Judgment (1) THIS is the claimants appeal filed under section 173 of the Motor Vehicles Act for enhancement of compensation awarded to the claimant Gangaram by the Illrd Additional Member Motor Accidents Claims Tribunal, Dhar in Claim Case No. 368/02 on 17-2-2003, awarding a sum of Rs. 3,03,000/- (Rupees Three Lacs Three Thousand only) for the death of his son Santosh. (2) BRIEF facts of the case are that one Santosh s/o Gangaram the present appellant on the date of the incident i.e. 15-10-2001 was travelling on a motorcycle bearing Registration No. M.P.-09-JR-2504 and Pallav Singh aged 12 years was riding as a pillion rider of the motorcycle and as they approached the Indorama temple, when on reaching the village Akoliya, Dhar near the Tea Stall of one Raghuvanshi, at the same time non-applicant No. 2 Rajendra driving a truck bearing Registration No. M.P.09-G-0678 and owned by non-applicant No. 1 Mangilal insured with non-applicant No. 3 Insurance Company, rashly and negligently driving the vehicle, collided against the motorcycle and as a result of which the motorcycle was completely damaged and Santosh received grievous injuries on his head and Pallavsingh received grievous injuries on his right leg which was broken and also on other parts of the body. Both were sent to the Charak Hospital, Indore, where Santosh died during treatment. The legal representatives of deceased Santosh the present appellants, Gangaram and Bharti filed the claim for Rs. 9.18 lakhs, stating that the appellant No. 1 Gangaram was the father and the natural legal representative of Santosh, whereas Ku. Bharti was the niece (married sister's daughter) 12 years old and she was also entitled to the compensation since she was dependent on deceased Santosh and used to stay with Santosh since the grandfather appellant Gangaram was suffering from oral cancer. (3) RESPONDENT No. 1 the driver and respondent No. 2 the owner remained ex-parte, respondent No. 3 insurance company resisted the claim stating that the applicants were not entitled to the compensation and the driver did not have any effective licence on the date of the accident. Moreover, since there was a collision between two vehicles, the insurance company of the motorcycle was not made a party and therefore, part of the contributory negligence could not be established. Moreover, since there was a collision between two vehicles, the insurance company of the motorcycle was not made a party and therefore, part of the contributory negligence could not be established. The Tribunal on considering the claim, however, came to the conclusion that the accident occurred due to the negligence of the driver of the truck, all the respondents are jointly and severally liable to pay the compensation and it was not necessary for the insurance company of the motorcycle to be made a party. The learned Judge of the MACT awarded a compensation only of Rs. 3,03,000/- (Rs. Three Lakhs Three Thousand) only to the claimant/ appellant No. 1 Gangaram in the present case as legal representative of deceased Santosh. This appeal has been filed by the claimants Gangaram and Bharati for enhancement being aggrieved with the meager amount awarded to them and rejection of the claim on behalf of appellant No. 2 Bharti. (4) THE basic question that arises for adjudication in this appeal is whether on the death of Gangaram appellant No. 1 during the pendency of this appeal on 12-2-2005, would entitle his three married daughters to continue the appeal as well as receive the compensation along with appellant No. 2 Bharti and hence in the peculiar facts and circumstances of the case the application (I.A. No. 10402/05) filed on 29-10-2005 requires to be preliminary decided before proceeding with the claim for enhancement. This Court had directed that the application shall be decided at the time of final hearing and is thus being considered first. Counsel for the appellants and legal representatives of deceased Santosh has candidly admitted that none of the sisters had joined the father as legal representatives as claimants of their brother deceased Santosh in the lower Court. However, Counsel also urged that as legal representatives of the now deceased father Gangaram, the married daughters were also entitled to the compensation. (5) COUNSEL for the applicants relied on Gujarat State Road Transport Corporation vs. Ramanbhai Prabhatbhai, 1987 MPLJ (SC) 583 = AIR 1987 SC 1690 to state that the Apex Court held that a brother of a person who is killed in a motor vehicle accident can claim compensation in a proceeding instituted before a Motor Accidents Claims Tribunal. (5) COUNSEL for the applicants relied on Gujarat State Road Transport Corporation vs. Ramanbhai Prabhatbhai, 1987 MPLJ (SC) 583 = AIR 1987 SC 1690 to state that the Apex Court held that a brother of a person who is killed in a motor vehicle accident can claim compensation in a proceeding instituted before a Motor Accidents Claims Tribunal. COUNSEL has further relying on Gopal Synthetics vs. Workmen's Compensation Commissioner, Kota and others, 1995 ACJ 908, COUNSEL contended that Court had held that once a right is crystallised and vests in the dependant, it becomes a civil right and the legal representatives are entitled to step into the shoes of the dependant. The word 'dependant' according to the COUNSEL is to be liberally construed to mean dependant on the deceased and in the said case the mother of the deceased workman and her legal representatives were held entitled to the compensation. Similarly in the case of New India Assurance Co. Ltd. vs. Jasinta Kujur and others 2008 ACJ 1946 the sister-in-law of deceased bachelor who has living with his brother and sister-in-law and giving 2/3rd of his earnings to them, the sister-in-law was held to be the legal representatives of the deceased and entitled to the compensation. COUNSEL has further relied on Ram Sahai and another vs. Rabia Begum and others, 1969 A.C.J. 56, whereby the Delhi High Court held that the provisions regarding abatement would not arise in a case for claim for compensation by mother of the deceased before the MACT since the claim is filed in a representative capacity and the provisions of the Code of Civil Procedure have not been made applicable to the Motor Vehicles Act of 1939. Further COUNSEL also relied on Seetha Lakshmi Krishnan and others vs. Gian Prakash and others, 1993 ACJ 206 whereby the Delhi High Court held that the appeal does not abate due to the death of one of the legal representatives and other legal representatives are entitled to pursue the claim under section 110-A of the Motor Vehicles Act, 1939 or under section 166 of the new Motor Vehicles Act, 1988. COUNSEL has further relied on Sita Devi and another vs. Shailendra Kumar Sinha and another, 2007 ACJ 1272 whereby the High Court of Jharkhand held that legal representative's father who had filed the claim application for death of his son, died during the pendency of the appeal, then two married sisters of the deceased were entitled to the compensation as legal representatives. COUNSEL has further relying on New India Assurance Co. Ltd. vs. Phelishsa Bakai and others, 2007 ACJ 2388, whereby Gauhati High Court held that the legal representative and elder married sister can maintain claim for application for the death of deceased brother. (6) COUNSEL stated that the child Ku. Bharati is the daughter of Smt. Radhabai and had been looking after the appellant No. 1 Gangaram since he was suffering from cancer of throat and was unable to speak and had also been a part of the original claim since she was living with the deceased Santosh and grandfather Gangaram. Thus COUNSEL for the applicants prayed that the application be allowed and the married sisters be also permitted to claim the compensation. Counsel for the respondent-insurance company on the other hand has opposed the submissions and stated that the appeal had to abate under Order 22 of the Civil Procedure Code. Moreover the application under Order 1, Rule 10 is delayed by more than about a year. (7) COUNSEL for the respondent-insurance company relied on Ambika Charan Choudury and others vs. Divisional Manager, National Insurance 2004 ACJ 1077 whereby Gauhati High Court held that the legal representatives brother and sister of the deceased are not entitled to compensation for the death of the deceased. COUNSEL has further relied on Gaurishankar Dable and others vs. Jagtarsingh and others, 2007 ACJ 2173 to bolster his submission that both brother and sister were the legal representatives and the Court had held that they were entitled to some compensation for loss of love and affection although, they are not entitled to share in the compensation of loss of dependency. COUNSEL has further relied on Nathi Singh vs. Vimlesh Gupta and others 1989 ACJ 1128 whereby Allahabad High Court held that the claim filed by widow and a married daughter of the deceased, married daughter was not dependent on the deceased to claim the compensation and the Court had decided that the married daughter could not be dependent upon the deceased to claim compensation. Finally COUNSEL relied on 2004 ACJ 1638 whereby this Court had in the matter of Virendra Singh vs. Ashok Kumar held that on the death of the injured during pendency of his appeal for enhancement of compensation the appeal would abate, however, the legal representatives of the deceased would be entitled only to receive the amount already awarded and which formed a part of the estate of the deceased, but they could not claim enhancement. COUNSEL prayed that the application be dismissed and the appeal be abated. (8) ON considering the above submissions and arguments advanced by the Counsel for the applicants, I find that most of the judgments relied on by the Counsel for the applicants are of the various High Courts but way back in 1987, the Apex Court had already decided the issue in the matter of Gujarat State Transport Corporation (supra). The Apex Court had held while considering the Fatal Accidents Act 1855 in comparison to the Motor Vehicles Act (old): "The expression 'legal representatives' has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 defines 'legal representative' as 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." But the definition in toto would not apply the Motor Vehicles Act. Section 110-A(1) of the Act (old Motor Vehicles Act) thus expressly states that : "(I) an application for compensation may be made by the legal representatives of the deceased of their agent and (ii) that such application shall be made on behalf of or for the benefit of all the legal representatives." Both the person or persons who can make an application for compensation and the persons for whose benefit such application can be made are thus indicated in section 110-A of the Act. This section in a way is a substitute to the indicated above for the provisions of section 1-A of the Fatal Accidents Act, 1855 which provides that "every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased." And further "These provisions are not merely procedural provisions. They substantively affect the rights of the parties. As the right of action created by the Fatal Accidents Act, 1855 was "new in its species, new in its quality, new in its principles, in every way new" the right given to the legal representatives under the Act to file an application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitations of an action under the Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies." Taking into consideration the legal legislative intent of the Act, the Apex Court finally held that the Gujarat High Court was right in interpretation that brother of the person killed in motor vehicles accident could claim compensation as a legal representative and held thus : "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 breadwinner 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." The expression of legal representative has not been defined in the Motor Vehicles Act of 1988 also and is generally interpreted to have the same meaning has given to the term in the Code of Civil Procedure. A Full Bench of this Court recently has in the matter of Bhagwati Bai and another vs. Bablu and others, 2006(4) MPLJ (FB) 579 = 2007 ACJ 682 considered the term legal representative wherein it has held that the reference under section 306 of the Indian Succession Act, 1925 to mean executors or administrators on the principle that must necessary prevail in the Civil Procedure Code. So also reference has been made under section 1 of the Legal Representatives Suits Act, 1855, which confers rights on the executors, administrators or representatives of any person deceased to maintain an action for any wrong committed in the lifetime of a deceased person. However, section 1 of the Legal Representatives Suits Act limits the cause of action within a period of one year before his death and pertains to right to recover the damages from the personal estate of such deceased person." The Full Bench decision, however, pertains to the question whether a claim for personal injury filed under section 166 of the Motor Vehicles Act, 1988 would abate on the death of the claimant and the Court had held that it would not survive to his legal representatives except as regards the claim for pecuniary loss to the estate of the claimant. (9) HAVING given my anxious consideration to these facts I find that in some of the decisions as discussed by me earlier refer to claim for personal injury by the claimant whereas in the present case, the claim pertains to death claim by Gangaram for the death of his son Santosh and moreover during the pendency of the appeal by Gangaram, Gangaram has also died and hence the question is whether under Order 1, Rule 10 is maintainable by the three married daughters of Gangaram to step into his shoes as legal representatives of deceased Santosh. Undoubtedly a claim for personal injury would abate on the death of the claimant in the light of Bhagawati (supra) however in a death claim filed by the legal representative of the first instance and on the death of the legal representative himself; the claim or appeal would not abate but would devolve on his other "legal representatives" since the other legal representatives would step into the shoes of the deceased legal representative as persons on whom the right devolves and in whom the right to property is crystallised and vests as a civil right. (10) CONSIDERING the definition of person who are eligible to file the claim under section 166(1) of compensation of death which has resulted from the accident, I find that section 166(l)(c)(d) does not define the term legal representative which states thus : (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. On the basis of the discussion above, I find that the three married daughters in accordance with the provisions of section 166 of the Motor Vehicles Act and provision under the Civil Procedure Code and Fatal Accidents Act would be legal representatives of deceased Gangaram. They however cannot be the legal representatives of deceased Santosh and their right to claim for compensation shall be limited to the share of deceased Gangaram appellant No. 1. The application under Order 1, Rule 10 of the Code of Civil Procedure needs to be allowed and is hereby allowed. (11) CONSIDERING the share of appellant No. 2 Bharti, I find that the Tribunal has erred in dismissing her claim on mere surmises. There was no need to doubt of statement of her mother Radhabai, that the little girl was residing with Gangaram to look after him and helped him with his daily chores. Merely because the mother Radhabai resided only a few yards away does not belie the fact that Bharti used to live with Gangaram to look after him. It is also evident from the fact that Gangaram carried on his daily duties as Sarpanch of the village and received remuneration of the same nearly up to his death. Merely because the mother Radhabai resided only a few yards away does not belie the fact that Bharti used to live with Gangaram to look after him. It is also evident from the fact that Gangaram carried on his daily duties as Sarpanch of the village and received remuneration of the same nearly up to his death. It has also been stated by claimant Bharti herself that her fees, pay etc was paid by deceased Santosh. It was not necessary under the circumstances for the Tribunal to have been drawn adverse inference against appellant No. 2 Bharti and to have rejected her claim. The award is set aside to that extent. (12) HOWEVER the compensation as assessed by the Tribunal regarding the loss of income cannot be enhanced since it has adopted the multiplier of 12, looking to the age of the deceased Gangaram and I do not find any reason to take a different view. The compensation awarded is more than adequate under the circumstances. The learned MACT had also taken into consideration the fact that Gangaram was not entirely dependent on deceased son Santosh since he was earning salary as Sarpanch. In consequence the award of the Tribunal is modified to the extent that the deceased claimant Gangaram as well as Bharti were entitled to one half share out of compensation of Rs. 3,03,000/- awarded by the Tribunal. Rest of the findings need not be disturbed since they have not been disputed before me and have attained finality. Consequently, it is made clear that by I.A. No. 10402/05 filed on 29-10-2005, that the three married daughters of deceased Gangaram would be entitled to l/3rd share of the compensation awarded to him alone and the other half is awarded to appellant No. 2 Bharti and shall be kept in fixed deposit in a nationalised bank till the age of her attaining majority and she shall be entitled to the entire amount along with the interest accrued on the fixed deposit on her attaining majority. (13) THE appeal is therefore, allowed in part and the impugned award modified to the extent hereinabove indicated. Counsel's fees of Rs. 1500/- if quantified. Appeal partly allowed.