IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 383 of 2005 Decided on: 31.08.2011 The National Insurance Co. Ltd. …Appellant. Versus Budh Ram & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the appellant: Mr. Deepak Bhasin, Advocate. For the respondents: Mr. Raman Sethi, Advocate, for respondent No. 1. Mr. Neel Kamal Sharma, Advocate, for respondents No. 2 & 3. Deepak Gupta, J. (Oral) This appeal by the Insurance Company is directed against the award of the Motor Accident Claims Tribunal, Kullu, dated 28.6.2005, whereby compensation of ` 1,00,000/- has been awarded in favour of Shri Budh Ram. 2. The undisputed facts of the case are that Shri Budh Ram filed a claim petition claiming compensation in respect of the death of his aunt (massi) Prabhi Devi in motor vehicle accident involving the truck owned by Kaushalaya 1 Whether the reporters of local papers may be allowed to see the Judgment? -: 2 :- Devi, driven by Pawan Kumar and insured with the appellant- Insurance Company. 3. Two points have been raised in the appeal. First is that the driving license of the driver was not valid and the second question raised is that since the claimant was not dependent upon the deceased, he could not claim any compensation. 4. As far as first question is concerned, respondents were permitted to lead additional evidence in this Court and CW-1, Dharam Pal, Clerk in the office of Registering and Licensing Authority, Bilaspur, was examined. His statement shows that the driving license was issued in favour of Shri Pawan Kumar, s/o Shri Bhuran Ram on 30.10.1996. It was originally issued for LMV (Transport) and endorsement for driving Heavy Transport Vehicle (HTV) was made w.e.f. 25.05.1998. Therefore, on the date of accident, i.e. on 30.11.2003, Pawan Kumar was having a valid driving license to drive a heavy transport vehicle. Therefore, this contention of the appellant is rejected. 5. The second contention seriously canvassed by Mr. Deepak Bashin is that the claimant was not dependent on the deceased. The deceased, as per the averments, was 70 years old and the claimant himself is 65 years old. Mr. Deepak Bashin is right in his contention that a 65 year old man could -: 3 :- not be said to be dependent on his aunt, who was five years elder to him. The question, however, is whether in case where there are no dependents of a person who dies, a claim petition is maintainable or not. Compensation is granted not only for loss of dependency, but also on account of loss to the estate. Some amount of compensation is also awarded for loss of love and affection, funeral expenses, conventional damages etc. Therefore, even if the person who dies, leaves behind no dependents the legal heirs would still be entitled to claim compensation. 6. While taking this view, reliance is placed on the judgment of the Hon'ble Apex Court in Manjuri Bera versus Oriental Insurance Co. Ltd., AIR 2007 Supreme Court 1474. That was a case where the married daughter of the deceased, who was not dependent on the deceased, filed a claim petition on the death of her father. The Hon'ble Apex Court held as follows: “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 persons would be covered by the expression 'legal representative'. As observed in -: 4 :- 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. There are several factors which have to be noted. The liability under Section 140 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 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 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency.” Hon'ble Mr. Justice Kapadia, in his separate concurring judgment, held as follows: “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”. In my opinion, “No Fault Liability”, envisaged in Section 140 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 140 (2)]. 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 a fixed -: 5 :- 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 140 of the said Act. My opinion is confined only to the “No Fault Liability” under Section 140 of the said Act. That section is a Code by itself within the Motor Vehicles Act, 1988.” The concurring judgment of Hon'ble Mr. Justice Kapadia clearly states that a legal representative is entitled to compensation under No Fault Liability in terms of Section 140 of the Act. 7. It is, thus, obvious that as far as No Fault Liability is concerned, even a person who is not dependent on the deceased, but is a legal representative, is entitled to claim compensation. It is urged by Mr. Raman Sethi, Advocate, appearing on behalf of the claimant that the concept of No Fault Liability cannot be restricted to Section 140 of the Act, but should extent to Section 163-A of the Motor Vehicles Act, since that also deals only with No Fault Liability. 8. This Court in a number of decisions has held that a person, who proves negligence on the part of the tortfeasor, cannot be put at a more disadvantageous position than the person who comes only on the basis of No Fault Liability. Even if Schedule II is made applicable in the cases of -: 6 :- compensation under Section 163-A of the Motor Vehicles Act, the compensation payable would be about ` 80,000/-. Total amount awarded in this case is only ` 1,00,000/-. The Insurance Company cannot challenge the quantum and since I have rejected the plea that the claim petition was not maintainable, the quantum cannot be interfered in the present case. Therefore, the appeal filed by the Insurance Company is rejected. (Deepak Gupta) Judge August 31, 2011 (rajni)