CMA/395/1996 of GOVINDASAMY Vs RAVI on 5 December 2002

:JUDGEMENT

K.GNANAPRAKASAM, J.

1. This is an appeal by the claimant.2.The claimant, as an heir to the estate of Venkatachalam, who died in themotor accident, which took place on 28.5.1989, made a claim of Rs.1,00,000/-.3.In the claim petition, it is stated that the deceased is the claimant'sfather's brother's son. But, in the evidence, the claimant had deposed thatthe deceased Venkatachalam is his brother's son and they are living as a jointfamily and the properties were not divided among themselves. It is alsostated that the parents of the deceased died while he was young and eventhereafter, they were all living together. The respondents have denied therelationship claimed by the claimant to the deceased and further stated that the definition of ' legal representatives' as stated in CPC are applicable tothe Motor Vehicles Act also and the claimant is a Hindu and therefore, theHindu Succession Act would be applicable.

4. The claimant, in the petition, has stated that the deceased is his father'sbrother's son and as such, he is not a Class I heir. His further claim isthat the deceased is his brother's son and he would come under entry 7 inClass I heirs. The claimant also filed a legal heir certificate Ex.P13,wherein the relationship of the deceased is stated as 'uncle (rpj;jg;gh)'. Itis also stated, in the said certificate that the same was issued only toreceive the compensation amount. As there are contradictions between thestatement made in the petition and the evidence given, the Tribunal has heldthat the claimant has not proved his correct relationship to the deceased andtherefore, dismissed the petition. Aggrieved by the same, this appeal hasbeen filed.

5. The learned advocate for the appellant has submitted that the claimant isthe only heir of the deceased Venkatachalam, entitled to receive thecompensation. It is further submitted that in the absence of any rival claim,the Tribunal should have accepted the claim made by the appellant.6.On the contrary, the learned advocate for the respondents 3 and 4, namely,the United India Insurance Company and the Oriental Insurance Company, hassubmitted that the claimant having failed to prove his correct relationship tothe deceased, is not entitled to the claim at all.

7. Now let us see, whether the claimant is entitled to receive compensation.8.The claimant's specific case is that he and the deceased were the members ofthe joint family and the joint family properties were also not divided. Ofcourse, in the petition, he has stated that the deceased is his father'sbrother's son and in the evidence, he has stated that the deceased is hisbrother's son. In the legal heir certificate, it is stated that the deceasedis the 'uncle (rpj;jg;gh)', of the claimant. Though there are 3 versionsabout the relationship of the deceased to the claimant, it is nobody's casethat the claimant is not at all related to the deceased. As per the claimmade in the petition that the deceased is his father's brother's son and hewould not fall under Class I heir of the Hindu Succession Act. In theevidence, he has stated that the deceased is his brother's son and if that beso, the claimant would come under entry 4 of Class II heirs. In the legalheir certificate, the relationship of the deceased to the claimant is statedas 'uncle (rpj;jg;gh)', . Then the claimant would come under entry 7 of ClassII heirs. It is not the case of the respondents that the claimant is not atall related to the deceased. That being so, we could safely come to theconclusion that the deceased is related to the claimant and vice-versa. It isin evidence that on the death of Venkatachalam, there is a loss to the estate,to which the claimant is entitled to.

9. Now, let us consider, who is entitled to apply for compensation, in a motoraccident case. In our case, the accident took place on 28.5 .1989 andtherefore, the Motor Vehicle Act, 1939 is applicable. Section 110A of the Actstates as follows:- "Application for compensation:- (1) An application for compensation arisingout of an accident of the nature specified in sub section (1) of Section 110may 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 legalrepresentatives of the deceased, or

(c) by any agent duly authorised by the person injured or all or any of thelegal representatives of the deceased, as the case may be; Provided that where all the legal representatives of the deceased have notjoined in any such application for compensation, the application shall be madeon behalf of or for the benefit of all the legal representatives of thedeceased and the legal representatives who have not so joined, shall beimpleaded as respondents to the application. "

10. Clause b and c of Section 110A of the Motor Vehicles Act ( hereinafterreferred to as the Act) provides that an application for compensation may bemade where death has resulted from the accident, by all or any of the legalrepresentatives of the deceased, or by any agent duly authorised by the personinjured or all or any of the legal representatives of the deceased, as thecase may be. Proviso to Section 110A states, "where all the legalrepresentatives of the deceased have not joined in any such application forcompensation, the application shall be made on behalf of or for the benefit ofall the legal representatives of the deceased and the legal representativeswho have not so joined, shall be impleaded as respondents to the application."The expression 'legal representative" has not been defined under the MotorVehicles Act, 1939. But Section 2(c) of the Madras Motor Accidents ClaimsTribunal Rules 1961, states that, the term 'legal representatives' occurringin Section 110A is stated to have the same meaning assigned to it underSection 2(11) of CPC. Section 2(11) of CPC defines 'legal representative' as"a person who in law represents the estate of a deceased person, and includesany person who intermeddles with the estate of the deceased and where a partysues or is sued in a representative character the person on whom the estatedevolves on the death of the party so suing or sued". The said definition, nodoubt, in terms, does not apply to a case before the Claims Tribunal, but ithas to be stated that even in ordinary parlance the said expression isunderstood almost in the same way in which it is defined in CPC. A legalrepresentative ordinarily means a person who in law represents the estate of adeceased person or a person on whom the estate devolves on the death of anindividual. We can also state that the term 'legal representative' occurringin Section 110A of the Act, has wider impact than the definition of the termscontained in Section 2(11) of CPC. Clause b and c of Section 110A of theMotor Vehicles Act, 1939 provide that all or any of the legal representativeof the deceased are entitled to make an application for compensation beforethe Claims Tribunal for the death of the deceased on account of a motorvehicle accident. Proviso to Section 110A of the Act gains some significance.It provides that the application for compensation shall be made on behalf ofor for the benefit of all the legal representatives of the deceased. Clause bof Section 110A states, "application for compensation may be made, "by all orany of the legal representatives of the deceased and Clause c of Section 110Aprovides that any agent duly authorised by the person injured or all or any ofthe legal representatives of the deceased can make such an application. Boththe person or persons who can make an application for compensation and thepersons for whose benefit such application can be made are thus indicated inSection 110A of the Act.

11. Now, we have to consider, whether the claimant would fall under thecategory of 'legal representative', as stated under Clause b and c of Section 110A of the Motor Vehicles Act.

12. A similar question arose in the case of Perumal and others Vs. G.Ellusamy Reddiar and another (1974-ACJ-182), wherein the Division Bench ofthis Court had dealt with the definition of ' legal representative' underSection 110A of the Motor Vehicles Act, 19 39 and also the definitionavailable under Section 2(11) of CPC in extenso and under Section 111A of theMotor Accidents Claims Tribunal Rules, 1961. "Legal representative' shallhave the meaning assigned to it under clause (11) of Section 2 of CPC, 1908.The definition given under Section 2(11) of CPC is wide. It takes in not onlyadministrators, executors and heirs, but all other persons who represent theestate of the deceased. The definition also says that the terms include evenpersons who intermeddle with the estate of the deceased. Then the DivisionBench went on considering the definition available in Fatal Accidents Act andalso in Legal Representatives Act and opined that Section 110 to 110F of theAct (Motor Vehicles Act, 1939) being only procedural in character and havenothing to do with the substantive rights and liabilities of parties, do notmake any reference to either loss of benefit or loss to the estate as heads onwhich compensation can be claimed in the case of a person whose death wascaused by a motor accident. It is further held that under Section 110A of theAct, in the case of death of a person, compensation could be claimable notonly for the loss to the estate but also loss of benefit to the dependants ascontemplated under Section 1A of the Fatal Accidents Act. The term 'legalrepresentative', therefore, should necessarily include not only persons whorepresent the estate of the deceased (who can claim loss to the estate of thedeceased) and the nextof-kin who are mentioned as dependants under Section 1Aof the Fatal Accidents Act, who can claim compensation for loss of benefit tothemselves, whether they represent the estate of the deceased or not. Inother words it should take in all persons who can maintain an action under theLegal Representatives' Suits Act (or under Section 2 of the Fatal AccidentsAct, as the case may be) as well as those who can maintain an action underSection 1A of the Fatal Accidents Act. That being so, one cannot restrict themeaning of the term 'legal representative' occurring in Section 110A of theAct as that in Section 2(11) of CPC.

13. In the case of Gujarat State Transport Corporation Vs. RamanbhaiPrabhatbhai and another (1987-ACJ-561), the Supreme Court considered the term'legal representative' on the background of English Fatal Accidents Act, 1846and the Indian Fatal Accidents Act, 1855 and other Acts including the RoyalCommission Report, 1978 and also relied upon the earlier decision of theSupreme Court in the case of Minu B. Mehta Vs. Balkrishna Ramchandra Nayan,(1977-ACJ-118-SC) and considered Section 110A of the Motor Vehicles Act andthe definition available under Section 2(11) of CPC, 1908. There weredivergent opinions among the High Courts in India, as regards themaintainability of Action under Section 110A of the Act by persons other thanthe wife, husband, parent and child of the person who dies on account of amotor vehicle accident. All these cases were considered by the High Court ofGujarat in its decision in Megjibhai Khimji vira Vs. Chaturbhai Taljabhai(1977-ACJ-253), wherein it was held, "The first set of cases are those whichare referred to in paragraph 5 of the above decision which lay down that everyclaim application for compensation arising out of a fatal accident would begoverned by the substantive provisions in Section 1A and 2 of the 1855 Act andno dependant of the deceased other than the wife, husband, parent or child

would be entitled to commence an action for damages against the tortfeasors.Amongst these cases are P.B. Kader Vs. Thatchamma (AIR-1970-Kerala-241) andDewan Hari Chand Vs. Municipal Corporation of Delhi, (1973-ACJ-87-Delhi).The second group of cases are those referred to in paragraph 6 of the decisionof the Gujarat High Court. They are Perumal Vs. G. Ellusamy Reddiar(1974-ACJ-182) (Madras) and the Vanguard Insurance Co. Ltd. Vs. ChelluHanumantha Rao, 1975-ACJ-344 (Andhra Pradesh). These cases lay down thatwhile the compensation payable under Section 1A of the Fatal Accidents Act,1855 is restricted to the relatives of the deceased who are entitled tosucceed to the estate of the deceased. The third group of cases are thosereferred to in paragraph 7 of the judgement of the Gujarat High Court. Theyare Mohammed Habibullah Vs. K. Seethammal, 1966-ACJ-349 (Madras), VeenaKumari Kohili Vs. Punjab Roadways, 1967-ACJ-297 (P&H) and Ishwar Devi MalikVs. Union of India, 1968-ACJ-141 (Delhi), which take the view that a claimfor compensation arising out of the use of a motor vehicle would beexclusively governed by the provisions of Sections 110 to 110F of the Act andbears no connection to claims under the 1855 Act and the Claims Tribunal neednot follow the principles laid down under the latter Act. Having consideredall the three sets of decisions referred to above, Ahmadi, J. {as he thenwas} who wrote the judgement in Megjibhai Khimji Vira Vs. ChaturbhaiTaljabhai, 1977-ACJ253 (Gujarat), came to the conclusion that an applicationmade by the nephews of the deceased who died on account of a motor vehicleaccident was clearly maintainable under Section 110A of the Act. Afterreferring to these cases, the Supreme Court had accepted the view that wastaken by the Gujarat High Court, which is in consonance with the principles ofjustice, equity and good conscience having regard to the conditions of theIndian society. Every legal representative who suffers on account of thedeath of a person due to a motor vehicle accident should have a remedy forrealisation of compensation and that is provided by Sections 110A to 1 10F ofthe Act. These provisions are in consonance with the principles of Law ofTorts that every injury must have a remedy.

14. As we have already seen that the claimant and the deceased were the membersof the joint family and there is a loss to the estate on the death ofVenkatachalam, we are of the opinion that the claimant is entitled forcompensation. The tribunal has not arrived at any amount of compensation ofpayable to the claimant, in view of its finding that the claimant is notrelated to the deceased. But, now as we have arrived at the conclusion thatthe claimant is related to the deceased, he is entitled to the claim on theground of loss caused to the estate. Taking into consideration over allaspects of the case and as there is no material that the claimant is not atall related to the deceased, the contradictions pointed out by the respondentscould be brushed aside and in order to meet the ends of justice, we feel a sumof Rs.50,000/- could be awarded towards loss of estate on the death of thedeceased Venkatachalam.

15. In the result, the civil miscellaneous appeal is allowed and the award anddecree passed by the Tribunal is set aside. The appellant is entitled for acompensation of Rs.50,000/-, which shall carry interest 9% per annum from thedate of the petition till the date of deposit/realisation and the said amountshall be paid by the 4th respondent herein. No costs.

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To:

1. The Motor Accident Claims Tribunal, Trichirappalli