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Andhra High Court · body

2006 DIGILAW 963 (AP)

Nylapally Narayana v. Brahmanapally Sarojini

2006-08-11

C.V.RAMULU

body2006
ORDER In all these revisions, common questions of law and fact arise for consideration; therefore, they are being disposed of by this common Order. 2. Petitioner and respondents are common in all the revisions. It appears that the husband of the 1st respondent (late B. Ramulu) obtained hand loans from the petitioner herein by way of executing promissory notes. The husband of the 1st respondent died in a motor accident. However, on the basis of the said promissory notes, suits were laid against the respondents and they were decreed. In the meanwhile, O.P.No.443 of 2001 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Nizamabad filed by the respondents claiming compensation for the death of late Ramulu was allowed and an Award was passed for Rs.6,50,000/- along with interest thereon. Since the suits were decreed, the petitioner filed Execution Petitions and sought for attachment of the amount awarded inO.P.No.4430f2001, but they were rejected by a docket Order dated 31-8-2005, which reads as under: "The decree in O.S. was granted against the estate of the deceased late B. Ramulu. As per the citation enclosed, the decree in that case is against a person i.e. Personal Decree, whereas in the present case it is not a personal decree. My predecessor has also taken an objection on this ground earlier. Since the decree granted by M.V.O.P. does not fall under the estate of the deceased late B. Ramulu and it has been granted for the benefit of the legal heirs of the deceased, the attachment as prayed for cannot be allowed. The petition is, therefore, rejected". Aggrieved by the said Order, the present Civil Revision Petitions are filed. 3. Learned counsel for the petitioner states that the amount lying to the credit of O.P.No.443 of 2001 falls under the estate of the deceased and it was not granted for the benefit of the legal heirs of the deceased i.e. the respondents; therefore, it can be attached. Thus, the only question that falls for consideration, in all these revisions, is whether the amount of compensation awarded in respect of the respondents in O.P.No.443 of 2001 can be called as estate of the deceased and the same can be subjected to execution proceedings i.e. for attachment etc. Thus, the only question that falls for consideration, in all these revisions, is whether the amount of compensation awarded in respect of the respondents in O.P.No.443 of 2001 can be called as estate of the deceased and the same can be subjected to execution proceedings i.e. for attachment etc. Learned counsel also contended that there is no distinction between loss of estate and loss of dependency when the persons claiming are one and the same. In this regard, he sought to make a comparison of the provisions of the Fatal Accidents Act and the Motor Vehicles Act and submitted that the loss of dependency under the Motor Vehicles Act is nothing but loss of estate as contemplated under the Fatal Accidents Act and they are words, synonymous in nature. Therefore, a purposive interpretation should be given to these words. In support of his contention, he relied upon the Judgments reported in Gobald Motor Service v. Veluswamt and Chadalavada Gayathri v. Tallapaneni Narayya2. 4. In Gobald Motor Service1 the Apex Court observed as under: "11......The principle in its application to the Indian Act has been clearly and succinctly stated by a Division Bench of the Lahore High Court in Secretary of State V. Gokal Chand, ILR 6 Lah 451: (AIR 1925 Lah 636). In that case, Sir Shadi Lal, C.J., observed at p. 453 (of ILR Lah.): (at p. 636 of AIR) thus: "The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate." An illustration may clarify the position. X is the income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependants (we will ignore the other expenditure incurred by him). X-Y, i.e., Z, is the amount he saves every year. The capitalized value of the income spent on the dependants, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. X-Y, i.e., Z, is the amount he saves every year. The capitalized value of the income spent on the dependants, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are, the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under S.1 representing the amount that the deceased would have spent to them, if alive, to that extent there should be deduction in their claim under S.2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under S.1 they got capitalised value of Y, under S.2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be he capitalised value of his entire income." 5. In Chadalavada Gayathris case (2 supra) it was held by this Court that Section 60 of the Civil Procedure Code does not prohibit attachment and realization of the amount under a money decree. In the said case, the amount was already attached by the Court in E.P.No.114/87; therefore, it was held that the E.P., which was filed for payment of the amount was perfectly sustainable and justified and there was no endorsement on the receipt or with reference to the said amount that it is not liable for attachment. On the other hand, attachment was effected insofar as the amount therein is concerned. 6. Insofar as the Judgment reported in Gobald Motor Service (1 supra) is concerned, as noticed above, it deals with and holds that if a person taking benefit under both sections i.e. Sections 1 and 2 of the Fatal Accidents Act is the same, he cannot be permitted to take twice over the same. 6. Insofar as the Judgment reported in Gobald Motor Service (1 supra) is concerned, as noticed above, it deals with and holds that if a person taking benefit under both sections i.e. Sections 1 and 2 of the Fatal Accidents Act is the same, he cannot be permitted to take twice over the same. In awarding damages under both the heads, there shall not be duplication of the same claim, i.e., if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under Section 1 of the Act, that portion shall be excluded in giving compensation under Section 2 of the said Act. The case on hand is not one such case to say that the entire amount of compensation awarded in O.P.No.443 of 2001 is the estate of the deceased. Loss to the estate of the deceased is altogether different from that of loss of the estate. When compensation under the Motor Vehicles Act is awarded, it is not an estate of the deceased; therefore, the provisions of Section 60 of the Civil Procedure Code prohibit attachment of such amount while executing the decree passed by a civil Court. It is not the case of the petitioner that a certain portion of the amount of compensation awarded has been identified as loss caused to the estate of the deceased. Therefore, the amount of compensation awarded in O.P.No.443 of 2001 cannot be called to be estate of the deceased for being subjected to attachment in the execution proceedings. In this regard, it may be necessary to notice the Judgment of a Division Bench of the Kerala High Court reported in Kumaran v. Mohammed Khader3 wherein it was held as under: "8. The exemption from attachment applies only to the compensation awarded for the pecuniary loss sustained by defendant Nos.2 to 7. Regarding the amounts awarded towards loss of the estate this principle is not applicable. In other words, whatever compensation awarded towards the loss of the estate of the deceased is liable to be proceeded against debts due by the deceased. Counsel for respondents would point out that an amount of Rs.5,000/- was claimed by way of damages to the vehicle and this amount represents loss to the estate. A total amount of RS.1,50,000/- is seen awarded as compensation. Counsel for respondents would point out that an amount of Rs.5,000/- was claimed by way of damages to the vehicle and this amount represents loss to the estate. A total amount of RS.1,50,000/- is seen awarded as compensation. The split up figures under each head do not find a place therein. It is, therefore, argued by the learned counsel for the respondents that the amount claimed by way of damages to the vehicle cannot be separated from the compensation awarded. Anyway an amount of Rs.5,000/-has been claimed under this head and compensation to the tune of Rs.1,50,000/has been awarded by the Tribunal. If that be so, the amount claimed by way of damages to the vehicle is also included in the amount awarded by the Tribunal. This amount of Rs.5,000/- can, therefore, be said to be an amount awarded towards loss to the estate. To that extent, the decree holder can proceed against defendant Nos.2 to 7. For the aforesaid reasons, we dismiss the revision with the observation that the decree holder can proceed against defendant Nos.2 to 7 in respect of the amounts awarded by the Motor Accidents Claims Tribunal only to the extent of Rs.5,000/- which was awarded towards loss to the estate. In other respects the order of the executing court is sustained." 7. In Janaki v. Prabath Finance" it was held by the Madras High Court that on the death of the judgment-debtor in a motor vehicle accident, the amount of compensation awarded by the Accidents Claims Tribunal is payable to his real heirs only and the said amount cannot be said to have been part of the estate of the deceased. It is, therefore, not liable to be attached in execution of the decree against the judgment debtor as asset of the deceased in the hands of his legal representatives. But, when the decree was made personally against one of the legal representatives along with the deceased, the share of the legal representative in the compensation amount would be liable to be attached. But, when the decree was made personally against one of the legal representatives along with the deceased, the share of the legal representative in the compensation amount would be liable to be attached. 8.In Lakshmisagar Reddy v. Controller of Estate Duty, Hyderabad5 a Division Bench of this Court, while examining a question as to whether the amount of compensation paid to the petitioner therein due to the death of her husband in the air crash can be treated as an estate and liable for estate duty, held that (1) the property must be in existence at any time before the death of the deceased, (2) the deceased must have beneficial interest, be it in presenti or contingent, in the property, (3) the deceased must be in possession and control, be it actual, constructive or beneficial, of the property, and (4) the deceased must have power to dispose of such property. Admittedly, the compensation amount paid on the death of the husband of the petitioner therein, cannot be said to be formed part of his estate nor it can be said that he had got any interest in it to dispose of the same. He can dispose of only his property or estate, but he cannot be deemed to have competency to dispose of any property, which did not accrue to him at all and over which he has no right. 9. In the instant cases, the judgments and Decrees in the suits were passed against the estate of late Ramulu in possession and enjoyment of the defendants i.e. respondents herein. Therefore, none of the criteria discussed in the above Judgments is satisfied to treat the compensation awarded in M.V.O.P.No.443 of 2001 as an estate of the deceased. Thus, unless and until the Award and Decree made in O. P. No.443 of 2001 clearly and specifically mention that a portion of the amount has been awarded towards loss of estate of the deceased, the amount awarded in O.P.No.443 of 2001 cannot be treated as an estate of the deceased and cannot be subjected to attachment under Section 60 of the Civil Procedure Code. The analogy drawn by the learned counsel for the petitioner that it is nothing but loss of estate of the deceased as contemplated under the Fatal Accidents Act and as such, purposive interpretation should be given and the award amount be treated as an estate of the deceased cannot be accepted. Since the compensation awarded in O.P.No.443 of 2001 is not against the loss caused to the estate of the deceased, may be, it is an estate of the respondents, but the same cannot be attached in the guise of execution of a decree obtained from a regular civil Court. The Civil Revision Petitions are devoid of merits and are liable to be dismissed. 10. Accordingly, the Civil Revision Petitions are dismissed. There shall be no order as to costs.