United India Insurance Co. Ltd. vs Asha Rani and Others

Hasnain Massodi, J.—Pardeep Kumar alias Rakesh Kumar on 16.7.2005, fell victim to a vehicular accident when vehicle bearing

registration No. JK 02-4814 driven by one Ajit Singh, s/o S. Jaspal Singh, r/o Upper Gadi Garh, hit his scooter at Chadwal, Jammu. Pardeep

Kumar breathed his last at the place of accident. The dependants of the deceased on 22.3.2006 laid a claim petition before Motor Accidents

Claims Tribunal, Kathua. The claim petition was registered as No. 300/2006. The respondents in the claim petition including insurance company

with which the offending vehicle was insured were summoned. The respondent No. 4, i.e., the present appellant contested the claim petition inter

alia on the grounds that as the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident, the owner

of the vehicle was guilty of breach of insurance contract and the insurance company was not liable to indemnify the owner.

The Tribunal on perusal of the pleadings framed following issues:

(i) Whether the accident took place on 16.7.2005 at NHW Chadwal Tehsil Hiranagar due to rash and negligent driving by driver of the offending

vehicle in which deceased Pardeep Kumar died?

OPP

(ii) In case the issue No. 1 is proved in the affirmative, whether the petitioners are entitled to compensation and from whom?

OPP

(iii) Whether the driver of the offending vehicle was not holding a valid driving licence at the time of accident?

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(iv) Relief.

The respondents-claimants examined 3 witnesses, namely, Naresh Kumar, Suresh Kumar and Varinder Kumar. The respondents-claimants,

Asha Rani, widow of deceased and Rani Devi, mother of the deceased, also crossed the witness-box. The respondents examined Ajit Singh,

driver of the offending vehicle.

The Tribunal on going through the evidence brought on the file held the accident that claimed life of Pardeep Kumar, to have occurred due to

rash and negligent driving of vehicle No. JK 02-4814 by its driver Ajit Singh and held the petitioners entitled to compensation from the appellant

insurance company with which offending vehicle was insured. The appellant insurance company was held to have failed to prove that the driver of

the offending vehicle was not holding a valid and effective driving licence at the time of accident. The Tribunal, accordingly, proceeded to assess

compensation, applying a multiplier of 15 and taking monthly income of the deceased as Rs. 4,500 worked out Rs. 5,65,000 as compensation

payable to the respondents-claimants. Out of the assessed amount Rs. 10,000 was directed to be paid to Asha Rani, widow of the deceased, on

account of loss of consortium. The compensation assessed was directed to be paid to the respondents-claimants--widow, father and mother of the

deceased--in equal shares except that widow was to get Rs. 10,000 on account of loss of consortium over and above the share apportioned in

favour of parents of the deceased. The widow was, therefore, to get an amount of Rs. 1,95,000 from the insurance company.

The award passed by the Tribunal on 2.1.2010 is questioned in the present civil first miscellaneous appeal primarily on the ground that as the

widow of the deceased, respondent No. 1 herein, remarried during pendency of the claim petition, the Claims Tribunal ought not to have awarded

any compensation to the widow as she ceased to be dependent upon the deceased. It is urged that the Tribunal has passed award without

appreciating the case in right perspective and the award is against the law and facts. It is pleaded that a widow who remarries after death of her

husband in a vehicular accident can at the most claim compensation from the date of her husband's death till she marries and her loss of

dependency is to be worked out accordingly. It is insisted that after remarriage, the widow becomes dependent on her second husband and cannot

claim to have suffered any economic loss due to demise of her first husband.

I have gone through the memorandum of appeal and have heard the learned counsel for the parties.

It is pertinent to point out that appellant did not raise the plea of remarriage of respondent No. 1 during pendency of the claim petition. Once

Rani Devi, mother of the deceased, stepped into the witness-box and deposed that Asha Rani, widow of her deceased son, had remarried, the

appellant on acquiring knowledge about the remarriage of respondent No. 1, Asha Rani, ought to have amended its reply to the claim petition to

raise the plea that the respondent No. 1, Asha Rani, after her remarriage had ceased to be representative of her deceased husband and was no

more competent to maintain the claim application and get the compensation. In that event, the Tribunal would have been in a position to frame an

issue, and Asha Rani would have an opportunity to adduce evidence to prove that she had not remarried, or that her marriage was not to affect her

entitlement. The plea as regards remarriage of Asha Rani is for the first time raised in this appeal. However, let us deal with the plea

notwithstanding failure of the appellant to raise it before the Tribunal and proceed on the assumption that such failure does not have any negative

fallout on the proposition put forward by the appellant insurance company.

Learned counsel for the appellant insists that a widow on her remarriage ceases to be a representative of her deceased husband and as in terms

of section 166 of the Motor Vehicles Act, 1988, only a legal representative is competent to maintain a claim petition, the widow on her remarriage

loses the status of legal representative of her deceased husband and can neither claim nor be awarded any compensation on account of death of

her husband.

Mr. Chauhan, to buttress his argument, seeks to draw support from law laid down in United India Insurance Company Limited Vs. Eda

Anjanamma and Others, ; Rukmani Bai and Others Vs. Prahlad Singh and Another, ; Anju Mukhi and Another Vs. Satish Kumar Bhatia and

Others, ; The Oriental Fire and General Insurance Company Limited Vs. Shrimati Chandrawati and Others ; State of Orissa Vs. Smt. Archana

Nayak and Others, and Manjula Devi Bhuta and Another Vs. Manjusri Saha and Others, .

The case set up and the arguments advanced by the learned counsel for the appellant are to be appreciated in the background of purpose and

object of Chapter XII of the Motor Vehicles Act. The Motor Vehicles Act is a social welfare legislation and its aim and object is not to be

defeated because of procedural technicalities.

The Hon'ble Apex Court in Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, , approving

the view that nephew of the deceased who died on account of motor vehicle accident was competent to file a claim petition, held that the

expression 'legal representative' should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased.

The court observed:

(11) We feel that the view taken by 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 realization of compensation.

The expression 'legal representative' in section 166 of Motor Vehicles Act, having regard to the object of the Act, is not to be given the same

meaning as it may find in other enactments dealing with the rights of widows before and after remarriage like Jammu and Kashmir Hindu Marriage

Act, 1980, The Jammu and Kashmir Hindu Adaptation Maintenance Act, 1960, The Jammu and Kashmir Hindu Succession Act, 1966, as is

sought to be projected by the appellant. A widow in our society, we are well aware, is not the same person as she is when her husband is alive and

not snatched by cruel hands of death. She does not only lose her status and prestige in the family, clan and society, but is victimised, harassed,

tormented, marginalized, avoided and exposed to innumerable prejudices and cruel practices. Her remarriage in most of the cases, as against her

first marriage, is out of compulsion rather than love and longing. She at times has to make a big compromise and may in most of the cases be

compelled to tie a marital knot second time in life to get two square meals, a few clothes and shelter, if not love, affection, respect and dignity. It

would be highly preposterous to say that a widow on her remarriage is compensated and does not any more suffer any loss, with which she was

visited, when she lost her husband. The widow while losing her husband, loses almost everything in her life that can never be compensated by her

remarriage. The widow represents her deceased husband all the times even after her remarriage till she breathes her last. It would be highly unjust

and unfair to say that the widow on her remarriage loses the right to be compensated for the loss she suffered because of death of her husband or

that the compensation should be restricted to the period between her husband's death and her remarriage. Holding so would amount to

erroneously presuming that her remarriage fully compensated the widow for the loss she suffered because of death of her husband. In Seema Malik

and Others Vs. Union of India (UOI), , this court after scanning the case-law on the subject observed:

(6) ...On remarriage of a widow the social stigma which stood imposed earlier is not completely washed of. Some negative factors continue to

exist and are taken note of in the case of remarriage of a widow. She may on remarriage not enjoy the same status and frame of mind.

Readjustment when widow has an infant creates other social problems and she has to provide some security to the child or children from the first

husband. This factor has to be taken note of. As such a widow on remarriage cannot be deprived of the compensation.

The law on the subject was reiterated in Smt. Vimla Vs. Dinesh Kumar Sharma and Others, , as under:

It is understandable that life of a widow, after the death of her husband, in the family cripples abnormally. Generally, she is subjected to all kinds of

indignities, compelling her to leave and fall back on parents where she is taken to be an eyesore by the families of her brothers, particularly when

parents are not alive and even if they are alive they can hardly look after her due to old age. With this background it is considered necessary that a

widow marries as early as possible. Therefore, in case she has done so, her claim for compensation cannot be defeated by remarriage. It would be

highly improper to compel her to lead a life of a widow till she receives the compensation.

There is one more aspect of the matter. It is well-known fact that in our society, the life of a widow becomes miserable. If she has no financial

support she has to survive on the mercy of other relations which expose her to any kind of exploitation or to adopt immoral ways for her survival.

Instead of doing that, if she remarries then that can give her a way to lead her life in more respectable manner. This option is legally permissible

and, therefore, should be encouraged and the widow should not be punished by depriving her from compensation for the death of her husband.

The case-law relied upon by the learned counsel for the appellant has been either overruled, dissented from or does not otherwise advance the

appellant's case.

From the above discussion, the legal proposition that emerges is that a widow can, even after her remarriage, file and maintain a claim petition

under the Motor Vehicles Act, 1988 and would be entitled to get compensation from the owner of the offending vehicle or the insurance company

with which the offending vehicle was insured, on account of death of her husband in a vehicular accident. For the reasons discussed above, the

appeal is bereft of any merit and is, accordingly, dismissed. The compensation amount, if any, deposited with the Registry be released in favour of

the respondents-claimants in accordance with rules.