IN THE HICTICOIIRT OF CHHATTfSGARH AT BILASPUR M.A.fCl No. \\^ OF2QOS 't^'f'S^I APPELLANT Non-applicant No.2 (Owner of Vehicle) ^ Sri Vimal Prasad Shanna S/o. Ramcharitra Sharma, aged about 68 years, Resident of DomanhU Chirmiri, Tahsil Manendragarh, ii V ...-•--^^Sfi?^ District Korea (C-G-)• fys^^ . ^..-•^ I RESPONDBNTS Applicant No.l ^ w Applicant No.2 Claiinant Versus :1) ySri Santosh S/o. Shanker, aged about 28 years, resident of Madiyakhuta, Village Thaggaon Khadgavan, Tahsil Manendragarh, Distnct Korea (C.G.). Sri Dhaniram S/o. Vanshroop, aged about 80 years, resident of . -^- Madiyakhuta, Village TSia^gaon PoUce Station Khadgavan, District Korea (C.G.). : 3) ^runan Branch Manager, National Insurance Company, Private Limited, Saniastipur, Bihar, Head Office -3 Middletan Street, P.B.No.9299 Kolkata (700071) Non-applicant No. 1 .:4) ^ri Prahlad, S/o. Racharitra, aged Non-apDlicant No.3 ^' about 22 years, Resident ofViUage Masga, Police Station Pratappur, Distnct Surguja (C.G.) Presentiy residing at Driver Colony, Doinanhil Chirmiri. •/ ^••-i^ r APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 ^ II- ^: ':?A ti HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Radhe Shyam Sharma /L/ S IVIiscellaneous Appeal (C.) No.1184 of 2008 Sri Vimal Prasad Sharma versus Sri Santosh and others ORDER I- Postfor /^-08-2011 Sd/- R.S.Sbarma Judge ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Radhe Shvam Sharma Miscellaneous Appeal (C.l No.1184 of 2008 Appellant Respondents versys Sri Vimal Prasad Sharma Sri Santosh and others Present: Ms. Hamida Siddique, counsel for the appellant. Shri Brijesh Singh, counsel for respondents No.1 and 2. Shri Pankaj Shrivastava, counsel for respondent No.4. None for respondent No.3. MisceUaneoys ARBeaLynder Section 173 of the Motor Vehicles Act, 1988 ORDER (Passed on frl August, 2011) This appeal has been preferred by non-applicant No.2 Vimal Prasad Sharma, owner of the truck Tata 407 challenging the award dated 22-2-2008 passed by 2nd Additional Motor Accidents Claims Tribunal (F.T.C.), Manendragarh, District Korea in Claim Case No. 11/2007. '2.. Brief facts of the case are that the appellant is the owner of the truck Tata 407 bearing registration No.BR 33 B 5818, which was insured with respondent No.S/non-applicant No.3 National Insurance Company Limited at the time of accident. Respondent No.1 is elder brother and respondent 2 is grand father of deceased Sanjay. On 4- 2-2006, the deceased was coming from Village Dubchhola to Lalpur sitting in the truck Tata 407, which was being driven by respondent •T^ No.4. Due to rash and negligent driving of the truck Tata 407, an accident took place near Badkapara, Dubchhola, as a result of which, the deceased died. The claimants/respondents No.1 and 2 filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (henceforth 'the Act, 1988') claiming compensation of Rs.6,51,800/- for the death of the deceased. 3. Ms. Hamida Siddique, learned counsel for the appellant has argued that though the claimants are legal representatives of the deceased yet they are not his dependents. The claimants/respondents No.1 and 2 were living separately from the deceased, therefore, they arenot entitled for compensation under Section 166 of the Act, 1988. The Claims Tribunal, ignoring these facts, has awarded compensation in favour of the claimants, which is unsustainable. She placed reliance on Smt. Manjuri Bera vs. Oriental Insurance Co. Ltd., 2007 AIR SCW 1962. 4. Shri Brijesh Singh, learned counsel for respondents No.1 and 2 and Shri Pankaj Shrivastava, learned counsel for respondent No.4 have supported the impugned award and submitted that the award does not call for any interference by this Court. 5. I have heard learned counsel .for the parties and perused the impugned award and the evidence available on record. The Claims Tribunal, on a closed scrutiny of the evidence available on record, has awarded a sum of Rs.1,82,000/- as compensation in favour of the claimants. --^0 6. Dhaniram (AW-2) has stated in cross-examination in paragraph 7 that it is true that he was earning his livelihood by begging. It is also true that Sanjay (the deceased) and Santosh were not maintaining him. Santosh (AW-1) has stated in cross- examinationin paragraph 11 that it is not true that deceased Sanjay did notlive with him. It is true that he could not mention in his application that his brother Sanjay (the deceased) lived with him and maintained him. It is true that he did not mention in his affidavit under Order 18 Rule 4 of the Code of Civil Procedure that his brother Sanjay lived with him and maintained him. 7. In Smt. Manjuri Bera vs. Oriental Insurance Co. Ltd. (supra), the Hon'ble Supreme Court has observed thus: "12. 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 in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996, i.e. underSection 2(1 )(g). 13. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai A/a/qrue (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 •Sb» 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 ofthe deceased. All such persons would be covered by the expression 'legal representative'. As observed in 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. 14. 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." 8. On applying the above principle laid down by the Hon'ble Supreme Court and inview of the evidence led by Santosh (AW-1) and Dhaniram (AW-2), it is clear that claimant/respondent No.2 Dhaniram, being grand father of deceased Sanjay, is a class-11 heir of the deceased and he comes within the purview of dependent of the deceased. Though claimant/respondent No.1 Santosh was a > legal representative of deceased Sanjay yet he does not come within the purview of dependent of the deceased as he was residing separately from the deceased and maintaining him himself. 9. The assessment of annual income of the deceased as Rs.15,000/- and deduction of 1/3 of his income towards his personal and living expenses are not proper. Santosh (AW-1) ,r deposed that his brother (the deceased) was engaged as a labourer under a contractor and he was earning Rs.3,000/- per month. Harichandra (AW-3) deposed that Sanjay (the deceased) was earning Rs.3,000/- per month. No documentary evidence has been led to prove the income of the deceased as Rs.3,000/- per month. Since the accident took place on 4-2-2006, therefore, keeping in mind the average wages of the year 2006, assessment of monthly income of the deceased as Rs.2,500/- per month would be proper. Accordingly, annual income ofthe deceased would be Rs.30,000/-. 10. Deceased Sanjay was a bachelor and the claimant Dhaniram, who is his grand-father, is aged 80 years. The deceased, being a bachelor, would be spending a considerable amount of his income ' on him or that he would be contributing only a small part of his income on his grand-father. Therefore, it is proper to deduct 50% of the income of the deceased towards his personal and living expenses. Annual income of the deceased is assessed as Rs.30,000/-. After deduction of 50% thereof, loss of annual dependency comes to Rs.15,000/-. / 11. The multiplier of 1 8 applied by the Claims Tribunal is on higher side. The age of claimant/respondent No.2 Dhaniram is also a determinative factor for applying multiplier. The age of Dhaniram, as mentioned in the claim petition, is 80 years. The proper multiplier is 5. Therefore, daimant/respondent No.2 shall be entitled to get compensation of (Rs.15,000/- x 5 =) Rs.75,000/-. In addition to that, he shall be entitled to get Rs.5,000/- for funeral expense and Rs.10,000/- towards loss of love and affection. In total, he shall be entitled to get Rs.90,000/- as compensation. The compensation of Rs.90,000/- shall be paidto the claimant/respondent No.2 Dhaniram by the driver and the owner, jointly and severally. 12. Claimant/respondent No.1, being not dependent on the deceased, shall not be entitled to get any compensation. 13. For t(ie foregoing reasons, the appeal is allowed in part. The impugned award is modified to the above extent. The interest part ofthe impugned award shall remain intact. No order as to costs. Sd/- R.S.Sharma Judge Gopal