FIRST APPEAL NO. 1156 OF 2016

17th April 2020

Petitioner Counsel: Shri V.R. Thote
Respondent Counsel: Shri D.S. Raut
Act Name: Fatal Accidents Act, 1855 Code of Civil Procedure, 1908

Section :
Section 110-A Fatal Accidents Act, 1855 Section 110-B Fatal Accidents Act, 1855 Section 110-F Fatal Accidents Act, 1855 Section 140 Fatal Accidents Act, 1855 Chapter VIII Fatal Accidents Act, 1855 Section 2(11) Code of Civil Procedure, 1908

Cases Cited :
Paras 7, 17, 18: Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and another, reported in (AIR 1987 SC 1690) : 1987 (3) SCC 234
Paras 8, 18: Smt. Manjuri Bera Vs. Oriental Insurance Company Limited, reported in AIR 2007 SCC 1474
Para 17: Megjibhai Khimji Vira Vs. Chaturbhai Taljabhai,
Para 18: BANCO National Ultramarino Vs. Nalini Bai Naique (AIR 1989 SC 1589)

JUDGEMENT

1. In the accident Claim Petition filed by the mother of the deceased, father of the deceased was made as non-applicant No.3 on the ground that the claimant mother had separated from the non-applicant No.3, by way of divorce deed. Thus the non-applicant No. 3 moved an application Exh.39 to allow him to join as applicant being legal representative of the deceased. The said application was rejected on the ground that the right of the non-applicant No.3 can be decided even if he is contesting as non-applicant.

2. Thereafter the claim petition was partly allowed vide judgment and award dated 29.06.2016, granting amount of compensation to the tune of Rs.4,00,000/- to the mother. As far as the entitlement of the non-applicant No.3/appellant is concerned, it has been answered in negative because of rejection of his application Exh. 39. The denial of compensation to the appellant as the father of a deceased is under challenge in the present appeal.

3. Heard Shri Thote, learned counsel for the appellant, Shri Raut, learned counsel for the respondent No.3. None for the respondent No.1 and 2.

4. Shri Thote, learned counsel for the appellant, points out that while rejecting the application preferred by the appellant Exh. 39, for making him as applicant in the claim petition, the learned Tribunal has held that the rights of the appellant can be decided even if he is contesting as non-applicant and therefore, no purpose would be served by allowing such application.

5. He further argues that the entitlement of the appellant was not decided vide order below Exh. 39 dated 20.06.2015, while rejecting the said application preferred by the appellant but the same was kept open by observing that the entitlement of the appellant can be decided even if he is party as non-applicant to the claim petition.

6. However, contrary to same the learned Tribunal has observed in clause-4 of the operative order of judgment and award dated 29.06.2016 that, the claim of the appellant No.3 has already been rejected vide order Exh.39, therefore, the appellant is not entitled for compensation. Hence the learned counsel for appellant, submits that the impugned judgment and award is erroneous.

7. Shri Thote, learned counsel for the appellant has placed reliance on the judgment of the Hon’ble the Supreme Court of India in the case of Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and another reported in 1987 (3) SCC 234, to submit that being father of the deceased, appellant is entitled for amount of compensation.

8. He further relies on the judgment of the Hon’ble the Supreme Court of India in the case of Smt. Manjuri Bera vs. Oriental Insurance Company Limited reported in AIR 2007 SCC 1474, in support of his submission that the right to file a claim petition has to be considered in the background of right to entitlement.

9. Shri Raut, learned counsel for the respondent No.3, submits that, the learned Tribunal has rightly denied the claim of appellant in view of the fact that after divorce between the mother and father of the deceased-Ankit, the deceased-Ankit used to stay with the claimant-mother and the appellant was no way connected with the deceased-Ankit.

10. He further points out that the application (Exh.39) preferred by the appellant for making him party as applicant to the claim petition was rejected by the learned Tribunal and it has not been challenged by the appellant and therefore, it has attained finality. In the said backdrop, he prays for dismissal of the present appeal.

11. To consider the rival contentions, I have gone through the record and proceedings with help of learned counsels for the parties and perused the impugned judgment and award passed by the learned Tribunal, dated 29.06.2016.

12. There is no dispute that the son of the claimant and non applicant No. 3, deceased Ankit, died in an accident due to rash and negligent driving of driver of State Transport Bus Bearing Registration No.MH-40 N-8015, which gave a dash to the deceased Ankit.

13. There is also no dispute that in the year 2001, the mother of the deceased Ankit, had got separated from the appellant by executing divorce deed, which is on record. Admittedly there is no decree of divorce passed by any competent Court. Moreover, in the cross-examination of claimant mother, she has admitted that the appellant is a legal representative of deceased Ankit, being the father of the deceased.

14. It is apparent from the record that the appellant had moved an application Exh. 39, for joining him as an applicant in the claim petition filed by mother of the deceased. However, the learned Tribunal while rejecting the said application observed that the entitlement of the appellant would not in any way suffer because he has joined as non-applicant in the claim petition.

15. The order below Exh. 39 dated 29.06.2015, clearly shows that the learned Tribunal while rejecting the said application, did not decide the entitlement of the appellant and the same was impliedly kept open to be decided at time of final adjudication.

16. Therefore, it was expected rather to be obligatory for the Tribunal to deal with and decide the issue relating to entitlement of the appellant while passing the final judgment and award 20th June 2015. However, surprisingly the learned Tribunal has observed that “the claim of the respondent No.3 is already dismissed vide order below Exh.39”.

17. The Hon’ble Supreme Court of India in the case of Gujarat State Road Transport (Supra) has observed thus :
“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 and 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 well-known 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. Chaturbhai Taljabhai 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.
15. Before concluding we may add that although the Act was extensively modified after the receipt of the report of the Law Commission, Parliament did not choose to amend Section 110-A of the Act by defining the expression ‘legal representative’ in relation to claims under Chapter VIII of the as “the spouse, parent and children of the deceased” as recommended by the Law Commission. The Law Commission had observed in its 85th Report that it would be appropriate to assign to the expression ‘legal representative’ the same meaning as had been given to the expression ‘representative’ for the purposes of the Fatal Accidents Act, 1855 and that would effectively carry out the purpose of social justice underlying Chapter VIII of the Act, to which the Fatal Accidents Act, 1855 was the the nearest approximation. This recommendation was made after referring to the divergent views expressed by the various High Courts on the meaning of the expression ‘legal representatives’ in Section 110-A of the Act. The fact that Parliament declined to take any action on the recommendation of the Law Commission of India suggests that Parliament intended that the expression ‘legal representative’ in Section 110-A of the Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased.”

18. The Hon’ble Supreme Court of India in the case of Smt. Manjuri Bera (supra) has observed thus:
“13. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique (AIR 1989 SC 1589) 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 person would be covered by the expression ‘legal representative’. As observed in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and anr. (AIR 1987 SC 1690) 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.
16. Judged in that background where a legal representative who is no dependant file an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, evev if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned Amicus Curiae.”

19. Thus, from the above referred judgments of the Hon’ble the Supreme Court of India, it is clear that 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. Every legal representative who suffers on account of the death of a person due to a Motor Vehicle accident is entitled for compensation. A person who may or may not be the legal heir competent to inherent 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 of “legal representative”.

20. In the present matter, there is no dispute that the appellant is the father of the deceased Ankit and his entitlement has been admitted by the claimant mother in her cross-examination.

21. The divorce between the mother and father of the deceased Ankit would not in any way breakup the relationship between the deceased and the appellant as the father of the deceased Ankit. In term the appellant will not loose its right to succeed to half share in the amount of compensation granted by the learned Tribunal.

22. In view of the observations made above, I am of the considered view that being the father of the deceased Ankit, the appellant is entitled to half share in the amount of compensation granted by the learned Tribunal vide judgment and award dated 29.06.2016.

23. Accordingly, the present appeal is allowed and thereby clause-4 of the operative part of the order dated 29.06.2016, is set aside. The judgment and award dated 29.06.2016, is modified and thereby, it is held that the respondent Nos.1 & 2 do pay Rs.4,00,000/- (Rs. Four Lakhs Only) to the claimant mother and non applicant No. 3/appellant father, 50% each, jointly and severally along with interest @ 8% p.a. from the date of filing of petition i.e. from 06.07.2012 till realization.