i^ ....;i:1.^; 1^0^^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH M.A (C)_U3^/2007 (S.B.) APPELLANT VERSUS RESPONDENTS ^T. HEERALAL GIRI S/o Late Shri Bhupat Giri Aged about 37 Yrs. Resident of Village Chittajhore Pondi and Tahsil Baikunthpur Distt. Korea (C.G.) RAMRATAN S/o Dharampal Panika Aged about 27 Yrs. R/o Village - Patrapara, Tahsil Surajpur , Distt. Surguja Present Resident Village Panchayat Pondi P.S. Pondi Tahsil Manendragarh, Distt. Korea. (C.G.) Basantlal S/o Ramcharan, R/o Village- Sedha , Near of Nagpur Chauraha Tahsil Manendragarh, Distt. Korea (C.G.) The Qriental insurance company limited, Through- Branch Manager Branch office, Ambedkar Chowk, Ambikapur District. Surguja (C.G.). APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACTS,1988 ^ ^•^ ..t'.^2- ^ ^•y^ /p HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (ONo.1174 of 2007 Heeralal Giri ^^ Vs. Ramratan & Others Postfor pronouncement ofjudgment/orders on ^s /07/2010. Sd/- N.K. AgarwaS Judge HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (QNo.1174 of 2007 APPELLANT RESPONDENTS Heeralal Giri Versus Ramratan & Others Memo of aopeal under Section 173 ofthe Motor Vehicles Act. 1988 (SB: Hon'ble Mr. N.K. Aaarwal. J.l Present : Shri Prakash Tiwari, Advocate for appellant. Shri Wasim Miya, Advocate for respondent No. 1&2. Shri Sudhir Agrawal, Advocate for respondent No. 3. 1. 3. ORDER (Passed on ^3 day of July, 2010) Being aggrieved by theaward dated 08.08.2007, passed by the Motor Accident Claims Tribunal, Koriya (Baikunthpur) (for short the Tribunal') in Claim Case No. 81/2006, the instant appeal has been filed by the appellant clajming compensation for the death of deceased Smt. Seema Bai. Brief facts of the case are that, on 16.12.2004, Seema Bai (Since deceased), was dashed by the driver of Marshal Jeep bearing registration No. CG-16-3295 by driving the said vehicle rashly and negljgently, due to which she succumbed to the injuries sustained in the said accident. The appellant/claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'MV Act'), claiming Rs. 12,10,000/-as compensation against the driver/owner and Snsurer of the offending vehicle for the death of deceasedw the '^ said accident. i: ^ &. 'l 'WINa 1 , ^i 1 ^./ •»sse^ 6. The Tribunal on a close scrutiny of the evidence led, material placed and submissjons made, held deceased Seema Bai was not legally wedded wife of the appellant; the appellant not being legal representative of the deceased; nor the appellant was dependant upon her, is not entitle to file claim petition under Section 166 ofthe MV Act, and dismissed the clajm petition. The fact that deceased Seema Bai was not legally married wife of the appellant is not in dispute. Admittedly, one Kaushalya Bai is the legally wedded wife residing with the appellant. It is also not in dispute that the appellant was not dependant upon the deceased. As per Section 5(1) of Hindu Marriage Act, 1955, a marriage may be solemnized between any two Hindus if neither party has a spouse living at the time of marriage. As per Section 11, any marriage solemnized after commencement of this Act shall be null & void if it contravenes the conditions specified in clause (i) of Section 5. In view of above, the deceased cannot be termed as wife ofthe appellant and the appellant is not a person who in law will be successor in interest ofthe deceased. Shri Prakash Tiwari, learned counsel appearing for the appellant would submit that the appellant's second marriage with deceased Seema Bai was sotemnized with the consent of his first wife Smt. Kaushalya Bai and therefore, the appellant, being legal representative of the deceased, as envisaged under Section 2(11) of CPC, has right to apply for compensation under Section 166 ofthe MV Act and though the appetlant is not dependant upon her, is entitled for statutory compensation of Rs. 50,000/- as envisaged under Section 140 of MV Act and thus, the Tribunal has committed gross irregularity in dismissing the claim petition at threshold. In support of his contention, reliance has been placed upon the judgment of Supreme Court in cases of Gujarat State Road Transport Corporation Ahmedabad v. Ramanbhai Prabhatbhai & Another1, and Smt. Manjuri Bera v. Oriental Insurance Company Ltd. and Another2. 8. On the other hand, learned counsel appearing for the respondents supported the order passed by the Tribunal and submitted that the appellant is not legal representative of the deceased, also was not dependant upon her, has no right to apply for compensation. The Tribunal has rightly held the application for compensation as not maintainable after considering the case law cited by the counsel for the appellant and the award passed by the Tribunal deserves to be upheld. 9. I have heard thecounsel appearing for the parties,perused the order impugned and records of the Tribunal. 10. The question involved in this case js whether a person whose second wife is killed in a motor accident can claim compensation in a proceeding instituted before the Claims Tribunal established under the provisions of MV Act. 11. Under Section 166 of the MV Act, an applteation for compensation ari^ing out of an accident of the nature specified 1 AIR 1987 SC 1690 2 2007 (10) SCC 643 ^^^s?^ ^ imiMIUUjr' in Sub-section (i) of Section 165 may be made where death has resuited from the accident by all or any of the legal representative of the deceased. As per proviso to Sub-section (i) of Section 166 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 benefrt 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. 12. Section 168 of MV Act reads as under: "168. Award ofthe Claims Tribunal- (1) On receipt of an application for compensation made under section 166, 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 daim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifyjng 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 140 in respect of the death or permanent disabtement 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. ^^3 (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 suoh award shall, within thirty days of the date of announcing the award by the Ctaims Tribunal, deposit the entire amount av^rded in such manner as the Claims Tribunal may direct." 13. According to Section 2 (11) of CPC "legal representative" means 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. Almost jn similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1'996, i.e. under Section 2(1 )(g). The term legal representative has not been deflned in the Motor VehiclesAct. 14. The Supreme Court in case of Gujarat State Road Transport Corporation Ahmedabad (Supra), whde considering Section 110-A to 110-F ofthe MV Act, 1939, has held in para 11 of its judgment as under: "11. 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 tegal representetive who suffers on account of the death of ^ ^-i 1»«N»» a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by sections 110-A to 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 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 110Bof the Act amongst the legal representatives for whose benefrt an application may be filed under Section 110-A of the Act have to be done in accordance with well- known principtes 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 justillcation 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 jn Megjibhai Khimji Vira v. Chaturbhai Taljabhai, (AIR 1977 Guj 195) (Supra) and hold that the brother of a person who dies in a motor vehicle accident is entitted to maintain a petition under section 110-A of the Act if he is a legal representative of the deceased." 15. The Supreme Court in case of Smt. Manjuri Bera (Supra) has held in para 12,15 & 19 of its judgment as under: "12. As observed by this Court in Custodian olF, Branches of BANCO National Ultramarino v. Nalini Bai Naique, the definition contained in Section 2(11) CPC is ^ inclusive in character and ite 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 e'rther as executors or administratore in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, 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." 15. Judged in that background where a legal representative who is not dependent files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency, the claimant if he or she is a legal representative wilt be entitted 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. 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 dependant on her father. She was living with her husb^nd in her husband's house. Therefore, she was not entitled to claim statutory compensation. According to the High Court, the /£"^\ »w^1^ ^^ ^•ia ^'ll ^.^.J. '^.. ,?':'^ claimant was not dependant on her father's income. Hence, she was not entitled to daim compensation based on "no-fault liabiljty". 16. In view of law laid down by the Supreme Court in the above referred cases, it is now settled that the word "legal representative" occumng in Section 166 ofthe MV Act, has the same meaning as defined under Section 2(11) of CPC. Now jf we apply the above definition of legal representative who has right to apply for compensation in the facts and circumstances of the present case, it is crystal clear that the appellant, admittedly was not dependent upon the deceased, is neither a person who in law represents the estate of deceased Seema Bai, nor js a successor in interest of the deceased. Therefore, if the definition of legal representative as provided under Section 2(11) of CPC is taken in its widest amplitude even then appellant cannot be termed as a Jegal representative of the deceased entitled to file claim petition before the Tribunal under the MV Act and thus, the Tribunal has not committed any illegality in djsmissing the claim petition. 17. In view of forgoing, l do not find any substance in the appeal preferred by the appellant. The appeal being devoid of substance is liable to be and is hereby dismissed. 18. No order asto costs. Sd/- N.K. Agarwai Judgev Sahu