V. Subbarayudu v. G.M, Andhra Pradesh State Road Trans. Corpn. And Another

V. Neeladri Rao, J.:— All these four appeals were heard together as they arise out of a common order.

2. The point that falls for consideration is: whether the father is entitled to claim compensation under section 110-A of the Motor Vehicles Act, 1939, along with his wife when their unmarried son died in a motor accident? The facts which give rise to this point are as under: V. Venkatachalamma (the appellant in A.A.O Nos. 1301 and 1303 of 1991) was the wife of V. Subbarayudu (the appellant in A.A.O Nos. 1034 and 1035 of 1991). They had a son Balasubrahmanyam, and a daughter, Valli Kumari. Venkatachalamma deserted her husband, Subbarayudu, and married Srirama Naidu on 2.8.1977 The children, i.e, Balasubrahmanyam and Valli Kumari were brought up by the father V. Subbarayudu. On 31.12.1984 at about 8.30 a.m, the A.P.S.R.T.C bus bearing No. AAZ 5186 while proceeding on Tirupathi-Alipiri Road ran over Balasubrahmanyam and his sister Valli Kumari near Maternity Hospital. Both the brother and sister succumbed to the same. The father of the deceased filed O.P Nos. 56 and 57 of 1985 for compensation under section 92-A of the Motor Vehicles Act, 1939. Subsequently, the mother of the deceased got impleaded in these proceedings claiming half of the compensation. The Tribunal clubbed, tried and disposed of both these matters. It awarded an amount of Rs. 15,000/- each for the death of the two children towards no fault liability. The Tribunal apportioned the award amount between the father and the mother equally.

3. The father, V. Subbarayudu, filed C.M.A Nos. 301 and 330 of 1988 challenging the apportionment of compensation between himself and his wife Venkatachalamma (for short ‘the mother’). It was contended for the father in those two C.M.As that the mother cannot be termed as a ‘legal representative’ in view of the fact that she remarried about more than 7 years earlier to the accident and she never looked after the children and the father alone continued to bring them up till the date of the accident. By referring to the decision in Kasturi Devi v. Deputy Director of Consolidation, (1976) 4 SCC 674 : AIR 1976 SC 2595, held in those two C.M.As that the remarriage of the mother is no bar to succeed as heir to her son and daughter and thus she is a legal representative coming within the purview of section 110-A of the Motor Vehicles Act read with sections 8 and 15 of the Hindu Succession Act, 1956. Accordingly, the two C.M.As were dismissed. The judgment therein was affirmed by the Division Bench of this court as per judgment dated 31.1.1992 in L.P.A Nos. 222 and 223 of 1991.

4. The father filed O.P Nos. 218 and 227 of 1987 on the file of the Motor Accidents Claims Tribunal (III Addl. District Judge), Chittoor, at Tirupathi, under section 110-A of the Motor Vehicles Act. They were disposed of by a common order. The Tribunal awarded an amount of Rs. 20,000/- each for the death of the two children and the Tribunal apportioned the compensation between the father and mother equally. The father filed A.A.O Nos. 1034 and 1035 of 1991 challenging the apportionment of compensation and claimed the entire compensation on the basis of the very contentions raised in A.A.O Nos. 301 and 330 of 1988. The mother filed A.A.O Nos. 1301 and 1303 of 1991 by alleging that the amount awarded towards compensation is inadequate. C.M.P Nos. 5814 and 5815 of 1992 were filed by the mother praying for permission to raise the additional ground as under:

“The court below ought to have seen that the appellant herein being the mother of the deceased children is entitled for the full compensation to the exclusion of the first respondent herein.”

5. It may be noted that even the father claimed in A.A.O Nos. 1034 and 1035 of 1991 for enhanced compensation.

6. Before adverting to the main point for consideration, the claim for the enhanced compensation can be dealt with. Both the children are minor children. The Tribunal awarded Rs. 15,000/- towards the loss of expectation of life and pain and suffering of the deceased by relying upon Andhra Pradesh State Road Trans. Corpn. v. S.V Perumal Chetty, 1988 ACJ 761 (AP) and another amount of Rs. 20,000/- by observing that in view of several decisions reported that when even a child dies, a consolidated amount of Rs. 15,000/- to Rs. 30,000/- has to be awarded. Hence, the Tribunal felt that in each case Rs. 35,000/- has to be awarded and as already Rs. 15,000/- was awarded in each case in petitions filed under section 92-A, an amount of Rs. 20,000/- each was awarded in the two O.Ps It was not pleaded for the father that he was depending upon the earnings of his son and daughter. This court held in Andhra Pradesh State Road Trans. Corpn. v. G. Ramanaiah, 1988 ACJ 223 (AP), that in case of death of children aged under 15 years, an amount equivalent to the amount that has to be awarded towards no fault liability can be awarded as compensation. But it is not stated therein that besides this amount, another amount of Rs. 15,000/- has to be awarded towards loss of expectation of life and pain and suffering. Thus, if the appeals were preferred by the A.P.S.R.T.C, it would have been a case of reduction of the amount awarded as compensation. But no such appeals were filed by the A.P.S.R.T.C Thus, when it is a case of reduction, the claim for enhancement has to be negatived.

7. Section 15 of the Hindu Succession Act, 1956, reads as under:

“15. General rules of succession in the case of female Hindus.—(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16—

(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1)—

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.”

8. Thus, the property of a female Hindu dying intestate shall devolve upon the mother and father if she dies unmarried. Hence both V. Subbarayudu and his wife Venkatachalamma are the heirs of their deceased daughter, Valli Kumari and they are the legal representatives of the deceased Valli Kumari. The estate of Valli Kumari, if any, devolves upon her parents equally.

9. As already observed, the amounts awarded in these O.Ps are not towards the loss of dependency. The judgment in A.A.O Nos. 301 and 330 of 1988 which was confirmed in L.P.A Nos. 222 and 223 of 1991 operates as res judicata. Thus, the father cannot be permitted to contend in these A.A.Os that his wife, Venkatachalamma, cannot claim the compensation amount as she remarried another. As both the father and the mother are the heirs of the deceased Valli Kumari, they are entitled to claim the compensation amount awarded equally. The Tribunal awarded accordingly. Hence, the award in O.P No. 221 of 1987 does not warrant interference. As such, A.A.O Nos. 1034 and 1035 of 1991 are liable to be dismissed.

10. Section 8 of the Hindu Succession Act states that the mother of unmarried son is Gass I heir, while the father is Class II heir. The father cannot claim as a heir of his unmarried son when his wife, i.e, the mother of the unmarried son is alive. Mr. Noushad Ali, learned counsel for the mother, contended that the legal representative referred to in section 110-A of the Motor Vehicles Act is the heir/heirs undo personal law and thus, the mother alone is entitled to the entire amount awarded as compensation. When the brother of the deceased died in a motor accident claiming compensation under section 110-A of the Motor Vehicles Act, it was contended for the Corporation owning the vehicle that only the persons referred to in section 1-A of the Fatal Accidents Act can claim compensation and as the brother is not one of the persons referred to therein, his claim has to be negatived. The Supreme Court held in Gujarat State Road Transport Corpn. v. Ramanbhai Prabhatbhai, 1987 ACJ 561 (SC), that the expression ‘legal representative’ in section 110-A of the Motor Vehicles Act should be given a wider meaning and it should not be confined to the spouse, parents and children of the deceased.

11. The claim for damages is based on negligence of the driver or any other employee of the owner of the vehicle or the owner himself. The courts established in India followed the English common law which was based on principles of justice, equity and good conscience. One of the principles of English common law is actio personalis moritur cum persona i.e, a personal action dies with the parties to the cause of action. If a person sustained injury in motor vehicle accident due to the negligence in driving or negligence on the part of the owner of the vehicle or his employee, he can claim damages. But if he dies in the accident, it being a personal action, the action dies with him and his dependants cannot claim compensation in view of the maxim actio personalis moritur cum persona. When deaths due to the motor vehicle accidents were increasing the hardship to the dependants of the breadwinner, who died in the accident, was felt, then the Fatal Accidents Act, 1846, was enacted in England. It provided that in case of death of a person in a motor vehicle accident, an action can be laid down to claim compensation for the benefit of the wife, husband, parents and child of the person who died in the motor accident. As similar hardship was felt by the dependants of the deceased in India also, Fatal Accidents Act, 1855, was passed. Section 1-A of the said Act provides, inter alia, that an action can be initiated or suit can be filed to claim compensation in case of death in motor vehicle accident for the benefit of the wife, husband, parents and children, if any. Till section 110-A of the Motor Vehicles Act was incorporated, the damages were claimed by the husband, wife, parents and the children of a person who died in a motor accident by invoking Fatal Accidents Act. A question had arisen whether the provisions of Chapter VIII of the Motor Vehicles Act are merely procedural or the substantive law of the country stands modified to any extent. The same were held (Sic.) Supreme Court in Minu B. Mehta v. Balkrishna Ramachandra Nayan, 1977 ACJ 118 (SC). But the Supreme Court held in Gujarat State Road Trans. Corpn. v. Ramanbhai Prabhatbhai (supra) that those observations are merely obiter dicta. It was held therein that the legal representative in section 110-A of the said Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased.

12. The father is admittedly a parent. But as per personal law of Hindus, the father is only a Class II heir while mother is Class I heir to the deceased unmarried son. Class I heir excludes Class II heir. It means that if there is any Class I heir, Class II heir has no right to inherit. If the expression ‘legal representative’ in section 110-A has to be limited only to the heirs of the deceased, the father of the deceased unmarried son cannot claim as a heir when his wife, i.e, the mother of the deceased unmarried son is alive. This question had not fallen for consideration in Gujarat S.R.T.C case (supra). It was merely observed in the said judgment that the expression ‘legal representative’ in section 110-A of the said Act is not confined to the spouse, parent and children of the deceased referred to in section 1-A of the Fatal Accidents Act, 1855. It means that even those who were not referred to in section 1-A of the Fatal Accidents Act may be legal representatives. But it was not stated by the Supreme Court that for construing the width and ambit of the expression ‘legal representative’ in section 110-A of the Motor Vehicles Act, section 1-A of the Fate Accidents Act cannot be looked into at all. One of the objects of section 110-A is to provide succour to those who depend upon the earnings of the bread-winner if he dies in motor accident. section 1-A of the Fatal Accidents Act refers to only parents, spouse and children and it does not refer to brothers and sisters and other members of the Hindu joint family. It might probably be on the ground that the concept of Hindu joint family is alien to English law. But the fact remains that the father was considered as a dependant while enumerating him as one of the members for whose benefit the compensation can be claimed. It cannot be stated on the basis of the provisions in Chapter VIII of the Motor Vehicles Act, 1939, that the father cannot be considered as a dependant of his son, who died in a motor accident. It is common knowledge that generally the father brings up his son and spends for his education, etc. and he naturally expects his son to maintain him if in his later years he cannot maintain himself. It is evidently for that reason that the father also is referred to as one of the persons for whose benefit the compensation amount can be claimed under the Fatal Accidents Act. In using the expression ‘legal representative’ in section 110-A of the Motor Vehicles Act, the intention is only to increase the number of beneficiaries but not to exclude any of the persons refereed to under section 1-A of the Fatal Accidents Act. For that reason, the Supreme Court categorically observed that the expression ‘legal representative’ in section 110-A of the said Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased. Thus, there can be an addition to the category referred to but there should not be exclusion of any of the persons referred to therein. The expression ‘legal representative’ was not defined in Motor Vehicles Act. The court can take cognizance of the fact that the person is bound to maintain his parents, spouse and children not only as a moral duty but also as statutory responsibility. When a person is living with the parents or even away from the parents, it is his duty to maintain his parents. There would be loss of dependency for the parents if their son unfortunately dies. When compensation is payable in case of death in a motor accident, the loss of dependency is a relevant factor in computing the just compensation. So, it is not proper to hold that the legislature intended to exclude the father from amongst the members for whose benefit the compensation can be claimed if as per personal law he cannot claim as a heir.

13. Hence, I feel that by keeping in view the object and intendment of the Act, it is proper to hold that the expression ‘legal representative’ in section 110-A of the Motor Vehicles Act includes the persons referred to in section 1-A of the Fatal Accidents Act and also the other heirs as per personal law. Thus, amongst the Hindus, even the father can claim along with the mother the compensation under section 110-A of the Motor Vehicles Act in case of the death of an unmarried son or married son, who dies without leaving any Gass I heir other than the mother. Thus, A.A.O Nos. 1301 and 1303 of 1991 are liable to be dismissed.

14. C.M.P No. 5815 of 1992 was not pressed and accordingly it is dismissed.

15. C.M.P No. 5814 of 1992 is allowed as a question of law is raised as an additional ground. In the result, C.M.P No. 5814 of 1992 is allowed. C.M.P No. 5815 of 1992 is dismissed. All the four A.A.Os are dismissed. No costs.

16. Orders accordingly.