1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE14H DAY OF DECEMBER, 2022 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A. NO.3763/2016 (MV-D) C/W. M.F.A. NO.4518/2016 (MV-D) M.F.A. NO.4718/2016 (MV-D) IN M.F.A. NO.3763/2016: BETWEEN:
1. . SMT. M. RATHNA W/O LATE C.MALLIKARJUNA AGED33YEARS2. SHASHANK M. S/O LATE C.MALLIKARJUNA AGED ABOUT10YEARS BOTH ARE RESIDENTS AT DODDATHOGURU VILLAGE ELECTRONIC CITY BEGURU HOBLI BENGALURU NORTH BENGALURU - 100 (SINCE APPELLANT NO.2 IS MINOR REPRESENTED BY HIS MOTHER APPELLANT NO.1. ) … APPELLANTS (BY SRI PRAKASH M.H., ADVOCATE) 2 AND:
1. . B. CHANDRA SHEKHAR S/O LATE BASAPPA AGED68YEARS2. SMT. M. NAGARATHNA W/O B CHANDRA SHEKHAR AGED59YEARS BOTH ARE RESIDENTS AT MANCHANAHALLI VILLAGE ATTIBELE HOBLI, ANEKAL THALUK BENGALURU DISTRICT - 562 107 3 . SRIRAM GENERAL INSURANCE CO. LTD. S-5, 2ND FLOOR, MONARCH CHAMBERS INFANTRY ROAD, BENGALURU - 1 BY ITS BRANCH MANAGER4. MR. NINGRAJ JUNJAPPA SUNNAGAR S/O JUNJAPPA R/AT PAGADI VILLAGE HAVERI THALUK AND DISTRICT - 581 110. … RESPONDENTS (BY SRI K.N.HARISH BABU, ADVOCATE FOR R1 & R2; SRI A.N.KRISHNASWAMY, ADVOCATE FOR R3; R4 IS SERVED & UNREPRESENTED) THIS M.F.A. IS FILED UNDER SECTION1731) OF MV ACT AGAINST THE
JUDGMENTAND AWARD DATED2701.2016 PASSED IN MVC NO.5701/2012 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES, BENGALURU AND ETC. 3 IN M.F.A. NO.4518/2016: BETWEEN:
1. . SMT. M. RATHNA W/O LATE C. MALLIKARJUNA AGED35YEARS2. SHASHANK M., S/O LATE C. MALLIKARJUNA AGED9YEARS BOTH ARE RESIDENTS AT DODDATHOGURU VILLAGE ELECTRONIC CITY BEGURU HOBLI BENGALURU NORTH BENGALURU-100 (SINCE APPELLANT NO.2 IS MINOR REPRESENTED BY HIS MOTHER APPELLANT NO.1) … APPELLANTS (BY SRI PRAKASH M.H., ADVOCATE) AND:
1. . B. CHANDRA SHEKHAR S/O LATE BASAPPA AGED66YEARS2. SMT. M. NAGARATHNAMMA W/O B. CHANDRA SHEKHAR AGED57YEARS BOTH ARE RESIDENTS AT No.11, MANCHANAHALLI VILLAGE4ATTIBELE HOBLI, ANEKAL THALUK BENGALURU DISTRICT-562107 3 . SRIRAM GENERAL INSURANCE CO. LTD. S-5, 3RD FLOOR, MONARCH CHAMBERS INFANTRY ROAD, BENGALURU-01 BY ITS BRANCH MANAGER4. MR. NINGARAJ JUNGAPPA SUNAGAR S/O JUNGAPPA R/A AGADI VILLAGE HAVERI TALUK AND DISTRICT-581110 … RESPONDENTS (BY SRI K.N.HARISH BABU, ADVOCATE FOR R1 & R2; SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R3; R4 IS SERVED) THIS M.F.A. IS FILED UNDER SECTION1731) OF MV ACT AGAINST THE
JUDGMENTAND AWARD DATED2701.2016 PASSED IN MVC NO.7169/2012 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES, BENGALURU AND ETC. IN M.F.A. NO.4718/2016: BETWEEN:
1. . SRI. B.CHANDRA SHEKAR S/O. LATE BASAPPA AGED ABOUT65YEARS2. SMT. M. NAGARATHNAMMA W/O. B. CHANDRA SEKHARA AGED ABOUT56YEARS5BOTH ARE RESIDING AT NO.11, MANCHENAHALLI, ATTIBELE HOBLI ANEKAL TALUK, BENGALURU-562 107. … APPELLANTS (BY SRI HARISH BABU K.N., ADVOCATE) AND:
1. . SRI. NINGARAJ JUNGAPPA SUNAGAR S/O. JUNGAPPA AGADI VILLAGE HAVERI TALUK HAVERI DISTRICT-581 101. 2 . THE DIVISIONAL MANAGER SRIRAM GENERAL INSURANCE NO.55, 2ND FLOOR MONARCH CHAMBERS INFANTRY ROAD BENGALURU-560 001. … RESPONDENTS (BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R2; R1 IS SERVED) THIS M.F.A. IS FILED UNDER SECTION1731) OF MV ACT AGAINST THE
JUDGMENTAND AWARD DATED2701.2016 PASSED IN MVC NO.7169/2012 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES, BENGALURU AND ETC. THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON3011.2022 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
6.
JUDGMENT
M.F.A.Nos.3763/2016 and 4518/2016 are filed by the claimants-wife and son of the deceased questioning the dismissal of M.V.C.No.5701/2012 and allowing M.V.C.No.7169/2012 dated 27.01.2016 and M.F.A.No.4718/2016 is filed by the claimants- parents of the deceased questioning the quantum of compensation awarded in M.V.C.No.7169/2012 dated 27.01.2016 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (for short ‘the Tribunal’).
2. Heard the learned counsel appearing for the respective parties.
3. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
4. The factual matrix of the case of the claimants in both the appeals that on 23.08.2012 at about 7.30 a.m., the deceased Mallikarjuna was proceeding in a car and reached near Jain School Jakkasandra, Bengaluru-Kanakapura road, at that 7 time, the driver of the Maxi cab came from Kanakapura towards Bengaluru in a rash and negligent manner with high speed and dashed against the car of the deceased, due to which, the deceased sustained severe injuries and succumbed to fatal injuries on the spot and immediately he was shifted to Rajarajeshwari hospital wherein postmortem was conducted. Hence, made the claim petitions before the Tribunal.
5. In M.V.C.No.5701/2012, petitioner No.1 is said to be the wife and the petitioner No.2 is said to be the son of the deceased Mallikarjuna and respondent Nos.3 and 4 are the parents of deceased Mallikarjuna. It is the claim of the petitioners that the deceased was hale and healthy and doing a real estate business and earning Rs.20,000/- per month and he was contributing his entire income towards maintenance of his family and on account of untimely death of the deceased, petitioner Nos.1 and 2 have suffered loss of consortium and loss of love and affection being dependents of the deceased.
6. In M.V.C.No.7169/2012, petitioner Nos.1 and 2 being the parents of the deceased Mallikarjuna contended that 8 they have suffered loss of love and affection of their son and also income being the dependants of the deceased and the alleged accident was occurred due to the rash and negligent driving of the driver of the offending vehicle hence, they are entitled for the compensation.
7. In pursuance of the claim petitions, respondent Nos.1 and 2, the owner and insurer of the offending vehicle filed their detail written statement and the respondent No.1-owner of the offending vehicle contended that there was no negligence on the part of the driver of the vehicle and the alleged accident was occurred when the deceased himself tried to over take the bus and had taken extreme right and hit the maxi cab hence, there was no negligence on the part of respondent No.1. It is also contended that the maxi cab was insured with respondent No.2 and the policy was in force and the driver of the vehicle was having valid driving licence at the time of the accident.
8. Respondent No.2 in the written statement admitted the issuance of policy and also contended that the liability if any is subject to the terms and conditions of the policy and further 9 contended that the driver of the offending vehicle drove the same without having a valid and effective driving licence and there was a violation of policy conditions and the driver of the offending vehicle drove the same knowing fully well that he was not having valid driving licence and the vehicle in question was not having valid permit and fitness certificate to ply in the public place hence, there is a clear violation of terms and conditions of the policy. Hence, respondent No.2 is not liable to pay compensation and it is also contended that the claimants in M.V.C.No.5701/2012 are not the legally wedded wife and son of the deceased.
9. The claimants in M.V.C.No.5701/2012, examined the petitioner No.1 as PW1 and got marked the documents at Ex.P1 to P13. On the other hand, the respondents have been examined one witness as RW1 and got marked the documents at Ex.R1 to R4. The claimants in M.V.C.No.7169/2012, examined petitioner No.1 as PW1 and got marked the documents at Ex.P1 to P18. 10
10. The Tribunal after considering oral and documentary evidence of both the claim petitions, dismissed the claim petition filed by the claimants in M.V.C.No.5701/2012 and allowed the claim petition filed by the claimants in M.V.C.No.7169/2012. Hence, these appeals are filed by the respective claimants questioning the dismissal of the claim petition and quantum of compensation.
11. The main contention of the appellants in M.F.A.No.3763/2016 is that the Tribunal failed to take note of the material available on record and the Tribunal has not at all considered the documents which have been produced by the claimants and ignored them without any reason. On the other hand, a fake/created document styled as naming ceremony invitation card allegedly distributed by the first appellant and her husband during 2007 and which was allegedly retained by respondent No.1 even after six years was accepted by the Tribunal the said document is marked as Ex.P16 was not at all produced and proved in accordance with the principles of Evidence Act. If the said document is said to be genuine, by all 11 probability, it has to be produced either at the instance of appellant No.1 or at the instance of her first husband. Respondent No.1 who produced Ex.P16 was cross examined and during the cross-examination, he admitted that he can examine the first husband of the appellant No.1 to prove the disputed document, but no steps were taken by respondent No.1 and even in the absence of proof of the said document, the Tribunal has accepted the said document discarding the principles and procedure. Hence, the Tribunal in a hasty manner adopted presupposes that it has prejudiced with the facts on the part of the appellants.
12. The claimants further contended that the Tribunal while passing the impugned judgment has given primacy to the documents produced by respondents No.1 and 2 than the material documents produced by the appellants. It is contended that appellant No.2 was born during the subsistence of the marriage of appellant No.1 with her first husband but as per the Evidence Act, the presumption has to paternity of a person can be drawn as conclusive unless it is shown that the parties to the 12 marriage had no access to each other during the time when the child was begotten. The respondents have produced the copy of the matrimonial petition in respect of appellant No.1 and her divorced husband. While narrating the issues begotten, the parties refer only insofar as the daughter born out of that wedlock. Such being the case, the Tribunal has relied very much on a concocted document-invitation card regarding naming ceremony of appellant No.2 produced by respondent Nos.1 and 2 which was nowhere subjected for test regarding its authenticity. Hence, error is apparent on the face of the judgment of the Tribunal. The claimants relied upon Ex.P8, P9 and P11 and those documents are obtained on 12.12.2011, subsequent to divorce granted to appellant No.1 and Mallikarjuna died on 23.08.2012 and when such being the case, without attaching any value to these material documents which even refers appellant No.2 is the son of the deceased, the Tribunal has proceeded to reject the petition on an erroneous appreciation. The Tribunal further fails to see that the respondents No.1 and 2 have not at all produced any documents to show that their deceased son had lived with them preceding to his death. 13 Hence, the judgment and award of the Tribunal requires to be set aside and modified granting compensation in favour of the claimants in M.V.C.No.5701/2012in accordance with law.
13. The appellants i.e., the parents of the deceased have also filed an appeal in M.F.A.No.4718/2016 questioning the quantum of compensation awarded in the judgment and award passed in M.V.C.No.7169/2012. It is contended that the quantum of compensation awarded in their claim petition is very meager and deceased was doing real estate business and earning Rs.20,000/- per month and he was aged about 38 years at the time of the accident and the Tribunal has failed to consider the said facts and only taken income of Rs.6,000/- and quantified the compensation adding 30% of income as further income and the Tribunal has granted only Rs.30,000/- towards funeral expenses and Rs.20,000/- towards loss of love and affection and the compensation awarded on the other heads is also very meager hence, it requires interference.
14. The appeal in M.F.A.No.4518/2016 is filed by the claimants in M.V.C.No.5701/2012 questioning the judgment and 14 award passed in M.V.C.No.7169/2012 and the similar grounds are urged in this appeal as that of M.V.C.5701/2012 since the claim petition filed by them was dismissed and awarded compensation only against the parents of the deceased and claims to set aside the judgment and award passed in M.V.C.No.7169/2012.
15. The learned counsel appearing for the appellants in M.F.A.Nos.3763/2016 and 4518/2016 vehemently contend that in both the appeals, the appellants are common and they contend that the appellant No.1 and the deceased were in living in relationship and in the said relationship, appellant No.2 was born and the divorce petition was filed by appellant No.1 and her first husband wherein it is specifically mentioned that they were having only one daughter and not the son and appellant No.2 herein is the son of the deceased Mallikarjuna. The Tribunal relied upon the document at Ex.P16 and the same is a created document and the same was not proved. Mere marking of document itself is not a ground to come to the conclusion that the same was proved and not examined and the first husband of 15 appellant No.1 to prove the said document. The counsel vehemently contend that in the charge sheet at Ex.P6 while citing appellant No.1 as witness, her husband name is mentioned as Mallikarjuna and in Ex.P7-Admission Register of appellant No.2 also his father name is mentioned as Mallikarjuna and these documents are not considered by the Tribunal. The application for correction of ration card is also produced before the Tribunal as Ex.P11 and Ex.P13 affidavit was also filed inspite of that the Tribunal has committed an error in rejecting the claim petition of the claimants in M.V.C.No.5701/2012.
16. The counsel relied upon the judgment of this Court reported in 2016 0 ACJ79in the case of LALITA vs M R SUNILKUMAR AND OTHERS and contended that this Court considered the scope of the legal representatives and need not necessarily be a wife but the legal representative that a person should have some interest or right in the estate of the deceased and an intermeddler having right or interest in the estate of the deceased would fall within the definition of legal representative 16 and hence, ought not to have dismissed the claim petition as they are also entitled for the compensation.
17. The learned counsel appearing for the respondents would vehemently contend that the Tribunal not only discussed the invitation card at Ex.P16 and also discussed in detail while answering Issue No.2 and no authenticated documents are produced to show that appellant No.2 was born to deceased Mallikarjuna. The child was born in the year 2006 according to appellant No.1 and marriage was subsisting and divorce was granted only in the year 2010. The counsel also submits that her name is Muniratnamma not Ratna and no document is produced to show that they are living together. No document to show that appellant No.2 was born in the said wedlock and hence, the Tribunal not committed any error in rejecting the claim petition.
18. The counsel also contended with regard to the quantum of compensation is concerned. It was the accident of the year 2012 and the deceased was aged about 38 years at the 17 time of the accident, the Tribunal has taken notional income of Rs.6,000/- instead of notional income of Rs.7,000/- and 40% ought to have been added since he is aged about 38 years and 1/3rd has to be deducted. Hence, contended that the appeal filed by the claimants in M.V.C.No.7169/2012 requires to be enhanced and appeals filed by the claimants in M.V.C.No.5701/2012 are liable to be dismissed.
19. Per contra, the learned counsel appearing for the Insurance Company would vehemently contend that the Court has to consider the material on record in toto. If the Court comes to the conclusion that child is born to the appellant No.1 and deceased Mallikarjuna and child share has to be protected and the Court has to evaluate the material on record.
20. Having heard the respective counsel and also on perusal of the material available on record, the points that would arise for consideration of this Court are: (1) Whether the Tribunal has committed an error in rejecting the claim petition filed in M.V.C.No.5701/2012 in coming to the 18 conclusion that the claimants are not the legal heirs of deceased Mallikarjuna and no locus to maintain petition under Section 166 of the M.V.Act?. (2) Whether the claimants in M.V.C.No.5701/2012 are also entitled for the compensation?. (3) Whether the Tribunal has committed an error in not awarding just and reasonable compensation?. (4) What order?. Points No.1 and 2 21. Having heard the respective counsel and also on perusal of the material available on record, it discloses that the claimants in M.V.C.No.5701/2012 claims that petitioner No.1 is the wife and petitioner No.2 is the son of the deceased Mallikarjuna and in the claim petition, the age of the deceased is mentioned as 40 years and he was doing real estate business and his income was Rs.20,000/- per month and it is their claim that the deceased Mallikarjuna was driving the car bearing 19 registration No.KA05-C-5778 and when he was proceeding near Bengaluru-Kanakapura road, at that time, the driver of the cab who came from Kanakapura towards Bengaluru side driven the same in a rash and negligent manner and dashed against the car of the deceased Mallikarjuna due to which, he had sustained grievous injuries and succumbed to the said injuries at the spot.
22. On the other hand, in M.V.C.No.7169/2012, the claimants are the parents of the deceased Mallikarjuna and they made the separate claim and disputed the claim of the claimants in M.V.C.No.5701/2012. The Tribunal considered both the matters together and common judgment was pronounced and while rejecting the claim petition, the Tribunal mainly relied upon the document at Ex.P16-invitation card of naming ceremony produced in M.V.C.No.7169/2012 i.e., by the parents of the deceased. On perusal of the document at Ex.P16 it seems to be in the printed form and the name of petitioner No.1-M M Ratna in M.V.C.No.5701/2012 and her first husband-B Krishnamurthy was mentioned and the date was fixed for naming ceremony is on 29.04.2007 and the said document has not proved though 20 the claimants in M.V.C.No.7169/2012 admitted that they are going to examine the first husband of Ratna i.e, Krishnamurthy but they have not done. On perusal of the judgment of the Tribunal it shows that the Tribunal mainly relied upon this document and when the document has not been proved in accordance with law, the Tribunal ought not to have given much importance to the said document.
23. It is also important to note that the claimants also produced the Admission Register of appellant No.2/petitioner No.2 in M.V.C.No.5701/2012 which is marked as Ex.P7 and date of birth is mentioned as 08.08.2006 and admission number is 92/2012-2013 that is for 2nd standard and father name is mentioned as Mallikarjuna and mother name is mentioned as Ratna and this document is dated 10.06.2013 obtained from school and she also produced the document at Ex.P8 that is the election ID card that is also dated 25.01.2013 and no doubt, these documents are came in existence subsequent to the death of the said Mallikarjuna because accident was occurred in the year 2012 itself and also relied upon the document at Ex.P11 21 wherein the application was given for change of ration card and the same was given on 12.12.2011 i.e., before the death of the said Mallikarjuna and the same was returned with an endorsement ‘the applicant is no more and to make new application’ and while giving an application, his village name is mentioned as Doddathoguru within the jurisdiction of Doddathoguru gram panchayath and also produced E.P12-death certificate of Mallikarjuna who died on 23.08.2012.
24. The claimants have also relied upon the document at Ex.P13-affidavit filed by the deceased himself wherein he declared the claimant as wife and stated that she gave birth to a male child by name Shashank M on 08.08.2006 and this affidavit was sworn on 25.05.2010 and apart from that genealogical tree was produced which was issued on 15.05.2012 wherein he has stated that his wife is M Ratna and one son by name M.Shashank and these are the documents are placed before the Tribunal to substantiate her claim but the Tribunal comes to the conclusion that the said Ex.P7 and P8 documents came into existence subsequent to the death of Mallikarjuna and no error in coming 22 to such a conclusion. The discussion with regard to the document at Ex.P13 is that the same was sworn on 25.05.2010 itself and on perusal of document of cancellation relied upon by the respondents is the registered document of comparing the signature under Section 73 of the Evidence Act and the said signature differs and hence, the document at Ex.P13 cannot be accepted. But it is appropriate to consider the document i.e., copy of order sheet in M.C.No.42/2010 produced in MVC No.7169/2012 wherein mutual divorce petition was filed by the claimant in M.V.C.No.5701/2012 against her husband Krishnamurthy wherein she has pleaded that their marriage was performed in the year 1996 at Dharmasthala and in the said wedlock, a female child by name Sangeetha was born and now she is aged about 13 years and thereafter dispute raised between them and finally they decided to separate themselves. The petitioner No.1 along with her daughter Sangeetha came out from the matrimonial home and started living separately and in this regard, several panchayaths were held which failed and hence, sought for an order of divorce and divorce petition was filed on 19.10.2010 at Ex.P14 that is prior to their separation 23 and also prior to the death, joint compromise petition also filed which is marked as Ex.P15. When these materials are available before the Court, she claims that they are having only one daughter, the Tribunal ought not to have disbelieved the claim of the claimants and it is their case that they are living separately and claimant No.2-Shashank was born in the year 2006 itself and if really the said Shashank was born in the said wedlock of claimant No.1 in M.V.C.No.5701/2012 and her first husband Krishnamurthy, she ought not to have mentioned that she only gave birth to a daughter not to a son. This aspect is also not considered by the Tribunal while considering the material on record and inspite of that considered Ex.P16-Naming ceremony invitation card which has not been proved in accordance with law and hence, the Tribunal has committed an error in dismissing the claim petition filed in M.V.C.No.5701/2012 in entirety and the Court has to take note of the material on record in toto to consider the petition filed under Section 166 of the M.V.Act.
25. The law on this point is when the claim petition is filed under Section 166, the question would arise a person, who 24 is not a legal heir but a person, who was dependant on the deceased at the time of the accident, is the person, who suffers loss on account of the accident and consequential death and therefore, would be the person entitled to compensation. But such person need not be a legal heir. Therefore, the legislature has cautiously used the word “the person or persons” and not the parties. Therefore, while awarding compensation under the Act, the test should be of dependency upon the bread winner of the family and not necessarily blood relationship or family relationship. A legal representative in a given case need not necessarily be a wife, husband, parent and child. But the interpretation is that the legal heirs are legal representatives but all legal representatives are not legal heirs. Even an intermeddler having right or interest in the estate of the deceased would fall within the definition of legal representative. Hence, the very reasoning given by the Tribunal that she is not a wife and no doubt, in the evidence, no material is placed to show that she is married but her claim is that she was living along with the deceased even prior to the marriage of the first wife of the deceased and she was cohabiting with him. It is emerged in 25 the evidence that the first marriage of the deceased was held along with one Manjula in the year 2007 and it is the claim of the claimant in M.V.C.No.5701/2012 that the second claimant is born to the deceased in the year 2006 itself and no dispute with regard to the age of the second claimant but only dispute is with regard to the paternity. It is also important to note that by virtue of Section 16(1) of Hindu Marriage Act though the child is illegitimate and the same is to be treated as legitimate child and would get share in the estate of the father as class-I heir and the petition filed by the second claimant claiming to be the son of the deceased can neither be dismissed nor he can be denied the compensation as the second applicant is born on account of relationship with the deceased and the first claimant and though the same is disputed, the same is not substantiated.
26. This Court would like to rely upon the judgment of the High Court of Kerala in the case of JANE ANTONY AND OTHERS vs V M SIYATH AND OTHERS reported in 2009 ACJ2272wherein the Kerala High Court also discussed with regard to legal representative - illegitimate children and discussed with 26 regard to whom the deceased had abandoned, 2 children through her, 2 children through another woman with whom the deceased was cohabiting and the question raised before the Court that whether the illegitimate children of the deceased through the second women are entitled to the compensation. The Kerala High Court in the Division Bench decision held that the deceased and second women cohabited for sometime and were in substance husband and wife for all purposes; children are legitimate children entitled to succeed to the estate of the deceased, compensation distributed equally among the widow and all children after giving some portion to the parents. Legitimate child means lawfully begotten.
27. This Court also would like to rely upon the judgment of the Allahabad High Court reported in 2020 ACJ566in the case of ORIENTAL INSURANCE CO. LTD., vs USHA DEVI AND OTHERS wherein also the Allahabad High Court discussed with regard to the legal representative in the context of claim application and held that it has to be construed liberally as Motor Vehicles Act is a beneficial as well as social legislation and 27 question also raised whether all persons who are dependent upon the earning member of the family are entitled to compensation if he is killed in motor vehicle accident and held that dependent comes within the ambit of definition of legal representative; a person who is not a legal heir but is dependent on the deceased at the time of accident is the one who bears the loss and would be entitled to compensation. It is further held that whether a wife, whose marriage is void but she was living with her husband and was dependent on his earnings, is entitled to compensation for the death of her husband as a legal representative under Motor Vehicles Act and also held that whether minor girls living with their parents and dependent on their father can be denied compensation for the accidental death of their father on the ground that marriage between their parents was not valid and they were not legitimate children and held that they are legal representative and dependants of their deceased father and legally entitled to compensation and also held that it is open for the Court to ensure that provisions of an Act are construed in a manner which advances the object and 28 legislative intent and for the purpose adopt purposive interpretation.
28. In the case on hand also having considered the principles laid down in the judgments referred supra and also having taken note of the material on record I have already pointed out that it is the claim of the claimants that they are the wife and son of the deceased but no material is placed to substantiate the same and only relies upon the document at Ex.P13-affidavit filed by the deceased himself on 25.05.2010 wherein he declared that first claimant as his wife and also stated that she gave birth to the male child i.e., the second claimant on 08.08.2006 that is prior to the marriage of the deceased with his first wife i.e., Manjula as her marriage was held in the year 2007 with the deceased that there was a cohabitation between the first claimant and the deceased and in another document that is genealogical tree dated 15.05.2012, it is stated that the first claimant is his wife and second claimant is his son and also the Admission Register Extract which is marked as Ex.P7 came into existence only after the death of the 29 deceased but the date of birth of the second claimant is mentioned as 08.08.2006 and when the deceased has declared that the first claimant and second claimant are the wife and son of the deceased prior to his death, but the claimants in M.V.C.No.7169/2012 marked Ex.P11 cancellation of sale agreement wherein the deceased also party to the registered cancellation agreement and signature found in the said document not tallies with the signature found in Ex.P13-affidavit allegedly executed by the deceased and the said document is dated 26.05.2011 and this Court can compare the same under Section 73 of the Evidence Act and hence, the Ex.P13 produced by the claimants in M.V.C.No.5701/2012 cannot be accepted. Apart from that no document is produced that they were residing together at the time of the accident. The body was handed over to the parents but she claims that she performed the last rituals along with his parents but no document is placed to that effect. In addition to that her marriage was performed with one Krishnamurthy in the year 1996 and the same is not disputed and admitted the same in M.C. proceedings. It is also her claim that the second claimant was born in 2006 with the relationship 30 of deceased. In 2006, they have not separated and decree of divorce obtained in the year 2010 and hence, it is clear that the said relationship is only illicit relationship as a result, the second claimant was born under the said relationship. Though contend that both were in live in relationship but there was a subsisting marriage between her and her first husband and the deceased marriage was also subsisting with his wife Manjula and after the divorce also no marriage was performed between both of them and hence, the first claimant is not entitled for any relief and she has created the documents at Ex.P7, P8 and P13 and an attempt is made to show that she was dependent on the deceased and the same is also not substantiated except the fact that she had relationship with him as a result second claimant was born and hence the child cannot be penalized for the act of the deceased and the first claimant and hence, it requires modification of the judgment and award passed in M.V.C.No.5701/2012 in relation to the second claimant who is dependant of the deceased and the fact remains that the second claimant is living with the first claimant and even illegitimate child is also entitled to compensation under Section 166 of M.V. Act as the legal 31 representative as discussed earlier hence, answered both the points accordingly. Point No.3
29. Now coming to the aspect with regard to the quantum of compensation is concerned, the claimants in M.V.C.No.7169/2012 have claimed the compensation as parents and the Tribunal in that case assessed the compensation by taking the income of the deceased as Rs.6,000/- but the accident was of the year 2012, the notional income would be Rs.7,000/- and he was aged about 40 years at the time of the accident and their claim is that he was doing real estate business and earning Rs.20,000/- but no document is placed in this regard. The Tribunal also taking note of the PM report at Ex.P5 wherein the age of the deceased was mentioned as 40 years and no contra evidence is led before the Court but once the Court comes to the conclusion that the age was 40 years, added 30% towards future prospectus instead of 40% to the income and even if it is added 40% to the income, it comes to Rs.9,800/- (7,000x40%) and when this Court considered the claimant No.2 32 in M.V.C.No.5701/2012 as dependant of the deceased and also considered the claimants in M.V.C.No.7169/2012, there are 3 dependents and hence, the Court has to deduct 1/3rd towards personal expenses and after deducting personal expenses, it comes to Rs.6,533/- and the deceased was aged about 40 years at the time of the accident, the relevant multiplier would be 15 hence, the loss of dependency comes to Rs.11,75,940/- (6,533x12x15).
30. The claimants are entitled for an amount of Rs.33,000/- towards loss of estate and funeral expenses and apart from that they are entitled for Rs.40,000/- each towards loss of love and affection which comes to Rs.1,20,000/- (40,000x3) since the claimants are three in number and hence, in all the claimants are entitled for an amount of Rs.13,28,940/-. Thus, this point is answered accordingly. Point No.4
31. In view of the discussions made above, I pass the following:
33.
ORDER(i) The appeals are allowed in part. (ii) The impugned judgment and award of the Tribunal dated 27.01.2016 passed in M.V.C.Nos.5701/2012 in respect of second claimant is set aside. (iii) The impugned judgment and award of the Tribunal dated 27.01.2016 passed in M.V.C.Nos.5701/2012 and 7169/2012 are modified granting compensation of Rs.13,28,940/- with interest at 6% per annum from the date of petition till deposit. (iv) The claimant No.2 in M.V.C.No.5701/2012 is entitled for 40% share in the compensation and the claimants in M.V.C.No.7169/2012 are entitled for 30% each in the compensation with proportionate interest. (v) The claimants in M.V.C.No.7169/2012 are aged about more than 60 years, hence the Tribunal is directed to release the entire amount in their 34 favour. In respect of second claimant in M.V.C.No.5701/2012, who is a minor, the entire amount shall be kept in FD till he attains majority and the first claimant being the mother of the minor is entitled to withdraw the interest once in quarter to meet the educational and other expenses of the minor child. (vi) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today. (vii) The Registry is directed to send the records to the concerned Tribunal, forthwith. Sd/- JUDGE SN