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2010 DIGILAW 186 (CHH)

Heeralal Giri v. Ramratan

2010-07-23

N.K.AGARWAL

body2010
ORDER N.K. Agarwal, J. 1. Being aggrieved by the award dated 8-8-2007, passed by the Motor Accident Claims Tribunal, Koriya (Baikunthpur) (for short 'the Tribunal') in Claim Case No. 81/2006, the instant appeal has been filed by the Appellant claiming compensation for the death of deceased Smt. Seema Bai. 2. Brief facts of the case are that, on 16-12-2004, Seema Bai (since deceased), was dashed by the driver of Marshal Jeep bearing registration No. CG-16-3295 by driving the said vehicle rashly and negligently, due to which she succumbed to the injuries sustained in the said accident. 3. The Appellant/claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'MV Act'), claiming Rs. 12,10,000/- as compensation against the driver/owner and insurer of the offending vehicle for the death of deceased in the said accident. 4. The Tribunal on a close scrutiny of the evidence led, material placed and submissions made, held deceased Seema Bai was not legally wedded wife of the Appellant; the Appellant not being legal representative of the deceased; nor the Appellant was dependent upon her, is not entitled to file claim petition under Section 166 of the MV Act, and dismissed the claim petition. 5. The fact that deceased Seema Bai was not legally married wife of the Appellant is not in dispute. Admittedly, one Kaushalya Bai is the legally wedded wife residing with the Appellant. It is also not in dispute that the Appellant was not dependant upon the deceased. 6. As per Section 5(i) of Hindu Marriage Act, 1955, a marriage may be solemnized between any two Hindus if neither party has a spouse living at the time of marriage. As per Section 11, any marriage solemnized after commencement of this Act shall be null & void if it contravenes the conditions specified in Clause (i) of Section 5. In view of above, the deceased cannot be termed as wife of the Appellant and the Appellant is not a person who in law will be successor in interest of the deceased. 7. In view of above, the deceased cannot be termed as wife of the Appellant and the Appellant is not a person who in law will be successor in interest of the deceased. 7. Shri Prakash Tiwari, learned Counsel appearing for the Appellant would submit that the Appellant's second marriage with deceased Seema Bai was solemnized with the consent of his first wife Smt. Kaushalya Bai and therefore, the Appellant, being legal representative of the deceased, as envisaged under Section 2(11) of Code of Civil Procedure, has right to apply for compensation under Section 166 of the MV Act and though the Appellant is not dependant upon her, is entitled for statutory compensation of Rs. 50,000/- as envisaged under Section 140 of MV Act and thus, the Tribunal has committed gross irregularity in dismissing the claim petition at threshold. In support of his contention, reliance has been placed upon the judgment of Supreme Court in cases of Gujarat State Road Transport Corporation Ahmedabad v. Ramanbhai Prabhatbhai AIR 1987 SC 1690 and Smt. Manjuri Bera v. Oriental Insurance Company Ltd. 2007 (10) SCC 643. 8. On the other hand, learned Counsel appearing for the Respondents supported the order passed by the Tribunal and submitted that the Appellant is not legal representative of the deceased, also was not dependant upon her, has no right to apply for compensation. The Tribunal has rightly held the application for compensation as not maintainable after considering the case law cited by the counsel for the Appellant and the award passed by the Tribunal deserves to be upheld. 9. I have heard the counsel appearing for the parties, perused the order impugned and records of the Tribunal. 10. The question involved in this case is whether a person whose second wife is killed in a motor accident can claim compensation in a proceeding instituted before the Claims Tribunal established under the provisions of MV Act. 11. Under Section 166 of the MV Act, an application for compensation arising out of an accident of the nature specified in Sub-section (i) of Section 165 may be made where death has resulted from the accident by all or any of the legal representative of the deceased. 11. Under Section 166 of the MV Act, an application for compensation arising out of an accident of the nature specified in Sub-section (i) of Section 165 may be made where death has resulted from the accident by all or any of the legal representative of the deceased. As per proviso to Sub-section (i) of Section 166 where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or 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. 12. Section 168 of MV Act reads as under: 168. Award of the Claims Tribunal- (1) On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. (3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct. 13. According to Section 2(11) of Code of Civil Procedure "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 the 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). The term legal representative has not been defined in the Motor Vehicles Act. 14. The Supreme Court in case of Gujarat State Road Transport Corporation Ahmedabad AIR 1987 SC 1690 (supra), while considering Sections 110A to 110F of the MV Act, 1939, had held in para 11 of its judgment as under: 11. We feel 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 110A to 110F 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 110B 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 110A of the Act have to be done in accordance with well-known principles of law. 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 110A 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 some times 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 v. 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 110A of the Act if he is a legal representative of the deceased. 15. The Supreme Court in case of Shri Manjuri Bera (supra) has held in paras 12, 15 & 19 of its judgment 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) Code of Civil Procedure 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 State Road Transport Corporation 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. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat State Road Transport Corporation 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. Judged in that background where a legal representative who is not dependent files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency, the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. 19. In the impugned judgment the High Court has correctly drawn a distinction between "right to apply for compensation" and "entitlement to compensation". The High Court has rightly held that even a married daughter is a legal representative and she is certainly entitled to claim compensation. It was further held, on the facts of the present case, that the married daughter was not dependant on her father. She was living with her husband in her husband's house. Therefore, she was not entitled to claim statutory compensation. According to the High Court, the claimant was not dependant on her father's income. Hence, she was not entitled to claim compensation based on "no-fault liability. 16. In view of law laid down by the Supreme Court in the above referred cases, it is now settled that the word "legal representative" occurring in Section 166 of the MV Act, has the same meaning as defined under Section 2(11) of Code of Civil Procedure. Now if we apply the above definition of legal representative who has right to apply for compensation in the facts and circumstances of the present case, it is crystal clear that the Appellant, admittedly was not dependent upon the deceased, is neither a person who in law represents the estate of deceased Seema Bai, nor is a successor in interest of the deceased. Therefore, if the definition of legal representative as provided under Section 2(11) of Code of Civil Procedure is taken in its widest amplitude even then Appellant cannot be termed as a legal representative of the deceased entitled to file claim petition before the Tribunal under the MV Act and thus, the Tribunal has not committed any illegally in dismissing the claim petition. 17. In view of foregoing, I do not find any substance in the appeal preferred by the Appellant. The appeal being devoid of substance is liable to be and is hereby dismissed. 18. No order as to costs.