Civil Appeal No. 1702 OF 2007 (Arising out of SLP (C) No.14943 of 2004)
Dr. Arijit Pasayat,J.
- Leave granted.
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.
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
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 be taken.
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
compensation:- (1) An application for compensation arising out of an
accident of the nature specified in sub-section (1) of Section 165 may
(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.
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
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.
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