Rajendra Menon, J.
1. This is claimants appeal under Section 173 of the Motor Vehicles Act seeking enhancement of the compensation granted by the Motor Accident Claims Tribunal, Vidisha in claim case No. 138/2002.
2. Claimants are the widowed mother and invalid brother of deceased Sajid Khan who was working as driver in truck bearing CII-7814. It is stated that on 28-8-02 when Sajid Khan was working as driver and was checking nut bolts of the wheels after parking the truck by the road side, a bus bearing No. M.P. 04-F-0526 belonging to respondent No. 1, driven by the respondent No. 2 and insured with respondent No. 3 came from the opposite direction, it was driven in rash and negligent manner and dashed against the truck, as a result injuries were sustained by Sajid Khan and he died on the spot. Inter alia contending that Sajid Khan was earning Rs. 3000/- as salary per month, was paid daily allowance of Rs. 75/-, appellant No. 1 widowed mother and appellant No. 2 handicapped brother are totally dependent upon the deceased claimed compensation of Rs. 13,60,000/-. On the basis of material and evidence that case on record learned tribunal assessed the income of Sajid Khan at Rs. 1500/- per month and after deducting Rs. 1000/- for self expenses dependency has been assessed at Rs. 500/- per month, considering the age of appellant No. 1 to be about 70 years and taking note of the fact that appellant No. 2 is invalid brother aged 17 years multiplier of 13 is applied and the compensation determined as Rs. 1,56,000/- thereafter adding a sum of Rs. 2,000/- towards funeral expenses, Rs. 5,000/- for loss of love and affection a total compensation of Rs. 1,63,000/- is awarded. Inter alia contending that the compensation is very much on the lower side assessment of income of Rs. 1500/- per month is on the lower side, dependency is not properly assessed, this appeal is filed seeking enhancement of the compensation.
3. Shri K.M. Mishra, learned Counsel for appellants invites our attention to the driving licence of the deceased Ex. P/7 state ment PW/1 Amna Bi and pointed out that Sajid Khan was working as driver and ac cording to claimant her son was earning Rs. 3000/- per month along with Rs. 75/- daily allowance. PW/2 Hari Singh who is owner of the truck in which Sajid Khan was work ing as driver has also stated the he was paying Rs. 3000/- per month and Rs. 75/- as daily allowance to the deceased. It is stated by Shri K.M. Mishra, that in rebuttal as no evidence is lead, learned tribunal has committed grave error in ignoring the statement of PW/1 Amna Bi and PW/2 Hari Singh in the matter of determining salary of deceased Sajid Khan and by assessing salary on the basis of improper assessment of evidence it is argued that tribunal has committed grave error which warrants interference now in this appeal.
4. Shri S.S. Bansal, learned Counsel for Insurance Company supported the award and by filing a cross objection submitted that as appellant No.2 Rasid Khan, brother of deceased Sajid Khan is not his legal representative, no compensation can be granted to him. Placing reliance on a judgment of the Supreme Court in the case qf Smt. Manjuri Bera v. Oriental Insurance Co. Ltd. : AIR2007SC1474 and inviting our attention to the provisions of Section 166(1)(c) of the Motor Vehicles Act and the definition of legal representatives as appearing in Section 2(11) of the Code of Civil Procedure. Shri Bansal tried to, emphasise that appellant No. 2 is not a legal representative of deceased Sajid Khan and therefore, the is not entitled to compensation and in assessing the compensation on the basis of age and disability of the appellant No. 2 it is, argued by the learned Counsel for Insurance Company that learned tribunal has committed grave error and prays, for interference and allowing of the cross, objection.
5. Refuting the aforesaid contention and challenging the cross objection raised by the Insurance Company Shri K.M. Mishra, learned Counsel for appellants invites our attention to the observation made in the case of Smt. Manjuri Bera (supra) in paras 13 and 16 so also on a judgment of the Supreme Court in the case of Gujarat State Road Transport Corporation Ahmedabad v. Ramanbhai Prabhatbhai and Anr. : [1987]3SCR404 and argued that a dependent brother is also legal representative for the purpose of claiming compensation under the Motor Vehicles Act and in awarding compensation to appellant No. 2 and assessing the quantum of compensation by considering his disability etc. learned tribunal has not committed any error which warrants interference in this proceeding. Accordingly, he prays for dismissal of the cross objection.
6. We have heard learned Counsel for parties at length and perused the records.
7. Before considering the claim of the appellants for enhancement of the compensation we deem it proper to consider the cross objection raised by the Insurance Company with regard to entitlement of appellant No. 2 in claiming the compensation. The term legal representative is not defined in the Motor Vehicles Act, however, it is contemplated under Section 166(1)(c) of the Motor Vehicles Act that all or any of the legal representative of the deceased are entitled to compensation. Section 166 of the Motor Vehicles Act. deals with filing of application for compensation and it is stipulated therein that application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 can be made by a person who has sustained injuries or by the owner of the property or in cases where the death has resulted from the accident by all or any of the legal representatives of the deceased. Even though the term legal representative appearing in Clause (c) of Section 166(1) is not defined in the Motor Vehicles Act but the same is defined under Section 2(11) of CPC to mean a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative capacity, the person on whom the estate devolves on the death 6f the party so suing or sued.
8. In the case of Manjuri Bera (supra) reliance is placed on a judgment earlier rendered in the case of Gujarat State Road Transport Corporation Ahmedabad (supra) and it is held that for the purpose of the Motor Vehicles Act a legal representative is one who suffers on account of death of a person due to a motor vehicle accident. It is emphasized that the said person need not necessarily be a wife, husband, parent or child. It is held by the Supreme Court that the right to file a claim application has to be considered in the back ground of the right to entitlement. After taking note of the observation made in the case of Gujarat State Road Transport Corporation Ahmedabad (supra) and another judgment in the case of custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique : [1989]2SCR810 it is observed that a legal representative is one who suffers on account of the accident. In the case of Gujarat State Road Transport Corporation Ahmedabad (supra) the question is considered in the light of right to file application for compensation under Section 110(A) of the Motor Vehicles Act as was existing at the relevant time and after considering various provisions it is held by the Supreme Court that a legal representative, entitled to claim compensation under the Motor Vehicles Act need not necessarily be the wife, husband, parent or child of the deceased person. It is held by the Supreme Court in the said case that any other person who suffers because of the accident is a legal representative, it is held in the aforesaid case that the brother of a person who dies in motor accident is entitled to maintain a claim for compensation under Section 110(A) if he is legal representative of the deceased. In para 11 of the aforesaid judgment it is so observed by the Supreme Court:
Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-F. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B amongst the legal application may be filed under Section 110-A have to be done in accordance with well-known principles of law. It is to be remembered that in an Indian family brothers' sisters and brother's children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if bread-winner of the family is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which has been substantially modified by the provision contained in the Motor Vehicles Act in relation to cases arising out of motor vehicles accidents.
(Emphasis supplied)
It is therefore, clear from the aforesaid enunciation of law that if the bread winner of the family dies on account of motor accident other person in the family who are dependent upon him entitled to claim compensation. Facts of the present case if evaluated in the back drop of the aforesaid principles indicates that appellant No. 2 Rashid Khan is a handicapped person dependent upon the earning of the deceased. According to PW/1 Amna Bi she had two sons Sajid Khan aged 25 years and Rasid Khan aged 16 years. It is stated by her that her younger son Rasid Khan is physically handicapped, he is unable to perform any work and both Rashid Khan and claimant No. 1 herself were being maintained by Sajid Khan. Even though Rashid Khan appellant No. 2 is not examined but the statement of PW/1 Amna Bi in this regard is not at all challenged by Insurance Company and there is no reason for accepting the statement of PW/1 Amna Khan for holding that her younger son is physically handicapped and was dependent upon her elder son. Accordingly, it has to be held that appellant No. 2 Rasid was dependent upon his elder brother, it was Sajid Khan who was maintaining appellant No. 2 and because of the accident Rasid Khan has suffered adversely on account of death of his brother and therefore, is entitled to seek compensation.
9. While interpreting a provision, the legislative intents and the purpose for which the provision is made have to be given paramount consideration. The Motor Vehicles Act is a beneficiary piece of legislation, enacted for granting compensation to family members of a person who dies in a motor accident, compensation is awarded to the claimants to meet the hardship which falls on the family due to death of the earning member or on whom the family was depended, that being so a provision have to be interpreted in such a manner that the legislation intent advanced, if the restricted interpretation canvassed by Shri S.S. Bansal is applied it would deprive appellant No. 2 from claiming compensation even though the evidence available on record indicates that he was dependent on his brother for his living and due to the accident he is adversely affected. The legislative intents for enacting the Motor Vehicles Act was only to grant compensation and benefits to a person like appellant No. 2 and if the restricted meaning to the word 'legal representative' as pleaded by the insurance company is accepted, it would be against the legislative intent, which is impermissible. That being so we hold that Rasid Khan is a legal representative within the meaning of Section 166(1)(c) of the Motor Vehicles Act entitled to file application for compensation and in granting compensation to Rasid Khan, learned Tribunal has not committed any error warranting interference. Accordingly finding the objection raised by the Insurance Company to be wholly unsustainable, cross-objection filed i.e. I.A. No. 3656/2006 Is dismissed.
10. As far as enhancement of compensation is concerned the only question to be determined is with regard to assessment of the earning of Sajid Khan. Even though no documentary evidence is adduced, P.W. 1 Amna Bi mother of deceased and P.W. 2 Hari Singh owner of truck bearing CII 7814 have been examined and both these witnesses have categorically stated that Sajijd Khan was earning Rs. 3,000/- per month as driver, in the absence of any evidence in rebuttal, this evidence cannot be ignored merely because documentary evidence is not produced, P.W. 2 Hari Singh owner of truck in his evidence, admits that he does not have any document in this regard was not. sending any pay slip or record to the Labour Department nor maintaining any register or ledger, even otherwise as the accident had taken place in the year 2002 it can be easily assumed that a truck driver would 'be earning about Rs. 3000/- at that point of time. That being so we are of the considered view that in assessing the earning of Sajid at Rs. 1500/- per month, learned Tribunal has committed grave error when from the statement of P.W. 1 Amna Bi and P.W. 2 Hari Singh it is seen that Sajid Khan was earning Rs. 3000/- per month. Accordingly the compensation is assessed as under:
Earning of Sajid Khan is amended at Rs. 3000/- per month, after deducting 1/3rd i.e. Rs. 1000/- towards self-expenses, dependency is assessed Rs. 2000/- per month, the annual dependency would come to Rs. 24,000/- as multiplier of 13 is applied, the total compensation would come to (Rs. 24,000 x 13) i.e. Rs. 3,12,000/-, to this a further sum Rs. 20,000/- towards other heads like funeral expenses, loss of love and affection when added takes the compensation to Rs. 3,32,000/-, in our view this is the reasonable compensation to be awarded to the claimants in the facts and circumstances of the present case.
11. Accordingly, this appeal is allowed, compensation awarded is enhanced to Rs. 3,32,000/- enhanced amount shall carry the interest @ 7% per annum from the date of award till the payment.
Accordingly, petition stands allowed and disposed of with the aforesaid.