Gujarat High Court
New India Assurance Company Ltd vs Ramnath Parmeshwardin Vishwakarma on 14 February, 2025
NEUTRAL CITATION
C/FA/2647/2018 JUDGMENT DATED: 14/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2647 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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NEW INDIA ASSURANCE COMPANY LTD.,
Versus
RAMNATH PARMESHWARDIN VISHWAKARMA & ORS.
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Appearance:
MASUMI V NANAVATY(9321) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MAHENDRA U VORA(3034) for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 3
NOTICE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 14/02/2025
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant being aggrieved and dissatisfied with the judgment and award dated 10.1.2018 passed by the Motor Accident Claims Tribunal, Ahmedabad in Motor Accident Claim Petition No.928 of 2009.
2. Brief facts of the case are as under:-
Page 1 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 2.1 On 07/12/2008 the accident took place. The original applicant No.1. is brother of the deceased. It is a case of the original applicant that the deceased was going on his bicycle from Chandkheda to Satyamev Hospital and at that time vehicle tanker No.GJ-7X-9189 came from his behind in full speed and dashed with the cycle of the deceased. It is a case of the original applicant that the deceased was aged 45 years at the time of the accident. The deceased was working as a carpenter and earning Rs.6,000/- per month. The original applicant has therefore claimed compensation of Rs.8,00,000/- from the original opponents.
3. The solitary contention raised by learned advocate Ms. Nanavati for the appellant that the learned Tribunal erred in granting dependency loss to a brother, who has lost his brother -
present deceased in the road accident. She would further submit that in case on hand, deceased Rang Bahadur - brother of the claimant was living separately from the claimant as well as earning independently and in view of that, it cannot be held that the claimant as dependent upon the income of the deceased and therefore, the learned Tribunal committed serious error in granting compensation under the head of loss of dependency to the claimant. Mainly upon above submission, she prays to allow the First Appeal.
4. On the other hand, learned advocate Mr. Vora referring to the judgment passed by this Court in case of Prernaben @ Purviben Mansukhlal Mehta Decd.Thr Heirs Versus Daudkhan Usmankhan Belim, 2024 (0) JX(Guj) 1446, would submit that in an identical fact situation, this Court negated the identical Page 2 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined contention and therefore, he prays to dismiss the First Appeal.
5. I have heard learned advocates for both the sides. I have also gone through the R & P of the case and re-appreciated them.
6. It is true that the deceased is survived by his brother - claimant. Section 166 of the MV Act permits the legal heirs of the deceased to file claim petition seeking compensation for death of the deceased. The underline argument of learned advocate Ms. Nanavati is that the claimant since not a financial dependent upon the deceased, he cannot be granted compensation under the head of loss of dependency. In view of that, such germane question would be posed that whether major brother and also self earning person can claim compensation under the head of loss of dependency for death of his major bachelor brother?
7. This Court in case of Prernaben (supra), in para 11 to 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 Page 3 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 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;
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 Page 4 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 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.
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 Page 5 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 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 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 Page 6 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 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 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 Page 7 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 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 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 representa tive under the Arbitration and Conciliation Act, 1996 i.e. un der 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 Page 8 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined inherit the prop erty 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 adminis trators in possession of the estate of the deceased. All such persons would be covered by the expression "legal represen tative". 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 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. 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 Page 9 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 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 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.
Page 10 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 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 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 Page 11 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 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 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 Page 12 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 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."
8. Whether the major son of the deceased, who are married and earning can claim compensation under the MV Act was the issue before the Hon'ble Apex Court in case of National Insurance Company Limited Versus Birender And Ors., 2020 (11) SCC 356, wherein the Hon'ble Apex Court in para 12 held as under:-
"The legal representatives of the deceased could move Page 13 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined 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 (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."
9. On perusal of the evidence placed before the learned Tribunal, nothing found from the record that the deceased was not financially helping the appellant claimant. In fact, no such kind of evidence has been led before the learned Tribunal and it has not been questioned by the insurance company before the learned Tribunal and therefore question of computing loss of dependency cannot be raised in first appeal. Moreover, it can be presumed that the brother of the deceased though major may be working and earning was also dependent upon the earning of the deceased or rather the deceased was helping his brother.
10. In case of Ram Charan Vs. United India Insurance Company Ltd. Vs. Shalumol in MACA No. 1768 of 2021, the Kerala High Court dealt with the entitlement of married daughters and the parents of the deceased to claim under the head of 'Loss of Dependency‟. . It provides a more vocal stance on the holding in Birender (Supra). The Kerala High Court examined the contours of loss of dependency, held as under:-
""48. The Madras High Court (through Justice S. Manikumar, as he then was) in Branch Manager, ICICI Lombard General Ins. Co Ltd. v.Page 14 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025
NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined Kaliyamoorthy and others [2018 KHC 5479 (2020) 11 SCC 356], while dealing with a case filed by the parents and married sister, held thus:
"14.Even in the case of married daughters, a father or mother or brother, can still monetarily help a married daughter, depending upon the need or out of love and affection. A mother can continuously render her valuable service to her daughter, even if the daughter is married. Similarly, a married daughter would still continue to assist her mother, or father, in the case of need.
Contribution by means of service or income, both can be taken into account to determine the quantum of compensation. A married daughter is a legal representative, as per the law of succession and that she is entitled to make a claim and it is for the Claims Tribunal or Court, to apportion the amount, between the claimants, depending upon the loss of contribution suffered by the married daughter."
50. It would be preposterous to accept the contention of the learned counsel for the Appellant that a 25 year old daughter would be no longer dependent on her 49 year old mother because she was given in marriage. The bond between a mother and a daughter is eternal. I reminisce the quotation of Cardinal Mermillod ‒ "No "No matter how old she may be, sometimes a girl just needs her mom."
51. Even if dependency is a relevant criterion to claim compensation for loss of dependency, it does not mean financial dependency is the ark of the covenant. Dependency includes gratuitous service dependency, physical dependency, emotional dependency, psychological dependency, and so on and so forth, which can never be equated in terms of money"
11. In view of above, it would be preposterous to accept contention of learned advocates appearing for the insurance company. If dependency is a relevant criterion to claim Page 15 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined compensation for the loss of dependency, it does not mean financial dependency is the ark of the covenant. Dependency includes gratuitous service dependency, physical dependency, emotional dependency, psychological dependency, and so on and so forth, which can never be equated in terms of money. It cannot be denied that the loss of other forms of support endured by the Appellants is immeasurable. The MV Act, 1988 being a welfare legislation entrust duty upon the MACT to grant just and fair compensation to the victim of the road accident. Therefore, there is no cogent reason to deny the appellant from obtaining compensation for their loss of dependence, regardless of the nature or form of the dependence.
12. The Karnataka High Court in case of A. Manavalagan V/s. A. Krishnamurthy and Ors., 2005 ACJ 1992 held as under:-
"8. On the contentions urged, the following questions arise for consideration: (i) What are the principles for determining compensation, where the claimant is not a dependant-
12. In Gobald Motor Service V/s. R.M.K. Veluswami [1962] 1 SCR 929 referring to Sections 1 and 2 of the Fatal Accidents Act (Sections 1A and 2 after 1951 amendment to the said Act), the Supreme Court pointed out the difference between damages recoverable under the said two Sections. It was held that while under Section 1 (new Section 1A) damages are recoverable for the benefit of the persons mentioned therein, under Section 2, compensation goes to the benefit of the estate; whereas under Section 1, damages are payable in respect of loss sustained by the persons mentioned therein, under Section 2 damages can be claimed inter alia for loss of expectation of life and loss to the estate. The Supreme Court held that persons who claim Page 16 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined benefit under Section 1 and 2 need not be the same as the claims under the said two Sections are based upon different causes of action. The Supreme Court held: The principle in its application to the Indian Act has been clearly and succinctly stated by a division bench of the Lahore High Court in Secretary of State V/s. Gokal Chand AIR 1925 Lah 636. In that case, Sri Shadilal CJ observed thus:
The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered from part of the assets of the estate.
An illustration may clarify the position X is the income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependants (we will ignore the other expenditure incurred by him). X-Y, i.e., Z is the amount he saves every year. The capitalised value of the income spend on the dependants, subject to relevant deductions, is the pecuniary loss sustained by the members of his family though his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under Section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under Section 2 of the Act in respect of Page 17 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined compensation for the loss caused to the estate. To put it differently, if under Section 1 they got capitalised value of Y; under Section 2 they could get only the capitalised value of Z, for the capitalised value of Y + Z, i.e., X, would be the capitalised value of his entire income. The rights of action under Section 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the Sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the Compensation representing the loss to the estate goes into the calculation of personal loss under Section 1 of the Act, the portion shall be excluded in giving compensation under Section 2 and vice versa....
15. Where a breadwinner dies and his wife, children and parents, who are normally depending on the deceased, claim compensation, the method of computation is now standardized. The Court first finds out the income of the deceased, then estimates how much he would have spent for himself (for his personal and living expenses). The balance is taken as the contribution to the dependents (family). The said estimate of the amount contributed to the family per year, which is the annual dependency, becomes the basis for arriving at the compensation, it is converted into a lump sum by multiplying it by the number of years during which he would have contributed to the family (duly scaled down to take several uncertainties into account). Thus, the annual dependency becomes the multiplicand and the number of years' purchase becomes the multiplier. As it is well settled that there cannot be a duplication of award under Sections 1A and 2 of the FA Act, where the main head for award of compensation is loss of dependency, the Courts will not duplicate the award under the head of loss of Page 18 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined estate. Instead a conventional sum (Say Rs. 10,000/-) is awarded under the head of loss of estate, where the income has already been taken note of under the head of loss of dependency.
16. But, what would be the position if the claimant, though a legal heir is not a dependant of the deceased- Obviously, the question of awarding any amount under the head of loss of dependency would not arise, as there was no financial dependency. In fact in this case, the deceased was not even managing the 'house hold' as is normally done by a housewife as the husband and wife were living in different places due to exigencies of service and the , couple had no children. In such a case the main head of compensation will be loss to estate under Section 2 of the Fatal Accidents Act. The claim petition becomes one on behalf of the estate of the deceased and the compensation received becomes part of the assets of the estate. Consequently what is to be awarded under the head of loss of dependency under Section 1A would be nil, as there is no real pecuniary loss to the members of the family.
17. In Gammell V/s. Wilson 1981(1) All ER 578 the House of Lords held that in addition to the conventional and moderate damages for loss of expectation of life, damages for loss to the estate, should include damages for loss of earnings of the lost years. The annual loss to the estate was computed to be the amount that the deceased would have been able to save after meeting the cost of his living and damages for loss to the estate were computed after applying a suitable multiplier to the annual loss. Gammel was relied on in Susamma Thomas (Supra) and by the Madhya Pradesh High Court in Ramesh Chandra V/s. M.P. State Road Transport Corporation 1983 ACJ 221.
18. In Madhya Pradesh State Road Transport Corporation V/s. Sudhakar 1977 ACJ 290 the Supreme Court considered a case where an Page 19 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined employed husband claimed compensation in regard to the death of his wife who was employed on a monthly salary of Rs. 200/- to Rs. 250/-. The Supreme Court observed: We find it difficult to agree that only half of that amount would have been sufficient for her monthly expenses till she retired from service, so that the remaining half may be taken as the measure of her husband's monthly loss. It is not impossible that she would have contributed half of her salary to the household, but then it is reasonable to suppose that the husband who was employed at slightly higher salary would have contributed his share to the common pool which would have, been utilised for the lodging and boarding of both of them. We do not therefore think it is correct to assume-that the husband's loss amounted to half the monthly salary the deceased was likely to draw until she retired. If on an average she contributed Rs. 100/- every month to the common pool, then his loss would be roughly not more than Rs. 50/-per month.
19. We may summarise the principles enunciated, thus: (i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that Page 20 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased. (ii) Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate. (iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased. A conventional sum for loss of expectation of life, is added. (iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss or dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.
20. The following illustrations with reference to the case of a deceased who was aged 40 years Page 21 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined with a monthly income of Rs. 9000/ will bring out the difference -between cases where claimants are dependents and cases were claimants are not dependents.
(i) If the family of the deceased consists of a dependant wife and child, normally one-third will be deducted towards the personal and living expenses of the deceased. The balance of Rs.
6000/- per month (or Rs. 72000/- per annum) will be treated as contribution to the dependent family. The loss of dependency will be arrived by applying a multiplier of 14. The loss of dependency will be Rs. 10,08,000/- plus Rs. 10,000/- under the head of loss of Estate.
(ii) If the family of the deceased was larger, say consisting of dependent parents, wife and two children, necessarily the deceased would spend more on his family and the deduction towards personal and living expenses of the deceased will H.R. ink to one-fifth instead of one-third Note: In Gulam Khader V/s. United India Insurance Co. Ltd. ILR 2000 Kar 4416 details of this illustration have been given). Therefore the deduction toward personal and living expense would be Rs. 1800/- per month (one-fifth of Rs. 9000/-) and contribution to the family would be Rs. 7200/- per month or Rs. 86,400/- per annum. Thus loss of dependency, will be Rs. 12,09,600/- (by applying the multiplier of 14). The award under the head of loss of estate would be Rs. 10000/-.
(iii) If the deceased was a bachelor with dependent parents aged 65 and 60 years, normally 50% will be deducted towards personal and living expenses of the deceased. This is because a bachelor will be more care free as he had not yet acquired a wife or child and therefore would tend to spend more on himself. There was also a possibility of the bachelor getting married in which event the contribution to parents will get reduced. Therefore the contribution to the family (parents) will be Rs. 4500/- per month or Rs. 54000/- per annum. As the multiplier will be 10 Page 22 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined with reference to age of the mother, the loss of dependency will be Rs. 5,40,000/-. Loss, of Estate would be a conventional sum of Rs. 10,000/-.
Note: The above three illustrations relate to cases where the claimants are dependants; The said illustration demonstrate that even though the income of the deceased and age of the deceased are the same, the 'loss of dependency' will vary, having regard to the number of dependants, age of the dependants and nature of dependency. The ensuing illustrations relate to cases where the legal heirs of the deceased are not dependants.
(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is tH.R.ee-fourth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as one-fourth (that is 25%), the loss to the estate would be Rs. 2250/- per month or Rs. 27000/- per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/-.
Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in Burgess V/s. Florence Nightingale Hospital 1955(1) Q.B. 349, 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of Page 23 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined sharing, is conferring a benefit on the other'. This results in a higher savings, say, one-third of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs. 1,000/- per month or Rs. 12,000/- per annum), In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one- third of the income that is Rs. 3,000/- per month or Rs. 36000/- per annum). Therefore, the loss of dependency would be 12000 x 14 = 168,000/- and loss to estate would be 36000 x 14 = 504,000/-. In all Rs. 6,72,000/- will be the compensation.
(v) If the deceased was a bachelor and the claimants are two non-dependent brothers/sisters aged 47 years and 45 years with independent income, the position would be different. As the deceased did not have a 'family', the tendency would be to spend more on oneself and the savings would be hardly 15%. If the saving is taken as 15% (Rs. 1350/- per month), the annual savings would be Rs. 16,200/- which would be the multiplicand. The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs. 2,10,600/- perannum. Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependant spouse/children/parents. Where the claimants are non-dependant brothers/sisters claiming on behalf of the estate, Page 24 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025 NEUTRAL CITATION C/FA/2647/2018 JUDGMENT DATED: 14/02/2025 undefined the savings can be taken as 15 % of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants."
13. In view of above applying ratio with approval even if the major brother of the deceased is not entitled to compensation under the head of loss of dependency, he could at least be entitled for compensation under the head of loss of estate u/s 2 of the Fatal Accident Act. The Hon'ble Apex Court in case of National Insurance Company Limited Versus Meghji Naran Soratiya, 2009 (12) SCC 796 has held that method for computing loss of financial dependency can be adopted for deciding the loss of dependency.
14. Learned advocate Ms. Nanavati did not argue on any other point assailing the impugned judgment and award except arguing on the dependency issue.
15. In wake of above, the compensation granted by the learned Tribunal under the head of loss of dependency can be considered as granted under the head of loss of estate. Thus, according to this Court, the learned Tribunal has committed no error in granting compensation to the major brother of the deceased.
16. Resultantly, present First Appeal fails and stands dismissed.
17. Consequently connected civil application also stands disposed of.
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18. 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.
19. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
20. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 26 of 26 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 21:59:02 IST 2025