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1991 DIGILAW 71 (MAD)

Pushpam v. Nirmala and another

1991-01-30

VENKATASWAMY

body1991
Judgment :- This civil revision petition is directed against an order dated 10.2.1988 passed the Motor Accidents Claims Tribunal declining to entertain I.A.No.1 of 1987 M.C.O.P.No.110 of 1985, on the file of the Court of Subordinate Judge, Tirunelveli. The I.A was one for bringing on record the petitioner as second petitioner in the M.C.O.P.No.110 of 1985 in view of the death of the first petitioner. 2. The learned Subordinate Judge held: “Counter filed. Heard. Married sister is not a dependant to the injured who is since Hence petition is dismissed.” 3. Against the above order, the present civil revision petition is filed. 4. Mr.Peppin Fernando, learned counsel for the petitioner submitted that the view taken the Court below is contrary to the view of this Court in Thailammal and others V.Mallayya Pillai and others, 1981 A.C.J. 185, as well as the ratio laid down by the Supreme Court in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another, 1987A.C.J. 561. According to the learned counsel, the old view that dependants alone can come on record in the place of deceased or injured persons in motor accidents no longer good law in view of the above mentioned Supreme Court judgment. At any according to the learned counsel for the petitioner, the petitioner will be entitled amount spent by the deceased towards hospital expenses and also the expenses connected therewith representing the estate of the deceased. 5. Mrs.Bhagirathi Narayanan, learned counsel appearing for the 2nd respondent Company, submitted that a perusal of the affidavit filed in support of the application clearly show that the petitioner was not at all benefited during the lifetime of the deceased brother and there is nothing to show that the deceased brother gave anything to petitioner during his life-time. Therefore, even according to the judgment of the Supreme Court, (which was with reference to a death in a motor accident), the petitioner entitled to come on record as second petitioner to pursue the claim petition. The learned counsel also pointed out that the present case is one of injury and there is no evidence the death pending disposal of the M.C.O.P. was due to the injury sustained in the accident. 6. I have considered the rival submissions. It is common ground that the first petitioner sustained injury in the accident that took place on 31.3.1984 at about 1.30 AM. 6. I have considered the rival submissions. It is common ground that the first petitioner sustained injury in the accident that took place on 31.3.1984 at about 1.30 AM. Arasankulam South off Arasankulam on the Kayathar-Tirunelveli Main Road. 7. The deceased first petitioner filed M.C.O.P.No.110 of 1985, on the file of the Accidents Claims Tribunal (Principal Sub-Judge), Tirunelveli, claiming a sum of Rs.20,000 towards compensation for the injuries sustained by him. It is also common ground pending disposal of the said M.C.O.P., he died, but not due to the injuries sustained accident in question. After the death, the petitioner, as the sister of the deceased petitioner, filed an application to come on record as second petitioner and to continue proceedings. The Court below dismissed the application. In more or less identical circumstances, V.Ramaswami, J., as he then was, in Thailammal and others v. A.V.Mallayya Pillai and others, 1981 A.C.J. 185, after noticing a Division Bench judgment of this Court C.P.Kandaswami v. Mariappa Stores, 1974 A.C.J. 362, held that “by introducing Sec.ll0 the Motor Vehicles Act, the Parliament intended not to restrict the statutory right to 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 representatives where death has resulted from the accident. This was an exception to the general principle” actio personalis moritur 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. 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.” The learned Judge further distinguished the Division Bench Case, C.P.Kandaswami v. Mariappa Stores, 1974 A.C.J. 362, on facts. 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.” The learned Judge further distinguished the Division Bench Case, C.P.Kandaswami v. Mariappa Stores, 1974 A.C.J. 362, on facts. The learned Judge ultimately held, “Even on the 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 succeeded by his legal representatives.” In Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhabhai, (1987)2 A.C.J. 561, the Supreme Court has elaborately considered the expression ‘legal representatives’ in Sec. 110-A of the Act. After noticing the divergent views of the various High Courts, the Supreme Court has follows: "Clauses (b) and (c) of Sub-sec(1) of Sec.110-A of the Act provide that an application compensation arising out of an accident may be made where death has resulted accident by all or any of the legal representatives to the deceased or by any agent authorised by all or any of the legal representatives of the deceased. The proviso to (1) of Sec.110-A provides that where all the legal representatives of the deceased joined in any such application for compensation, the application shall be made on behalf 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 representatives’ has not been defined in the Act. Sec.2(11) of the Code Procedure, 1908 defines legal representatives’ as a person who in law represents the of a deceased person and includes any person who intermeddles with the estate deceased and where a party sues or is sued in a representative character the person whom the estate devolves on the death of the party so suing or sued. The above no doubt, in terms does not apply to a case before the Claims Tribunal but it has stated that even in ordinary parlance the said expression is understood almost in the way in which it is defined in the Code of Civil Procedure. The above no doubt, in terms does not apply to a case before the Claims Tribunal but it has stated that even in ordinary parlance the said expression is understood almost in the way in which it is defined in the Code of Civil Procedure. A legal representative means a person who in law represents the estate of a deceased person or a person the estate devolves on the death of an individual, Clause (b) of Sub-sec.(1) of Sec.110 the Act authorises all or any of the legal representatives of the deceased to application for compensation before the Claims Tribunal for the death of the deceased account of a motor vehicle accident and clause (c) of that sub-section authorises any duly authorised by all of any of the legal representatives of the deceased to make proviso to Sub-sea(1) of Sec.110-A of the Act appears to be of some significance. It that the application for compensation shall be made on behalf of or for the benefit legal representatives of the deceased. Sec.110-A(1) of the Act thus expressly states an application for compensation may be made by the legal representatives of the or their agent and (ii) that such application shall be made on behalf of or for the all the legal representatives. Both the person or persons who can make an application compensation and the person for whose benefit such application can be made indicated in Sec.110-A of the Act. This section in a way is a substitute to the extent above for the provisions of Sec.l-A of the Fatal Accidents Act, 1855, which provides "every such action or suit shall be for the benefit of the wife, husband, parent and any, of the person whose death shall have been so caused, and shall be brought by the name of the executor, administrator or representatives of the person deceased." the Fatal Accidents Act, 1855 provides that such suit shall be for the benefit of husband, parent and child of the deceased, Sec110-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 legal representative in a given case need not necessarily be a wife, husband, parent child. It is further seen from Sec.110-B of the Act that the Claims Tribunal is authorized make an award determining the amount of compensation which appears to it to be specifying the person or persons to whom compensation shall be paid. This provision the place of the third paragraph of Sec.l-A of the Fatal Accident Act, 1855 which that in every such section, the court may give such damages as it may think proportioned the loss resulting from such death to the parties respectively, for whom and for benefit such action shall be brought Persons for whose benefit such an application made and the manner in which the compensation awarded may be distributed amongst persons for whose benefit the application is made are dealt with by Sec110-A and of the Act and to that extent the provisions of the Act do supersede the provisions Fatal Accidents Act, 1855 in so far as motor vehicle accidents are concerned. These provisions not merely procedural provisions. They substantively affect the rights of the parties. As right of action created by the Fatal Accidents Act, 1855 was "now in its species, now in principles, in every way now" the right given to the legal representatives under the Act file an application for compensation for death due to a motor vehicle Accident is equally new and an enlarged one. This new right cannot 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. We feel that the view taken by the Gujarat High Court is in consonance with the principles 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 Secs.110-A to 110-F of the Act. These provisions are in consonance with the principles law of torts that every injury must have a remedy. It is for the Motor Accidents Claims Tribunal to determine the compensation which appears to it to be just as provided Sec.110-B of the Act and to specify the person or persons to whom compensation shall paid. These provisions are in consonance with the principles law of torts that every injury must have a remedy. It is for the Motor Accidents Claims Tribunal to determine the compensation which appears to it to be just as provided Sec.110-B of the Act and to specify the person or persons to whom compensation shall paid. The determination of the compensation payable and its apportionment as required Sec.110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Sec110-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 and sometimes foster children live together and they are dependent upon the bread of the family and if the bread-winner is killed on account of a motor vehicle accident, there 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 vehicle accidents. We express our approval of the decision in Megjibai Khimji Vvra v. Chaturbhai Teljabhai, 1977A.C.J. 253, (Gujarat) and hold that the brother of a person who dies in a motor vehicle Occident entitled to maintain a petition under Sec 110-A of the Act if he is a legal representative of deceased." [Paras 10 and 12] In the light of the principles laid down in the above two judgments, I am of the view that decisions cited by the learned counsel for the second respondent, namely, M/s. Videowala Union of India, (1986)2 M.L.J 345 and Kandaswami v. Mariappa Stores, 86L.W. 667:1981 A.C.J. 189, cannot be pressed into service. I am further of the view that the question 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 two different issues. Merely because they are brought on record, that does not automatically entitle 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. Merely because they are brought on record, that does not automatically entitle 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 entitled to continue the proceedings and it is for the Court below to decide whether petitioner is entitled to compensation at all, and if so, how much in the light of the principles laid down in Thailammal and others v. A.V.Mallayya Pillai and others, 1981 A.C.J. 189, other cases. 8. In the result, the civil revision petition is allowed. There will be no order as to costs. V.K ---- Petition allowed.