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2005 DIGILAW 3187 (RAJ)

Bugia Devi v. Suresh Kumar

2005-12-02

VINEET KOTHARI

body2005
Judgment Dr. Vineet Kothari, J.-This appeal by the unfortunate parents of the deceased Palaram filed under Section 173 of the Motor Vehicles Act, 1988 is arising in rather queer circumstances. 2. The said Palaram aged 28 years, who was doing the work of tailoring died in an accident on 05.08.1994 when the RSRTC Bus No. RNP - 3189 being driven in a rash and negligent manner by respondent No. 1 one Suresh Kumar, hit the Motor Cycle on which the said Palaram was riding. Motor Cycle No. RRK-3776, which was being driven by the deceased Palaram and his cousin Narsiram was with him at Radhaswami Dera on Rawatsar-Hanumangarh Road. 3. The Tribunal after arriving at the finding of contributory negligence and 70% of that of the said RSRTC bus driver, computed the compensation of Rs. 2,04,000/-and 70% of that being Rs, 1,42,800/ - directed the same to be paid to the widow of the said deceased Palaram, Smt. Tulsi and three sons Vikas aged 8 years, Ravindra 3 years and Bhimraj aged one year at that time. However, the Tribunal curiously enough left out the old parents Bugia Devi W/o Mukh Ram aged 65 years and Mukh Ram S/o Chuni Ram aged 70 years at that time. The Tribunal has not assigned any reason in its impugned order while deciding the issue No. 2 as to why these parents of the deceased Palaram cannot be treated as dependent upon him and why they are not entitled to the compensation when apparently they lost their only son aged 28 years. There is nothing on record either in the statement of witnesses or otherwise that these parents were dependent on any other brother of the said deceased Palaram. On the contrary, from the statement of Mukh Ram - father of the deceased AW-2, it appears that the deceased Palaram was the only son of the said couple. In his statement, he has stated that in his family, only Palaram was the earning member and in the family, there was his wife and three children and two parents mother and father - the present appellants. 4. The compensation in question has been directed to be paid in favour of wife and three sons in the form of Fixed Deposit in Scheduled Bank. However, since nothing was awarded in favour of the parents, they are before this Court. 5. 4. The compensation in question has been directed to be paid in favour of wife and three sons in the form of Fixed Deposit in Scheduled Bank. However, since nothing was awarded in favour of the parents, they are before this Court. 5. Having heard learned Counsel and perusal of the record, it appears that there was no justification for the Tribunal to exclude the parents from the category of dependents of the deceased without any rhyme or reason. The compensation payable under the Motor Vehicles Act is under a beneficial legislation and, therefore, has to be liberally construed and all legal representatives of the deceased who are dependant upon the deceased prior to his death are entitled to compensation and this is the view the Honble Supreme Court laid down in Gujarat State Roadways Transport Corporation vs. Raman Bhai and Prabhat Bhai, reported in AIR 1987 SC 1690 . It would be appropriate to reproduce Para Nos. 10 and 11 of the said Judgment . “10. Amongst the High Courts in India there is a cleavage in the opinion as regards the maintainability of action under Section 110-A of the Act by persons other than the wife, husband, parent and child of the person who dies on account of a motor vehicle accident. All these cases are considered by the High Court of Gujarat in its decision in Megjibhai Khimji Vira vs. Chaturbhai Taljabhai, AIR 1977 Guj 195 (Supra). The first set of cases are those which are referred to in paragraph 5 of the above decision which lay down that every claim application for compensation arising out of a fatal accident would be governed by the substantive provisions in Sections 1-A and 2 of the 1855 Act and no dependent of the deceased other than the wife, husband, parent or child would be entitled to commence an action for damage against the tortfeasors. Amongst these cases are P.B. Kader vs. Thatchamma, AIR 1970 Ker 241 and Dewan Hari Chand vs. Municipal Corpn. of Delhi, AIR 1973 Delhi 67. The second group of cases are those referred to in Para 6 of the decison of the Gujarat High Court. They are Perumal vs. Ellusamy Reddiar, 1974 ACC CJ 182 (Mad) and the Vanguard Insurance Co. Ltd. vs. Hanumantha Rao, 1975 ACC CJ 344 (Andh. Pra). of Delhi, AIR 1973 Delhi 67. The second group of cases are those referred to in Para 6 of the decison of the Gujarat High Court. They are Perumal vs. Ellusamy Reddiar, 1974 ACC CJ 182 (Mad) and the Vanguard Insurance Co. Ltd. vs. Hanumantha Rao, 1975 ACC CJ 344 (Andh. Pra). These cases lay down that while compensation payable under Section 1-A of the Fatal Accidents Act, 1855 is restricted to the relatives of the deceased named therein the compensation payable under Section 2 thereof may be awarded in favour of the representatives of the deceased who are entitled to succeed to the estate of the deceased. The third group of cases are those referred to in Para 7 of the Judgment of the Gujarat High Court. They are Mohmammed Habibullah vs. K. Seethammal, AIR 1967 Mad 123 ; Veena Kumari Kohli vs. Punjab Roadways, 1967 ACC CJ 297 (Punj) and Smt. Ishwari Devi Malik vs. Union of India, AIR 1969 Delhi 183 which take the view that a claim for compensation arising out of the use of a motor vehicle would be exclusively governed by the provisions of Sections 110 to 110-F of the Act and bears no connection to claims under the 1855 Act and Claims Tribunal need not follow the principles laid down under the latter Act. Having considered all the three sets of decisions referred to above. Ahmadi, J. who wrote the Judgment in Megjibhai Khimji Vira vs. Chaturbhai Taljabhai, AIR 1977 Guj 195 , (Supra) came to the conclusion that an application made by the nephews of the deceased who died on account of a motor vehicle accident was clearly maintainable under Section 110-A of the Act. 11. Wefeel 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. 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 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 sometimes 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 vs. Chaturbhai Taljabhai, AIR 1977 Guj 195 , (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.” 6. Thus, unless it was proved on record before the Tribunal that the parents were not depending upon the deceased prior to his death, there was no justification to exclude them from the category of dependents and deny them the benefit of compensation. To this extent, the order of the Tribunal deserves to be modified and the parents of the deceased Palaram -the present two appellants are held entitled to compensation for the death of Palaram in the said accident. 7. To this extent, the order of the Tribunal deserves to be modified and the parents of the deceased Palaram -the present two appellants are held entitled to compensation for the death of Palaram in the said accident. 7. The question, however, arises that whether the compensation already awarded and disbursed in favour of wife and children of the deceased, deserves to be disturbed in order to give some part of it to the parents. Looking to the amount of compensation awarded, it does not appear to be justified to disturb that disbursement of the compensation already awarded, therefore, the way out appears to be to enhance the compensation. Looking to the facts and circumstances of the case and award, such enhanced amount will go in favour of parents only who have been illegally deprived of the said compensation. The powers under Order 41 Rule 33, CPC can be invoked by this Court in appellate jurisdiction. 8. The Tribunal has made deduction of 1/3rd towards personal expenses from average monthly income of Rs. 1,500/-and net income has been taken at Rs. 1,000/-per month. However, no increase in average income has been taken into account taking into account the future prospects of such increase in the income of the deceased, who was merely 28 years of age at the time of the accident. Thus, if the monthly average income for rest of his life which he would have lived is taken at Rs. 2,100/-per month, the compensation computed after making 1/3rd deduction, would work out to Rs. 2,68,800/-(Rs. 1400/-x 12 x 16 ). Going by the finding of 70% negligence of RSRTC Bus Driver, 70% of the said awarded amount would work out to Rs. 1,88,160/-, out of which Rs. 1,42,800/- has already been paid in the account of the wife and the children of the deceased Palaram. Thus, the net enhanced amount payable to the parents would come to Rs. 45,360/-(Rs. 1,88,160 -1,42,800 ). The said enhanced amount would be payable in cash to the parents only alongwith interest @ 12% p.a. from the date of award i.e, 20.05.1999 till the date of payment. The payment already made to the wife and children in the Fixed Deposit shall not be disturbed. However, the enhanced amount shall be paid in cash to the appellants - parents only. The payment already made to the wife and children in the Fixed Deposit shall not be disturbed. However, the enhanced amount shall be paid in cash to the appellants - parents only. The amount of enhancement with interest now found payable to the parents, shall further be subjected to adjustment of the “no fault liability” paid by the RSRTC to these parents also. The balance payment shall be made within one month from today, by the Insurance Company to these parents. 9. With these observations, the appeal is disposed of . No order as to costs.