K.C. Agarwal, J.
1. The appeal under Section 110-D of the Motor Vehicles Act arises from the judgment of the Motor Claims Tribunal Nainital dated 31st July 1979, rejecting the claim of the appellants for recovery of Rs. 100000/- under Section 110-A of the Motor Vehicles Act for the accident which resulted in the death of Bachchi Singh. The appellants are the married daughters of the deceased.
2. The claim made was on the basis that the deceased Bachchi Singh was travelling by Bus No. USR 2952 owned by the U.P. State Road Transport Corporation (hereinafter referred to as the Corporation) of Haldwani Depot Driven by Kishan Singh from Satbunga to Kathgodam, when the same met with an accident by falling in the khad. On account of the accident, Bachchi Singh received serious injuries and when taken to the hospital, he succumbed to them. The appellants asserted that the accident occurred due to the rash and negligent driving of the Bus by Kishan Singh. Therefore, the appellants were entitled to receive Rs. 100000/- as compensation.
3. The claim was contested by the Corporation as well as the Oriental Fire and General insurance Company Limited. Kishan Singh, driver impleaded as defendant No. 2 in the claim petition, also filed a written statement.
4. The version given in the written statements was that at about 3-50 p.m. when the vehicle reached at Lakhmikhan in between Ramgarh Talla and Mukteshwar 3 kms. away from Malla Ramgarh, it met with an accident and fell into the khad. Many passengers received injuries and in that accident Bachchi Singh was seriously injured. The defendants alleged that the accident did not take place due to the rash or careless driving. It occurred suddenly due to the cow appearing on the road and that despite his best efforts, the driver could not save it.
5. The respondents also alleged that the appellants were the married daughters of the deceased Bachchi Singh and being not his legal representatives, were not entitled to get the compensation.
6. On the pleadings, amongst others, the relevant two issues are as follows:
(1) Whether the claimants are not entitled to make the claim for reason of their being married women?
(2) Whether the accident was the result of rash and negligent driving of Bus No. USR 2952?
7. The Motor Accident Claims Tribunal decided issue No. 1 in favour of the appellants and issue No. 2 against them. As a result of the decision on issue No. 2 the claim was rejected.
8. The first point to be considered is whether the accident was the result of rash and negligent driving by the driver. The appellants produced Ummed Singh (PW2) who was also travelling by the same bus of which the deceased Bachchi Singh was a passenger. He stated that he was sitting on the front seat and had witnessed the entire accident. He stated that the accident took place due to the negligent driving of the bus by Kishan Singh, the driver. The road was empty. He denied that cow had appeared at the scene all of a sudden and in the attempt to save it, the accident occurred. He stated that the bus was being driven at a fast speed and as a result of rashness, the driver lost control and it fell into the khad. In the cross examination, he admitted that the bus left Satbunga, the last station, at 3-00 p.m. and reached Lakhmikhan at 3-15 p m., which is at a distance of about 3-4 miles.
9. From his statement, it cannot be found that the bus was being driven at a fast speed and the driver did not have control over it due to the same. He was not only an experienced having done several years of service but was also regularly driving the vehicle on the route in question.
10. From the statement of Devi Datt (DW 1), conductor of the bus at the relevant time and Kishan Singh, driver (DW 2), appears that the width of the road was 15 feet and the vehicle was being driven at the speed of l4Kms per hour. This could not be considered to be fact. Kishan Singh stated that when he was about to turn the vehicle, a cow from the left came and in order to save her, he applied the brakes and as there was frost on the road, the vehicle skidded, collided with the parapet and fell on the road below. His statement about the speed is fully supported not only by the statement of DW 1 Devi Datt, the conductor, but also from that of Ummed Singh (PW 2) himself. All the witnesses are agreed that the distance between Satbunga and Lakshmikhan is about 3 miles and that the bus took about 15 minutes to reach the spot where the accident occurred. According to Devi Datt (DW 1), the accident took place near the turn and he had seen a cow on the road. From the evidence of the two sides, it is clear that the accident did not occur due to the negligent driving of the bus. It was due to the cow appearing at the scene all of a sudden and in order to save the cow, the driver swerved the vehicle as a result of which the accident could not be avoided.
11. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of him an affair, would do, or doing something which a prudent and reasonable man would not do. The general concept of reasonable foresight is the criterion of negligence. In the present case, the driver did his best to avoid the accident but he did not succeed. If the cow would have not there, there could be no accident. In these circumstances, we find ourselves in complete agreement with the view of the Tribunal that the accident did not occur due to the negligence of the driver. Unexpected occurrence which produces hurt or loss is an accident. That was so in the instant case and for the same, the driver could not be blamed. He was not running the vehicle at a fast speed and, as such, to impute carelessness to him would not be justified. Even Ummed Singh (PW 2), appearing for the claimants, has supported the case of the Corporation as well as its driver that the distance of 3 Kms. was covered in 15 minutes. Further, he admitted that there was some slope at the place where the accident took place. If all these things are taken together, it comes out that the Corporation is not liable to make payment of the damages.
12. Coming to the first issue, both of the appellants were the married daughters of the deceased Bachchi Singh. Smt. Kamla Devi, who appeared as DW 1, admitted that her sister Padma Devi was living with her hu band whereas she was living with the deceased Bachchi Singh, as her husband was unemployed and was not doing any work.
13. The relevant portion of Section 110-A Motor Vehicles Act reads as under:
(1) An application for compensation arising out of an accident in the nature specified in Sub-section (1) of Section 110 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased.
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.
14. The expression 'legal representative' has not been defined in the Motor Vehicles Act, but it has been defined under Section 2(11) of the Code of Civil Procedure to mean 'a person who in law represents the estate of a deceased person, and includes any person who intermediles with the estate of the deceased.' Meaning as assigned by Civil Procedure Code has been adopted by the State amendment. This has been done in Uttar Pradesh.
15. It was urged by the respondents' counsel that compensation is granted for loss of dependency. It is assessed with reference to the loss of future pecuniary benefit i.e. the loss of the financial contribution which the deceased could have made, had he lived. Counsel urged that as both the daughters of the deceased Bachchi Singh had been married and none of them since was either dependent or receiving pecuniary benefit, hence, the claim made by them could not be maintainable.
16. In State of Orissa v. Archma Nayak etc. 1987 ACJ page 772, the question of dependency was considered by a Division Bench with reference to a widow who remarried after the death of her husband, The court held that a widow after her remarriage cannot be said to be a legal representatives of her first husband and, as such, is not entitled to get compensation for the death of her first husband. The widow ceases to be a dependent upon remarriage. In the present case, one of the daughters was living with her husband whereas Smt. Kamla Devi asserted that she was living with her father Bachchi Singh. Merely her living with her father for sometime before his death it could not make her a dependent on him. She appears to us to be a casual visitor and not a dependent. If a daughter comes for a casual visit, that would not make her dependent. In such a case she could not be said to be have suffered any pecuniary loss. In Gurdial Kaur etc. v. Atma Singh etc. 1987 ACJ 245, a claim was made by two widows, two major sons, one married and four unmarried daughters. The compensation was awarded only to the widow and four unmarried daughters. Major sons and married daughters were not awarded compensation on the ground that they had not sufierred any pecuniary loss.
17. The next argument was that the two daughters were entitled to receive compensation for pain suffered by them, even if they were not entitled on account of the fact that they had lost the bread earner for them due to the accident. In A.P.S.R.T.C. v. C.H. Narasavva : AIR1987AP127 , which is a Full Bench decision of the Andhra Pradesh, found:
We have not been cited any case and we are not aware of any principle where compensation was awarded for any pain suffered by the dependent of the deceased in one case of this Court.
18. The case reported in Sri Sailam Devastanam v. Bhavani Pramilamma AIR 1983 Andhra Pradesh 297 was over-ruled by the Full Bench and it was held that no compensation was payable for pain suffered by the dependent. While taking that view, the Andhra Pradesh High Court relied on two decisions one of which is that of the Madhya Pradesh and the other of the Supreme Court. The Madhya Pradesh decision is reported in Nasiruddin v. Kadir Ahmad (1986) 1 ACJ 94. The relevant portion of this decision is quoted below:
His another submission is that the applicants should also have been compensated for their pain and suffering from the accidental death of Salim. So far as the latter submission of the learned Counsel is concerned, suffice it to say that there is no foundation in law for advancing and basing such a claim.
19. The Supreme Court in a recent case in N. Slvammal v. Managing Director Pandian Roadways Corporation : AIR1985SC106 held no compensation can be awarded for agony suffered by the dependents and confirmed the view of the High Court. In para 4, the High Court held that:
award of Rs. 5000/- under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained.
20. We are in respectful agreement with the view taken in the aforesaid decisions. Nothing war cited before us by the appellants in justification of the submission propounded by them to the contrary.
21. Section 21 of the Hindu Adoptions and Maintenance Act defines defendants. It has not included therein a married daughter. Consequently, there is no liability to maintain the married daughter by the heirs of the deceased Hindu who inherit the properties.
22. The next question that arises for decision is as to whether the appellants could claim any compensation for 'loss of consortium'. Loss of consortium basically means loss of company or association of spouse, partner, an intimate or an associate. The word 'consortium' means wife or husband and in wider prospective, it may include child or the parents but no compensation has been awarded to a married daughter for the 'loss of consortium' caused to them. We are, therefore, of opinion that the appellants are not entitled to claim compensation for the loss of consortium.
23. In the result, the appeal fails and is dismissed. No costs.