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2023 DIGILAW 339 (TS)

Kuna Kashaiah Kuna Kashanna v. M. Kishtaiah

2023-04-27

LALITHA KANNEGANTI

body2023
JUDGMENT : 1. Aggrieved by the award and decree dated 04.02.2003 passed in O.P.No.30 of 2001 on the file of the Motor Accident Claims Tribunal (Additional District Judge) at Nizamabad (for short, ‘the Tribunal’), the claimant filed M.A.C.M.A.No.3575 of 2005 and the Insurance Company filed M.A.C.M.A.No.490 of 2009. 2. The claim petition was filed seeking compensation of an amount Rs.2,00,000/- on account of the death of the deceased Kuna Sathish in the motor vehicle accident that occurred on 31.05.2000. The case of the claimant is that he is the brother of the deceased. At the time of accident, the deceased was aged about 8 years and earning an amount of Rs.3,000/- per month. The Tribunal, basing on the plea taken by the Insurance Company, has dealt with the issue whether the brother of the deceased is dependant to maintain claim under Section 166 of the Motor Vehicles Act (for short, ‘the Act’). The Tribunal relying on clause (11) of Section 2 of C.P.C. has come to the conclusion that the claimant, who is the brother of the deceased, can maintain an application, granted compensation of Rs.5,000/- under the head of loss of love and affection and Rs.5,000/- was also granted towards funeral expenses and an amount of Rs.50,000/- is granted under non-pecuniary damages, in all the Tribunal has awarded compensation of an amount of Rs.60,000/-. 3. Learned counsel appearing for the claimant submits that the Hon’ble Apex Court in Meena Devi v. Nunu Chand Mahto, (2023) 1 SCC 204 , in case of a boy of 12 years has granted an amount of Rs.5,00,000/-. It is submitted that the Tribunal ought to have considered the same and ought to have granted the said compensation. 4. Learned counsel appearing for the Insurance Company submits that the brother of the deceased is aged about 19 years and the deceased was 8 years old, as such, the claimant cannot be considered as dependant of the deceased and he is not entitled for any amount. 4. Learned counsel appearing for the Insurance Company submits that the brother of the deceased is aged about 19 years and the deceased was 8 years old, as such, the claimant cannot be considered as dependant of the deceased and he is not entitled for any amount. Learned counsel has relied on the judgment of this Court in New India Assurance Company Limited, Warangal v. Samala Agaiah and another, 2012 (5) ALD 322 , wherein the claim petition was filed by the younger brother of the deceased and this Court while relying on the judgment of the Apex Court in Smt. Manjuri Bera v. Oriental Insurance Company Limited, 2007 (3) ALD 55 (SC), has held that the younger brother of the deceased is entitled for compensation as legal representative, but the said compensation would be towards loss of estate and not towards loss of dependency. Further, it is also held that that the claimant being the younger brother of the deceased though not dependant on him, is entitled to receive the compensation under ‘no fault liability’ in terms of Section 140 of the Act and nothing more. Relying on the said judgment, learned counsel submits that the brother is not entitled for any compensation as he is not a dependant. 5. In response to the same learned counsel for the claimant submits that though he is not dependant, still he is entitled for the compensation. 6. Heard learned counsel on either side. Perused the entire material on record. 7. Similar issue fell for consideration before a Full Bench of this Court in Dr.Gangaraju Sowmini v. Alavala Sudhakar Reddy and Another, 2016 (2) TN MAC 20 (FB) (Hrd.). A reference was made to Full Bench Court whether in view of the conflicting opinions rendered by Two different Division Benches in the case of Oriental Insurance Company Limited v. P.Satyavathamma, 2010 (3) ALT 433 and Vanguard Insurance Company Limited v. Chellu Hanumantha Rao, 1975 ACJ 344 , whether non-dependant heir of the deceased, who died in a motor accident, is entitled to lay claim for compensation under Section 166 of the Act, where there are no other dependant legal heirs claiming compensation. The Full Bench has discussed at length Sections 140, 163-A, 165 and 166 of the Act and the judgments of the Apex Court in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and Another : (1987) 3 SCC 234 , Magjibhai Khimji Vira and another v. Chaturbhai Taljabhai and another : AIR 1977 Gujarat 195 and the judgment of the Madras High Court in United India Insurance Company Limited v. Poongavanam and others, P.S.Somanathan and others v. District Insurance Officer and another, further considered Rule 2(g) of the A.P. Motor Vehicles Rules, 1989 and the judgment of the Hon’ble Supreme Court in Manjuri Beras case (3 supra). Having considered Section 2(11) of the Code of Civil Procedure held that non-dependant also can lay a claim by filing application under Section 166 of the Act and also observed that the situations may arise, where, one may have suffered injuries initially but ultimately after filing a claim, may have succumbed to such injuries also, in such an event, lot of amount would be spent towards hospitalization. Further observed that it is common in the Indian society, where, the members of the family who are not even dependant also can extend their support monetarily and otherwise to the victims of accidents to meet the immediate expenditure for hospitalization. In such cases, unless the legal representatives are allowed to continue the proceedings initiated by the person who succumbs to injuries subsequently, such claims will be defeated and that will also defeat the very object and intentment of the Act. It is observed that any such measure would be wholly unequitable and unjust. Plainly, that would never be intent of any piece of legislation. Hence, the Full Bench has held that the legal representatives, who are not dependants, can also lay a claim for payment of compensation by making application under Section 166 of the Act. Accordingly, the reference was answered. 7. The first contention of the learned counsel for the Insurance Company that a non-dependant cannot make a claim under Section 166 of the Act has no legs to stand in the light of Full Bench judgment of this Court. 8. Accordingly, the reference was answered. 7. The first contention of the learned counsel for the Insurance Company that a non-dependant cannot make a claim under Section 166 of the Act has no legs to stand in the light of Full Bench judgment of this Court. 8. Learned counsel relied on the judgment of the Hon’ble Supreme Court in Manjuri Beras case (3 supra) and submits that as per the said judgment, where the Court has held that the married daughter was not dependant on the father, she was not entitled to claim statutory compensation. The Hon’ble Supreme Court has held that in the opinion of the Court ‘no fault liability’, envisaged in Section 140 of the Act, is distinguishable from the rule of ‘strict liability’ and since the amount is a fixed amount/crystallized amount, the same has to be considered as a part of estate of the deceased and the legal representatives are entitled to inherit his estate, as such, she is entitled to receive the compensation under ‘no fault liability’, it should not exceed Rs.50,000/-. Even this submission of learned counsel has also no legs to stand for the reason that the Hon’ble Apex Court in National Insurance Company Limited v. Birender and others : (2020) 1 S.C.R. 946, has held as under: It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/ and Rs.1,50,000/ per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years. 9. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years. 9. In the light of the said judgment of the Apex Court, the claim cannot be restricted only to consortium and other benefits as such under the head of dependency also they are entitled for compensation. 10. The claimant has relied on the judgment of the Apex Court in case of Montford Brothers of ST. Gabriel and another v. United India Insurance and another, (2014) 3 SCC 394 . In this case, a Father of a Church died. The Hon’ble Apex Court has held that in case of death of a person in a motor accident, rights will accrue to a legal representative of the deceased or the agent of the legal representative to lodge a claim for compensation under the provisions of the Act. The Apex Court held that the Church is entitled for compensation for the death of the Father of the Church. 11. In the light of the law laid down in the above referred cases, the brother is entitled to file application under Section 166 of the Act being the legal representative as defined under Section 166 of the Act and is entitled to claim under the heads of loss of dependency apart from loss of estate. In view of the above discussion, the appeal of the Insurance Company is liable to be dismissed. 12. Then coming to the case of the claimant seeking enhancement of compensation, the Hon’ble Apex Court has held that the person can lay a claim under Section 166 of the Act and he cannot be deprived of the benefits under for the loss of dependency. Hence, this Court is proposing to consider whether the compensation that is awarded is just and reasonable. 13. The Hon’ble Apex Court in Meena Devi’s case (Supra) dealing with death case of 12 years old boy by considering the earlier judgment in Three-Judge Bench of the Hon’ble Apex Court in Nagappa v. Gurdayal Singh and others, (2003) 2 SCC 274 , has held that under M.V.Act, there is no restriction that the Tribunal/Court cannot award compensation exceeding the amount so claimed. It was further observed that the Tribunal/Court ought to award ‘just’ compensation which is reasonable in the facts relying upon the evidence produced on record, as such the Hon’ble Apex Court the notional income was considered at Rs.30,000/- by applying the multiplier ‘15’ and under the other heads granted an amount of Rs.50,000/- and awarded total compensation of Rs.5,00,000/-. Hence, in the light of the same, the appeal of the Insurance Company i.e., M.A.C.M.A.No.490 of 2009 is dismissed and the appeal of the claimants i.e., M.A.C.M.A.No.3575 of 2005 is allowed enhancing the compensation from Rs.60,000/- to Rs.5,00,000/-. (a) The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization. (b) The claimant shall pay the court fee on the enhanced amount of compensation. (c) The Insurance Company shall deposit the amount within a period of eight weeks from the date of receipt of a copy of the judgment. (d) On such deposit, the claimant is entitled to withdrawn the same as per the terms of the award without furnishing the surety. Miscellaneous applications, pending if any, shall stand closed.