Govindasamy vs Ravi, V. Rajaboopathi, United India Insurance Co. Ltd. and Oriental Insurance Company

K. Gnanaprakasam, J.—This is an appeal by the claimant.

The claimant, as an heir to the estate of Venkatachalam, who died in the motor accident, which took place on 28.5.1989, made a claim of Rs.

1,00,000/-.

In the claim petition, it is stated that the deceased is the claimant''s father''s brother''s son. But, in the evidence, the claimant had deposed that the

deceased Venkatachalam is his brother''s son and they are living as a joint family and the properties were not divided among themselves. It is also

stated that the parents of the deceased died while he was young and even thereafter, they were all living together. The respondents have denied the

relationship claimed by the claimant to the deceased and further stated that the definition of ''legal representatives'' as stated in CPC are applicable

to the Motor Vehicles Act also and the claimant is a Hindu and therefore, the Hindu Succession Act would be applicable.

The claimant, in the petition, has stated that the deceased is his father''s brother''s son and as such, he is not a Class I heir. His further claim is

that the deceased is his brother''s son and he would come under entry 7 in Class I heirs. The claimant also filed a legal heir certificate Ex.P13,

wherein the relationship of the deceased is stated as ''uncle (rpj;jg;gh)''. It is also stated, in the said certificate that the same was issued only to

receive the compensation amount. As there are contradictions between the statement made in the petition and the evidence given, the Tribunal has

held that the claimant has not proved his correct relationship to the deceased and therefore, dismissed the petition. Aggrieved by the same, this

appeal has been filed.

The learned advocate for the appellant has submitted that the claimant is the only heir of the deceased Venkatachalam, entitled to receive the

compensation. It is further submitted that in the absence of any rival claim, the Tribunal should have accepted the claim made by the appellant.

On the contrary, the learned advocate for the respondents 3 and 4, namely, the United India Insurance Company and the Oriental Insurance

Company, has submitted that the claimant having failed to prove his correct relationship to the deceased, is not entitled to the claim at all.

Now let us see, whether the claimant is entitled to receive compensation.

The claimant''s specific case is that he and the deceased were the members of the joint family and the joint family properties were also not

divided. Of course, in the petition, he has stated that the deceased is his father''s brother''s son and in the evidence, he has stated that the deceased

is his brother''s son. In the legal heir certificate, it is stated that the deceased is the ''uncle (rpj;jg;gh)'', of the claimant. Though there are 3 versions

about the relationship of the deceased to the claimant, it is nobody''s case that the claimant is not at all related to the deceased. As per the claim

made in the petition that the deceased is his father''s brother''s son and he would not fall under Class I heir of the Hindu Succession Act. In the

evidence, he has stated that the deceased is his brother''s son and if that be so, the claimant would come under entry 4 of Class II heirs. In the legal

heir certificate, the relationship of the deceased to the claimant is stated as ''uncle (rpj;jg;gh)'', . Then the claimant would come under entry 7 of

Class II heirs. It is not the case of the respondents that the claimant is not at all related to the deceased. That being so, we could safely come to the

conclusion that the deceased is related to the claimant and vice-versa. It is in evidence that on the death of Venkatachalam, there is a loss to the

estate, to which the claimant is entitled to.

Now, let us consider, who is entitled to apply for compensation, in a motor accident case. In our case, the accident took place on 28.5.1989

and therefore, the Motor Vehicle Act, 1939 is applicable. Section 110A of the Act states as follows:-

Application for compensation:- (1) An application for compensation arising out of an accident of the nature specified in sub section (1) of Section

110 may be made-

(a) by the person who has sustained the injury; or

(aa) by the owner of the property; or

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

(c) 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;

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.

Clause b and c of Section 110A of the Motor Vehicles Act (hereinafter referred to as the Act) provides that an application for compensation

may be made where death has resulted from the accident, by all or any of the legal representatives of the deceased, or 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. Proviso to Section 110A states,

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."" The expression ''legal representative"" has not been defined under the Motor Vehicles Act, 1939. But Section

2(c) of the Madras Motor Accidents Claims Tribunal Rules 1961, states that, the term ''legal representatives'' occurring in Section 110A is stated

to have the same meaning assigned to it u/s 2(11) of CPC. Section 2(11) of CPC defines ''legal representative'' as ""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 said definition, no doubt, in

terms, does not apply to a case before the Claims Tribunal, but it has to be stated that even in ordinary parlance the said expression is understood

almost in the same way in which it is defined in CPC. 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. We can also state that the term ''legal representative''

occurring in Section 110A of the Act, has wider impact than the definition of the terms contained in Section 2(11) of CPC. Clause b and c of

Section 110A of the Motor Vehicles Act, 1939 provide that all or any of the legal representative of the deceased are entitled to make an

application for compensation before the Claims Tribunal for the death of the deceased on account of a motor vehicle accident. Proviso to Section

110A of the Act gains 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. Clause b of Section 110A states, ""application for compensation may be made, ""by all or any of the legal

representatives of the deceased and Clause c of Section 110A provides that any agent duly authorised by the person injured or all or any of the

legal representatives of the deceased can make such an application. 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 110A of the Act.

Now, we have to consider, whether the claimant would fall under the category of ''legal representative'', as stated under Clause b and c of

Section 110A of the Motor Vehicles Act.

A similar question arose in the case of Perumal and others Vs. G. Ellusamy Reddiar and another (1974) ACJ 182, wherein the Division Bench

of this Court had dealt with the definition of ''legal representative'' u/s 110A of the Motor Vehicles Act, 1939 and also the definition available u/s

2(11) of CPC in extenso and u/s 111A of the Motor Accidents Claims Tribunal Rules, 1961. ""Legal representative'' shall have the meaning

assigned to it under clause (11) of Section 2 of CPC, 1908. The definition given u/s 2(11) of CPC is wide. It takes in not only administrators,

executors and heirs, but all other persons who represent the estate of the deceased. The definition also says that the terms include even persons

who intermeddle with the estate of the deceased. Then the Division Bench went on considering the definition available in Fatal Accidents Act and

also in Legal Representatives Act and opined that Section 110 to 110F of the Act (Motor Vehicles Act, 1939) being only procedural in character

and have nothing to do with the substantive rights and liabilities of parties, do not make any reference to either loss of benefit or loss to the estate

as heads on which compensation can be claimed in the case of a person whose death was caused by a motor accident. It is further held that u/s

110A of the Act, in the case of death of a person, compensation could be claimable not only for the loss to the estate but also loss of benefit to the

dependants as contemplated u/s 1A of the Fatal Accidents Act. The term ''legal representative'', therefore, should necessarily include not only

persons who represent the estate of the deceased (who can claim loss to the estate of the deceased) and the next-of-kin who are mentioned as

dependants u/s 1A of the Fatal Accidents Act, who can claim compensation for loss of benefit to themselves, whether they represent the estate of

the deceased or not. In other words it should take in all persons who can maintain an action under the Legal Representatives'' Suits Act (or u/s 2 of

the Fatal Accidents Act, as the case may be) as well as those who can maintain an action u/s 1A of the Fatal Accidents Act. That being so, one

cannot restrict the meaning of the term ''legal representative'' occurring in Section 110A of the Act as that in Section 2(11) of CPC.

In the case of Gujarat State Transport Corporation Vs. Ramanbhai Prabhatbhai and another (1987) ACJ 561, the Supreme Court considered

the term ''legal representative'' on the background of English Fatal Accidents Act, 1846 and the Indian Fatal Accidents Act, 1855 and other Acts

including the Royal Commission Report, 1978 and also relied upon the earlier decision of the Supreme Court in the case of Minu B. Mehta Vs.

Balkrishna Ramchandra Nayan, (1977) ACJ 118 SC and considered Section 110A of the Motor Vehicles Act and the definition available u/s

2(11) of CPC, 1908. There were divergent opinions among the High Courts in India, as regards the maintainability of Action u/s 110A of the Act

by persons other than the wife, husband, parent and child of the person who dies on account of a motor vehicle accident. All these cases were

considered by the High Court of Gujarat in its decision in Megjibhai Khimji Vira and Another Vs. Chaturbhai Taljabhai and Others, , wherein it

was held, ""The first set of cases are those which are referred to in paragraph 5 of the above decision which lay down that every claim application

for compensation arising out of a fatal accident would be governed by the substantive provisions in Section 1A and 2 of the 1855 Act and no

dependant of the deceased other than the wife, husband, parent or child would be entitled to commence an action for damages against the

tortfeasors. Amongst these cases are P.B. Kader and Others Vs. Thatchamma and Others, and Dewan Hari Chand Vs. Municipal Corporation of

Delhi, (1973) ACJ 87 Del. The second group of cases are those referred to in paragraph 6 of the decision of the Gujarat High Court. They are

Perumal Vs. G. Ellusamy Reddiar (1974) ACJ 182 Mad and the Vanguard Insurance Co. Ltd. Vs. Chellu Hanumantha Rao, 1975 ACJ 344 An

P. These cases lay down that while the compensation payable u/s 1A of the Fatal Accidents Act, 1855 is restricted to the relatives of the deceased

who are entitled to succeed to the estate of the deceased. The third group of cases are those referred to in paragraph 7 of the judgement of the

Gujarat High Court. They are Mohammed Habibullah Vs. K. Seethammal, 1966 ACJ 349 Mad, Veena Kumari Kohili Vs. Punjab Roadways,

1967 ACJ 297 (P&H) and Ishwar Devi Malik Vs. Union of India, 1968 ACJ 141 Del , which take the view 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 110F 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. Having considered all the three

sets of decisions referred to above, Ahmadi, J. {as he then was} who wrote the judgement in Megjibhai Khimji Vira Vs. Chaturbhai Taljabhai,

1977 ACJ 253 Guj, came to the conclusion that an application made by the nephews of the deceased who died on account of a motor vehicle

accident was clearly maintainable u/s 110A of the Act. After referring to these cases, the Supreme Court had accepted the view that was taken by

the Gujarat High Court, which 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 Sections 110A to 110F of the Act. These provisions are in consonance with the principles

of Law of Torts that every injury must have a remedy.

As we have already seen that the claimant and the deceased were the members of the joint family and there is a loss to the estate on the death

of Venkatachalam, we are of the opinion that the claimant is entitled for compensation. The tribunal has not arrived at any amount of compensation

of payable to the claimant, in view of its finding that the claimant is not related to the deceased. But, now as we have arrived at the conclusion that

the claimant is related to the deceased, he is entitled to the claim on the ground of loss caused to the estate. Taking into consideration over all

aspects of the case and as there is no material that the claimant is not at all related to the deceased, the contradictions pointed out by the

respondents could be brushed aside and in order to meet the ends of justice, we feel a sum of Rs. 50,000/- could be awarded towards loss of

estate on the death of the deceased Venkatachalam.

In the result, the civil miscellaneous appeal is allowed and the award and decree passed by the Tribunal is set aside. The appellant is entitled

for a compensation of Rs. 50,000/-, which shall carry interest 9% per annum from the date of the petition till the date of deposit/realisation and the

said amount shall be paid by the 4th respondent herein. No costs.