Allahabad High Court
The New India Assurance Comp. Ltd. ... vs Smt. Dhan Raji And Ors. on 16 May, 2025
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:28908 Court No. - 5 1. Case :- FIRST APPEAL FROM ORDER No. - 86 of 2012 Appellant :- The New India Assurance Comp. Ltd. Lucknow Respondent :- Smt. Dhan Raji And Ors. Counsel for Appellant :- Zafar Aziz,I.D. Shukla,S.K. Mehrotra Counsel for Respondent :- Alok Kumar Tiwari,K.M. Shukla,Rama Pati Shukla 2. Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 805 of 2012 Appellant :- Smt. Dhanraji And Ors. Respondent :- The New India Assurance Co. Ltd. Legal Hub Incharge And Ors. Counsel for Appellant :- S.K. Mehrotra,Alok Kumar Tiwari,I.D. Shukla,Rama Pati Shukla Counsel for Respondent :- K.M. Shukla,Zafar Aziz Hon'ble Abdul Moin,J.
1. Heard Shri Zafar Aziz, learned counsel for the appellant and Shri Rama Pati Shukla, learned counsel appearing for respondent No. 1 to 3 in FIRST APPEAL FROM ORDER No. - 86 of 2012. Despite the notice being served upon respondents No.5 & 6 as per the Office Report dated 03.12.2012, nobody put in appearance on their behalf to prosecute the case.
2. Heard Shri Rama Pati Shukla, learned counsel appearing for the appellant and Shri Zafar Aziz, learned counsel for the respondent No.1 in FIRST APPEAL FROM ORDER DEFECTIVE No. - 805 of 2012. Despite the Vakalatnama having been filed by Shri K.M. Shukla, Advocate on behalf of respondents No.2 and 3 and his name being indicated as Counsel for the Respondent, nobody appears for respondents No.2 and 3 to prosecute the case. There is an application for condonation of delay. The reasons indicated in the affidavit filed in support of the application are found satisfactory. The application is allowed and delay in filing the appeal is hereby condoned.
3. As the matters pertain to the year 2012, the Court proceeds to hear and decide the appeals.
4. As both the appeals arise out of common judgment and order dated 24.10.2011 passed by the learned Motor Accidents Claims Tribunal/ Additional District Judge, Court No.6, Faizabad in Motor Accident Claim Petition No.84 of 2011, facts of FIRST APPEAL FROM ORDER No. - 86 of 2012 are being taken up.
5. Bereft of unnecessary details the facts of the case as set forth by the learned counsel for the appellant is that an accident is said to have occurred on 01.03.2011 in which Shri Ram Ajor, husband of claimant No.1 and father of claimants No.2 & 3 died when a vehicle namely a Vikram having Reg No.UP42T 9777, which was being driven negligently and carelessly, hit Shri Ram Ajor with the result he suffered serious injuries. He was taken to a hospital and thereafter he died despite treatment on 02.03.2011.
6. Upon filing claim application, the Insurance Company along with owner of the vehicle put in appearance and denied the accident and any carelessness on the part of the driver/owner of the vehicle.
7. Learned Tribunal framed various issues of which the issue on which the learned counsel for the appellant has argued concerning the Insurance Company pertains to the Issue no.4 which is as to whether the claimants are entitled for compensation, and if so, the amount.
8. Shri Zafar Aziz, learned counsel for the Insurance Company has argued that the said vehicle was running as a taxi on a particular route. The accident is said to have occurred on 01.03.2011 while the permit which had been issued for a particular road was dated 05.03.2011. Thus, it was contended by the Insurance Company that as the vehicle was not having a valid permit consequently in case any accident having been caused, though considering the insurance of the vehicle, it is the liability of the Insurance Company to pay the amount of compensation to the claimants at the first instance yet they would have right of recovery from the owner/driver of the vehicle considering that the taxi was operating on the fateful day without a valid permit whereby violating the policy conditions.
9. However, learned Tribunal has not considered this aspect of the matter rather has contended that as the vehicle had been purchased on 09.02.2011 after paying the entire purchase value and on that date the amount towards the permit had also been given consequently in case there was a delay on the part of the transport department in issuance of the permit, the date of issuance of the permit i.e. 05.03.2011 would not make any difference rather the permit would be deemed to have been issued with effect from the date of the purchase of the vehicle. Consequently the accident having occurred on 01.03.2011, it would be deemed that the vehicle was having the permit on the said date and thus it is the liability of the Insurance Company to pay the aforesaid amount.
10. The argument of Shri Zafar Aziz, learned counsel is that the provisions of Motor Vehicle Act do not contain any provision of a permit to be deemed to have been issued with effect from the date of purchase of the vehicle inasmuch as the permit has to be applied separately and in case the permit has been issued on 05.03.2011, as in this case, consequently there cannot be any deeming provision so far as the issuance of the permit with effect from the date of the vehicle is concerned which aspect of the matter has not been considered by the learned Tribunal and as such on this ground alone, the judgment of the learned Tribunal, so far as it does not grant any right of recovery to the Insurance Company against the owner/driver merits to be set aside.
11. On the other hand, learned counsel appearing for the claimants in the connected appeal i.e. FIRST APPEAL FROM ORDER DEFECTIVE No. - 805 of 2012 has argued on the question of enhancement of compensation. His grounds are that although the claimant No.3 before the learned Tribunal namely Shri Subhash Chandra was the major son of the deceased yet this has prevailed on the learned Tribunal to hold that as the claimant No.3 is major as such he would not be entitled for any compensation as he cannot be considered to be the dependent. It is contended that aforesaid analogy of the learned Tribunal runs contrary to the judgment of the Hon?ble Supreme Court in the case of National Insurance Company Ltd., vs Birender & Ors : (2020) 11 SCC 356.
12. The other argument is that although the learned Tribunal has admitted the age of the deceased to be 45 years yet a multiplier of 13 has been applied which keeping in view the law laid down by the Hon?ble Supreme Court in the case of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 the multiplier should be 14.
13. Yet another argument is that the income of the deceased has been treated as Rs.3,000/- per month although before the learned Tribunal it was indicated that he was earning an amount of Rs.9,000/- per month, which aspect of the matter has not been considered appropriately by the learned Tribunal by contending that there is no document to prove the income of the deceased.
14. Heard learned counsels for the parties and perused the record.
15. From perusal of the record, it emerges that an accident occurred on 01.03.2011 involving a Vikram vehicle, which resulted in the death of Shri Ram Ajor. The claimants namely the wife, the daughter and the major son of the deceased filed a claim application.
16. The Insurance Company as well the Driver and the owner of the vehicle put in appearance.
17. The learned Tribunal after examining the evidence as led before it was of the view that the claimants No.1 & 2 are entitled to an amount of Rs.3,28,179/-. The compensation has been directed to be paid by the Insurance Company.
18. The Insurance Company has raised a challenge to the award on the ground that no right of recovery has been given. The claimants in the connected appeal have prayed for enhancement of the amount.
19. Perusal of the judgment of the learned Tribunal would indicate that the learned Tribunal though was of the view that the permit itself was issued for the vehicle on 05.03.2011 yet as the purchase of the vehicle was made on 09.02.2011 and the permit had also been applied for and the fee had been deposited consequently it would be deemed that permit had been issued on the date of purchase of the vehicle.
20. Nowhere has the learned Tribunal referred to any enabling provision under the Act, 1988 or any other provision of law which indicates that permit is to be issued on the date of purchase of the vehicle. Once the permit itself bears the date of 05.03.2011 and the accident is said to have occurred on 01.03.2011 consequently prima facie it cannot be said that the vehicle was having a valid permit and it also does not emerge as to from where the learned Tribunal has derived that the permit would be deemed to be issued from the date of purchase of the vehicle. Thus, this Court does not approve the aforesaid findings as recorded by the learned Tribunal in the absence of any enabling provision to indicate the same.
21. So far as the enhancement of compensation as has been prayed for by the learned counsel for the claimants is concerned, perusal of the judgment would indicate the learned Tribunal has not awarded any amount to the major son of the deceased namely the claimant No.3 on the ground that as he is major and as such he would not be entitled for any compensation.
22. Aforesaid observation of the learned Tribunal runs contrary to the judgment of the Hon?ble Supreme Court in the case of Birender (supra) wherein the Hon?ble Supreme Court has held as under:-
"10.1. (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?)?
10.2. (ii) Whether such legal representatives are entitled only for compensation under the conventional heads?
10.3. (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?
11. 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:
?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 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.?
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 dependent on the deceased, would be still covered by the expression ?legal representative? of the deceased. This Court in Manjuri Bera [Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 : (2008) 1 SCC (Cri) 585] had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the legal representative concerned. Notably, the expression ?legal representative? has not been defined in the Act. In Manjuri Bera [Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 : (2008) 1 SCC (Cri) 585] , the Court observed thus: (SCC pp. 647-48, paras 9-12) ?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 [Manjuri Bera v. Oriental Insurance Co. Ltd., 2003 SCC OnLine Cal 523 : (2004) 2 CHN 370] 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 [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 Prabhatbhai [Gujarat SRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234 : 1987 SCC (Cri) 482] 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.?
13. In para 15 of Manjuri Bera [Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 : (2008) 1 SCC (Cri) 585] , 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 S.H. Kapadia, J., 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 Respondents 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 legal representative concerned was fully dependent 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 dependent 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."
(Emphasized by Court)
23. From perusal of the judgment of the Hon?ble Supreme Court in the case of Birender (supra) it clearly emerges that the Hon?ble Supreme Court has held that even the major married and earning son of the deceased being legal representative has 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 legal representative concerned was fully dependent on the deceased and not to limit the claim towards conventional heads only.
24. Thus, observation of the learned Tribunal holding that the major son of the deceased i.e. claimant No.3 would not be entitled for compensation is per se bad in the eyes of the law.
25. So far as ground for multiplier taken by the learned counsel for the claimants is concerned, it emerges that the learned Tribunal after considering the age of the deceased to be 45 years has applied the multiplier of 13.
26. The Hon?ble Supreme Court in the case of Pranay Sethi (supra) after referring to its earlier judgement in the case of Sarla Verma & Ors vs Delhi Transport Corp.& Anr :2009 (6) SCC 12 has held that as far as the multiplier is concerned the claims tribunal and court should be guided by the steps as finds place in para 19 of the Sarla Verma (supra) case.
27. Para 42 of the judgment of the Hon?ble Supreme Court in the case of Sarla Verma (supra) indicates that a multiplier of 14 is to be applied where the deceased is between 41 to 45. Thus, it is apparent that the learned Tribunal in applying the multiplier of 13 while deciding the case has patently erred in law.
28. So far as the income of the deceased is concerned, which has been treated as Rs.3,000/- per month the learned Tribunal has placed reliance on the judgment of this Court in the case of Guddi Singh vs Baboo & Ors : 2010 (82) ALR 206. Learned counsel for the claimants contends that the learned Tribunal should have proceeded to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time as held by the Hon'ble Supreme Court in the case of Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd., (2011) 13 SCC 236. Since the appellant was a Mechanic, it cannot be expected from him to produce any documentary evidence to substantiate the claim and in absence of any other evidence contrary to the claim made by the claimant, in the facts of the present case, the Tribunal should have accepted the claim of the claimants.
30. Keeping in view the aforesaid, it is apparent that the learned Tribunal has failed to apply its mind on the quantum of compensation to the major son, adequate multiplier as well as the income of the deceased so far as it pertains to the appeal of the claimants and as to whether a valid permit was in existence at the time of the accident on 01.03.2011.
31. Keeping in view the aforesaid discussion, the appeal is allowed in part.
32. The matter is remitted to the learned Tribunal to pass a fresh order keeping in view the observations made above in accordance with law after hearing all the parties concerned. Considering that the matter pertains to the year 2011, learned Tribunal shall proceed to pass a fresh order within a period of four months from the date a certified copy of this order is placed on record.
33. At this stage, learned counsel for the claimants states that the claimants have received half of the amount deposited before the learned Tribunal. As the matter is being remitted to decide afresh which may result in enhancement of the award, as such the claimants are entitled to withdraw the remaining amount deposited before the learned Tribunal which would be subject to the final order of the learned Tribunal. Statutory deposit of Rs.25,000/- by the Insurance Company shall also be remitted to the learned Tribunal.
34. Let trial court records be returned.
Order Date :- 16.5.2025 prateek