BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :01/03/2007 CORAM : THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.(MD).No.1185 of 2006 and M.P.(MD).Nos.2 of 2006 & 3 of 2007 The Branch Manager, United India Insurance Company Limited, Dharapuram. ... Appellant vs. 1. Mrs.Kaaliathaal 2. Mrs.Rukumani 3. Mrs.Sathiyabama 4. P.Kuppuchamy ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the order and decree dated 17.11.2005 made in M.A.C.T.O.P.No.235 of 2004 on the file of Motor Accidents Claims Tribunal, Sub Court, Palani. !For Appellant : Mr.S.Ramachandran ^For RR 1 to 3 : Mr.J.Lawrance For Mr.M.Abdul Nabi For R4 : No appearance :JUDGMENT
Mother of the respondents died in a road accident which occurred on
1.1.2004. Married daughters claimed compensation of Rs.3,00,000/-. The
Tribunal, on evaluation of pleadings and evidence, awarded compensation of
Rs.2,69,000/- with interest at the rate of 6% per annum from the date of claim.
Aggrieved by the finding of the Tribunal that the married daughters are entitled
to claim compensation and the application of multiplier, the Insurance Company
has preferred this appeal.
2. Heard Mr.S.Ramachandran, learned counsel for the appellant and
Mr.J.Lawrance, learned counsel for the respondents 1 to 3.
3. The main contention raised by the counsel for the appellant is that the
claimants are married daughters, they are living with their husbands and
therefore, they are not dependants of the deceased and claim compensation for
the death of their mother. Learned counsel for the appellant further submitted
that the Tribunal has erred in fixing the monthly income of the deceased at
Rs.2,100/- in the absence of any proof and the application of multiplier “15” is
on the higher side.
4. In support of his contention that the respondents, married daughters
are not dependants of the deceased, learned counsel for the appellant cited the
following decisions; New India Assurance Company Limited V. Pedada Prabhavathi
reported in 1998 ACJ 615, Shiv Kumar V. Raj Kumar reported in 1999 ACJ 1417, and
Manjuri Bera V. Oriental Insurance Company Limited reported in 2005 ACJ 1622.
5. The first respondent examined herself as P.W.1 and has deposed that
after the death of their father, children were brought up by the deceased and
that their marriages were also solemnised with the income of the deceased. She
has further deposed that the deceased was an Agricultural Coolie, aged 45 years,
earning Rs.3000/- per month at the time of death. Placing reliance on the
evidence of the respondent, that after marriage, the claimants are living
separately with their respective families and they have separate Family Ration
cards, wherein the name of the deceased (mother) was not mentioned, learned
counsel for the appellant submitted that there is no positive evidence to prove
that the claimants (married daughters) were depending on the income of the
deceased and under such circumstances, the Tribunal has erred in awarding
compensation to them.
6. On the other hand, learned counsel for the respondents submitted that
after the demise of the father, the claimants were brought up by the deceased,
their marriages were solemnised with the sole income of the deceased and they
have lost of her savings and estate. He further submitted that Section 166 of
the Motor Vehicles Act does not speak of dependants and as legal
representatives of the deceased, they are entitled to claim compensation
irrespective of the fact whether they are dependants or not. He further
submitted that in the absence of Class I heirs, married daughters are entitled
to claim compensation, even though they are living separately. In support of his
contention, learned counsel for the respondents relied on the following
decisions in United India Insurance Company Limited V. Kasiammal reported in
1997 (III) CTC 346, Gafaran V. Tilakraj Kapur reported in 2005 ACJ 1711 and New
India Assurance Company Limited V. Ramya Raghavan reported in 2006 ACJ 2347.
7. The decisions relied on by the counsel for the appellant are examined
in brief.
8. Following the decisions rendered earlier, the Andra Pradesh High Court
in New India Assurance Co. Ltd., Vs. Pedada Prabhavathi and others reported
in1998 ACJ 615, held that the married daughter of the deceased is not entitled
to compensation along with widow and children of the deceased.
9. The Punjab and Haryana High Court, in 1999 ACJ 1417 (cited supra),
considered two separate claim petitions filed under Section 166 of Motor
Vehicles Act by three sons and two married daughters claiming compensation for
the death of their parents. The High Court confirmed the decision of the
Tribunal that though married daughters, Class I heirs under the Hindu Succession
Act, are entitled to share of a person dying intestate, they cannot be said to
be legal representatives/dependants of the deceased, as they are dependants on
their respective husbands after marriage. The Tribunal further observed that the
dependency is with reference to the pecuniary loss and not love and affection.
The Division Bench of the Calcutta High Court in 2005 ACJ 1622 (cited supra) in
paragraphs 4 and 5 of the judgment, held that
“4. …. Question of loss of association would arise only when it is found that
the person claiming loss of association was dependent on the victim. Unless this
dependence is found, there is no question of compensation for loss of
association. Even if we accept the proposition that without dependence, one is
entitled to compensation on account of loss of association, then also it has to
be proved that the victim was in association with the claimant.
5. Thus, dependency is a prima facie factor for obtaining compensation even
though one may be the legal representative of the victim. Unless the dependency
is proved, the factors relating to the compensation would not be relevant.”
10. The question whether married son living separately and not dependant
on the deceased can maintain a claim petition came up for consideration before
this Court in United India Insurance Company V. Kasiammal reported in 1997 (III)
CTC 346. In paragraph 15, the court has held as follows:
“15… The dependency of the legal representatives is a question to be
considered and does no mean only the dependants can claim compensation. The
compensation being the amount for the loss to the estate of the deceased, it has
to be considered as to whether the legal representatives had been put to loss
because of the death of the deceased. Wherever the deceased is an earning
member, naturally his savings is an accumulation for the estate which can be
divided by the legal representatives after the death of the deceased. As the
legal representatives had been put to loss of the earning of the deceased, the
legal representatives are also entitled for the compensation.”
11. A Division Bench of the Madhya Pradesh High Court in Gafaran V.
Tilakraj Kapur reported in 2005 ACJ 1711, considered as to whether major sisters
of the deceased who were not dependent on the deceased are also entitled to
claim compensation. The Court held that
“Under Section 166 of the Motor Vehicles Act, where the death has resulted from
the accident, the claim can be preferred by all or any of the legal
representatives of the deceased. This provision does not speak of dependants or
all such legal representatives being dependent on the deceased. Any legal
representative of the deceased can prefer claim before the Tribunal irrespective
of he being dependent or not dependent on the deceased.”
12. In a case reported in New India Assurance Company Limited V. Ramya
Raghavan in 2006 ACJ 2347, the Karnataka High Court considered the subject
matter of this appeal, as to whether married daughter living separately can
maintain a claim for compensation for the death of her mother. In paragraph 5 of
the judgment, the court held that:
“5… The proof of actual dependency is not necessary in law. However, the legal
representatives under Section 2 of Fatal Accidents Act, 1855, are entitled to
seek compensation for loss to estate and they cannot seek general damages and
loss of dependency. That apart, note 6 of Second Schedule enables the legal
heirs to seek compensation under Section 163-A. The named dependants are
entitled to seek compensation under Section 163-A.”
13. A perusal of evidence on record prove that after the demise of the
claimants’ father, the daughters were solely dependent on the income of the
deceased. She had given them education, food, shelter and the entire marriage
expenses were borne by the deceased. Merely because that the claimants are
married daughters living separately with their respective husbands, one cannot
jump to the conclusion that the deceased mother who was all along supporting
her children would have abruptly stopped her contribution and assistance her
married daughters. Even assuming that she would have spent money for her living
and personal expenses, she would have certainly contributed a portion of her
income to her children or to the grand children as the case may be. Dependency
of the legal representatives is a fact to be decided in each case and there
cannot be any rigid formula that only dependants alone can claim compensation
under Section 163-A or 166 of the Motor Vehicles Act.
14. The Legislature has not used the word, dependant in the Section,
rather it has used the word “all or any of the legal representatives”. In the
absence of class I heirs, the claimants being married daughters are not
precluded from claiming compensation under the Act. They are legal
representatives, entitled to the estate of the deceased and therefore entitled
to claim compensation, no matter whether they are dependants or not.
15. The Supreme Court in Gujarat State Road Transport Corporation Vs.
Ramabhai Prabhatbhai reported in 1987 ACJ 561(SC) has held that “legal
representative ordinarily means a person who in law represents the estate of the
deceased person or a person on whom the estate devolves on the death of an
individual. By referring to Section 166 of the Motor Vehicles Act, the Supreme
Court held that:
“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. It is for the Motor Vehicle
Accidents Tribunal to determine the compensation which appears to it to be just
as provided in Section 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 Section 110-B of the Act amongst the legal
representatives for whose benefits 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
dependant 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 Vs.
Chaturbhai Taljabhai (supra), 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.”
Dealing with the claim made by the first cousin of the deceased, the Division
Bench of this Court in Govindasamy Vs. Ravi and others reported in 2003(1) MLJ
253 in paragraph 10 of the Judgment has held that:
“The expressions ‘legal representative’ has not been defined under the Motor
Vehicles Act, 1939. But sec.2(c) of the Madras Motor Accidents Claims Tribunal
Rules 1961, states that, the term ‘legal representatives’ occurring in Sec.110-A
is stated to have the same meaning assigned to it under Sec.2(11) of C.P.C.
Sec.2(11) of C.P.C., 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 a deceased and where a party sues or is sued in
a representative character the person on whom the estate devloves on the deaths
of the party so suing or sued”. The said 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 C.P.C. 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. We can also state that the
term ‘legal representative’ occurring in Sec.110-A of the Act, has wider impact
that the definition of the terms contained in Sec.2(11) of C.P.C. Clauses (b)
and (c) of Sec.110-A of the Motor Vehicles Act, 1939 provide that all or any of
the legal representative of the deceased are entitled to make an application for
compensation before the Claims Tribunal for the death of the deceased on account
of a motor vehicle accident. Proviso to Sec.110-A of the Act gains 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. Clause (b) of Sec.110-A states, application for compensation may be
made, by all or any of the legal representatives of the deceased and Clause (c)
of Sec.110-A provides that any agent duly authorised by the person injured or
all or any of the legal representatives of the deceased can make such an
application. Both the person or persons who can make an application for
compensation and the persons for whose benefit such application can be made are
thus indicated in Sec.110-A of the Act.”
16. Separate living does not deprive them of their right to claim
compensation as legal representative to the loss of estate. Therefore, I am of
the view that married daughters are also entitled to claim compensation in the
absence of other legal heirs and that the proof of actual dependency is not
necessary.
17. The next contention made by the learned counsel for the appellant is
that the determination of the monthly income at Rs.2,100/- in the absence of
proof, is erroneous and that application of multiplier “15” is excessive, P.W.1
has deposed that her mother was an Agricultural Coolie, aged 45 years and
earning Rs.3000/- per month. The fact that she had provided the basic needs to
her three daughters after her husband’s demise and solemnised their marriage
would itself prove that the deceased was earning. Considering the age of the
deceased and her effort to bring up the female children, it could be reasonably
presumed that she would have earned atleast Rs.2,100/- for maintaining herself
and three children. Therefore, the determination of the income at Rs.2,100/-
cannot be termed as excessive.
18. The age of the first respondent who is the eldest, among the three
married daughters, was 29 years at the time of trial. The Supreme Court has held
that while determining the dependency compensation, the choice of the multiplier
should be with reference to the age of the deceased (or that of the claimants,
whichever is higher).
19. In the instant case, the deceased was aged 45 years at the time of
death. The multiplier for the age group of persons above 40 years but not
exceeding 45 years, as per the Second Schedule to Section 163-A is “15”. While
arriving at the capital sum to be consumed up by the dependants for a
considerable period and taking into account the age of the deceased i.e., 45
years, the proper multiplier is “15”. Therefore, applying the same to the income
of the deceased and after deducting one third towards her personal expenses, the
Tribunal has awarded dependency compensation of Rs.2,52,000/-. In addition to
that, the Tribunal has awarded compensation of Rs.15,000/- for loss of love and
affection to be shared equally by respondents 1 to 3. The compensation of
Rs.5,000/- to each of the children for loss of love and affection is inadequate.
Rs.2000/- is awarded for funeral expenses. Altogether the Tribunal has awarded
compensation of Rs.2,69,000/- with interest at the rate of 6% per annum.
20. I do not find that the Tribunal has applied any wrong principles of
law for arriving at the conclusion that married daughters are also entitled to
claim compensation. The quantum of compensation, for the death of person aged 45
years who had contributed her income to her family cannot be termed as
excessive.
21. In the result, the award of the Tribunal is confirmed and the Civil
Miscellaneous Appeal is dismissed. There will be no order as to costs.
Consequently, connected M.P.s are dismissed.
To
The Sub Court,
The Motor Accident Claims Tribunal,
Palani.