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2010 DIGILAW 3283 (MAD)

Sarayu v. Surendra Vithal Nazare

2010-08-03

M.Y.EQBAL, T.S.SIVAGNANAM

body2010
Judgment :- M.Y. Eqbal, Chief Justice. 1. This Appeal by the Claimants-Appellants is directed against the judgment and award passed by the Motor Accidents Claims Tribunal, Salem in M.C.O.P. No.553 of 1999, whereby a consolidated amount of Rs.80,000/-has been awarded as compensation in favour of 2nd and 3rd Petitioners viz., the 2nd and 3rd Respondent herein, who are the mother and father of the deceased. 2. The facts of the case lie in a narrow compass. The Appellants filed the Claim Petition for the grant of compensation on account of death one Babu Shankar while he was traveling in a Tata Sierra Car bearing Registration No.TN-01-K4878 from Salem to Bangalore along with his friends. The 1st Appellant was the wife and the 2nd and 3rd Appellants are the parents of the deceased Babu Shankar. When the Car was proceeding on Krishnagiri-Hosur National Highway at Guruparapalli Junction Road near the bridge at Bharatha Koil a Lorry bearing Registration No.KA-01-A7254 came in the opposite direction driven by its driver in a rash and negligent manner dashed against the Car in which the deceased Babu Shankar was traveling. Due to the said impact the car was badly damaged and it fell in the slope of 20 ft. and the said Babu Shankar died instantaneously due to the severe injuries sustained by him. The deceased was 25 years at the time of his death. He was the full time Director of Sambandam Spinning Mills Limited and working partner in Parameswari Textiles. The Claimants’ case was that the deceased was drawing a salary of Rs.30,000/-per month from Sambandam Spinning Mills Limited. He was also allowed to the medical benefit to the extent of Rs.30,000/-per annum apart from other benefits. The Claimants’ further case was that the deceased Babu Shankar studied M.B.A. degree in United States of America and he was an able administrator. 3. The Claimants’ case was contested only by the 2nd Respondent-Insurer of the lorry. The Respondent-Insurer denied the occurrence of the accident in the manner alleged by the Claimants. It is alleged by the 2nd Respondent-Insurance Company that the driver of the Tata Sierra Car was driving the Car rashly and negligently and caused the accident. Various other defences were also taken by the Insurance Company. 4. The Respondent-Insurer denied the occurrence of the accident in the manner alleged by the Claimants. It is alleged by the 2nd Respondent-Insurance Company that the driver of the Tata Sierra Car was driving the Car rashly and negligently and caused the accident. Various other defences were also taken by the Insurance Company. 4. The Tribunal on the basis of the pleadings of the parties formulated the following issues: (1) Whether the accident occurred only due to the rash and negligent driving of the Lorry driver belonging to the First Respondent or it occurred due to the rash and negligent driving of the Car driver belonging to the Third Respondent? (2) If so, to what amount of compensation the Petitioners are entitled to? 5. It is worth mentioning here that the Claimants/Appellants examined three witnesses and produced various documentary evidence, but no oral or documentary evidence was produced on the side of the Respondent. 6. While deciding Issue No.1 the Tribunal came to the conclusion that the accident occurred only due to the rash and negligent driving of the Lorry driver and it could not be due to the negligence of the Car driver. Accordingly, the Lorry owner and the Insurer of the Lorry are liable to pay the compensation. 7. However, while deciding Issue No.2 the Tribunal found that after the death of the deceased Babu Shankar the Claimant No.1-Widow remarried her husband’s brother one Vijay Shankar and now she is residing at Fairlands belonging to Vijay Shankar, who is also a partner of Sambandam Mill. The Tribunal, therefore, held that the Claimant No.1 viz., the 1st Appellant herein is no longer a Legal Representative or dependent of the deceased Babu Shankar in view of her re-marriage with Vijay Shankar. 8. The Tribunal further held that the father of the deceased, who is the 3rd Appellant herein, cannot be a legal heir of the deceased to claim compensation amount as dependant, that too when he is continuing as a Partner in a business concern, and there is no decrease of income from the said Firm. However, the Tribunal awarded a compensation of Rs.25,000/-to the 3rd Appellant-Father towards Loss of Love and Affection. 9. However, the Tribunal awarded a compensation of Rs.25,000/-to the 3rd Appellant-Father towards Loss of Love and Affection. 9. So far as the 2nd Appellant, who is the mother of the deceased is concerned, the Tribunal held that she is a legal heir of the deceased and yet she cannot be construed as if she was depending upon the income of her deceased son for her livelihood. The Tribunal in her case also awarded a sum of Rs.25,000/-for the Loss of Love and Affection towards the deceased. 10. The Tribunal also held that since the Claimants have also claimed compensation towards Shock and Mental Agony, a sum of Rs.30,000/-can be awarded on that head. Consequently, a total sum of Rs.80,000/-was awarded in the said Claim Petition. Hence, this Appeal by the Claimants-Appellants assailing the impugned judgment and award. 11. Perhaps the Tribunal is not fully conversant with the provisions and the aim, object and purpose of the legislation as provided under Section 10-A of the Motor Vehicles Act, 1939 (old Act) now under Section 166 of the Motor Vehicles Act, 1988 (New Act). At the first instance the Tribunal committed serious error of law in holding that since the Appellants were not dependants on the deceased for their livelihood they are not entitled to compensation. Section 166 of the Motor Vehicles Act, 1988 specifically provides that an Application for compensation arising out of an accident can be filed by any of the Legal Representative of the deceased in case of death resulted from such accident. The word “dependent” has not been used in this Section like in Workmen’s Compensation Act. For better appreciation, Section 166 of the Motor Vehicles Act, 1988 is quoted herein below: “166. The word “dependent” has not been used in this Section like in Workmen’s Compensation Act. For better appreciation, Section 166 of the Motor Vehicles Act, 1988 is quoted herein below: “166. Application for compensation – (1) An Application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165, may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the Legal Representatives of the deceased, as the case may be; or (d) by any agent duly authorized by the person injured or all or any of the Legal Representatives of the deceased, as the case may be: .Provided that 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 Respondent to the Application. (2) Every Application under sub-section (1) shall be made, at the option of the Claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the Claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed. Provided that where no claim for compensation under Section 140 is made in such Application, the Application shall contain a separate statement to that effect immediately before the signature of the Applicant. (3) [… … …. …] (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158, as an Application for compensation under this Act.” 12. The word “Legal Representative” as defined in Section 2(11) of the C.P.C. 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. 13. 13. While considering the aforesaid provision, the Supreme Court in the case of Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, 1989 Supp. (2) SCC 275, held that the definition Legal Representative as contained in Section 2(11) of the C.P.C is inclusive in character and is not confined to legal heirs only. 14. In another decision of the Supreme Court in the case of Gujarat SRTC Ramanbhai Prabhatbhai, 1987 (3) SCC 234 , their Lordships have gone to the extent of holding that 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. We, therefore, of the considered opinion that the Tribunal has committed grave error of law in holding that the parents of the deceased are not the Legal Representatives of the deceased to claim compensation amount as dependants. The Tribunal further committed serious illegality in holding that the First Appellant who was the wife of the deceased is also not entitled to any compensation for the reason that after the death of the deceased she remarried her husband’s brother. In our view all the Claimants/Appellants are entitled to compensation on account of death of the deceased in a Car Accident. 16. Now, the question that arises for consideration is that as to how much amount of compensation the Appellants are entitled to in the facts of the present case. 17. So far as the claim made by the First Appellant/First Claimant is concerned, as noticed above, she remarried her husband’s brother, who is also one of the Directors of the Company and after the death of the deceased, he has been running the Company and the First Appellant is living with him as the legally married wife. However, it has not been disputed that the accident took place on 1.6.1998 and the First Appellant remarried the brother of the deceased on 6.9.1999. Therefore, in any view of the matter, she remained the dependant and Legal Representative till 6.9.1999 and for that period she is entitled to compensation. So far as the Second and Third Applicants are concerned, they being admittedly the Legal Representatives of the deceased, both of them are entitled to get compensation. 18. Therefore, in any view of the matter, she remained the dependant and Legal Representative till 6.9.1999 and for that period she is entitled to compensation. So far as the Second and Third Applicants are concerned, they being admittedly the Legal Representatives of the deceased, both of them are entitled to get compensation. 18. Now the only question that falls for our consideration is as to what shall be the quantum of compensation, which will meet the ends of justice. In the Claim Application, the Claimants have claimed compensation under different heads, which read as under: PART-I (a) Loss of Earning (at Rs.6 lakhs per annum of 50 years) … Rs.3,00,00,000 (b) Partial Loss of Earning … Nil (c) Transport to Hospital … Rs.1,000 (d) Extra-nourishment … Nil (e) Damage to the Articles and Clothing (damage to car) … Nil (f) Others … Nil PART-II (g) Compensation for Shock and Mental Agony … Rs. 1,00,000 (h) Compensation for Loss of Love and Affection … Rs. 1,00,000 (i) Compensation for Loss of Consortium … Rs. 1,00,000 Total … Rs. 3,03,01,000 However, they restricted their claim to Rs.2 Crores. 19. So far as the compensation under the head “Shock and Mental Agony” is concerned, the Claimants have claimed a sum of Rs.1 lakh, which according to us, is a reasonable compensation. Under the head of compensation for Loss of Love and Affection, the Claimants have claimed Rs.1 lakh. This may also be awarded as being a reasonable compensation. Similarly, a sum of Rs.1 lakh has been claimed under the head ‘compensation for Loss of Consortium’, which we also think it proper and justified. However, so far as the claim of Rs. 3 Crores towards Loss of Earning is concerned, from the evidence brought on record, indisputably, there has been no decrease in the business of the Company because of the death of the deceased in as much as the same is being looked after by the father and brother of the deceased. But, in any view of the matter, in our considered opinion, a sum of Rs.5 lakhs under the head Loss of Earning shall be a just and reasonable compensation. In total a sum of Rs.8 lakhs should be awarded to the Claimants/Appellants, which according to us, shall be a just and reasonable compensation. 20. But, in any view of the matter, in our considered opinion, a sum of Rs.5 lakhs under the head Loss of Earning shall be a just and reasonable compensation. In total a sum of Rs.8 lakhs should be awarded to the Claimants/Appellants, which according to us, shall be a just and reasonable compensation. 20. We, therefore, allow this Civil Miscellaneous Appeal and enhance the compensation amount from Rs.80,000/-to Rs.8,00,000/-(Rupees eight lakhs only). The aforesaid amount shall carry interest at the rate of 6% from the date of passing of the Award by the Tribunal. Out of the aforesaid compensation of Rs.8 lakhs, Appellants 1 and 2, the ex-wife and mother respectively will get Rs.3 lakhs each and the 3rd Appellant, who is the father, will get Rs.2 lakhs with proportionate interest and costs.