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2013 DIGILAW 703 (RAJ)

New India Assurance Co. Ltd. v. Panchu

2013-04-05

ALOK SHARMA

body2013
Hon'ble SHARMA, J.—This civil misc. appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter 'the Act of 1988') has been filed against the award dated 09.01.2008, passed by the MACT, Kishangarh, District Ajmer in Motor Accident Claim No.43/2006, whereby the learned Tribunal has allowed the claimant's petition under Section 166 of the Act of 1988 inter alia against the non-claimant-appellant-Insurance Company (hereinafter 'the Insurance Company') and required it to pay to the claimant a sum of Rs.3,27,000/- in the aggregate as compensation, excluding the amount already paid under Section 140 of the Act of 1988, along with interest @ 9% p.a. from the date of filing of the claim petition till the payment of the amount in issue. 2. A claim petition under Section 166 of the Act of 1988 was filed stating that on 06.01.2006, the claimant's brother Chhotu, since deceased, was riding his bicycle from Madanganj, Kishangarh back to his village after selling milk. A truck bearing registration No.RJ.19-G-6527 being driven rashly and negligently by the non-claimant, Sawai Ram (respondent No.2 before this Court), hit the bicycle of Chhotu from behind and crushed him under the wheels of the truck. Chhotu died on the spot due to the injuries sustained. It was further stated that the offending vehicle No.RJ.19-G-6527 was in the ownership of one Anada Ram (respondent No.3 before this Court) and was insured with the appellant – New India Assurance Co. Ltd, Branch Jodhpur also arrayed as a party in the claim petition. 3. On notice being served of the claim petition, the Insurance Company in its written statement submitted that the claim petition itself was not maintainable inter alia on the ground that the claimant was not entitled to file the same under the provisions of Section 166(1)(c) of the Act of 1988 in view of the fact that he was not the legal representative of the deceased Chhotu and was merely the brother of the deceased. It was submitted that until a succession certificate was filed by the claimant or it otherwise established that the deceased Chhotu had no class I heir under the Hindu Succession Act, 1956 (hereinafter 'the Act of 1956'), the claim petition at his instance was not maintainable. It was submitted that until a succession certificate was filed by the claimant or it otherwise established that the deceased Chhotu had no class I heir under the Hindu Succession Act, 1956 (hereinafter 'the Act of 1956'), the claim petition at his instance was not maintainable. It was further submitted that even otherwise the claimant at the time of laying the claim petition was 35 years of age working man and therefore he could not conceivably be taken to be a dependant on the deceased Chhotu. Other grounds also taken in defence by the Insurance Company but negatived by the Tribunal are not being pressed in this appeal. 4. On the basis of the pleadings of the parties before it, the learned Tribunal framed five issues. Issue No.1 related to the factum of incident; issue No.2 was on the question as to whether the driver of the offending vehicle was an employee of the owner of the offending vehicle in issue; issue No.3 related to the quantum of compensation, if any payable; and issue No.4 pertained to the effect of the objections taken by the Insurance Company to the very maintainability of the claim petition and also to the entitlement of the claimant as 35 years old brother of the deceased Chhotu to be granted compensation under Section 166 of the Act of 1988. Issue No.5 pertained to the relief the claimant would finally be entitled to. 5. On the basis of the evidence before it, the learned Tribunal decided issue Nos.1 & 2 jointly in favour of the claimant and against the Insurance Company. In respect of issue No.3 as framed, the learned Tribunal was of the view that even though there was no proof of the income of the deceased Chhotu, it be taken at the minimum of Rs.3,000/- per month and after deduction of 1/3 of the assumed income towards the personal expenses of the deceased Chhotu, the dependency of the claimant be taken to be at Rs.2,000/- per month, which entailed an annual dependency of Rs.24,000/-. Applying to the multiplicand so arrived the multiplier of 13 in view of the deceased being 50 years of age, the Tribunal determined loss of dependency to the claimant at Rs.3,12,000/-. Applying to the multiplicand so arrived the multiplier of 13 in view of the deceased being 50 years of age, the Tribunal determined loss of dependency to the claimant at Rs.3,12,000/-. Adding other amount of Rs.15,000/- on various heads to which the claimant was purportedly entitled, a final award of Rs.3,27,000/- (minus payment under Section 140 of the Act of 1988) along with interest @ 9% p.a. was passed payable to the claimant from the date of filing of the claim petition till the final payment. In respect of issue No.4, the learned Tribunal negatived the contention of the Insurance Company with regard to the maintainability of the claim petition itself at the instance of the brother of the deceased Chhotu and also the defence that as a 35 years old person, earning wages at Rs.100/- per day (and as admitted in the cross examination by the claimant) the claimant was not entitled to claim compensation for loss of dependency. 6. Aggrieved of the award dated 09.01.2008, this present civil misc. appeal has been filed. 7. Counsel for the appellant-Insurance Company emphasised that a claim petition can be laid only in terms of Section 166 of the Act of 1988. He submits that the only conceivably locus if at all for the claimant to lay a claim petition would be under Section 166(1)(c) of the Act of 1988 as Section 166(1)(a), (b) and (d) are wholly inapplicable. It is submitted that an active reading of Section 166(1)(c) of the Act of 1988 however would indicate that the claimant was not the legal representative of the deceased Chhotu. For the argument so raised, the counsel has drawn the attention of this Court to the definition of legal representative as set out in Section 2(11) CPC in view of the fact that the said term has not been defined either under the M.V. Act, 1988 or the Hindu Succession Act, 1956. For the argument so raised, the counsel has drawn the attention of this Court to the definition of legal representative as set out in Section 2(11) CPC in view of the fact that the said term has not been defined either under the M.V. Act, 1988 or the Hindu Succession Act, 1956. Counsel submits that Section 2(11) CPC shows that “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.” It is submitted that therefore until it is found that the estate of a deceased devolves upon a person, such person cannot be taken to be a legal representative. Counsel submits that for the purpose of devolution of the estate of a deceased, a reference to the Hindu Succession Act, 1956 ought to be made. It is submitted that Section 8 of the Act of 1956 sets out the general rules of succession in the case of Hindu males dying intestate and provides that the property of a male Hindu dying intestate shall devolve according to Chapter II of the Hindu Succession Act, 1956. It is submitted that in terms of Section 8 of the Act of 1956, the property of a Hindu male dying intestate is to devolve firstly, on the heirs, being the relatives specified in class I of the Schedule. It submits that only if there is no preferential heir included in class I of the Schedule of the Act of 1956, then alone would the estate of the deceased devolve upon the relatives of the deceased within class II of the Schedule. Counsel submits that a bare look on Schedule II of the Act of 1956 shows that for a brother of a Hindu male dying intestate to be entitled to succession, it is incumbent upon him to show that there was no surviving class I preferential heir of the said Hindu. Counsel submits that a bare look on Schedule II of the Act of 1956 shows that for a brother of a Hindu male dying intestate to be entitled to succession, it is incumbent upon him to show that there was no surviving class I preferential heir of the said Hindu. Then drawing attention of this Court to the claim petition as laid by the claimant, counsel has submitted that there is no averment whatsoever in the claim petition indicating that there was no surviving class I heir of the deceased Chhotu consequent to which the claimant was entitled to succession as brother falling within class II heir under the Act of 1956. Consequently, the claim petition laid by the brother of the deceased was not maintainable, submits counsel. Reliance has been placed upon the judgment of the Kerala High Court in the case of Unni & Ors. vs. Baby John ( 2008 ACJ 2575 ), wherein it has been held that a brother of a deceased would be entitled to lay a claim petition under Section 166 of the Act of 1988 only in the absence of the preferential heir falling within Schedule I of the Act of 1956. A reference has been made to para 8 of the report relevant part whereof, for facility of reference, is reproduced hereinunder : A brother of the deceased may be a legal representative of the deceased in the absence of preferential heirs under the personal law governing the parties and if so (underling mine), he can claim compensation. But he cannot do so, if he is not a legal representative entitled to succeed to the estate of the deceased. 8. Counsel for the appellant-Insurance Company then submitted that in the course of cross-examination, the claimant admitted to the factum of being 35 years of age and earning a sum of Rs.100/- per day as wages at the time of death of his brother Chhotu in the accident of 06.01.2006. It is submitted that it is thus evident that the claimant was not dependant upon the deceased Chhotu and consequently the learned Tribunal erred in treating him as a dependant and computing the alleged loss of dependency to the claimant occasioned by the death of Chhotu in the accident. 9. It is submitted that it is thus evident that the claimant was not dependant upon the deceased Chhotu and consequently the learned Tribunal erred in treating him as a dependant and computing the alleged loss of dependency to the claimant occasioned by the death of Chhotu in the accident. 9. Per contra, counsel for the claimant-respondent No.1 would submit that there was no evidence brought on record at the instance of the Insurance Company before the Claims Tribunal to establish that there was any existing class I heir of the deceased Chhotu, who would disentitle the claimant claiming the status of the claimants' legal representative. He submits that the claimant thus being the legal representative would be entitled to compensation for loss of dependency and in any event under the “no fault liability” head. 10. Heard the counsel for the appellant-Insurance Company and the claimant-respondent No.1. Considered. 11. In my considered view, there is no force in the submission of the claimants' counsel that the burden of proving that there were no class I heir of the deceased Chhotu was on the appellant-Insurance Company. In my considered opinion, the claim petition under Section 166 of the Act of 1988 having been laid by the claimant as the brother of the deceased Chhotu, it was for him to plead and prove that the deceased had no class I heir with a preferential right consequent to which, the claimant was the legal representative of the deceased under Section 2(11) CPC read with Section 8 and Schedule II of the Act of 1956. In Maria Margarida Sequeira Fernandes & Ors. vs. Erasmo Jack De Sequeira (dead) through LRs ( (2012) 5 SCC 370 ), the Hon'ble Apex Court has reiterated the seminal importance of pleadings in any litigation. It has been held that pleadings are the foundation of any case, and necessary as also material averments must be made and adequately proved in accordance with law before any relief claimed deserves to be allowed. And in Oriental Insurance Co. Ltd. vs. Meena Variyal & Ors. ( AIR 2007 SC 1609 ), the Apex Court has held that general principles of adjudication apply also to insurance claims before the Motor Accident Claims Tribunal. And in Oriental Insurance Co. Ltd. vs. Meena Variyal & Ors. ( AIR 2007 SC 1609 ), the Apex Court has held that general principles of adjudication apply also to insurance claims before the Motor Accident Claims Tribunal. Similarly in the instant case, it was for the claimant to plead and prove his status as the legal representative of the deceased more so when objection thereto was taken and the claimant required to submit a succession certificate to show that he was the successor to Chhotu. I also do not find any substance in the argument of the counsel for the claimant-respondent No.1 that in spite of being 35 years of age and admittedly earning Rs.100/- per day in his cross-examination before the learned Tribunal, the claimant was entitled to be treated as dependant of the deceased Chhotu. Had the claimant satisfied his locus to lay a claim petition under Section 166 of the Act of 1988, as the legal representative of the deceased, he would at best be entitled to loss of estate of deceased under the “no fault liability” with reference to Section 140 of the Act of 1988. A sum of Rs.50,000/- has however been allowed by the Tribunal already and obtained by the claimant with reference to Section 140 of the Act of 1988. 12. I am inclined to sustain the argument of the appellant-Insurance Company contending that as the brother of the deceased Chhotu, the claimant was not entitled to lay a claim petition as the legal representative of the deceased in view of the fact that he was only a class II heir of Chhotu and had not established either from his pleadings or evidence before the learned Tribunal that the deceased Chhotu had no class I heir. The judgment of the Kerala High Court in the case of Unni & Ors. (Supra) fully applies to the facts of case before this Court and the very claim petition laid at the instance of the claimant purporting to be legal representative of the deceased Chhotu was not maintainable. The judgment of the Kerala High Court in the case of Unni & Ors. (Supra) fully applies to the facts of case before this Court and the very claim petition laid at the instance of the claimant purporting to be legal representative of the deceased Chhotu was not maintainable. The learned Tribunal failed to address this fundamental issue in spite of a specific defence with regard thereto by the Insurance Company in its written statement to the claim petition filed wherein it has been categorically averred that the claimant Panchu should establish his right as a legal representative of the deceased Chhotu on the basis of a succession certificate. 13. Further in my considered view, a 35 years old brother admittedly earning a sum of Rs.100 per day as wages (as per the admission of the claimant in his cross-examination before the learned Tribunal) cannot conceivably be considered to be a dependant entitled to be compensated for loss of dependency consequent to a death of a person in an accident. 14. For the aforesaid reasons, the civil misc. appeal deserves to be allowed. The award dated 09.01.2008, passed by the learned Tribunal, Kishangarh, District Ajmer is quashed and set aside. Consequent to the appeal being allowed, the Insurance Company will be entitled for the refund of the amount of the award as deposited with the learned Tribunal in compliance with the award dated 09.01.2008.