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2019 DIGILAW 2958 (MAD)

P. JEYA BASAKARAVEL v. VEPPALODAI CHEMICALS

2019-10-31

KRISHNAN RAMASAMY

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JUDGMENT : Krishnan Ramasamy, J. - The appeal is directed against the judgment and decree dated 25.10.2006 passed in MCOP No. 204 of 2004 by the learned Judge, Fast Track Court No. 2 (Motor Accidents Claims Tribunal), Tuticorin. 2. The facts in a nutshell are as follows: On 9.2.2004 at about 7 a.m., when the petitioner along with his wife and daughter Anandha Sheeba was travelling in a vehicle bearing registration No. TN 69-E 1444 from south to north on the left side of the road near South Pandiapuram corner, at that time, the respondent No. 1 drove the vehicle bearing registration No. TN 69-C 2563 in a rash and negligent manner from north to south and dashed against the petitioners' vehicle and in that accident the petitioners and their daughter Anandha Sheeba were thrown away from the vehicle and sustained grievous injuries. Thereafter, they were taken to Government Hospital, Tuticorin and the petitioners' daughter Anandha Sheeba was declared dead due to the accident. Therefore, the petitioners have filed a claim petition before the Tribunal claiming compensation of Rs. 3,00,000. 3. The respondent No. 2-insurance company has filed counter and opposed stating that the petitioners cannot claim compensation for their adopted child and as long as the biological father is alive, the present petitioners cannot make any claim for the death of the deceased Anandha Sheeba due to the reason that the adoption is legally not valid. 4. Before the Tribunal, on the side of the petitioners, PWs 1 to 3 were examined and Exhs. P1 to P19 were marked. On the side of the respondents, RW 1 was examined and no documentary evidence was marked. 5. After hearing both the parties, the court below found that the accident occurred due to rash and negligent driving of the driver of the vehicle bearing registration No. TN 69-E 1444 and had fixed the entire liability on the respondent No. 1. Since the respondent No. 1 vehicle was insured with the respondent No. 2, the court below fixed joint and several liability against the respondent Nos. 1 and 2. 6. As far as the quantum of compensation is concerned, the court below has refused to accept the contention of the appellants that they are the legal representatives of the deceased Anandha Sheeba and the Tribunal has awarded a sum of Rs. 1 and 2. 6. As far as the quantum of compensation is concerned, the court below has refused to accept the contention of the appellants that they are the legal representatives of the deceased Anandha Sheeba and the Tribunal has awarded a sum of Rs. 50,000 to the biological father, who was the respondent No. 3 in the claim petition. Though the respondent No. 3, the biological father, has not filed any claim petition, he was impleaded as one of the respondents and the court below awarded a lump sum amount of Rs. 50,000 as compensation by determining the income of the deceased as Rs. 3,000 p.a. and applying multiplier of 15, awarded a sum of Rs. 45,000 for loss of income and Rs. 5,000 towards funeral expenses of the deceased and rejected the claim made by the appellants. Aggrieved by the said order, the appellants herein filed the present appeal. 7. Heard both sides and perused the materials available on record. 8. The issues to be decided in the present appeal are as follows: (i) Whether the appellants are legal representatives of the deceased when the biological father is alive? (ii) Whether the appellants are entitled for compensation? (iii) Whether the court below is justified in rejecting the claim made by the appellants? 9. Before deciding the issue No. (i), it is just and necessary to mention the brief facts of the adoption of the deceased Anandha Sheeba by the appellants herein. 10. When the deceased Anandha Sheeba was 1 years old, her mother Shunmugakani alias Kani died on 9.5.1993 leaving behind her husband (respondent No. 3 herein) and the deceased Anandha Sheeba. The biological father of the deceased, viz., Jebakumar, the respondent No. 3 herein, handed over the child to the appellant No. 2, who is the sister of the mother of the deceased Anandha Sheeba by way of adoption as per the customary practice. Subsequently, the said Jebakumar, the biological father of the deceased, got remarried to one Jessy Roase Suseela on 27.12.1993 and he also has one female child through the second marriage. 11. After the adoption of the deceased Anandha Sheeba, she was the only child of the appellants. Subsequently, the said Jebakumar, the biological father of the deceased, got remarried to one Jessy Roase Suseela on 27.12.1993 and he also has one female child through the second marriage. 11. After the adoption of the deceased Anandha Sheeba, she was the only child of the appellants. After the adoption, all the records including ration card and school records are mutated in the name of the appellants as parents of the deceased Anandha Sheeba and thus the appellants became the guardian of the deceased. In this regard, in order to prove that the deceased Anandha Sheeba was the adopted daughter of the appellant, the appellants have marked Exhs. P1 to P4, Exh. P8 and Exh. P9 and Exhs. P 13 to P15. Exh. P13 is the school certificate; Exh. P14 is the ration card, wherein the names of the appellants were shown as parents of the deceased Anandha Sheeba The deceased Anandha Sheeba was born on 20.7.1991 and her mother died on 9.5.1993. When she was 1 years old, as stated above, the appellants adopted her and she met with an accident when she was 13 years old and died in the hospital. Therefore, the appellants contended that they are legal representatives of the deceased Anandha Sheeba and accordingly, they are entitled for compensation. 12. The learned counsel for the appellants would contend that the certificate signed by the adoptive father at the time of admission to school is a vital piece of evidence for the valid adoption and in this regard, the learned counsel referred to a judgment of this court in Ramadoss v. Subbayyan, (2018) 4 CTC 373 . Further he would contend that for a valid adoption, all that the law requires is that the natural father shall be asked by the adoptive parents to give his child in adoption and that the child shall be handed over and taken for this purpose. In this regard, the learned counsel referred to the judgment of the Hon'ble Supreme Court in L. Debi Prasad v. Tribeni Devi, (1970) AIR SC 1286. Further he would contend that there is no prohibition for the Christian couples for adoption of male or female child. In support of his contention, the learned counsel referred to the following judgments: (i) Pharez John Abraham, CA Nos. Further he would contend that there is no prohibition for the Christian couples for adoption of male or female child. In support of his contention, the learned counsel referred to the following judgments: (i) Pharez John Abraham, CA Nos. 7207 and 7208 of 2008; (ii) Biju Ramesh v. J.P. Vijayakumar, (2005) AIR Kerala 196; (iii) Philips Alred Malvin v. Gonsalvis, (1999) AIR Kerala 187; and (iv) Maxin George v. Indian Oil Corpn., (2005) 3 ILR(Ker) 89. 13. Further, the learned counsel for the appellants advanced his arguments stating that they are the legal representatives of the deceased. In this regard, he referred to section 166 (1) (d) of the Motor Vehicles Act, 1988, and submits that the legal representatives of the deceased can file claim petition and if any legal representative is not joined, then he/she shall be impleaded as respondent in the claim petition. Therefore, he would contend that the Act clearly states that the legal representatives need not be a dependant alone and he/she may not be either father, mother, brother or sister. According to him, a non-dependant can also file claim petition. In this regard, the learned counsel referred to the following judgments: (i) Gujarat State Road Trans. Corpn. v. Ramanbhai Prabhatbhai, (1987) ACJ 561 (SC); (ii) Dr. Gangaraju Sowmini v. Alavala Sudhakar Reddy, (2016) ACJ 1416 (Hyderabad); (iii) Montford Brothers of St. Gabriel v. United India Insurance Co. Ltd., (2014) ACJ 667 (SC); (iv) Sudama Devi v. Jogendra Choudhary, (1987) AIR Patna 239 ; and (v) Megjibhai Khimji Vira v. Chaturbhai Taljabhai, (1977) ACJ 253 (Gujarat). 14. By referring to the above judgments, he would contend that the appellants are the legal representatives of the deceased. Even if the appellants are not treated as adoptive father and mother, the deceased child was under the parental custody of the appellants, till she met with the accident. To support this contention, he also submitted that in the ration card as well as in the school certificate, the appellants are mentioned as father and mother of the deceased Anandha Sheeba. The appellants only have taken care from the date of her adoption. Therefore, he contended that the claim petition is maintainable. To support this contention, he also submitted that in the ration card as well as in the school certificate, the appellants are mentioned as father and mother of the deceased Anandha Sheeba. The appellants only have taken care from the date of her adoption. Therefore, he contended that the claim petition is maintainable. Since the words 'legal representative' are not defined in the Motor Vehicles Act, 1988, the learned counsel referred to section 2 (11), Civil Procedure Code and contended that the legal representatives are not only the father, mother and children but also others, who have lost the support of the deceased. 15. On the other hand, the learned counsel for the respondent No. 2- insurance company would contend that the Tribunal has rightly rejected the claim petition stating that the appellants are not the legal representatives of the deceased. As long as the biological father is alive, the appellants cannot file the claim petition in the capacity as the legal representatives and only the biological father is entitled to claim compensation. Therefore, even though the biological father failed to file any claim petition, the court below awarded a sum of Rs. 50,000 and the said amount was also paid to the biological father. Further, the learned counsel would contend that in the present case, the alleged adoption by the appellants is not in accordance with law. Therefore, the appellants cannot be treated as adoptive parents and in this regard, learned counsel for the respondent insurance company referred to the following judgments, in order to prove how the adoption can be made legal and who are the legal representatives of the deceased: (i) Maxin George v. Indian Oil Corporation,2005 Supreme 327 (Ker) ; (ii) Biju Ramesh v. J.P. Vijayakumar, (2005) AIR Kerala 196; (iii) National Insurance Co. Ltd. v. Ranchoor Singh, (2006) ACJ 920 (MP); and (iv) Oriental Insurance Co. Ltd. v. Johnson, (2017) 1 TNMAC 484. 16. Further he referred to section 166 of the Motor Vehicles Act, 1988, which reads as follows: "166. Ltd. v. Ranchoor Singh, (2006) ACJ 920 (MP); and (iv) Oriental Insurance Co. Ltd. v. Johnson, (2017) 1 TNMAC 484. 16. Further he referred to section 166 of the Motor Vehicles Act, 1988, which reads as follows: "166. Application for compensation.-(1) An application for com- pensation 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; 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: 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 respondents to the application." 17. By mere reading of the above provision, it is made clear that it provides for making an application for compensation by all or any of the legal representatives of the deceased. Now, the issue to be decided is who are the legal representatives of the deceased? 18. In the Motor Vehicles Act, 1988, the legal representatives are not defined. However, section 2 (11) of the Code of Civil Procedure defines the 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". 19. A legal representative 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. The issue as to who is a legal representative or agent is basically dependent upon the facts of a particular case. 19. A legal representative 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. The issue as to who is a legal representative or agent is basically dependent upon the facts of a particular case. But as the legal proposition it is undeniable that a person claiming to be the legal representative of the deceased has locus to file claim under section 166 of the Motor Vehicles Act, either directly or through any agent subject to result of dispute/objection raised by the opposite party on the said issue. 20. In the present case, the other side persuades this court that since the term 'legal representative' has not been defined under the Motor Vehicles Act, the provision of section 1-A of Fatal Accidents Act, 1855 should be taken as guiding principle and the claimants should be wife, husband, parent and child of the person whose death has been caused by the accident. However, the said submission cannot be accepted for the simple reason that in the Fatal Accidents Act, 1855, the right to file a claim was defined in order to benefit the wife, husband, parents and child. On the other hand, in the Motor Vehicles Act, 1988, the words 'legal representatives' were substituted in order to give very wider meaning to make claim in the case of motor accident. 21. The Hon'ble Supreme Court has settled the principle on the issue of legal representative to file the claim petition stating that the legal representative not only includes wife, husband, parents and child along with the dependants, but also others. Wife, husband, parents and child can be identified but in the present case with regard to others, it needs to be decided who all will fall under the category of others. 22. In the present case, it is not necessary to look into the aspect whether the adoption was legal or not. But the issue to be decided is whether the child was taken care of after she was handed over to the appellants. 22. In the present case, it is not necessary to look into the aspect whether the adoption was legal or not. But the issue to be decided is whether the child was taken care of after she was handed over to the appellants. Admittedly, when the child was 1 years old, her mother passed away and thereafter, the child was handed over to the appellants by the biological father and the appellants also accepted to adopt the deceased Anandha Sheeba and subsequent to the adoption, the child was under the custody of the appellants and they have maintained the child till she met with the accident; in the school records and ration card, which were marked as Exhs. P13 and P14, also, it was shown that the appellants are the father and mother of the deceased. Though the biological father is alive, he is not entitled to file any claim petition, since he has handed over the child to the appellants when she was 1 years old and the deceased was maintained by the appellants as the child's father and mother. Obviously, the appellants lost the love and affection due to the death of the deceased. It is not only the matter of love and affection, but also the appellants did not have any other child and the deceased was the only child and due to the death of the deceased Anandha Sheeba, the appellants, who maintained the child all along, of course, have lost not only the love and affection, but also the income of the deceased. Further, as defined in the Civil Procedure Code, the term 'legal representative' includes a person who intermeddles with the estate of the deceased. Therefore, this court is of the view that the appellants are the legal representatives of the deceased Anandha Sheeba, not only in the capacity of the adoptive parents, even if their adoption is not legally valid, still the appellants are entitled for the claim on the basis that they have maintained and they have lost the love and affection and lost the income of the deceased in future and, therefore, they squarely fall under the term 'legal representative' as stated in section 166 of the Motor Vehicles Act, 1988. Therefore, this court finds that there is no justification in rejecting the claim of the appellants stating that they are not the legal representatives and to that extent, the award of the Tribunal is set aside. 23. The Tribunal has fixed a sum of Rs. 3,000 p.a. as income and applied multiplier 15 and awarded a sum of Rs. 45,000 for loss of income and Rs. 5,000 towards funeral expenses to the biological father, who was impleaded as one of the respondents in the claim petition. In this regard the learned counsel for the appellants referred to the judgment of this court in National Insurance Co. Ltd. v. R. Vimala, (2015) 2 TNMAC 490 , wherein for a 9-year-old child, the court fixed the notional income as Rs. 5,000 p.m. for the accident occurred in the year 2013. 24. Since in the present case the accident is of the year 2014, it would be appropriate to fix the notional income of the deceased as Rs. 4,000 p.m. Considering the various judgments of the Hon'ble Supreme Court and Division Bench of this court, since the deceased was a spinster, 50 per cent of the income has to be deducted. Therefore, the loss of income after deduction would be Rs. 2,000 p.m. Since the deceased was 13 years old at the time of accident, 40 per cent towards future prospects has to be added. If 40 per cent is added towards future prospects, the monthly income would be Rs. 2,800 (Rs. 2,000 x 40 per cent). Since age of the deceased was 13 years, the appropriate multiplier to be applied as per Sarla Verma v. Delhi Transport Corporation, (2009) ACJ 1298 (SC), is 15. Therefore, the loss of income would be Rs. 5,04,000 (Rs. 2,800 x 12 x 15). 25. The Tribunal has awarded a sum of Rs. 5,000 towards funeral expenses and no amount was awarded towards transportation and for loss of estate. Therefore, as per the decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi, (2017) ACJ 2700 (SC), a sum of Rs. 15,000 is hereby awarded for funeral expenses; Rs. 15,000 is awarded towards loss of estate and Rs. 10,000 is hereby awarded for transportation. As far as loss of love and affection is concerned, the Tribunal has not awarded any amount. However, this court is inclined to award a sum of Rs. 15,000 is hereby awarded for funeral expenses; Rs. 15,000 is awarded towards loss of estate and Rs. 10,000 is hereby awarded for transportation. As far as loss of love and affection is concerned, the Tribunal has not awarded any amount. However, this court is inclined to award a sum of Rs. 50,000 to each appellant towards loss of love and affection. 26. In view of the above, this court modifies the award of the Tribunal by enhancing the compensation as under: Sl.No. Description Amount warded by Tribunal Amount awarded by this court Award enhanced or awarded (1) For loss of income Rs. 45,000 Rs. 5,04,000 enhanced (2) For loss of estate Nil Rs. 15,000 awarded (3) For funeral expenses Rs. 5,000 Rs. 15,000 enhanced (4) For transportation Nil Rs. 10,000 awarded (5) For loss of love and affection Nil Rs. 1,00,000 awarded Total Rs. 50,000 Rs. 6,44,000 By enhancing a sum of Rs. 5,94,000 27. In the result: (i) This civil miscellaneous appeal is partly allowed, enhancing the award of the Tribunal from Rs. 50,000 to a sum of Rs. 6,44,000 along with interest at the rate of 7.5 per cent per annum from the date of petition till the date of realization with proportionate costs; (ii) The insurance company, respondent No. 2, is directed to deposit the entire award amount, namely, Rs. 6,44,000 along with accrued interest at the rate of 7.5 per cent per annum and costs, less the amount deposited, if any, to the credit of MCOP No. 204 of 2004 on the file of Motor Accidents Claims Tribunal (Fast Track Court No. 2), Tuticorin, within a period of 8 weeks from the date of receipt of a copy of this judgment; (iii) On such deposit, the Tribunal is directed to transfer the entire award amount along with accrued interest at the rate of 7.5 per cent p.a. and costs directly to the personal savings bank account of the appellant No. 1-claimant through RTGS/NEFT system, after getting his account details, within a period of two weeks thereafter. The claimants are directed to pay additional court-fee, if any. (iv) Since the award amount of the lower court to an extent of Rs. 50,000 has already been deposited and the same was disbursed to the respondent No. 3 herein, this court directs the court below to transfer the award amount after deducting the sum of Rs. The claimants are directed to pay additional court-fee, if any. (iv) Since the award amount of the lower court to an extent of Rs. 50,000 has already been deposited and the same was disbursed to the respondent No. 3 herein, this court directs the court below to transfer the award amount after deducting the sum of Rs. 50,000 to the appellant No. 1-claimant, along with interest. (v) In the facts and circumstances of the case, there shall be no order as to costs.