Rajasthan High Court - Jodhpur
N.I.C.Ltd vs Smt.Durga Devi And Ors on 20 November, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 177/2008
N.I.C.Ltd.
----Appellant
Versus
Smt.Durga Devi And Ors.
----Respondent
For Appellant(s) : Mr. Sanjeev Johari assisted by
Mr. Subhankar Johari
For Respondent(s) : Mr. Sanjay Nahar
Mr. Mukesh Patodia
Mr. Manish Pitalia
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment REPORTABLE 20/11/2019
1. With the consent of learned counsel for the parties, the matter has been heard finally.
2. This misc. appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant-Insurance Company claiming the following reliefs:
"It is, therefore, most humbly and respectfully prayed that this Appeal may kindly be allowed, the impugned Judgment/Award dated 06.11.2007 may kindly be set aside, the claim petition of the respondent-claimants may please be dismissed and in the alternative, the final compensation may please be reduced substantially and the Judgment/Award may kindly be modified accordingly.
The costs of the appeal may kindly be awarded in favour of the appellant."
3. An unfortunate accident had happened on 20.11.2003 when deceased Devi Lal was going on his motorcycle towards (Downloaded on 05/06/2021 at 05:11:55 PM) (2 of 12) [CMA-177/2008] Balapura from Bhilwara side, and at that time, was hit by a truck bearing registration No.HR38 F 0985, which was driven on wrong side, and the said collision resulted to serious injuries, to which, Devi Lal succumbed.
4. Learned counsel for the appellant-Insurance Company Mr. Sanjeev Johari has raised an issue that both the claimants are real married sisters of deceased Devi Lal, and thus, are not entitled to be compensated as dependants. Learned counsel for the appellant-Insurance Company further submits that though the Motor Vehicles Act, in Section 166, provides for the right to claim to be available with the legal representatives, unlike Workmen's Compensation Act and Fatal Accident Act, but the learned counsel seeks to make distinction between entitlement to bring the claim and entitlement to get the compensation.
5. To fortify his submissions, learned counsel for the appellant-Insurance Company has relied upon the precedent law laid down by the Hon'ble Apex Court in Manjuri Bera (Smt) Vs. Oriental Insurance Company Ltd & Anr. reported in (2007) 10 Supreme Court Cases 643, in which the Hon'ble Apex Court has dealt with the proposition of legal representative, and particularly, has referred to the distinct terms of right to apply for compensation and entitlement to receive compensation. The relevant portion of the said judgment reads as follows:
"There are several factors which have to be noted. The liability under Section 140 of the Act does not cease because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of (Downloaded on 05/06/2021 at 05:11:55 PM) (3 of 12) [CMA-177/2008] entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency."
6. Learned counsel for the appellant-Insurance Company has further relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Prem (Smt.) Vs. Amar Singh Purmar & Ors. reported in 2006 R.A.R. 380 (Raj.), in which, this Hon'ble Court has justified lumpsum compensation of Rs.50,000/- to a married daughter, looking into her reduced dependency.
7. Learned counsel for the appellant-Insurance Company has also relied upon the judgment rendered by this Court in Karu Bhai & Ors. Vs. Jagdish Chandra & Ors. (S.B. Civil Misc. Appeal No.209/2000) decided on 23.07.2019, in which, this Court while upholding the award already passed by the learned Tribunal on the ground that the brothers were married and living separately, has held that only a limited intervention is required in relation to the dependants.
8. Learned counsel for the appellant-Insurance Company vehemently submits that the facts of the case are such that one sister has even gone to the extent of denying the other sister being in existence and the wife is said to have entered into re- marriage four years prior to death, and therefore, learned counsel seeks quashing of the impugned order.
9. Learned counsel for the appellant-Insurance Company has also mentioned that as per the social circumstances prevailing in the country, the married daughters become dependant on their husband and their families, and are no more dependant upon the parents families.
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10. Learned counsel for the appellant-Insurance Company further submits that in their statements, the sisters have deposed that after making full expenditure on himself, deceased Devi Lal used to pass on rest of the amount for expenses to the sisters. He also points out that social customs required a continuous relationship between the parental family and the married daughter, and thus, they cannot be said to be lesser dependant as far as the such customs are concerned.
11. Per contra, learned counsels for the respondents Mr. Sanjay Nahar, Mr. Mukesh Patodia and counsel assisting on request of this Court, Mr. Manish Pitalia submit that once the intention of the Motor Vehicles Act is to provide to an entitlement to the legal representatives to maintain a claim, then it is imperative to consider the just compensation for such legal representatives.
12. Learned counsels for the respondents further submit that in Indian perspective, even if a girl is married, then also life long support system from the parental house, be it brother or father, remains into existence, and thus, it cannot be mathematically said that the married daughter gets disconnected from her parental family for all support.
13. Learned counsels for the respondents also submit that both the real sisters, even being married, are lawful legal representatives, and thus, were entitled to maintain the claim. They also submit that legal representatives of the deceased are entitled to inherit the property of the deceased as estate, and thus, the loss to them is clearly apparent.
14. In support of their submissions, learned counsels for the respondents have relied upon the precedent law laid down by (Downloaded on 05/06/2021 at 05:11:55 PM) (5 of 12) [CMA-177/2008] the Hon'ble Apex Court in New India Assurance Co. Ltd. Vs. Vinish Jain & Ors. reported in 2018(1) ACTC (SC) 358, in which, the Hon'ble Apex Court has held that even if they were married sons and were having their own income, then at best, 50% deduction was called for, and loss of dependency was to be accordingly concluded. The relevant portion of the said judgment is reproduced hereunder:
"7. This case relates to death of one A.P. Jain. He was 78 years of age. At the time of death, his annual income was assessed at Rs.3,64,500/-. The deduction made for personal expenses at 1/3 is very low keeping in view the fact that the claimants are his two major sons and two granddaughters. The major sons have their own source of income and were not dependent on the deceased and the two granddaughters are primarily dependent on their father and not on their grandfather. We are also of the view that the High Court has erred in granting Rs.50,000/- as loss of love and affection to each of the claimants. The total compensation granted Rs.14,39,980/- along with interest at the rate of 7.5% per annum.
8. We feel that 50% deduction is called for and if this factor is taken into consideration then the loss of dependency is Rs.1,82,250/- and if multiplier of 5 is used, the compensation works out to Rs.9,11,250/-. In addition, the claimants would be entitled to Rs.70,000/- for love and affection and funeral expenses etc. as per the judgment of this Court passed in the case of Pranay Sethi (supra). Accordingly the amount of compensation is reduced to Rs.9,81,250/- along with interest awarded by the Tribunal."
15. Learned counsels for the respondents have further relied upon the precedent law laid down by the Hon'ble Apex Court in Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and another., reported in AIR 1987 Supreme Court 1690, in which, the Hon'ble Apex Court has dealt with at length that other legal representatives, who (Downloaded on 05/06/2021 at 05:11:55 PM) (6 of 12) [CMA-177/2008] suffers on account of death of person due to a motorcycle accident, has to have a remedy for realization of compensation. The relevant portion of the judgment is reproduced hereunder:
"12. 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 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."
16. Learned counsels for the respondents have shown that the Hon'ble Apex Court has gone to the extent of granting compensation to a Society, who was appearing as a legal representative of a deceased in a Motor Vehicle Accident claim, (Downloaded on 05/06/2021 at 05:11:55 PM) (7 of 12) [CMA-177/2008] even when the deceased was one of the Brother of the Society and was not family member or legal representative of the deceased.
17. Reliance has also been placed on Montford Brothers of St. Gabriel & Ors. Vs. United India Ins. & Ors. reported in 2014 (1) ACTC 255, the relevant portion whereof is reproduced hereunder:
"5. One 'Brother' of the Society, namely, Alex Chandy Thomas was a Director-cum-Head master of St. Peter High School and he died in a motor accident on 22.06.1992. The accident was between a Jeep driven by the deceased and a Maruti Gypsy covered by insurance policy issued by the Respondent Insurance Company. At the time of death the deceased was aged 34 years and was drawing monthly salary of Rs. 4,190/-. The claim petition bearing No. 55 of 1992 was filed before M.A.C.T., Aizawl by Appellant No. 2 on being duly authorized by the Appellant No. 1 the society. The owner of the Gypsy vehicle discussed in his written statement that vehicle was duly insured and hence liability, if any, was upon the Insurance Company. The Respondent- Insurance Company also filed a written statement and thereby raised various objections to the claim. But as is clear from the written statement under Annexure P.2 it never raised the issue that since the deceased was a 'Brother' and therefore without any family or heir, the Appellant could not file claim petition for want of locus standi. The issue No. 1 regarding maintainability of claim petition was not pressed by the Respondents. The Tribunal awarded a compensation of Rs. 2,52,000/- in favour of the claimant and against the opposite parties with a direction to the insurer to deposit Rs. 2,27,000/- with the Tribunal as Rs. 25,000/- had already been deposited as interim compensation. The Tribunal also permitted interest at the rate of 12% per annum, but from the date of judgment dated 14.07.1994 passed in MACT case Nos. 55 and 82 of 1992.
8. The only issue noted above requires to look into Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as 'The Act'). Sub-section (1) of Section 166 is relevant for the purpose. It provides thus:(Downloaded on 05/06/2021 at 05:11:55 PM)
(8 of 12) [CMA-177/2008] "166. Application for compensation: (1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person inured or all or any of the legal representatives of the deceased, as the case may be:
Provided 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."
9. The Act does not define the term "legal representative"
but the Tribunal has noted in its judgment and order that Clause (C) of Rule 2 of the Mizoram Motor Accident Claims Tribunal Rules, 1988, defines the term 'legal representative' as having the same meaning as assigned to it in Clause (11) of Section 2 of the Code of Civil Procedure, 1908, which is as follows:
"Section 2(11) 'Legal representative' means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves On the death of the party so suing or sued."
10. From the aforesaid provisions it is clear that in case of death of a person in a motor vehicle accident, right is available to a legal representative of the deceased or the agent of the legal representative to lodge a claim for compensation under the provisions of the Act. The issue as (Downloaded on 05/06/2021 at 05:11:55 PM) (9 of 12) [CMA-177/2008] to who is a legal representative or its agent is basically an issue of fact and may be decided one way or the other dependent upon the facts of a particular case. But as a legal proposition it is undeniable that a person claiming to be a legal representative has the locus to maintain an application for compensation under Section 166 of the Act, either directly or through any agent, subject to result of a dispute raised by the other side on this issue."
18. After hearing learned counsel for the parties at length as well as perusing the record of the case along with the precedent laws cited at the Bar, this Court is of the opinion that the legislative intention of the Motor Vehicles Act in Section 166 is to bring the legal representatives in four corners of right to have compensation. Once, the right to compensation is given by the statute itself, then only thing, which remains to be seen by the Court is the quantum of dependency, for which, standard parameters of deduction have been adopted in the landmark cases in National Insurance Company Limited Vs. Pranay Sethi reported in AIR 2017 SC 5157 and Sarla Verma Vs. Delhi Transport Corporation reported in 2009(2) ACTC (Raj.) 849. The precedent laws cited by both the parties do not bar any compensation to the legal representatives, but merely consider quantification in terms of deduction as an important component of determination of compensation. The precedent law is consistent as far as the rights of the legal representatives are concerned, and also the rights of lesser dependants have been protected by making more deduction.
19. In the present case, the right of sisters as legal representatives is not disputed and the only dispute is pertaining to their dependency, which has been adequately dealt with by the learned Tribunal, by taking into account the statement made by (Downloaded on 05/06/2021 at 05:11:55 PM) (10 of 12) [CMA-177/2008] the sisters that deceased Devi Lal used to give away rest of the amount to the sisters after making expenditure on himself.
20. In the context of Indian Society, if a man is not having any other near relative alive, may it be children, mother, father or wife, then it is not beyond comprehension that a man would pass on his earnings, after having a proper expenditure on himself, to his sisters, may be, even if they are married. The context of married sisters having no financial connection with the parental family, as raised by learned counsel for the appellant-Insurance Company, cannot be accepted in the Indian circumstances, where the family structure gives considerable importance to the sisters and they cannot be denied as being the parties, who are really pained and deprived on account of death of their brother, just because they were married. The statements of the sisters that rest of the amount was passed on to the sisters has not been controverted by the Insurance Company, in the cross examination.
21. This Court is the opinion that Motor Vehicles Act is a beneficial legislation having the main objective to compensate the damages arising out of the use of the motor vehicle. The main analogy behind compensating the damages is completely based on the law of Torts, which takes into consideration every fact and aspect of the incident and have the objective to provide remedy for every single damage whether it is physical, mental or to the property, and this remedy is available to every single person who is affected by the incident whether majorly affected or minutely affect, to extent of such effect. That is the reason, the legislature while enacting this law included every single affected person who are its legal representative(s) of the deceased, any agent duly authorized as well as the owner of the property, to make the (Downloaded on 05/06/2021 at 05:11:55 PM) (11 of 12) [CMA-177/2008] compensation under Section 166 of the Act applicable, so that no affected person is left out to get the compensation. Further, this Section also grants liberty to the legal representative(s) to be impleaded as a party if they were left out while making the application for compensation through its proviso. Thus, it makes clear the intention of the legislature to include every single person affected by the incident so that they can be duly compensated and their position can be retained, as was prior to the incident.
22. This Court also takes note of the fact that, while considering the compensation to the legal representative(s), courts have to make sure that no affected person is left out to get the claim, and this main objective behind this law can be achieved by applying the judicial mind to check whether the applicants or claimants are actually affected or not, whether they are actually dependent or not by taking into consideration every single aspect of the incident. And also, always keeping in mind the exceptional circumstances of dependency because every case and situation is different and straight jacket and fixed formulas may cause impediment in exceptional situations to get justice. Since in the present case, after the death of the person, he is survived by two sisters. These two sisters after the death of their brother has no one to look after them from their parental side, and this situation shows that how much they are affected by that incident. Thus, this is the duty of the Court to do justice with them and to award them the compensation.
23. This Court is the opinion that the estate of the deceased devolving to the legal representatives is also a criteria, which has to be borne in mind; the legal representatives, who shall enjoy such devolved estate, as per the respective law of (Downloaded on 05/06/2021 at 05:11:55 PM) (12 of 12) [CMA-177/2008] succession, is an important criteria prevailing in such circumstances. Since in the present case, two sisters are surviving lone inheritors of the property of the deceased, therefore, they can easily be taken as dependents, and thus, their entitlement for compensation has been rightly carved out.
24. For the aforesaid reasons, no interference is called for in the present misc. appeal and the same is accordingly dismissed. All the pending applications also stand dismissed. Record of the learned Tribunal be sent back forthwith.
(DR. PUSHPENDRA SINGH BHATI),J 43-Zeeshan/-
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