1 FA.666.99 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 666 OF 1999 Bhagwanji Fakirbhai Patel and others. ... Appellants Versus Bhagwanbhai Jaganath Patil and others. ... Respondents ----- Mr. C.K.Kothari for the Appellants. Mr. Ranjan Tripathi i/b Mr.S.S.Vidyarthi for Respondent No.5. ----- CORAM : A.S.OKA, J. DATE : 05 th July, 2011. ORAL JUDGMENT: 1 The challenge in the appeal is to the judgment and award made by the learned Member of the Motor Accident Claims Tribunal in a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”) filed by the Appellants. The name of the deceased is Manojkumar Gandabhai Patel. The case is made out in the claim petition is that on 8 th November, 1992, the deceased was traveling from Khanvel to Dungra in an auto rickshaw 2 FA.666.99 owned by the Respondent No.4. It is alleged that at that time, a tempo driven by the Respondent No.1 and owned by the Respondent No.2 came in a rash and negligent manner and gave a dash to the auto rickshaw. As a result, the deceased sustained injuries and he succumbed to the said injuries. The Respondent No.3 is the Insurer of the tempo and the Respondent No.5 is the Insurer of the auto rickshaw. 2 The Appellant No.1 is the husband of the Appellant No.2 and the Appellant No.3 is the son of the Appellants Nos.1 and 2. The deceased was the son of the real sister of the Appellant No.2. The case made out by the Appellants is that the mother of the deceased died two months after the birth of the deceased. Therefore, the deceased was looked after by the Appellant Nos.1 and 2. The case made out is that the father of the deceased died two years after the birth of the deceased and therefore, the deceased had grown up in the family of the Appellants. 3 FA.666.99 3 The Tribunal held that the accident occurred due to negligence on the part of the Respondent No.1, who was driving the tempo. The Tribunal came to the conclusion that the compensation payable was Rs.1,09,200/-. However, the Tribunal held that the fact that the father of the deceased died two years after the birth of the deceased is not set out in the claim petition. Even the death certificate of the father has not been produced and therefore, the Tribunal held that it cannot be said that the Appellants are the only legal representatives of the deceased. Therefore, the claim petition was dismissed. 4 The learned counsel appearing for the Appellants submitted that in the examination-in-chief of the Appellant No.1, he has stated that the father of the deceased died two years after the birth of the deceased and there is no challenge to the said statement in the cross-examination. He submitted that there is no reason to disbelieve the case made out by the Appellants that the father of the deceased was no more. He submitted that the quantification of the 4 FA.666.99 compensation is on the lower side inasmuch as the income of the deceased was Rs.2,000/- per month and for no reason, the Tribunal has taken the income of the deceased at Rs.1,000/- per month. He submitted that the compensation fixed by the Tribunal is on the lower side. The learned counsel appearing for the Respondent No.5 supported the impugned judgment and award. 5 I have given careful consideration to the submissions. There is already a finding recorded by the Tribunal that the accident occurred due to negligence on the part of the Respondent No.1, who was driving the tempo. The Respondent No.2 is the owner of the tempo, who is liable to pay the compensation. The liability of the Respondent No.3 as the Insurer of the tempo has not been disputed. The Respondent Nos.1 to 3 have not appeared in this appeal and they have not challenged the finding on the issue of the negligence. 6 The second issue is regarding maintainability of the claim petition at the instance of the Appellants under Section 166 of the said 5 FA.666.99 Act. A claim petition filed by all or any of the legal representatives of the deceased is maintainable. The proviso to sub-Section (1) of Section 166 lays down that where all the legal representatives of the deceased have not been joined in any such application for compensation, the application shall be deemed to have been made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not been so joined shall be impleaded as the Respondents to the application. 7 As far as the term legal representative is concerned, the law on that aspect has been laid down by the Division Bench of this Court in the case of Municipal Corporation of Greater Mumbai Vs. Santan Marshall Fernandes [1986 (2) Bombay Cases Reporter 474]. The Division Bench had an occasion to consider the scope of the term legal representative under Section 110-A of the Motor Vehicles Act, 1939. In paragraph No.12, the Division Bench held thus: “12. Therefore, so far as the question of locus standi to file claim-application is concerned, it could safely be said that the heirs of the deceased who are legal 6 FA.666.99 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 comparison 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 110A 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.” (Underline supplied) 8 In the case of Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and another [AIR (1987) Supreme Court 1690], in paragraph No.11, the Apex Court held thus: “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 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 S. 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 7 FA.666.99 apportionment as required by S. 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under S. 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 brothers, sisters and brothers' children and sometimes 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 justification 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 in Megjibhai Khimji Vira and another v. Chaturbhai Taljabhai, (AIR 1977 Guj 195) (supra) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under S. 110-A of the Act if he is a legal representative of the deceased.” (Underline supplied) The Apex Court in paragraph No.13 proceeded to hold thus: “13. Before concluding we may add that although the Act was extensively modified after the receipt of the report of the Law Commission, Parliament did not choose to amend S. 110-A of the Act by defining the expression 'legal representatives' in relation to claims under Chapter VIII of the Act as 'the spouse, parent and children of the deceased' as recommended by the Law Commission. The Law Commission had observed in its 85th report that it would be appropriate to assign to the expression 'legal representative' the same meaning as had been given to the expression 'representative' for the purposes of the Fatal Accidents Act, 1855 and that would effectively carry out the purpose of social justice underlying Chapter VIII of the Act, to which the Fatal Accidents Act, 1855 was the nearest 8 FA.666.99 approximation. This recommendation was made after referring to the divergent views expressed by the various High Courts on the meaning of the expression 'legal representatives' in S 110-A of the Act. The fact that Parliament declined to take any action on the recommendation of the Law Commission of India suggests that Parliament intended that the expression 'legal representatives' in S. 110-A of the Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased.” (Underline supplied) Thus, the Apex Court expressly held that the word “legal representatives” in Section 110-A of the said Act of 1939 be given wider meaning and it should not be confined to the spouse, parents and children of the deceased. The Apex Court held that in a given case even foster children of the deceased can be held to be legal representatives. 9 In the claim application filed by the Appellants, it is true that it is not disclosed that the father of the deceased was no more. It is averred in the claim application that the deceased was living with the Appellant Nos.1 and 2 since birth as his mother had expired soon after his birth. It is alleged that the Appellant Nos.1 and 2 have looked after 9 FA.666.99 the deceased as their own son. 10 Perusal of the written statement filed by the Respondent Nos.1 and 2 shows that the plea of non-joinder of the father of the deceased was not raised. There is a separate written statement filed by the Respondent No.3 in which a contention has been raised that the Appellants are not the legal representatives of the deceased. However, the Respondent No.3 has not raised a contention regarding non-joinder of the father of the deceased as a party. 11 The Appellant No.1 was examined as a witness. In the examination-in-chief, he has stated thus: “I am applicant No.1 in the present case. Applicant No.2 is my wife Applicant No.3 is my son. Deceased Manoj Gandabhai was my nephew. The mother of Manoj died within 2 months after the birth of Manoj while father died after 2 years. And therefore Manoj was residing with me and I used to maintain him.” (Underline supplied) On this aspect, there is no cross-examination made by the Advocate for the Respondent Nos.1 and 2. However, there is some 10 FA.666.99 cross-examination made by the Advocate for the Respondent No.3. The relevant part of which reads thus: “..... I have not filed on record any document showing that father of Manoj died within 2 yrs. after the birth of Manoj.” 12 There is no challenge in the cross-examination to the statement that the mother of the deceased died two months after his birth and therefore, the deceased was all along residing with the family of the Appellants. It is true that the father of the deceased would have been alive, he could have claimed compensation as one of the legal representatives covered by Section 166 of the said Act. It is true that the Appellants ought to have filed the death certificate of the father of the deceased as it is admitted that no document is filed on record by the Appellants to prove the death of the father of the deceased. 13 At the same time, there is no challenge to the contention that the deceased from his childhood stayed with Appellant Nos.1 and 2 and grew in their family and that the deceased was looked after by 11 FA.666.99 the Appellant Nos.1 and 2. In view of these peculiar facts, the Appellant Nos.1 and 2 can claim to be the legal representatives of the deceased. However, the Appellant No.3 is not entitled to receive any compensation. However, before compensation paid over to them, they will have to produce the death certificate of the father of the deceased. 14 That takes me to the quantum of the compensation. A case made out by the Appellants is that the deceased was running a garage and was getting income of Rs.2,000/- per month. It is stated that the deceased used to give money to the Appellants for their livelihood. In the cross-examination made by the Advocate for Respondent Nos.1 and 2, the Appellant No.1 stated that the deceased had taken education from ITI (Industrial Training Institute). However, in the cross-examination made by the Respondent No.1, the Appellant No.1 admitted that there is no document filed on record to show that the deceased had taken education from ITI. Notwithstanding this evidence, the trial Court has taken the income of the deceased at Rs. 1,000/- per month. In absence of any evidence adduced by the 12 FA.666.99 Appellants and considering the fact that the age of the deceased was 33 years, the income of Rs.1,000/- per month taken by the Tribunal cannot be faulted with. 15 The other question will be what should be the deduction made on account of personal expenditure and whether any amount can be added towards the future prospects of increase in earnings. As far as deduction on account of personal expenditure is concerned, in view of the decision of the Apex Court in the case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another [(2009) 6 Supreme Court Cases 121], 50% deduction will have to be made as the deceased was unmarried. Thus, for the purposes of calculating multiplicand, the income will have to be taken at Rs.500/- per month. As far as additional income on account of future prospects is concerned, in the case of Sarla Verma (supra), the Apex Court has held that additional amount can be granted provided the deceased was having a permanent employment. In the present case, there is absolutely no evidence adduced by the Appellants to show the source 13 FA.666.99 of income of the deceased. Therefore, no addition can be made on the ground of future prospects. 16 The submission of the learned counsel appearing for the Appellants was that in terms of the decision of the Apex Court in the case of Sarla Verma (supra), multiplier of 18 will have to be taken. In the present case, only the Appellant Nos.1 and 2 are entitled to compensation and their age is admittedly more than the age of the deceased. As far as applicability of multiplier in such cases is concerned, the issue has been decided by the Apex Court in the case of Shakti Devi Vs. New India Insurance Company Limited and another (Civil Appeal No.3660 of 2006) decided on 9 th November, 2010. After considering the decision in the case of Sarla Verma (supra), the Apex Court held that in a case where age of the claimant is higher than the age of the deceased, then the age of the claimant has to be taken into consideration for determining the appropriate multiplier. Hence, the applicability of multiplier will have to be determined on the basis of the respective ages of the Appellant Nos.1 14 FA.666.99 and 2. The average age of Appellant Nos.1 and 2 is 55 years. Hence, in terms of the decision of the Apex Court in the case of Sarla Verma (supra), the multiplier will be 11. A sum of Rs.10,000/- will have to be added as usual amount. Hence, the compensation amount payable will be Rs.76,000/- (Rs.500 x 12 x 11 + 10,000/-). The compensation amount will carry interest at the rate of 8% per annum from the date of filing of the claim petition. 17 Hence, I pass the following order: i. The impugned judgment and award is quashed and set aside ; ii. The Respondent Nos.1 to 3 are jointly and severally directed to pay the compensation of Rs.76,000/- to the Appellant Nos.1 and 2 together with interest thereon at the rate of 8% per annum from the date of filing of the claim petition till realization ; iii. The Respondent Nos.1 to 3 shall deposit the amount within a period of three months from the 15 FA.666.99 date of this judgment ; iv. After the amount is deposited, the Tribunal shall invest the same in fixed deposit in any nationalized bank ; v. Only after the Appellant Nos.1 and 2 produce a certified copy of the death certificate of the father of the deceased alongwith an affidavit and only after the Tribunal is satisfied that the death certificate is genuine, the Tribunal will permit the Appellant Nos.1 and 2 to withdraw the compensation amount ; vi. The amount shall remain invested till the compliance is made by the Appellant Nos.1 and 2 by producing the death certificate of the father of the deceased. In the event, the death certificate is not produced in reasonable time, the Respondent who has deposited the amount shall be entitled to apply for withdrawal of the amount with accrued interest ; vii. The appeal is partly allowed on above terms ; 16 FA.666.99 and viii. The Appellants will be entitled to proportionate costs of the claim petition as well as this appeal from Respondent Nos.1 to 3. [ A.S.OKA, J ]