1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 395 OF 1995 1. Bhanudas s/o Manohar Gore, Age: 45 years, Occ: Business, 2. Ramdas s/o Manohar Gore, Age: 40 years, Occ: Business, Both R/o. Kumbhar Bhatti, Pathardi, Tq. Pathardi, District Ahmednagar. ...APPELLANTS VERSUS 1. Smt. Lilabai Ganpat Ghorpade, Age: 42 years, Occ: Transport Business, R/o. Bombale, Tq. Khatav, Dist. Satara. 2. Rukhmoddin Ismail Mulani, Age: 47 years, Occ: Driver, R/o. Vikroli, Paras Site, Municipal 'B' Room No.3, Bombay - 79. 3. National Insurance Co.Ltd., Bombay through it's Branch Manager, National Insurance Co. Ltd. Kothla, Ahmednagar. 4. Sow. Kamal w/o Gorakhshanath Dagde, Age: Major, Occ: Household., R/o. Bhenda, Tq. Newasa, District Ahmednagar. ...RESPONDENTS 2 ... Shri. V.S. Bedre, Advocate for appellants. Shri. D.V. Soman, Advocate for respondent No.3. ... CORAM : K.K. TATED, J. RESERVED ON : 25/11/2010 PRONOUNCED ON : 30/11/2010 JUDGMENT : . Heard the learned Counsel for the parties. 2. This First Appeal is preferred by the original claimants against the judgment and award dated 06-10-1994 passed by the Member, Motor Accident Claims Tribunal, Ahmednagar in Motor Accident Claim Petition No.135 of 1988. 3. The original petition for compensation under Section 110-A of the Motor Vehicles Act was filed by Manohar Kondiram Gore and Kaushalyabai Manohar Gore, the father and mother of the deceased respectively. During the pendency of the petition, both the original applicants were died and 3 therefore, their legal heirs were brought on record. The appellants hereinabove are the brothers of the deceased and respondent No.4 - original applicant No.3 is the married sister of the deceased. The original applicants in their claim petition have stated that on 09-02-1988 the deceased Rohidas started his journey from Shevgaon to his residential place i.e. Pathardi. He was riding motor cycle No. MJF-1404. At about 11-00 p.m. the deceased reached Amrapur. At that time, a goods truck bearing No. MTL-5333 came in a very high speed from the opposite side and dashed against the deceased. Due to the shock and dash, Rohidas died. It was due to negligent rash and careless driving of the goods truck death of Rohidas was caused. The original applicants claimed compensation in the sum of Rs.3,00,000/- on account of the loss of the services of the deceased in their family business. 4. During the pendency of the claim petition, the original petitioner No.1 Manohar Kondiram Gore 4 died on 25-11-1991 and the original petitioner No.2 Kausalyabai Manohar Gore died on 11-04-1991. Therefore, the legal heirs i.e. the appellants and respondent No.4 filed application for bringing them on record as legal heirs of deceased petitioner Nos. 1 and 2. The said application was allowed by the Tribunal by order dated 17-09-1994. Both the appellants are brothers and respondent No.4 is married sister of the deceased. 5. Considering the evidence on record, the Tribunal by its judgment and award dated 06-10-1994 awarded total compensation of Rs. 25,000/- with interest and proportionate cost. 6. Being aggrieved by the judgment and award passed by the Tribunal dated 06-10-1994, the appellants - original claimant Nos.1 and 2 preferred present appeal for enhancement of compensation to Rs.2,00,000/-. 7. Heard both the sides at length. The learned 5 Counsel appearing on behalf of the appellants submits that the Tribunal erred in coming to the conclusion that the appellants are entitled only to the sum of Rs.25,000/- towards compensation including No Fault Liability amount of Rs.15,000/-. He further submits that the Tribunal have not properly followed the law and procedure and it resulted in injustice to the appellants, by awarding meager compensation. Though the learned Member of the Tribunal rightly observed that the accident took place due to rash and negligent driving of respondent No.2 and also rightly observed that due to the said accident, the deceased sustained injuries which resulted in his death on 11-02-1988 but failed to consider the material facts and circumstances while determing compensation. He submits that the learned Member of the Tribunal should have held that the deceased was doing business of brick kiln independently. However, the learned Member of the Tribunal did not properly appreciate the testimony of P.W. 1 Bhanudas in support of his claim. He erred in 6 observing that the deceased was not doing independent business. He submits that the family business of the deceased was of brick kiln and his death resulted in loss of resource in that business. Therefore, the appellants are entitled to claim compensation from the respondents. He further submits that the Tribunal erred in coming to the conclusion that as the father and mother of the appellants died during the pendency of the claim petition within three years from the date of filing, the appellants are entitled to compensation on the basis of multiplier of 3 only. He submits that indirectly the Tribunal held that the appellants being elder brothers of the deceased, were not entitled to any compensation. 8. He submits that the Tribunal failed to consider that all legal heirs of the deceased are entitled to the compensation under the Motor Vehicles Act if it is proved that the accident took place because of negligence on the part of otherside. He further submits that the Tribunal 7 erred in coming to the conclusion that the claimants who fall within Class-I as per Hindu Law, are entitled to the compensation. In support of his submission, he relied on the judgment in the matter of Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and another reported in A.I.R. 1987 S.C. 1690. In that case, the Apex Court held that a legal representative applying for compensation need not necessarily be one of the persons contemplated by S.1-A of Fatal Accidents Act. Para-9 of the said authority reads as under : "9. Clauses (b) and (c) of sub-section (1) of section 110-A of the Act provide that an application for compensation arising out of an accident may be made where death has resulted from the accident by all or any of the legal representatives of the deceased or by any agent duly authorised by all or any of the legal representatives of the deceased. The proviso to sub- section (1) of section 110-A provides that where all the legal representatives of the 8 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. The expression 'legal representative' has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 defines 'legal representative' as 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. The above definition, no doubt, in terms does not apply to a case before the Claims Tribunal but it has to be stated that even in ordinary parlance the said expression is understood almost in the same way in which it is defined in the Code of Civil 'Procedure. A legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on 9 the death of an individual. Clause (b) of sub-section (1) of section 110-A of the Act authorises all or any of the legal representatives of the deceased to make an application for compensation before the Claims Tribunal for the death of the deceased on account of a motor vehicle accident and clause (c) of that sub- section authorises any agent duly authorised by all or any of the legal representatives of the deceased to make it. The proviso to sub-section (1) of section 110-A of the Act appears to be of some significance. It provides that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased. Section 110-A(1) of the Act thus expressly states that (i) an application for compensation may be made by the legal representatives of the deceased or their agent and (ii) that such application shall be made on behalf of or for the benefit of all the legal representatives. Both the persons or person who can make an application for compensation and the persons for whose benefit such application can be made are thus indicated in section 110-A of the Act. This section in a way is 10 a substitute to the extent indicated above for the provisions of section 1A of the Fatal Accidents Act, 1855 which provides that "every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased." While the Fatal Accidents Act, 1855 provides that such suit shall be for the benefit of the wife, husband, parent and child of the deceased, section 110-A(1) of the Act says that the application shall be made on behalf of or for the benefit of the legal representatives of the deceased. A legal representative in a given case need not necessarily be a wife, husband, parent and child. It is further seen from section 110-B of the Act that the Claims Tribunal is authorised to 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. This provision takes the place of the third para- graph of section 1A of the Fatal Accidents Act. 1855 which provides that in every such action, the Court may 11 give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be 'brought. Persons for whose benefit such an application can be made and the manner in which the compensation awarded may be distributed amongst the persons for whose benefit the application is made are dealt with by section 110-A and section 110-B of the Act and to that extent the provisions of the Act do supersede the provisions of the Fatal Accidents Act, 1855 in so far as motor vehicles accidents are concerned. These provisions are not merely procedural provisions. They substantively affect the rights of the parties. As the right of action created by the Fatal Accidents Act, 1855 was "new in its species, new in its quality, new in its principles, in every way new" the right given to the legal representatives under the Act to file an application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitations of an action under the Fatal Accidents Act, 1855. New situations and new dangers 12 require new strategies and new remedies." 9. The learned Counsel appearing on behalf of the appellants submits that admittedly on the date of death, the deceased was 21 years old and he was participating in family business and earning sum of Rs.1500/- per month. Therefore, the Tribunal should have taken multiplier of at least 16 for calculating compensation payable to the appellants. 10. On the other land, the learned Counsel appearing on behalf of respondent No. 3 Insurance Company vehemently opposed the present appeal on the ground that the appellants being elder brothers of the deceased are not entitled to any compensation. He further submits that the appellants failed to produce any cogent evidence to show that the deceased was earning some amount per month independently. He further submits that the appellants failed to produce any cogent 13 evidence to show that the deceased was financially contributing to his family per month. He further submits that P.W.1 in his deposition admitted that during the period of accident, the deceased was taking education at other place. If it is admitted that during the period of accident, the deceased was taking education at other place, then there is no question of participating in family business of brick kiln. He further submits that the original claimants i.e. father and mother of the deceased expired during the pendency of the petition for compensation. The present appellant Nos.1 and 2 and respondent No.4 were brought on record as legal heirs. The appellants are brothers and respondent No.4 is sister of the deceased. He further submits that both the appellants and respondent No.4 are elder to the deceased. He further submits that there is no iota of evidence on record to show that the deceased was contributing any particular amount to their family. He further submits that the Tribunal rightly held that only parents of the deceased 14 were entitled to compensation in the present case. He further submits that after filing application for compensation, original claimants i.e. father and mother of the deceased died within three years. Therefore, the Tribunal rightly held that the deceased would have contributed only a sum of Rs.25,000/- to his family during those three years. He further submits that after amending claim petition before the Tribunal, the appellants have not amended pleadings in their petition to show how the deceased was contributing to their family. He further submits that the appellants except amending title of the claim petition have not brought on record any other material to show that they were also dependent on the income of the deceased. The learned Counsel for the respondent - Insurance Company submits that in view of these facts and circumstances, the Tribunal rightly awarded compensation of Rs.25,000/-, as the appellants failed to produce any evidence on record to show that they were also dependent on the income of the deceased. In support of his 15 contention, he relied on the following judgments. (1) Vidya Devi and another vs. Madan Singh and others [1994 A.C.J. 940 ]. . In that case, Punjab and Haryana High Court held that whether brother who was neither shown to be minor nor dependent on the deceased is not entitled to compensation for the death of deceased. Para-3 of that judgment reads as under : "3. The claimants in F.A.O. NO. 179 of 1985 were Vidya Devi, mother and Pawan Kumar, brother of the deceased Madanl Lal. Madan Lal was 20. He was a permanent employee working as cattle scarer getting about Rs.500/- per month, besides uniform allowance, washing allowance, etc. The Claims Tribunal took Rs. 100/- per month as the dependency of the mother and applying a multiplier of 20, awarded a sum of Rs.24,000/- 16 to the mother. It was further held that Pawan Kumar was not shown to be minor or dependent on the deceased and, therefore, his claim was negatived. With regard to Jagir Singh, appellant in F.A.O. No. 439 of 1985, it was held that even though the doctor concerned had been examined, Jagir Singh himself failed to appear as a witness and his petition was dismissed. Aggrieved by the order of the Claims Tribunal, the appellants have preferred these appeals. I have heard learned Counsel for the parties." (2) Nani Bai and others vs. Ishaque Khan and others [1995 A.C.J. 292 ] . In that case, Madhya Pradesh High Court held that married daughter being a legal representative is not dependent on the deceased and therefore, is not entitled to any compensation. Para-28 of that judgment reads thus : 17 "28. M.A. No. 330 of 1986 arises out of Claim Petition No.1 of 1982, which has been filed by the heirs of deceased Karson alias Sarvan, who died in the accident referred above. Claimants Rusu Bai and Ram Kunwar are widows of Sarvan. Gulab Bai and Ghisi Bai are the daughters of the deceased Sarvan. It is alleged that Sarwan was also a passenger in the fateful bus and was swept away in the strong current of water. This fact has been stated by Mangi Lal. There is no challenge to that statement. Sarvan died in motor accident. Claimant Nos. 3 and 4 are married daug htgers and they were not dependent on Sarvan. As such claim on their behalf has rightly been disallowed by the Tribunal. Deceased Sarvan was aged about 60 years and the claimant Nos. 1 and 2 are aged about 50 years. Deceased Sarvan may have lived upto the age of 70 years, but without sufficient earning capacity. The Tribunal has assessed a global compensation of Rs.15,000/-, but has deducted Rs.4,000/- (ex gratia payment made by the 18 Government). In our opinion, in the facts and circumstances of the case at least Rs.15,000/- ought to have been awarded to the claimants in the case as before the amendment in 1988 amount of Rs.15,000/- was awardable on the basis of no fault liability. We, therefore, enhance this compensation to Rs.15,000/-. The claimants shall further be entitled to interest at the rate of 12 per cent per annum from the date of application till realisation of the same. Out of the amount so awarded 50 per cent of the same including the interest accruing thereon shall be kept in the fixed deposit in some nationalised bank with a direction that the interest would be paid quarterly i.e. on expiry of three months to both the widows, i.e. claimant Nos. 1 and 2. The same would be renewable every three years and may be withdrawn by the claimants or the surviving claimants after expiry of ten years. The rest of the amount shall be paid to claimants in 19 cash." (3) K. Sankaramma and another vs. Venkateswara Engineering and Construction Ltd. and another [2002 ACJ 599 ]. . In that case, the Andhra Pradesh High Court held that brother who is neither Class-I legal heir nor dependent on the deceased is not entitled to any compensation. Para-3 of that judgment reads as under : "3. The Tribunal below after considering the oral and documentary evidence on record held that the appellants-claimants have failed to establish that the accident occured due to rash and negligent driving of the lorry bearing No.AIR 5797 by its driver and, therefore, awarded only an amount of Rs.25,000/- towards compensation under 'no fault liability'. The Tribunal below further held that the appellant No.1 claimant who is the mother of the 20 deceased is alone entitled for the said compensation amount and that the appellant-claimant No.2 who is neither class-I legal heir nor dependent upon the deceased is not entitled for any compensation." 11. I have gone through the record and proceedings of the present case. It is an admitted fact that the present appellants and respondent No.4 are brought on record in the original claim petition as legal heirs of the deceased Rohidas. The appellants are brothers and respondent No.4 is sister of the deceased. The appellants as well as respondent No.4 are elder than the deceased. Appellant No.1 in his cross examination stated that the deceased was regular college student in F.Y. at the time of his death. Though subsequently he corrected the same by stating that the deceased, a year before of the accident, had left the college, that he was not a student when the accident occurred. The appellants failed to prove that the deceased was participating in their 21 family business of brick kiln and he was contributing a sum of Rs.1500/- to Rs.2000/- to their family. Therefore, it is not possible to hold that the deceased was contributing some amount to their family. The Tribunal considered the facts and circumstances of the present case and awarded total compensation of Rs.25,000/- as the original claimants lived for 3 years only from the date of filing of the claim petition. 12. Though the appellants amended original claim petition after the death of original claimants, they have not amended pleadings explaining the way in which the deceased was contributing some amount to their family. The deceased was youngest in their family and died at the age of 21 years. It is difficult to hold that he was contributing some amount to the family income when he was a student. In any case, the Tribunal awarded compensation on the basis of original claimants' pleadings and taking multiplier of 3 as the original claimants' died after three years of filing claim petition. 22 In the above mentioned authorities cited by the respondent - Insurance Company, it is clearly stated that unless and until elder brothers prove that their younger brother was contributing some amount to their family, they were not entitled to compensation. In the present case, neither there is pleading nor evidence on record to show that the deceased was contributing any amount to the appellants' family. Therefore, there is no reason to enhance the compensation awarded by the Tribunal. 13. In the result, the appeal preferred by the original claimants deserves to be dismissed and the same is dismissed. No order as to costs. sd/- [K.K. TATED, J.] sut/NOV10/fa395.95