Madras High Court
M/S.Iffco Tokio General Insurance ... vs P.Chandira on 12 June, 2014
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.06.2014 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.1654 of 2014 and M.P.No.1 of 2014 M/s.Iffco Tokio General Insurance Company Limited, Tulasi Chambers, III Floor, No.195, T.V.Samy Road (West), R.S.Puram, Coimbatore-641 002. ... Appellant vs. 1.P.Chandira 2.R.Velliangiri 3.R.Srinivasan 4.R.Selvaraj 5.R.Subramanian 6.R.Anandan 7.M/s.Akbar Travels of India Pvt Ltd., No.1288, I Floor, Trichy Road, Lajapathyrai Street, Coimbatore-18. ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree, dated 14.08.2013 made in M.C.O.P.No.1189 of 2009 on the file of Motor Accidents Claims Tribunal (Additional District Court NO.III), Dharapuram. For Appellant : Mr.C.Harini J U D G M E N T
In the accident, which occurred on 27.09.2007, a 60 year old man died. According to the legal representatives, a daughter and five sons, the breadwinner of the family, the deceased, as a driver, earned Rs.9,000/- per month. They claimed compensation of Rs.10,00,000/-. M/s.Iffco Tokio General Insurance Company Limited opposed the claim, disputing the manner of accident and their consequential liability. Without prejudice to the above, they disputed the age, avocation, income and the quantum of compensation, claimed under various heads.
2.Before the Claims Tribunal, daughter of the deceased examined herself as PW1 and reiterated the manner of accident. Ex.P.1-First Information Report, Ex.P.2-Motor Vehicle Inspector's Report, Ex.P.3-Post-mortem Report, Ex.P.4-Charge Sheet, Ex.P.5-Death Certificate and Ex.P.6-Legal Heirship Certificate, have been marked. No oral or documentary evidence has been adduced on the side of the Insurance Company.
3.On evaluation of pleadings and evidence, the Claims Tribunal held that the rider of TVS XL, bearing Registration No.TN-38AM-4507, was negligent in causing the accident and accordingly, quantified the compensation of Rs.3,57,500/-, with interest @7.5% per annum, from the date of claim, till the date of realisation, as follows:
Loss of future income -Rs.2,52,000/-
Funeral expenses -Rs. 5,000/- Loss of love and affection -Rs.60,000/- Transportation -Rs. 5,000/- Loss of consortium -Rs.20,000/- Pain and suffering -Rs.15,000/- Damage to clothes and articles -Rs. 500/- ---------------- Total -Rs.3,57,500/- ----------------
4.When the matter came up for admission, Ms.C.Harini, learned counsel for the appellant Insurance Company submitted that the Claims Tribunal has erred in granting compensation to married daughters and sons of the deceased. According to her, they are not the dependants of the deceased and therefore, the Claims Tribunal ought to have awarded compensation only under the head, loss of love and affection. She further submitted that the Claims Tribunal has erred in awarding compensation of Rs.20,000/- under the head loss of consortium, when the claim was made only by a married daughter, and five sons. Except the above, no other submissions have been made.
5.As regards the contention that married sons and daughters are not entitled to claim any compensation, in a decision made in The Branch Manager, M/s. National Insurance Co. Ltd., v. Tmt.Sumathi and others reported in 2012 AAC 2965, this Court has considered the said aspect, and at paragraphs 25 to 28 and 34, held as follows:-
"25. 'Legal Representative' ordinarily includes heirs as well as persons, who represent the estate of the deceased person or a person, on whom, the estate devolves on the death of an individual. Right to claim for compensation by any or all legal representatives under Section 166 of the Motor Vehicles Act is a legal right. It is an assertable right enforceable before Courts and administrative agencies, in its wider sense and therefore, a legal right has to be understood, as any advantage or benefit conferred upon a person by a rule of law; and having regard to the manner, in which, a provision has to be interpreted, as held by the Supreme Court in the decisions stated supra, this Court is of the view that the definition of legal representatives cannot be restricted to exclude married daughters/sisters, from making any claim under section 166 of the Act and consequently, restrict their claim, only under Section 140 of the Act, which has been engrafted in the statute, with a specific object of compensating all the legal representative, whether there is negligence, on the part of the deceased or not. It is a "No Fault Liability" clause.
26. Courts have consistently held that what has been specifically excluded by a legislation in a provision cannot be imported into the section by the decisions of Court. By engrafting Section 166 of the Motor Vehicles Act, enabling all the legal representatives to make a claim, in contra distinction to, Section 2(1)(d) of the Workmen's Compensation Act, which enables only the persons enumerated in the said section to claim compensation under section 3 of the Workmen's Compensation Act, the intention of the legislature is clear and the definition, "legal representative" cannot be narrowed down to mean only "dependents", excluding married daughters/sisters.
27. There could still be a case where there is contribution of a portion of the income of the deceased to a legal representative, who had preferred a claim and he/she would not be wholly dependant on the income of the deceased. A likelihood of loss of contribution from the deceased would give rise to a claim for compensation by him under Section 166 of the Motor Vehicles Act, though he may not be a wholly dependent, as defined in Section 2(1)(d) of the Workmen's Compensation Act.
28. It is a well recognised rule of interpretation of statutes that the expressions used in the statute, should ordinarily be understood, in which, they harmonise with the object of the statute and which effectuate the objection of the legislature and the Court should adopt an object oriented approach, keeping in mind the language employed in the statute. When the legislature has used the words, Legal Representatives in Section 166 of the Act, and having regard to the duty of the Court to act upon the true intention of the legislature, Mens or Sententia Legis, this Court is not inclined to accept the submissions of the Insurance Company, interpret and circumscribe the meaning of the words, Legal Representatives to mean only dependents. Just because a brother or sister is married, the right to represent the estate of the deceased is not taken away and such an interpretation, would make the provisions of law of succession, ineffective.
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34. Limiting the payment of compensation to some of the legal representatives, as per section 140 of the Act, to the exclusion of others, would amount to violation of Article 14 of the Constitution of India. In the light of the above, the contention that the married daughters are entitled to only compensation under Section 140 of the Motor Vehicles Act, under No Fault Liability claim of Rs.50,000/- alone cannot be countenanced. If the submissions of the learned counsel for the appellant-Insurance Company are to be accepted, then it would be introducing a bar or prohibition against a married daughter to prefer a claim under Section 166 of the Motor Vehicles Act, which apparently is not the intention of the legislature. Monetary dependency is not the only factor to award compensation to the legal representatives.
6.Hence, the first objection of the appellant Insurance Company, as regards their entitlement to claim compensation, is rejected. Some of the decisions, on this aspect, relied on by this Court, in the above reported case, are as follows:
"29. The expression "legal representative" has been explained in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another reported in 1987 ACJ 561, as follows:
"10. Clauses ( b ) and ( c ) of sub-section (1) of Section 110-A of the Act provide that an application for compensation arising out of an accident may be made where death has resulted from the accident by all or any of the legal representatives of the deceased or by any agent duly authorised by all or any of the legal representatives of the deceased. The proviso to sub-section (1) of Section 110-A provides 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. The expression legal representative has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 defines legal representative as 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. The above definition, no doubt, in terms does not apply to a case before the Claims Tribunal but it has to be stated that even in ordinary parlance the said expression is understood almost in the same way in which it is defined in the Code of Civil Procedure. A legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. Clause (b) of sub-section (1) of Section 110-A of the Act authorises all or any of the legal representatives of the deceased to make an application for compensation before the Claims Tribunal for the death of the deceased on account of a motor vehicle accident and clause ( c ) of that sub-section authorises any agent duly authorised by all or any of the legal representatives of the deceased to make it. The proviso to sub-section (1) of Section 110-A of the Act appears to be of some significance. It provides that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased. Section 110-A(1) of the Act thus expressly states that ( i ) an application for compensation may be made by the legal representatives of the deceased or their agent, and ( ii ) that such application shall be made on behalf of or for the benefit of all the legal representatives. Both the person or persons who can make an application for compensation and the persons for whose benefit such application can be made are thus indicated in Section 110-A of the Act."
30. Interpreting Section 110-A (now amended as Section 166(1)), vis-a-vis, a corresponding provision in the Fatal Accidents Act, 1855, the Apex Court in Ramanbhai Prabhatbhai's case (stated supra) further held that, "These provisions are not merely procedural provisions. They substantively affect the rights of the parties. As the right of action created by the Fatal Accidents Act, 1855 was new in its species, new in its quality, new in its principles, in every way new the right given to the legal representatives under the Act to file an application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitations of an action under the Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies."
31. While confirming the decision of Gujarat High Court in Megjibhai Khimji Vira v. Chaturbhai Taljabhai reported in 1977 ACJ 253 (Guj.), the Supreme Court at Paragraph 12, held that, "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 well-known 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."
32. In United India Insurance Company v. Kasiammal reported in 1997 (III) CTC 346, one of the contentions raised therein, challenging the award, was that a married son, who was living separately and not a dependant, is not entitled to claim compensation. The short question framed by this Court, at Paragraph 6 of the judgment, was whether the claimants, who were married sons and married daughters, entitled for compensation? While addressing the abovesaid question, a learned Judge has considered two decisions relied on by the appellant-Insurance Company therein in Revanben v. Kantibhai Narottamehai Gohil reported in 1995 ACJ 548 and U.P.State Road Transport Corporation v. Tara Devi reported in 1995 ACJ 1220 and also the decisions of the Apex Court in Bhagwatidin v. Gheesalal reported in 1980 ACJ 116, Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai reported in AIR 1987 SC 1690 and Pushpam v. Nirmala reported in 1991 TLNJ 101, and at Paragraphs 15, 16 and 17, held as follows:
15. As pointed out earlier, the compensation amount is being paid to the legal representatives on account of untimely death of their ancestor. The dependency of the legal representatives is a question to be considered and does no mean only the dependents can claim compensation. The compensation being the amount for the loss to the estate of the deceased, it has to be considered as to whether the legal representatives had been put to loss because of the death of the deceased. Wherever the deceased is an earning member, naturally his savings is an accumulation for the estate which can be divided by the legal representatives after the death of the deceased. As the legal representatives had been put to loss of the earning of the deceased, the legal representatives are also entitled for the compensation.
16. Further in this case there is absolutely no evidence to show that the married sons are living separately. When they are residing with the mother, naturally the married sons had lost not only the assistance of the deceased mother but also lost her valuable advice in family matters. The deceased, being a widow, naturally she could have lived with any one of the sons. When the legal representatives, the married sons of the deceased are entitled for compensation even though they are residing separately, the claimants herein will be entitled for compensation; especially when they are residing with the deceased. More over, the aged parents in many a house are the watch dogs for the entire house, servants and the grand children except a few exceptional cases. When the claimants had lost such valuable services of their mother they are entitle for compensation. The loss cannot be substituted by any other confident or responsible person either in the family or by appointing a servant. If the contention of the counsel for the appellant is accepted, I do not surprise that in future the appellant may plead that generally the aged ones are only a liability in the family and since due to the accident the aged one died, the family is get rid of the same and the driver should be suitably rewarded by the legal representatives instead of claiming any compensation for the death of the deceased.
17. Further if the contention of the counsel for the appellant that the claimants are entitled only for the no fault amount is accepted, then a person who sustained some grievous injuries will be paid more than the amount that would be paid to the legal representatives i.e., married sons and daughters of the deceased and in that case it would be cheaper to kill than maim. If the claimants are to be paid the no fault amount, that may mean that the claimants are being paid some ex gratia payment out of sympathy and not for the loss of life of their ancestor. Hence the contention of the counsel for the appellant cannot be countenanced and there is absolutely no merit in the appeal and is dismissed."
33. It is worthwhile to reproduce the judgments in Pushpam's case (cited supra) and Bhagwatidin's case, which are as follows:
10. In fact in judgment reported in Pushpam v. Nirmala reported in 1991 TLNJ 101, the question considered is whether in a petition claiming compensation for injuries sustained by the claimant, after his death whether the sister can come on record as the legal representative. Venkataswami, J/has held, that the sister of the deceased claimant can be brought on record as the legal representative, in the following terms:-
"In more or less identical circumstances, V. Ramaswami, J, a he then was, in 1981 ACJ 185 (supra), after noticing a Division Bench Judgment of this Court in C.P.Kandaswamy v. Mariappa Stores, 1974 ACJ 3 held that by introducing Section 110-A in the Motor Vehicles Act, Parliament intended not to restrict the statutory right to claim damages to the injured alone. In the case of claims arising out of motor accidents, Clause (b) provides that the cause of action would survive to the legal representative where death has resulted from the accident. This was an exception to the general principle actio personalis moritor cum persona. It is true there is a distinction between case of death resulting from the accident and a case of other personal injuries not causing the death of the party, i.e., the party dying subsequently during the pendency of the proceedings not due to the accident. But the Motor Vehicles Act does not, in my opinion, make any distinction so far as the right to claim damages. The claims in all these cases are no statutory rights. Therefore, there appears to be no reason to restrict the right to the injured alone." Therefore, there appears to be no reason to restrict the right to the injured alone." The learned Judge further distinguished the Division Bench case (1974 ACJ 362) on facts. The learned Judge ultimately held as reasonable question of recovering the actual expenses incurred by the deceased, I have no doubt that the claim will survive since that amount if had not been spent might have been available as the estate of the deceased to be succeeded by his legal representatives." In 1987 II ACJ 561 (supra) the Supreme Court has elaborately considered the expression 'legal representative' in Section 110-A of the Act. After noticing the divergent views of the various High Courts, the Supreme Court has held as follows:-
"In the light of the principles laid down in the above two judgments, I am of the view that the decisions cited by the learned counsel for the first respondent, namely reported in Videowala v. Union of India, 1986 (II) MLJ 345 and reported in Kandaswamyv. Mariappa Stores, 86 L.W. 667, cannot be pressed into service. I am further of the view that the question of bringing on record or coming on record as legal representatives and the further question whether they are entitled to compensation on the facts and circumstances of the case are two different issues. Merely because they are brought on record, that does not automatically entitled them to get compensation. In the light of the wider meaning given to the expression 'legal representative' by the Supreme Court, though in a case of death in a motor accident, the order of the Court below cannot be sustained. Therefore, I hold that the petitioner is entitled to continue the proceedings and it is for the court below to decide whether the petitioner is entitled to compensation at all, and if so, how much in the light of the principles laid down in 1981 ACJ 185 (supra) and other cases."
7. In the light of the above decisions, this Court is not inclined to accept the contentions of the appellant. However, as rightly pointed out by the learned counsel for the appellant, in the absence of making any claim by the wife, the question of awarding compensation under the head loss of consortium does not arise. Therefore, there is an error. However, this Court is of the view that the abovesaid amount can be adjusted against the lesser compensation amount awarded under the heads, funeral expenses and transportation. A sum of Rs.15,000/- awarded under the head pain and suffering, inadvertently by the tribunal can also be added to the award under the head loss of love and affection. The Claims Tribunal has determined the monthly income as Rs.4,000/-, for the purpose of computing the loss of contribution to the family. All the children have lost the love and affection of their father. A sum of Rs.3,57,500/- awarded to the respondents for the loss of life of their father, cannot be said to be grossly excessive, warranting interference.
8.At this juncture, this Court deems it fit to consider that had the death occurred, due to a railway accident, compensation payable under the Railways Act, would be Rs.4,00,000/-. Taking note of the incongruity, though, this Court has issued directions to the Central Government, to revise the quantum of compensation, in the case of motor accident claims, also no amendment has been made in the Act. Now, in the instant case, compensation awarded by the Claims Tribunal is Rs.3,57,500/-. Had Mr.Ramasamy died in a Railway Accident Case, legal representatives of the deceased would have been paid Rs.4,00,000/-.
9.Considering the incongruity on the quantum of compensation fixed under Railways Act, 1989 and the Motor Vehicles Act, 1988, this Court is not inclined to reduce the quantum of compensation awarded to the sons and daughters, except, itemising the same, as follows:
Loss of future income -Rs.2,52,000/-
Funeral expenses -Rs. 10,000/- Loss of love and affection to the children (15,000 x 6) -Rs. 90,000/- Transportation -Rs. 5,000/- Damage to clothes and articles -Rs. 500/- ---------------- Total -Rs.3,57,500/- ----------------
10.The finding fixing negligence and the quantum of compensation are sustained and consequently, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently the connected Miscellaneous petition is closed.
Consequent to the dismissal of the appeal, the appellant Insurance Company, is directed to deposit the award amount, with proportionate accrued interest and costs, less the statutory deposit, to the credit of M.C.O.P.No.1189 of 2009 on the file of Motor Accidents Claims Tribunal (Additional District Court No.III), Dharapuram, within a period of four weeks from the date of receipt of a copy of this order, if not deposited earlier. On such deposit, the respondents/claimants are permitted to withdraw the award amount as apportioned by the Claims Tribunal, by making necessary applications.
12.06.2014 Index :Yes/No Internet :Yes/No mps To The Motor Accidents Claims Tribunal (Additional District Court No.III), Dharapuram.
S. MANIKUMAR, J, mps C.M.A.No.1654 of 2014 and M.P.No.1 of 2014 12.06.2014