United India Insurance Co. Ltd., Kakinada Vs. Namala China Apparao and Others - Court Judgment

1. This appeal is filed by the Insurance Company questioning the award dated 29-1-1994 in OP No.380/91 passed by the Motor Accidents Claims Tribunal-cum-District Judge, Rajahmundry.

2. The facts that led to the filing of the appeal are as follows :

The first petitioner is the maternal uncle of the deceased. The second petitioner isthe wife of the first petitioner. The third petitioner is the sister of the deceased Kosuri Raju. They filed a petition under Section 166 of the Motor Vehicles Act for compensation for the death of Kosuri Raju who died on 26-9-1991 in a motor accident, stating that the deceased and another G. Satyanarayana were going to Mandapeta and that when they reached Ippanapadu lock, the tractor-trailer No.AP-5T 1412 and AP 5 1416 was proceeding from Mandapeta to Ippanapadu, driven by the first respondent in rash and negligent manner dashed against the deceased who was going on the left side of the road. The tractor ran over the deceased and he died on the spot. The deceased was aged about 20 years and was working as a tractor driver and was getting a net income of Rs.1200/- per month and he was supporting the entire family. It is further stated that as the parents of the deceased died when the deceased was young, respondents 1 and 2 brought him and his sister-petitioner No.3 and were looking after the deceased till his death and that they are the legal heirs of the deceased.

3. The Insurance Company-R3 filed a counter denying all the allegations and stated that the petitioners are neither the legal heirs nor dependents in the eye of law and that the deceased had no obligation to maintain them legally. Respondents 1 and 2 filed a memo adopting the counter filed by R3.

4. Basing on the above pleadings, the Tribunal has framed the following issues :

(1) Whether the accident resulted in the death of the deceased was due to the rash and negligence on the part of the driver of the motor vehicle concerned in this accident?

(2) Whether the petitioners are entitled to any compensation and if so, to what and against whom?

(3) To what relief? With regard to issue No.1 on appreciationof the evidence, the Tribunal came to theconclusion that the accident occurred dueto rash and negligent driving of R1 andon issue No.2 the Tribunal came to theconclusion that as the parents of thedeceased died when he was young and hewas brought up by the petitioners 1 and 2and since from the childhood the deceasedwas in the family of the petitioner Nos.1and 2 along with his sister, petitioner No.3,and he used to contribute to maintain thefamily of petitioner No.l and awarded asum of Rs.65,400/- in favour of thepetitioners and against respondents 1 to 3jointly and severally.

5. Aggrieved by the same, the present appeal is preferred by the third respondent-Insurance Company.

6. Sri S. Hammaiah, learned Counsel appearing for the appellant-Insurance Company contended that the respondent No.3 herein who is P3 in the claim petition is admittedly a married woman and therefore she is not entitled to any compensation. He further contended that respondents 1 and 2 herein are not the dependents of the deceased in the eye of law and that they are not entitled to any compensation. In support of his contention, he relied upon the judgment of Division Bench of this Court in New India Assurance Company Limited v. Pedada Prabhavati, 1998 ACJ 615. On the other hand, learned Counsel for the respondents contended that the respondents/petitioners are the legal representatives of the deceased and hence they are entitled to the compensation and that when the bread earner of the family is died on account of motor vehicle accident due to the negligent driving of the driver of the vehicle, his legal representatives are entitled to recover the damages for the wrong act and the same need not be interfered. In support of his contention, learned Counsel for the respondents has relied upon a judgment ofthe Hon'ble Supreme Court in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanabhai, : [1987]3SCR404 .

7. This Court in United India insurance Company Lid. Hyderabad v. M. Ramulu and others, 1998 (2) Accidents Judicial Reporter 281, held (hat brothers and sisters cannot be said to be dependents on the victim. There is no liability in law to maintain these persons. But there was no liability in law upon the victim/deceased to maintain either of his siblings when his father was earning and was bound to maintain the children. In the circumstances, the only true dependent was the mother of the victim. While discussing the same, this Court further held that brothers and sisters are not entitled to any separate compensation for the reasons given above as they were not in law dependents on the victim. In the said case learned Counsel for the respondents raised a plea that the Insurance Company is not entitled to take the defences in view of Section 149(sic.96) of Motor Vehicles Act, which are permissible to the driver or owner of the lorry. Repelling the same, this Court has held that the Insurance Company can take a defence that the method of calculation is totally unwarranted in law and unsustainable. Otherwise, it is not open to the Insurance Company to challenge the quantum if legal and proper method of quantification is applied by the Tribunal. It is aiso held that had it been mere apportionment between the claimants that also was not challenged by the appellant. Here a separate claim is granted in favour of persons not at all entitled to, in law. By holding so, this Court has allowed the appeal partly disallowing the claim in favour of respondents 3 and 4 therein for compensation. Similarly, the Division Bench of this Court in the case of Pedada Prabhavati (supra) held that married daughter of the deceased is not entitled to compensation along with widow of other children for the death of the deceased. The Supreme Court inRamanabhai's case (supra) held as under:

'...... The proviso to sub-section (I) ofSection 110-A of the Act appears to be of some significance. It provides that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased. Section 110-A(1) of the Act thus expressly states that (i) an application for compensation may be made by the legal representatives of the deceased or their agent and (ii) that such application shall be made on behalf of or for the benefit of all the legal representatives. * Both the person or persons who can make an application for compensation and the persons for whose benefit such application can be made are thus indicated in Section 110-A of the Act. This Section in a way is a substitute to the extent indicated above for the provisions of Section 1A of the Fatal Accidents Act, 1855 which provides that 'every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the persons whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased.' While the Fatal Accidents Act, 1855 provides that such suit shall be for the benefit of the wife, husband, parent and child of the deceased, Section 110-A(1) of the Act says that the application shall be made on behalf of or for the benefit of the legal representatives of the deceased. A legal representative in a given case need not necessarily be a wife, husband, parent and child. It is further seen from Section 110-B of the Act that the Claims Tribunal is authorised to make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. This provision takes the place of the thirdparagraph of Section 1A of the Fatal Accidents Act, 1855 which provides that in every such action, the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought. Persons for whose benefit such an application can be made and the manner in which the compensation awarded may be distributed amongst the persons for whose benefit the application is made are dealt with by Section 110-A and Section 110-B of the Act and to that extent the provisions of the Act do supersede the provision of the Fatal Accidents Act, 1855 insofar as motor vehicles accidents are concerned. These provisions are not merely procedural provisions. They substantively affect the rights of the parties. As the right of the action created by the Fatal Accidents Act, 1855 was 'new in its species, every way new' the right given to the legal representatives under the Act to file an application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitations of an action under the Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.'

The Apex Court after approving the view taken in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, : AIR1977Guj195 , by the Gujarat High Court held that application made by the brother of the deceased who died in a motor vehicle accident is maintainable under Section 110-A of the Act if he is legal representative of the deceased.

8. Section 166(1)(c) of the Motor Vehicles Act reads as under :

'166. Application for compensation :--

(1) An application for compensationarising out of an accident of the nature specified in sub-section (1) of Section 165 may be made -

(a) .....;

(b) .....;

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) .....:

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.'

9. The Supreme Court in Ramanabhai's case (supra) further held that it is for the Tribunal to determine the compensation which appears to be just as provided in Section 110-B of the Act to specify the person or persons to whom compensation shall be paid. The relevant portion of the judgment reads as under :

'..... It is for the Motor VehiclesAccidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act to specify the person or to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit the Act have to be done in accordance with the well-known principles of law. We should remember that in an Indian family brothers, sisters and brother's children and sometimes foster children live logether and they are dependent upon the breadwinner of the family and if the bread winner 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, 1955 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents..... '

10. In view of the law declared by the Supreme Court, the petitioners 1 and 3 are Class II legal representatives- as per Hindu Succession Act, 1956. When once the petitioners are the legal representatives they can maintain the present petition before the Tribunal which is for the benefit of the legal representatives. The contention of the learned Counsel for the appellant, that they are not dependents of the deceased and therefore (he present petition before the Tribunal is not maintainable, is devoid of merits.

11. Coming to the next argument of the learned Counsel for the appellant that the petitioner No.3/R3 is not entitled to any compensation as she is not a dependent on the deceased, it has to be seen that the Tribunal while determining the compensation has awarded the entire compensation in favour of the petitioners/Rl to R3 jointly without making any apportionment.

12. This Court in M. Ramulu's case (supra) held that brothers and sisters are not dependents on victim and not entitled to separate compensation. Similarly in Pedada Prabhavati's case (supra) the Division Bench of this Court held that a married daughter is not entitled to any compensation and compensation granted by the Tribunal to that extent was set-aside. The Hon'ble Supreme Court in a recent judgment in Shankarayya v. United India Insurance Company Limited, : AIR1998SC2968 , held that unless the Insurance Company impleaded itself as party respondentpermitting to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170, the Insurance Company is not entitled to file an appeal on merits of the claim' which was awarded by the Tribunal. Admittedly, the present grounds raised by the Insurance Company are not one of the defences available to the Insurance Company as per Section 149(2) of the Motor Vehicles Act, 1988, but they are available only to the owner i.e., R2 before the Court below. The decree passed by the Tribunal against R1 and R2, who are driver and owner has become final as the same was not challenged by them. If the contention of the Insurance Company is accepted, it amounts to interfering with the quantum of compensation awarded by the Tribunal. As no separate compensation is awarded to the third petitioner and as no amount is apportioned to her, this Court cannot reduce the quantum of compensation in view of the law laid down by the Apex Court in Shankarayya's case (supra) and it is not open for the Insurance Company to challenge the award on merits.

13. For the foregoing reasons, the appeal fails and it is accordingly dismissed. No costs.