PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 8TH DAY OF OCTOBER 2014/16TH ASWINA, 1936
OP (MAC).No. 1575 of
2012 (O)
AGAINST THE ORDER DATED
04/06/2011 IN IA.NO.232/2011 IN OP(MV) 1213/2005 OF MOTOR ACCIDENTS CLAIMS
TRIBUNAL, PALAKKAD
PETITIONER(S):
SREERANGAN
BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW
RESPONDENT(S):
1. THE NEW INDIA ASSURANCE CO.LTD, KUNNAMKULAM,
ORISON BUILDING, WADAKKANCHERRY ROAD, KUNNAMKULAM POST-680503, THRISSUR DISTRICT.
2. THE NEW INDIA
ASSURANCE COMPANY LIMITED, OTTAPALAM, JRJ COMPLEX, OTTAPALAM POST-679101,
PALAKKAD DISTRICT.
R1 & R2 BY ADV. SRI.P.G.GANAPPAN
JUDGMENT
The petitioner is one of the claimants in O.P.(MV). No.1213 of
2005, before the Motor Accidents Claims Tribunal [MACT], Palakkad. The claim
was filed for compensation with respect to the death of the petitioner's son in
a motor accident, wherein the petitioner's son, who was riding a bicycle, was
hit by a jeep and was run over by a lorry coming from the opposite side. The
respondents 1 and 2 are the insurers of the vehicles, who were mulcted with
equal liability as per Exhibit P1 award, arrived at on settlement.
2. The wife of the
petitioner and two other sons were the other claimants before the Tribunal. The
Tribunal rightly declined the claim of the two other sons and the amount of
Rupees Three lakhs arrived at, on settlement, was equally apportioned between
1st and 2nd claimants, being the petitioner herein and his wife. Rupees One
lakh each was directed to be paid to the father and mother of the deceased and
the balance was directed to be deposited in Fixed Deposit, equally in their
respective names.
3. The controversy arose when Exhibit P2 application was
filed before the Tribunal seeking disbursement of the amount deposited, which
was subsequently converted as Fixed Deposit Receipt. The application filed as
I.A.No.232 of 2011 was rejected by Exhibit P3 on the ground that no legal
heirship certificate was produced.
4. This Court
called for a report from the Tribunal and the Tribunal has reported that the
award specifically directed production of legal heirship certificate and,
hence, Exhibit P3 dismissal was made. The report goes one step ahead and explains
the dismissal further on the premise that there was no averment in the
affidavit filed along with the application that the petitioner was a legal
representative of the deceased and that he would not be shown as a legal heir
of the deceased, since the mother of the deceased, the Class I heir, is alive.
5. It is not as if
the Tribunal was not aware of the legal position. A lacuna in the affidavit
could have been directed to be cured and that is how the judicial system
inspires confidence in the minds of people. This Court would abstain from
making any observation regarding the conduct of the Tribunal, since the award stipulated
production of a legal heirship certificate and the Tribunal dealing with an
Interlocutory Application would have found it difficult to go beyond the
stipulation. Suffice it to say that what has now been stated in the report, to
impress the superior Court, when report was called for, ideally should have
found a place in the order impugned herein.
6. This Court,
however, is not fettered by such technicalities, especially when jurisdiction
under Article 227 of the Constitution is invoked and this Court could,
definitely, in such writ/original petition invoke the extraordinary
jurisdiction under Article 226 of the Constitution, to do justice.
7. The facts
leading to the award are not necessary, since the issue is only
Whether a legal
heirship certificate is required for disbursement of amounts to dependants who
claimed compensation before the Tribunal, as legal representatives.
The issue
is not res integra, in view of the decisions in
Gujarat State Road Trans.Corpn.
v. Ramanbhai Prabhatbhai [1987 ACJ 561]
Custodian, Branches of BANCO National
Ultramarino v. Nalini Bai [AIR 1989 SC 1589]
and
Cheriyakutty Mammi v.
Ummerkutty [1995 (2) KLT 555]
relied on by the learned counsel for the
petitioner.
8. In Ramanbhai Prabhatbhai (supra) the question whether, only
those persons who were entitled to claim damages under the Fatal Accidents Act,
1855; on the death of a person, viz., the wife, husband, parent and child of
the deceased, alone would be entitled to claim damages under the Motor Vehicles
Act, 1939 [for brevity "M.V.Act"] came up for consideration. Such
restriction was argued on the ground that Chapter VII of the M.V.Act was merely
procedural, providing an alternate forum and the substantial law remained to be
governed by the Fatal Accidents Act. The Supreme Court noticing the cleavage of
opinion between the various High Courts, upheld the view in
Megjibhai Khimji
Vira v. Chaturbhai Taljabhai [1977 ACJ 253 (Gujarat)]
that:
"... a claim
for compensation arising out of the use of a motor vehicle would be exclusively
governed by the provisions of sections 110 to 110-F of the Act and bears no
connection to claims under the 1855 Act and the Claims Tribunal need not follow
the principles laid down under the latter Act".
9. The provisions
of the M.V.Act were held to have superseded the provisions of the Fatal
Accidents Act insofar as motor vehicle accidents are concerned, to the extent
of a 'new right' being conferred on an 'enlarged' group of persons for whose
benefit the application can be made. The limitations of the Fatal Accidents Act
were held to be incapable of restricting the new right under the M.V.Act. The
Hon'ble Supreme Court also noticed the fact that the Fatal Accidents Act of
1846 in England; taking cue from which Fatal Accidents Act was enacted in India
in 1855, had undergone substantial amendments expanding the persons who could
make an application for damages. Not only did the Fatal Accidents Act, 1855
remain as such, the Supreme Court noticed with surprise that the 85th report of
the Law Commission recommended that the entitlement to claim damages for death
under the M.V.Act should be confined to that under the Fatal Accidents Act.
But, the Parliament's refusal to make amendments on that count to the M.V.Act,
when other extensive modifications were made, was held to be indicative of the
intention to give a wider meaning to the expression 'legal representative'
rather than confine it to spouse, parent and children.
10. The definition
of 'legal representative' in the CPC was found to be not applicable to a case
before the Claims Tribunal; but such definition was nevertheless found, to be
as the expression is understood in common parlance.
On who comprises 'legal representative'
as per the CPC, useful reference can be made to Nalini Bai (supra):
"
'Legal representative' as defined in Civil Procedure Code which was admittedly
applicable to the proceedings in the suit, means 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 character the person on whom the estate devolves on the death of
the party so suing or sued. The definition is inclusive in character and its
scope is wide, it is not confined to legal heirs only instead it stipulates a
person who may or may not be heir, competent to inherit the property of the
deceased but he should represent the estate of the deceased person. It includes
heirs as well as persons who represent the estate even without title either as
executors or administrators in possession of the estate of the deceased. All
such persons would be covered by the expression "legal
representative". If there are many heirs, those in possession bona fide,
without there being any fraud or collusion, are also entitled to represent the
estate of the deceased".
(emphasis supplied)
11. A Division Bench of this
Court in Cheriyakutty Mammi (supra) considered the very same issue involved in
this case. Therein, a muslim husband had claimed compensation for the death of
his wife in a motor accident, wherein the siblings of the wife got themselves
impleaded and claimed one-half share. The Tribunal apportioned the awarded sum
in the ratio of 2 : 1 between the husband and the siblings, which was challenged
before this Court by way of appeal. This Court specifically referred to Rule
2(k) of the Kerala Motor Vehicles Rules, 1989, which contained a definition of
"legal representatives of the deceased", as persons "who in law
are entitled to inhereit the estate of the deceased if he had left any estate
at the time of his death and includes any legal heir of the deceased and the
executor or administrator of the estate of the deceased". Hence, the Rules
specifically indicated that the connotation "legal representative" is
to be understood in the context of the specific statute and Rules, and was
wider than the term "legal heir" and a legal heir was one of the
categories included in such wider definition.
12. The word injury
used in Section 166 of the Motor Vehicles Act, 1988 was also held to have a
wider connotation with respect to damages. "Loss of dependency" was
held to be coming within the meaning of the word "injury". Then, a
father who suffered 'loss of dependency' by the death of his son would be
entitled to file an application under clause (a) of Section 166(1) of the
M.V.Act, was the clear finding.
The Division Bench held so:
"13. The
conclusion which can be made is that under S.166(1)(a) of the Act a claim can
be made by any person who suffered on account of accident arising out of the
use of a motor vehicle. Such person would include those who lost dependency,
consortium and any other kind of support as a consequence of death of the
victim in the accident. S.166(1)(c) relates to claim by legal representatives
of a deceased victim in respect of the loss or damages enured to the estate of
the deceased. When all the legal representatives have not joined in such a
claim the application should be made on behalf of or for the benefit of all of
them and such others should be made respondents in the claim".
13. What emerges
hence is the clear principle upon which, the entitlement to claim compensation,
on the death of a person in a motor accident, is to be adjudicated upon. Any
'legal representative' including a 'legal heir' and not confined to a
subsisting status governed by the laws of succession, would be entitled to
claim compensation; provided he/she sustains an injury from the death caused by
the motor accident; the injury being not one to be understood as one caused to
the body of the individual involved in an accident.
14. The father of
the deceased, who is the petitioner herein, had approached the Tribunal,
together with his wife claiming 'loss of dependency' on the death of his son in
a motor vehicle accident. The petitioner, hence, is entitled to the sum
awarded, as apportioned to himself in the award, even without the production of
a legal heirship certificate. It is so declared and the impugned order is set
aside, directing the Tribunal to disburse the amount of Rs.1,00,000/- [Rupees
one lakh only] to the petitioner herein, with any interest accrued, within
three weeks of the production of a certified copy of this judgment.
