Judgment:
(Prayer: This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated: 14.09.2010 passed in MVC No.112/2007 on the file of Presiding Officer, Fast Yrack-1 and Addl. M.A.C.T., Tumkur, seeking enhancement of compensation.)
1. The above appeal is preferred challenging the judgment and award dated 14.09.2010 passed in MVC No. 112/2007 on the file of the Presiding Officer, Fast Track Court I and Additional MACT, Tumkur.
2. The said claim petition was filed by the claimants claiming themselves as husband and parents of Smt. Sunandamma who is said to have met with the accident that occurred on 23.06.2006 and sustained grievous injuries to which she succumbed subsequently, wherein the motor bike bearing registration No.KA-51-E-3887 belonging to the 1st respondent insured with the 2nd respondent was involved.
3. The Tribunal by considering the evidence on record deemed it fit to award a sum of Rs.2,90,000/- with interest at the rate of 6% p.a. from the date of petition til! realisation and apportioned the same in equal proportion between the three claimants.
4. Being aggrieved by the said judgment and award, the 1st claimant/husband of the victim is in appeal interalia contending amongst other grounds that the amount awarded is inadequate; further apportionment of the amount so awarded equally between all the three claimants is also not proper and thus seeks enhancement of the compensation awarded.
5. Learned Counsel for the appellant submits that as per the evidence on record, the victim was aged about 35 years; she was working in K.Mohan Garment Factory with an income of Rs.5,500/- p.m. and the Tribunal failed to consider the said contention and without any basis deemed it fit to assess the notional income at Rs. 3,000/-- p.m.; further he submitted that if at all the Tribunal comes to the conclusion that there were three dependants and apportioned the amount equally amongst all the 3 claimants, out of the income of the deceased, l/3rd would have been deducted towards personal expenses of the victim, whereas on the other hand the Tribunal deemed it fit to deduct 50% of the amount so assessed towards personal expenses of the deceased which is erroneous; further he submits that even in the absence of any evidence, considering the year of the accident as 2006 and the age of the victim as 35 years, the Tribunal ought to have taken the notional income at Rs.5,500/- p.m. and thus seeks enhancement of the compensation awarded.
6. Per contra, learned Counsel for the insurer/respondent submitted that as the death has occurred after discharge of the victim from the hospital, the death was either due to medical negligence or due to any other cause and as such, there is no nexus between death and the injury sustained in the accident; further he submits with regard to the amount of compensation awarded the same is just and proper and the same does not call of interference.
7. Learned Counsel for the parents submitted that apportionment of the amount awarded in equal proportion between the husband and the parents of the victim is proper and in the circumstances he relies upon the decision rendered by the Madras High Court in the case of PAPPU -vs- THIRUNAVUKKARASU AND OTHERS [2002(1) T.A.C. 487 (Madr.)] wherein a reliance is placed upon a decision rendered by the Apex Court in the case of GUJARAT STATE ROAD TRANSPORT CORPORATION -vs- RAMANBHAI PRABHATBHAI (1987 ACJ 561) at paras 38, 39 and 43 wherein it was held that the brother of the person who dies in the motor vehicle accident is entitled to maintain a petition under Section 110(A) of the Act if he is the legal representative of the deceased and on that basis of the said decision relied upon by the learned Counsel it is held that the mother of the deceased cannot be denied the right of claiming compensation merely because she is Class 3 heir and in the accident claim cases, the Tribunal cannot reject the claim petition as the Class I heir is available and thus submits that the impugned judgment and award with regard to apportionment of the amount awarded is just and proper; further he submits that in the circumstances of the case, deduction of 50% of the income assessed by the Tribunal with regard to the personal expenses of the victim is not proper and further he submits that the income assessed by the Tribunal at Rs.3,000/- p.m. is also not proper and thus seeks enhancement.
8. Thus the cause of accident as well as death of the victim in the accident are not in dispute.
9. Admittedly the victim was aged about 35 years as per the post mortem report marked as Ex.p.9. With regard to the cause of death of the victim, it is seen that the accident occurred on 23.06.2006 and the victim succumbed to the said injuries sustained by her in the accident subsequently on 07.07.2006. However after the death of the victim, autopsy is also conducted and the report of the autopsy is marked as Ex.P.9. On perusal of the same, it is seen that the doctor opined that the death was due to internal bleeding on account of the injury sustained in the accident. In the circumstances, the contention of the learned for the insurer that there is no nexus between the death and the injuries sustained in the accident cannot be accepted. Thus the claimants have proved the death is due to injury sustained by the victim in the accident.
10. With regard to the right of the parents to claim compensation on account of the death of married daughter, it is seen that under Section 15(1) of the Hindu Succession Act:-
The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
(a) Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.
(b) Secondly, upon the heirs of the husband.
(c) Thirdly, upon the heirs of the father and
(d) Fourthly, upon the heirs of the father and
(e) Lastly, upon the heirs of the mother.
11. Thus because under Section 166(l)(c) of the Motor Vehicles Act, the right is given to the legal representatives of the deceased to file the claim petition for compensation whether such a right of the parents to claim compensation can be denied in the facts and circumstances of the case will have to be considered.
12. With regard to the right of the parents to claim compensation on account of the death of the married daughter, it is seen that no-doubt under Section 166© of the MV Act, the right is given to the legal representative of the deceased to file claim for compensation. The term 'legal representative' is defined in Section 2(11) of the Code of Civil Procedure and the same reads as hereunder:
"legal representative" means a person who in law represents the estate of a deceased person.
13. It is necessary to look into Section 166(1) of the Motor Vehicles Act which reads as hereunder:
"Sec.166(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made - where death has resulted from the accident, by all or any of the legal representatives of the deceased. However, no where under the Motor Vehicles Act, the term 'legal representative is defined. In the circumstances, it is necessary to fall back to the dictionary meaning of the said term.
14. Even with regard to the personal law of the victim who is covered by Hindu Succession Act, neither 'legal representative' nor 'legal heir' is explained and only Section 15 deals with Hindu female dying intestate and the order of succession is set-forth in the said Section. Further, it is to be seen that Section 15 of the Hindu Succession Act is applicable only with regard to the property already vested with the deceased. In the case on hand, the amount of compensation to be awarded never vested with the deceased at the time of her death. There is only right to claim on account of the death of the deceased. In the circumstances, the order of succession as incorporated under Section 15 of the Hindu Succession Act is not applicable to the case filed under Section 166 of the Motor Vehicles Act.
15. Thus, where any claimant is entitled to be considered as legal representative to claim compensation or not depends on the merits or otherwise of each case and it cannot be generalized. In the instant case, it is the case of the parents that their son-in-law never lived with their daughter and in fact, he had deserted her in as much as the father of the victim who is examined as PW2 has deposed that claimant no.1 is his son-in-law and he has specifically deposed that he celebrated the marriage of her daughter as per the custom prevailing in their community; after marriage, his daughter and son-in-law resided with him only for one year after marriage, his son-in-law left his daughter i.e,, deserted her and as such, his daughter continued to live with him. Though the said witness is cross examined by the counsel for claimant no.1 viz., the husband of the victim, nothing is elicited to discredit the evidence of PW2 with regard to the said aspect of deceased living with her parents even after marriage. The husband of the victim during the course of his cross-examination, he has deposed that he has not given any complaint to the police nor given any statement before the police, he does not know as to after how many days the deceased was shifted from Sanjay Gandhi Hospital and is also not aware as to what type of treatment was given to her. He has also deposed that he does not have the bills, prescriptions or receipts with regard to the expenditure made in the hospital. Further, he has deposed that after discharge from the hospital, his wife was taken to the house of his father-in-law and from his house, father-in-law used to take the victim to the hospital every day for treatment as an out-patient and the victim died after 10 days after the discharge from the hospital. In the circumstances, the contention of the parents that the victim was with them and she resided with them will have to be accepted.
16. Thus, considering the totality of the evidence led in by the parties, it is seen that apart from the husband of the victim who is otherwise treated as the legal representative of the deceased, even the parents are entitled to be compensated as the victim resided along with the parents.
17. In the circumstances, it cannot be said that respondents 1 and 2 herein who were impleaded in the case before the tribunal as claimant nos.2 and 3 have no right to claim compensation on account of the death of their daughter
18. With regard to the quantum of compensation awarded, it is seen that though it is contended by the claimants that the victim was working at a garment factory, nothing is produced by the claimants to substantiate the same. The claimants have not produced any document with regard to the avocation of the deceased on the other hand, the police records do reveal that she was at Bangalore only to visit her sister who was working in the said K Mohan Garments Factory. In the circumstances the income of the deceased has to be fixed notionally. Considering the age of the deceased as 35 years, it is reasonable to assess the same at Rs.3500/- per month.
19. As already discussed above, there are three dependents. In the circumstances l/3rd will have to be deducted towards the personal expenses of the victim herself in which event for calculating loss of dependency Rs.2333 (Rs.3500-1167) will have to be taken into consideration.
20. With regard to the multiplier, it is seen that the deceased was younger to the claimants. In the circumstances, the youngest age of the claimants will have to be taken into consideration. By considering the age of the claimant no.1 as 40 years, the appropriate multiplier would be 15. Thus, the loss of dependency is assessed at Rs.4,19,940/- (2333x12x15).
21. Apart from the said amount, the claimants are also entitled to be compensated under other conventional heads like loss of consortium to claimant no.1, loss of love and affection to all the claimants, expenses incurred towards funeral and other obsequies ceremonies. Besides, as the claimant survived for nearly 10 days after the accident, she was also hospitalised for 3 days. Hence, it is reasonsable to award towards the same. Thus, in all Rs.50,000/- is awarded towards the same.
22. Thus, the claimants in all are entitled to be compensated at Rs.4,69,940/-. Accordingly, the impugned judgment and award are modified. Hence, the following:
ORDER
The above appeal is allowed modifying the impugned judgment and award by awarding Rs.4,69,940/- with interest at the rate of 6% p.a. from the date of petition till realisation.
Respondent no.2 shall deposit the enhanced amount within 4 weeks from the date of receipt of copy of this order.
Out of the amount so awarded, the same along with proportionate interest shall be apportioned equally amongst the appellant as well as respondents 1 and 2 in this appeal.
As the tribunal has already ordered for investing 50% of the amount awarded to each claimants in fixed deposit, the enhanced amount with proportionate interest shall be disbursed to all the claimants for their immediate necessities.
Draw the award accordingly.
Return the records forthwith to the tribunal.