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2019 DIGILAW 1180 (KAR)

Chikkathammaiah @ Moogappa v. N. Kuppaswamy

2019-06-10

B.V.NAGARATHNA, K.NATARAJAN

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JUDGMENT : B.V. Nagarathna, J. Though this appeal is listed for 'Orders', with the consent of learned counsel on both sides, it is heard finally. 2. Appellants herein are the claimants. Being aggrieved by the dismissal of their claim petition filed under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as 'the Act' for the sake of brevity) by the II Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Mandya (hereinafter referred to as 'Tribunal' for the sake of brevity) in M.V.C. No.336 of 2012 dated 29-8-2015, they have preferred this appeal. 3. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal. 4. The appellants filed the claim petition seeking compensation on account of death of the brother of the first claimant and brother-in-law of the second claimant in a road traffic accident which occurred on 2-5-2004. On the said date, one Rajanna and his wife Puttathayamma and others were traveling in a tempo-traveler bearing Registration No.KA-05/C-3294 from Bengaluru to Madurai. The vehicle was driven cautiously. When the vehicle reached near old Dharmapuri Government High School at Dharmapuri- Krishnagiri National Highway bridge, at about 1:30 a.m., a lorry bearing Registration No.TN-28/T-1044 driven by its driver in a rash and negligent manner, endangering human life, came from the opposite side and dashed against the tempo-traveler. As a result of the impact, three persons died on the spot, including the wife of Rajanna and Rajanna and others sustained severe injuries. Injured Rajanna was taken to Dharmapuri Government Hospital, wherein he was given first-aid treatment and later, he was shifted to NIMHANS, Bengaluru, where he was admitted as an in-patient. However, during course of his treatment, he died on 4-5-2004. Contending that they had lost their brother and brother-in-law, claimants filed the claim petition seeking compensation on various heads. 5. It is contended that the first claimant is deaf and dumb; not having parents and was under the care and custody of his brother-deceased Rajanna and his wife Puttathayamma. Both died in the accident. Therefore, they sought for compensation on various heads, by contending that deceased Rajanna was hale and healthy person, aged 45 years at the time of accident and he was earning income by agriculture work; he owned landed properties and was running a fair-price shop and spent his earnings towards maintenance of the family. 6. Both died in the accident. Therefore, they sought for compensation on various heads, by contending that deceased Rajanna was hale and healthy person, aged 45 years at the time of accident and he was earning income by agriculture work; he owned landed properties and was running a fair-price shop and spent his earnings towards maintenance of the family. 6. In response to the notice, respondent Nos.1, 2 and 4 did not appear before the Tribunal and was placed ex-parte. Respondent Nos.3 and 5-insurance companies appeared through their counsel. Respondent No.3-insurer filed written statement denying the averments made in the claim petition by contending that, there was no dependency of the claimants on deceased Rajanna and therefore, claim petition has to be dismissed. Alternatively, it is contended that if the policy is proved, its liability is subject to terms and conditions of the policy and the provisions of the Act. Hence, respondent No.3 sought for dismissal of the claim petition. 7. Respondent No.5-insurance company also denied the averments made in the claim petition and contended that there was no negligence on the part of driver of the tempotraveler and the entire negligence was on the driver of the lorry. Therefore, it prayed for dismissal of the claim petition. 8. On the basis of rival pleadings, the Tribunal framed the following issues: "1. Whether the claimants prove that they are the LRs of deceased Rajanna? 2. Whether the claimants prove that on 02-05-2004 near old Dharmapuri government high school on Dharmapuri- Krishnagiri NH road bridge the deceased Rajanna met with accident due to the wrongful use of lorry bearing No.TN-28-T- 1044 by its driver and thereby deceased Rajanna died at the spot? 3. To what compensation the claimants are entitled? and from whom? 4. What order?" 9. In respect of their case, Smt. Prabha-the second claimant was examined as P.W.1 and she produced eight documents, which were marked as Exs.P.1 to P.8, while the Deputy Manager of respondent No.5-insurer was examined as R.W.1 and he produced three documents, which were marked as Exs.R.1 to R.3. 10. On the basis of said evidence, the Tribunal answered issue Nos.1 and 3 in negative and issue No.2 in affirmative and dismissed the claim petition by holding that there was no dependency of the claimants on the deceased and therefore, they were not entitled for any compensation under the provisions of the Act. 10. On the basis of said evidence, the Tribunal answered issue Nos.1 and 3 in negative and issue No.2 in affirmative and dismissed the claim petition by holding that there was no dependency of the claimants on the deceased and therefore, they were not entitled for any compensation under the provisions of the Act. Being aggrieved by the dismissal of the claim petition, the claimants have preferred this appeal. 11. We have heard learned counsel for the appellants and learned counsel for respondent Nos.3 and 5-insurance companies and perused the material on record. 12. Learned counsel for the appellants contended that claim petition could not have been dismissed, as the purpose of filing the claim petition under Section 166 of the Act is to seek compensation on account of death/injury of a person in a road traffic accident. Such a claim petition by the legal representatives of the deceased in a road traffic accident is in terms of Section 166 of the Act. That the expression 'legal representatives' cannot be circumscribed to a dependent as contemplated under the Fatal Accidents Act, 1855. That the expression 'legal representatives' must be given wider interpretation so as to include all persons, who are entitled to seek compensation as legal representatives of a deceased. He submitted that the Tribunal was not right in dismissing the claim petition by not appreciating the evidence on record in light of the object and purpose of Section 166 of the Act. 13. Learned counsel for the respondent-insurance company, however, supported the judgment and award of the Tribunal and contended that there is no merit in the appeal. 14. Having heard learned counsel for the respective parties, the following points would arise for our consideration: (i) Whether the Tribunal was right in dismissing the claim petition filed by the appellants-claimants? (ii) If not, what order? 15. Section 166 of the Act deals with filing of an application or petition seeking compensation. Said application or petition could be filed in the case of death in a road traffic accident by all or any of the legal representatives of the deceased. The expression 'legal representatives' is not defined under the Act. (ii) If not, what order? 15. Section 166 of the Act deals with filing of an application or petition seeking compensation. Said application or petition could be filed in the case of death in a road traffic accident by all or any of the legal representatives of the deceased. The expression 'legal representatives' is not defined under the Act. In this regard, it would be useful to rely on the judgment of the Hon'ble Supreme Court in the case of GUJARAT STATE ROAD TRANSPORT CORPORATION, AHMEDABAD v. RAMANBHAI PRABHATBHAI AND ANOTHER, (1987) AIR SC 1690(1), wherein it was observed that the expression 'legal representatives' ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. Considering the case under the provisions of erstwhile Motor Vehicles Act, 1939, the Hon'ble Supreme Court observed that the scope of provisions of Section 1-A of the Fatal Accidents Act, 1855, cannot be made applicable to the provisions of the Motor Vehicles Act. That Chapter VIII provides for an alternative forum for realisation of compensation payable on account of motor vehicle accidents. That the said Chapter is not merely procedural. That the award of compensation by way of damages under the provisions of the Act is in consonance with social justice. Therefore, on the recommendation made by Law Commission, Chapter-VIIA was introduced to the Motor Vehicles Act, 1939. Similarly, Section 109-A to Section 109-C of the said Act provided for a scheme for granting relief to victims or the legal representatives of the victims of 'hit and run' in motor vehicle accident cases. That these are efforts on the part of the Government to remedy the situation created by the modern society, which is responsible for introducing so many fast moving vehicles on roads. A detail discussion of Section 110-A of the Motor Vehicles Act, 1939, has also been made which is in pari materia to Section 166 of the Act. While elaborating on the expression 'legal representatives' of a deceased, the Hon'ble Supreme Court at paragraph No.11 observed 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. While elaborating on the expression 'legal representatives' of a deceased, the Hon'ble Supreme Court at paragraph No.11 observed 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 S. 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 S. 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 S. 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under S. 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 sometimes 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, (1977) AIR Gujarat 195, (supra) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under S. 110-A of the Act if he is a legal representative of the deceased." 16. The Hon'ble Supreme Court further observed that in the absence of any definition of expression of the 'legal representatives' under the Act, a wider meaning should be given to it and it should not be confined only to a spouse, parent, and children of the deceased. 17. The Hon'ble Supreme Court further observed that in the absence of any definition of expression of the 'legal representatives' under the Act, a wider meaning should be given to it and it should not be confined only to a spouse, parent, and children of the deceased. 17. In the instant case, the Tribunal has considered the evidence of the parties from the point of view of partition of joint family properties and as to whether they were residing together. Those are not considerations to be made as they would not have any bearing while adjudicating claim petitions under Section 166 of the Act. First claimant herein is deaf and dumb and was said to be dependent on the deceased and second claimant is his wife. Claimants have contended that they were dependent on the deceased and in that context, claim petition was filed. The Tribunal had to consider the same in its proper perspective rather than in a myopic way, i.e., to ascertain whether there was dependency and hence, they were legal representatives of the deceased irrespective of any division of their joint family properties having regard to the physical disability of the first claimant. But the said aspect has not been considered by the Tribunal and claim petition has been simply dismissed. 18. In the circumstances, appeal is allowed and we set aside the judgment and award of the Tribunal and remand the matter to the Tribunal for a fresh consideration in light of the judgment of the Hon'ble Supreme Court relied upon and the observations made supra. 19. Since the parties are represented by their respective Advocates, they are directed to appear before the Tribunal on 15-7-2019 without expecting any separate notices from the Tribunal. As respondent Nos.1, 2 and 4 before the Tribunal were placed ex-parte and as respondent No.3 is liable to satisfy the award in terms of the findings in the claim petition and also in M.V.C. No.4497 of 2004, it may not be necessary to issue any notice to the aforesaid respondents by the Tribunal as the finding on the issue of negligence under point No.2 is not interfered in this appeal. 20. The Tribunal shall reconsider the matter in accordance with law and in terms of the observation made above and dispose of the same as expeditiously as possible. Parties to bear their respective costs.