Dismissed

The Oriental Insurance Company Ltd. v. Mangey Ram and Others

Allahabad HC29 Apr 2019FAFO/201/2010

Case brief

AI extract

What is this about?

This first appeal challenged the Tribunal's award of compensation to the brothers of a deceased bachelor. The Court held that under Section 166 of the Motor Vehicles Act, brothers are legal representatives entitled to maintain the claim when no Class I heirs survive, regardless of proven dependency, summarily dismissing the appeal.

What did the court decide?

The appeal was dismissed and the impugned award of compensation was affirmed; the appellant directed to deposit the decretal amount.

The Oriental Insurance Company Ltd. Vs Mangey Ram… — Motor Accident Claims | Allahabad HC (2019)

A.F.R.

Court No. - 40

Case :- FIRST APPEAL FROM ORDER No. - 201 of 2010 Appellant :- The Oriental Insurance Company Ltd. Respondent :- Mangey Ram And Others Counsel for Appellant :- S.C. Srivastava Counsel for Respondent :- S.D. Ojha

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Hon'ble Harsh Kumar,J.

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Case called out in revised reading of the list.

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No one is present for respondent no.3 despite sufficient service vide order dated 25.7.2014.

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The present first appeal from order has been filed by appellant against impugned judgment and award dated 16.11.2009 passed by Motor Accident Claims Tribunal/Additional District Court, Court No.1, Meerut (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.90 of 2006 (Mangey Ram and another Vs. Sri Pratap Singh and another), by which claim petition has been allowed granting a compensation of Rs.4,12,500/- to claimants-respondents no.1 & 2 with interest @ 6% per annum against the owner of truck with direction for making payment by insurer with recovery rights.

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The brief facts relating to the case are that Claim Petition No.90 of 2006 was filed by claimants-respondents no.1 & 2 Mangey Ram and Sri Kishan Pal with the allegations that their brother Gajendra Singh aged about 28 years was working as helper/second driver on truck in question of Pratap Singh, respondent no.3 and was being paid Rs.3,200/- per month and since he was bachelor his brothers-claimants were dependent on his income. After filing of written statement by owner and insurer, on parties' pleadings, five issues were framed by Tribunal. Issue no.1 was decided in affirmative holding that it is proved from the evidence on record that death of Gajendra Singh did take place by use of offending truck in

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question. On issue no.2 it found that at the time of accident truck in question was validly insured with Oriental Insurance Company Ltd. On issue no.3 it found that truck driver was not holding a valid driving license for driving offending vehicle and on issue no.4 that truck was being plied without valid permit and fitness. On issue no.5 Tribunal held that claimants-respondents no.1 & 2 are entitled to get compensation of Rs.4,12,500/- with interest @ 6% per annum from the date of filing of petition till date of judgment.

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Heard Sri S.C. Srivastava, learned counsel for appellant, Sri S.D. Ojha, learned counsel for claimants-respondents and perused the record as well as lower court record.

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Learned counsel for appellant Oriental Insurance Company Ltd. submitted that undisputedly deceased was 28 years old bachelor brother of claimants-respondents, who are married brothers aged about 34 & 26 years respectively and so they may not be considered to be dependent on income of deceased; that learned trial court has acted wrongly and incorrectly in awarding compensation to claimants-respondents without considering that they were not dependent on deceased. In support of his arguments he has paid reliance on the law laid down by Apex Court in the case of Smt. Manjuri Bera Vs. Oriental Insurance Company Ltd. and another, 2007 (2) T.A.C. 431 (S.C.) and Mrs. Hafizun Begum Vs. Md. Ikram Heque and others, 2007 (4) T.A.C. 1 (S.C.) , and contended that in Full Bench judgment of Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, 2017 (16) SCC (FB) 680, also it has been observed that married brothers may not be dependents on their bachelor brother. No other point arises or was raised by learned counsel for appellant in this appeal.

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Per contra, learned counsel for claimants-respondents supported the impugned award and contended that appellant has no locus standi to file appeal as by the impugned award he has been given right to recover from

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the owner of vehicle and may not be considered to be aggrieved by impugned award; that in any case only owner of offending vehicle may be considered aggrieved party who has not preferred any appeal; that it is wrong to say that married brothers of deceased may not be dependents on the income of the bachelor brother, deceased; that Section 166 of Motor Vehicles Act, 1988 provides that an application for compensation arising out of an accident to the nature specified in sub section 1 of Section 165 may be made, where death has resulted from the accident, by all or any of the legal representatives of the deceased; that being real brothers of deceased claimants-appellants are undisputedly legal representatives of the deceased bachelor brother and were fully competent to maintain the claim petition; that brothers may be considered to be dependent on the income of deceased brother as has been considered in catena of cases by Apex Court holding them entitled to compensation which have been followed by Division Benches of this Court from time to time. In support of his arguments he relied on (i) Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai, AIR 1987 (SC) 1690, (ii) Smt. Manjuri Bera Vs. Oriental Insurance Company Ltd. and another, 2007 ACJ 1279 and (iii) Montford Brothers of St. Gabriel and another Vs. United India Insurance and another, 2014 (1) T.A.C. 970 (S.C.). which have been followed by Division Benches of this Court in the case of (i) Mohd. Unus and another Vs. Rais and others, 2014 (9) ADJ 398 (LB) and (ii) New India Assurance Co. Ltd. Vs. Irfan and others, 2017 (1) ADJ 667.

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Perusal of record shows that during trial claimant-respondent no.1 Mangey Ram was produced as P.W.-1 and in his statement on oath as P.W.-1 he stated that he and claimant-respondent no.2 Sri Kishan Pal were dependent on deceased, who used to hand over entire earnings to them and claimant-respondent no.1 Mangey Ram is patient of Asthma. In his cross examination by insurance company above witness has stated that he is disabled though no part of his body has been amputated and he as well

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as his brother Sri Kishan Pal are married and blessed with children. There is no other evidence about earnings of deceased and dependency of claimants and in absence of any evidence to the contrary on record, or any improbability regarding dependency, there appears no reason to disbelieve the solitary testimony of Mangey Ram claimant-respondent no.1 that claimants were dependent on the income of deceased brother or were getting financial support from him.

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Upon hearing parties counsel and perusal fo record, I find that in view of provisions of Section 166 of Motor Vehicles Act, 1988, a claim petition may be filed by all or any of the legal representatives of the deceased. The word “legal representatives” have not been defined anywhere in Motor Vehicles Act 1988 and definition of 'Legal Representatives' under Section 2 (11) of Code of Civil Procedure is as follows:-

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“Legal Representative means, a person who in law represents the estate of a deceased person and includes any person who inter-meddles with the estate of deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on death of the parties so suing or sued.”

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In absence of wife, children, grand-children or parents i.e. in absence of any heir of Class I or Class II, II(1)(2) & (4) mentioned in schedule of Hindu Succession Act, 1956, brothers of deceased comes in the category of heirs mentioned in Class II, II(3) of Hindu Succession Act, 1956.

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It is not the case of appellant that apart from claimants-appellants, the brothers of deceased, deceased Gajendra Singh was survived by any other legal representative viz. widow, children, grand-children or any other family members. In absence of any heir of Class I of Hindu Succession Act, if a person dies intestate his estate has to devolve on his brothers and so it may not be contended that claimants-appellants do not represent estate of deceased and were not his legal representatives. As per evidence on record claimants stated on oath that they were dependent on

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the earnings of deceased and there is no evidence to the contrary. Though disability of claimants is not proved on record but despite having their own income, the possibility of financial support to them by deceased may not be ruled out. It is also noteworthy that in Section 166 of Motor Vehicles Act, 1988 word “dependent” has not been used and even if no dependency is proved there is loss to the estate of deceased and a person who is a legal representative even if not dependent, can also maintain a claim as beneficiary of the estate of deceased.

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In the case of Smt. Manjuri Bera (supra) relied by learned counsel for appellant as well as respondents the claim petition was filed by married daughter of deceased and the Tribunal finding her to be dependent on her husband and not on her father deceased, dismissed claim petition and appeal before the High Court was also dismissed. When matter came before the Apex court in Civil Appeal No.1702 of 2007 the Apex Court held that “being legal representative she was entitled to maintain claim petition and even if she was not found to be dependent on deceased, liability in terms of Section 140 (no fault liability) does not cease because of absence of dependency.”

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In another case Mrs. Hafizun Begum (supra) another case relied by appellant, the Apex Court relying on the decision in the case of Smt. Manjuri Bera (supra) held that “legal representatives but not dependents of deceased are entitled to receive compensation and that a legal representative is one who suffers on account of death of a person due to a motor accident and need not necessarily be a wife, husband, parents or child and remitted the matter back to High Court for afresh decision.”

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In the case of National Insurance Company Limited Vs. Pranay Sethi and others (supra) also the Full Bench of Apex Court has nowhere stated that claim petition by brother of deceased would not be maintainable rather relying on the law laid down by Apex Court in the cases of Sarla Verma, Reshma Kumari, Rajesh and Munna Lal Jain in para

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the Full Bench of Apex Court in para 39 of the judgment has referred to paras 30, 31 & 32 of Sarla Verma case and paras 41 & 42 of Reshma Kumari case wherein, considering that deceased was a bachelor and claimants were parents etc. at the time of adjudication of extent of deduction it was observed that “subject to evidence to the contrary father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as dependent and in absence of evidence to the contrary brothers and sisters will not be considered as dependent because they will either be independent and earning or married or be dependent on father.” In the present case neither parents nor wife or children of deceased are alleged to be surviving nor are co-claimants and inter-se dependency of claimants is not disputed.

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In the case of Gujarat State Road Transport Corporation, Ahmedabad (supra) relied by respondent in a case under old Motor Vehicles Act, 1939, a question arose as to whether the claim petition filed by brothers of deceased is maintainable and whether brothers are legal representatives and the Apex Court held that:-

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“since an application for compensation may be made by all or any of the legal representatives of the deceased under Section 110(A)(i)(b), the brothers are entitled to maintain petition.”

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As discussed earlier in the case of Smt. Manjuri Bera (supra) also married daughter was held entitled to file claim petition on death of her father and despite failing to prove dependency on deceased she was granted a sum of Rs.50,000/- as compensation under Section 140(2) of no fault liability.

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In another case of Montford Brothers of St. Gabriel and another (supra) relied by respondent in a case under old Motor Vehicles Act, 1939, deceased was a Roman Catholic and renouncing his family had joined the Church services which is a charitable society, members of which after denouncing family are known as “brothers” and the three judges Bench of Apex Court held that:-

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“a person claiming to be a legal representative has the locus standi to file a claim petition and rejected contention of insurance company that since the deceased was a brother i.e. without any family or heirs, appellants had no locus standi.”

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In the case of Mohd. Unus and another (supra), relied by respondent, a Division Bench of this Court at Lucknow Bench and in the case of New India Assurance Co. Ltd. Vs. Irfan and others (supra) a Division Bench of this Court considering the law laid down by Apex Court in the case of Smt. Manjuri Bera (supra) held that:-

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“though sons/heirs of deceased were not dependent of deceased, they are entitled to compensation being legal representatives under Section 166 of Motor Vehicles Act.”

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Thus 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 death of an individual. It is not disputed that in absence of any other heir viz. Parents, widow or children of deceased, brothers were legal representatives of deceased and estate of deceased had to devolve on them. In view of evidence on record, it may also not be disputed that they were dependents of deceased Gajendra Singh.

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In the circumstances, the point of challenge raised by counsel for appellant-insurance company that claimants-respondent were not entitled to maintain claim petition, is not supported by case law relied by appellant as well as other case law has no force and has been made to be rejected.

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In view of discussions made above, I have come to the conclusion that undisputedly claimants were heirs of deceased and it will not be correct to say that being married brothers of deceased, they were not his legal representatives or could not have represented his estate. The findings of learned Tribunal in this respect are well reasoned and there is no sufficient ground for disagreeing with those findings. The appeal is devoid of merits and is liable to be dismissed.

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The appeal is dismissed, accordingly and the impugned award is affirmed.

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The appellant may deposit entire decreetal amount with the Tribunal under the impugned award after adjusting any amount deposited earlier within two months and the amount so deposited will be paid to claimants-respondents as per impugned award. The appellant will be entitled to recover the amount of compensation from owner of the vehicle as per impugned order. The amount of statutory deposit will also be sent to Tribunal forthwith, if not sent earlier.

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Let lower court record be sent back to court below along with a copy of this order for ascertaining necessary compliance.

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Order Date :- 29.4.2019

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Kpy

The Oriental Insurance Company Ltd. v. Mangey Ram and Others

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Company Ltd. v. Mangey Ram and Others

Case brief

What is this about?

What did the court decide?

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