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2014 DIGILAW 814 (PNJ)

Charanjit Kaur v. Suresh Kumar

2014-05-08

AJAY TEWARI

body2014
JUDGMENT Mr. Ajay Tewari, J.: (Oral) - This appeal has been filed by the appellant-claimant for enhancement of compensation in respect of the death of her brother Lakhwinder Singh and for the injuries sustained by the appellant-claimant in a motor vehicle accident which took place on 28.2.2005 in the area of Shahabad when the car in which she was travelling along with some other persons, met with an accident with the offending bus coming from Ambala side being driven in a rash and negligent manner by respondent No.1 who, in the process of overtaking a tractor-trolley in a reckless manner, caused the accident. The occupants of the car sustained injuries and one of them also died. The claimant-appellant also sustained multiple grievous injuries. 2. The claim petition filed by Charanjit Kaur has been contested by Jaswant Kaur who states herself to be the legally wedded wife of the deceased. She states that for this reason she is entitled to compensation with regard to death of deceased Lakhwinder Singh. 3. The Tribunal rejected the claim of both i.e. Charanjit Kaur and Jaswant Kaur for compensation for the death of Lakhwinder Singh. With regard to Charanjit Kaur the Tribunal held that she being the married sister cannot be said to be dependent on her brother and in respect of Jaswant Kaur she was not proved to be his legally wedded wife. 4. Counsel for the Insurance Company has argued that the whole system of compensation for motor vehicle accidents in India is based upon the question of dependency and since the sister was not dependent on the brother, she could not have been granted any compensation. He has relied upon Manjuri Bera v. Oriental Insurance Company and another, [2007(2) Law Herald (SC) 1345] : 2007 ACJ 1279 to contend that even if the claimants are held entitled to compensation even though they are not dependents the maximum limit can be only Rs.50,000/-. Paras 10 and 11 of the aforesaid judgment are reproduced as under:- “10. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989]2SCR810 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. Paras 10 and 11 of the aforesaid judgment are reproduced as under:- “10. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989]2SCR810 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 State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr. [1987]3SCR404 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. 11. There are several factors which have to be noted. The liability under Section 140 of the Act does not cease because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency. Section 165 of the Act also throws some light on the controversy. The explanation includes the liability under Sections 140 and 163A.” 5. He has thus contended that in the present case, liability had to be fixed under Section 140 of the Act. 6. Learned counsel for the appellant has relied upon a decision of this Court in Smt.Sundri Devi and another v. Vinod Kumar and others reported as MANU/PH/1249/2010 . In that case this Court was considering the right of a married daughter who was not dependent upon the deceased to claim compensation. 6. Learned counsel for the appellant has relied upon a decision of this Court in Smt.Sundri Devi and another v. Vinod Kumar and others reported as MANU/PH/1249/2010 . In that case this Court was considering the right of a married daughter who was not dependent upon the deceased to claim compensation. His lordship referred to Manjuri Bera v Oriental Insurance Company and another, 2007 ACJ 1279 and to the judgment of Karnataka High Court in A.Manavalagan v. A. Krishnamurthy and others reported as 2005 ACJ 1992 and also to Gobald Motor Service v. R.M.K. Veluswami, (1962) 1 SCR 929 . 7. In the case of A. Manavalagan v. A. Krishnamurthy and others (supra) the Division Bench of the Karnataka High Court headed by Justice R.V.Raveendran relied upon a judgment of the Hon’ble Supreme Court wherein their Lordships distinguished between Sections 1 and 2 of the Fatal Accidents Act(Sections 1-A and 2 after the amendment). Their Lordships had noticed that while under Section 1(1-A) damages are recoverable for the benefit of the persons mentioned therein, under Section 2, compensation goes to the benefit of the estate. Under Section 1-A damages are payable in respect of the loss sustained by the persons mentioned therein and under Section 2 damages can be claimed for loss of expectation of life as well as loss to the estate. The Hon’ble Supreme Court held that persons who claim benefit under Sections 1 and 2 may not be the same as the claims under the said Sections are based on different causes of action. Ultimately in A. Manavalagan v. A. Krishnamurthy and others (supra) the Division Bench held that both for loss of dependency and loss of estate compensation would be worked out on the basis of the income of the deceased minus expenses but further held that depending on the facts and circumstances of each case the amount of expenses would be different. For instance a person may spend more money on himself if he is an unmarried bachelor rather than if he had been a married man having two or three dependent children. Their lordships further held that for non-dependent siblings the rate of loss to the estate would be only 15% of the total income. 8. For instance a person may spend more money on himself if he is an unmarried bachelor rather than if he had been a married man having two or three dependent children. Their lordships further held that for non-dependent siblings the rate of loss to the estate would be only 15% of the total income. 8. Counsel for the appellant has argued that Section 166 of the Motor Vehicles Act stipulates that applications for compensation would be made by ‘all or any of the legal representatives of the deceased’ and under Section 168 of the Motor Vehicles Act, the Tribunal is to make an award ‘determining the amount of compensation which appears it to be just and specifying the person or persons to whom compensation shall be made.’ As per him, the concept of dependency has been devised by the Courts because in overwhelming majority of cases, the legal representatives also happen to be dependents of the deceased but this cannot be construed to mean that only dependents are entitled to compensation because this interpretation would be contrary to the provisions of the Motor Vehicles Act. Thus even nondependent legal representative would be entitled to the actual loss to the estate and not to the notional loss to the estate as awarded in the present case. He has relied upon a decision of the Hon’ble Supreme Court in Montford Brothers of St. Gabriel and another v. United India Insurance and another, [2014(1) Law Herald (SC) 777 : 2014(2) Law Herald (P&H) 1221 (SC)] : 2014(1) RCR(Civil) 884. In this case, the deceased was a Catholic Priest who had joined the Montford Brothers of St. Gabriel. He died in an accident. The Brothers filed a claim petition on the ground that on joining the Brotherhood, every thing received by Brothers as of right would go into the common purse. It was consequently their case that the Society was legal representative of the deceased and was entitled to compensation. The Tribunal accepted the plea and awarded compensation of Rs.2.52 lacs. The High Court, however, held that the Society was not dependent on the deceased and consequently set aside the Award. In appeal, the Hon’ble Supreme Court, while upholding the Award of the Tribunal, held as follows:- “11. The Tribunal accepted the plea and awarded compensation of Rs.2.52 lacs. The High Court, however, held that the Society was not dependent on the deceased and consequently set aside the Award. In appeal, the Hon’ble Supreme Court, while upholding the Award of the Tribunal, held as follows:- “11. Learned counsel for the Insurance Company tried to persuade us that since the term `legal representative has not been defined under the Act, the provision of Section 1-A of the Fatal Accidents Act, 1855, should be taken as guiding principle and the claim should be confined only for the benefit of wife, husband, parent and child, if any, of the person whose death has been caused by the accident. In this context, he cited judgment of this Court in the case of Gujarat State Road Transport Corporation, Ahmedabad vs. Raman Bhai Prabhatbhai & Anr.[1]. In that case, covered by the Motor Vehicles Act of 1939, the claimant was a brother of a deceased killed in a motor vehicle accident. The Court rejected the contention of the appellant that since the term `legal representative is not defined under the Motor Vehicles Act, the right of filing the claim should be controlled by the provisions of Fatal Accident Act. It was specifically held that Motor Vehicles Act creates new and enlarged right for filing an application for compensation and such right cannot be hedged in by the limitations on an action under the Fatal Accidents Act. Paragraph 11 of the report reflects the correct philosophy which should guide the courts interpreting legal provisions of beneficial legislations providing for compensation to those who had suffered loss. 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 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. 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 110-A to 110-F 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 110-B of the Act and 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 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A 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 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 v. Chaturbhai Taljabhai, (AIR 1977 Guj.195) 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.” “16. A perusal of the judgment and order of the Tribunal discloses that although issue no.1 was not pressed and hence decided in favour of the claimants/appellants, while considering the quantum of compensation for the claimants the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependants or earning? For answering this issue the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or organization may suffer considerable loss due to death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court reported in AIR 1987 Pat. 239 , which held that the term `legal representative is wide enough to include even intermeddlers with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure.” 9. Resultantly it has to be held that the Tribunal erred in dismissing the claim petition in entirety by holding the appellant Charanjit Kaur to be not entitled to even file the claim petition in respect of the death of her brother Lakhwinder Singh. In the circumstances this court would have to compute the compensation payable also. 10. Learned counsel has argued that the income taken at Rs.3000/- is highly inadequate and as per minimum wages the income had to be Rs.3208/-. Learned counsel for the insurance company has not denied it. 11. In the circumstances I take the income of the deceased at Rs.3300/-. 12. Learned counsel has further argued that nothing has been awarded for future prospects. The deceased was of the age of 52 years, therefore, an additional increase of 15% should have been granted towards future prospects. In view of the decision of this Court in FAO No. 929 of 2014, National Insurance Company Limited v. Gurdev Kaur and others, decided on 18.02.2014 I award future prospects to the extent of 15%. 13. Learned counsel has further argued that as per Sarla Verma v. DTC, [2009(3) Law Herald (SC) 2107] : 2009 ACJ 1298 (SC) multiplier of 14 should have been applied while computing compensation. I agree with learned counsel and grant multiplier of 14. 14. As held above the appellant would be entitled to 15% of this amount. I further award an amount of Rs.20,000/- for funeral expenses. I agree with learned counsel and grant multiplier of 14. 14. As held above the appellant would be entitled to 15% of this amount. I further award an amount of Rs.20,000/- for funeral expenses. Interest is awarded at the rate of 10% p.a. The appellant and the proforma respondents No. 4 to 9 would be equally entitled to compensation amount. 15. As regards the claim for enhancement of compensation in injury case I find that there is no scope for interference and consequently dismiss the same. The appeal stands disposed of accordingly. —————————