Manjuri Bera Vs. The Oriental Insurance Company Ltd.and Anr.  Insc 345 (30
Dr. ARIJIT PASAYAT
CIVIL APPEAL NO. 1702 OF 2007 (Arising out of SLP (C) No.14943 of 2004) Dr.
ARIJIT PASAYAT, J.
An interesting question is involved in this appeal. By the impugned judgment
the Calcutta High Court held that though the appellant, a married daughter of
Bata Krishna Mondal (hereinafter referred to as the 'deceased') could maintain
a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988 (in
short the 'Act') she was not entitled to any compensation as she was not
dependant upon the deceased.
Factual position is undisputed and needs a brief reference.
On 11.5.1998 deceased lost his life in a vehicular accident and the
offending vehicle, a Mini Truck registration No.WB-29/0185 belonged to
respondent No.2. As the deceased had no other legal heir, a claim petition was
lodged claiming compensation. Respondent No.1 (hereinafter referred to as the
'insurer') with whom the offending vehicle was the subject- matter of insurance
filed a written statement taking the stand that since the claimant was not
dependant upon the deceased, there was no question of any compensation being
paid. The Motor Accident Claims Tribunal, Midnapore at Tamluk, District
Midnapore (in short the 'Tribunal') dismissed the claim petition accepting the
stand of the insurer.
An appeal was filed before the Calcutta High Court questioning the
correctness of the Tribunal's view. The High Court by the impugned judgment
held that the appeal was without merit and dismissed the same. It was held that
though a married daughter can be covered by the expression "legal
representative" appearing in Section 166 of the Act, she was not entitled
to any compensation unless he or she was dependant on the deceased. The
expression '"legal representative" has not been defined either in the
Act or the West Bengal Motor Vehicles Rules, 1989 (in short the 'Rules').
The widest meaning, therefore, can be ascribed to it in terms of Section
2(11) of the Code of Civil Procedure, 1908 (in short 'CPC').
When the matter came up for hearing considering the importance of the
question, Mr. Jayant Bhushan, learned senior counsel was requested to act as
Amicus Curiae. He has with reference to various provisions submitted that the
view taken by the Tribunal and the High Court is super technical.
Even if there was no dependence, there is a loss to the estate and a person
who is a legal representative but not dependant can yet be a beneficiary of the
estate. It was, therefore, submitted that a realistic and pragmatic view should
Learned counsel for the insurer supported the judgment of the Tribunal and
the High Court.
Section 166 of the Act corresponds to Section 110 of the Motor Vehicles Act,
1939 (hereinafter referred to as the 'Old Act') and the same reads 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 165 may be made- (a) by the person who has sustained the injury; or (b)
by the owner of the property; or (c) where death has resulted from the
accident, by all or any of the legal representatives of the deceased; or (d) by
any agent duly authorized 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.
(2) Every application under sub-section (1) shall be made, at the option of
the claimant, either to the Claims Tribunal having jurisdiction over the area
in which the accident occurred or to the Claims Tribunal within the local
limits of whose jurisdiction the claimant resides or carries on business or
within the local limits of whose jurisdiction the defendant resides, and shall
be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in
such application, the application shall contain a separate statement to that
effect immediately before the signature of the applicant.
xx xx xx (4) The Claims Tribunal shall treat any report of accidents
forwarded to it under sub-section (6) of Section 158 as an application for
compensation under this Act."
In terms of clause (c) of sub-section (1) of Section 166 of the Act in case
of death, all or any of the legal representatives of the deceased become
entitled to compensation and any such legal representative can file a claim
petition. The proviso to said sub-section makes the position clear that where
all the legal representatives had not joined, then application can be made on
behalf of the legal representatives of the deceased by impleading those legal
representatives as respondents.
Therefore, the High Court was justified in its view that the appellant could
maintain a claim petition in terms of Section 166 of the Act.
Section 168 of the Act reads as follows:
"Award of the Claims Tribunal:- On receipt of an application for
compensation made under Section 166, the Claims Tribunal shall, after giving
notice of the application to the insurer and after giving the parties
(including the insurer) an opportunity of being heard, hold an inquiry into the
claim or, as the case may be, each of the claims and, subject to the provisions
of Section 162 may 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 and in making the award the Claims Tribunal shall
specify the amount which shall be paid by the insurer or owner or driver of the
vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under
section 140 in respect of the death or permanent disablement of any person,
such claim and any other claim (whether made in such application or otherwise)
for compensation in respect of such death or permanent disablement shall be
disposed of in accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the award to the
parties concerned expeditiously and in any case within a period of fifteen days
from the date of the award.
(3) When an award is made under this section, the person who is required to
pay any amount in terms of such award shall, within thirty days of the date of
announcing the award by the Claims Tribunal, deposit the entire amount awarded
in such manner as the Claims Tribunal may direct."
The Tribunal has a duty to make an award, determine the amount of
compensation which is just and proper and specify the person or persons to whom
such compensation would be paid. The latter part relates to the entitlement of
compensation by a person who claims for the same.
According to Section 2(11) of CPC, "legal representative"
means 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. Almost in similar
terms is the definition of legal representative under the Arbitration and
Conciliation Act, 1996, i.e. under Section 2(1)(g).
As observed by this Court in Custodian of Branches of BANCO National
Ultramarino v. Nalini Bai Naique (AIR 1989 SC 1589) the definition contained in
Section 2(11) CPC is inclusive in character and its scope is wide, it is not
confined to legal heirs only. Instead it stipulates that a person who may or
may not be legal heir competent to inherit the property of the deceased can
represent the estate of the deceased person.
It includes heirs as well as persons who represent the estate even without
title either as executors or administrators in possession of the estate of the
deceased. All such persons would be covered by the expression 'legal
representative'. As observed in Gujarat State Road Transport Corporation v.
Ramanbhai Prabhatbhai and Anr. (AIR 1987 SC 1690) a legal representative is
one who suffers on account of death of a person due to a motor vehicle accident
and need not necessarily be a wife, husband, parent and child.
There are several factors which have to be noted. The liability under
Section 140 of the Act does not cease because there is absence of dependency.
The right to file a claim application has to be considered in the background of
right to entitlement. While assessing the quantum, the multiplier system is
applied because of deprivation of dependency. In other words, multiplier is a
measure. There are three stages while assessing the question of entitlement.
Firstly, the liability of the person who is liable and the person who is to
indemnify the liability, if any. Next is the quantification and Section 166 is
primarily in the nature of recovery proceedings.
As noted above, liability in terms of Section 140 of the Act does not cease
because of absence of dependency.
Section 165 of the Act also throws some light on the controversy. The
explanation includes the liability under Sections 140 and 163-A.
Judged in that background where a legal representative who is not dependant
files an application for compensation, the quantum cannot be less than the
liability referable to Section 140 of the Act. Therefore, even if there is no
loss of dependency the claimant if he or she is a legal representative will be
entitled to compensation, the quantum of which shall be not less than the
liability flowing from Section 140 of the Act. The appeal is allowed to the
aforesaid extent. There will be no order as to costs. We record our
appreciation for the able assistance rendered by Shri Jayant Bhushan, the
learned Amicus Curiae.