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Judgment
V. Dhanapalan, J.—The owner of the vehicle and the Insurance Company have filed this Civil Miscellaneous Appeal, challenging the award
passed by the Motor Accidents Claims Tribunal (Sub Judge), Dharapuram (hereinafter referred to as ""The Tribunal""), made in MACT. O.P.No.
333 of 1994 dated 21.0 7.1997.
The respondents / claimants have filed a petition for the loss of their deceased father, Chellappa Gounder, claiming a compensation of Rs.
4,00,000/-. In support of their claim, the first claimant got himself examined as P.W.1, besides marking Ex.P.1 to Ex.P.5. On the side of the
respondents, no oral as well as documentary evidence was let in. The Tribunal, after analysing the oral and documentary evidence and on fixing the
negligence on the part of the driver of the first respondent before the Tribunal, who is the first appellant herein, has passed an award fixing a
compensation of Rs. 2,62,500/-. Aggrieved by that judgment and decree, the appellants herein have filed this present appeal.
Before the Tribunal, it was the case of the claimants that on 19 .02.1994, when the deceased Chellappa Gounder was standing in the
Vadugapatti Junction in Tarapuram-Karur Main Road, the first respondent / first appellant herein drove the van bearing Registration No. TN-72 -
Z-1909 with a high speed, carelessly in a rash and negligent manner from west to east and dashed against the deceased who was standing there,
due to which the deceased sustained injuries and died on the spot. Later, he was admitted in the Tarapuram Government Hospital wherein autopsy
was conducted on him. A Criminal case was filed against the first respondent / first appellant herein. At the time of accident, the deceased was 45
years old and he owned 15 acres of land and doing money transaction business and dairy business out of which he was earning Rs. 5,000/- per
month and was giving upto Rs. 3,000/- to his family. The respondents herein, who are the sons of the deceased Chellappa Gounder, have already
lost their mother, a few years back and their father has also died in the aforesaid accident. The first appellant herein, who drove the vehicle, is the
owner and driver of the aforesaid vehicle, insured with the second appellant Insurance Company. Therefore, the above two appellants are bound
to pay the compensation of Rs. 4,00,000/- claimed by the respondents, jointly and severally for the death as well as loss of love and affection of
the respondents'' father.
On the other hand, the first appellant herein was called absent set exparte before the Tribunal. The second appellant Insurance Company has
filed the counter and contended that the age, income and business of the deceased mentioned in the claim petition are all false. It was also
contended by the Insurance Company that on 19.02.1994, the first respondent / first appellant herein stated to have driven the vehicle and caused
the accident, are also false. Therefore, the accident had taken place only due to the negligence and carelessness of the deceased and therefore, the
Insurance Company is not bound to pay any compensation and in any event, the amount claimed by the claimants is excessive. The Insurance
Company also questioned whether the first appellant had possessed a driving license at the time of accident and prayed that the Tribunal has to
dismiss the claim petition.
The Tribunal, after proper enquiry and on consideration of the material evidence and the evidence deposed on the side of the claimants, has
framed two questions for consideration, firstly whether the negligence and carelessness of the first respondent is responsible for the accident and
secondly, if so, whether the claimants are entitled for the quantum of compensation they have claimed. After analysing the oral and documentary
evidence and also taking into consideration the overall aspects of the case, the Tribunal had passed the award of compensation, fixing the quantum
as Rs. 2,62,000/- with 12% interest per annum from the date of petition, till the date of deposit.
Aggrieved by the award, the present appeal has been filed by the Insurance Company along with the owner of the vehicle, questioning the
negligence and quantum, and also the maintainability on the ground that whether the claimants are the dependants entitled for the compensation.
Heard Mr.M.L.Ramesh, learned Counsel for the appellants herein and Ms.Kamatchi for Mr.T.A.Manoharan, the learned Counsel for the
respondents / claimants. Mr.Ramesh, the learned Counsel for the appellants, in his submissions, has contended that the Tribunal has misdirected
itself in law in holding that the accident had occurred solely due to the rash and negligent driving of the van by its driver, solely on the strength of
Ex.P.1 to Ex.P.4. The learned Counsel also contended that the Tribunal has further misdirected itself in law in awarding a sum of Rs. 2,62,500/- as
compensation in favour of the claimants, who are all major sons of the deceased and who would not have been dependent on the income of the
deceased and hence, they are not entitled for compensation. The learned Counsel also argued that there is no evidence to prove the income of the
deceased and hence, the Tribunal cannot take into account their claim statement in which it was stated that the deceased was owning more than 15
acres of wet / dry lands and milk cattle and was doing milk business. The learned Counsel has contended that the Tribunal had arrived at the
income of the deceased at Rs. 2,215/- based on the above claim statement and concluded that the deceased would have contributed Rs. 1,750/-
per month to the claimants who are bachelors. The learned Counsel also contended that the Tribunal was at fault in applying the multiplier of 15
years, totally over holding that even assuming without conceding that the respondents 1 and 2 as dependents, would have received some support
from the deceased, they would not have received any contribution from the deceased, after a lapse of few years, since they would have got
married and settled in life.
Per contra, the learned Counsel for the respondents, Ms.Kamatchi for Mr.T.A.Manoharan, in her submissions, has contended that the claimants
were aged 24 and 22 years respectively at the time of the accident of their father and that the claimants are legal representatives. ""Legal
representative"" as defined in CPC 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 learned Counsel also pointed out that the definition is inclusive in character and its scope is
wide and 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"".
The learned Counsel for the respondents / claimants also pointed out that as per the evidence of P.W.1 and based on the exhibits Ex.P.1 - First
Information Report, Ex.P.2 - Post Mortem Report, Ex.P.3 - Motor Vehicle Inspector''s Report, Ex.P.4 - Copy of the Charge Sheet and Ex.P.5 -
Copy of the judgment, the Tribunal has concluded that there is negligence on the part of the driver of the van who drove the vehicle in a rash and
negligent manner, and also the quantum arrived at by the Tribunal on a careful analysis was based on the evidence adduced by P.W.1. Therefore,
the learned Counsel has contended that the quantum arrived at by the Tribunal is proper and there is no reason to disbelieve the same in the
absence of any contra evidence on the side of the respondents, who are the appellants herein, and therefore, this appeal has to be dismissed.
In support of his contention, the learned Counsel for the appellant has relied on the following decisions:
i) Decision of the Punjab and Haryana High Court reported in AIR 1986 ACJ 331 in the case of Bhagwani Devi v. Krishan Kumar Salini and Ors.
In Para 11 of this judgment, it was held as follows: ""11. Turning to the issue relating to compensation no exception can be taken to the Tribunal
dismissing the claim of the three sons of the deceased namely Ranbir Singh, Ved Bir Singh and I.S. Balhara. None of these sons has been shown
to have been dependant upon the deceased. They were all adults and employed during the lifetime of the deceased. It is well settled that occasional
gifts by parents to grown up children for any special purpose or otherwise does not denote dependency justifying compensation being awarded to
such children on this account.
ii) Decision of this Court reported in AIR 1988 MAD 109 in the case of Pujamma and Ors v. G. Rajendra Naidu and Ors. In paragraph 15 of this
judgment, this Court held as follows:
The petitioners / appellants 2 and 3 are majors. So, they are not entitled to compensation. Hence, the first petitioner first appellant is awarded a
sum of Rs. 9,600/- as compensation. I find this point accordingly. In other words the award of Rs. 7,200/- given by the Tribunal is enhanced to
Rs. 9,600/- under this head by this Court.
iii) Decision of the High Court of Rajasthan reported in Anju Behal and Others Vs. Rajasthan State Road Transport Corporation, . In paragraph
10 of this judgment, it was held as follows: ""10. The last point which requires consideration is regarding apportionment of this amount of
compensation between the two sets of the claimants. The case of mother Ramesh Rani is that she being the mother of the deceased Dr. Vinod
Kumar Behal, is entitled for 1/4th share in the total amount of compensation. According to Section 110-A ( Section 166 of new Act), an
application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 of the Act may be made by all or
any of the legal representatives of the deceased or by any agent duly authorised by any of the legal representatives of the deceased. The Motor
Vehicles Act does not specify as to who is to be treated as the legal representative(s) for the purpose of Section 110-A, in this regard, guidance
can be taken from Section 2(11) of the CPC as well as from the Hindu Succession Act and in my view, the term ''legal representative'' in Section
110-A includes the mother of the deceased also, as she is a Class '' A'' heir as per the Hindu Succession Act along with the son, daughter, widow
and other heirs mentioned in the Schedule. The mother is also, therefore, entitled for apportionment of the compensation. But under the Motor
Vehicles Act, every legal representative who suffered on account of death of a person due to motor vehicle accident has a remedy for realisation of
the compensation that is provided by Section 11 0-A to Section 110-F of the Motor Vehicles Act, 1939. In determining the compensation as the
deceased ceased to be productive, the court has to value the chance that a particular claimant would have derived some financial benefit from the
deceased had he remained alive. Thus, the dependency of the claimant on the deceased, apart from the legal representation, is a valid
consideration for the grant of compensation. Any person, though dependent on the deceased, is entitled to make an application for the grant of
compensation provided he or she falls within the the definition of the term ''legal representative''. In order to claim compensation or to come within
the term ''legal representative'', one has to be a heir under the law applicable to the parties, who are Hindu in the present case. So far as the
question of dependency is concerned, it should have a basis of rightful claim and the court has to consider that person claiming has a right to claim
dependency, i.e., the right to claim for maintenance. Thus, it is the legal representative who is a rightful legal heir who depends upon the deceased
is only entitled for the apportionment of the compensation in the case of a matter of accident claim. The mother of the deceased claiming
apportionment of the amount of compensation has to establish the extent and the nature of dependency upon the deceased otherwise she is not
entitled for any part of compensation. In the present case, the claimant Ramesh Rani failed to show that she was, in any way, dependent upon her
son Dr. Vinod Kumar Behal. She, in her statement, has stated that her husband is alive who is a liquor contractor and is still working as such. The
claimant, before the grant of compensation in his/her favour, has to show the reasonable expectation of pecuniary benefit from the continuance of
the life of the deceased and not merely a speculative possibility of pecuniary benefit. Since the appellant Ramesh Rani was not dependent on the
deceased Dr.Vinod Kumar Behal and as such she is not entitled for any compensation as nothing can be paid by way of solatium or sentimental
damages and the basis for the determination and grant of compensation to the legal representatives of the deceased is the pecuniary loss suffered
by the dependants as a result of the death of deceased. Ramesh Rani is, therefore, not entitled to any compensation for the loss to the dependency
but she is entitled for compensation on the ground of mental shock due to untimely death of her son and also due to loss of love and affection and
the old-age services by the deceased and on this count, I think that she is entitled for apportionment of the compensation to the tune of Rs.
25,000/- (Rupees twenty-five thousand only). The learned Judge of the Tribunal awarded the compensation of Rs. 19,000/- to Ramesh Rani on
this count, which I enhance to the tune of Rs. 25,000/-.
iv) Decision of the High Court of Gujarat at Ahmedabad reported in Revaben and Others Vs. Kantibhai Narottambhai Gohil and Another, . In
paragraph 5.5 of this judgment, it was held as follows: ""5.5 Now the original claimant Nos. 4, 5 and 6 are the major sons of the deceased and as
per the deposition of the widow of the deceased, Revaben, at Exh.28, these sons are living separately. Similarly, original claimant Nos. 7, 8 and 9
are married daughters of the deceased who are living separately with their respective husband and in-laws. Thus, the only claimants who would be
entitled to compensation would be the widow Revaben and two minor children. Thus, the deceased together with his widow and the two minor
children would have constituted the family unit. Therefore, the personal expenses of the deceased would be required to be deducted from the
aforesaid salary figure to the extent of 1/3rd. This position is not disputed by the learned Counsel for the appellants. Thus, the dependency benefit
to the claimants would be Rs. 450/- less Rs. 150/- which would be Rs. 300/- per month. This would amount to Rs. 3,600/- per annum. Now we
are required to consider various factors which can be regarded to be imponderables. It is admitted that the deceased was aged 55 at the time of
his death and the age of retirement will be 60 years. Thus, under normal circumstances he would have had five years of service available to him.
However, the chance cannot be ruled out that he might not have survived till the age of superannuation. This chance is not a remote chance, but
something more than that inasmuch as the evidence of the widow Revaben at Exh.28 indicates, as rightly found by the Tribunal, that each of the
parents of the deceased had died between the age of 40 and 45 years. Thus, we cannot say with any measure of certainty or even as a measure of
probability, that the deceased would have attained the age of superannuation. However, on the other hand, neither can we say that he would not
have survived beyond the age of 60 years. Had he survived beyond the age 60, it is equally probable that he could have earned something even
after retirement. Thus, we are required to determine the appropriate multiplier having regard to these facts. The learned Tribunal has taken into
consideration and generally accepted view that an average citizen of India under the present circumstances enjoys a life expectancy of 70 years.
However, on the facts of the case, we do not feel it prudent to assume that the average life expectancy would also apply to the deceased,
inasmuch as each of his parents had expired between the age of 40 and 45 years. Taking into consideration the various aspects of the matter, we
are of the opinion that a multiplier of 7 would be appropriate. Thus, the figure of dependency benefit, viz., Rs. 3,600/- per annum when multiplied
by 7 would amount to Rs. 25,200. This would be the correct amount awardable under the head of dependency benefits or economic loss.
v) Decision of the High Court of Madhya Pradesh reported in Nani Bai and Others Vs. Ishaque Khan and Others, . In paragraph 28 of this
judgment, it was held as follows:
M.A. No. 330 of 1986 arises out of Claim Petition No. 1 of 1982, which has been filed by the heirs of deceased Karson alias Sarvan, who
died in the accident referred above. Claimants Rusi Bai and Ram Kunwar are widows of Sarvan. Gulab Bai and Ghisi Bai are the daughters of the
deceased Sarvan. It is alleged that Sarvan was also a passenger in the fateful bus and was swept away in the strong current of water. This fact has
been stated by Mangi Lal. There is no challenge to that statement. As such it has rightly been accepted that Sarvan died in motor accident.
Claimant Nos. 3 and 4 are married daughters and they were not dependent on Sarvan. As such claim on their behalf has rightly been disallowed by
the Tribunal. Deceased Sarvan was aged about 60 years and the claimant Nos. 1 and 2 are aged about 50 years. Deceased Sarvan may have
lived upto the age of 70 years, but without sufficient earning capacity. The Tribunal has assessed a global compensation of Rs. 15,000/- but has
deducted Rs. 4,000/- (ex gratia payment made by the Government).
vi) Decision of the High Court of Allahabad reported in U.P. State Road Trans. Corpn. and Another Vs. Tara Devi and Others, . In paragraph 6
of this judgment, it was held as follows: ""6. Rightly, the Tribunal has held that the major sons are not entitled to compensation in this case. If the
deceased was spending Rs. 500 /- for himself and was contributing the balance to the family, it will be reasonable to hold that the said amount was
contributed to wife. Thus, loss of dependency comes to Rs. 18,000/- per year. Deceased was aged about 45 years. He was a goldsmith. Added
to the loss of dependency, mental pain to the wife cannot be ignored. Taking the loss of dependency and mental pain together, we are satisfied that
the compensation of Rs. 2,00,000/- would be just in the present case. Tribunal has awarded interest at the rate of 11 per cent per annum and we
maintain the same. Thus, the widow of the deceased is entitled to compensation of Rs. 2,00,000/- with interest at the rate of 11 per cent per
annum from the date of application till date of payment.
vii) Decision of the High Court of Bombay reported in 1997 ACJ 95 in the case of Sakharibai Hasanali Makani and Ors v. Girish Kumar
Rupchand Gadia and Ors. In paragraph 5 of this judgment, it was held as follows:
Accordingly, the appeal is allowed. The award passed by the Tribunal is set aside and the following award is declared: The respondents are
directed to pay compensation of Rs. 1,50,000/- to the appellants along with interest at the rate of 12 per cent per annum from the date of
application, i.e., 7.11.1983 till realisation. The respondents shall also pay proportionate costs of the appellants throughout. The amount of
compensation is payable only to appellant No. 1, who is the widow, as appellant Nos. 2 to 5 are major sons and daughters and are settled in life.
The amount paid towards no fault liability will be given credit.
viii) Decision of the High Court of Rajasthan at Jodhpur reported in Rajasthan State Road Transport Corporation Vs. Ramesh Singh and Others, .
In paragraph 12 of this judgment, it was held as follows:
Punjab & Haryana High Court in Chameli Devi 1990 ACJ 482 (P&H) allowed compensation to the old mother and the widow of the
deceased but denied the same to the sons of the deceased who were about 30 years old and having independent income being the Government
employees. The denial of compensation to his sons was on the ground that they themselves were independent and earnings of the deceased used to
be contributed to his widow and mother and as such the compensation was awarded in favour of the widow and the mother of the deceased. It
cannot be a case that where the claimants are major, no compensation can be awarded to them. This is not the intention of the legislature. It is to
be seen as to whether deceased used to contribute from her earnings to the claimants and if it is established that she used to contribute then there
can be no reason for denial of compensation even if the claimants attained the majority.
ix) On the question of applying proper multiplier in the case of student aged about 12 years, he relied on the decision of the High Court of
Allahabad, reported in New India Assurance Co. Ltd. Vs. Vibha Sengar and Others, . In paragraph 2 of this judgment, it was held as follows:
We, after careful consideration of this argument, do not find any merit in it. The word used in the Second Schedule, item No. 6, covers all
persons whose income is not disclosed in the claim petition or not satisfactorily proved before the Tribunal, and all persons who are not earning
anything are covered by this notional income clause of the Second Schedule. It is to cover cases of persons who die in motor accident and whose
income is not shown through any source. Children of the age group of the victim in this case or of any other age group are also well covered by this
item No. 6 of the Second Schedule for computing compensation. Accordingly, this argument of Mr.Grover is rejected. In the present case, the
Tribunal applied correct multiplier of 15 and after deducting 1/3rd from the notional income for expenses on the victim, it has been rightly
calculated at Rs. 1,50,000 only as the compensation awarded in the present case.
On the other hand, the learned Counsel for the respondents / claimants has relied on the decision of the Supreme Court reported in Custodian
of Branches of Banco National Ultramarino Vs. Nalini Bai Naique, . Paragraphs 4 and 6 of this judgment, read as under:
After hearing learned Counsel for the parties, we are of opinion that the learned Judicial Commissioner committed serious error of law in setting
aside the order of the trial Judge. ""Legal representative"" as defined in CPC 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 bonafide without there being any
fraud or collusion are also entitled to represent the estate of the deceased. In the instant case, it is not disputed that under the Portugees Law of
inheritance which was applicable to Goa at the relevant time Mrs.Nalini Bai had acquired ""Meeira rights"" according to which she had acquired half
share in the estate left by the deceased Vinaique Naique and the remaining half share was inherited by sons and daughters of the deceased who
were subsequently brought on record. On the admitted facts Mrs.Nalini Bai therefore represented the estate of the deceased Vinaique Naique.
Once the name of Mrs. Nalini Bai was brought on record within time and the application for setting aside abatement was allowed by the trial
Judge, the suit could proceed on merits and the mere fact that the remaining legal representatives were brought on record at a subsequent stage
could not render the suit defective. The Custodian of the appellant Bank had no knowledge that there were other legal representatives of deceased
defendant along with Mrs.Nalini Bai. He had filed affidavit that on making diligent and bonafide inquiry, he had come to know that Nalini Bai was
the sole legal representative but later on he acquired knowledge that the deceased had left four sons and two daughters as legal representatives,
along with Mrs.Nalini Bai, therefore, he made another application for bringing them on record. The trial Judge accepted the testimony of the
Custodian, and placing reliance on the decision of Andhra Pradesh High Court in Mannem Venkataramayya Vs. M. Munnemma and Others, , he
allowed the substitution application. The trial court committed no error in law, instead he applied correct principles of law.
...
In the instant case Mrs.Nalini Bai had admittedly half share in the property left by the deceased defendant and as she was brought on record
within time, she represented the estate of the deceased defendant and the suit could proceed on merit. In this view, the impleadment of other legal
representatives at a subsequent stage could not affect validity of the proceedings. In the result we allow the appeal and set aside the judgment and
order of the Judicial Commissioner dated 30-6-1972, and restore the order of the trial Judge. Since trial of the suit has been delayed, we direct the
trial court to make every effort to decide the suit expeditiously. The appellant is entitled to its costs throughout.
The learned Counsel for the respondents / claimants further relied on a decision of the High Court of Andhra Pradesh reported in 1988 ACJ
1072 in the case of D. Vinoda and Ors. v. B. Baswa Raju and Ors. Paragraph 13 of this judgment reads as follows:
From the aforesaid rulings, the following principles can be summarised:
(i) In the case of death of an agriculturist owning agricultural land, the value of the ''supervisory'' services of the deceased have to be first estimated.
This will not be merely equivalent to the value of the services of a farm-servant or a manager of the property employed for that purpose. It will be
more than that because an owner-manager takes extra care in increasing the income year by year and also in increasing the value of the property.
After thus estimating the '' special'' value of the supervisory services of an ''owner-manager'', a deduction is to be made in respect of the money the
deceased would have spent for himself out of such sum and then the annual contribution to the family is to be arrived at. Then an actuarial multiplier
suitable to the age of the deceased has to be applied from the Actuarial Multiplier Table arrived at in Bhagawan Das v. Mohd. Arif 1987 ACJ
1052 (AP). To the said sum may be added such sums towards loss of consortium and compensation for loss of expectation of life and pain and
suffering as decided in Yerra Varalakshmi v. M.Nageswara Rao 1988 ACJ 354 (AP).
(ii) It is not permissible to say that no amount need be awarded towards the loss to the dependency merely because the corpus of the agricultural
land is left intact for the dependants. When in case of death of non-cultivators who have other properties, the properties remain intact and still
damages are awarded, there is no reason why on death of cultivators who have agricultural land, a negative attitude should be taken. The general
practice of making automatic deductions for the value of property inherited has fallen into desuetude. The value of the accelerated receipt of
property cannot according to the Privy Council be treated as a total or partial equivalent of the loss to the dependency inasmuch as the said
acceleration has to be set off against the loss of saving of the deceased to the family. At the other extreme, it is equally not permissible to capitalise
the income from the land by a number of years'' purchase.
The learned Counsel for the respondents / claimants has relied on a decision of the Supreme Court reported in State of Haryana and Another
Vs. Jasbir Kaur and Others, in the case of State of Haryana and Anr. v. Jasbir Kaur and Ors., to establish his case on the income issue. In
paragraph 8 of this judgment, it was held as follows:
It is clear on a bare reading of the Tribunal''s decision as affirmed by the High Court that no material was placed before the former to prove as
to what was the income. As rightly contended by the learned Counsel for the appellants, there was not even any material adduced to show the type
of land which the deceased possessed. The matter can be approached from a different angle. The land possessed by the deceased still remains
with the claimants as his legal heirs. There is, however, a possibility that the claim ants may be required to engage persons to look after the
agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source.
Attendant circumstances have to be considered. Furthermore, there was no material before the Tribunal to arrive at the figure of Rs. 4500 per
month. No reason has been indicated to arrive at this figure. In the light of what has been discussed above about ""just compensation"" the income
cannot be estimated without any material to justify the estimation. In the normal course, we would have remitted the matter back to the Tribunal for
fresh consideration. But considering the fact that one young person lost his life, and the matter was pending before the Tribunal and the High Court
for some years, we feel it appropriate to take all relevant factors into consideration, and decide the matter. Gauging the relevant aspects, noted
above, the monthly income is fixed at Rs. 3000 per month, and after deducting Rs. 1000 for personal expenses, financial contribution so far as the
claimants are concerned, is fixed at Rs. 200 0 per month. Worked out on the basis of multiplier of 18, the compensation is fixed at Rs. 4,32,000.
The amount of Rs. 2000 awarded by the Tribunal for funeral expenses is not interfered with and thus the total compensation comes to Rs.
4,34,000. The rate of interest i.e. 9% per annum as fixed by the Tribunal and affirmed by the High Court is appropriate, and does not need any
alteration. After adjusting the sum which was deposited pursuant to the order of this Court dated 14-12-2001, the balance amount along with
interest shall be deposited within three months from today before the Tribunal. On the deposit being made along with the amount already
deposited, a sum of Rs. 3 lakhs shall be kept in a fixed deposit in the name of the claimants and a sum of Rs. 50,000 shall be kept in a fixed
deposit in the name of Smt Baldev Kaur, mother of the deceased. They shall be entitled to draw interest on the deposit, which shall be redeposited
for further terms of five years. In case of urgent need, it shall be open to the claimants to move the Tribunal for release of any part of the amount in
deposit. The Tribunal shall consider the request for withdrawal and shall direct withdrawal in case of an urgent need and not otherwise of such sum
as would meet the need. It shall be specifically indicated to the bank where the deposits are to be made that no advance or withdrawal of any kind
shall be permitted without the order of the Tribunal. It shall be open to the claimants to approach the Tribunal for variance of the order relating to
deposit in a fixed deposit, if any other scheme would fetch better returns and also would provide regular and permanent income.
Heard both sides. A careful reading of the above decisions disclosed that the Supreme Court and High Courts have discussed the proposition
of law in respect of who is the legal representative in the exact manner. It 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. There is a finding to the effect that 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"".
The point that has now arisen for consideration is whether the respondents/claimants are the proper legal representatives and they are the
proper dependents to claim compensation on the death of their father who has supported them very much till his death. I have considered this point
in view of the various rulings cited above and also, the question of negligence and the quantum fixed by the Tribunal on a proper reasoning. Let me
now proceed to look into all the three questions that have arisen before me for consideration.
It is seen from the deposition of P.W.1 that the second respondent herein is his younger brother aged 22 years at the time of accident and that
his father was standing in the Moolanur Vadugapatti Division on the northern side and the vehicle of the first appellant herein, came in a rash and
negligent manner and dashed against his father in which his father had sustained injuries and died on the spot. His father was aged 45 years at the
time of accident. He also deposed that his mother had predeceased his father and his father was managing the family, and at the time of accident,
he was 25 years of age and he was unmarried. His father was doing money transaction business and that he is presently unable to collect the
money and also milk farming and agriculture have been affected. It is clear from the First Information Report that the aforesaid accident was not
caused due to the mechanical fault in the vehicle and it was caused only due to the careless and negligent act of the first appellant herein. In the
copy of the judgment of the Criminal Court, which was marked as Ex.P.5, it is found that the first respondent / first appellant herein, who drove the
vehicle, had admitted the offence committed and paid the fine in the Judicial Magistrate Court. No witness or exhibit is filed on behalf of the
appellants to deny the evidence deposed to prove that the accident was not caused by the driver of the vehicle. In the absence of any contra or
other conflicting evidence, the Tribunal has concluded that the negligence is on the part of the driver. Therefore, there is no point or any clinching
evidence to disbelieve the findings and this Court is not inclined to interfere with the findings in respect of negligence fixed by the Tribunal as against
the driver of the van who drove the vehicle and caused the accident.
The next point for consideration is whether the quantum fixed by the Tribunal is proper and in accordance with the procedure established. It is
seen that at the time of accident, the deceased was 45 years and the respondents have lost their father as well as their father''s love and affection.
In case, the deceased had not died due to the accident, he would have moulded the future of the sons who are all respondents herein, in a good
manner. There is no doubt that the claimants'' father would have been supportive to the respondents in many ways if he had been alive. While
considering the fact that the respondents have lost their mother and presently, lost their father too in the accident, at the age of 25 and 22 years
respectively, and who are all bachelors, their loss cannot be compensated by way of money. In the instant case, though no documents had been
filed in the Court to establish the income of the deceased, there is no doubt that he would get at least Rs. 75/- as coolie per day even if he does an
ordinary building construction work. If he had earned Rs. 2,250/- per month as salary and spent Rs. 500/- for his personal expenses, there is no
doubt that he would have given Rs. 1,750/- for the family. Taking into consideration the age of the deceased and the claimants and also the
multiplier factor in this case, the Tribunal has rightly applied 15 multiplier taking the income of the deceased as Rs. 1,750/- after deducting Rs.
500/- for his personal expenses and arrived at the compensation as Rs. 2,62,500/- with 12% interest per annum from the date of petition till the
date of deposit.
One more issue which subsequently arises for consideration before this Court in the instant case is that, the learned Counsel for the appellant
has raised a point whether the major sons or the legal representatives of the deceased are entitled for the claim. In the light of the discussion cited
supra and in the decisions cited and discussed, I am inclined to consider that point arising for consideration before this Court. It is seen that the
claimants are aged 24 and 22 years of age at the time of accident of their father. They are unmarried. Their mother predeceased their father. They
lost their mother, father and more particularly after the death of the mother, the father had supported the two sons and he had a plan to mould the
future of the sons and that could have been now lost, due to the accident. The Supreme Court, in a similar circumstance, in a decision reported in
Custodian of Branches of Banco National Ultramarino Vs. Nalini Bai Naique, as stated supra, there was an occasion to discuss about the
dependency factor. The Supreme Court has laid down a ruling which is as follows:
Legal Representative"" as defined in CPC 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 repre sent 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. Under the
Portugees Law of Inheritance a widow acquires ""Meeira rights"" according to which she gets half share in the estate left by her deceased husband.
Such widow therefore represented the estate of her deceased husband. When in a suit against the husband of such Portugees widow and after the
death of the husband, the name of his widow is brought on record within time, the abatement of suit would be liable to be set aside, and the suit
could proceed on merits notwithstanding the fact that the remaining legal representatives of the deceased husband were brought on record at a
subsequent stage. That could not render the suit defective.
It is a settled legal proposition that it is not permissible to say that no amount need be awarded towards the loss to the dependency merely
because the corpus of the agricultural land is left in tact for the dependants. When in case of death of non-cultivators who have other properties,
the properties remain in tact and still damages are awarded, there is no reason why on death of cultivators who have agricultural land, a negative
attitude should be taken. The general practice of making automatic deductions for the value of property inherited has fallen into desuetude. The
value of the accelerated receipt of property cannot, according to the Privy Council, be treated as a total or partial equivalent of the loss to the
dependency inasmuch as the said acceleration has to be set off against the loss of saving of the deceased to the family. At the other extreme, it is
equally not permissible to capitalise the income from the land by a number of years'' purchase.
In view of the above proposition, this Court is inclined to consider the question of dependency as agitated by the learned Counsel for the
appellants as if cannot be a proper ground to the facts of the present case. As it is seen from the facts, the deceased was aged 45 years and the
claimants were aged 24 and 22 years of age at the time of accident of their father. In case the deceased had not died due to the accident, he would
have moulded the future of his children, namely, the appellants / claimants. No doubt the claimants'' father would have been supportive to the
claimants in many ways if he had been alive. Considering the facts and circumstances, the appellants herein have lost their mother who
predeceased their father. Now, they have lost their father also in the accident and their loss cannot be compensated by way of money and as the
support of the father was very much alive till the accident. Considering the overall circumstances, the question regarding the maintainability of the
dependency, raised by the appellants, has no merits in this case and therefore, that point is answered against the appellants herein.
At last, the learned Counsel for the appellants had brought one more factor to the notice of this Court that the Tribunal has not considered the
conventional damages awarded in case of the fatal accident in determining the quantum of compensation. Since there is no appeal on the side of the
claimants and the Tribunal has taken the overall consideration of the determination of the compensation including all aspects together, I am not
inclined to consider any separate amount for the conventional damages and considering the overall factor, the Tribunal has awarded the
compensation at Rs. 2,62,500/- with 12% interest per annum, which is found to be reasonable.
As far as the rate of interest is concerned, 12% was the prevailing rate of interest at the relevant point of time. So, there is no need to alter the rate
of interest.
In the foregoing reasons, I have no other option except to confirm the award of the Tribunal with the same rate of interest and the appeal
preferred by the appellants are devoid of merits and deserves no consideration. Accordingly the Civil Miscellaneous Appeal is dismissed with no
order as to costs. Consequently, C.M.P. No. 896 of 1998 is dismissed.