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FA/254/2010 12/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 254 of 2010
With
CIVIL
APPLICATION No. 1545 of 2009
=========================================================
NATIONAL
INSURANCE COMPANY LIMITED - Appellant(s)
Versus
PRITAMSINH
NATWARSINH CHAUHAN & 3 - Defendant(s)
=========================================================
Appearance :
MS
MEGHA JANI for
Appellant(s) : 1,
None for Defendant(s) : 1, 1.2.1, 1.2.2,
1.2.3,1.2.4 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 11/02/2010
ORAL
ORDER
Heard
learned Advocate Ms. Megha Jani appearing on behalf of
appellant-National Insurance Company Limited. The appellant
Insurance Company has challenged the award passed by Motor Accident
Claims Tribunal, Godhra in MACP No.1707/2002 Exhibit 34 decided on
16.05.2009. Before Claims Tribunal, Godhra, respondents No.1 and 2
remained absent and appellant-National Insurance Company Ltd. has
appeared. Claims Tribunal has awarded Rs.6,86,000/= being amount of
compensation in favour of respondent claimant with 7.5% interest.
Claim petition was filed by claimant under Section 166 of Motors
Vehicle Act. Claim petition arises out of an accident which took
place on 15.12.2001 as the deceased Mahendrasinh Natwarsinh
Chauhan who was going on his bicycle was dashed by a Jeep bearing
registration No.GJ-17-C-4911. Claims Tribunal held the driver of the
jeep negligent for the accident and awarded compensation of
Rs.6,86,000/= to the claimant and it was challenged by appellant to
the extent of Rs.2,79,000/= only. Learned Advocate Ms. Megha Jani
submitted that income of deceased has been wrongly assessed by
Claims Tribunal as Rs.3,000/= without any cogent evidence being
produced by claimant. She further stated that the deceased was
unmarried. Therefore, as per recent decision of Apex Court in the
case of Sarla Verma (Smt) and Others V. Delhi Transport
Corporation and another reported in 2009 6 Scale 129
one half amount is to be deducted towards personal expenses instead
of deducting 1/3rd while assessing loss of dependency.
The deceased was a bachelor and claimants happened to be brothers of
the deceased who were dependents of the deceased. The legal
representatives of the deceased would be at the most be entitled to
get the amount towards loss of estate of the deceased. The
respondent No.2-Karnavirsinh Mahavirsinh Chauhan is the nephew of
the deceased and he was the adopted son of the deceased but Claims
Tribunal has not accepted this version of the claimant and
therefore, has not awarded compensation to respondent No.2. She
also submitted that Claims Tribunal has wrongly relied upon the
decision of this Court reported in 2005 (2) G.L.H. 85
incase of New India Assurance Company Ltd. Vs. Ashwin Vrajlal
Rajgor. She submitted that this decision is not applicable
because in absence of any Class I heir, the nephew of the deceased
who comes within the purview of Class II heir, under Hindu
Succession Act is entitled to get compensation. In present case,
when representatives of Class I heir are already on record, the
Tribunal ought not to have awarded any amount to respondent No.2, in
view of deceased who happens to be Class II heir as per the Hindu
Succession Act, 1956. The multiplier of 16 adopted by Tribunal is on
higher side. The Tribunal ought not to have applied a multiplier of
more than 11 considering that real claimants were brothers and
sister of the deceased aged 53, 48, 46 and 44; except this no other
submissions have been made before this Court by learned Advocate Ms.
Megha Jani.
I
have considered submissions made by learned Advocate Ms. Megha Jani
and I have also perused the award passed by Claims Tribunal, Godhra.
The accident occurred on 15.12.2001 when the deceased going on a
bicycle on reaching near Village Chenpur and coming from Devgadh
Baria, in a rash and negligent manner, opponent No.1 driver of Jeep
No.GJ-17-C-4911 dashed with the bicycle and resulting in serious
injury to Mahendrasinh Natwarsinh Chauhan. Ultimately during
treatment after six days on 21.12.2001, Mahendrasinh Natwarsinh
Chauhan expired because of serious injuries sustained in the
accident. First Information Report was lodged against driver of
jeep in Devgadh Baria Police Station No.249/01. Respondents No.1
and 2 remained absent. Therefore, ex-parte proceedings were
initiated against them. Insurance Company filed a reply, Exhibit
21. Claimant has produced documents vide Exhibit 19 as referred in
Paragraph 4 as under :-
1)
Copy of medical bills of deceased- Mahendrasinh Natwarsinh Chauhan,
Annexures 1 to 22 totalling to Rs.77,679.27.
2) Copy
of First Information Report.
3) Copy
of Panchnama of place of accident.
4) Copy
of Inquest Panchnama of body of the deceased- Mahendrasinh
Natwarsinh Chauhan.
5) Copy
of Post Mortem note of deceased- Mahendrasinh Natwarsinh Chauhan.
6) Copy
of Driving License of opponent No.1.
7) Copy
of R.C. Book of vehicle involved in the accident.
8) Copy
of Insurance Policy of vehicle involved in the accident.
9) Copy
of chargesheet.
It
is necessary to note that appellant’s advocate, Ms. Jani has not
challenged the question of negligence decided by Claims Tribunal,
Godhra before this Court. Therefore, this Court is not examining
question of negligence which has been rightly decided by Claims
Tribunal. Therefore, issue no.1 has been decided by Claims Tribunal
considering FIR-Exhibit 25 and evidence of claimant. The driver of
jeep had not appeared before Claims Tribunal and had not explained
the accident and has not filed any reply to claim petition.
According to claimant, deceased was earning Rs.6,000/= from
agricultural work and from STD PCO Booth, but no cogent evidence is
produced by claimant. Therefore, considering date of accident as
15.12.2001 and having income from agricultural work as well as from
STD PCO Booth and maintaining a family, Claims Tribunal has assessed
Rs.3,000/= as being the income of deceased. Thereafter, future
prospective income has been considered after deducting 1/3rd,
Rs.3000/= amount comes to being a dependency and yearly, it comes to
Rs.36,000/= and looking to the age of the deceased as 35 years, 16
multiplier has been applied and Rs.15,000/= has been awarded for
loss of estate and Rs.80,000/= has been awarded for medical expenses
and Rs.10,000/= for pain, shock and suffering and Rs.5,000/= for
funeral expenses and transportation charges. Hence, the total
amount comes to Rs.6,86,000/=.
A
contention was raised by learned Advocate, Ms. Megha Jani that
deceased was unmarried. Therefore, 1/3rd amount is to be
considered as dependency and 2/3rd amount is to be
deducted for personal expenses and relying upon the Apex Court’s
decision in case of Sarla Verma (supra), 50% amount is
to be deducted from income.
I
have considered the submissions made by learned Advocate Ms. Jani.
Such submissions cannot be accepted because deceased was aged 35
years which means that deceased was of a marriageable age.
Therefore, even in near future he must have acquired a family as per
decision of Apex Court in case of Bijoy Kumar Dugar V.
Bidyadhar Dutta & Ors. reported in AIR 2006 SC
1255. Relevant paragraphs are quoted as under :-
The
deceased, a young boy of 24 years old, was unmarried and the
claimants were his father and mother, the dependency has to be
calculated on the basis that within two or three years the deceased
would have married and raised family and the monthly allowance he
was giving to his parents would have been cut down. Thus, in our
view, the MACT has awarded just and reasonable compensation to the
claimants.
In
case of Bilkish V. United India Insurance Co. Ltd.
reported in 2008 ACJ 1357, relevant paragraph is
quoted as under :-
4.
After hearing learned counsel for the parties, we are of the opinion
that the view taken by High Court and Tribunal is not correct. The
incumbent was a bachelor and he could not have spent more than 1/3rd
of his total income for personal use and rest of the amount earned
by him would certainly go to the family kitty. Therefore,
determining the loss of dependency by 50 per cent was not correct.
Therefore, we assess that he must be spending 1/3rd for
personal use and contributing 2/3rd of his income to his
family. Therefore, we work out that Rs.30,000/= was earned by him
per annum. The loss of dependency was 2/3rd, i.e.,
Rs.20,000. The multiplier of ’11’ applied for loss of dependency
was also not correct and as per Schedule appended to the Motor
Vehicles Act, 1988, it should be ’12’. Applying the multiplier of
12 the total loss of dependency will be Rs.20,000 x 12 = Rs.2,40,000
and Rs.10,000 towards loss to estate and funeral expenses, the total
compensation comes to Rs.2,50,000 and incumbent is entitled for
interest at the rate of 9 per cent per annum from the date of the
petition. The appeal is allowed within the aforesaid modification.
If any amount has already been paid to claimant then that amount may
be deducted from the total amount. Consequently, the appeal is
allowed in part with no order as to costs.
Therefore,
in view of aforesaid decisions, when the deceased was having a
marriageable age and may have acquired a family in near passage of
time, even 1/3rd amount is to be deducted being the
personal expenses of such a deceased. Therefore, in my opinion,
Claims Tribunal has rightly deducted 1/3rd amount as
being the personal expenses. In recent decision of Apex Court in
case of Kimlibhai
reported in 2009 6 Supreme 106, wherein a carpenter
who had died in accident having age of 40 years had not produced
cogent evidence for proving income of deceased. The accident had
occurred in the year 1997 even though Apex Court has assessed income
of carpenter who died in accident at Rs.3,000/= per month and 17
multiplier has been applied considering age of deceased as 40 years.
Therefore, in light of the recent decision of Apex Court looking to
age of deceased- Mahendrasinh Natwarsinh Chauhan, 16 multiplier has
been rightly applied by Claims Tribunal. Hence, Claims Tribunal has
not committed any error which requires interference by this Court.
The future prospective income of deceased is also rightly considered
by Claims Tribunal in light of decision of Apex Court in case of
General Manager, Kerala S.R.T.C. Vs. Susamma Thomas reported
in AIR 1994 SC Page 1631 and in case of
Smt. Sarla Dixit & Anr. Vs. Balwant Yadav & Anr.
reported in AIR 1996 SC Page 1274 and incase of
Ritaben alias Vanitaben Wd/o. Dipakbhai Hariram and Anr. Vs.
Ahmedabad Municipal Transport Service
reported in 1998(2) GLH 670. Therefore,
no error is committed by Claims Tribunal in considering future
prospective income of deceased. Amount of medical expenses are
based on medical bills collectively produced vide Exhibit 34 which
are not disputed by appellant’s Advocate before Claims Tribunal.
Therefore, in my opinion, the amount passed in favour of the
claimant by the Claims Tribunal is reasonable just and proper.
One
contention has been raised by appellant-Insurance Company before
Claims Tribunal that father of Mahendrasinh Natwarsinh Chauhan
expired during pendency of claim petition. Therefore, present
respondent No.1/1 to 1/4 and respondent No.2 minor are joined as
legal heirs and representatives of deceased. The contention is that
claimants now have become the brother and sister and adopted son
being nephew. Therefore, they are not entitled to any amount of
compensations because they are not dependents of deceased. The
decision of Apex Court relied upon by claimants before Tribunal in
the case of Gujarat State Road Transport Corporation V.
Ramanbhai Prabhatbhai and Others in S.L.P. (Civil)
No.2802/1987 TAC (1950-95) SC Page 198. In the aforesaid
decision, Apex Court has examined question as to who is to be
considered as legal representative of deceased. In the aforesaid
decision, brother and sister of the deceased are considered to be
legal representative and aforesaid decision is relied upon by
learned Advocate, Mr. P.R. Desai appearing on behalf of claimants. A
second decision of this Court reported in the case of New
India Assurance Company Ltd. Vs. Ashwin Vrajlal Rajgor (supra) is
also relied by the Advocate of the claimant and on that basis,
contention raised by Advocate of Insurance Company has been rejected
by Claims Tribunal. The Division Bench of this Court has examined
this issue while considering provisions of Hindu Succession Act,
1956 as discussed in Paragraphs 4 and 5 which are quoted as under :-
4.
Question with regard to claimants being legal heirs / legal
representatives of the deceased should not detain us for long
keeping in view the broad and liberal nature of the legislation and
the decision of this Court in Megjibhai Khimji Vira and another v.
Chaturbhai Taljabhai and others (AIR 1977 Gujarat 195) wherein the
Division Bench speaking through Ahmadi J. (as His Lordship then was)
held that claims for compensation arising out of the use of a motor
vehicle can be maintained by the brothers and nephews of the
deceased who are legal representatives. This decision is approved
by the Apex Court in Gujarat State Road Transport Corporation,
Ahmedabad v Ramanbhai Prabhatbhai and another (AIR 1987 SC 1690).
In paragraph 9, the Apex Court said :
Clauses
(b) and (c) of sub-sec.(1) of S.110-A of the Act provide that an
application for compensation arising out of an accident may be made
where death has resulted from the accident by all or any of the
legal representatives of the deceased or by any agent duly
authorised by all or any of the legal representatives of the
deceased. The proviso to sub-s. (1) of S.110_a provides 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. The expression
‘legal representative’ has not been defined in the Act. Section
2(11) of the Code of Civil Procedure, 1908 defines ‘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. The above definition, no
doubt, in terms does not apply to a case before the Claims Tribunal
but it has to be stated that even in ordinary parlance the said
expression is understood almost in the same way in which it is
defined in the Code of Civil Procedure. A legal representative
ordinarily means a person who in law represents the estate of a
deceased person or a person on whom the estate devolvs on the death
of an individual. Clause (b) of sub-sec.(1) of S. 110A of the Act
authorises all or any of the legal representatives of the deceased
to make an application for compensation before the Claims Tribunal
for the death of the deceased on account of a motor vehicle accident
and Cl.(c) of that sub-section authorises any agent duly authorised
by all or any of the legal representatives of the deceased to make
it. The proviso to sub-s.(1) of S.110-A of the Act appears to be of
some significance. It provides that the application for
compensation shall be made on behalf of or for the benefit of all
the legal representatives of the deceased. Section 110-A(1) of the
Act thus expressly states that (i) an application for compensation
may be made by the legal representative of the deceased or their
agent and (ii) that such application shall be made on behalf of or
for the benefit of all the legal representatives. Both the person
or persons who can make an application for compensation and the
person for whose benefit such application can be made are thus
indicated in S.110-A of the Act. This section in a way is
substitute to the extent indicated above for the provisions of S.1A
of the Fatal Accidents Act, 1855 which provides that every such
action or suit shall be for the benefit of the wife, husband, parent
and child, if any, of the person whose death shall have been so
caused, and shall be brought by and in the name of the executor,
administrator or representative of the person deceased. While the
Fatal Accidents Act, 1855 provides that such suit shall be for the
benefit of the wife, husband, parent and child of the deceased,
S.110-A(1) of the Act says that the application shall be made on
behalf of or for the benefit of the legal representatives of the
deceased. A legal representative in a given case need not
necessarily be a wife, husband, parent and child. It is further
seen from S.110-B of the Act that Claims Tribunal is authorised to
make an award determining the amount of compensation which appears
to it to be just and specifying the person or persons to whom
compensation shall be paid. This provisions takes the place of the
third paragraph of S.1A of the Fatal Accidents Act, 1855 which
provides that in every such action, the Court may give such damages
as it may think proportioned to the loss resulting from such death
to the parties respectively, for whom and for whose benefit such
action shall be brought. Persons for whose benefit such an
application can be made and the manner in which the compensation
awarded may be distributed amongst the persons for whose benefit the
application is made are dealt with by S.110-A and S.110-B of the Act
and to that extent the provisions of the Act do supersede the
provisions of the Fatal Accidents Act, 1855 in so far as motor
vehicle accidents are concerned. These provisions are not merely
procedural provisions. They substantially affect the rights of the
parties. As the right of action created by the Fatal Accidents Act,
1855 was new in its species, new in its quality, new in its
principles, in every way new the right given to the legal
representatives under the Act to file an application for
compensation for death due to a motor vehicle accident is equally
new and an enlarged one. This new right cannot be hedged in by all
the limitation of an action under the Fatal Accidents Act, 1855.
New situations and new dangers require new strategies and new
remedies.
In
paragraph 11, the Apex Court further said :
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 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.110B 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 on the decision in Megjibhai
Khimji Vira v. Chaturbhai Taljabhai (AIR 1977 Guj 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.
5.
In the Hindu Succession Act, 1956, brothers’ son is class II heir.
Therefore, the petition is maintainable, claimants being legal
representatives/heirs of the deceased within the meaning of Section
166/163-A of the Act. Deceased was bachelor and left no other
heir/representative in class I to represent him in his estate,
except the claimants, according to learned counsel for the
claimants.
In
view of the observations made by Division Bench of this Court as
referred above, the contention raised by learned Advocate Ms. Megha
Jani cannot be accepted. Therefore, Claims Tribunal, Godhra has
rightly examined and rightly decided the matter. Hence, Claims
Tribunal has not committed any error which requires interference by
this Court. The amount of compensation is also properly worked out
which cannot be considered to be on higher side and in my opinion, a
reasonable, just and proper compensation has been awarded. No
interference is required by this Court. Therefore, there is no
substance in First Appeal. Accordingly First Appeal is dismissed.
Today First Appeal No.254/2010 is dismissed. Therefore, no order is
required to be passed in Civil Application. Accordingly, Civil
Application No.1545/2009 is disposed of.
(H.K.
Rathod, J.)
Caroline
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