Learned adovcate appearing on behalf of the appellants does not press the present Note for Speaking to Minutes with a liberty to file an appropriate application in the main First Appeals.

Present Note for Speaking to Minutes is dismissed as not pressed with above liberty.

Sd/­ (M.R. SHAH, J.) Ajay Page 1 of 1 HC-NIC Page 1 of 41 Created On Sun Mar 20 02:49:26 IST 2016 1 of 41 C/FA/2188/2002 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2188 of 2002 TO FIRST APPEAL NO. 2195 of 2002 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH Sd/-

========================================================== 1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?

2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of NO the judgment ?

4 Whether this case involves a substantial question of NO law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== UNITED INDIA INSURANCE CO. LTD....Appellant(s) Versus DIPTIBEN URESHBHAI VORA & 3....Defendant(s) ========================================================== Appearance:

It is submitted that, therefore, the learned tribunal ought to have dismissed the respective claim petitions on the aforesaid ground alone.

4.02. In support of his above submissions, Mr. Thomas, learned advocate appearing on behalf of the appellant - Insurance Company has heavily relied upon the decision of the Hon'ble Supreme Court on the following decisions of the Hon'ble Supreme Court as well as this Court :-

1999 with First Appeal No. 6560 of 1999.

4.03. In the alternative, it is submitted by Mr.Thomas, learned advocate appearing on behalf of the appellant - Insurance Company that even if it is held that being legal heirs and legal representative, the respective claim petitions at the instance of the original claimants were maintainable, in that Page 7 of 40 HC-NIC Page 8 of 41 Created On Sun Mar 20 02:49:26 IST 2016 8 of 41 C/FA/2188/2002 CAV JUDGMENT case also the original claimant shall not be entitled to any amount under the head of loss of dependency, as after the marriage she settled in USA since 1982 and not dependent on any of the deceased persons and therefore, she is not entitled to any amount towards loss of dependency.

4.04. In the alternative, it is further submitted by Mr.Thomas, learned advocate appearing on behalf of the appellant that only that person is entitled to loss of dependency who is dependent upon the victim / deceased died in the accident and has suffered loss of dependency on the death of a person on whom he/she was dependent. It is submitted that in such a situation and case, such a claimant would be entitled to only loss of estate and/or other amount towards medical expenses etc. only.

4.05. It is further submitted by Mr.Thomas, learned advocate appearing on behalf of the appellant - Insurance Company that in any case and even otherwise, the learned tribunal has materially erred in holding the driver of the truck jointly and severally liable for the accident. It is submitted that the manner in which the accident took place at 7.30 in the morning and there was head on collision between two vehicles, the learned tribunal ought to have held both the drivers equally negligent.

Making above submissions, it is requested to allow present appeals.

5.00. All these appeals preferred by the Insurance Company are opposed by the learned advocate appearing on Page 8 of 40 HC-NIC Page 9 of 41 Created On Sun Mar 20 02:49:26 IST 2016 9 of 41 C/FA/2188/2002 CAV JUDGMENT behalf of the original claimants. It is vehemently submitted by the learned advocate appearing on behalf of the original claimants that under the Motor Vehicles Act , all the heirs and legal representatives of the victim of the accident are entitled to prefer claim petition, irrespective of the fact that they are financially dependent upon the victim or not. It is submitted that in the present case, the claimants have a right to file claim petition under section 166(1)(c) of the Motor Vehicles Act read with section 50 of the Hindu Succession Act. Relying upon the following decisions of the Hon'ble Supreme Court as well as various High Courts including Gujarat High Courts it is submitted that irrespective of the fact that the heir and legal representative of the deceased/victim of the accident was dependent upon the deceased or not, being heir and legal representative, the claim petition under the Motor Vehicles Act would be maintainable :-

HC-NIC Page 10 of 41 Created On Sun Mar 20 02:49:26 IST 2016 10 of 41 C/FA/2188/2002 CAV JUDGMENT 5.01. It is further submitted by the learned advocate appearing on behalf of the original claimant that even in the case of Manjuri Bera (supra), the Hon'ble Supreme Court not only has held that a legal representative who is not dependent will be entitled to the compensation, quantum of which shall not be less than the liability flowing from section 140 of the Motor Vehicles Act. It is submitted that therefore, in the aforesaid decision, the Hon'ble Supreme Court has not only held that the claim petition by legal representative who is not dependent would be maintainable but even such a legal representative - claimant shall also be entitled to the compensation under the Motor Vehicles Act .

5.02. It is submitted by the learned advocate appearing on behalf of the original claimant that in the case of Sarana Das Versus Bhutnath Gorivi, reported in 2010 ACJ 401 (Calcutta), Calcutta High Court, after considering the various decisions of the the Hon'ble Supreme Court, has held that heirs and legal representatives of the victim can maintain an application under section 166 of the Act irrespective of the fact whether they are dependent upon the victim or not.

5.03. It is further submitted by the learned advocate appearing on behalf of the original claimant that even in the case of Meghji Khimji Vira (supra), the Division Bench of this Court has held that the claim application by brother and nephew of the deceased who were legal representatives would be maintainable. It is submitted that after holding so, the Division Bench has awarded compensation under the Motor Vehicles Act to the brother and nephew of the deceased.

HC-NIC Page 11 of 41 Created On Sun Mar 20 02:49:26 IST 2016 11 of 41 C/FA/2188/2002 CAV JUDGMENT 5.04. It is further submitted by the learned advocate appearing on behalf of the original claimant that the decision of the Division Bench of this Court in the case of Meghji Khimji Vira (supra), has been subsequently considered and approved by the Hon'ble Supreme Court in the case of Ramanbhai Prabhatbhai and others (supra). It is submitted that in the case of Raman Prabhatbhai and others (supra), the Hon'ble Supreme Court, after considering the decision of this Court in the case of Meghji Khimji Vira (supra), has observed and held that the brother of a person, who died in a motor vehicle accident is entitled to maintain a petition under section 110 of the Act if he is a legal representative of the deceased.

5.05. It is further submitted by the learned advocate appearing on behalf of the original claimant that even Madras High Court in the case of Branch Manager, National Insurance Company Limited Vs. Smt. Sumathi and others , reported in 2012 AAC 2965, after considering various decisions of the Hon'ble Supreme Court as well as various High Courts on the point / issue has held that the legal representatives ordinarily includes heirs as well as persons who represent the estate of the deceased person or persons on whom estate devolves on the death of an individual and therefore, right of claim for compensation of any or all legal representatives under section 166 of the Motor Vehicles Act is a legal right.

It is further submitted by the learned advocate appearing on behalf of the original claimant that in the aforesaid decision, it is further observed and held that by the Madras High Court that there could be still a case where there Page 11 of 40 HC-NIC Page 12 of 41 Created On Sun Mar 20 02:49:26 IST 2016 12 of 41 C/FA/2188/2002 CAV JUDGMENT is contribution of a portion of the income of the deceased to a legal representative, who had preferred a claim and he/she would not be wholly dependent on the income of the deceased. It is submitted that, it is further observed that a limited loss of contribution from the deceased would give rise to claim a compensation by him under section 166 of the Act, though he might not be wholly dependent as defined in section 2(1)(d) of the Workmen Compensation Act.

It is further submitted in the aforesaid decision, it is further observed and held by the Madras High Court that just because a brother or sister is married, right to represent the estate of the deceased is not taken away and therefore, claim petition by such legal representative who may not be dependent would still be maintainable for compensation under the Motor Vehicles Act .

5.06. It is further submitted by the learned advocate appearing on behalf of the original claimant that even as per section 110A of the Motor Vehicles Act, any legal heir and representative of the victim of the accident would be entitled to file a claim petition.

5.07. It is, therefore, submitted that to hold that any heir and legal representative of the victim not dependent upon the victim of the accident is not entitled to file claim petition would tantamount to deny right to claim compensation under section 110A of the Motor Vehicles Act. It is further submitted that therefore, the learned tribunal has rightly awarded compensation to the original claimant by holing that the claim petitions at the instance of the original claimants for Page 12 of 40 HC-NIC Page 13 of 41 Created On Sun Mar 20 02:49:26 IST 2016 13 of 41 C/FA/2188/2002 CAV JUDGMENT compensation under the Motor Vehicles Act were maintainable.

5.08. Now, so far as the reliance placed upon unreported decision of this Court in the case of Gujarat Transport Organization passed in First Appeal No. 5182 of 1995 is concerned, it is submitted that on facts , the said decision shall not be applicable and/or of any assistance to the appellant.

By making above submissions and relying upon above decisions, it is requested to dismiss the appeals preferred by the Insurance Company.

6.00. Now, so far as the appeals preferred by the original claimants to enhance the amount of compensation awarded by the learned tribunal is concerned, it is submitted that in the present case, the claimant lost her entire family i.e. father, mother, brother and wife of the brother and therefore, appropriate amount was required to be granted towards loss of love and affection and mental shock and suffering to the claimant. It is submitted that even while considering the future loss of income / loss of dependency, the learned tribunal has not applied proper multiplier. It is submitted that in the case of death of the mother, the learned tribunal has applied multiplier of 8, instead of 11 as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 : AIR 2009 S.C. 3104. It is submitted that similarly in the case of death of sister-in-law, the learned tribunal ought to have applied multiplier of 18, instead of 12 applied by the learned tribunal. It is further submitted that in case of death of a brother, the Page 13 of 40 HC-NIC Page 14 of 41 Created On Sun Mar 20 02:49:26 IST 2016 14 of 41 C/FA/2188/2002 CAV JUDGMENT learned tribunal ought to have applied multiplier of 17, instead of 12 applied by the learned tribunal.

Making above submissions and relying upon above decision in the case of Sarla Verma (supra), it is requested to allow the present appeals preferred by the original claimant and enhance the amount of compensation.

7.00. Heard the learned advocates appearing on behalf of the respective parties at length.

7.01. Short but very interesting question of law posed for consideration of this Court is, whether in a case where the claimant who, as such, was not dependent upon the deceased who died in a vehicular accident, but who is heir and legal representative of the deceased can maintain claim petition seeking compensation under the Motor Vehicles Act and if the answer of the aforesaid question is in affirmative, under which head and what amount of compensation, the claimant is entitled to?

7.02. An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 is provided under section 166 of the Motor Vehicles Act. Section 166 of the Motor Vehicles Act reads as under :

"166. Application for compensation:-

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 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 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:

Thus, in terms of clause (c) of sub-section (1) of section 166 , in case of death all or any of the legal representative of the deceased become entitled to compensation and any such legal representative can file a claim petition. Proviso to said sub-section makes the position clear that where all legal representatives are not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents.

7.03. According to sub-section (2) of section 11 of the Code of Civil Procedure, "legal representative" means, a person who, in law, represents the estate of a deceased person, and includes any person who inter-meddles 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.

7.04. The Hon'ble Supreme Court had an occasion to consider identical question with respect to maintainability of the claim petition seeking compensation where claim petition was filed by the legal representative of the deceased, who was not actually dependent on him.

HC-NIC Page 17 of 41 Created On Sun Mar 20 02:49:26 IST 2016 17 of 41 C/FA/2188/2002 CAV JUDGMENT 7.05. In the case of Manjuri Bera (supra), an application under section 140 of the Motor Vehicles Act was filed by the married daughter of the victim and it was submitted on behalf of the insurer that the married daughter of the victim who was not dependent, was not entitled to any compensation. Considering sections 140 , 165 , 163A , 166 and 168 of the Motor Vehicles Act and section 2(1) of the Code of Civil Procedure, the Hon'ble Supreme Court has held that the claim petition at the instance of such claimant would be maintainable and where a legal representative who is not a dependent files an application for compensation, the quantum cannot be less than the liability referable to section 140 of the Act. It is further observed by the Hon'ble Supreme Court that even if there is no loss of dependency, claimant, if he or she is a legal representative, will be entitled to compensation, compensation of which shall not be less than the liability flowing from section 140 of the Act. In the said derision, the Hon'ble Supreme Court considered its earlier decision in the case of GSRTC Versus Ramanbhai Prabhatbhai, reported in (1987) 3 SCC 234, which was arising out of the decision of this Court.

7.06. In the case of Meghji Khimji Vira and others (supra) the Division Bench of this Court had an occasion to consider identical question and in the said decision it is held that the claim petition by the nephews of the deceased was maintainable. It is required to be noted that in the said case, it was found that the nephews were legal representatives of the deceased.

Subsequently, the aforesaid decision of the Page 17 of 40 HC-NIC Page 18 of 41 Created On Sun Mar 20 02:49:26 IST 2016 18 of 41 C/FA/2188/2002 CAV JUDGMENT Division Bench of this Court has been considered and approved by the Hon'ble Supreme Court in the case of Ramanbhai Prabhatbhai (supra). The question involved in the said case was whether brother of a person who is killed in a motor accident can claim compensation in a proceedings instituted before the Motor Accident Claims Tribunal established under the Motor Vehicles Act ? The High Court upheld such a claim and the Hon'ble Supreme Court has confirmed the view taken by the Hon'ble Supreme Court by holding that such a claim petition by legal representative of the victim would be maintainable.

7.07. In the case of Sarama Das and others (supra) Calcutta High Court has held that the claim application seeking compensation under section 166 of the Motor Vehicles act by the elder sister of the deceased who was, as such, legal representative of the victim would be maintainable irrespective of the fact that they are financially dependent upon the victim or not.

7.08. A similar view has been taken by the Madras High Court in the case of Branch Manager, M/s. National Insurance Company Limited Versus Smt. Sumathi & Ors. reported in 2012 AAC 2965 (Madras), wherein it is held that a claim petition under section 166 of the Motor Vehicles Act by a married daughter would be maintainable.

7.09. A similar view has been taken by this Court in the case of ICICI Lombard General Insurance Co. Ltd. Versus Dayanand Ganga Pandit and others, rendered in First Appeal No. 3032 of 2014 wherein it is held that according to the Page 18 of 40 HC-NIC Page 19 of 41 Created On Sun Mar 20 02:49:26 IST 2016 19 of 41 C/FA/2188/2002 CAV JUDGMENT provisions of the Act, an application for compensation can be made by the heirs and legal representative of the victim and it is not necessary that in addition to his status as heir or legal representative, he should also be financially dependent upon the victim.

7.10. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra) by the learned advocate appearing on behalf of the insurer is concerned, at the outset, it is required to be noted that in the aforesaid decision there is no absolute proposition of law laid down by the Hon'ble Supreme Court that in case of a claim petition filed by the heir and legal representative, not dependent upon the victim, claim petition seeking compensation under the Motor Vehicles Act shall not be maintainable at all.

7.11. Even in the case of Mahendrakumar Manilal Patel and another (supra) which has been heavily relied upon by the learned advocate appearing on behalf of the insurer, it is not held that in such a case, claim petition shall not be maintainable at all.

8.00. In view of the aforesaid decisions of the Hon'ble Supreme Court as well as this Court and even considering the provisions of the Motor Vehicles Act , more particularly section 166 of the Motor Vehicles Act, even in cases where heirs and legal representatives are not dependent, claim petition seeking compensation under the Motor Vehicles Act shall be maintainable. Under the circumstances, the learned tribunal has not committed any error in entertaining the claim petitions Page 19 of 40 HC-NIC Page 20 of 41 Created On Sun Mar 20 02:49:26 IST 2016 20 of 41 C/FA/2188/2002 CAV JUDGMENT filed by the original claimant - a married daughter who admittedly was heir and legal representative of the respective deceased - victim of the accident, who died in the vehicular accident.

9.00. Now, the next question which is posed for consideration of this Court is, what amount of compensation and under which head the claimant, who is heir and legal representative but not dependent on the deceased shall be entitled to.

9.01. In the case of R.D. Hatangadi Versus Pest Control (India) Pvt. Ltd. and others, reported in 1995 ACJ 366, the Hon'ble Supreme Court has observed that while fixing the amount of compensation payable to a victim of an accident, damages have to be assessed separately as pecuniary damages and special damages. In other words, peculiar loss and non- pecuniary loss. Pecuniary damages are which are capable of being calculated in terms of money, whereas non-pecuniary damages which are incapable of being assessed by arithmetical calculation. It is further observed that pecuniary damages includes (1) medical expenses (2) loss of earning or other profit (3) loss of earning capacity or incapacity in the labour work and (4) material loss because of the injuries which leave him which set back for the rest of his life. The non-pecuniary damages includes - (1) damages for pain, shock and suffering already suffered and/or likely to be suffered in future (2) loss of amenities of life which may include incapability to work or sit (3) damages for the loss of expectation of life on account of injury the normal longevity of the person concerned is shortened (4) damages for Page 20 of 40 HC-NIC Page 21 of 41 Created On Sun Mar 20 02:49:26 IST 2016 21 of 41 C/FA/2188/2002 CAV JUDGMENT inconvenience, discomfort, disappointment, frustration and mental stress etc. The aforesaid would be in case of fatal accident as well as in case of injury. In fatal case, these pecuniary damages would include (1) future loss of income / loss of dependency (2) medical expenses (3) damages for pain, shock and suffering, if any (4) loss of estate (5) loss of love and and affection, funeral expenses, transportation etc. Future loss of income / loss of dependency, medical expenses, funeral expenses, transportation would fall under pecuniary loss / pecuniary damages and pain, shock and suffering, loss of consortium, loss of estate etc. would fall under non- pecuniary loss / non- pecuniary damages.

9.02. In the case of Sarla Verma (supra), the Hon'ble Supreme Court has considered in detail as assessment of compensation and the following relevant principles relevant to assessment of compensation in case of death and has observed and held in para 10 to 19 as under :-

10. Before considering the questions arising for decision, it would be appropriate to recall the relevant principles relating to assessment of compensation in cases of death. Earlier, there used to be considerable variation and inconsistency in the decisions of Courts/Tribunals on account of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. [1951 AC 601] and some adopting the Davies method enunciated in Davies v. Powell Duffryn Associated Collieries Ltd., [1942 AC 601].

HC-NIC Page 22 of 41 Created On Sun Mar 20 02:49:26 IST 2016 22 of 41 C/FA/2188/2002 CAV JUDGMENT

11. The difference between the two methods was considered and explained by this Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [1994 (2) SCC 176]. After exhaustive consideration, this Court preferred the Davies method to Nance method.

12. We extract below the principles laid down in Susamma Thomas :

10. The matter of arriving at the damages is to Page 22 of 40 HC-NIC Page 23 of 41 Created On Sun Mar 20 02:49:26 IST 2016 23 of 41 C/FA/2188/2002 CAV JUDGMENT ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-

maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase."

24 of 41 C/FA/2188/2002 CAV JUDGMENT multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 year of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years -

virtually adopting a multiplier of 45 - and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible."

13. In U.P. State Road Transport Corporation vs. Trilok Chandra [1996 (4) SCC 362], this Court, while reiterating the preference to Davies method followed in Susamma Thomas, stated thus :

14. The lack of uniformity and consistency in awarding compensation has been a matter of grave concern. Every district has one or more Motor Accident Claims Tribunal(s). If different Tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed and bewildered. If there is significant divergence among Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system.

15. We may refer to the following observations in Trilok Chandra :

16. Compensation awarded does not become 'just Page 26 of 40 HC-NIC Page 27 of 41 Created On Sun Mar 20 02:49:26 IST 2016 27 of 41 C/FA/2188/2002 CAV JUDGMENT compensation' merely because the Tribunal considers it to be just. For example, if on the same or similar facts (say deceased aged 40 years having annual income of 45,000/- leaving him surviving wife and child), one Tribunal awards Rs. 10,00,000/-

another awards Rs. 5,00,000/- and yet another awards Rs.

1,00,000/-, all believing that the amount is just, it cannot be said that what is awarded in the first case and last case, is just compensation. "Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.

17. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective.

Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision-making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range.

When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. In Susamma Thomas, this Court stated :

18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are : (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the Insurance Companies to settle accident claims without delay.

19. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps :-

Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.

Thereafter, a conventional amount in the range of Rs. 5,000/-

to Rs. 10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.

The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also be added.

9.03. Now, so far as the amount awarded under the head of loss of dependency / future loss of income is concerned, it is required to be noted and it cannot be disputed that the amount awarded under the said head is on the premise that the loss suffered by the claimant, if the deceased upon whose income the claimant was dependent, would not have died.

HC-NIC Page 30 of 41 Created On Sun Mar 20 02:49:26 IST 2016 30 of 41 C/FA/2188/2002 CAV JUDGMENT Even while awarding amount of compensation under the head of loss of dependency / future loss of income, as observed by the Hon'ble Supreme Court in the case of Sarla Verma (supra) and even while considering deduction towards personal expenses of the deceased, number of dependents are required to be considered. In the case of Sarla Verma (supra), while considering proper deduction towards personal expenses of the deceased in case of the deceased who was a bachelor and the claimants are the parents, the Hon'ble Supreme Court in paragraph Nos. 31 and 32 has observed and held as under :-

"31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal Page 30 of 40 HC-NIC Page 31 of 41 Created On Sun Mar 20 02:49:26 IST 2016 31 of 41 C/FA/2188/2002 CAV JUDGMENT and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

9.04. Therefore, as such while assessing / awarding compensation under the head of loss of dependency / future loss of income, whether the claimant/s was/were dependent or not, is a relevant consideration. Therefore, if the claimant who is not at all dependent upon the deceased, shall not be entitled to any loss of dependency / future loss of income.

9.05. The nomenclature "loss of dependency" itself is suggestive of the fact that it is towards the loss which the dependents would be suffering because of untimely death of the deceased - victim of the accident, upon whom he/she/they was/were dependent.

9.06. Even in the case of Manjuri Bera (supra) the Hon'ble Supreme Court has observed and held that even if there is no loss of dependency, claimant, if he or she is a legal representative, will be entitled to compensation, quantum of which shall not be less than the liability flowing from section 140 of the Act. it is required to be noted that in the said decision the Hon'ble Supreme Court was considering the maintainability of the application for getting compensation Page 31 of 40 HC-NIC Page 32 of 41 Created On Sun Mar 20 02:49:26 IST 2016 32 of 41 C/FA/2188/2002 CAV JUDGMENT under section 140 of the Motor vehicles Act which is as such statutorily provided under section 140 of the Act. In the said decision the Hon'ble Supreme Court has further observed and held that "no fault liability" envisaged in section 140 of the Act is distinguishable from the rule of "strict liability". It is further held that in the former compensation amount is fixed which is Rs.50,000 in cases of death. It is a statutory liability. Since the amount is fixed amount / crystallized amount, the same has to be considered as part of the estate of the deceased. It is further held that therefore, statutory compensation could constitute part of his estate and therefore, his legal representative namely his daughter has inherited his estate and therefore, she is entitled to inherit his estate.

9.07. Even in the case of Ramanbhai Prabhatbhai (supra) the Hon'ble Supreme Court was considering the principle of "no fault liability".

10.00. Thus, considering the object and purpose of awarding compensation under the head of loss of dependency / future loss of income, though at the instance of claimant, who is a legal representative but not dependent upon the deceased / victim of the accident, claim petition for seeking compensation under the Motor Vehicles Act shall be maintainable, but such claimant, who is not dependent upon the deceased / victim of the accident, shall not be entitled to any compensation under the head of loss of dependency / future loss of income, for the simple reason that at the time of accident, such a claimant was not dependent upon the income of the deceased / victim of the accident and therefore, there shall not be any loss of dependency / future loss of income to Page 32 of 40 HC-NIC Page 33 of 41 Created On Sun Mar 20 02:49:26 IST 2016 33 of 41 C/FA/2188/2002 CAV JUDGMENT such a claimant. However, such claimant shall be entitled to compensation under other heads such as medical expenses, funeral expenses, transportation charges etc. which may fall under pecuniary loss / pecuniary damages, as the same can be said to be loss to the estate and the claimant shall also be entitled to compensation under other conventional heads such as loss of consortium, loss of love and affection, loss of estate etc. Under the circumstances, it is held that the claim petition seeking compensation under the Motor Vehicles Act for the death of the deceased / victim of the accident, at the instance of a claimant, who is heir and legal representative but not dependent, shall be maintainable and as observed by the Hon'ble Supreme Court in the case of Manjula Devi (supra), such compensation shall not be less than the amount as provided under section 140 of the Motor Vehicles Act. Thus, the claimant in such a case, shall be entitled to minimum compensation as provided under section 140 of the Motor Vehicles Act. It is further observed and held that as such claim petition is held to be maintainable, such a claimant, who is legal heir but not a dependent, shall not be entitled to any amount of compensation under the head of loss of dependency / future loss of income, but shall be entitled to compensation under other heads towards pecuniary loss / damages such as medical expenses, transportation, special diet, attendance charges and under the conventional heads such as, loss of consortium, loss of estate, loss of love and affection etc. 11.01. First Appeal No. 2192 of 2002 has been preferred by the original claimant of Motor Accident Claim Petition No. 233 of 1998 with respect to the compensation claimed for the death of Indiraben Lalitbhai Banker - mother of Page 33 of 40 HC-NIC Page 34 of 41 Created On Sun Mar 20 02:49:26 IST 2016 34 of 41 C/FA/2188/2002 CAV JUDGMENT the original claimant.

11.02. First Appeal No. 2193 of 2002 has been preferred by the original claimant of Motor Accident Claim Petition No. 234 of 1998 claiming compensation for the death of Sister-in-law Dr.Dipikaben Darpeshbhai Banker.

11.03. First Appeal No. 2194 of 2002 has been preferred by the original claimant of Motor Accident Claim Petition No. 235 of 1998 claiming compensation for the death of brother Darpesh Lalitbhai Banker.

11.04. First Appeal No. 2195 of 2002 has been preferred by the original claimant of Motor Accident Claim Petition No. 236 of 1998 claiming compensation for the death of father Lalitbhai Manilal Banker.

11.05. That the statement of respective Motor Accident Claim Petitions / First Appeals in each of the appeals are as under:-

However, so far as the amount awarded by the learned tribunal towards the loss of expectation of life is concerned, it is required to be noted that the learned tribunal has awarded Rs.10,000 only towards the loss of expectation of life and affection. As accident occurred in the year 1992, the claimant shall be entitled to a total sum of Rs.50,000 towards expectation of life, loss of love and affection etc. The claimant shall also be entitled to a sum of Rs.5000 towards funeral expenses.

To the aforesaid, the impugned judgement and award passed by the learned tribunal is required to be modified.

12.02. First Appeal No. 2193 of 2002 :-

However, so far as the amount awarded by the learned tribunal towards the loss of expectation of life is concerned, it is required to be noted that the learned tribunal has awarded Rs.10,000 only towards the loss of expectation of life and affection. As accident occurred in the year 1992, the claimant shall be entitled to a total sum of Rs.50,000 towards expectation of life, loss of love and affection etc. The claimant shall also be entitled to a sum of Rs.5000 towards funeral expenses.

To the aforesaid, the impugned judgement and award passed by the learned tribunal is required to be modified.

12.03. First Appeal No. 2194 of 2002 :-

To the aforesaid, the impugned judgement and award passed by the learned tribunal is required to be modified.

12.04. First Appeal No. 2195 of 2002 :-

However, so far as the amount awarded by the learned Page 38 of 40 HC-NIC Page 39 of 41 Created On Sun Mar 20 02:49:26 IST 2016 39 of 41 C/FA/2188/2002 CAV JUDGMENT tribunal towards the loss of expectation of life is concerned, it is required to be noted that the learned tribunal has awarded Rs.10,000 only towards the loss of expectation of life and affection. As accident occurred in the year 1992, the claimant shall be entitled to a total sum of Rs.50,000 towards expectation of life, loss of love and affection etc. The claimant shall also be entitled to a sum of Rs.5000 towards funeral expenses.

To the aforesaid, the impugned judgement and award passed by the learned tribunal is required to be modified.

13.01. In view of the above and for the reasons stated above, First Appeal Nos. 2188 to 2191 of 2002 preferred by the appellant - Insurance Company - original opponent No.3, are partly allowed to the aforesaid extent. The First Appeal Nos. 2192 to 2195 of 2002 preferred by the original claimant are also partly allowed to the aforesaid extent. The impugned common Judgment and Award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Dhrangadhra in Motor Accident Claim Petition Nos. 233 to 236 of 1998 is hereby modified to the aforesaid extent and it is held that the original claimant shall be entailed to a total compensation of Rs.55,000/- (Rupees Fifty Five Thousand only) with interest at the rate of 9% per annum thereon from the date of filing of the claim petition till realization in Motor Accident Claim Petition No. 233 of 1998.

The original claimant shall also be entitled to a total compensation of Rs.55,000/- (Rupees Fifty Five Thousand only) with interest at the rate of 9% per annum thereon from the date of filing of the claim petition till realization in Motor Page 39 of 40 HC-NIC Page 40 of 41 Created On Sun Mar 20 02:49:26 IST 2016 40 of 41 C/FA/2188/2002 CAV JUDGMENT Accident Claim Petition No. 234 of 1998.

The original claimant shall also be entitled to a total compensation of Rs.55,000/- (Rupees Fifty Five Thousand only) with interest at the rate of 9% per annum thereon from the date of filing of the claim petition till realization in Motor Accident Claim Petition No. 235 of 1998.

The original claimant shall also be entitled to a total compensation of Rs.55,000/- (Rupees Fifty Five Thousand only) with interest at the rate of 9% per annum thereon from the date of filing of the claim petition till realization in Motor Accident Claim Petition No. 236 of 1998.

In the facts and circumstances of the case, there shall be no order as to costs.

(M.R.SHAH, J.) Rafik...

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