-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.2159 OF 2007 APPEAL NO.2159 OF 2007 APPEAL NO.2159 OF 2007 Bhimrao Shamrao Hawaldar ...Appellant vs. Ranjana Sharad Hawaldar & Ors. ...Respondents Mr.Pratap Patil for the Appellant Mr.S.A.Rajeshirke for Respondent No.1 and 2 Mr.Shivaji Masal for Respondent No.3 Ms Arti Barve for Respondent No.4. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE OF HEARING THE LAST ARGUMENTS: FEBRUARY 29,2008 DATE OF HEARING THE LAST ARGUMENTS: FEBRUARY 29,2008 DATE OF HEARING THE LAST ARGUMENTS: FEBRUARY 29,2008 DATE OF PRONOUNCEMENT OF THE JUDGMENT: APRIL 11, 2008. DATE OF PRONOUNCEMENT OF THE JUDGMENT: APRIL 11, 2008. DATE OF PRONOUNCEMENT OF THE JUDGMENT: APRIL 11, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. The Appellant has taken an exception to the Judgment and Award dated 26th July 2007 passed by the learned Member of the Motor Accident Claims Tribunal at Islampur. The first and second respondents are the original claimants. The claim petition was filed under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act of 1988), claiming compensation on account of death of one Sharad Bhimrao Hawaldar in a motor accident. The said Sharad suffered serious injuries in an accident involving the vehicle of the third Respondent which was validly insured with the fourth Respondent. The said Sharad succumbed to the injuries sustained in the accident. 2. The first Respondent is the widow of the deceased and the -2- second Respondent is his minor daughter. The Appellant is the father of the deceased. The Appellant was impleaded as a third opponent in the claim petition filed by the first and second Respondents. To the claim petition, the Appellant filed a reply and contended that his deceased son was paying him a sum of Rs.1500/- per month. The contention raised in the reply was that as a result of death of his son, he has lost financial support at the old age. By the impugned Judgment and Award, it was held that the deceased died due to negligence on the part of the third Respondent who was driving the vehicle. The claim for compensation made by the Respondent Nos.1 and 2 was accepted. The tribunal awarded compensation of Rs.4,08,800/- inclusive of an amount of Rs.50,000/- paid under the no fault liability with interest thereon at the rate of 9% p.a. from the date of filing of the claim application till realisation of the amount. The tribunal denied the compensation to the Appellant on the ground that the Appellant was not the Class-I heir of the deceased within the meaning of the Hindu Succession Act,1956 and held that the 1st and 2nd Respondents being Class-I heirs of the deceased are entitled to priority as they are the only legal representatives of the deceased in accordance with the law of inheritance. 3. The learned counsel for the Appellant has made extensive submissions. His submission is that the expression "legal -3- representatives" used in the section 166 of the said Act of 1988 or in section 110-A of the said Act of 1939 has a wider connotation which will include not only Class-I heirs of the deceased but also the Appellant father and the brothers and sisters of the deceased. He submitted that an the incorrect view has been taken by the learned Member of the tribunal. He submitted that the compensation could not have been denied to the Appellant. 4. The learned counsel for the Respondent Nos.1 and 2 placed reliance on a decision of the learned Single Judge of this court in the case of Smt.Shalini wd/o Ghanshyam Nimje and Others Vs. Banwarilal Mukund Chawla and others [2007 (5) All M.R. 833]. He submitted that in view of the said decision, the Appellant father will not be entitled to claim any compensation as the Appellant is not a Class-I heir of the deceased. He submitted that no evidence was adduced by the Appellant to show that he was dependent on the deceased and that the deceased was paying him some amount for maintenance. He submitted that the Appellant is not a poor person and has earned substantial amount by sale of his property. Without prejudice to the aforesaid contention, he submitted that in the event this court is inclined to take a view that the Appellant is entitled to compensation, instead of remanding the petition to the tribunal, this court may fix a reasonable amount by way of compensation payable to the Appellants. -4- 5. The learned counsel for the Appellant submitted that the decision of the learned Single Judge of this Court in the case of Smt.Shalini Nimje and others (supra) is per incuriam in view of various decisions of the Apex Court including the decision in the case of the Gujrat State Road Transport Corporation, Ahmedabad Vs.Ramanbha Prabhatbhai and another (1987 3 S.C.C. 234). 6. I have given careful consideration to the submissions. The first question which arises for determination is "whether the decision of the learned Single Judge of this Court in case of Smt.Shalini Nimje (supra) is a binding precedent?". The second question will be "whether the Appellant is entitled to claim compensation on account of demise of his son?". If the answer to the aforesaid two questions is in the affirmative, the third question will be regarding the quantum of compensation to which the Appellant is entitled to. 7. It will be necessary to refer to the decision of the learned Single Judge of this court in the case of Smt.Shalini Nimje (supra) in paragraph 7 of the said decision, the learned Single Judge has held thus : "22. Thus, according to the ratio laid down in the aforesaid decision, the expression "Legal Representative" under the expression "Legal Representative" under the expression "Legal Representative" under -5- Section Section Section 166 of the Act would mean and include the legal 166 of the Act would mean and include the legal 166 of the Act would mean and include the legal representative representative representative of the deceased according to the law of of the deceased according to the law of of the deceased according to the law of Succession Succession Succession by which the deceased was governed. The by which the deceased was governed. The by which the deceased was governed. The deceased deceased deceased is governed by the provisions of Hindu is governed by the provisions of Hindu is governed by the provisions of Hindu Succession Succession Succession Act and in view of the provisions of Section 8 Act and in view of the provisions of Section 8 Act and in view of the provisions of Section 8 of of of the Hindu Succession Act, the property of a Hindu Male the Hindu Succession Act, the property of a Hindu Male the Hindu Succession Act, the property of a Hindu Male dying dying dying intestate will devolve firstly upon the heirs, intestate will devolve firstly upon the heirs, intestate will devolve firstly upon the heirs, being being being the relatives specified in Class I of the schedule. the relatives specified in Class I of the schedule. the relatives specified in Class I of the schedule. A perusal of Class I of the schedule shows that the Class perusal of Class I of the schedule shows that the Class perusal of Class I of the schedule shows that the Class I heir includes a son, a daughter, a widow, a mother, son heir includes a son, a daughter, a widow, a mother, son heir includes a son, a daughter, a widow, a mother, son of of of the predeceased son and so on, but, it does not the predeceased son and so on, but, it does not the predeceased son and so on, but, it does not include include include a father who is specifically included in Class II a father who is specifically included in Class II a father who is specifically included in Class II of of of the heirs. In the instance case, the Tribunal was, the heirs. In the instance case, the Tribunal was, the heirs. In the instance case, the Tribunal was, therefore, therefore, therefore, not justified in granting a share to the not justified in granting a share to the not justified in granting a share to the Respondent Respondent Respondent No.3, the father of the deceased Ghanshyam, as No.3, the father of the deceased Ghanshyam, as No.3, the father of the deceased Ghanshyam, as he he he was not a Class I heir. was not a Class I heir. was not a Class I heir. The father of Ghanshyam could have been entitled to seek compensation only in absence of availability of the Class I heirs. Since, such it is not the case here, Respondent No.3 was not entitled to any compensation. The Judgments reported in 2004 ACJ 481, 2006 ACJ 1211, 204 ACJ 1751 and 2000 ACJ 489 clearly fortify the submission made on behalf of the Appellant. In view of the aforesaid judgments and in view of the provisions of Section 166 of the Motor Vehicles Act and Section 8 of the Hindu Succession Act, it is clear that the Tribunal was not justified in granting compensation -6- to the Respondent no.3." (Emphasis added) 8. It will be necessary to refer to the decision of the Apex Court in the case of Gujrat State Road Transport Corporation (supra). The Apex Court was dealing with a Special Leave Petition which arose out of a claim petition under section 110-A of the Motor Vehicles Act,1939 (hereinafter referred to as the said Act of 1939). It was a case where a 14 years old boy was run over by a bus resulting in the unfortunate death of the said boy. The brothers of the deceased boy claiming to be the legal heirs and legal representatives of the deceased filed a claim petition under section 110-A of the said Act of 1939. The said claim petition was allowed. In an Appeal preferred before the High Court for challenging the Award of the tribunal, a contention was raised that the brothers of the deceased were not entitled to compensation under the Fatal Accidents Act,1855 (hereinafter referred to as the said Act of 1855). The High Court did not accept the contention raised by the Gujrat State Road Transport Corporation and the Appeal was dismissed. While dismissing the Special Leave Petition filed by the said Corporation, the Apex Court has considered the law on the point. The Apex Court noted that a claim petition filed under section 110-A of the said Act of 1939 by any of the legal representatives of the deceased is maintainable. The proviso to sub section 1 of section 110-A of the said Act -7- provides that where all the legal representatives of the deceased have not joined in such application, the same shall be made on behalf of the 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 the Respondents to the said application. The Apex Court noted that the said Act of 1939 did not define the "legal representatives". The Apex Court referred to the definition of the legal representatives under the Code of Civil Procedure,1908. The Apex Court observed that sub section 1 of section 110-A of the said Act is in a way substitute for the provision of section 1-A of the said Act of 1855. 9. In paragraph 8 of the Judgment, the Apex Court referred to Chapter VIII of the said Act of 1939. When the said Act of 1855 was enacted, there were no motor vehicles on the roads in India. The Apex Court further observed that the Chapter VIII of the said Act of 1939 provides an alternative forum to that provided under the said Act of 1855 for realisation of the compensation payable on account of Motor Vehicle Accidents. The Apex Court held that the said provisions of Chapter VIII were substantive and not merely procedural. It was further held that Section 110-A of the said Act of 1939 is in a way substitute to section 1-A of the said Act of 1855. Section 1-A of the said Act of 1855 provides that "...Every such action or suit shall be for the benefit of the wife, husband, -8- parent and child, if any, of the person whose death shall have been so caused....". Section 1-A further provides that such action shall be brought on behalf of or for the benefit of the legal representatives of the deceased. The Apex Court referred to the view taken by the certain High Courts that the Application under section 110-A of the said Act of 1939 is not maintainable at the instance of the persons other than referred to in section 1-A of the said Act of 1855. In paragraph 13, the Apex Court proceeded to observe as under : "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 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 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 100-B of the Act -9- 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 We should remember that in an Indian family We should remember that in an Indian family brothers, brothers, brothers, sisters and brothers’ children and some times sisters and brothers’ children and some times sisters and brothers’ children and some times foster foster foster children live together and they are dependent upon children live together and they are dependent upon children live together and they are dependent upon the the the bread-winner of the family and if the bread-winner is bread-winner of the family and if the bread-winner is bread-winner of the family and if the bread-winner is killed killed killed on account of a motor vehicle accident, there is on account of a motor vehicle accident, there is on account of a motor vehicle accident, there is no no no justification to deny them compensation relying upon justification to deny them compensation relying upon justification to deny them compensation relying upon the the the provisions of the Fatal Accidents Act, 1855 which as provisions of the Fatal Accidents Act, 1855 which as provisions of the Fatal Accidents Act, 1855 which as we we we have already held has been substantially modified by have already held has been substantially modified by have already held has been substantially modified by the the the provisions contained in the Act in relation to cases provisions contained in the Act in relation to cases provisions contained in the Act in relation to cases arising arising arising out of motor vehicles accidents. We express our out of motor vehicles accidents. We express our out of motor vehicles accidents. We express our approval approval approval of the decision in Megjibhai Khimji Vira V. of the decision in Megjibhai Khimji Vira V. of the decision in Megjibhai Khimji Vira V. Chaturbhai Chaturbhai Chaturbhai Taljabhai and hold that the brother of a Taljabhai and hold that the brother of a Taljabhai and hold that the brother of a person person person who dies in a motor vehicle accident is entitled who dies in a motor vehicle accident is entitled who dies in a motor vehicle accident is entitled to to to maintain a petition under Section 110-A of the Act if maintain a petition under Section 110-A of the Act if maintain a petition under Section 110-A of the Act if he he he is a legal representative of the deceased". is a legal representative of the deceased". is a legal representative of the deceased". (Emphasis added) 10. Therefore, the Apex Court held that in a given case even the brothers, sisters and sometimes foster children can be dependent on a deceased person and the said persons can claim compensation by maintaining an application under section 110-A of the said Act of 1939. Thus, the Apex Court held that concept of the "legal representatives" under section 110-A of -10- the said Act is wider than the concept of legal representatives under the said Act of 1855. As pointed out earlier, under the said Act of 1855, an action can be maintained only at the instance of the wife, husband, parent and child. Therefore, in any case, the father of the deceased can always maintain a claim for compensation on account of death of his son in a motor accident even in a case where the deceased leaves behind Class-I heirs under the said Act of 1956. However, the quantum of compensation payable to the father will depend on the facts and circumstances of every case. 11. In the case of Municipal Corporation of Greater Bombay Vs. Santan Marshail Fernandes [1986 (2) Bombay Cases Reporter page 474), the question which arose for consideration of a Division Bench of this Court was whether maternal aunt of the deceased victim of an accident can maintain an application under section 110-A of the said Act of 1939. The Division Bench rejected the argument that the provisions of section 110-A to 110-F of the said Act of 1939 were merely procedural. Before the Division Bench a specific submission was made that only those persons who have right of inheritance as per the Personal Law can be considered to be the legal representatives within the meaning of section 110-A of the said Act of 1939. The Division Bench relied upon the Full Bench decision of Punjab and Haryana High Court in the case of Prakash Chand vs. -11- Pal Singh (AIR 1985 Punjab 329). The Division Bench negatived the said argument. In paragraph 12 of its Judgment, the Division Bench held thus: "12. Therefore, so far as the question of locus standi to file the claim-application is concerned, it could safely be said that the heirs of the deceased who are legal representatives can maintain an application for compensation. However, if the heir is a person who is not named under section 1A of the Fatal Accidents Act, then the compensation claimable could be for the loss of estate only. In the present case, the petitioner is the maternal aunt of the deceased and has claimed compensation under section 110-A of the Motor Vehicles Act, in her capacity as heir of the deceased. Therefore, her application for claiming compensation for loss of estate is maintainable. To that extent the order passed by the lower Court stands modified." 12. The attention of the learned Single Judge in case of Smt.Shalini Nimje (supra) was not invited to the aforesaid decision of the Apex Court in the case of the Gujrat State Transport Corporation (supra). The Apex Court has held that the sub section 1 of Section 110-A of the said Act of 1939 is in a way a substitute for provisions of section 1-A of the said Act of 1855. In fact, the Apex Court held that the -12- concept of "legal representative" under section 110-A was wider than section 1-A of the said Act of 1855 which provides that action for compensation can be for the benefit of wife, husband, parent or child of the deceased. The scheme of sub section 1 of Section 166 of the Motor Vehicles Act,1988 is no different from sub section 1 of section 110-A of the said Act of 1939. Thus, the father of the deceased victim of the accident can file a claim for compensation under section 166 (1) of the said Act of 1988. The attention of the learned Single Judge while deciding the case of Smt.Shalini was not drawn to the aforesaid binding decisions of the Apex Court and a Division Bench of this Court. Therefore, in view of the law laid down by the Apex Court, the decision of the learned single Judge of this Court in the case of Smt.Shalini Nimje (supra) cannot be read as a binding precedent. 13. Hence, the tribunal committed an error by denying the compensation to the Appellant only on the ground that he is not a Class-I heir of the deceased. 14. The contention of the Appellant before the tribunal was that the deceased was maintaining him by paying a sum of Rs.1500/- p.m.. When the first Respondent (widow of the deceased) stepped into witness box, she has not stated anything about the Appellant except for stating that the Appellant was her father-in-law and was residing at village -13- Kini. It is true that the Appellant has not cross examined the widow. It is because the widow did not dispute in her deposition that the Appellant was receiving some amount from the deceased. In this Appeal, certain documents are placed on record showing that the Appellant was the owner of an agricultural land which was sold by him for consideration of Rs.3,27,000/- in the year 2006. Therefore, it cannot be said that the Appellant was completely dependent on the deceased. While passing an order under section 140 of the said Act of 1988, the learned Member of the tribunal directed that the compensation of Rs.50,000/- with interest shall be equally distributed between the Appellant and the first and second Respondents. The said order was not challenged by the first and second respondents. 15. Considering the fact that the Appellant has lost his son, interests of justice will be served if the Appellant is paid a lump sum amount of Rs.60,000/- by way of compensation. It is stated that the entire amount of compensation has already been deposited with the tribunal. 16. Hence, I pass the following order : i) Appeal is partly allowed. There will be no order as to costs. -14- ii) Out of compensation amount deposited in terms of impugned Award with interest, a lump sum amount of Rs.60,000/- shall be paid by Account Payee cheque to the Appellant. This amount will be over and above the amount received by him under the no fault liability. The balance amount will be disbursed as directed by the clause Nos.(3) and (4) of the operative part of the impugned Judgment and Award. iii) Parties and the tribunal to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE