Muhini Thakuria v. Tapan Chandra Thakuria

U.L Bhat, C.J:— Claimants in MAC Case No. 54(K)/86 on the file of the Motor. Accident Claims Tribunal, Kamrup, Guwahati are the appellants herein. Respondents are the owner, driver and insurer of truck No. NLA 2231.

2. Uttam Chandra Thakuria, eldest son of the first appellant and the elder brother of appellants 2 and 3, while walking from North to South on the extreme left side of the PWD Road at Choudhury Khat at 2.30 P.M on 7.1.1986, was hit from behind and run over by the truck, which also came from North to South. He sustained serious injuries and died instantaneously. P.Ws 1 and 4, who witnessed the occurrence, gave information at the house of the victim. The first appellant rushed to the scene and found her son dead and lying in a pool of blood. The local police came to the scene. The dead body was sent to the local hospital for post mortem examination, which was done by P.W 5. A case was registered against the driver of the truck and after investigation, charge sheet was filed.

3. First appellant filed a claim petition under section 110-A of the Motor Vehicles Act, 1939 (for short, the Act) against the owner, driver and insurer of the truck claiming Rs. 8,16,000/- as compensation alleging that the accident was the result of rash and negligent driving of the truck. Subsequently she amended the claim petition putting forward the claim for herself and on behalf of her two minor sons also and enhancing the claim to Rs. 11,31,200/-.

4. The owner of the truck filed a written statement raising all possible defences, such as, limitation, non-joinder, mis-joinder, petition not in proper, from, not maintainable, frivolous, etc. and alleging that since the vehicle at the relevant time was insured with the third respondent herein the insurer was liable. He also challenged the particulars of occupation, income, dependency and compensation sought in the claim petition. He contended that the truck was being driven at a moderate speed and Uttam Chandra Thakuria, who was in a drunken state suddenly came to the road and climbed on the truck, through the rear body cover and fell down on the road and died and there was no rashness or negligence on the part of the driver.

5. The insurer filed a written statement without admitting the insurance policy and stating that its liability, if any, will be subject to the terms and conditions specified in the policy and the provisions of the Act and that all relevant records relating to the policy, the vehicle and the driver must be produced. The insurer also stated. That if the owner does not raise proper defence, the insurer will be entitled to contest the claim under section 110-C(2A) of the Act and will pray for necessary orders in that regard. The insurer also reserved its right to file additional written statement. The insured denied that there was any policy cover. No additional written statement was filed.

6. The Tribunal held that the accident took place as a result of rash and negligent driving of the truck, that the truck at the relevant time was covered by an insurance policy issued by the third respondent, fixed the compensation payable at Rs. 1,35,000/-, less Rs. 15,000/- paid earlier under section 92-A of the Act and passed an award directing the insurer to pay the amount with interest at the rate of 10% per annum from the date of filing of the petition till realisation. Claimant in the Tribunal along with her two other sons have filed this appeal contending that the Tribunal should have awarded higher compensation.

7. The only question which arises for consideration in the appeal is whether the quantification made by the Tribunal is too low and requires to be corrected.

8. At the outset we have to consider the question whether appellants 2 and 3, minor brothers of Uttam Chandra Thakuria are entitled to claim compensation? It is necessary, in this connection to advert to the relevant provisions of the Fatal Accidents Act, 1855 and the Motor Vehicles Act, 1939.

9. section 1A of the Fatal Accidents Act, 1855 deals with suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong. Second para of the provision reads as follows:

“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;”

(Emphasis supplied)

Second para of section 2 reads thus:

“Provided that in any such action or suit the executor, administrator or representative of the deceased may insert a claim for, and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased.”

(Emphasis supplied)

10. sub-section (1) of section 110-A of the Motor Vehicles Act, 1939 (section 166(1) is the corresponding provision in the Motor Vehicles Act, 1988) reads thus:

(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 110 may be made—

(a) by the person who has sustained the injury; or

(aa) by the owner of the property; or

(b) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(c) by any agent duly authorised by the person injured 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.

(Emphasis supplied)

11. The proviso to sub-section (1) of section 110-A of the Motor Vehicles Act, 1939 makes it clear, that ordinarily all the legal representatives of the deceased must join the application and where all of them have not so joined application must be made on behalf or for the benefit of all of them and the legal representatives who have not so joined shall be impleaded as respondents. According to the appellants all of them are legal representatives of the deceased. The claim petition was filed only by the mother though it was stated that she was making the application on behalf of the minor brothers of the deceased also. Hence it was necessary that the minor brothers should have been impleaded as respondents. Respondents in the appeal have not filed any appeal or cross objection in this regard. Appellants 2 and 3 were minors at the relevant time. Therefore it will be apposite to take a liberal view in against in the question of non-joinder.

12. Claim under section 1A of the Fatal Accidents Act, 1855 can be made only for the benefit of spouse, parent and child of the deceased; it cannot be made for the benefit of brother order relations of the deceased. The scope of section 110-A of the Motor Vehicles Act, 1939 is wider and more comprehensive. Under this provision claim can be made by or for the benefit of all the legal representatives of the deceased. The expressions ‘legal representative’ has not been defined in the Act, Under the old English law, the primary meaning; of the expression ‘legal representative’ was executor or administrator though it might, under special circumstances, be controlled by the context. This position has undergone statutory change in England. There was no definition of the expression “legal representative” in the old Code of Civil Procedure and this caused some conflict of judicial opinion. Therefore definition of the expression has been incorporated in section 2(11) of the Code of Civil Procedure, 1908. According to this definition, ‘legal representative’ means person who in law represents the estate of the deceased person and include any person who intermeddle with the estate of the deceased. This definition may not, in terms, apply to cases before the Tribunal; but the definition reflects the sense in which the expression is understood ordinarily and therefore must govern case before the Tribunal.

13. Ordinarily, heirs of the deceased are the persons who represent the estate of the deceased and must be taken to be his legal representatives. It is thus clear that in case of death of a person in a motor vehicle accident compensation can be claimed only by the heirs. They may claim besides special damages, etc., compensation for economic loss and loss to the estate. Viewed in this light, brothers or other relations of the deceased who are not the heirs of the deceased, not being his legal representatives, cannot claim compensation. This is so even if as a matter of fact they were dependent on the deceased for financial help.

14. There has been difference of opinion among the High Courts on this question. These conflicting views were considered by the Gujarat High Court in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, AIR 1977 Guj. 195, which related to a case of a claim preferred by the brother and nephews of a person who died in a motor vehicle accident. The court after considering the conflicting decisions of High Courts held that the claimants, though not dependents described in section 1A of the Fatal Accidents Act, 1855, could sue in view of section 110-A(1)(b) of the Motor Vehicles Act, 1939 which confers a substantive right on legal representatives to claim compensation and in the absence of any contention by the opposite parties that the claimants were not legal representatives of the deceased. This view has been upheld by the Supreme Court in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234 : AIR 1987 SC 1690 which related to the case of a claim petition filed by brothers of a minor child who died in a motor vehicle accident, on the basis that they were the heirs and legal representatives of the deceased. It was held that they could claim compensation as heirs. The Court observed in passing 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. This observation has to be understood in the background of the facts of the case which clearly clarified that all the claimants were the heirs of the deceased.

15. Our attention has been invited to the decision in Shyama v. Radhyeshyam, 1992 AC 1863 (M.P High Court) where the Madhya Pradesh High Court came to a different conclusion relying on the decision of the Supreme Court in Romanbhai Prabhatbhai case ((1987) 3 SCC 234 : AIR 1987 SC 1690). With great respect we feel that the above conclusion is based on a misappreciation of the decision of the Supreme Court.

16. The correct position of law is that claim in the case of a fatal accident under section 110-A of the Motor Vehicles Act could be made by legal representatives of the deceased and the right is not restricted to spouse; parent and child. A brother of the deceased may be a legal representative of the deceased in the absence of preferential heirs under the personal law governing the parties and, if so, can claim compensation; but he cannot do so if he is not a legal representative though he may have looked to the deceased for financial support. In the present case, appellants 2 and 3 are not legal representatives since the mother who is alive is the preferential heir and, as such, they are not entitled to compensation.

17. The claimant was examined as P.W 6. She deposed that her son was 27 years at the time of his death; this is in consonance with the age given in Ext. 4, the Admit Card given to the deceased for the H.S.L.C Examination. He was a bachelor at the time of his death.

18. In the claim petition it was stated that the deceased was a contractor earning Rs. 2500/- per month. P.W 6 deposed that her son was a Government contractor for forest coupes, sand mahals and a trader in betel nuts and earning Rs. 3000/- per month and paying the entire amount to the family. He had to discontinue studies because when he was in the Pre-University Class her husband died. The Tribunal rejected this evidence on the ground that no documentary evidence regarding his profession was forthcoming. The Tribunal did not estimate his income, but fixed the dependency at Rs. 1000/- per month, or Rs. 12,000/- per year, adopted multiplier of 15, deducted one third on account of lump sum payment and arrived at the figure of Rs. 1,20,000/-. A sum of Rs. 15,000/- was awarded for “mental shock, pain, loss of love and affection and other expenses incurred”. No compensation was awarded to appellants 2 and 3 on the ground that they had attained majority by the time the award was passed.

19. The Tribunal was in error in holding that there was no documentary evidence to show that at the time of the accident the deceased was the licensee of a sand mahal. P.W 2, an officer in the Forest Department proved Ext. 1, agreement, Ext. 2 series challans for payment of taxes and Ext. 3 series challans for payment of kists. These documents show that the deceased had taken a licence to exploit 5000 cum of sand for the period from 1.11.1983 to 31.10.1985 for Rs. 22,222/-. He had deposited Rs. 2233/- as security. Even if his margin of profit: is to be regarded as 100%, his income from the sand mahal would be only Rs. 11,111/- per year. This would be less than Rs. 1000/- per month. The evidence of P.W 6 that the deceased had forest coupe and trade in betel nuts, the evidence of P.W 2 that the deceased had taken wood logs in auction, the evidence of P.W 3 that the deceased had trade in betel nuts and manufactured river boats, cannot be accepted in the absence of a plea in the claim petition and documentary evidence.

20. It is contended for the appellants that the deceased was a young man at the threshold of his professional career and the Tribunal should have considered his future prospects. It is not possible to discern from the impugned judgment whether the Tribunal had applied its mind about the future prospects of increase in the income of the deceased. The Tribunal did not estimate the income at all, but merely estimated the dependency. That was a wrong procedure. All relevant circumstances including future prospects have to be taken into consideration. Since the profession which the deceased had chosen is a risky one, the risks in the profession also have to be taken into consideration.

21. Having regard to all the relevant factors, the average income of the deceased during his remaining span of life could legitimately be fixed at Rs. 2000/- per month. Since the brothers are not legal representatives of the deceased, in reckoning compensation any sum of money which the deceased might have been spending for their up-keep cannot be taken into consideration. The dependency of only the mother could be reckoned for the purpose of computing loss of support or economic loss to the legal representative. The Tribunal fixed Rs. 12,000/- per year as the contribution the deceased would make for the expeness of the family. Considering that only the mother is the legal representative, quantification of dependency is excessive. The deceased would be expected to spend not more than Rs. 500/- per month on the mother.

22. The Tribunal fixed fifteen as multiplier. P.W 6 was aged 45 years and the deceased was aged 27 years at the time of the accident. The father of the deceased died at a comparatively young age. This factor is relevant for estimating the life span of the deceased. The mother could be expected to live upto the age of sixtyfive to seventy years, but the entire period of her future life cannot be adopted as the multiplier. The law on the subject has been discussed by this court in Smt. Nirupama Rajkumari v. Union of India, MA(F) No. 11/1989, d/d 135.1993). The sum of Rs. 1,20,000/-, if invested, would fetch interest of Rs. 1200/- per month, which is much more than the contribution that could be expected by the mother. Therefore the inflationary factor is more than neutralised. Deduction made by the Tribunal for lump sum payment may be excessive; but no deduction has been made for accelearated payment. Having regard to all the circumstances, we find no ground to enhance the multiplier. We may also indicate that claim for mental shock and pain suffered by the mother and for loss of love and affection is not sustainable.

23. We find no ground to interfere and accordingly dismiss the appeal, but without costs.