Gian Singh and Others vs Ram Krishan Kohli and Others

S.K. Gupta, J.—We have heard the learned counsel the appellants, Mr. Surinder Singh.

By means of this reference, the learned Single Judge, instead of formulating a question of law in terms of Rule 18 of the Jammu & Kashmir High

Court Rules, (now Rule 33 of the Jammu and Kashmir High Court Rules, 1998), for authoritative pronouncement to a Division Bench, reflected

the matter in the penultimate para of the reference dated 19-5-1995, which reads as under :

In view of the said judgment of the Supreme Court, I am of opinion that every case where several legal representatives claim compensation, it

should be incumbent upon the Tribunal to decide the claim of each claimant separately. In this case, the Tribunal has only decided the entitlement of

parents of the deceased, and he has not at all decided the claim of sisters and brother of the deceased. Since this question will govern many cases

and the decision In this case will be of much public importance, I think it Just and proper to refer this matter for authoritative pronouncement to a

Division Bench of this Court in terms of Rule 18 of the J & K High Court Rules. The file be placed before Lord Chief Justice for constitution of a

Division Bench.

The question Involved In the reference is, whether the sisters and brother of a person, who is killed in a motor vehicle accident, can claim

compensation In a proceeding instituted before the Motor Accident Claims Tribunal established under the provisions of the Motor Vehicles Act.

1939 (hereinafter referred to as Act). Before we embark on discussing the point canvassed before us, the brief facts of the case may be noticed.

On account of the negligence on the part of the driver of a Mini-Bus belonging to Ram Krishan Kohli, respondent-1, a young man, named.

Davinder Singh, aged 21/22 years, was run over by Mini-Bus No. JK-02A-6747, resulting in his untimely death. Gian Singh and Smt. Jasbir

Kour, who happened to be the parents of the deceased, Harjeet Kour and Balwinder Kour, sister and Mohinder Singh, brother of the deceased,

commenced a petition before the Motor Accident Claims Tribunal, alleging that they were heirs and legal representatives of the deceased. It was

also pleaded before the Tribunal that one of the sisters and minor school going child are handicapped and incapable of doing any job. This fact,

however, was accepted by the Tribunal, but awarded an amount of Rs.1.20,000/- in specifically deciding that the parents of the deceased are

entitled to such compensation.

Aggrieved by the award of compensation made by the Tribunal, the petitioners preferred an appeal before the learned Single Judge to impugns

its correctness. The Tribunal had considered only the age of the parents of the deceased, when there were other claimants also dependent upon the

income of the deceased and fixed the compensation. The learned single Judge when, however, found that the tribunal has decided the entitlement

of the parents of the deceased without adverting to the claim of the sisters and the brother and this question will govern many cases, made the

reference to a Division Bench for decision on such question.

The entitlement to claim compensation, arising out of an accident, has been clearly specified in Section 166(1) of the Motor Vehicles Act, 1988,

claims under this provision may be made : (a) by the person who has sustained injury; or (b) by the owner of the property: or (c) where death has

resulted from the accident, by all or any legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or

any of the legal representatives of the deceased, as the case may be. The expression ""legal representative"" has not been defined in the Motor

Vehicles Act. Section 2(11) of the CPC 1977 A.D. 1920 defines legal representative, as a person who in law represents the estate of a deceased,

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. No doubt, the above definition does not apply to a claim petition

before the tribunal, but in ordinary parlance, the said expression is understood almost in the same way in which it is defined in the Code of Civil

Procedure. A legal representative ordinarily means a person who in law, represents the estate of a deceased person or a person on whom the

estate devolves on the death of an individual. There is divergence in the opinion amongst the High Courts as regards the maintainability of claim

petition u/s 166 of the Motor Vehicles Act by persons other than the wife, husband, parents and child of the person, who dies on account of a

vehicular accident. This view, we feel, is narrow one and does not give full effect to the object with which Section 166 of the Act has been

enacted. Every legal representative, who suffers on account of the death of a person due to motor vehicle accident, should have a remedy for

realisation of compensation and that is provided by Section 166(1) of the Motor Vehicles Act. These provisions are in consonance with the

principles of Law of Torts that every injury must have a remedy to the substantive law governing such claims, continues to be the Law of Torts.

Section 166(c) of the Motor Vehicles Act enables a legal representative of the deceased to apply for compensation. The Act does not contain any

definition for the word ""legal representative"" of the deceased.

At one point of time, it was thought that Fatal Accidents Act, 1855, would overlap the provisions in the Motor Vehicles Act governing the

claims of compensation. But, however, the High Court of Gujarat after thorough survey of the case law and a detailed discussion on the subject

and the relevant provision of both the Acts, reached the conclusion in Megjibhai Khimji Vira and Another Vs. Chaturbhai Taljabhai and Others,

that the claim for compensation arising out of the use of a motor vehicle is exclusively governed by the provisions of the Motor Vehicles Act and

bears no connection to claims under Fatal Accidents Act. A distinction was drawn that Motor Vehicles Act is a special Act, whereas Fatal

Accidents Act contains only the general provision and the former will override the latter. In that case, the Court came to the conclusion that an

application made by the nephews of the deceased, who died on account of motor vehicle accident, was clearly maintainable u/s 110A of the

Motor Vehicles Act. These legal principles, however, were approved by the Apex Court in Gujarat State Road Transport Corporation,

Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, , and held as under :

We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to

the conditions of the Indian society. 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 Section 110-A to 110-F of the Act. 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 of the act 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 110B of the act amongst the legal

representatives for whose benefit an application may be filed u/s 110-A of the Act have to be done in accordance with well-known principles of

law. We should remember that in an Indian family brothers, sisters and brothers children and sometimes foster children, live together 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, 1855 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 accident. We express our approval of the decision

in Megjibhai Khimji Vira v. Chaturbhai Taljabhai AIR 1977 Guj 195 (supra) and hold that the brother of a person who dies in a motor vehicle

accident is entitled to maintain a petition u/s 110-A of the Act if he is a legal representative of the deceased.

So the substantive law governing such claims continues to be the Law of Torts. In common law the claims were entertained by Court of equity

based on civil wrongs in England. The principles followed by such equity Courts were followed almost fully by the Civil Courts in India. Therefore,

a claim for compensation can be made by a person entitled to such compensation because he has a right to do so. Right to claim compensation

based on fault is not the creation of any statute and the provisions of Motor Vehicles Act have only provided procedural rights in respect of such

claims. This was the view followed by Karnataka High Court (DB) in The General Manager, Karnataka State Road Transport Corporation,

Bangalore Vs. Peerappa Parasappa Sangolli and Others, . The corollary is that whatever a Civil Court could do in respect of claim arising under

the Law of Torts (so far as motor vehicle accidents are concerned) can now be done by the Claims Tribunal.

What would happen to a person, who is neither a legal representative of the deceased victim nor even the injured in the accident, but is entitled

to compensation due to the death of a person in a motor accident. For instance, a brother earning-bread of the family, was looking after sisters and

brother, physically handicapped and incapable of doing any job, but the earning brother died In a motor accident. Before the formation of the

Claims Tribunal, that person would have been entitled to file a claim for loss of dependency. If so, would he lose his right to get a compensation

with the establishment of the Claims tribunal ? The word ""injury mentioned in clause (a) of 5.166(1) of the Act cannot be said to be confined to

bodily injury or physical injury alone. If the word ""injury"" in that clause Is intended to be understood as bodily injury alone, the Legislature would

have used the expression ""bodily injury"" in that clause, especially when such an expression has been used in Section 165(1). The word ""injury

used in Section 166(1)(a) is for a larger import. The word ""injury defined in Black's Law Dictionary as ""any wrong or damage done to another

either to his person, rights, reputation or property"". The alternative meaning given therein is equally apposite in this context. In Narayanan

Subhakaran v. Rajamany (1995) 2 KarLJ 233 : 1996 1 AHC 1024, it was found that the word ""injury"" in Section 23 of the contract Act should

be understood as covering any wrong or damage sustained either to one's person or rights or property. The same view can meaningfully be noticed

into the field of damages in accident cases also and reference may be made to a Division Bench decision of the Bombay High Court in Abdulkadar

Ebrahim Sura and Another Vs. Kashinath Moreshwar Chandani and Others, , that the word ""injury"" in Section 1A of the Fatal Accidents Act is a

word of larger import and cannot be restricted to physical or monetary injury.

This makes the position abundantly clear that the claim can be made by any persons, who have suffered on account of accident arising out of the

use of motor vehicle and such persons would include those who lost dependency and any other kind of support as a consequence of the death of

the victim in the accident. The claim made in this case by sisters and brother falls only u/s 166(1)(a) as the said claim is based on the loss of their

dependency. We have, therefore, no, doubt in our minds that the provision of Section 166(1) is a substantive provisions, which confers a right on

all the legal representatives of the deceased victim of a tortious act to claim compensation from the wrong doer and being a special provision

dealing with accidents arising out of the use of motor vehicles.

Motor Vehicles Act is a beneficial legislation which calls for liberal and broad interpretation so that the real purpose underlying the scheme is

achieved and full effect is given to the legislative intendment. It is well settled that if while interpreting a welfare legislation any provision of the Act is

capable of two constructions,, that construction should be preferred which furthers the policy of the act and more beneficial to the class in whose

interest the law has been made. ,

In order to give full effect to the object with which the Section 166(1) of the Motor Vehicles Act had been enacted, we see no reason to

restrict the meaning to the expression ""legal representatives"" only to the wife, husband, parent and children of the deceased, since such an

interpretation would not be congenial to the interest of those, who though not legal representatives, are entitled to the compensation on account of

death of the victim of the motor accident. From the ratio of the judgment of the Apex Court and the aforesaid discussion, the conclusion which can

be made is that, u/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

person in the accident. Section 166(1)(c) relates to claim of legal representatives of the person killed in the accident in respect of the loss or

damages enured to the estate of the deceased. Following the aforesaid dictum of the Apex Court that when dependents make a claim for

compensation for the death of bread-earner, then the compensation cannot be denied to I them, even if they are brothers and sisters.

We, therefore, hold that the sisters and brother of a person, who dies in a motor vehicle accident, are entitled to maintain a petition u/s 166 of

the Act, if they are legal representatives of the deceased. The reference is answered accordingly. The record of the case shall be returned to the

Learned Single Judge to dispose of after deciding the remaining questions, if arisen therein.