4: The distribution of the share referred to in Rule 3:
(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons gets the same portion.
(ii) Among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
8. In the case in hand the deceased has not left surviving widow. He was not having any son. Only the daughter is surviving but the claimant is a Mohammedan. She, while appearing as her own witness has deposed that deceased Abdul Rahim was her father. She has been married as Khana Nishin daughter. Her version has been fully corroborated by PW Mohd Shafi. The term "Khana Nishin" has been defined in Sultan Lone and Ors. v. Akbar Dar and Ors., Jammu and Kashmir Law Reporter 2001 Samvat (1944-45) page 189, as under:
Khana Nishin daughter" seems to have become more or less a term of art well understood in Jammu and Kashmir State as implying something more than the etymological meaning. When a daughter is spoken of as Khana Nishin, the conception seems to be that the father treated such daughter in all respects as a son and that by custom she is entitled in the matter of inheritance to occupy the same position as a son would have done.
9. The claimant being a Khana Nishin daughter is the dependent legal heir of the deceased Abdul Rahim as the claimant was residing with him and deceased was also supporting the family, therefore, the petition filed by the claimant is maintainable.
10. The next point which has to be determined in this case is whether the compensation awarded is excessive. Claimant Haleema Begum has deposed in her statement that deceased was a carpenter by profession and was earning Rs. 100/- to Rs. 150/- per day. Te version of claimant Haleema Begum has been fully supported by Mohd Shafi and Abdul Subhan. The evidence has not been rebutted. The learned Tribunal, while taking the income of the deceased as Rs. 100/- per day has rightly assessed the income of the deceased as Rs. 3000/- per month and deducted 1/3rd of the income as personal expenses of the deceased. The evidence given by Haleema Begum, and her witnesses has not been challenged or rebutted. The learned Tribunal has rightly assessed the income of the deceased as Rs. 100/- per day i.e. Rs. 3000/- per month. The learned Tribunal has also rightly deducted the 1/3rd of the income as personal expenses of the deceased.
11. So far as the multiplier is concerned, the learned Tribunal has rightly applied the multiplier of 13 as the deceased at the time of the accident was of 50 years of age. As per the Schedule II attached to Section 163 of the Motor Vehicles Act, where the age of a person who dies in an accident is between 45 and 50 years, the multiplier of 13 has to be applied. The Tribunal has thus rightly applied the multiplier also.
12. For the reasons mentioned above there is no merit in this appeal which is, accordingly, dismissed with costs.