Judgment:
(PRAYER : Civil Miscellaneous Appeal is filed against the judgment and decree dated 12.12.2000 made in MACT OP No.192 of 1998, on the file of the Motor Accidents Claims Tribunal (Principal District Judge), Nagercoil.)
Is the widow who is expected by the society to live a life of austerity and abnegation, on remarriage is entitled to compensation in respect of death of her deceased husband is the issue to be decided.
2. The first respondent is the claimant who filed the petition for compensation claiming a sum of Rs.7,00,000/- in respect of death of her husband, impleading her father-in-law as the respondent, who is the sixth respondent herein. The claims Tribunal gave a finding that the accident took place due to the negligent driving of TATA Sumo Car and awarded a sum of Rs.5,28,000/- as compensation.
3. Challenging the finding on negligence, the quantum of compensation and the rate of interest, the insurance company has filed this appeal.
4. The appellant is the insurer of the TATA SUMO Car, of which the second respondent is the owner. The fourth respondent is the registered owner of the Enfiled motor cycle bearing registration No.TN-22-E-5462, which was driven by the deceased and the fifth respondent is the insurer of the motor cycle. The sixth respondent is the father of the deceased, who died during the pendency of the appeal .
5. As against the claim made for a sum of Rs.7,00,000/-, the Tribunal has passed an award for a sum of Rs.5,28,000/-. This award is directed to be paid by the respondents 1 to 3, who are the driver, owner and the insurer of the Tata Sumo car. As against the finding on negligence liability and quantum of compensation, the insurance company has filed this appeal on the following grounds;-
1. The accident was not on account of negligent driving of the driver of the Tata Sumo Car, but on account of the negligence of the deceased himself .
2. The quantum of compensation awarded is also disproportionate and the multiplier of 22 ought not to have been taken by the Tribunal.
3. The Tribunal ought to have taken into consideration the re-marriage of the claimant during the pendency of the claim petition.
4. So far as the contention regarding the negligence/contributory negligence on the part of the deceased is concerned, the contention of the learned counsel for the claimant is that there is absolutely no evidence to substantiate the contention.
6. The tribunal has relied upon Ex.p1/first information report, wherein it has been mentioned that the accident took place due to the rash and negligent driving of the driver of the Tata Sumo Car. The driver concerned has admitted the rash and negligent driving and has paid the fine amount. A copy of the judgment of the criminal Court has been filed Ex.P7. The Tribunal has taken into consideration, the rough sketch (Ex.P2), Observation Mahazar(Ex.P3) and Motor Vehicle Inspector's report (Ex.P4) and has come to a reasonable conclusion that the accident is only on account of rash and negligent driving of the driver of the Tata Sumo Car. Admission is always the best piece of evidence. The insurance company has not chosen to examine any witness to disprove the contention of the claimant. Therefore, the contention regarding contributory negligence cannot be accepted.
7. The deceased had been a highly educated person. The deceased also seems to be a person interested in sports activities and he had been a State player. The deceased was aged 38 at the time of accident. The longevity of the deceased need not be doubted because his father had been alive at the age of 80. His monthly income was Rs.4,000/- at the time of accident. The order of appointment and the salary slip would go to show that the deceased had been earning a sum of Rs.4,000/- per month. The lower court has taken the monthly income of the deceased as Rs.3,000/- and after deducting 1/3rd towards personal expenses of the deceased and adopted the multiplier of 22 and arrived at the quantum of compensation for loss of dependency at Rs.5,28,000/-. out of Rs.5,28,000/-, Rs.4,00,000/- has been awarded to the wife of the deceased and Rs.1,28,000/- has been awarded to the father of the deceased.
8. It is the contention of the insurance company that when the deceased was aged 38, the Tribunal ought not have adopted the multiplier of 22 and the proper multiplier would be only 16. This contention is correct and the multiplier to be adopted is only 15 as per the decision reported in AIR 2009 Supreme Court 3104 (Sarala Verma v. Delhi Transport Corporation). The Tribunal has taken the monthly income of the deceased at Rs.3,000/-. There is no reason to take the monthly income at Rs.3,000/- when there was documentary evidence available to show the income of the deceased at Rs.4,000/-. When the deceased was a person with brilliant academic records, there is every possibility that there could have been tremendous increase in the employment opportunities and earnings. Therefore, it is appropriate that the Tribunal should have been taken the monthly income of the deceased at Rs.4,000/-, Then the annual income would be Rs.48,000/-,. Deducting 1/3rd towards personal expenses of the deceased, the monthly dependency would be Rs.32,000/-, adopting the multiplier of 15, then the total loss of dependency would be 32000 X 15 = Rs.4,80,000/-. Further, awarding a sum of Rs.30000/- towards loss of consortium to the wife and Rs.10,000/- towards loss of love and affection for father and Rs.8,000/- towards funeral expenses., thr total is quantified. In total sum of Rs.5,28,000/- is awarded as compensation.
9. The next question to be considered is to whom the amount towards loss of dependency has to be paid. It is the contention of the insurance company that the wife of the deceased having remarried has lost the right to claim compensation on account of loss of her status and loss of dependency and therefore, the amount cannot be paid to the claimants.
10. On the other hand, the learned counsel for the claimant placed reliance on the decision reported in 2011 ACJ 1211, where under the Delhi High Court has held that remarriage will not deprive a person from claiming compensation for the death of her/his spouse.
11. It is relevant to refer the express provision in the law of United Kingdom.s 4 (1) a of the Law Reform (Miscellaneous Provisions) Act 1971 provides: 'In assessing damages payable to a widow in respect of the death of her husband in any action under the Fatal Accidents Acts 1846 to 1959 there shall not be taken into account the remarriage of the widow or her prospects of remarriage.' there is no such express provision in Indian Law.
12. Apex Courtin the case of G.S.R.T.C. Ahmedabad v. Ramanbhai, has held as follows;-
"Under Section 166 of the Motor Vehicles Act, it is provided that any of the legal representatives can file the claim petition. Widow even after remarriage continues to be the legal representative of her husband as there is no provision under the Hindu Succession Act or any other law which lays down that after remarriage she does not continue to be the legal representative. The right of succession accrues immediately on the death of husband and in the absence of any provision she cannot be divested from the property vested in her due to remarriage.
It is understandable that life of a widow, after the death of her husband, in the family cripples abnormally. Generally, she is subjected to all kinds of indignities, compelling her to leave and fall back on parents where she is taken to be an eye-sore by the families of her brothers, particularly when parents are not alive, and even if they are alive they can hardly look after her due to old age. With this background, it is considered necessary that a widow marries as early as possible. Therefore, in a case she has done so, her claim for compensation cannot be defeated by remarriage. It would be highly improper to compel her to lead a life of a widow till she receives the compensation.
There is one more aspect of the matter. it is well known fact that in our society, the life of a widow becomes miserable. If she has no financial support she has to survive on the mercy of other relations which expose her to any kind of exploitation or to adopt immoral ways for her survival. Instead of doing that, if she remarries then that can give her a way to lead her life in more respectable manner. this option is legally permissible and therefore, should be encouraged and the widow should not be punished by depriving her from compensation for the death of her husband."
13. It is appropriate to quote the Judgment of Hon'ble Madras High Court reported in 2010 2 TNMAC 404 (DB), wherein the Hon'ble Madras High Court quoting the Hon'ble Supreme Court of India Judgment and held that Widow despite remarriage is entitled to Compensation and further held that;
12. The word "Legal Representative" as defined in Section 2(11) of the CPC means a person who is 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 character the person on whom the estate devolves on the death of the party so suing or sued.
13. While considering the aforesaid provision, the Supreme Court in the case of Custodian of Branches of BANCO National Ultramarion Vs Nalini Bai Naique, 1989 Supp (2) SCC 275, held that the definition Legal Representative as contained in Section 2(11) of the CPC is inclusive in character and is not confined to legal heirs only.
14. In another decision of the Supreme Court in the case of Gujarat SRTC Vs Ramanbhai Prabhatbhai, 1987, (3) SCC 234, their Lordships have gone to the extent of holding that a Legal Representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.
15. We, therefore, of the considered opinion that the Tribunal has committed grave error of law in holding that the parents of the deceased are not the Legal Representatives of the deceased to claim compensation amount as dependants. The Tribunal further committed serious illegality in holding that the first Appellant who was the wife of the deceased is also not entitled to any compensation for the reason that after the death of the deceased she remarried her husband's brother. In our view all the claimants / Appellants are entitled to compensation on account of death of the deceased in a car accident
14. It has been held in 2010 (2) TNMAC 328 that remarriage is not a disqualification for getting compensation and further held as follows;
Merely by the marriage, the legal heir-ship of the Appellant does not vanish as contended by the learned Counsel for the Appellant. As per Schedule-I, of the Hindu Succession Act, the Appellant, being a widow of the deceased is a Class-I legal heir of the deceased Shangaiah. Moreover, the claim is made by the Appellant as a legal heir and the award becomes her property by virtue of Section 14 of the Hindu Succession Act. The right of the Appellant is a statutory right and the second marriage does not prohibit her statutory right. Moreover there is no prohibition or restriction or exclusion under the Act claiming her right in the event of second marriage. Window’s remarriages were, encouraged by grant leaders including Mahatma Gandhi. The Government is also encouraging window’s remarriage. The contention of the Insurance Company as stated above is against the policy of the Government and welfare of the State. Hence, the contention by the learned Counsel for the Second Respondent is rejected
15. widow remarriage;The social change is an inevitable phenomenon of every society. Whether the social change comes through legislation or through judicial interpretation, it indicates the change in the accepted mode of life or perhaps a better life. The changing patterns of life do have an impact on the law and life of a given society and the law must keep pace with the changing socio-economic trend in the Society in other words the law should be an instrument of social change. Thus, social justice provides for a potential force for attainment of a progressive society.
16. But for the untimely death of her husband she would not have an occasion to think of remarriage. It is not a case of remarriage on account of divorce or any other reason. Psychological hurdles that the widow will face on account of remarriage and other relevant factors are also to be taken into consideration. The word dependency and legal representative should receive a pragmatic interpretation, so that the widow remarriage, which is a public policy did not take a detour. Remarriage should be encouraged so that widow is relieved from social stigma attached to widowhood and social protection would embrace her.
17. In the result, the appeal is dismissed. The compensation awarded by this Court is as follows;-
Loss of dependency :Rs.4.80,000/-
Loss of consortium :Rs.30,000/-
Loss of love and affection :Rs.10,000/-
Funeral expenses :Rs.8,000/-
Total :Rs.5,28,000/-
18. The appellant shall deposit the entire amount of compensation, with 7.5% from the date of petition till the date of deposits, within a period of 8 weeks from the date receipt of a copy of this order. On such deposit being made, the wife is permitted to withdraw a sum of Rs.4,00,000/- (One lakh only) with proportionate interest and lower Court Cost and the balance amount shall be kept in a bank, which is payable to legal representative of the sixth respondent. It is open to the legal representatives to move the tribunal to get the compensation after adducing proof of legal heirship. No costs. Consequently, connected miscellaneous petitions are closed.