Madhya Pradesh High Court
The Divisional Manager vs Ram Sinngh on 1 February, 2024
Author: Amar Nath Kesharwani
Bench: Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 1st OF FEBRUARY, 2024
MISCELLANEOUS APPEAL NO.97 of 2020
BETWEEN:-
THE DIVISIONAL MANAGER NEW INDIA
ASSURANCE CO. LTD. NEAR BUNDELKHAND
GARAGE, CHHATARPUR (M.P.)
.....APPELLANT
(SHRI YASH KOSHAL - ADVOCATE)
AND
1. RAM SINGH S/O TODAN SINGH, AGED
ABOUT 35 YEARS, VILL. GAURA P.S. AND TEH.
BADA MALHARA DISTT. CHHATARPUR (M.P.)
2. SMT. SANJURAJA W/O RAM SINGH, AGED
ABOUT 30 YEARS, VILLAGE GAURA PS AND
TAHSIL BADA MALHARA DISTT. CHHATARPUR
(M.P.)
3. VIJENDRA SINGH S/O RAM SINGH, AGED
ABOUT 15 YEARS, MINOR THROUGH GUARDIAN
RAM SINGH S/O TODAN SINGH VILLAGE GAURA
PS AND TAHSIL BADA MALHARA
DISTT.CHHATARPUR (M.P.)
4. KISHAN SINGH S/O RAM SINGH, AGED
ABOUT 13 YEARS, MINOR THROUGH GUARDIAN
RAM SINGH S/O TODAN SINGH VILLAGE GAURA
PS AND TAHSIL BADA MALHARA
DISTT.CHHATARPUR (M.P.)
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 3/4/2024
12:03:57 PM
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5. HAMID KHAN S/O MAHIKHAN R/O RANI
TALAIYA CHHATARPUR PRESENTLY RESIDING
AT GADI MOHALLA GULGANJ POLICE STATION
GULGANJ, DISTRICT CHHATARPUR (M.P.)
(DRIVER OF VEHICLE NO.MP-16-P-0201)
6. RAMESH CHANDRA VISHWAKARMA
(OWNER OF VEHICLE NO.MP-16-P-0201) (DEAD)
THROUGH LR'S
6(i) LEELA DEVI VISHWAKARMA W/O LATE
RAMESH CHANDRA VISHWAKARMA R/O NEAR
CITY POST OFFICE MAUDARWAJA
CHHATARPUR (M.P.)
6(ii). RADHA DEVI D/O LATE RAMESH
CHANDRA VISHWAKARMA R/O NEAR CITY POST
OFFICE MAUDARWAJA CHHATARPUR (M.P.)
6(iii). KANTI DEVI D/O LATE RAMESH CHANDRA
VISHWAKARMA NEAR CITY POST OFFICE
MAUDARWAJA CHHATARPUR (M.P.)
6(iv). BHARAT VISHWAKARMA S/O LATE
RAMESH CHANDRA VISHWAKARMA R/O NEAR
CITY POST OFFICE MAUDARWAJA
CHHATARPUR (M.P.)
6(v). DHEERAJ VISHWAKARMA S/O LATE
RAMESH CHANDRA VISHWAKARMA NEAR CITY
POST OFFICE MAUDARWAJA CHHATARPUR
(M.P.)
.....RESPONDENTS
(SHRI VIKAS JYOTISHI - ADVOCATE FOR THE RESPONDENT NOS.1 TO 4)
(SERVICE OF NOTICE ON RESPONDENT NOS. 5 & 6 HAS BEEN DISPENSED
WITH VIDE ORDER DATED 08/01/2020)
---------------------------------------------------------------------------------------
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 3/4/2024
12:03:57 PM
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This appeal coming on for admission this day, the court passed the following:
ORDER
Heard on admission.
Admit.
With the consent of learned counsel for the parties, heard final arguments.
This Miscellaneous Appeal under Section 173(1) of the Motor Vehicles Act 1988 has been filed by the appellant/Insurance Company being aggrieved with the award dated 05/10/2019 passed by learned Additional Motor Accident Claims Tribunal, Bijawar, District Chhatarpur (M.P.) in Motor Accident Claim Case No.49/2016, whereby, the learned Tribunal has awarded a sum of Rs.8,35,000/- (Eight lakhs thirty five thousand) with interest @ 6% from the date of filing of petition till the date of payment.
2. Brief facts of the case are that on 16/05/2016 at about 10:45 A.M. when deceased Shaitan Singh was going to Disha-Maidan (to satisfy natural call) from Dibbe Dhaba to Sagar Road, at that time respondent No.5 who was driving the Bus bearing registration No.MP-16-P-0201 rashly and negligently dashed Shaitan Singh, due to which he sustained grievous injuries and died. Thereafter, respondent Nos.1 to 4 / claimants filed a claim petition before the learned Tribunal, Chhatarpur averring that the claimant No.1/respondent No.1 is the son-in-law of the deceased and claimant No.2/respondent No.2 is the daughter of the deceased and claimant Nos. 3 & 4/respondent Nos. 3 & 4 are the grandson of the deceased. It was alleged that the deceased resided at the house of his son-in-law. Deceased used to run a Dhaba and earn Rs.25-30 thousand per month. The claimants were dependent on the income of the deceased Signature Not Verified Signed by: ANURAG SONI Signing time: 3/4/2024 12:03:57 PM 4 and now the claimants have been deprived of that income. Thus, by way of filing claim petition claimants, claimed to award a sum of Rs.55,00,000/- (Fifty five lakhs) as compensation on account of death of Shaitan Singh, who died in motor vehicle accident.
3. Respondent No.5 & 6/non-applicant Nos. 1 & 2 (owner and driver) of the offending vehicle by filing written statement denied the averments mentioned in the claim petition that the accident was caused by alleged vehicle in the case. It was alleged that the deceased himself was negligent as he was trying to board the running bus from window and at that time he fell down and sustained injury. However, it was alleged that the alleged bus was insured with appellant/Insurance Company, therefore, if any amount of compensation is found to be awarded, then it is the appellant/Insurance Company who will be liable to pay the compensation.
4. Appellant/insurance company in its written statement denied the averments mentioned in the claim petition and pleaded that the deceased himself was responsible for the alleged incident. It was alleged that the claimants were not dependent on the income of the deceased. The offending bus was being driven in violation of the terms and conditions of the insurance policy. Hence, appellant/insurance company has no liability to pay any compensation and prays for dismissal of the claim petition against the Insurance Company.
5. Learned Claims Tribunal framed the issues and recorded the evidence and after considering the evidence placed on the record and considering the argument advanced by the learned counsel for the parties, learned Claims Tribunal awarded a sum of Rs.8,35,000/- (Eight lakh thirty five thousand) with interest @ 6% per annum from the date Signature Not Verified Signed by: ANURAG SONI Signing time: 3/4/2024 12:03:57 PM 5 of petition against till the date of payment holding the appellant and respondent Nos. 5 & 6 liable to pay the amount of compensation jointly and severally. Being aggrieved by the impugned award, appellant/Insurance Company has preferred the present miscellaneous appeal.
6. Learned counsel for the appellant submits that the respondent No.1 is the son-in-law of the deceased, respondent No.2 is the daughter of the deceased and respondent Nos. 3 & 4 are the grandson of the deceased, therefore, learned Tribunal committed error in holding that the claimants/respondent Nos. 1 to 4 were dependent on the deceased. It is submitted that in Para-9 of his cross-examination respondent No.1 Ramsingh (AW-1) has stated that he was having 2-3 acres of agricultural land, so it cannot be said that the claimants were dependent on the deceased. In support of his contention learned counsel placed reliance on the judgment passed by Hon'ble Apex Court in the case of Manjuri Bera Vs. Oriental Insurance Co. Ltd. & Another, 2007 ACJ 1279. Learned counsel for the appellant further submitted that the learned Tribunal assessed the income of the deceased @ Rs.5,000/- (Five thousand) per month and after applying the multiplier of 13 awarded a sum of Rs.7,80,000/- under the head of loss of dependency without deducting any amount towards personal expenses of the deceased. It is submitted that the amount towards personal expenses of the deceased should be deducted. Hence, it is prayed that the appeal be allowed and impugned award be modified.
7. Per contra, learned counsel for the respondent Nos. 1 to 4 submitted that respondent No.1 Ramsingh (AW-1) and respondent No.2 Smt. Sanju Raja (AW-2) in their examination-in-chief have clearly Signature Not Verified Signed by: ANURAG SONI Signing time: 3/4/2024 12:03:57 PM 6 stated that the deceased resided at his son-in-law's house and out of his income deceased gave a sum of Rs.25,000/- to his daughter (Smt. Sanju Raja) for household expenses and they were totally dependent on the income of the deceased. Thus, learned Tribunal did not commit any mistake in holding the claimants dependent on the deceased. In support of his contention learned counsel placed reliance on the order passed by Coordinate Bench of this Court in the case of Ku. Sonam Be & Others Vs. Anoop Kumar & Others passed in MA.No.2192/2016 vide order dated 21/08/2023.
8. So far as quantum is concerned, learned counsel for the respondent Nos. 1 to 4 submits that though claimants have not filed any Appeal or cross-objection, but learned Tribunal committed error in not assessing the future prospects of the deceased keeping in view the law laid down by Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi & ors (2017) 16 SCC 680. Similarly, the accident is of the year 2016. Learned Tribunal assessed the income of the deceased @ Rs.5,000/- (Five thousand) per month, which according to Minimum Wages Act ought to have been Rs.6,850/- (Six thousand eight hundred fifty) per month. So, the amount awarded by the learned Tribunal is already on lower side, which deserves to be enhanced.
9. I have heard the arguments advanced by the learned counsel for the parties, perused the record and gone through the citations upon which reliance is placed by learned counsel for the parties.
10. The submissions of appellant/Insurance Company is in two folds;
(i) that the claimants/respondent Nos. 1 to 4 were not dependent on the Signature Not Verified Signed by: ANURAG SONI Signing time: 3/4/2024 12:03:57 PM 7 deceased and (ii) learned tribunal committed error in not deducting any amount towards personal expenses.
11. Firstly, we shall consider the argument of learned counsel for the appellant that the claimants/respondent Nos. 1 to 4 were not dependent on deceased. It is undisputed fact in the case that respondent No.2 Smt. Sanjuraja is the daughter of deceased Shaitan Singh and respondent Nos.3 & 4 are the children of respondent No.2. As per Schedule-I of Section 8 of Hindu Succession Act, respondent No.2 Sanjuraja was the only heir of deceased Shaitan Singh. Respondent No.2/claimant No.2 Smt. Sanjuraja was examined before the learned Tribunal as AW-2 and she has stated before the Tribunal that she is the only child of her father, her mother had already expired and there is no other legal representative of deceased Shaitan Singh, except her. That statement of respondent No.2 was un-rebutted in her cross-examination. Hence, it is proved that the respondent No.2, who was married, is the only legal heir of deceased Shaitan Singh.
12. In the case of National Insurance Company Limited Vs. Birender & Others, (2020) 11 SCC 356, Hon'ble Apex Court has held that "even major married and earning sons of deceased being legal representatives have a right to apply for compensation and it would be bounden duty of Tribunal to consider application irrespective of whether they were fully dependent on deceased or not, in accordance with law". Para numbers 12 and 14 are reproduced as below:-
"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 Signature Not Verified Signed by: ANURAG SONI Signing time: 3/4/2024 12:03:57 PM 8 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 Signature Not Verified Signed by: ANURAG SONI Signing time: 3/4/2024 12:03:57 PM 9 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."
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."
13. The same analogy will be applicable in the present case, where respondent No.2 is a married daughter of deceased.
14. In the case of Manjuri Bera vs. Oriental Insurance Company Ltd. and another reported in 2007 ACJ 1279, Hon'ble Apex Court has held that even a married daughter, not dependent on the deceased is entitled to file claim for the death of her father.
15. So far as deduction towards personal expenses is concerned, since respondent No.2 is the sole legal representative of deceased, so it cannot be said that respondent No.1 who is the son-in-law of deceased and respondent Nos.3 & 4, who are children of respondent Nos. 1 & 2, were dependent on deceased. Hence, looking to the facts and circumstances of the case, the finding of the learned Tribunal in not deducting any amount towards personal expenses is not liable to be sustained. In the considered opinion of this Court 1/2 amount should be deducted towards Signature Not Verified Signed by: ANURAG SONI Signing time: 3/4/2024 12:03:57 PM 10 personal expenses of the deceased for the purpose of calculating the amount of loss of dependency.
16. Since, the respondent Nos. 1 to 4/claimants have not filed any appeal or cross-objection for enhancement of amount awarded by the learned Tribunal, hence arguments of learned counsel for the respondent Nos. 1 to 4/claimants that the income of the deceased as assessed by the learned Tribunal is on lower side, is not liable to be entertained.
17. Thus, when the monthly income of the deceased is taken into consideration as Rs.5,000/- (Five thousand), the yearly income will comes to Rs.60,000/- (Sixty thousand). As discussed above, 1/2 towards personal expenses is tobe deducted, so the amount for calculating amount towards loss of dependency after deducting 1/2, comes to Rs.30,000/- (Thirty thousand), then keeping in view the age of deceased, multiplier of 13 will be applied for calculating the amount towards loss of dependency, which comes to Rs.3,90,000/- (Three lakhs ninety thousand). Tribunal has not awarded any amount towards loss of estate in the light of judgment of Pranay Sethi (Supra), hence Rs.15000/- (Fifteen Thousand) should be awarded in the head of loss of estate. Other findings recorded by the leaned Tribunal appears to be just and proper and which requires no interference.
18. In view of above discussion, claimants will be entitled for the following amount :-
Rs.3,90,000/- Towards loss of dependency
Rs.40,000/- Towards loss of consortium
Rs.15,000/- Towards funeral expenses
Rs.15,000/- Towards loss of estate
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Rs.4,60,000/- Total
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Signature Not Verified Signed by: ANURAG SONI Signing time: 3/4/2024 12:03:57 PM 1119. Thus, claimants shall be entitled for a total sum of Rs.4,60,000/- (Four lakh sixty thousand) instead of Rs.8,35,000/- (Eight lakhs thirty five thousand).
20. In above terms the impugned award passed by the learned Claims Tribunal is modified. Appellant insurance company is directed to pay the amount of compensation to the claimants within a period of 60 days, if not paid earlier, from the date of receipt of certified copy of this order. The amount of compensation shall carry interest @ 6% p.a. from the date of application till the date of payment.
21. With the aforesaid, appeal filed by the appellant is disposed of.
22. Let record of the Claims Tribunal be sent back alongwith copy of this order for information and necessary action.
(AMAR NATH (KESHARWANI)) JUDGE as Signature Not Verified Signed by: ANURAG SONI Signing time: 3/4/2024 12:03:57 PM