Gujarat High Court
Oriental Insurance Co Ltd vs Pushpaben Parsottambhai Makwana on 28 January, 2025
NEUTRAL CITATION
C/FA/2580/2015 ORDER DATED: 28/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2580 of 2015
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ORIENTAL INSURANCE CO LTD
Versus
PUSHPABEN PARSOTTAMBHAI MAKWANA & ORS.
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR HIMMAT J PARMAR(2106) for the Defendant(s) No. 5
MR VIJAY J SHAH(3487) for the Defendant(s) No. 1,2,3,4
MS SEJAL V SUTARIA(878) for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 28/01/2025
ORAL ORDER
Being aggrieved and dissatisfied with the aforesaid award dated
25.6.2014 passed by the learned Judge of the Motor Accident Claims
Tribunal (Aux.), Ahmedabad Rural in Motor Accident Claims Petition
No. 1589/2010, the appellant has preferred this appeal.
2. Learned Advocate for the appellant has assailed this judgment
mainly on the ground that claimants are major sons and daughters of the
deceased and cannot be treated as dependent of the deceased mother
however the learned tribunal committed serious error in taking monthly
income of Rs.4,000/- of the deceased while calculating the loss of
dependency with future prospect. He would submit that tribunal has also
erred in assessing the loss of consortium for major sons and daughters of
the deceased and therefore request to interfere with the said finding and to
allow this appeal.
3. On the other hand learned Advocate Mr.J P Dastor for Mr.Shah,
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learned advocate for the org. claimants would submit that the tribunal has
not committed any error and just and fair compensation is awarded by the
tribunal and this Court may not interfere with the said finding.
4. Having heard the learned advocates appearing for the respective
parties and examined the R & P, what could be seen that whether sole
dependent of the deceased can be treated as dependent for calculating the
loss of dependency and secondly whether the tribunal erred in taking up
the income at Rs.4,000/- for calculating the income of the deceased. In
the case on hand, deceased was 45 years old and lost her life in an
accident. The role of the deceased was knitting the family and her
services are invaluable and cannot be assessed in terms of money.
5. This Court in identical fact situation, in the case of Prernaben @
Purviben Mansukhlal Mehta Decd.Thr Heirs Versus Daudkhan
Usmankhan Belim [2024 (0) GUJHC 61440] after referring to various
judgments on the issue, in para 11,12,13 and 14 held as under :-
“11. It was argued by learned advocates for the insurance
company that deceased Preranaben was unmarried and therefore,
the claimants who are father and brother of the deceased cannot
claim dependency loss. I am not impressed by the submission
canvassed by the learned advocates. Plain reading of section
166(1) of the Act permits legal representatives of the deceased to
prefer claim petition. The MV Act, 1988 does not define term
“legal representative”, but section 2(11) of the CPC, reads as
under:-
“SECTION 2 : Definitions In this Act, unless there is anything
repugnant in the subject or context,-
(11) “legal representative” means a person who in law represents
the estate of a deceased person, and includes any person whoPage 2 of 16
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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;
12. Plain reading of section 2(11) of the CPC indicates that in case
of death of a person in the motor vehicle accident, the right is
available to the legal representative or the agent of the deceased
or injured to claim for compensation under the MV Act. The issue
as to who is a legal representative or its agent is basically an issue
of fact and may be decided one way or the other dependent upon
the facts of a particular case. But as a legal proposition it is
undeniable that a person claiming to be a legal representative has
the locus to maintain an application for compensation under
Section 166 of the Act. Said issue came up before the Hon’ble
Apex Court for decision in case of Montford Brothers of St.
Gabriel and Anr. vs. United India Insurance and Anr., (2014) 3
SCC 394 , whereby, the Full Bench of the Hon’ble Apex Court after
referring to the earlier judgment in case of Gujarat State Road
Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai
and Anr., (1987) 3 SCC 234 , in para 11 to 17 held as under:-
“11. Learned counsel for the Insurance Company tried to persuade
us that since the term `legal representative’ has not been defined
under the Act, the provision of Section 1-A of the Fatal Accidents
Act, 1855, should be taken as guiding principle and the claim
should be confined only for the benefit of wife, husband, parent
and child, if any, of the person whose death has been caused by the
accident. In this context, he cited judgment of this Court in the case
of Gujarat State Road Transport Corporation, Ahmedabad V/s.
Raman Bhai Prabhatbhai & Anr., AIR 1987 SC 1690 . In that case,
covered by the Motor Vehicles Act of 1939, the claimant was a
brother of a deceased killed in a motor vehicle accident. The Court
rejected the contention of the appellant that since the term `legal
representative’ is not defined under the Motor Vehicles Act, the
right of filing the claim should be controlled by the provisions of
Fatal Accident Act. It was specifically held that Motor Vehicles Act
creates new and enlarged right for filing an application for
compensation and such right cannot be hedged in by the
limitations on an action under the Fatal Accidents Act.
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12. Paragraph 13 of the report reflects the correct philosophy
which should guide the courts interpreting legal provisions of
beneficial legislations providing for compensation to those who
had suffered loss.
“13. 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 Vehicles Accidents Tribunal to determine the
compensation which appears to it to be just as provided in Section
110-B of the Act and 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 benefit an application may be filed under Section 110-A of
the Act have to be done in accordance with wellknown 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 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
of the decision in Megjibhai Khimji Vira V/s. Chaturbhai
Taljabhai, (AIR 1977 Guj.195 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.”
13. From the aforesaid quoted extract it is evident that only if there
is a justification in consonance with principles of justice, equity
and good conscience, a dependant of the deceased may be denied
right to claim compensation. Hence, we find no merit in the
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submission advanced on behalf of the respondent- Insurance
Company that the claim petition is not maintainable because of the
provisions of the Fatal Accidents Act.
14. On behalf of the appellants it has been rightly contended
that proceeding before the Motor Vehicle Claims Tribunal is a
summary proceeding and unless there is evidence in support of
such pleading that the claimant is not a legal representative and
therefore the claim petition be dismissed as not maintainable, no
such plea can be raised at a subsequent stage and that also
through a writ petition. The objection filed on behalf of the
Insurance Company, contained in annexure P.2, does not raise any
such objection nor there is any evidence led on this issue. As noted
earlier, the Tribunal did frame any issue regarding maintainability
of the claim petition on law and fact as issue no.1 but the findings
recorded by the Tribunal at page 41 of the paper book show that
this issue together with issue nos. 2 and 3 were not pressed by the
opposite parties during trial and were accordingly decided in
favour of the claimants.
15. In the aforesaid circumstances, the order under appeal dated
20.8.2002 allowing the writ petition suffers from apparent mistake
in not noticing the relevant issue decided by the Tribunal and also
the fact that the Insurance Company, which was the writ
petitioner, had not pressed this issue. It had neither raised
pleadings nor led evidence relevant for the said issue.
16. On coming to know about the High Court judgment the
appellants filed a review petition in which they gave all the
relevant facts including the constitution of the society appellant
no.1 in support of their claim that a `Brother’ of the Society
renounced his relations with the natural family and all his
earnings and belongings including insurance claims belonged to
the society. These facts could not have been ignored by the High
Court but even after noticing such facts the review petition was
rejected.
17. A perusal of the judgment and order of the Tribunal discloses
that although issue no.1 was not pressed and hence decided in
favour of the claimants/appellants, while considering the quantum
of compensation for the claimants the Tribunal adopted a very
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cautious approach and framed a question for itself as to what
should be the criterion for assessing compensation in such case
where the deceased was a Roman Catholic and joined the church
services after denouncing his family, and as such having no actual
dependants or earning- For answering this issue the Tribunal
relied not only upon judgments of American and English Courts
but also upon Indian judgments for coming to the conclusion that
even a religious order or organization may suffer considerable
loss due to death of a voluntary worker. The Tribunal also went on
to decide who should be entitled for compensation as legal
representative of the deceased and for that purpose it relied upon
the Full Bench judgment of Patna High Court reported in AIR
1987 Pat. 239, which held that the term `legal representative’ is
wide enough to include even “intermeddlers” with the estate of a
deceased. The Tribunal also referred to some Indian judgments in
which it was held that successors to the trusteeship and trust
property are legal representatives within the meaning of Section
2(11) of the Code of Civil Procedure.”
13. Worthy assistance can be taken from the judgment of Hon’ble
Apex Court in the case of National Insurance Company Ltd. v/s.
Birender and Ors [(2020) 11 SCC 356] , whether married and
major sons having gainful employment or earning elsewhere can
claim compensation and whether claim petition at their instance is
maintainable was issue before the Hon’ble Apex Court in the
matter. Hon’ble Apex Court in para 12 to 14 has observed as
under :-
“12. The legal representatives of the deceased could move
application for compensation by virtue of clause (c) of section
166(1). The major married son who is also earning and not fully
dependant on the deceased, would be still covered by the
expression “legal representative” of the deceased. This Court in
Manjuri Bera (supra) had expounded that liability to pay
compensation under the Act does not cease because of absence of
dependency of the concerned legal representative. Notably, the
expression “legal representative” has not been defined in the Act.
In Manjuri Bera (supra), the Court observed thus:
“9. In terms of clause (c) of subsection (1) of section 166 of the Act
in case of death, all or any of the legal representatives of the
deceased become entitled to compensation and any such legalPage 6 of 16
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representative can file a claim petition. The proviso to said
subsection makes the position clear that where all the legal
representatives had not joined, then application can be made on
behalf of the legal representatives of the deceased by impleading
those legal representatives as respondents. Therefore, the High
Court was justified in its view that the appellant could maintain a
claim petition in terms of Section 166 of the Act. 10. …The
Tribunal has a duty to make an award, determine the amount of
compensation which is just and proper and specify the person or
persons to whom such compensation would be paid. The latter part
relates to the entitlement of compensation by a person who claims
for the same.
11. According to Section 2(11) CPC, “legal representative” means
a person who in law represents the estate of a de ceased 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. Almost in similar terms is the definition
of legal representative under the Arbitration and Conciliation Act,
1996 i.e. under Section 2(1)(g). 12. As observed by this Court in
Custodian of Branches of BANCO National Ultramarino v. Nalini
Bai Naique, the definition contained in Section 2(11) CPC is
inclusive in character and its scope is wide, it is not confined to
legal heirs only. Instead it stipulates that a person who may or may
not be legal heir competent to inherit the property of the deceased
can represent the estate of the deceased person. It includes heirs as
well as persons who represent the estate even without title either
as executors or administrators in possession of the estate of the
deceased. All such persons would be covered by the expression
“legal representative”. As observed in Gujarat SRTC v.
Ramanbhai Prabhatb hai [(1987) 3 SCC 234 a legal
representative is one who suf fers on account of death of a person
due to a motor vehicle accident and need not necessarily be a wife,
husband, parent and child.”
13. In paragraph 15 of Majnuri Bera, while adverting to the
provisions of Section 140 of the Act, the Court observed that even
if there is no loss of dependency, the claimant, if he was a legal
representative, will be entitled to compensation. In the concurring
judgment of Justice S.H. Kapadia, as His Lordship then was, it is
observed that there is distinction between “right to apply for
compensation” and “entitlement to compensation”. The
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compensation constitutes part of the estate of the deceased. As a
result, the legal representative of the deceased would inherit the
estate. Indeed in that case, the Court was dealing with the case of
a married daughter of the deceased and the efficacy of Section 140
of the Act. Nevertheless, the principle underlying the exposition in
this decision would clearly come to the aid of the respondent Nos.
1 and 2 (claimants) even though they are major sons of the
deceased and also earning. 14. 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. 14. Yet, in another judgment
of the Hon’ble Apex Court in case of N.Jayasree Versus
Cholamandalam Ms General Insurance Company Ltd., 2022 (14)
SCC 712 , where the mother-in-law has been considered dependent
of the deceased, the Hon’ble Apex Court after referring judgment
in case of Ramanbhai Prabhatbhai (supra) as well as Montford
Brothers (supra) held that if legal representatives suffers on
account of the death of a person in a motor vehicle accident should
have a remedy for realization of compensation. The relevant para
of Hon’ble Apex Court is para 14 to 20, which reads as under:-
“14. The MV Act does not define the term ‘legal representative’.
Generally, ‘legal representative’ means a person who in law
represents the estate of the deceased person and includes any
person or persons in whom legal right to receive compensatory
benefit vests. A ‘legal representative’ may also include any person
who intermeddles with the estate of the deceased. Such person
does not necessarily have to be a legal heir. Legal heirs are the
persons who are entitled to inherit the surviving estate of the
deceased. A legal heir may also be a legal representative. 15.
Indicatively for the present inquiry, the Kerala Motor VehiclePage 8 of 16
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Rules, 1989, defines the term ‘legal representative’ as under:
“Legal Representative” means a person who in law is entitled to
inherit the estate of the deceased if he had left any estate at the
time of his death and also includes any legal heir of the deceased
and the executor or administrator of the estate of the deceased.”
16. In our view, the term ‘legal representative’ should be given a
wider interpretation for the purpose of Chapter XII of MV Act and
it should not be confined only to mean the spouse, parents and
children of the deceased. As noticed above, MV Act is a benevolent
legislation enacted for the object of providing monetary relief to
the victims or their families. Therefore, the MV Act calls for a
liberal and wider interpretation to serve the real purpose
underlying the enactment and fulfil its legislative intent. We are
also of the view that in order to maintain a claim petition, it is
sufficient for the claimant to establish his loss of dependency.
Section 166 of the MV Act makes it clear that every legal
representative who suffers on account of the death of a person in a
motor vehicle accident should have a remedy for realization of
compensation. 17. It is settled that percentage of deduction for
personal expenses cannot be governed by a rigid rule or formula
of universal application. It also does not depend upon the basis of
relationship of the claimant with the deceased. In some cases, the
father may have his own income and thus will not be considered as
dependent. Sometimes, brothers and sisters will not be considered
as dependents because they may either be independent or earning
or married or be dependent on the father. The percentage of
deduction for personal expenditure, thus, depends upon the facts
and circumstances of each case. 18. In the instant case, the
question for consideration is whether the fourth appellant would
fall under the expression ‘legal representative’ for the purpose of
claiming compensation. In Gujarat State Road Transport
Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Anr.,
(1987) 3 SCC 234 this Court while considering the entitlement of
the brother of a deceased who died in a motor vehicle accident to
maintain a claim petition under the provisions of the MV Act, held
as under: “13. 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
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Sections 110A to 110F 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 Section 110B of the Act and 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 110B of the Act amongst the legal
representatives for whose benefit an application may be filed
under Section 110A of the Act have to be done in accordance with
wellknown 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 breadwinner of the family and if the breadwinner 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 v.
Chaturbhai Taljabhagujri, AIR 1977 Guj 195 and hold that the
brother of a person who dies in a motor vehicle accident is entitled
to maintain a petition under Section 110A of the Act if he is a legal
representative of the deceased.” 19. In Hafizun Begum (Mrs) vs.
Mohd. Ikram Heque and Ors., (2007) 10 SCC 715 it was held that:
“7. …12. As observed by this Court in Custodian of Branches of
Banco National Ultramarino v. Nalini Bai Naique, 1989 Supp (2)
SCC 275 the definition contained in Section 2(11) CPC is inclusive
in character and its scope is wide, it is not confined to legal heirs
only. Instead, it stipulates that a person who may or may not be
legal heir, competent to inherit the property of the deceased, can
represent the estate of the deceased person. It includes heirs as
well as persons who represent the estate even without title either
as executors or administrators in possession of the estate of the
deceased. All such persons would be covered by the expression
‘legal representative’. As observed in Gujarat SRTC v. Ramanbhai
Prabhatbhai3 a legal representative is one who suffers on account
of death of a person due to a motor vehicle accident and need not
necessarily be a wife, husband, parent and child.” 20. In Montford
Brothers of St. Gabriel and Anr. vs. United India Insurance and
Anr., (2014) 3 SCC 394 this Court was considering the claimPage 10 of 16
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petition of a charitable society for award of compensation on
account of the death of its member. The appellantsociety therein
was a registered charitable society and was running various
institutions as a constituent unit of Catholic church. Its members,
after joining the appellantsociety, renounced the world and were
known as ‘brother’. In this case, a ‘brother’ died in a motor vehicle
accident. The claim petition filed by the appellantsociety seeking
compensation on account of the death of aforesaid ‘brother’ was
rejected by the High Court on the ground of its maintainability.
This Court after examining various provisions of the MV Act held
that the appellantsociety was the legal representative of the
deceased ‘brother’. While allowing the claim petition it was
observed as under: “17. A perusal of the judgment and order of the
Tribunal discloses that although Issue 1 was not pressed and
hence decided in favour of the appellant claimants, while
considering the quantum of compensation for the claimants, the
Tribunal adopted a very cautious approach and framed a question
for itself as to what should be the criterion for assessing
compensation in such case where the deceased was a Roman
Catholic and joined the church services after denouncing his
family, and as such having no actual dependents or earning- For
answering this issue, the Tribunal relied not only upon judgments
of American and English Courts but also upon Indian judgments
for coming to the conclusion that even a religious order or an
organisation may suffer considerable loss due to the death of a
voluntary worker. The Tribunal also went on to decide who should
be entitled for compensation as legal representative of the
deceased and for that purpose it relied upon the Full Bench
judgment of Patna High Court in Sudama Devi v. Jogendra
Choudhary, AIR 1987 Pat 239 which held that the term “legal
representative” is wide enough to include even “intermeddlers”
with the estate of a deceased. The Tribunal also referred to some
Indian judgments in which it was held that successors to the
trusteeship and trust property are legal representatives within the
meaning of Section 2(11) of the Code of Civil Procedure.”
6. In the case of National Insurance Company Limited Versus Birender
And Ors. [2020 (11) SCC 356], Hon’ble Apex Court has addressed the issue
after framing question in para 12 as under :-
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“12. We have heard Mr. Amit Kumar Singh, learned counsel for
the insurance company (appellant) and Ms. Abha R. Sharma,
learned counsel for the respondent Nos. 1 and 2. The principal
issues which arise for our consideration are as follows: –
(i) Whether the major sons of the deceased who are married and
gainfully employed or earning, can claim compensation under the
Motor Vehicles Act, 1988 (for short, ‘the Act’)-
(ii) Whether such legal representatives are entitled only for
compensation under the conventional heads
(iii) Whether the amount receivable by the legal representatives of
the deceased under the 2006 Rules is required to be deducted as a
whole or only portion thereof.”
6.1. Hon’ble Apex Court in para 13 to 15 has held as under :-
“13. Reverting to the first issue – that needs to be answered on the
basis of the scheme of the Act. Section 166 of the Act provides for
filing of application for compensation by persons mentioned in
clauses (a) to (d) of sub-Section (1) thereof. Section 166 of the Act,
as applicable at the relevant time, reads thus: – “Section 166.
Application for compensation.- (1) An application for
compensation arising out of an accident of the nature specified in
sub-section (1) of section 165 may be made- (a) by the person who
has sustained the injury; or (b) by the owner of the property; or (c)
where death has resulted from the accident, by all or any of the
legal representatives of the deceased; or (d) by any agent duly
authorised by the person injured or all 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. (2)
Every application under sub-section (1) shall be made, at the
option of the claimant, either to the Claims Tribunal having
jurisdiction over the area in which the accident occurred or to the
Claims Tribunal within the local limits of whose jurisdiction the
claimant resides or carries on business or within the local limits of
whose jurisdiction the defendant resides, and shall be in such form
and contain such particulars as may be prescribed: Provided that
where no claim for compensation under Section 140 is made inPage 12 of 16
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such application, the application shall contain a separate
statement to that effect immediately before the signature of the
applicant. (3) *** (4) The Claims Tribunal shall treat any report
of accidents forwarded to it under sub-section (6) of section 158 as
an application for compensation under this Act.” (emphasis
supplied) 14. The legal representatives of the deceased could move
application for compensation by virtue of clause (c) of Section
166(1). The major married son who is also earning and not fully
dependant on the deceased, would be still covered by the
expression “legal representative” of the deceased. This Court in
Manjuri Bera (supra) had expounded that liability to pay
compensation under the Act does not cease because of absence of
dependency of the concerned legal representative. Notably, the
expression “legal representative” has not been defined in the Act.
In Manjuri Bera (supra), the Court observed thus:- “9. In terms of
clause (c) of sub-section (1) of Section 166 of the Act in case of
death, all or any of the legal representatives of the deceased
become entitled to compensation and any such legal representative
can file a claim petition. The proviso to said sub-section makes the
position clear that where all the legal representatives had not
joined, then application can be made on behalf of the legal
representatives of the deceased by impleading those legal
representatives as respondents. Therefore, the High Court was
justified in its view that the appellant could maintain a claim
petition in terms of Section 166 of the Act. 10. …..The Tribunal has
a duty to make an award, determine the amount of compensation
which is just and proper and specify the person or persons to
whom such compensation would be paid. The latter part relates to
the entitlement of compensation by a person who claims for the
same. 11. According to Section 2(11) CPC, “legal representative”
means 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. Almost in similar terms
is the definition of legal representative under the Arbitration and
Conciliation Act, 1996 i.e. under Section 2(1)(g). 12. As observed
by this Court in Custodian of Branches of BANCO National
Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275 the
definition contained in Section 2(11) CPC is inclusive in character
and its scope is wide, it is not confined to legal heirs only. Instead
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it stipulates that a person who may or may not be legal heir
competent to inherit the property of the deceased can represent the
estate of the deceased person. It includes heirs as well as persons
who represent the estate even without title either as executors or
administrators in possession of the estate of the deceased. All such
persons would be covered by the expression “legal representative”.
As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [(1987)
3 SCC 234 a legal representative is one who suffers on account of
death of a person due to a motor vehicle accident and need not
necessarily be a wife, husband, parent and child.” In paragraph 15
of the said decision, while adverting to the provisions of Section
140 of the Act, the Court observed that even if there is no loss of
dependency, the claimant, if he was a legal representative, will be
entitled to compensation. In the concurring judgment of Justice
S.H. Kapadia, as His Lordship then was, it is observed that there is
distinction between “right to apply for compensation” and
“entitlement to compensation”. The compensation constitutes part
of the estate of the deceased. As a result, the legal representative of
the deceased would inherit the estate. Indeed, in that case, the
Court was dealing with the case of a married daughter of the
deceased and the efficacy of Section 140 of the Act. Nevertheless,
the principle underlying the exposition in this decision would
clearly come to the aid of the respondent Nos. 1 and 2 (claimants)
even though they are major sons of the deceased and also earning.
15. 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.”
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representative of deceased has right to apply for compensation. Loss of
dependency cannot be limited to financial dependency. Legal
representative are dependent even emotionally to the deceased and
therefore, they are entitled to claim compensation under section 166 of
MV Act. Thus, the contention raised by the appellant insurance company
cannot be accepted and negatived.
8. As stated herein above the mother is playing the role of
homemaker and she was died at the age of 45 years and tribunal adopted
monthly income at Rs.4,000/- which in the opinion of this Court is just
and proper to calculate the loss of dependency and has rightly granted
30% towards the future prospect. However, the amount granted under the
head of loss of consortium is erroneous. The tribunal has granted
Rs.50,000/- on the basis that defendant no.1 has lost his wife in the road
accident and therefore defendant no.1 is entitled to spousal consortium.
Since the defendant no.1 was not the claimant rather was defending the
claim petition, he cannot be granted compensation under the loss of
consortium. But, another error on the part of the tribunal is noticed that
total four major sons and daughters who are entitled to loss of consortium
and therefore one error is given set off with the another error. In nutshell,
the appellant – insurance company has failed to point out any error which
requires interference at the hands of this Court.
9. In the result, the appeal fails and is accordingly dismissed. The
impugned judgment and award rendered by the tribunal is confirmed.
The Tribunal shall disburse the entire awarded amount lying in the FDR
and/or with the Tribunal, with accrued interest thereon, if any, to the
claimants, by account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure in the apportionment if not
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done.
Record and proceedings be sent back to the concerned Tribunal,
forthwith.
(J. C. DOSHI,J)
sompura
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