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Judgment
S. Manikumar, J.—Aggrieved by the award dated 17-9-2008 made in M. A. C. T. O. P. No. 41 of 2006 on the file of the Motor
Accidents Claims Tribunal, (Subordinate Court), Ranipet, the Appellant-Transport Corporation preferred this appeal.
Heard Mr. N. Anand, learned Counsel appearing for the Appellant and Mr. V. Jaggannathan, learned Counsel for the Respondents.
Brief facts of the case are as follows: On 24-12-2005 about 4.30 p.m., when the deceased after loading the gunny bags, was trying to get down
from a bus bearing Registration No. TN 32 N 0672, owned by the Appellant-Transport Corporation, after loading the gunny bags, the driver of
the bus suddenly moved the bus and due to which, the deceased fell down, the back wheel ran over his hip and he was crushed to death. Legal
representatives of the deceased have preferred a claim for Rs. 4,00,000/-.
The Transport Corporation resisted the claim application They denied the negligence of the driver and disputed the entitlement of the claimants
for compensation on the ground that they are not dependants.
Before the Tribunal, the wife of the deceased was examined as P. W. 1 and an eye-witness was, examined as P. W. 2. Ex. P-1 - First
Information Report, dated 24-12-2005, Ex. P-2 - Post-mortem certificate, dated 24-12-2005, Ex.P-3 - Inspection report, 25-12-2005 and
Ex.P-4 - Charge-sheet, dated 31-1-2006 filed against the driver of the bus and Ex. P-5 - Legal Heir Certificate were marked on the side of the
Respondents/claimants. Driver of the bus was examined as RW-1 and no documentary evidence was let in on behalf of the Appellant-Transport
Corporation.
The Tribunal, on evaluation of pleadings and evidence, found that the driver of the bus owned by the Appellant-Transport Corporation was
responsible for the accident and awarded Rs. 3,27,000/- as compensation with interest at the rate of 7.5% per annum from the date of claim till the
date of realisation.
Assailing the correctness of the award, learned Counsel for the Appellant-Transport Corporation contended that the Tribunal has erred in
relying on the evidence of the claimants and fixed the negligence on the driver of the Transport Corporation. He further submitted that the Tribunal
has failed to note down that when the deceased got down from the bus, he lost his balance, fell down and due to which, he sustained injuries. He
also submitted that the Tribunal ought to have given credence to the evidence of RW-1, driver.
On the quantum of compensation, learned Counsel for the Appellant submitted that the Tribunal has erred in determing the monthly income of
the deceased at Rs. 3,000/- and consequently, the computation of dependency compensation, is arbitrary. He further submitted that in the absence
of any proof of dependency, the Tribunal ought not to have awarded compensation to the married sisters and other claimants.
Per contra, learned Counsel for the Respondents/claimants submitted that the deceased was engaged as a coolie at the time of accident and the
Tribunal, after consideration of oral and documentary evidence, let in by both parties, has properly fixed the negligence on the driver of the bus
owned by the Appellant-Transport Corporation and the said finding cannot be termed as perverse.
Learned Counsel for the Respondents/claimants submitted that there is no illegality in determination of the monthly income of the deceased for
computing the dependency compensation. According to him, there is no prohibition under the Motor Vehicles Act for the Legal Representatives to
maintain a claim petition and, therefore, the compensation awarded to the married sisters, does not require any interference. In this context, he
relied on the decisions made in Vidya Dhar Dubey and Others Vs. U.P. State Road Trans. Corpn., and New India Assurance Co. Ltd. Vs.
Ashwin Vrajlal Rajgor, Newphew of Late Kantilal D. Rajgor, .
To prove the manner of accident, P.W.-1, wife of the deceased has deposed that on the date of accident, while the deceased was loading the
gunny bags was trying to get down from the bus, the driver of the bus, without noticing him, suddenly moved the bus, due to which, he fell down
and the back wheel of the bus ran over his hip and that he was crushed to death. PW-2, who is said to be an eye-witness has confirmed the place
of accident. In addition to that, he has deposed that when he was standing in a Tea shop near the bus stand, the driver of the vehicle has moved the
bus, before the deceased could get down from the bus and that there was no negligence on the part of the deceased. Ex. P1 - FIR has been
lodged against the driver of the bus. The oral testimony of PW-1 is supported by PW-2, ah eye-witness and corroborated by Ex. P1-FIR.
Per contra, it is the evidence of RW-1, driver of the bus that the deceased, without informing the crew of the bus, attempted to get down from
the moving bus, fell down and sustained injuries. The accident has occurred in Kasam Bus Stop. Therefore, there is every possibility that in the bus
stand, the deceased would have loaded the gunny bags in the bus and fallen down due to sudden movement. If the deceased had just fallen down
from the top of the bus, he would have certainly sustained injuries, but unless the vehicle is on the move, he would have not been crushed to death.
Perusal of the impugned award shows that on investigation, the police has laid a charge-sheet against the driver of the Transport Corporation.
While arriving at a conclusion that the accident had occurred purely on the fault of the driver of the bus, RW-1, the Tribunal has observed that the
version of the claimants is proved and except the oral testimony of RW-1, there is no corroboration. It is well settled in catena of decisions, that
preponderance of probability is the test in matters relating to claim petitions. The finding recorded by the Tribunal, on the evaluation of the evidence
let in by both parties, cannot be said to be perverse and, therefore, it is sustained.
Though the claimants have not produced any document to prove the engagement of the deceased as a coolie, having regard to the age
determined on the basis of an entry in Ex. P-2 - Post-mortem Certificate, the Tribunal has presumed that even if the deceased was engaged as a
coolie, he would have earned at least Rs. 3,000/- per month and contributed 1/3rd of his income to the family members. The mere fact that the
accident had occurred when he was loading gunny bags, itself shows that he was a coolie. No further evidence is required to prove his avocation.
It is well settled that persons, who are engaged in unskilled jobs or artisans, small traders, may not have any documentary proof to prove their
avocation or employment. This Court also fails to understand as to how documentary proof can be expected from a coolie in a bus stop. There are
no registered coolies in bus stand unlike the porters in Railway Stations. Though it was claimed that the deceased earned Rs. 4,500/-per month,
the Tribunal has fixed it as Rs. 3,000/- only and by applying a proper multiplier, has arrived at the dependency compensation of Rs. 3,12,000/-.
There is no manifest illegality in determining the monthly income.
In Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, , the Gujarat High Court held that all the
Legal heirs and the Legal Representatives of the deceased could maintain a claim petition u/s 110-A (now u/s 166(1)) and awarded compensation
to the nephews of the deceased. Considering the'' divergence of opinion expressed by various High Courts, as regards the maintainability of the
claim petition u/s 110-A (now u/s 166(1)), by persons other than wife, husband, parents and child of a person, who dies on account of the Motor
Vehicles Accident, the Supreme Court at Paragraph 10, 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 jointed 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 is 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
persons for whose benefit such application can be made are thus indicated in Section 110-A of the Act.
Interpreting Section 110-A (now amended as Section 166(1)), vis-a-vis, a corresponding provision in the Fatal Accidents Act, 1855, the Apex
Court further held that:
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 pecies, 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.
While confirming the decision of Gujarat High Court in Megjibhai Khimji Vira and Another Vs. Chaturbhai Taljabhai and Others, , the Supreme
Court at Paragraph 12, held that:
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 Vehicles 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 vehicles accidents.
In Vidya Dhar Dubey and Others Vs. U.P. State Road Trans. Corpn., , the Allahabad High Court considered a case as to whether the claim
for compensation for the death in motor accidents filed by the claimants, who are dependants, but not the legal heirs of the deceased, such as
parents, wife and son, could be entertained. Following the decision reported in Gujarat State Road Transport Corporation v. Ramanbhai
Prabhatbhai, reported in 1987 ACJ 561: (AIR 1989 SC 1690) (SC), the Allahabad High Court held that the emphasis under the Motor Vehicles
Act is dependency and that near and dear, including the brother''s children can be dependants.
In Oriental Insurance Company Ltd. Vs. Naresh Chandra Agrawal and others, , the parents of the deceased were not alive and, therefore, the
brother of the deceased in the capacity of legal representative, preferred a claim. The award passed by the Tribunal, following th Gujarat State
Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, , was confirmed by the Allahabad High Court, holding that
the Legal Representatives including the brother of the deceased is entitled to get compensation.
In Govindasamy Vs. Ravi, V. Rajaboopathi, United India Insurance Co. Ltd. and Oriental Insurance Company, , a Division Bench of this
Court held that the deceased father''s younger brother is entitled to compensation, as he was also a legal representative as per the Hindu
Succession Act.
In Kishan Lal and Others Vs. Bharosi Lal and Others, , the deceased was the elder brother of claimant Appellant Nos. 1 and 4 and was the
brother-in-law of Appellant Nos. 2 and 5 and father of Appellant No. 3 before the High Court. The deceased was unmarried and he had adopted
a son, Appellant No. 3. The maintainability of the claim petition, on behalf of brothers, adopted son and other relatives, was one of the issues
before the Tribunal. Without giving any opportunity to the parties, the Tribunal held that inasmuch as the deceased was an unmarried person, the
applicant Nos. 1, 2, 4 and 5 were not entitled to maintain the claim petition and that they were not the dependants. As no document was filed to
prove adoption, the claim of the Appellant No. 3 was also rejected. Thus, in toto, the Tribunal dismissed the claim petition. After referring to
Section 166(1)(c) of the Motor Vehicles Act, which provides that an application for compensation arising out of the accident of the nature
specified in Sub-section (1) of Section 165, can be made by Hon''ble'' Mr. Justice J.S. Verma (as he than was), has opined as follows:
I find merit in the submission of the learned, Counsel for the Appellants that if the contrary view is taken, in the event of death of a person in
accident who happens to be an unmarried or whose parents are not living, it shall amount to as if no compensation can be claimed in regard to the
death of such persons and such compensation will lead to such an unpleasant situation that the defaulting negligent driver will escape the liability for
any such accident for the purpose of compensation, I fully agree with learned Counsel for the Appellants in this regard and specially when in the
present case, application for compensation had also been filed including an adopted son, adoption of which could only be proved by leading
evidence as per law.
So saying, the order of the Tribunal, dismissing the claim petition, was set aside and that the matter was remitted back to the Tribunal, to proceed
with the claim petition on merits.
In Managing Director, K. S. R. T. C. v. Venkataramappa K. S., reported in III (2003) ACC 457: (AIR 2002 Kant 298), (DB), the deceased
was an agricultural labourer and there were no Class-I heirs. The claim for compensation was made by the married sisters and brother, who,
according to the Respondents, were not dependents, but living together. Before the Tribunal, an objection was raised by the Transport
Corporation that the claimants were not dependants on the deceased and, therefore, they are not entitled to compensation. However, the Tribunal,
computed the dependency compensation, in addition to the compensation awarded under the conventional damages. Aggrieved by the same, the
State Transport Corporation preferred an appeal to the High Court, reiterating the said averment. The High Court has framed the following
questions for consideration:
(1) Whether the brothers and sisters of the deceased can maintain a claim petition even though they were not depending upon the income of the
deceased for their maintenance?
(2) Whether the compensation awarded by the Tribunal is on the excessive side?
Following the judgment in Supreme Court in Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and
Another, and taking note of Section 8 of the Hindu Succession Act, which states that when a male Hindu dies intestate, his property has to be
devolved according to the provision of Section 8: i.e., (a) firstly, upon the heirs, being the relatives specified in Class-I of the Schedule; and (b)
secondly, if there is no heir of Class I then upon the heirs, being the relatives specified in Class-II of the Schedule, the Division Bench of the
Karnataka High Court, held that the claimants, viz., brothers and sisters, who had fallen under Class-II heirs, as per Hindu Succession Act, would
be entitled to maintain a claim.
In New India Assurance Co. Ltd. Vs. Ashwin Vrajlal Rajgor, Newphew of Late Kantilal D. Rajgor, a Division Bench of Gujarat High Court
considered the entitlement of the brother''s son and brother''s wife (sister-in-law) of the deceased, similar to that of the present case, for
compensation. Following the judgment in Megjibhai Khimji Vira and Another Vs. Chaturbhai Taljabhai and Others, , wherein, a Division Bench
has held that the claim for compensation arising out of use of motor vehicle can be maintained by brothers and nephews, who are the legal heirs
and also of the judgment of the Supreme Court in Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and
Another, , another Division Bench of the Gujarat High Court in Ashwin Vrajlal Rajgor''s case: ( AIR 2005 (NOC) 483) held that in the absence of
Class-I legal representatives to represent the estate of the deceased, a brother''s son, a Class-II heir and the brother''s wife are entitled to claim
compensation for the death of the deceased. The Division Bench has also taken note of the line of succession, as provided under the Hindu
Succession Act, 1956 and held that the Appellants therein were entitled to compensation.
Insofar as the contention that the claimants are not dependents of the deceased, this Court is of the considered view of this Court that when a
claim petition is made by a married son or daughter, or in the absence of any other Class-I heir and if the claimants adduce evidence that they are
the legal representatives and that the deceased during his lifetime, had contributed a portion of his income to them and if the said contention is
disputed, it is the burden of the objector to lead strong rebuttal evidence to dislodge the claim of dependency. If the contention of contribution by
the deceased to the legal representatives is hot rebutted by any acceptable evidence, the inevitable conclusion of the Tribunal should be in favour of
the claimants. In view of the judgments and for the reasons stated supra, the award made in favour of the married sisters and others, cannot be said
to be without any legal principles and this Court is not inclined to interfere with the decision of the Tribunal.
For the reasons stated supra, this Court is of the view that no valid grounds have been made out, to interfere with the award of the Tribunal.
Accordingly, the award is confirmed and in the result, the Civil Miscellaneous Appeal is dismissed. No costs.