Smt. Indirawati Devi And Others ... ... vs Sri Rajeev Singhal And Others on 23 May, 2022

[Cites 21, Cited by 0]

Uttarakhand High Court

Smt. Indirawati Devi And Others ... ... vs Sri Rajeev Singhal And Others on 23 May, 2022

Bench: Sharad Kumar Sharma

          HIGH COURT OF UTTARAKHAND
                  AT NAINITAL
              Appeal from Order No. 449 of 2011
Smt. Indirawati Devi and others                             ...       Appellants
                                       Vs.
Sri Rajeev Singhal and others                               ...      Respondents
Advocates :   Mr. Ravi Sehgal, Advocate, holding brief of Mr. Piyush Garg, Advocate,
              for the appellants
              Mr. Kartikey Maulekhi, Advocate, holding brief of Mr. P.C. Maulekhi,
              Advocate, for the respondent(s).

Hon'ble Sharad Kumar Sharma, J.

The appellants before this Court, in this Appeal from Order, preferred under Section 173 of the Motor Vehicles Act of 1988 (hereinafter to be called as Act of 1988), has questioned the propriety of the award dated 29.07.2011, as it has been rendered by the learned Motor Accidents Claims Tribunal/Additional District Judge, Rishikesh, in MACP Case No. 50 of 2008, Smt. Indirawati Devi and others Vs. Sri Rajeev Singhal and others. As a consequence of the impugned award, rendered by the learned Motor Accidents Claims Tribunal, the claim petition preferred by the appellants/claimants herein, had been rejected.

2. The factual aspects which engaged consideration in the said case, are that the claimants have contended, that on 28.11.2007, when the offending vehicle i.e. Truck bearing registration number as UA07C/9927, was being driven by the driver of the vehicle and was going towards Rishikesh, it was on account of a technical snag in the vehicle, a mechanic was called upon i.e. Mr. Harpal Singh, for the purpose of carrying out the necessary repairs, who after undertaking the necessary repairs, was travelling in the vehicle in question 2 which had met with an accident near Chamba-Dharasu motor road.

3. It is contended that the accident was caused due to rash and negligent driving of the driver of the vehicle, the offending vehicle fell into a gorge as a result of which the mechanic late Mr. Harpal Singh, who was travelling on it, had suffered grievous injuries and later on he died on the spot.

4. The claimants have contended, that on the date of the accident i.e. on 28.11.2007, the deceased Harpal Singh was of 42 years of age and was working as a mechanic in Tata Commercial Motors, Rishikesh and was being remunerated with wages payable @ Rs. 4,108/- per month.

5. Claimants contended that the claimant No. 1, since being the sister-in-law (wife of the brother), claimant No. 3, since being the real brother of the deceased and claimant Nos. 2, 4, 5 and 6, since being the dependents of the deceased late Mr. Harpal Singh, they would be entitled for the remittance of the compensation, which they have claimed to the tune of Rs. 30,30,000/- to be paid to them.

6. The claim petition was contested by the Opposite Party No. 3, to the claim petition i.e. the Insurance Company, who had filed its written statement i.e. paper No. 19(kha), wherein the Insurance Company had questioned the very propriety of the maintainability of the claim petition, at the behest of the 3 claimants, because looking to their interse relationship with they allegedly enjoyed with deceased, they would not be entitled for the grant of any compensation. Apart from that, the Insurance Company, has also denied the fact, that the offending vehicle was not at all involved in the accident, which is said to have chanced on 28.11.2007.

7. It was further contended by the learned counsel for the Insurance Company, that in fact the story, which was build up by the claimants that late Mr. Harpal Singh, was travelling on the offending vehicle, in fact, it is a false story, which has been cooked up later, and in fact, the deceased was not at all travelling in the vehicle in question, though the fact pertaining to late Mr. Harpal Singh, having being employed with the Tata Motors and drawing the salary as referred above, was also a fact, which was attempted to be denied.

8. It was contended by the Insurance Company in their written statement, that on the date of the accident, the vehicle was not being driven, as per the terms of the insurance policy and since there was an apparent violation of the terms and conditions of the insurance policy and that the deceased, if at all, it is said to be treated to be travelling on the offending vehicle, he would be treated as to be a "gratuitous passenger", and the claimants herein though without admitting the fact of their dependency had submitted that they would not be entitled for the grant of any compensation.

9. The Opposite Party No. 1 i.e. the owner of the offending vehicle, had filed his independent written statement being paper No. 37(kha), wherein the claim raised by the claimants, as it has been pleaded in the written statement it was alleged to be concocted and artificial and it was rather based upon a fictitious story, which has been artificially developed by the claimants and he further submitted that in fact, no such incident ever chanced resulting into the death of Mr. Harpal Singh, as a consequence of the alleged accident, which is said to have chanced on 28.11.2007. Apart from it, the owner of the vehicle has submitted that the vehicle on the date of the alleged accident was being driven, with all valid documents and the driver of the vehicle i.e. opposite party No. 2 was having valid driving license subsisting in his favour, on the date when the accident has chanced and the owner of the vehicle has denied the fact of vehicle being driven rash and negligently.

10. As far as Opposite Party No. 2 i.e. the driver of the offending vehicle is concerned, he despite having being served with the notices, didn't participated in the proceedings, as a consequence thereto, the learned Motor Accidents Claims Tribunal, vide its order dated 30.07.2009, had directed to proceed ex parte against Opposite Party No.

2. 5

11. On the exchange of the pleadings, the learned Motor Accidents Claims Tribunal, vide its order dated 28.05.2010, had framed the following issues:-

**1- D;k fnukad 28-11-07 dks xzke lkadjh e/; cSy dh Fkkj ukes rksi fLFkr pEck Fkjklw ekxZ ij foi{khla0 2 lkscu flag }kjk Vªd la0 ;w-,- 07lh@9927 dks ykijokgh ls pykus ds dkj.k Vªd [kMM esa fxj x;k] ftlls mlesa lokj gjiky flag dh Vªd ds uhps nc tkus o vR;kf/kd pksV yxus o [kwu cg tkus ls e`R;q gks x;h\ 2- D;k fnukad 28-11-07 dks e`rd gjiky flag ּ Vªd la0 ;w-,- 07lh@9927 esa lokj ugha Fkk] tSlk fd foi{kh la0 3 us vius tokcnkos ds iSjk 12 esa dFku fd;k gS\ 3- D;k ;kph e`rd ij vkfJr ugha Fks] tSlk fd foi{kh l- 3 ds tokcnkos esa iSjk 27 esa dgk x;k gS\ 4- D;k nq?kZVuk ds le; Vªd la0 ;w-,-07lh@9927 dk pkyd Vªd dks fcuk oS/k Mªkbfoax ykblsal ds pyk jgk Fkk\ 5- D;k ;kphx.k dksbZ izfrdj ikus ds vf/kdkjh gSa] ;fn gka rks fdruk vkSj fdl i{k ls\

12. In support of their respective pleadings which were raised by the parties to the proceedings, the claimants, to support their claim had placed on record the list of documents by way of list paper No. 7(ga) to 8, wherein they have placed before the learned Tribunal a xerox copy of the death certificate, copy of the FIR i.e paper No. 9(ga), post mortem report i.e. paper No. 10(ga), receipt of salary i.e. paper No. 11(ga) and various other documents, including the documents pertaining to the valid registration of the vehicle and the insurance policy, which was placed on record i.e. paper No. 13(ga).

13. Apart from leading documentary evidence, in support o the pleadings raised in their written statement, as well as in 6 the claim petition by the claimants. The insurance company had not led any oral evidence, as such before the Court below, in order to substantiate, their stand taken in their written statement except for placing on record the documents, pertaining to insurance policy and other documents relating to that on the date of the accident of the offending vehicle, was being actually driven on the date of the accident.

14. The learned counsel for the appellants has submitted that if the observations, which had been made by the learned Motor Accidents Claims Tribunal, while recording its findings for rejecting the claim by the impugned award dated 29.07.2011, are taken into consideration, the entire issue would boil down on the determination of an aspect, confined to, as to whether at all the claimants would fall, to be the 'legal representatives', of the deceased or not! He elaborated on the said issue, that though irrespective of the relationship which the claimants enjoyed with the deceased late Mr. Harpal Singh, in view of the fact, that since the Motor Vehicles Act, does not specifically deals with as to who could be brought within the ambit and scope of dependents upto what extent, it can be expanded to considered, and as to who would be the "legal representatives", the learned counsel for the appellant had argued the matter in the context of the definition of "legal representative", as it has been provided in the Code of Civil Procedure, as contained in the definition under sub Section (11) of Section 2 of the Code of Civil Procedure, which is extracted hereunder:-

Section 2 (11). "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles 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;

15. The argument of the learned counsel for the petitioner is that so far as the view taken by the learned Motor Accidents Claims Tribunal, to reject the claim petition on the ground, that the claimants would not fall to be the dependents and the legal representatives of the deceased, has been answered in the context of the definition given of legal representative under sub Section (11) of Section 2 of the Code of Civil Procedure. In support thereto, the learned counsel for the petitioner had made reference too, that while deciding issue No. 3, the interpretation, which has been given by the learned Motor Accidents Claims Tribunal, to oust the present claimants from being paid with the compensation, as a consequence of the death of late Mr. Harpal Singh, there are few aspects, which are and which were required to be considered in the light of the various ratios laid down by the different High Courts of the country, where the implications of the legal representative, as provided under sub Section (11) of Section 2, of the Code of Civil Procedure has been made applicable over the proceedings which are held under Section 166 to be read with Section 140 of the Motor Vehicles Act of 1988.

16. The Hon'ble Madras High Court, in a judgement reported in AIR 2011 MADRAS 118, The Managing Director, Tamil Nadu State Transport Corporation Ltd. Vs. M. Shanthi & Ors., has determined this aspect, as to what impact and implications the legal representatives would carry and the claim petition, which had been preferred in that case was by the married son or daughter, since they fall to be within the class of heirs of the deceased, the Court has observed, that they would be treated, as to be the legal representatives in the light of the provisions contained under the Code of Civil Procedure, because, it is an inevitable conclusion and since it was not rebutted by the insurance company, in these proceedings which were held before the Court below the question was held to be answered in favour of the claimants, who would fall to be within the definition of the legal representative, in relation to the claim which was held to be paid to the married sisters. The relevant part of the judgement, dealing with the impact as to what would be the exact meaning of legal representation read in connection to the proceedings which are held under the Motor Vehicles Act, has been dealt with in para 22, which is extracted hereunder:-

"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 9 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."

17. The Hon'ble Chhattisgarh High Court too, in a judgment as reported in AIR 2011 Chhatisgarh 22, Heeralal Giri Vs. Ramratan & Others, had an occasion to deal with the same principles, as it has been laid down by the Hon'ble Madras High Court as referred to above, the implications of Section 2(11) of the CPC, was considered in the context of a claim, which was raised therein by the second wife of the deceased, it was contended by the insurance company, that her claim petition would not be tenable, because she cannot be treated as to be a dependent of the deceased. The said principle was considered by the coordinate Bench of the Hon'ble Chhattisgarh High Court, and while recording its finding in para 15 and 16 of the said judgement, the Hon'ble High Court has referred to that in the light of the earlier principles, which had been laid down by the Hon'ble Apex Court, in the judgement reported in AIR 1987 SC 1690, Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, as referred to in its para 7 of the said judgement, Heeralal Giri (Supra), the Court has observed, that the meaning and the 10 term of legal representative under Section 166 of the Motor Vehicles Act, would have the same mean, as defined under Section 2(11) of the CPC and hence, the second wife too, would be brought to be within the ambit of dependent of the deceased to whom the claim of compensation could be awarded for the grant of compensation under the Motor Vehicles Act. The relevant paragraphs of the said judgment are extracted hereunder:-

"7. Shri Prakash Tiwari, learned Counsel appearing for the Appellant would submit that the Appellant's second marriage with deceased Seema Bai was solemnized with the consent of his first wife Smt. Kaushalya Bai and therefore, the Appellant, being legal representative of the deceased, as envisaged under Section 2(11) of Code of Civil Procedure, has right to apply for compensation under Section 166 of the MV Act and though the Appellant is not dependant upon her, is entitled for statutory compensation of Rs. 50,000/- as envisaged under Section 140 of MV Act and thus, the Tribunal has committed gross irregularity in dismissing the claim petition at threshold. In support of his contention, reliance has been placed upon the judgment of Supreme Court in cases of Gujarat State Road Transport Corporation Ahmedabad v. Ramanbhai Prabhatbhai MANU/SC/0469/1987 : AIR 1987 SC 1690 and Smt. Manjuri Bera v. Oriental Insurance Company Ltd. MANU/SC/1978/2007 : 2007 (10) SCC 643.

15. The Supreme Court in case of Shri Manjuri Bera (supra) has held in paras 12, 15 & 19 of its judgment as under:

"12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, the definition contained in Section 2(11) Code of Civil Procedure is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat State Road 11 Transport Corporation v. Ramanbhai Prabhatbhai, a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.

15. Judged in that background where a legal representative who is not dependent files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency, the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs.

19. In the impugned judgment the High Court has correctly drawn a distinction between "right to apply for compensation" and "entitlement to compensation". The High Court has rightly held that even a married daughter is a legal representative and she is certainly entitled to claim compensation. It was further held, on the facts of the present case, that the married daughter was not dependant on her father. She was living with her husband in her husband's house. Therefore, she was not entitled to claim statutory compensation. According to the High Court, the claimant was not dependant on her father's income. Hence, she was not entitled to claim compensation based on "no-fault liability.

16. In view of law laid down by the Supreme Court in the above referred cases, it is now settled that the word "legal representative" occurring in Section 166 of the MV Act, has the same meaning as defined under Section 2(11) of Code of Civil Procedure. Now if we apply the above definition of legal representative who has right to apply for compensation in the facts and circumstances of the present case, it is crystal clear that the Appellant, admittedly was not dependent upon the deceased, is neither a person who in law represents the estate of deceased Seema Bai, nor is a successor in interest of the deceased. Therefore, if the definition of legal representative as provided under Section 2(11) of Code of Civil Procedure is taken in its widest amplitude even then Appellant cannot be termed as a legal representative of the deceased entitled to file claim petition before the Tribunal under the MV Act and thus, the Tribunal has not committed any illegally in dismissing the claim petition."

18. The Full Bench of Patna High Court, in a judgement reported in AIR 2009 PATNA 168, Yogendra Bhagata & Ors. Vs. Pritlal Yadava & Ors. The Full Bench, in the aforesaid matter was dealing with, as to what does the impact of the word used in the definition of legal representative of sub Section (11) of Section 2 of the CPC, where it refers to the word "intermeddlers" its meaning has been expanded and has laid down that even the co-owners or the brothers of the family, would also fall to be within the definition of intermeddlers, as it has been used in the definition of legal representative under sub Section (11) of Section 2 of the CPC. The relevant part of the conclusion which was arrived at by the Full Bench of Patna High Court, it has laid down in its para 25, that intermeddlers will have the same meaning and connotation, as that of being legal representative of the deceased, who meets with the sad demise under the proceedings which were held under the Motor Vehicles Act.

"25. In view of the aforesaid discussions, there is no reason for this Court to depart from the cursus curiae on this matter. Thus, it is held that in an appeal arising out from a decree passed in a suit for obtaining possession by ejecting trespassers, if one of the co-owner-respondents (plaintiffs) dies during the pendency of the appeal then in presence of the other co-owners-plaintiffs, the whole appeal would not abate. Additionally, I also hold that the definition of word "Legal Representative" as provided under Section 2(11) of the Code is inclusive in character and its scope is wide. It is not confined to a preferred class of heirs only but also includes even intermeddlers. In the present case, apart from being co-owners, some of the plaintiffs are brothers also and even if they are Class II heirs, they being intermeddlers to the estate of deceased, in the facts 13 and circumstances of the case, represent him. Therefore, on this account also there is no question of abatement of the entire appeal. Thus, the question referred to the Full Bench stands answered accordingly."

19. In view of the aforesaid, particularly, when the implications of the definition of legal representatives in the matters and context of the Motor Vehicles Act and that too, the findings, which has been recorded therein in the said judgement, in para 19 also, the present claimants who have raised their claim petition on the pretext of being closely related to the deceased as being his sisters-in-law, brother, niece and nephew respectively, they would still be falling to be within the definition of legal representatives, and hence the claim petition ought not to have been rejected merely on the ground, that the dependents since they were having a separate ration card, family register though admittedly they were having the same address, but difference in the documents which were filed in support thereto by the opposite party, the inference cannot be drawn, that merely because of the fact, that the family register and ration card though it falls to be within the ambit of the definition of being a public document, the certified copy of which, was not placed on record, it was not considered by the Court on the ground that the xerox copy cannot be read in evidence, but this Court is of the view that even a separate ration card and the family register that in itself will not oust the claimants from the ambit of definition of legal representative, as it has been provided under sub Section (11) of Section 2 of the Code of Civil Procedure, in the light of the principles laid 14 down by the Full Bench of Patna High Court in Yogendra Bhagata's case (Supra).

20. A Similar view was expressed by the Madhya Pradesh High Court, in a judgement as reported in AIR 2008 Madhya Pradesh 213, Smt. Amna and Anr. Vs. M/s Royal Transport Services & Ors., whereby the Division Bench of the Madhya Pradesh High Court which was ceased with the proceedings, which were emanating from the proceedings, which were being held under Section 166 of the Motor Vehicles Act, the expression 'legal representative' provided therein, since was not defined under the Act, the Division Bench of the Madhya Pradesh High Court in paragraphs 7, 8 and 9 of the aforesaid judgement has held, that even the brother of the deceased can still be considered, as to be a legal representative and would be entitled to seek a compensation thus a restricted view of the legal representative would not be extracted to be made applicable to the detriment of the dependents of the deceased to claim the compensation under the motor vehicles act.

"7. Before considering the claim of the appellants for enhancement of the compensation we deem it proper to consider the cross objection raised by the Insurance Company with regard to entitlement of appellant No. 2 in claiming the compensation. The term legal representative is not defined in the Motor Vehicles Act, however, it is contemplated under Section 166(1)(c) of the Motor Vehicles Act that all or any of the legal representative of the deceased are entitled to compensation. Section 166 of the Motor Vehicles Act. deals with filing of application for compensation and it is stipulated therein that application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 can be made by a person who has sustained injuries or by the owner of the property or in cases where the death has 15 resulted from the accident by all or any of the legal representatives of the deceased. Even though the term legal representative appearing in Clause (c) of Section 166(1) is not defined in the Motor Vehicles Act but the same is defined under Section 2(11) of CPC to mean 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 capacity, the person on whom the estate devolves on the death of the party so suing or sued.

8. In the case of Manjuri Bera (supra) reliance is placed on a judgment earlier rendered in the case of Gujarat State Road Transport Corporation Ahmedabad (supra) and it is held that for the purpose of the Motor Vehicles Act a legal representative is one who suffers on account of death of a person due to a motor vehicle accident. It is emphasized that the said person need not necessarily be a wife, husband, parent or child. It is held by the Supreme Court that the right to file a claim application has to be considered in the back ground of the right to entitlement. After taking note of the observation made in the case of Gujarat State Road Transport Corporation Ahmedabad (supra) and another judgment in the case of custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique MANU/SC/0149/1989 : [1989]2SCR810 it is observed that a legal representative is one who suffers on account of the accident. In the case of Gujarat State Road Transport Corporation Ahmedabad (supra) the question is considered in the light of right to file application for compensation under Section 110(A) of the Motor Vehicles Act as was existing at the relevant time and after considering various provisions it is held by the Supreme Court that a legal representative, entitled to claim compensation under the Motor Vehicles Act need not necessarily be the wife, husband, parent or child of the deceased person. It is held by the Supreme Court in the said case that any other person who suffers because of the accident is a legal representative, it is held in the aforesaid case that the brother of a person who dies in motor accident is entitled to maintain a claim for compensation under Section 110(A) if he is legal representative of the deceased. In para 11 of the aforesaid judgment it is so observed by the Supreme Court:

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. These 16 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 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 amongst the legal application may be filed under Section 110-A have to be done in accordance with well-known principles of law. It is to be remembered that in an Indian family brothers' sisters and brother's children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if bread-winner of the family 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 has been substantially modified by the provision contained in the Motor Vehicles Act in relation to cases arising out of motor vehicles accidents.

(Emphasis supplied) It is therefore, clear from the aforesaid enunciation of law that if the bread winner of the family dies on account of motor accident other person in the family who are dependent upon him entitled to claim compensation. Facts of the present case if evaluated in the back drop of the aforesaid principles indicates that appellant No. 2 Rashid Khan is a handicapped person dependent upon the earning of the deceased. According to PW/1 Amna Bi she had two sons Sajid Khan aged 25 years and Rasid Khan aged 16 years. It is stated by her that her younger son Rasid Khan is physically handicapped, he is unable to perform any work and both Rashid Khan and claimant No. 1 herself were being maintained by Sajid Khan. Even though Rashid Khan appellant No. 2 is not examined but the statement of PW/1 Amna Bi in this regard is not at all challenged by Insurance Company and there is no reason for accepting the statement of PW/1 Amna Khan for holding that her younger son is physically handicapped and was dependent upon her elder son. Accordingly, it has to be held that appellant No. 2 Rasid was dependent upon his elder brother, it was Sajid Khan who was maintaining appellant No. 2 and because of the accident Rasid Khan has suffered adversely on account of death of his brother and therefore, is entitled to seek compensation.

9. While interpreting a provision, the legislative intents and the purpose for which the provision is made 17 have to be given paramount consideration. The Motor Vehicles Act is a beneficiary piece of legislation, enacted for granting compensation to family members of a person who dies in a motor accident, compensation is awarded to the claimants to meet the hardship which falls on the family due to death of the earning member or on whom the family was depended, that being so a provision have to be interpreted in such a manner that the legislation intent advanced, if the restricted interpretation canvassed by Shri S.S. Bansal is applied it would deprive appellant No. 2 from claiming compensation even though the evidence available on record indicates that he was dependent on his brother for his living and due to the accident he is adversely affected. The legislative intents for enacting the Motor Vehicles Act was only to grant compensation and benefits to a person like appellant No. 2 and if the restricted meaning to the word "legal representative" as pleaded by the insurance company is accepted, it would be against the legislative intent, which is impermissible. That being so we hold that Rasid Khan is a legal representative within the meaning of Section 166(1)(c) of the Motor Vehicles Act entitled to file application for compensation and in granting compensation to Rasid Khan, learned Tribunal has not committed any error warranting interference.

Accordingly finding the objection raised by the Insurance Company to be wholly unsustainable, cross-objection filed i.e. I.A. No. 3656/2006 is dismissed."

21. The relevant observations as made in para 7, 8 and 9, as already extracted above, would still bring the claimants therein to be within the ambit of being legal representative as to be within the purview of the definition of legal representative provided under the Code of Civil Procedure.

22. The Hon'ble Apex Court, had also in a judgement as reported 2005 (7) SCC 224, Manovikas Kendra Rehabilitation & Research Institute Vs. Prem Prakash Lodha, though it was under the context of a proceeding, which were being held under the Rent Control Act, but in that case too, there was an occasion, which arose before the 18 Hon'ble Apex Court, to be considered as to what implications the term legal representatives, would have in relation to the proceedings which were held, under the Rent Control Act, whether the legal representatives would include within it to be the representatives, who do not fall even in the chain of succession provided under, the relevant law of succession as applicable to a particular community. It had laid down in its para 3, that the Appellate Court, while exercising its powers under Order 41 Rule 33 of the CPC, and particularly, when it relates to and would have bearing over the proceedings which are held under the welfare legislation, the ambit of legal representatives would be widened enough, where a right accrues to a litigant and a right to sue survives for the purpose of determination of a right, over the subject matter of a litigation before the Court. The relevant observations have been made in para 3, of the aforesaid judgement, which is extracted hereunder:-

"3. Having heard the learned counsel for the parties, we are satisfied that the impugned order of the High Court cannot be sustained. What would be the effect of the death of the landlord on the decree for eviction, passed by two courts below, shall have to be examined by the High Court if it can take note of such subsequent event, but before a decree under appeal may be reversed someone shall have to be heard in support of the decree. The term "legal representative" has been defined in clause (11) of S.2 of the Code of Civil Procedure as meaning a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. The question of abatement would arise only when there is no legal representative. The appellant before us who claims to be donee of the suit property certainly falls within the definition of "legal representative" as noticed hereinabove. The appellant's prayer for being brought on record in place of the deceased respondent in the High Court could not have 19 been denied. Whether the decree under appeal can be sustained or not in view of the subsequent event, would be a question to be examined by the High Court but only after the applicant before it was permitted to be brought on record. We do not express any opinion on that aspect of the issue as the same would be examined by the High Court on its own merits."

23. Though, it was in the context, when the implications of Order 22 Rule 4, was to be read in consonance to the proceedings, which were being held at an appellate stage which was arising out of the Rent Control Case, but then too, the wider principles which had been provided therein was as to what would be the scope of exercising of appellate power, while interpreting the implications of the term legal representative, the same was taken into consideration by the Hon'ble Apex Court, which had brought within it, any person who has got a right to sue or his right is likely to be affected by any adjudication, which is made on merits of the matter hence too, the claimants would fall to be within the definition of the legal representative, as provided under sub Section (11) of Section 2 of the CPC.

24. The Hon'ble Apex Court, in yet another judgement as reported in 2010 (2) SCC 162, Suresh Kumar Bansal Vs. Krishna Bansal and Another, which yet again were the proceeding which was arising out of the rent control matter where, an application for impleadment was the subject matter of consideration, wherein an attempt was made to get a person impleaded in the proceedings which were being held under the Rent Control Act, on the pretext that he claimed himself to be the legatee on the basis of a Will, who intended 20 to represent the interest and the of estates of the deceased testator. The Court held that the legal representative, even in the matters where there is a devolvement of an estate of a deceased, which is the subject matter to be decided in the context of the proceedings which are to be held under the Hindu Succession Act 1956, in the context of the impact of the provisions contained under Sections 6 and 8 of the Rent Control Act, as applicable, the impleadment of legatee of the deceased landlord, who falls to be within the purview of a legal representative under sub Section (11) of Section 2, becomes a necessary party, because his claim has had to be considered on merits where his case is that the rights have devolved upon him under the law of succession as applicable to them, hence, the liberal construction has to be given to the definition of the legal representative as it has been provided under sub Section (11) of Section 2, of the Code of Civil Procedure, as it has been observed in para 20 and 24 of the said judgement, which are extracted hereunder:-

"20. It is now well settled that determination of the question as to who is the legal representatives of the deceased plaintiff or defendant under Order XXII Rule 5 of the Code of Civil Procedure is only for the purposes of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited.

24. For the reasons aforesaid, we are of the view that the High Court as well as the trial Court had acted illegally and with material irregularity in the exercise of their jurisdiction in not impleading not only the natural heirs and legal representatives of the deceased plaintiff but also the appellant who is claiming his impleadment on the basis of an alleged Will of the deceased plaintiff."

25. The Hon'ble Apex Court, in yet another judgement as reported in 1987 (3) SCC 234, Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another. Therein, it was dealing with the matters, which was arising out of the Motor Vehicle Act, where the claim was being considered under Section 110A, to be read with Section 110B of the said Act, and it was an issue which was involved, as to whether the legal representative would include the brother of the deceased, who met with the sad demise on account of an accident, which was the subject matter before the learned Motor Accidents Claims Tribunal. The Hon'ble Apex Court, in the aforesaid judgement, once again, for the purposes of answering the controversial question, as to who would be falling to be within the ambit of the definition of legal representative, has observed that the implications of the same would be drawn on the basis of a definition of legal representative, as it has been provided under the Code of Civil Procedure, for the purposes of determining the entitlement of compensation to be paid to the legal representative and the necessary implications which were laid down to be considered by the Hon'ble Apex Court, it has been observed in para 11 and 13 of the said judgement, which is extracted hereunder:-

"11. 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 22 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 CPC, 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 CPC. 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 persons or person 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. This section in a way is a substitute to the extent indicated above for the provisions of Section 1A of the Fatal Accidents Act, 1855 which provides that "every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased." While the Fatal Accidents Act, 1855 provides that such suit shall be for the benefit of the wife, husband, parent and child of the 23 deceased, Section 110-A(1) of the Act says that the application shall be made on behalf of or for the benefit of the legal representatives of the deceased. A legal representative in a given case need not necessarily be a wife, husband, parent and child. It is further seen from Section 110-B of the Act that the Claims Tribunal is authorised to make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. This provision takes the place of the third paragraph of Section 1A of the Fatal Accidents Act, 1855 which provides that in every such action, the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought. Persons for whose benefit such an application can be made and the manner in which the compensation awarded may be distributed amongst the persons for whose benefit the application is made are dealt with by Section 110-A and Section 110-B of the Act and to that extent the provisions of the Act do supersede the provisions of the Fatal Accidents Act, 1855 in so far as motor vehicles accidents are concerned. 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.

13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its 24 apportionment as required by Section 110B 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. We express our approval of the decision in Megjibhai Khimji Vira and Anr. v. Chaturbhai Taljabhai and Ors., 'supra) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representative of the deceased."

26. The Hon'ble Apex Court in the said judgement, has observed that the determination of compensation which would be payable to the legal representative of the deceased and its apportionment, which was required to be considered under the relevant provisions of the Motor Vehicles Act, will have had to be decided in the context of the devolvement of the ratio of rights to the legal representative falling within the definition of the legal representative as provided under sub Section (11) of Section 2 of the Code of Civil Procedure.

27. Hence, in view of the wider principles laid down by the aforesaid judgements, since the observation, which has been made by the learned Motor Accident Claims Tribunal, in the factual backdrop of the case at hand while rendering the impugned award dated 29th November 2011, and particularly while recording its finding on issue No. 3, on the basis of considering the documentary evidences, pertaining to the 25 separate living of the legal representatives, who had filed the claim petition for the grant of compensation, contending thereof, that since they were the dependents of the deceased, the implications drawn therein while recording its finding on issue No. 3, which was based on the appreciation of evidence, in fact, is contrary to the aforesaid principles which had been laid down by the Hon'ble Apex Court, as to in what manner the claimants whose rights otherwise accrues, because of the dependency and because of the fact that they are falling within the ambit of the definition of legal representatives, as defined under the Code of Civil Procedure, the provisions of the same, which has been made applicable in a proceedings, which are held under the Motor Vehicles Act, because the Motor Vehicles Act itself, does not independently define, as to who would be treated as to be the legal representative for the purposes of deciding a proceeding of claim under Section 166 to be read with Section 140 or for the proceedings under Section 163A.

28. In that eventuality, the findings, which had been recorded on issue No. 3, cannot be sustained, while denying to treat the claimants as to be the legal representative of the deceased, in order to bring them within the ambit of claimants for being awarded with the compensation and in that view of the matter, since the finding on issue number No. 3, for the purposes of rejecting the claim petition by treating the claimants, as to be not to be the dependents of the deceased, is per-se erroneous and contrary to the aforesaid ratios, which has been laid down by the Hon'ble Apex Court, 26 hence, the Appeal from Order is allowed. The impugned award dated 29th July 2011, is hereby quashed. The matter is remitted back to the learned Motor Accidents Claims Tribunal/Additional Judge, Rishikesh, district Dehradun to re-decide, the MAC Case No. 50 of 2008, Smt. Indira Devi and others Vs. Sri Rajeev Singhal and others, on its own merit by treating the claimants as to be the "legal representatives", of the deceased who would be falling under Section 2(11) of the Code of Civil Procedure, for the purposes of determining their dependency based upon the rival of the proceedings and dealing with the contentions and evidences to be led by the parties. The claim petition itself would not be rejected on the ground that since the claimants are not the legal representatives, their claim is not sustainable. The claim petition would be decided on its own merits.

29. The Appeal from Order is, accordingly, allowed.

(Sharad Kumar Sharma, J.) 23.05.2022 Mahinder/

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