Gujarat High Court
New India Assurance Company Ltd vs Virendrabhai Narsinhbhai Joshi on 29 January, 2025
NEUTRAL CITATION
C/FA/3513/2024 ORDER DATED: 29/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3513 of 2024
With
R/CROSS OBJECTION NO. 289 of 2024
In R/FIRST APPEAL NO. 3513 of 2024
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NEW INDIA ASSURANCE COMPANY LTD.
Versus
VIRENDRABHAI NARSINHBHAI JOSHI & ORS.
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Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1
MR GAJENDRA P BAGHEL(2968) for the Defendant(s) No. 4
MR NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2
UNSERVED EXPIRED (N) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant – Insurance
Company being aggrieved and dissatisfied with the judgment
and award dated 01.07.2024 passed by the Motor Accident
Claims Tribunal, Sabarkantha in Motor Accident Claim Petition
No.37 of 2019.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
22.09.2018, deceased was going by walking on Ghadi cross
roads and when he reached near the place of accident, opponent
No.1 came by driving vehicle Eicher No.GJ-1-CT-5290 in rash
and negligent manner and dashed with the deceased. As a
result, the accident took place and deceased sustained severePage 1 of 15
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injuries and succumbed to the injuries. Therefore, offence to that
effect is registered before the Prantij Police Station vide FIR being
I-C.R.No.130 of 2018. The legal heirs of the deceased have filed
aforestated claim petition under Section 166 of the Motor Vehicle
Act, 1988 claiming compensation of Rs.8,00,000/-. The learned
Tribunal vide impugned judgment and award dated 01.07.2024
has granted compensation to the tune of Rs.5,36,800/-. Hence,
the present appeal.
3. Heard learned advocates for the respective parties.
4. The contention raised by the appellant through learned
advocate Ms.Dimple Thaker that learned Tribunal erred in
granting loss of estate to two brothers of the deceased who are
claimants. They are settled with their family elsewhere and
therefore cannot be treated to be dependent on the income of the
deceased. Secondly, she would submit that learned Tribunal
erroneously granted compensation under the head of consortium
to two brothers of the deceased. Upon above submissions, she
would submit to allow this appeal.
5. Learned advocate Mr.Nishit Bhalodi appearing for the
claimants supports the impugned judgment and award passed
by the learned Tribunal. He submits that he would not press the
cross-objections filed by the claimants.
6. The first contention raised by learned advocate Ms.Thaker
is that claimants being brothers of the deceased would not be
entitled to claim compensation under the head of loss of
dependency, more particularly when both brothers are living
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separately from deceased. This Court has addressed this issue in
case of Prernaben alias Purviben Mansukhbhai Mehta Decd.
Thr. Legal heirs vs. Daudkhan Usmankhan Belim – 2024 (0)
GUJHC 61440, after referring to judgments in case of Montford
Brothers of St. Gabriel and Anr. vs. United India Insurance
and Anr., (2014) 3 SCC 394, as also judgment in case of
Gujarat State Road Transport Corporation, Ahmedabad vs.
Ramanbhai Prabhatbhai and Anr., (1987) 3 SCC 234. This
Court has also referred to the judgment in case of National
Insurance Company Ltd. v/s. Birender and Ors [(2020) 11
SCC 356] and N.Jayasree Versus Cholamandalam Ms General
Insurance Company Ltd., 2022 (14) SCC 712. The relevant
para of the judgment are 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 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;
12. Plain reading of section 2(11) of the CPC indicates
that in case of death of a person in the motor vehiclePage 3 of 15
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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.
12. Paragraph 13 of the report reflects the correct
philosophy which should guide the courts interpreting
legal provisions of beneficial legislations providing forPage 4 of 15
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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
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compensation. Hence, we find no merit in the submission
advanced on behalf of the respondentInsurance
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.
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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 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 ceasePage 7 of 15
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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 legal 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
representa tive under the Arbitration and Conciliation
Act, 1996 i.e. un der 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 prop erty of the deceased can represent thePage 8 of 15
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estate of the deceased person. It includes heirs as
well as persons who represent the estate even without
title either as executors or adminis trators in
possession of the estate of the deceased. All such
persons would be covered by the expression “legal
represen tative”. 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
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
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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
Vehicle 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
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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 Sections 110A to 110F of the Act. ThesePage 11 of 15
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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’. AsPage 12 of 15
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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 claim 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 toPage 13 of 15
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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.”
7. In view of above settled position of law, the contention
raised by learned advocate appearing for the Insurance Company
that brother of deceased cannot be considered as dependents
failed to stand. Accordingly, it is rejected. Second contention
raised is that learned Tribunal erred in granting compensation
under the head of consortium is acceptable as the compensation
under the head of consortium cannot be granted to the brothers
of the deceased. As per the judgment of Hon’ble Supreme Court
in case of Magma General Insurance Company Limited vs.
Nanu Ram alias Chuhru Ram – 2018 (18) SCC 130, defined the
word consortium for filial, spousal and parental. The brothers do
not fall in any of the category and therefore, they are not entitled
for consortium. Learned Tribunal erred in granting Rs.88,000/-
towards consortium to the claimants. This amount is required to
be deducted and to that extent appeal is required to be allowed.
8. In view of aforesaid discussion, the appeal filed by the
Insurance Company is partly-allowed to the extent that
compensation granted to the claimants is reduced by
Rs.88,000/-. The claimants would be entitled for total
compensation of Rs.4,48,800/- (Rs.5,36,800/- already granted
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minus Rs.88,000/- towards consortium) with 9% per annum
interest from the date of petition till realization with proportionate
cost.
8.1 The order dated 08.10.2024 indicates that Insurance
Company has deposited entire awarded amount, therefore, while
disbursing the compensation to the claimants, learned Tribunal
is directed to refund Rs.88,000/- to the Insurance Company.
Needless to state that Insurance Company which is getting its
money back would be entitled for the interest which has accrued
on the amount deposited in the FDR.
8.2 Since Cross-objection has been not pressed by the learned
advocate for the claimants, it is disposed of, as not pressed.
Registry is directed to refund appropriate Court fee as per Rules
to the claimants in view of withdrawal of the cross-objections.
8.3 The Tribunal shall disburse the aforesaid awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest
thereon, if any, as per apportionment made by it to the
claimants, by account payee cheque / NEFT / RTGS, after
proper verification and after following due procedure.
8.4 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
Page 15 of 15
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