Madras High Court
Branch Manager vs )Kaliyamoorthy on 4 March, 2016
Bench: S.Manikumar, R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
Civil Miscellaneous Appeal(MD)No.140 of 2016
and
C.M.P(MD)No.2335 of 2016
Branch Manager,
I.C.I.C.I. Lombard General Insurance Company,
Mumbai. .... Appellant
vs.
1)Kaliyamoorthy
2)Elanchiyam
3)Sumathy
4)Easwaramoorthy .... Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against
the judgment and decree dated 21.07.2014 in MCOP.No.181 of 2013 on the file
of the Principal Sub Court cum Motor Accident Claims Tribunal, Kumbakonam.
!For Appellant : Mr.K.K.Ramakrishnan for
Mr.V.Muthukamatchi
^For R1 to R3 : Mr.N.Marudhaiyan
For R4 : No appearance
:JUDGMENT
(Judgment of the Court was made by Mr.Justice S.MANIKUMAR) I.C.I.C.I. Lombard General Insurance Company, Mumbai, appellant herein, has assailed the judgment and decree dated 21.07.2014 in MCOP.No.181 of 2013 on the file of the Principal Sub Court cum Motor Accident Claims Tribunal, Kumbakonam, mainly on the ground of quantum of compensation of Rs.19,11,000/- with interest @ 7.5% per annum directed to be paid to the legal representatives of the deceased.
2.Challenging the quantum of compensation, appellant insurance company has submitted that the Tribunal has erred in fixing the monthly income of the deceased as Rs.12,000/- without any documentary evidence. According to the appellant, sister of the deceased was not dependant on the deceased, and therefore, the Tribunal ought not to have deducted 1/4th towards the personal and living expenses of the deceased and computed the loss of contribution to the family.
3.It is also the contention of the appellant insurance company that the deceased being a bachelor, 50% of deduction ought to have been made or in the alternative, the Tribunal should have deducted 1/3rd towards the personal and living expenses.
Heard the learned counsel for the appellant and perused the materials available on record.
4.Parents and sister are the claimants. According to the respondents/claimants, prior to the accident, the deceased Vijayakumar was employed in Abu Dhabi as Welder. He had studied BBA and discontinued. Claimants have further contended that he had come to India for vacation. While he had proposed to leave for Abu Dhabi, unfortunately, met with an accident on 17.03.2013 and died. Before the Tribunal, they have produced Ex.P6-BBA Transfer Certificate, Ex.P7-Passport, Ex.P9-Identity Card to prove the avocation of the deceased as Welder. Ex.P10-Identity Card for residence. Exs.P11 and P12 Identity Cards issued by the company. Ex.P13 is the income certificate.
Upon perusal of the same, the Claims Tribunal has noticed that entries in Ex.P7-Passport contained foreign visits. Ex.P9 is the Identity Card issued by NSCC Limited Company, Dubai. Ex.P9 dated 19.09.2012 was valid upto 18.09.2013.
5.Upon perusal of Ex.P10-Identity Card for residence, the Tribunal has noted that the deceased was a tenant in Abu Dhabi. Ex.P11 is the Identity Card issued by United Arab Emirates, Ex.P12 is the Identity Card issued by the NSCC Company Limited, Dubai, to prove that the deceased was a Welder in a foreign country.
6.Though the respondents/claimants seemed to have marked Ex.P13, income certificate, there is no discussion on that aspect. However, while analysing the oral and the abovesaid documentary evidence, the Claims Tribunal, by arriving at the conclusion that prior to accident, the deceased was employed in a foreign country and that he would have earned atleast a sum of Rs.12,000/-, determined the same, for the purpose of computing the loss of contribution to the family.
7.Though Mr.K.K.Ramakrishnan, learned counsel for the appellant insurance company contended that there was no documentary evidence to prove the avocation of the deceased, and that the Tribunal has erroneously fixed the monthly income as Rs.12,000/-, this Court is not inclined to accept the said contention. The Tribunal, after going through the documentary evidence, Exs.P6 to P12, has arrived at a correct conclusion. Accident has occurred on 17.03.2013. The claimants have marked Ex.P9-Identity Card to prove that the deceased was a Welder. Determination of Rs.12,000/- as monthly income, for a Welder, working in a foreign country, is less. Having regard to the technical expertise, had he been in India, he would have earned even more than that. In such view of the matter, this Court is not inclined to countenance the said submission.
8.Taking note of the entry in Ex.P2-Postmortem Certificate, the Claims Tribunal has determined the age of the deceased as 29 years, which cannot be said to be erroneous, in view of the judgments in Fakeerappa v. Karnataka Cement Pipe Factory [2004 (4) LW 20] and The Managing Director, Tamilnadu State Transport Corporation, Madurai v. Mary [2005 (5) CTC 515].
9.Claimants are parents and sister. It is true that evidence has been adduced that sister was married. Contention of the appellant company that sister is not the dependant on the deceased and therefore, 1/3rd deduction should have been made, cannot be countenanced, for the reason that the issue as to whether, a brother and sister of the deceased can maintain a claim petition for compensation has been considered by this Court in Oriental Insurance Company v. Rangamal reported in 2011 (1) TCJ 7 = 2011 AAC 1168 and Managing Director, Tamil Nadu State Transport Corporation Ltd., v. M.Shanthi reported in 2010 CIJ 374 Mad (2). In the former case, it was the contention of the appellant-Insurance Company that brother/sister is entitled to claim compensation only under 'No Fault Liability'. Following the decisions of the Apex Court in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another reported in 1987 ACJ 561, Vidya Dhar Dubey and others v. U.P.State Road Transport Corporation reported in 1997 ACJ 1388, Oriental Insurance Company Ltd., v. Naresh Chandra Agarwal and others reported in 2000 ACJ 931, Govindasamy v. Ravi and others, reported in 2003 (1) MLJ 253, Kishan Lal v. Bharosi Lal reported in II (2003) ACC 225, Managing Director, K.S.R.T.C., v. Venkataramappa K.S., reported in III (2003) ACC 457 (DB), New India Assurance Co. Ltd., v. Ashwin Vrajlal Rajgor reported in 2005 ACJ 1618, A.Manavalagan v. A.Krishnamurthy reported in I (2005) ACC 304 (DB), this Court held that brother and sister of the deceased are entitled to maintain a claim for loss of estate and accordingly, rejected the said contention.
(a)In Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another reported in 1987 ACJ 561, the Gujarat High Court held that all the Legal heirs and the Legal Representatives of the deceased can maintain a claim petition under Section 110-A (now under Section 166(1)) of the Motor Vehicles Act and consequently, awarded compensation to the nephews of the of the deceased. Considering the divergence of opinion expressed by various High Courts, as regards the maintainability of the claim petition under Section 110-A (now under Section 166(1)) of the Motor Vehicles Act, by persons other than the wife, husband, parents and child of a person, who died in a Motor accident, the Supreme Court on appeal, at Paragraph 10, held 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."
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 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.
(b)While confirming the decision of Gujarat High Court in Megjibhai Khimji Vira v. Chaturbhai Taljabhai reported in 1977 ACJ 253 (Guj.), the Hon'ble 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."
(c)In Vidya Dhar Dubey and others v. U.P.State Road Transport Corporation reported in 1997 ACJ 1388, the Allahabad High Court has considered an issue, as to whether a claim for compensation for the death in motor accidents filed by the claimants, viz., widowed aunt and sister of deceased's maternal uncle, who were dependents, but not the legal heirs of the deceased, viz., parents, wife and son, could be entertained or not. Following a decision reported in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai reported in 1987 ACJ 561 (SC), the Allahabad High Court held that the emphasis under the Motor Vehicles Act is dependency and that near and dear, including the brother's children can be the dependants.
(d)In Oriental Insurance Company Ltd., v. Naresh Chandra Agarwal and others reported in 2000 ACJ 931, the parents of the deceased were not alive and therefore, the brother of the deceased in the capacity of a legal representative, preferred a claim. The award passed by the Tribunal, following the Gujarat State Road Transport Corporation's case, was confirmed by the Allahabad High Court, holding that the Legal Representatives including the brother of the deceased is entitled to claim compensation.
(e)In Govindasamy v. Ravi and others, reported in 2003 (1) MLJ 253, a Division Bench of this Court held that the deceased father's younger brother is entitled to claim compensation, as he was also a legal representative, as per the Hindu Succession Act.
(f)In Kishan Lal v. Bharosi Lal reported in II (2003) ACC 225, the deceased was the elder brother of the claimants-appellants Nos.1 and 4, the brother-in-law of appellants Nos.2 and 5 and father of the appellant No.3 before the High Court. The deceased was unmarried and that he had adopted a son, appellant No.3 therein. The maintainability of a claim petition, filed on behalf of the brothers, adopted son and other relatives, was one of the issues before the Tribunal. Without giving any opportunity to the parties, the Tribunal held that inasmuch as the deceased was an unmarried person, the appellant Nos. 1, 2, 4 and 5 therein were not entitled to maintain a claim petition and that they were not the dependents of the deceased. As no document was filed to prove adoption, the claim of the appellant No.3 was also rejected. Thus, in toto, the Tribunal dismissed the claim petition. After referring to Section 166(1)(c) of the Motor Vehicles, which provides that an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165, can be made, by Hon'ble Mr. Justice J.S. Verma (as he then was), has held as follows:
"5. I find merit in the submission of the learned Counsel for the appellants that if the contrary view is taken, in the event of death of a person in accident who happens to be an unmarried or whose parents are not living, it shall amount to as if no compensation can be claimed in regard to the death of such persons and such compensation will lead to such an unpleasant situation that the defaulting negligent driver will escape the liability for any such accident for the purpose of compensation, I fully agree with learned Counsel for the appellants in this regard and specially when in the present case, application for compensation had also been filed including an adopted son, adoption of which could only be proved by leading evidence as per law."
So saying, the order of the Tribunal, dismissing the claim petition, was set aside and that the matter was remitted back to the Tribunal, to proceed with the claim petition on merits.
(g)In Managing Director, K.S.R.T.C., v. Venkataramappa K.S., reported in III (2003) ACC 457 (DB), the deceased was an agricultural labourer and that there was no class I heir. A claim for compensation was made by the married sisters and brother. Before the Tribunal, an objection was raised by the Transport Corporation that the claimants were not the dependents on the deceased and that therefore, they are not entitled to make a claim for compensation. However, the Tribunal computed the dependency compensation, in addition to the compensation awarded under the conventional damages. Aggrieved by the same, the State Transport Corporation preferred an appeal to the High Court, reiterating the said averments. The High Court framed the following questions for consideration, "(1) Whether the brothers and sisters of the deceased can maintain a claim petition even though they were not depending upon the income of the deceased for their maintenance?
(2) Whether the compensation awarded by the Tribunal is on the excessive side?"
Following the judgment of the Hon'ble Supreme Court in Gujarat State Transport Corporation's case, (cited supra) and taking note of Section 8 of the Hindu Succession Act, which states that when a male Hindu dies intestate, his property has to be devolved, according to the provision of Section 8:
i.e., (a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule; and (b) secondly, if there is no heir of Class I then upon the heirs, being the relatives specified in Class II of the Schedule. A Division Bench of the Karnataka High Court, held that the claimants, viz., brothers and sisters, who fall under Class-II heirs, as per Hindu Succession Act, would be entitled to maintain a claim.
(h)In New India Assurance Co. Ltd., v. Ashwin Vrajlal Rajgor reported in 2005 ACJ 1618, a Hon'ble Division Bench of the Gujarat High Court considered the entitlement of the brother's son and brother's wife (sister-
in-law) of the deceased for compensation. After considering the judgment of the Supreme Court in Gujarat State Road Trans. Corpn., v. Ramanbhai Prabhatbhai reported in 1987 ACJ 561 (SC), and another Division of the Gujarat High Court in Ashwin Vrajlal Rajgor's case, (stated supra), the Court held that in the absence of Class-I legal representatives to represent the estate of the deceased, a brother's son, a Class-II heir and the brother's wife are entitled to claim compensation for the death of the deceased. The Hon'ble Division Bench has also taken note of the line of succession, as provided for under the Hindu Succession Act, 1956 and held that the appellants therein, were entitled to compensation.
(i)In A.Manavalagan v. A.Krishnamurthy reported in I (2005) ACC 304 (DB), a Hon'ble Division Bench of the Karnataka High Court considered a case, where, the husband claimed compensation for the death of his wife under the Motor Vehicles Act. He was not dependent on his wife. While considering the issue as to whether a legal representative, not dependent on the income of the deceased, would be entitled to claim loss of dependency, the Hon'ble Division Bench, at Paragraph 16 and 19(i) and (ii), held as follows:
"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.
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 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."
(j)In Managing Director, Tamil Nadu State Transport Corporation Ltd., v. M.Shanthi reported in 2010 CIJ 374 Mad (2), the objection of the Transport Corporation that a married brother/sister cannot maintain a claim petition has been rejected, following the same decisions stated supra. At Paragraph 22, this Court held as follows:
?22. Insofar as the contention that the claimants are not dependents of the deceased, this Court is of the considered view of this Court that when a claim petition is made by a married son or daughter, or in the absence of any other Class-I heir and if the claimants adduce evidence that they are the legal representatives and that the deceased during his lifetime, had contributed a portion of his income to them and if the said contention is disputed, it is the burden of the objector to lead strong rebuttal evidence to dislodge the claim of dependency. If the contention of contribution by the deceased to the legal representatives is not rebutted by any acceptable evidence, the inevitable conclusion of the Tribunal should be in favour of the claimants. In view of the judgments and for the reasons stated supra, the award made in favour of the married sisters and others, cannot be said to be without any legal principles and this Court is not inclined to interfere with the decision of the Tribunal."
(k)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, living separately and not a dependant, is not entitled to claim compensation. At Paragraph 6 of the judgment, the short question framed by this Court was whether the claimants, married sons and married daughters, entitled for compensation? While addressing the abovesaid question, a learned Judge 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."
(l)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."
(m)In yet another case reported in Bhagwatidin v. Gheesalal, 1980 ACJ 116, the Madhya Pradesh High Court held, that the brother of the deceased can claim compensation, and the same is extracted hereunder:-
"There is another, aspect, which requires consideration. The provisions of Sections 110-A to 110-F of the Motor Vehicles Act, were inserted to provide cheap and speedy remedy to the persons, who had suffered loss on account of the accident. The provisions, being benevolent, call for liberal and broad interpretation so that the real purpose of enacting Sections 100-A to 100-F is achieved. It is well settled that if the provisions of a welfare legislation are capable of two interpretations, the interpretation, which furthers the policy of the act and is more beneficial to the persons for whose interest the law has been made, should be preferred. Therefore, if the Parliament has thought it fit not to use the word 'representative', as was used in Fatal Accidents Act, but has used, the word 'legal representative' in Section 110-A of the Motor Vehicles Act, full effect has to be given to the legislative intent. I am, therefore, of the opinion that the category of persons, who are entitled to claim compensation on account of the death of the deceased person, cannot be restricted to the relations specified in Section 1-A of the Fatal Accidents Act, 1855 and I agree with the view taken by the Madras, Andhra Pradesh and Gujarat High Courts in the decisions referred to above that all the legal representatives of a deceased as defined by Section 2(ii) of C.P.C. are entitled to claim compensation for the death of the deceased under Section 110-A of the Motor Vehicles Act, if they have suffered any loss on account of the death of the deceased. In the present case, it is common ground that the appellant being the brother of the deceased was not survived by any other nearer heir. The appellant, therefore, is entitled to claim compensation on account of the death of the deceased from the respondents."
(n)In a decision of this Court in Sarayu v. Surendra Vithal Nazare reported in 2011 (2) MLJ 1, a Hon'ble Division Bench of this Court, considered the question as to whether compensation can be denied to the wife of the deceased, who re-married another person. Though the facts may not be squarely applicable to the case on hand, the Division Bench judgment can be looked at from a different angle for the reason that the wife, who was earlier a dependent of the deceased and a legal representative, was held to maintain a claim petition under Section 166 of the Motor Vehicles Act, to represent the estate of the deceased person, even after re-marriage. What has been considered and decided in the above reported judgment by the Division Bench is that the words, "Legal Representatives" in Section 2(11) of the CPC, 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. While reiterating the views expressed by the Supreme Court in Gujarat State Road Transport Corporation's case (cited supra), the Division Bench, at Paragraph 15, held that, the Tribunal has committed a serious illegality in holding that the wife of the deceased, as not entitled to any compensation for the reason, that after the death of the deceased, she remarried her husband's brother.
(o)On the aspect, as to how a provision has to be interpreted, this Court deems it fit to consider some of the decisions. In Smt.Hira Devi and others Vs. District Board, Shahjahanpur, reported in AIR 1952 SC 362, the Hon'ble Supreme Court at paragraph 14, held that, "No doubt, it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act."
(p)In Nalinakhya Bysack Vs. Shyam Sunder Haldar and others, reported in AIR 1953 SC 148, the Hon'ble Apex Court held that, "It is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot aid the Legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is casus omissus, it is for others than the Courts to remedy the defect."
(q)In Sri Ram Ram Narain Medhi and others Vs. The State of Bombay, reported in AIR 1959 SC 459, (v 46 C 57), a Constitutional Bench of the Hon'ble Supreme Court, at paragraph 38 of the judgment held that, "If the language of the enactment is clear and unambiguous it would not be legitimate for the Courts to add any words thereto and evolve therefrom some sense which may be said to carry out the supposed intentions of the legislature. The intention of the Legislature is to be gathered only from the words used by it and no such liberties can be taken by the Courts for effectuating a supposed intentions of the Legislature."
(r)In G.Narayanaswami Vs. G.Pannerselvam and others, reported in 1972 (3) SCC 717, the Hon'ble Supreme Court held that while interpreting a provision, the Court should interpret in a broad and generous spirit the document which contains the fundamental law of the land or the basic principles of its Government. However, the rule of "plain meaning" or "literal" interpretation, which is "the primary rule" could not be altogether abandoned today in interpreting any document. The object of interpretation and of "construction" (which may be broader than "interpretation") is to discover the intention of the law-makers in every case. This object can, obviously, be best achieved by first looking at the language used in the relevant provisions. Other methods of extracting the meaning can be resorted to only if the language used is contradictory, ambiguous, or leads really to absurd results. This is an elementary and basic rule of interpretation as well as of construction processes which, from the point of view of principles applied, coalesce and converge towards the common purpose of both which is to get at the real sense and meaning, so far as it may be reasonably possible to do this, of what is found laid down. The Supreme Court at paragraph 18 of the said judgment further held that "Plain meaning" or "Literal" construction which must ordinarily prevail. A logical corollary of that rule is that a statute may not be extended to meet a case of which provision has clearly and undoubtedly not been made. An application of the rule necessarily involves that addition to or modification of words used in statutory provisions is not generally permissible. Courts may depart from this rule only to avoid a patent absurdity.
(s)In Union of India Vs Sankalchand Himatlal Sheth and another, reported in 1977 (4) SCC 193, the Hon'ble Supreme Court, at paragraph 54, held as follows:-
54. Now, it is undoubtedly true that where the language of an enactment is plain and clear upon its face and by itself susceptible to only one meaning, then ordinarily that meaning would have to be given by the Court. In such a case the task of interpretation can hardly be said to arise. But language at best is an imperfect medium of expression and a variety of significations may often lie in a word or expression. It has, therefore, been said that the words of a statute must be understood in the sense which the legislature has in view and their meaning must be found not so much in a strictly grammatical or etymological propriety of language, nor in its popular use, as in the subject or the occasion on which they are used and the object to be attained. It was said by Mr Justice Holmes in felicitous language in Town v. Eisner that ?a word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used?.
The words used in a statute cannot be read in isolation: their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context. And when I use the word ?context?, I mean it in its widest sense ?as including not only other enacting provisions of the same statute but its preamble, the existing state of the law, other statutes in pari materia and the mischief which ? the statute was intended to remedy?. The context is of the greatest importance in the interpretation of the words used in a statute. ?It is quite true?, pointed out Judge Learned Hand in Helvering v. Gregory ?that as the articulation of a statute increases, the room for interpretation must contract; but the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create?. Again, it must be remembered that though the words used are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing, be it a statute, or contract, or anything else, it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that a statute always has some purpose or object to accomplish, whose sympathetic and imaginative discovery, is the surest guide to its meaning. The literal construction should not obsess the Court, because it has only prima facie preference, the real object of interpretation being to find out the true intent of the law maker and that can be done only by reading the statute as an organic whole, with each part throwing light on the other and bearing in mind the rule in Heydon case which requires four things to be ?discerned and considered? in arriving at the real meaning: (1) what was the law before the Act was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy Parliament has appointed; and (4) the reason of the remedy. There is also another rule of interpretation which is equally well settled and which seems to follow as a necessary corollary, namely, where the words, according to their literal meaning ?produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification?, the Court would be justified in ?putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear?. Vide River Wear Commissioners v. Adamson. It is in the light of these principles of interpretation that I must proceed to consider what is the true meaning and effect of clause (1) of Article 222: whether it permits transfer of a Judge from one High Court to another, irrespective of his consent."
(t)In P.K.Unni Vs. Nirmala Industries and others, reported in 1990 (2) SCC 378, a Three Judge Bench of the Hon'ble Supreme Court held that "Assuming there is a defect or an omission in the words used by the Legislature, the Court would not go to its aid to correct or make up the deficiency. The Court cannot add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result.
"No case can be found to authorise any Court to alter a word so as to produce a casus omissus." Where the language of the statute leads to manifest contradiction of the apparent purpose of the enactment, the Court can, of course, adopt a construction which will carry out the obvious intention of the legislature. In doing so a "judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
10.There is a distinction between being a dependent on the income and receiving a contribution from the deceased, either monetarily or through the services rendered by the deceased to the members of the family, legal representatives, which is also a decisive factor, in computing the compensation. Though the provision under Section 2(1)(d) of the Workmen's Compensation Act, 1923, defines, who are all the dependents entitled to claim compensation under the Workmen's Compensation Act, there is a clear distinction under Section 166 of the Motor Vehicles Act, which states that all the legal representatives are entitled to claim compensation.
11.Section 2(1)(d) does not confer any statutory right to a married daughter to seek for compensation under the Workmen's Compensation Act. The said Act has come into force in 1923. Whereas, Motor Vehicles Act was enacted in the year 1939. Section 166 of the Motor Vehicles Act, does not restrict the entitlement of a married daughter to prefer any claim along with others. Both Acts are beneficial legislations. Nevertheless, there is a clear distinction insofar as the language employed under the Acts. When Section 2(1)(d) of the Workmen's Compensation Act, speaks about dependency, Section 166 of the Motor Vehicles Act, speak about the right of the legal representatives to succeed to the estate of the deceased. There is a specific inclusion of all legal representatives to claim for compensation under Section 166 of the Motor Vehicle's Act. Therefore, merely because a married daughter has joined the other claimants/legal representatives, or makes a separate claim, such claim cannot be said to be against the statutory provision, and therefore, to be rejected in limini.
12.If the intention of the framers of the subsequent enactment, viz., Motor Vehicles Act, was also to restrict the payment of compensation only to the dependants, the word ?dependant? as defined in Section 2(d) of the Workmen's Compensation Act would have been incorporated in Motor Vehicles Act also. In the case of claim under the Workmen's Compensation Act, the employee dies, arising out of and during the course of employment, whereas, in the case of a Motor Accident, even the other legal heirs, travelling in the same vehicle may also be victims of the accident. Say for example, a rider and a pillion, in a two wheeler, or the occupants in a car, or passengers in a bus, and so on and so forth. Judicial notice can be taken, that in some cases, the entire family members die in an accident, leaving behind a married daughter or a married sister or a married son.
13.The quantum of compensation or loss of contribution is not determined on the basis of monetary loss alone. It is also determined on the basis of invaluable and gratuitous services rendered by the mother or the wife, as the case may be. The legal representative particularly, a married daughter, may not be totally dependent on the income of the deceased mother for her survival or living, but still, there can be a monetary assistance, during the life time of the deceased.
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.
15.Exclusion of a married daughter/sister/brother from the claim petition, altogether would be opposed to the object of the Act and it would be amounting to adding words to the legislation, which the Court is not supposed to do. As held by the Apex Court, even if there is casus omissus, it is not for the Court to add words to the legislation. The construction and interpretation of the words, ?legal representatives? in Section 166 of the Motor Vehicles Act, in the context and nature of legislation, being beneficial, should be interpreted in such a way not to take away their rights. Merely because a married daughter/sister is living with her husband, in a separate house, that by itself would not disentitle her from claiming compensation, as a legal representative, to represent, the estate of the deceased.
16.If a married daughter/sister/brother has to be excluded from the expression, ?legal representative?, employed in Section 166 of the Motor Vehicles Act, then it would virtually amounting to substituting the words ?legal representatives? with ?dependants?, as used in Section 2(1)(d) of the Workmen's Compensation Act. No doubt, one who is gainfully employed cannot be called as a dependent. At the same time, not all married daughters/sisters can be said to be gainfully employed. The word ?dependant? has a different meaning in different connotation. Some may be dependent in terms of money and others may be dependent in terms of service.
17.In a given case, when the parents live with a married daughter and if the mother dies, it cannot be said that the married daughter was dependent on the mother, monetarily all the time, but still would have been dependent on her service. If the married daughter is employed, she leaves her children in the care and custody of her mother, when she is away in her office and in such cases, it cannot be said that married daughter did not lose her valuable services, which can be still be a decisive factor, for awarding quantum of compensation.
18.'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.
19.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.
20.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.
21.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, intrepret 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.
24.As the statute is very clear that all the legal representatives can maintain a claim under Section 166 of the Motor Vehicles Act, depending upon the loss of monetary benefit or the gratuitous and invaluable services, measured in terms of money, that the legal representative, might have received and the likelihood of loss in the event of death, brother or sister can maintain a claim, the words "Legal Representatives", cannot be narrowed down to mean only, dependents.
25.Income determined by the Tribunal is at Rs.12,000/-. Though there were three claimants, the Claims Tribunal deducted 1/4th towards the personal and living expenses. The Tribunal ought to have made 1/3rd deduction, as per the judgment of the Hon'ble Apex Court in Sarla Verma and Others Vs. Delhi Transport Corporation, reported in 2009 ACJ 1298. There is no error in application of 17 multiplier. After 1/3rd deduction, the loss of contribution to the family would be Rs.16,32,000/- (Rs.8,000X12X17). Quantum of compensation awarded under the head, loss of love and affection to the parents at Rs.25,000/- is meagre. Rs.15,000/- awarded under the head loss of love and affection to the sister, is pittance. The Tribunal should have awarded a higher compensation of Rs.75,000/- each.
26.The Tribunal has awarded funeral expenses of Rs.10,000/- only. With regard to funeral expenses, the Hon'ble Supreme Court in Rajesh v. Rajbir Singh, reported in (2013) 9 SCC 54, held as follows:-
18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head ?funeral expenses?. The ?price index?, it is a fact has gone up in that regard also. The head ?funeral expenses? does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive.
Therefore, we are of the view that it will be just, fair and equitable, under the head of ?funeral expenses?, in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs 25,000.''
27.In the light of the aboveaid judgment, the award under the head 'funeral expenses' is enhanced to Rs.25,000/-. The Tribunal has failed to consider that respondents/claimants would have incurred expenses, for transporting the corpse, from the hospital, to the place of residence. There is no award under the head transportation.
28.At the time of accident, the deceased was aged 29 years. Documents have been filed, to prove that he was a Welder in a foreign country. If one could earn the same amount in India, there is no need to go abroad. The Tribunal has not considered the element of future prospects of the deceased. In the instant case, evidence has been adduced by the respondents/claimants that the deceased was a Welder in a Company Limited, Dubai, which could be taken as employment in an organised sector. In such a view of the matter, the Tribunal ought to have considered as to whether the respondents would be entitled to a just and reasonable compensation under the head ''future prospects'' also. In a recent judgment in M/s.Royal Sundaram Alliance Insurance Co. Ltd., Salem vs. Tmt.Vennila (C.M.A.Nos.3273 of 2014, 723 and 2386 of 2015, dated 13.10.2015), a Division Bench of this Court, to which, one of us (SMKJ), is a party, after considering the ''Per Capita Income'', ''Gross Domestic Product'' and ''Consumer Price Index'' etc., at paragraphs 54 to 68, held as follows:-
54.Taking into consideration the above illustrative cases of some of the employees, engaged by the Government, on daily rated basis and being revised periodically, we wish to state that the factors taken into consideration or the reasons stated by the Central Government or the District Collector, as the case may be, while revising the wages, from time to time, whether a person is employed in an organised or unorganised sector, would remain the same and consequently, decide the living conditions of different classes of persons, whether engaged in organised or unorganised sectors, as the case may be, to meet out the day to day expenditure and basic amenities.
The difference in the rates of wages between the persons employed in a salaried structure, revisable periodically, though not, in strict sense, be applied with the same percentage to those, engaged in unorganised sectors, but it cannot be contended that there will not be any change in the earning or income.
55.The government servants have an expectation of periodical revision. So also, the employees working in Public Sector, Boards, Corporation, Companies owned and controlled by the Government. In respect of Private Limited Companies, it is more on the basis of terms and conditions of the contract, in which, they are governed. But in the case of self-employed or those, engaged in unorganised sectors, revision of wages or salary or in the case of self-employed, though may not be on par with the salaried structure in organised sectors or on the terms and conditions of the contracts in limited companies, still the important factor, Consumer Price Index, the deciding factor, would be the same, for a change in the earning of the self- employed or revision of salary or wage, even in unorganized sectors and that the expectation of a future event, ie., possibility of a change in wage or financial expectation, cannot be ruled out, for the simple reason that nothing has remained static, in this country.
56.As tabulated in the foregoing paragraphs, it should be noted that Consumer Price Index, Gross Domestic Product and Per Capita Income, have increased. One cannot disown the fact that the percentage of those in unorganized sectors is more than the organised sectors. While that be so, would it be appropriate for the Insurance Companies and Transport Corporations, to contend that there is absolutely no chance of any upward revision in wages or salary of those, employed in unorganised sectors or for that matter in the earnings of self-employed. If the contentions of the Insurance Companies and Transport Corporations have to be accepted, whether the self-employed or those engaged in unorganised sectors, can never have any expectation of an event in future, ie., increase in earnings or wages? With the basic study of the statistics, we are of the considered view that the answer should be a clear 'No'. When the Consumer Price Index is applicable uniformally to rich or raff, it cannot be contended that those who are engaged in unorganized sectors or self-employed, would continue to earn the same income, for years together.
57.For the abovesaid reasons, we are of the considered view that the word, ?prospects? should not be read and understood, only in plural sense, meaning thereby, its prospects or an apparent probability of advancement in employment, in organised sectors alone. Narrowing down the meaning of the words, ?future prospects? only to the employment prospects and consequently, more possibility of earning income, only in the case of organised sector and not in unorganised sector or selfemployed, would affect the majority and therefore, the meaning of the word, ?prospect? used in singular, meaning thereby, expectation, possibility or probability, chances of earning more income in future, depending upon the factors, stated supra, should also be considered.
58.Thus, from the above particulars, extracted supra, it is evident that both the Central and State Governments have periodically revised the minimum wages across the country. It has been raised taking into consideration the Consumer Price Index. In respect of scheduled employments, for skilled, semi-skilled, unskilled, construction workers, labourers, etc., wages, are fixed in various scheduled employments, right from Agarbathi Industry to Woolen Carpet and Shawl wearing machinery.
59.While that be the position in organised sectors, it cannot be contended that insofar as unorganised sectors or self-employed, is concerned, there would not be any revision in the wages or salary or earning. When the minimum wages of an employee in the organised sector, is revised periodically, taking into consideration the Consumer Price Index and Variable Dearness Allowance, the living conditions, then the others, in a unorganised sector may expect more or less the same wage, and if there are more number of persons, there may be chances of lesser wage, on account of surplus human resources and in such cases, the bargaining power of certain class of employees, depending upon the field, for revision of wages or earning, may be less.
60. If a non-salaried domestic worker sells a piece of any article, which he or she manufacturers and if the customer bargains the rate, he or she would immediately reply, as to how much amount, he/she has to spend for buying the basic materials, other materials used, compare the erstwhile travel expenses and the cost of labour. Can anyone in this Country can say that the electricity charges, water charges, rent, fee received by the Government, cost of education, price of commodities, etc., have remained the same, without any change. Cost of tea sold in a ordinary tea stall is the same for any person, whether engaged in organised or unorganised. Contenting inter alia that there would not be any increase in wages or earning for those engaged in unorganised sectors, for years to come, can it be said that he would never take a cup of tea, outside?
61. At this juncture, it should be borne in mind that Consumer Price Index is fixed, taking into consideration that the majority consumers are from unorganised sectors. Thus, with reference to Gross Domestic Product, Per Capita Income, Consumer Price Index and such other economic factors, determined on the basis of participation and contribution of both organised and unorganised sectors, the classification that those engaged in unorganised sectors, should be totally denied of any addition of income under the head, future prospects, would in our humble view, would affect Article 14 of the Constitution of India. When the majority of persons, in unorganised sectors, also decide the economic factors, stated supra, it would be unjust and unreasonable to contend that there would not any prospect or addition in the earning of those engaged in unorganised sector, forever. If there is addition of Variable Dearness Allowance to the basic wages, in the case of organised sector, depending upon the Consumer Price Index, applicable for a particular period, one would reasonably expect the same factor of variable Dearness Allowance, to be a relevant factor, for determining the variation in the wage in case of unorganised sector also, as Consumer Price Index is common to all, whether engaged in organised or unorganised sector.
62. At this juncture, we deem it fit to consider, what ?Dearness Allowance? means? ?Dearness Allowance? is a cost of living adjustment allowance paid to Government employees, Public sector employees (PSU)and pensioners. Dearness Allowance is calculated as a percentage of an Indian's basic salary to mitigate the impact of inflation. Variable Dearness Allowance is always linked to Consumer Prince Index. The notifications of Minimum wages by the Central and State Government reflects how much is the Variable Dearness in each field.
63. In the light of what we have tabulated above, judicial notice can also be taken that the cost of labour, whether it is in agricultural field or manufacturing or services, has increased. Thus, focusing on the increase in wages or earning, in almost all the fields of operation, right from agricultural or industrial or manual labourers, tea shop or road side vendor, the Consumer Price Index, being the same to rich or raff and therefore, correspondingly to meet out the living conditions, atleast for providing the basic amenities, like food, shelter and clothing, and not to add up the expenditure towards health, education, certainly, there would be revision of wages or earning, even in unorganised sectors also. Future is the period of time that will come after the present or things that will happen. Having regard to the consistent and periodical revision of wages by the Governments, it cannot be contended by the Insurers or Transport Corporations that a person in unorganised sector, has no future at all, in the matter of revision of wages or earning.
64. In R.K.Malik's case (cited supra), the Hon'ble Supreme Court considered the quantum of compensation, payable to the legal representatives of the deceased children, aged between 10 and 18 years. Referring to the inflation, price rise, etc., the Hon'ble Supreme Court, by observing that the there would be a future prospects, for the children also, granted a sum of Rs.75,000/- under the head, future prospects, though as on the date of accident, they were children, studying in a school. In V.Mekala's case (cited supra), the injured was a student studying in 11th Standard. While determining the monthly income of the injured as Rs.10,000/-, the Hon'ble Supreme Court added 50% of the income, under the head, future prospects. In the recent decision in Munna Lal Jain's case (cited supra), the Hon'ble Supreme Court added 50% under the head, future prospects. 65. Thus, from the line of judgments, it could be noticed that the Hon'ble Supreme Court has considered the addition of a quantified sum, under the head, future prospects, in effect, indicating that there is a prospect or chance or possibility of earning more income, after a passage of time, though not periodically, as done in the case of Government or Public Sector Undertakings or Boards or Corporations, Companies owned and controlled by the Government or Limited Companies.
66. We have already extracted the orders of the Chief Labour Commissioner, Ministry of Labour and Employment, Government of India, New Delhi and taken into consideration a sample case, City of Chennai. Wage revision may vary in rural or urban areas or metropolitan cities. At the risk of repetition, as observed earlier, the number of persons, engaged in unorganized sectors, agriculture or industrial, or home based or self- employment, etc., are more in number, than those employed in organised sectors.
67. Income from the organised sector alone, is not the deciding factor, for determining Gross Domestic Product, Consumer Price Index or Per Capita Income. Thus, from a basic study of the factors, taken into consideration by the Governments for revision of wages, to the enumerated categories of employees, one cannot lose sight of the fact that the said factors, would also have an indeligible effect on those, engaged in unorganized sectors also. In the light of our discussion and the details considered, we are of the considered view that addition of certain percentage of income under the head, future prospects, has to be done in the case of those engaged in unorganized sector or self-employed also, otherwise, they would be deprived of just compensation. Addition of income under the head,future prospects, should not be restricted to only salaried persons, with stable jobs.
68. Though it is the case of the Insurance Companies and Transport Corporation that in the case of persons engaged in unorganised sector or salaried or persons, who do not have any permanent job, addition of certain percentage of income, under the head, ?future prospects?, to the income drawn, at the time of death, should not be made, for computation loss of dependency compensation, we are not inclined to accept the same, for the reason that the expression ?future prospects? should not be confined only to the prospects of the deceased in the career, progress or upgradation of position, in which, he was engaged, prior to death, but the expression ?future prospects? should also be extended to the likelihood of increase in wages/salary, earned by either a skilled or semi-skilled person, clerical and others, considering the upward increase in the cost price, inflation and such other factors.''
29.Reverting to the instant case, there is no award under the head future prospects. There is no award under the head loss of estate. Considering the overall quantum of compensation, this Court is of the view that the same cannot be termed as a bonanza or manna from Heaven directed to be paid to the legal representatives of the deceased. Hence, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P(MD)No.2335 of 2016 is closed.
30.In view of the dismissal of the appeal, the appellant is directed to deposit the entire award amount with proportionate accrued interest and costs, to the credit of MCOP.No.181 of 2013 on the file of the Principal Sub Court cum Motor Accident Claims Tribunal, Kumbakonam, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the respondents/claimants are permitted to withdraw the same, in their respective shares, with proportionate interest and costs, by making proper application before the Tribunal.
To The Principal Sub Judge, Motor Accident Claims Tribunal, Kumbakonam..