SMT. MANJURI BERA

THE ORIENTAL INSURANCE COMPANY LID~ AND ANR.

MARCH 30, 2007

[DR. ARIIlT PASA YAT AND S.H. KAPADIA, JJ.]

Motor Vehicles Act, 1988; Ss. 140, 166 and 168/West Bengal Motor Vehicles Rules, 1989/Code of Civil Procedure, 1908; s 2(ii).

C Motor Vehicles accident-Death-Claim Petition-Legal representative not dependent on deceased-Entitlement to-Held: In case of vehicular accident, all/any of legal representatives of the deceased entitled to claim compensation-Any of them could file a claim petition-Liability in terms of s. 140 of the Act does not cease merely because of absence of dependency- D Right to file claim has to be considered in the back ground of right to entitlement-Even if there is no loss of dependency, the claimant/legal representative would be entitled to compensation.

Words and Phrases:

E 'Legal representatives '-Meaning and scope df in :terms rdf s. 2(ii) CPC-Discussed

Appellant'sfather lost his life in a vehicular accident caused by a Mini Truck belonging to respondent No. 2. As the deceased had:no"lther.legal heir, a claim petition was lodged by his married daughter 1und:er s.140(2) of the F Motor Vehicles Act. Respondent No.I, the insurer With w.hom 'the offending vehicle was the subject-matter of insurance filed a written stat:em:ent taking the stand that since the claimant was not dependant upon the'deceased, there was no question of any compensation being paid. The Motor Accident Claims Tribunal dismissed the claim petition accepting the stand of the insurer. An G appeal was filed by the appellant before the High Court questioning the correctness of the Tribunal's view. The High Court by the impugned judgment held that the appeal was without merit and dismissed thesame. Hence the present appeal

Amicus Curiae submitted that the view taken by1he Tribunal and the

MANJURIBERAv. THEORIENTALINSURANCECOMPANYLTD. 591 Ill ;<--

High Court is super technical that even if there was no dependency, there js A a loss to the estate and a person who is a legal representative but not dependant can yet be a beneficiary of the estate, therefore, a realistic and pragmatic view should be taken.

Allowing the appea~ the Court B HELD: 1.1. The Expression "legal representative" has not been defined

~ either in the Motor Vehicle Act or the West Bengal Motor Vehicles Rules,

1989. The widest meaning, therefore, can be ascribed to it in terms of Section 2(11) of the Code of Civil Procedure, 1908. (Para SJ (592-G-H; 593-A)

1.2. In terms of clause (C) of sub-mission (1) of Section 166 of the Act c in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act. [Para 9] [594-C-E] D

.J.

-~- 1.3. 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 any where a party

I 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. [Para 12) [595-D-E] E

Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, AIR (1989) SC 1589, and Gujrat State Road Transport Corporation

v. Ramanbhai Prabhabhai and Anr., AIR (1987) SC 1690, relied on • . 1.4. There are three stages while assessing the question of entitlement. F 1 In the first stage, 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. [Para 14) (596-A-BJ

1.5. A legal representative who is not dependant if files an pplication for compensation, the quantum cannot be less than the liability referable to G Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, .... the quantum of which shall be not less than the liability flowing from Section 140 of the Act. [Para 16) [596-C"".D)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1702 of2007.

A From the Final Judgment and Order dated 12.11.2003 of the High Court of Judicature at Calcutta in F.M.A. No. 2885 of2002.

Jayant Bhushan, (A.C.) Ram Ekbal Roy and Sarla Chandra for the Appellant. ,

-B S.L. Gupta, Baldev Krishan, R.A. Gupta and Goodwill Indeevar for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYA T, J. 1. Leave granted. c

2. An interesting question is involved in this appeal. By the nnpugned judgment the Calcutta High Court held that though the appellant, a married daughter of Bata Krishna Mondal (hereinafter referred to as the 'deceased') could maintain a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988 (in short the 'Act') she was not entitled to any compensation as D she was not dependant upon the deceased.

3. Factual position is undisputed and needs a brie~ reference.

4. On 11.5.1998 deceased lost his life in a vehicular accident and the offending vehicle, a Mini Truck registration No.WB-29/0185 belonged to E respondent No.2. As the deceased had no other legal heir, a claim petition was lodged claiming compensation. Respondent No.I (hereinafter referred to as the 'insurer') with whom the offending vehicle was the subject-matter of insurance filed a written statement taking the stand that smce the claimant was not dependant upon the deceased, there was no question of any p compensation being paid. The Motor Accident Claims Tribunal, Midnapore at Tamluk, District Midnapore (in short the 'Tribunal') dismi~ed the claim petition accepting the stand of the insurer.

5. An appeal was filed before the Calcutta High Court questionllig the correctness of the Tribunal's view. The High Court by the impuedjudgment G held that the appeal was without merit and dismissed the same. It was held that though a married daughter can be covered by the expesion "legal representative" appearing in Section 166 of the, Act, she was not ntitled to any compensation unless he or she was dependant on the deceased. The expression "legal representative" has not been defined either in the Act or the West Bengal Motor Vehicles Rules, 1989 (in short the 'Rules'). The widest H

'-f

MANJURIBERAv.THEORIENTALINSURANCECOMPANYLTD.[PASAYAT, J.] 593

meaning, therefore, can be ascribed to it in terms of Section 2(11) of the Code A of Civil Procedure, 1908 (in short "CPC").

6. When the matter came up for hearing considering the importance of the question, Mr. Jayant Bhushan, learned senior counsel was requested to act as Amicus Curiae. He has with reference to various provisions submitted B that the view taken by the Tribunal and the High Court is super technical.

Even if there was no dependence, there is a loss to the estate and a person " who is a legal representative but not dependant can yet be a beneficiary of

~ the estate. It was, therefore, submitted that a realistic and pragmatic view should be taken.

7. Learned counsel for the insurer supported the judgment of the Tribunal c

and the High Court.

8. Section 166 of the Act corresponds to Section llO of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Old Act') and the same reads as follows: D ... "Application for compensation:- (I) An application for compensation _A

arising out of an accident of the nature specified in sub-section (I) of Section 165 may be made-

(a) by the person who has sustained the injury; or E

(b) by the owner of the property; or

( c) where death has resulted from the accident, by all ot any of the legal representatives of the deceased; or " ( d) by any agent duly authorized by the person injured or all or any F .., of the legal representatives of the deceased, as the case may be .

Provided that 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 benefit of all the legal representatives of the deceased and the legal representatives who G have not so joined, shall be impleaded as respondents to the application .

....

(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal H

--y

A within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under Section 140 B is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. ...

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"{ xx xx c

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act." ~

9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become D entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where ,.._

all the legal representatives had not joined, then application can be made on

,.. __

behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its

E view that the appellant could maintain a claim petition in terms of Section 166 of the Act.

10. Section 168 of the Act reads as follows:

"Award of the Claims Tribunal:- On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after Al F 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 claim 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

G specifying 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 aceident or by all or any of them, as the case may be: ...,.

Provided that where such application makes a claim for H compensation under section 140 in respect of the death or permanent

MANJURIBERA v. THEORIENTALINSURANCECOMPANYLTD. [PASAYAT, J.J 595

disablement of any person, such claim and any other claim (whether A 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.

(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period ' B 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 such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims C Tribunal may direct."

11. The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the , entitlement of compensation by a person who claims for the same.

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 E 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 .. under Section 2(1)(g).

13. As observed by this Court in Custodian of_Branches of BANCO National Ultramarino v. Nalini Bai Naique, AIR(1989) SC 1589 the definition F contained in Section 2(11) CPC is inclusive in character and it$ 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 G 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.

SUPREME COURT REPORTS

[2007] 4 S.C.R. ....

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

B 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. c

15. Section 165 of the Act also throws some light on the controversy.

The explanation includes the liability under Sections 140 and 163-A.

16. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less D than the liability referable to Section 140 of the Act. Therefore, even ifthere is no loss of dependency the claimant if he or she is a legal representative ...

will be entitled 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. We record our appreciation

E for the able assistance rendered by Shri Jayant Bhushan, the learned Amicus Curiae.

SKS.

Appeal allowed.

KAPADIA, J. l. Although I agree with the operative part of the judgment proposed to be delivered by my esteemed brother Dr. Arijit Pasayat, J, I would

4, F like to give my own reasons. ~

2. In the Present case the married daughter of the victim (deceased) filed the claim under Section 140 (2) of the Motor Vehicles Act, 1988 praying for statutory compensation on account of the death of her father. As stated, the

G application was made under Section 140 of the Said Act. That Section makes it clear that "No Fault Liability" is cast on the owner of the vehicle and not directly on the insurer. Before an order is passed under Section 140, the Tribunal must be satisfied that the accident arose out of a motor vehicle ,.,_ ,.

which resulted in permanent disablement or death and that the claim is made against the owner and the insurer of the offending motor vehicle.

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MANJURIBERA v. THEORIENTALINSURANCECOMPANYLTD. [KAPADIA, J.] 597

3. In the present case, as stated above, the victim's married daughter A has made her claim under Section 140 of the said Act saying that she has five children; that they are minors; that she was brought up her uncle; that after her mother's death the deceased lived in the same house which the claiment was living with her uncle before her marriage; that the deceased was a mason that after her marriage she lived with her husband and, therefore, she was B entitled to get statutory compensation under Section 140 of the said Act.

4. 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. c 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".

5. 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 E the final amount awarded by the Tribunal. Since, the amount is a fixed 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, 'lamely, his daughter has inherited his estate. She was entitled to inherit his estate. In the circumstances, she was entitled to recieve F 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.

6. For the above separate reasons, I agree with the conclusion, namely, G the appeal be allowed with no order as to costs.

S.KS.

Appeal allowed.