[CASE NUMBER] (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] (O&M) Date of Decision: 15.05.2019 [ENTITY] and others Appellants Versus [ENTITY] and others Respondents
CORAM: HON'BLE MR. JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate for the appellants.
Mr. [ENTITY], Advocate for respondent No.1.
[ENTITY], J.(oral) The award dated 19.8.2008 passed by Motor Accident Claims Tribunal, Rohtak (hereinafter referred to as 'the Tribunal') has been assailed by the brothers and sisters of deceased-[ENTITY] aged 32 years being aggrieved of dismissal of claim petition filed under [SECTION] of the [ACT]for short 'the Act').
The record of this appeal was burnt and from the salvaged record of the partially burnt cases, the same was reconstructed subject to all just exceptions and further verification.
The facts in brief are that on 10.1.2007 [ENTITY] (deceased) along with driver [ENTITY] and owner of vehicle namely [ENTITY] were on their way to Chandigarh from their village, in dumper bearing registration No.HR- 38-F/5732. On their way due to heavy fog there was a traffic jam. The driver stopped the dumper behind the Haryana Roadways bus bearing registration No.HR-45-7309. On instructions from the driver [ENTITY] alighted the dumper to assess the situation of jam. He was proceeding towards the divider 1 of 12 from the space between the dumper and the Haryana Roadways Bus. In the meantime, the offending vehicle owned by the Punjab Roadways Corporation being driven in a rash and negligent manner struck against the stationary dumper. As a result, [ENTITY] got sandwiched between the dumper and Haryana Roadways bus and died at the spot. FIR No.13/27 was registered at Police Station Sadar, Thanesar District Kurukshetra.
A claim petition under [SECTION] of the Act was filed by brothers and sisters. The Tribunal dismissed the claim petition on the ground that sisters were married and living separately and there was no proof regarding economic dependency of the claimants on the income of the deceased.
Learned counsel for the appellants argues that the claim petition by the claimants was maintainable and even if there was no loss of dependency yet they were entitled to conventional heads.
Learned counsel for the respondent No.1 defends the award and argues that not even an iota of evidence was produced to show the dependency. He further argues that the sisters were married and residing separately.
The issue involved in the present appeal is whether the claimants who were not dependant on deceased are entitled to compensation, if yes to what extent? Before dealing with the issue, [SECTION] and [SECTION] of the Act is reproduced below:
"166. Application for compensation. - (1) An application for compensation arising out of an accident of the nature specified in [SECTION] may be made -
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
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(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 [SECTION] 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] is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) The Claims Tribunal shall treat any report of accidents forwarded to it under [SECTION] as an application for compensation under this Act.
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[SECTION]. Award of the Claims Tribunal. On receipt of an application for compensation made under [SECTION], the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of [SECTION] may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under [SECTION] in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award 4 of 12 shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct." [SECTION] of the Act entitles the legal representatives to file the claim petition. There is no presumption attached that the legal representatives were dependent on the earning of the deceased.
The term 'legal representative' has not been defined under the Act. However, [SECTION] of the [ACT] defines 'legal representative' to mean a person who in law represents the estate of the deceased. The definition is wide enough to include persons other than the husband, wife, parents and children also.
Under [SECTION] of the Act, the Tribunal has to make an award, determine the amount of compensation which is just and proper and specify the persons to whom such compensation would be paid.
For awarding compensation under [SECTION] of the Act there are two facets- firstly as to who can apply and secondly to quantify the compensation.
The Supreme Court in [PRECEDENT] held as under:
"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] of the Act by defining the expression 'legal represen- tatives' in relation to claims under [SECTION] of the Act as 'the spouse, parent and children of the deceased' as recommended by the Law Commission. The Law
5 of 12 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 [ACT] and that would effectively carry-out the purpose of social justice underlying [SECTION] of the Act, to which the [ACT] was 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] 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 representatives' in [SECTION] of the Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased." As per [SECTION] of the Act, legal representatives are entitled to claim compensation. The issue thereafter remains of quantifying the compensation.
Supreme Court in [PRECEDENT] held as under:
9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii)
6 of 12 the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be
7 of 12 chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.
"15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be
8 of 12 considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
[Emphasis supplied] It clearly emerges that in the cases where the dependency is not proved, the stages provided by Supreme Court will not apply. It was further held that in the absence of evidence to contrary father, brothers and sisters of the deceased will not be considered as dependent.
In other words, failure to prove loss of dependency would mean that the deceased was not contributing part of earning to the claimants.
The Supreme Court in [PRECEDENT] held as under:
15. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to Section
9 of 12 140 of the Act. Therefore, even 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] 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 [ENTITY], the learned Amicus Curiae.
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19. In the impugned judgment the High Court has correctly drawn a distinction between "right to apply for compensation"
and "entitlement to compensation". The High Court has rightly held that even a married daughter is a legal representative and she is certainly entitled to claim compensation. It was further held, on the facts of the present case, that the married daughter was not dependent on her father. She was living with her husband in her husband's house. Therefore, she was not entitled to claim statutory compensation. According to the High Court, the claimant was not dependent on her father's income. Hence, she was not entitled to claim compensation based on "No Fault Liability".
20. In my opinion, "No Fault Liability", envisaged in [SECTION] of the said Act, is distinguishable from the rule of "Strict Liability". In the former, the compensation amount is fixed. It is Rs. 50,000/- in cases of death [[SECTION]]. It is a statutory liability. It is an amount which can be deducted from the final amount awarded by the Tribunal. Since, the amount is 10 of 12 a fixed amount/crystallized amount, the same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited his estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive compensation under "No fault Liability" in terms of [SECTION] of the said Act. My opinion is confined only to the "No Fault Liability" under [SECTION] of the said Act. That section is a Code by itself within the [ACT]."
It was held that there is a distinction between 'right to apply for compensation' and 'entitlement to compensation'. It is only after proving the entitlement to the compensation that loss of dependency can be asked for. In cases where there was no dependency the claimants were held entitled to compensation not less than the amount to be paid under [SECTION] of the Act.
The Supreme Court in [PRECEDENT] held that the claimants shall be entitled to amount under [SECTION] of the Act even in absence of dependency. The relevant para of the said judgment is reproduced below:
"13. There are several factors which have to be noted. The liability under [SECTION] of the Act does not cease because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the
11 of 12 multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and [SECTION] is primarily in the nature of recovery proceedings. As noted above, liability in terms of [SECTION] of the Act does not cease because of absence of dependency."
The claimants are not entitled to loss of dependency. However, in view of the decisions cited above, a sum of `50,000/- is awarded to the claimants.
Disposed of accordingly.
([ENTITY]) 15.05.2019 JUDGE reema Whether speaking/reasoned Yes Whether Reportable: Yes 12 of 12