Allowed

Shriram Shukla and Another v. Smt. Jaspal Kaur and 2 Others

Allahabad HC23 Jan 2020FAFO/2327/2017

Case brief

AI extract

What is this about?

Appeal allowed where the Motor Accident Claims Tribunal erroneously denied compensation to the husband of the deceased, holding him not a dependent despite statutory entitlement as a legal representative. High Court computed correct quantum based on age, notional income, and award interest.

What did the court decide?

Awarded compensation of Rs. 8,89,417/- plus interest at 7% to be paid jointly by the owner, driver, and insurer.

Shriram Shukla and Another Vs Smt. Jaspal Kaur and 2… — Medical Negligence | Allahabad HC (2020)

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Court No. - 53

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Case :- FIRST APPEAL FROM ORDER No. - 2327 of 2017

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Appellant :- Shriram Shukla And Another Respondent :- Smt. Jaspal Kaur And 2 Others Counsel for Appellant :- Devendra Kumar Singh,Satya Priya Mishra

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Hon'ble Vivek Agarwal,J.

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As per the office report dated 18.09.2019, registered notices were sent to the respondent nos. 1, 2 and 3 on 01.08.2017 fixing next date as 11.09.2017.

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These notices sent by R.P.A.D., have neither been returned after service nor anybody has put in appearance. Service can be deemed on the respondents in terms of the provisions contained in Order 5 Rule 21 C.P.C.

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Learned counsel for the appellant submits that he is aggrieved by the award passed in M.A.C.P. Case No. 56 of 2012 by learned Motor Accident Claims Tribunal/Special Judge (Prevention of Corruption Act), Court No. 4, Gorakhpur whereby only a sum of Rs. 50,000/- has been awarded in favour of the appellant.

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It is an admitted fact that on 28.11.2011 at about 2 PM when accident took place with the offending vehicle HR 55 M 6792 owned by respondent no. 1, driven by respondent no. 2 and insured with respondent no. 3. Age of the deceased was 26 years. Learned Claims Tribunal instead of applying the usual parameters held that since claim has been filed by the husband and father-in-law and husband was working as Engineer and drawing salary of about Rs. 28,000/- at the time of the accident, therefore, he cannot be said to be dependent on his wife and also recorded a finding that after such accident, claimant had contracted second marriage and has a child from said second marriage, only a notional sum of Rs. 50,000/- has been awarded.

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This finding and appreciation of the facts by the learned Claims Tribunal appears to be incorrect and perverse. It has come on record that claimants are respectively husband and father-in-law of the deceased and on 28.11.2011 at about 2 PM when the injured claimant- Sri Shriram Shukla was coming with his wife, Smt. Rajni Shukla on his motor cycle bearing registration no. UP 53 AU 1196, then truck no. HR 55 M 6792 had hit the motorcycle causing injuries to the driver i.e., claimant no. 1 and

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the pillion rider- Smt. Rajni Shukla who had fallen down from the motorcycle and was crushed under the tyre of the offending vehicle.

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Though, learned claims tribunal has recorded a finding that since claimant is employed and subsequently has remarried and has a child, therefore, it has held that claimant was not dependent on his wife and has rejected the claim petition in the light of the law laid down by Hon'ble Supreme Court in case of Mrs. Hafizun Begum vs. Md. Ikram Heque and others as reported in 2007 (4) TAC 1 (SC) and has awarded only a sum of Rs. 50,000/- under the no fault liability.

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The bone of contention is that whether in terms of the terms of the provisions contained in Section 166(1) of the Motor Vehicles Act, 1988, whether the application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 166 can be made by the husband or not. Clause (c) of Section 166(1) provides that it can be made by all or any of the legal representatives of the deceased where death has resulted from the accident. Section 2(11) of the Code of Civil Procedure, 1908 defines the term "legal representative" as follows:

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"2.(11) '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 sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;".

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This issue has been dealt with by the Hon'ble Supreme Court in case of Montford Brothers of St. Gabriel and others vs. United India Insurance and others as reported in 2014 (3) SCC 394. In the same judgment it has also been held that proceedings before the Motor Accident Claims Tribunal is a summary proceeding and unless there is evidence in support of such pleading that the claimant is not a legal representative and therefore, the claim petition be dismissed as not maintainable, no plea can be raised at the subsequent stage.

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Thus, the principle of law is that every legal representative who suffers on account of death of a person due to a motor vehicle accident should have a remedy for realisation of compensation. In view of such judgment of Hon'ble Supreme Court, this Court is of the opinion that learned claims tribunal has faulted in applying the ratio of the judgment in case of Mrs. Hafizun Begum vs. Md. Ikram Heque and others.

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In fact in case of Hafizun Begum, Hon'ble Supreme Court has dealt with the issue of legal representatives and the definition contained in Section 2(11) CPC having reference to the law laid down in case of Branches of Banco National Ultramarino vs. Nalini Bai Naique as reported in AIR 1989 SC 1690 and thereafter referring to the judgment of Hon'ble Supreme Court in case of Gujarat S.R.T.C. vs. Ramanbhai Prabhatbhai and another as reported in AIR 1987 SC 1690 has held that 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. In this context, it remanded the matter to the High Court to consider the case afresh in the light of the law laid down in case of Smt. Manjuri Bera vs. Oriental Insurance Company Ltd. and another as reported in 2007 (10) SCC 643 .

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Thus, in the light of the law laid down in case of Gujarat S.R.T.C (supra) husband being a legal representative suffered on account of death of his wife due to a motor vehicle accident is entitled to compensation.

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Now compensation is to be computed in the following manner in the light of the law laid down in case of Sarla Verma and others vs. Delhi Transport Corporation (2009) 6 SCC 121 and National Insurance Company Ltd. vs. Pranay Sethi and others (2017) 16 SCC 680.

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Admittedly, at the time of the accident age of the deceased was 26 years. Date of the accident is 28.11.2011. Therefore, in the light of the law laid down in case of Sarla Verma, multiplier of 17 will be applicable.

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Since, deceased was married, it will be presumed that she was spending 1/3rd of her notional income on herself. It is not the case of the claimant that deceased was working or was having any definite source of income, therefore, notional income of the deceased is to be derived on the basis of minimum wages as were prevalent on the date of accident i.e., 28.11.2011 which were to the tune of Rs. 4303.45/- per month i.e., Rs. 51,641.40/per annum. When 1/3rd amount is deducted on account of personal expenses, then notional dependency comes out at Rs. 34,429.32/-. To this 40% amount is to be added towards future prospects having regard to the law laid down by Hon'ble Supreme Court in case of National Insurance Company Ltd. vs. Pranay Sethi and others (2017) 16 SCC 680, then annual dependency come out to Rs. 48,201/-. When multiplier of 17 is applied, then total compensation will come out to Rs. 8,19,417/Besides this, a sum of Rs. 70,000/- to be added towards nonpecuniary damages taking total compensation to Rs. 8,89,417/to which claimant no 1- husband will be entitled to. This

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amount shall carry interest @ 7% from the date of filing of the claim petition which shall be jointly and severely payable by the respondents, owner, driver and the insurer of the offending vehicle namely, HR 55 M 6792.

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In above terms, appeal is allowed and is disposed off.

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Order Date :- 23.1.2020

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Vikram/-

Shriram Shukla and Another v. Smt. Jaspal Kaur and 2 Others

Case brief

What is this about?

What did the court decide?

Shriram Shukla and Another v. Smt. Jaspal Kaur and 2 Others

Case brief

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What did the court decide?

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