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Uttarakhand High Court · body

2009 DIGILAW 147 (UTT)

PUSHPA DEVI v. SUSHMA JOSHI

2009-04-01

B.C.KANDPAL

body2009
JUDGMENT By way of this appeal under Section 173 of Motor Vehicles Act, 1988, the appellants-claimants have challenged the judgment and award dated 05.08.2006 passed by Motor Accident Claims Tribunal/District Judge, Tehri Garhwal, in M.A.C.C. No. 17/2005, Smt. Pushpa Devi and another versus Smt. Sushma Joshi and another. 2. Brief facts of the case, as narrated in the claim petition, are that on 18.9.2004 claimants’ son-Suresh Singh was travelling in vehicle bearing No. U.P. 07C-0234 and on account of rash and negligent driving of driver of said vehicle, said vehicle met with an accident near Hulanakhal, in which Suresh Kumar died due to injuries sustained in the accident. The deceased was 25 years of age at the time of his death and he had been working as Patwari and was drawing a salary of Rs. 5,655/- per month. 3. Opposite party no. 1 – Smt. Sushma Devi, owner of vehicle, filed her written statement denying some of the contents of want of knowledge, but admitted the factum of accident of vehicle No. U.P. 07C-0234 on 18-9-2004. It was also been stated that his vehicle was being plied by an expert and authorized driver-Laxman Singh. The accident had taken place on account of sudden technical fault in the accident, in which Rajesh Joshi, husband of opposite party no. 1, also died. It has further been stated that at the time of accident all the papers of vehicle in question were valid and driver was holding valid driving licence. It has also been stated that vehicle was comprehensively insured with opposite party no.2 and therefore liability to pay the compensation is of opposite party no. 2. 4. Opposite party no.2- insurance company filed its written statement denying the, contents of the claim petition and stated that claimants were not dependents on deceased, therefore they are not entitled to get the compensation. It has also been stated that at the time of accident driver of vehicle was not holding valid driving licence, therefore claim petition is not maintainable under the provisions of Section 166 of Motor Vehicles Act. The vehicle in question was being plied in breach of conditions of insurance policy. 5. The learned Tribunal on the basis of pleadings of the parties framed following issues in the claim petition : 1. The vehicle in question was being plied in breach of conditions of insurance policy. 5. The learned Tribunal on the basis of pleadings of the parties framed following issues in the claim petition : 1. Whether the accident in question took place at about 4 p.m. on 18.9.2004 near Hulanakhal Patwari Circle Chanji Tehsil Ghansali of this district due to rash and negligent driving of bus No. U.P. 07C-0234 by its driver causing death of Sri Suresh Singh as alleged? 2. Whether on the basis of alleged accident the driver thereof was not duly licensed and the owner did not possess valid permit and fitness as alleged by OP No. 2 the insurance company in paras no. 5 and 7 respectively of its WS? In any case its effect? 3. To what amount of compensation are the petitioners and other dependents of the deceased if any entitled and from which of the opposite parties? 6. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material evidence available on record and hearing learned counsel for the parties, although assessed the amount of calculation keeping in view the total circumstances of the case as Rs. 3,73,161/- but dismissed the claim petition on the ground that claimants being parent of the deceased are not dependents on deceased, hence they are not entitled for the amount of compensation, vide judgment and award dated 05.08.2006. 7. Feeling aggrieved by the aforesaid impugned judgment and award, the appellants-claimants have preferred the present appeal before this Court. 8. Heard Sri Pankaj Purohit, learned counsel for appellants-claimants, Sri Vipul Painuli, learned counsel for respondent no.1, Sri M.K. Goyal, learned counsel for respondent no. 2 and perused the record. 9. As far as factum of accident is concerned, the Tribunal has discussed this point while deciding issue no. 1 in the claim petition. The Tribunal after having considered the entire evidence adduced before it came to the conclusion that vehicle in question was being plied by its driver rashly and negligently and on account of the same vehicle met with an accident in which Suresh Singh died. I do not find any ground to interfere with the finding recorded by the Tribunal in this regard and same deserves to be confirmed. 10. I do not find any ground to interfere with the finding recorded by the Tribunal in this regard and same deserves to be confirmed. 10. The Tribunal further held that at the time of accident all the papers of vehicle were valid and driver of vehicle was holding valid and effective driving licence. I also do not find any infirmity in the said finding recorded by the Tribunal and same deserves to be confirmed. 11. The Tribunal while deciding the claim petition has also decided issue no. 3 pertaining to amount of compensation to be awarded in favour of the claimants. The Tribunal after considering the age of the deceased as well as the age of the parent (being the deceased unmarried) has assessed the amount of compensation to be awarded as Rs. 3,73,161/-. On the basis of the evidence available on record, I am of the view that amount of compensation calculated by the Tribunal cannot be said to be improper and inadequate. The Tribunal has assessed all the aspects that deceased was unmarried and age of the parent was 52 years and 45 years respectively, accordingly adopted the multiplier of ‘11’ and then calculated the amount of compensation on the basis of final financial dependency of the claimants as Rs. 3,73,161/-. The conclusion drawn by the Tribunal that after the marriage of the deceased, the financial dependency of the claimants, who are the parent, would have been on lesser side. The Tribunal has thus rightly deducted 50% from the total income of the deceased, which, to my mind, cannot be said to be improper. 12. As far as maintainability of the claim petition is concerned, the approach adopted by the Tribunal that claimants being parent of the deceased were not dependents on him, hence they are not entitled to get the amount of compensation, appears to be incorrect. The Tribunal has ignored this aspect that there is distinction between ‘right to apply for compensation’ and ‘entitlement to compensation’. Section 2(11) of C.P.C. provides the definition of ‘legal representative’ which 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 a party so suing or sued. 13. 13. The Hon’ble Apex Court in the case of Manjuri Bera (Smt) vs. Oriental Insurance Company Ltd. and another, reported in (2007) 10 SCC 643, has observed as under : “12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression “legal representative”. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.” 14. The Hon’ble Apex Court further in another case Hafizun Begum (Mrs.) vs. Mohd. Ikaram Heque and others, reported in (2007) 10 SCC 715, has held as follows : “9. In terms of Clause (C) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as the respondents. 11. According to Section 2(11) (of the Code of Civil Procedure, 1908) (in short ‘CPC’), ‘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 a party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g). 12. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g). 12. As observed by this Court in Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression “legal representative”. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.” 15. In view of the aforesaid decisions of the Hon’ble Apex Court it cannot be said by any stretch of imagination that claimants in the instant case being parent of the deceased are not entitled to get the amount of compensation. The claimants being parent of the deceased are the legal representatives in the sense of definition envisaged under Section 2(11) C.P.C. and claimants are the persons who represent the estate of the deceased even without title either as executors or administrators in possession of the estate of the deceased. The claimants are thus covered by the expression “legal representative” who have suffered on account of the death of their son due to a motor vehicle accident. The finding recorded by the Tribunal is perverse and against the law. I am of the view that in the light of the judgments of the Hon’ble Apex Court and in view of the definition given in Section 2(11) of C.P.C. with regard to legal representative, the claimants being legal heirs with regard to estate of the deceased, are entitled for the amount of compensation. 16. For the reasons stated above, I am of the view that appellants-claimants are entitled for a sum of Rs. 3,73,161/- as amount of compensation along with interest of 6% per annum from the date of filing the petition till the date of actual payment. 16. For the reasons stated above, I am of the view that appellants-claimants are entitled for a sum of Rs. 3,73,161/- as amount of compensation along with interest of 6% per annum from the date of filing the petition till the date of actual payment. As the vehicle was insured with respondent no. 2 – The New India Assurance Co. Ltd. On the date of accident, therefore the amount of compensation along with interest indicated in this judgment, shall be paid by the insurance company to the appellants-claimants within a period of two months from the date of this judgment. 17. In the result, appeal succeeds and is partly allowed. The impugned judgment and award is modified to an extent that claimants are entitled to get the amount of compensation along with interest indicated in this judgment. This part of the impugned judgment and award that claimants are not entitled to get the amount of compensation, is set aside.