STATE OF ORISSA v. KAPIL BISWAL — 1976 DIGILAW 27 (ORI)

JUDGMENT : B.K. Ray, J.—This appeal is against the judgment of the 2nd Motor Accidents Claims Tribunal, Puri, awarding a sum of Rs. 55,182/- towards compensation to the claimants in a claim case under the Motor Vehicles Act (hereinafter called the 'Act') with interest and costs at the instance of the State. As per the direction of the Tribunal, the father of the deceased is to get half of the compensation amount with interest and consolidated costs of Rs. 400/- for himself, on behalf of his father who is the grandfather of the deceased and the mother of the deceased while the wife of the deceased for herself and for her three minor children is to receive the remaining half of the compensation amount with interest thereon with consolidated costs of Rs. 400/-. 2. According to the case of the claimants who are the Respondents in the present appeal, an accident took place on 27.12.72 at about 7.00 p.m. near Alanda Chhak on the Nimapara-Pipili road when the deceased while going on his motor cycle bearing registration No. ORU 938 dashed against the truck ORP 1412 belonging to the Irrigation and Power Department of the State Government, the Appellant. According to the Respondents, the deceased was a political and social worker and Sarpanch of Patasundarpur Gram Panchayat. He had business in timber, food grains, beat and was the proprietor of an opera party. His monthly income was about Rs. 1,000/- to Rs. 1,500/- out of which he was spending about Rs. 5/- per day towards his own expenses and contributing the balance for the maintenance of his family, the Respondents. 3. The case of the Appellant was that the driver of the Government vehicle was not guilty of rashness or negligence. The accident was due solely to the negligence on the part of the deceased in driving the motor cycle and hence the Appellant was not liable to pay any compensation. 4. The Tribunal held that the driver of the truck was guilty of rashness and negligence and on the basis of the evidence adduced on behalf of the Respondents came to the conclusion that the latter were entitled to compensation of Rs. 55,182/- with interest and costs as stated earlier. 4. The Tribunal held that the driver of the truck was guilty of rashness and negligence and on the basis of the evidence adduced on behalf of the Respondents came to the conclusion that the latter were entitled to compensation of Rs. 55,182/- with interest and costs as stated earlier. According to the Tribunal, the mother, father and grandfather of the deceased were together entitled to half of the compensation money and the wife and the three minor children of the deceased were entitled to the remaining half thereof. 5. Learned Additional Government Advocate for the Appellant urges that the award of the Tribunal granting half of the compensation amount to the father, grandfather and mother of the deceased is vitiated in as much as, the father and grandfather are not the legal representatives of the deceased. According to him, u/s 110-A of the Act an application for compensation arising out of an accident where death has resulted from it can only be filed by all or any of the legal representatives of the deceased or by an agent duly authorised by or any of the legal representatives of the deceased. u/s 110-B of the Act, the Claims Tribunal may make an award for compensation on the application u/s 110-A of the Act. Hence the persons who are not the legal representatives of the deceased are not only entitled to maintain an application for compensation, but are not entitled also to any compensation at all. Therefore, it is contended by the learned Additional Government Advocate that the award of half of the amount of Rs. 55,182/- in favour of the father, grandfather and mother of the deceased has to be scaled down. In other words, what is meant is that out of the half of Rs. 55,182/- awarded in favour of the father, grandfather and mother of the deceased, two-third which has to go to the father and grandfather has to be disallowed, because father and grandfather in the presence of the mother, wife and children of the deceased are not the legal representatives. This contention of learned Additional Government Advocate requires careful consideration. 55,182/- awarded in favour of the father, grandfather and mother of the deceased, two-third which has to go to the father and grandfather has to be disallowed, because father and grandfather in the presence of the mother, wife and children of the deceased are not the legal representatives. This contention of learned Additional Government Advocate requires careful consideration. True, u/s 110-A of the Act it is only the legal representatives or any one of them of the deceased who has met with death in a motor accident or an agent on behalf of all the legal representatives or any one of them can maintain an application for compensation. But this provision does not mean that the compensation to be awarded under the Act has only to be appropriated by the legal representatives. u/s 110-B of the Act the Claims Tribunal, after holding an enquiry into the claims, may make an award deterring the amount of compensation which appears to it to be just. It has also to specify the persons to whom compensation so fixed shall be paid. There is nothing to show in this section that the words 'person' or 'persons' used therein mean only the legal representative or legal representatives of the deceased. A plain reading of the provision of the section, on the other hand, indicates that the Tribunal, after fixing the compensation payable, has also to specify the person or persons to whom the said sum would be payable according to law. Even in a case where one of the legal representatives of the deceased filed an application u/s 110-A of the Act the Tribunal is competent under sec-110-B of the Act not only to fix the compensation payable but to specify the amount of compensation payable to each of the legal representatives through all of them have not joined in the application. A reference may be made in this connection to the Fatal Accidents Act, 1855. Prior to the commencement of that Act there was no provision under which a suit or an action could be instituted claiming compensation against a person who by his wrongful act, neglect or default has caused the death of another person. A reference may be made in this connection to the Fatal Accidents Act, 1855. Prior to the commencement of that Act there was no provision under which a suit or an action could be instituted claiming compensation against a person who by his wrongful act, neglect or default has caused the death of another person. u/s 1-A of the said Act "whenever the death of a person shall be caused by wrongful act, neglect or default and the act, neglect or default is such as would (if death had not caused) have entitled the party injured to maintain an action and recover damages in respect thereof, the party, who would have been liable if death had not ensued shall be liable to an action or suit for damages, not withstanding the death of the person injured... "and" every such action or suit shall be for 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". This provision clearly shows that in the case of the death of a person as a result of wrongful act, neglect or default on the part of another, the deceased's wife, husband, parent and child can initiate an action or suit for damages against the wrong doer by whose act, neglect or default the death of the deceased was caused. u/s 4 of the said Act the word 'parent' shall include father and mother and grandfather and grandmother. Thus, there can be no doubt that a father and grandfather though not legal representatives of the deceased whose death has been caused in an accident are entitled to damages. The provision contained in the Motor Vehicles Act only lays down the procedural law. As has been pointed out earlier, u/s 110-B of the Act the Tribunal is to apportion the compensation fixed by it amongst the persons who are entitled under the law which, in my opinion, has been laid down in the Fatal Accidents Act. The provision contained in the Motor Vehicles Act only lays down the procedural law. As has been pointed out earlier, u/s 110-B of the Act the Tribunal is to apportion the compensation fixed by it amongst the persons who are entitled under the law which, in my opinion, has been laid down in the Fatal Accidents Act. So, even though the father and grandfather are not the legal representatives of the deceased in the present case, the claim application having been made by the wife and the minor children of the deceased and it having been brought to the notice of the Tribunal that the deceased left behind him not only his wife and minor children but also his father and grandfather, the father and grandfather under the provisions of the Fatal Accidents Act are entitled to compensation. This is what has been done by the Tribunal. So, I do not find anything wrong in the apportionment. The question raised by the learned Additional Government Advocate can also be looked at from another point of view. In the decisions reported in Construction India and Others Vs. Mahindra Pal Singh Ahluwalia and Others, ; Acharya, J. relying upon an earlier decision reported in M. Ayyappan and Another Vs. Moktar Singh and Another, has held that the term 'legal representative' should not be narrowed down to mean only 'the legal heirs': that it must be construed in the context of the provisions of Section 2(11), CPC and the provisions for claim for compensation in the Fatal Accidents Act and that the parents of the deceased would be entitled to make applications for compensation Therefore, in any view of the matter the contention of the learned Additional Government Advocate can be of no avail to him. 6. Learned Additional Government Advocate further urges that there is no evidence for the conclusion of the Tribunal that the deceased at the time of his death was contributing Rs. 40/- to Rs. 50/- per day towards his family expenses and that the Tribunal is not justified in awarding a sum of Rs. 3,000/- towards the Sudhi expenses of the deceased. I have myself gone through the entire evidence which has been adduced by the Respondents before the Tribunal. 40/- to Rs. 50/- per day towards his family expenses and that the Tribunal is not justified in awarding a sum of Rs. 3,000/- towards the Sudhi expenses of the deceased. I have myself gone through the entire evidence which has been adduced by the Respondents before the Tribunal. After going through the evidence I am of the view that the case made out by the Respondents for compensation before the Tribunal is not one without any evidence. The evidence regarding the income of the deceased at the time of his death is practically one sided. In the absence of evidence to the contrary I do not think that the Tribunal is not justified in accepting evidence led by the Respondents. Regarding the award relating to Sudhi ceremony the evidence led by the Respondents has gone practically unchallenged. There is no prohibition in law to grant such compensation when as a matter of fact it has been established by the Respondents that they incurred an expenditure to the extent of Rs. 3,000/- for the Sudhi ceremony of the deceased. 7. Lastly it is urged by the learned Additional Government Advocate that the Tribunal is not justified in coming to a conclusion that it was the driver of the truck who was at fault and that it was due to his negligence the accident occurred resulting in the death of the deceased. Here also, I must say that appreciation of evidence has been correctly done by the Tribunal. The evidence of P.W. 5 may be referred to in this connection. He is the person who was riding on the pillion of the motor cycle at the time of the accident. He saw the light of the truck at a distance of 150 feet and could know from the light that it was a truck which was coming with a high speed. According to the evidence of this witness, the motor cycle which was at that time going at speed of thirty kilometers per hour reduced its speed to five kilometers per hour. The accident occurred when the motor cycle was moving with a speed of five kilometers per hour. The evidence of P.W. 1 discloses that the truck was coming with a high speed. The accident occurred when the motor cycle was moving with a speed of five kilometers per hour. The evidence of P.W. 1 discloses that the truck was coming with a high speed. This being the state of evidence the only inference which could be drawn was that the driver of the truck was rash and negligent and it was on account of bis rashness and negligence the accident occurred. 8. In the result, I do not find any merit in this appeal which is accordingly dismissed. But in the circumstances of the case, parties are to bear their own costs of this suit. The cross objection filed by the Respondents for enhancement of the compensate-awarded by the Tribunal is also without any merit in view of the discussions of the evidence made above. The same is, therefore, dismissed but without costs.