Pushpam vs Nirmala and Another

K. Venkataswami, J.—This civil revision petition is directed against an order dated 10.2.1988 passed by the Motor Accidents Claims

Tribunal declining to entertain I.A No. 1 of 1987 in M.C.O.P. No. 110 of 1985, on the file of the court of Subordinate Judge, Tirunelveli. The said

LA. was one for bringing on record the petitioner as second petitioner in the M.C.O.P. No. 110 of 1985 in view of the death of the first petitioner.

The learned Subordinate Judge held:

Counter filed. Heard. Married sister is not a dependant to the injured who is since dead. Hence petition is dismissed.

Against the above order, the present civil revision petition is filed.

Mr. Peppin Fernando, learned counsel for the petitioner, submitted that the view taken by the court below is contrary to the view of this court in

Thailammai v. A.V. Mallayya Pillai 1981 ACJ 185 , as well as the ratio laid down by the Supreme Court in Gujarat State Road Trans.

Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 . According to the learned counsel, the old view that dependants alone can come on

record in the place of deceased or injured persons in motor accidents is no longer good law in view of the above-mentioned Supreme Court

judgment. At any rate, according to the learned counsel for the petitioner, the petitioner will be entitled to the amount spent by the deceased

towards hospital expenses and also the expenses connected therewith representing the estate of the deceased.

Mrs. Bhagirathi Narayanan, learned counsel appearing for the 2nd respondent insurance company, submitted that a perusal of the affidavit filed

in support of the application will clearly show that the petitioner was not at all benefited during the lifetime of the deceased brother and there is

nothing to show that the deceased brother gave anything to the petitioner during his lifetime. Therefore, even according to the judgment of the

Supreme Court (which was with reference to a death in a motor accident), the petitioner is not entitled to come on record as second petitioner to

pursue the claim petition. The learned counsel also pointed out that the present case is one of injury and there is no evidence that the death pending

disposal of the M.C.O.P. was due to the injury sustained in the accident.

I have considered the rival submissions. It is common ground that the first petitioner sustained injury in the accident that took place on

31.3.1984 at about 1.30 a.m. at Arasankulam South off Arasankulam on the Kayathar-Tirunelveli Main Road.

The deceased first petitioner filed M.C.O.P. No. 110 of 1985, on the file of the Motor Accidents Claims Tribunal (District Judge), Tirunelveli,

claiming a sum of Rs. 20,000/- towards compensation for the injuries sustained by him. It is also common ground that pending disposal of the said

M.C.O.P., he died, but not due to the injuries sustained in the accident in question. After the death, the petitioner, as the sister of the deceased first

petitioner, filed an application to come on record as second petitioner and to continue the proceedings. The court below dismissed the application.

In more or less identical circumstances, V. Ramaswami, J., as he then was, in Thailammai v. A. V. Mallayya Pillai 1981 ACJ 185 , after noticing a

Division Bench judgment of this court in C.P. Kandaswamy v. Mariappa Stores 1974 ACJ 362 , held that:

... by introducing Section 110-A in the Motor Vehicles Act, the Parliament intended not to restrict the statutory right to claim damages to the

injured alone. In the case of claims arising out of motor accidents, Clause (b) provides that the cause of action would survive to the legal

representatives where death has resulted from the accident. This was an exception to the general principle ''actio personalis moritur cum persona''.

It is true there is a distinction between case of death resulting from the accident and a case of other personal injuries not causing the death of the

party, i.e., the party dying subsequently during the pendency of the proceedings not due to the accident. But the Motor Vehicles Act does not, in

my opinion, make any distinction so far as the right to claim damages. The claims in all these cases are no statutory rights. Therefore, there appears

to be no reason to restrict the right to the injured alone.

The learned Judge further distinguished the Division Bench case in C.P. Kandaswamy v. Mariappa Stores 1974 ACJ 362, on facts. The learned

Judge ultimately held, as for the question of recovering the actual expenses incurred by the deceased, I have no doubt that the claim will survive

since that amount if had not been spent might have been available as the estate of the deceased to be succeeded by his legal representatives. In

Gujarat State Road Trans. Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 , the Supreme Court has elaborately considered the expression

''legal representatives'' in Section 110-A of the Act. After noticing the divergent views of the various High Courts, the Supreme Court has held as

follows:

Clauses (b) and (c) of Sub-section (1) of Section 110-A of the Act provide that an application for compensation arising out of an accident 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 all or

any of the legal representatives of the deceased. The proviso to Sub-section (1) of Section 110-A provides 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.

The expression ''legal representative'' has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 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 in sued in a representative character the person on whom the estate devolves on the death of the party so

suing or sued. The above 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 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. Clause (b) of Sub-section (1) of Section 110-A of the Act authorises all or any of the legal representatives of the deceased

to make an application for compensation before the Claims Tribunal for the death of the deceased on account of a motor vehicle accident and

Clause (c) of that sub-section authorises any agent duly authorised by all or any of the legal representatives of the deceased to make it. The

proviso to Sub-section (1) of Section 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

person 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 1-A 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 person 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 third paragraph of Section 1-A 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 provisions of the Fatal Accidents Act, 1855 insofar as motor vehicle accidents are

concerned. These provisions are not merely procedural provisions. They substantively affect the rights of the parties. As the right of action created

by the Fatal Accidents Act, 1855 was ''new in its species, new in its quality, new in its principles, in 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.

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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 Sections 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 Accidents Claims Tribunal to determine the

compensation which appears to it to be just as provided in Section 110-B of the Act and 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 110-B 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 bread-winner 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 vehicle accidents. We express our approval of the decision

in Megjibhai Khimji Vira and Another Vs. Chaturbhai Taljabhai and Others, 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.

In the light of the principles laid down in the above two judgments, I am of the view that the decisions cited by the learned counsel for the first

respondent, namely, Videowala v. Union of India, (l9S6) II MLJ 345 and C.P. Kandaswamy v. Mariappa Stores 1974 ACJ 362 , cannot be

pressed into service. I am further of the view that the question of bringing on record or coming on record as legal representatives and the further

question whether they are entitled to compensation on the facts and circumstances of the case are two different issues. Merely because they are

brought on record, that does not automatically entitle them to get compensation. In the light of the wider meaning given to the expression ''legal

representative'' by the Supreme Court, though in a case of death in a motor accident, the order of the court below cannot be sustained. Therefore,

I hold that the petitioner is entitled to continue the proceedings and it is for the court below to decide whether the petitioner is entitled to

compensation at all and if so, how much in the light of the principles laid down in Thailammai v. A.V. Mallayya Pillai 1981 ACJ 185 and other

cases.

In the result, the civil revision petition is allowed. There will be no order as to costs.