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Tuesday, August 5, 2014

M.V.Act - Death of Brother - claim by brothers as dependentsIN THE ABSENCE OF CLASS ONE HEIRS - Trial court dismissed their claim for compensation but only granted funeral expenses etc., as they are living separately from the beginning - Their lord ships held that it is a settled law that Dependency is not the ground for granting compensation as held the Apex court which granted compensation for brothers on death of 14 years youngest brother - all legal heirs including sisters also are entitled for compensation and allowed the appeal = M.A.C.M.A No.748 of 2009 18-07-2014 Burra Narsaiah and another.... Appellants Mova Venkateswar Rao and others.. Respondents = 2014 - july - part - http://judis.nic.in/judis_andhra/filename=11671

 M.V.Act - Death of Brother - claim by brothers as dependents IN THE ABSENCE OF CLASS ONE HEIRS- Trial court dismissed their claim for compensation but only granted funeral expenses etc.,  as they are living separately from the beginning - Their lord ships held that it is a settled law that Dependency is not the ground for granting compensation as held the Apex court which granted compensation for brothers on death of 14 years youngest brother - all legal heirs including sisters also are entitled for compensation and allowed the appeal =

The claimants and deceased Burra Venkataiah are own brothers.  
The claimants are residents of Irukulla Village in Karimnagar Mandal,
whereas the deceased was residing in the adjacent Durshed Village and
was aged 40 years. As per the claimants, the deceased was grazing the
sheep of PW.3 who runs the mutton shop and a hotel in Durshed Village.
While so, on the early morning of 21.08.2004 at about 5:30am, when the
deceased was sleeping near the cattle shed of PW.3, a lorry bearing No.
AP 9 U 3447 proceeding from Karimnagar to Godavari Khani being
driven by its driver at high speed and in a careless manner went and
rammed into the hotel and hit the deceased causing his instantaneous
death.  The claimants on the plea that the accident was occurred due to
the fault of the lorry driver and that the deceased used to earn Rs.3,000/-
p.m and they were depending on his earnings and now they lost his
support, have filed O.P.No.881 of 2005 against respondents 1 to 3, who
are driver, owner and insurer of the offending lorry and claimed
Rs.3,00,000/- as compensation. =
Trial court award =
A perusal of the award would show that the Tribunal basing
on the evidence of PW.1 that since last 10 years all the three brothers
were living separately, has come to conclusion that all the three brothers
were separated and the claimants were not the dependants of the
deceased.  Therefore, though the Tribunal assessed the loss of earnings of
the deceased at Rs.1,87,200/-, did not award the said amount as
compensation to the claimants but only awarded Rs.17,000/- towards loss
of estate and funeral expenses
High court 
 In
Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai   
Prabhatbhais case (2 supra), Honble Apex Court has not taken the
dependency as a factor for compensation.  In that case a 14 year old boy
who was not the breadwinner of the family was run over by a bus and
died.  His brothers claiming to be the heirs and legal representatives of
the deceased, filed claim petition under M.V. Act.  The respondent/
Corporation questioned the entitlement of the claimants.  In that context,
while explaining the term legal representative, Honble Apex Court
held thus:
Para-11    xxxx    xxxx
The expression legal representative has not been defined in
the Act. Section 2(11) of the Code of Civil Procedure, 1908
defines legal representative as 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. The
above definition, no doubt, in terms does not  apply to a case
before the Claims Tribunal but it has to be stated that even in
ordinary parlance the said expression is understood almost in the
same way in which it is defined in the Code of Civil Procedure. 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 the death of an individual. Clause (b) of
sub-section (1) of Section 110-A of the Act authorises all or any
of the legal representatives of the deceased to make an
application for compensation before the Claims Tribunal for the
death of the deceased on account of a motor vehicle accident and
clause (c) of that sub-section authorises any agent duly
authorised by all or any of the legal representatives of the
deceased to make it. The proviso to sub-section (1) of Section
110-A of the Act appears to be of some significance. It provides
that the application for compensation shall be made on behalf of
or for the benefit of all the legal representatives of the deceased.
Section 110-A(1) of the Act thus expressly states that (i) an
application for compensation may be made by the legal
representatives of the deceased or their agent, and (ii) that such
application shall be made on behalf of or for the benefit of all the
legal representatives.
        So, dependency cannot be taken as a sole factor for awarding
compensation though in some cases a legal representative may also 
incidentally happens to be the dependent of the deceased.
    The Supreme Court further observed thus:
 Para-15  xxxx       xxxx
 The fact that Parliament declined to take any action on the
recommendation of the Law Commission of India suggests that  
Parliament intended that the expression legal representative in
Section 110-A of the Act should be given a wider meaning and it
should not be confined to the spouse, parent and children of the
deceased. 
 The Supreme Court ultimately held that brother of a person who
died in a motor vehicle accident is entitled to maintain the petition under
Section 110A of MV Act, if he is a legal representative of the deceased.=

Now coming to quantum of compensation, the Tribunal for want
of proper evidence regarding earnings of the deceased, has taken his
notional income as Rs.1800/- p.m.  I see no illegality in it.  However,
going by the decision of Apex Court in Santosh Devi vs. National
Insurance Company Limiteds case (7 supra), a sum of Rs.300/- is added
towards future prospects.  Thus, his annual income comes to Rs.25,200/-
(Rs.2100 x 12).  From this 1/3rd is deducted towards his personal
expenditure.  The balance comes to Rs.16,800/- (Rs.25,200 x 2/3rd).
Then considering the age of the deceased as 40 years, the Tribunal took
13 as multiplier. The appellants claimed that 15 would be the
appropriate multiplier.  Having regard to the fact that in this case the
compensation is awarded to siblings being the legal representatives and
not to the widow and children of the deceased who are not there, 13 can
be accepted as multiplier in this case.  Thus, the loss of earnings comes to
Rs.2,18,400/- (Rs.16,800 x 13).  Then the Tribunal awarded a niggardly
amount of Rs.1,000/- towards funeral expenses. Considering its
inadequacy the compensation is enhanced to Rs.5,000/-.  Thus the total
compensation payable to the legal representatives of the deceased under
different heads is detailed as below:
        Loss of dependency              Rs.2,18,400-00
        Funeral expenses                        Rs.     5,000-00
        Transport charges                       Rs.     1,000-00
        Loss of love and affection      Rs.   15,000-00
                                                              ------------------
-
                                            Total       Rs.2,39,400-00
-------------------
     So, the compensation is enhanced by Rs.2,22,400/- (Rs.2,39,400/-
minus Rs.17,000/-).
10)     The evidence of PW.1 would reveal that apart from claimants,
there are two sisters to deceased by name Lachavva and Narsavva.  So
under law, they are also the legal representatives of the deceased and
entitled to compensation along with the claimants though they are not
being shown as parties to the O.P.
 However, in view of the above
evidence, this Court can allow compensation to them also.
Therefore, the
claimants and the two sisters i.e, Lachavva and Narsavva shall share the
compensation equally.
The Tribunal shall issue notice to them and pay
their due compensation.
11)     In the result, this appeal is partly allowed and ordered as follows:
a)      The compensation is enhanced by Rs.2,22,400/- with proportionate
costs and interest at 7.5% p.a from the date of filing this appeal till
the date of realization.
b)      The respondents are directed to deposit the compensation amount
within one month from the date of this judgment, failing which
execution can be taken out against them.
c)      On such deposit or realisation, the claimants and their sisters
Lachavva and Narsavva shall equally share the compensation.
d)      No order as to costs.
        As a sequel, miscellaneous applications pending, if any, shall stand
closed.
2014 - july - part - http://judis.nic.in/judis_andhra/filename=11671
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A No.748 of 2009

18-07-2014

Burra Narsaiah and another.... Appellants

Mova Venkateswar Rao and others.. Respondents  

Counsel for Appellants  : Sri Vemuganti Ram Chander Rao

Counsel for Respondent No.3 : Sri P. Bhanu Prakash

<Gist:

>Head Note:

? Cases referred:
1)      2001 (1) ALT 485
2)      1987 ACJ 561 (SC)
3)      AIR 2007 Supreme Court 1474
4)      2013 ACJ 597 (Karnataka)
5)      2003 ACJ 1914 (J & K)
6)      2013 ACJ 99 (AP)
7)      AIR 2012 Supreme Court 2185
8)      2009 ACJ 1298 (SC)
9)      2013 ACJ 1403 (SC)



HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO            
M.A.C.M.A. No.748 of 2009

JUDGMENT:  
        The point for determination in this MACMA filed by the claimants
against the Award dated 23.10.2006 in O.P.No.881 of 2005 passed by the
Chairman, MACT-cum-District Judge, Karimnagar (for short the
Tribunal) is whether the claimants being brothers of the deceased
Burra Venkataiah can claim compensation for loss of earnings of the
deceased as his legal representatives.
2)      The facts in short shrift are thus:
a)      The claimants and deceasedBurra Venkataiah are own brothers.   
The claimants are residents of Irukulla Village in Karimnagar Mandal,
whereas the deceased was residing in the adjacent Durshed Village and
was aged 40 years. As per the claimants, the deceased was grazing the 
sheep of PW.3 who runs the mutton shop and a hotel in Durshed Village.
While so, on the early morning of 21.08.2004 at about 5:30am, when the
deceased was sleeping near the cattle shed of PW.3, a lorry bearing No.
AP 9 U 3447 proceeding from Karimnagar to Godavari Khani being  
driven by its driver at high speed and in a careless manner went and
rammed into the hotel and hit the deceased causing his instantaneous
death.  The claimants on the plea that the accident was occurred due to
the fault of the lorry driver and that the deceased used to earn Rs.3,000/-
p.m and they were depending on his earnings and now they lost his
support, have filed O.P.No.881 of 2005 against respondents 1 to 3, who
are driver, owner and insurer of the offending lorry and claimed
Rs.3,00,000/- as compensation. 
b)      The claim against 1st respondent was dismissed for want of taking
steps.
c)      Second respondent remained ex parte.
d)      Third respondent/Insurance Company filed counter and opposed
the claim by denying all the material averments made in the petition and
contended that the driver of the lorry had no valid driving licence.
e)      During trial, PWs.1 to 3 were examined and Exs.A1 to A6 were
marked on behalf of claimants. RW.1 was examined and Exs.B1 to B3  
were marked on behalf of R.3.
f)      Perusal of the award would show that in respect of issue No.1,
having regard to the eye witness evidence of PW.3 coupled with
Ex.A.1FIR, Ex.A.2charge sheet and Ex.A.4inquest report, the  
Tribunal held that the lorry driver (R.1) was responsible for the accident.
Regarding issue No.2 touching the quantum of compensation, the
Tribunal though assessed the loss of earnings of the deceased at
Rs.1,87,200/- but declined to grant the compensation for loss of
dependency on the observation that the claimants were not depending on
the earnings of the deceased and that they are having their own earnings.
Ultimately, the Tribunal granted Rs.17,000/- only as compensation i.e,
Rs.15,000/- towards loss of love and affection; Rs.1,000/- towards
funeral expenses and Rs.1,000/- towards transport charges.  The Tribunal
dismissed the contention of R.3 that the driver had no valid driving
licence on the finding that R.3 failed to prove this allegation.
     Hence, the appeal by claimants.
3)      The parties are referred to as they stood before the Tribunal.
4)      Heard arguments of Sri Vemuganti Ram Chandar Rao, learned  
counsel for appellants/claimants and Sri P. Bhanu Prakash, learned
counsel for R3/Insurance Company. R.1 is not necessary party in this
appeal.  Notice to R2 was unserved.  However, since R.2 suffered decree
before the Tribunal, his absence is not a consequence in this appeal in
view of the decision reported in Meka Chakra Rao vs. Yelubandi Babu
Rao @ Reddemma and others .  
5)      Learned counsel for appellants impugning the award on the
following grounds:
a)      Firstly, he argued that the Tribunal erred in holding that the
claimants are not dependants of the deceased inspite of the clear evidence
of PWs.1 and 2 to the effect that the deceased was earning Rs.3,000/- p.m
and PWs.1 and 2 being his brothers were depending on his income and
no rebuttal evidence adduced by respondents.  He alternatively argued
that even assuming that the claimants being major brothers and not solely
depending on his earnings, still they cannot be deprived of the
compensation as the compensation under Motor Vehicles Act will be 
granted to the legal representatives of the deceased but not to the
dependants alone.  As the loss of earnings of the deceased due to his
accidental death is a loss to his estate which is represented by the
claimants as his legal representatives, they are entitled to compensation.
In this regard, he relied upon the following decisions:
i)      Gujarat State Road Transport Corporation, Ahmedabad vs.
Ramanbhai Prabhatbhai
ii)     Smt. Manjuri Bera vs. Oriental Insurance Co. Ltd.
iii)    Managing Director, Karnataka State Road Transport
Corporation vs. K.S. Venkataramappa
iv)     Gian Singh and others vs. Ram Krishan Kohli
v)      United India Insurance Co. Ltd. vs. G. Satish Kumar
     He thus argued that the Tribunal ought not to have deprived the
claimants of the loss of earnings of the deceased.
b)      Secondly, challenging the quantum of compensation as too low
and inadequate, learned counsel argued that the Tribunal took the
earnings of the deceased only at Rs.1800/-.  It ought to have taken his
earnings as Rs.4,500/- p.m.  He further submitted that to this income, the
future prospects should also be added, going by the decision of Apex
Court reported in Santosh Devi vs. National Insurance Company Ltd.
and others .
c)      Nextly, he argued that as per the decision of the Apex Court
reported in Smt.Sarla Verma vs. Delhi Transport Corporation , the
correct multiplier is 15.  He further submitted that following the
decision reported in Rajesh and others vs. Rajbir Singh and others ,
funeral expenses may be enhanced.
        He thus prayed to enhance the compensation by allowing the
appeal.
6)      Per contra, while supporting the judgment, learned counsel for
respondent No.3/Insurance Company argued that the deceased and  
claimants were separated more than 10 years prior to the date of his death
and living separately and that is why the deceased was working in a hotel
in a different village and sleeping there.  Considering all these facts, the
Tribunal rightly held that virtually there were no connections between the
deceased and the claimants and they were not his dependants and
accordingly granted compensation for loss of estate and funeral expenses
alone and there is no need to review the same. He thus prayed for
dismissal of the appeal.
7)    POINT: A perusal of the award would show that the Tribunal basing
on the evidence of PW.1 that since last 10 years all the three brothers
were living separately, has come to conclusion that all the three brothers
were separated and the claimants were not the dependants of the
deceased.  Therefore, though the Tribunal assessed the loss of earnings of
the deceased at Rs.1,87,200/-, did not award the said amount as
compensation to the claimants but only awarded Rs.17,000/- towards loss
of estate and funeral expenses.  It must be said that the approach of the
Tribunal is not correct.  Though PW.1 admitted in the cross-examination
that they were living separately since last 10 years but the basic point in
his evidence is that the claimants were depending on the earnings of the
deceased who was working as a shepherd under PW.3.  The respondents  
have not adduced any contra evidence in this regard.  So merely because
the claimants and deceased were living separately, it cannot be concluded
that the deceased was not contributing his earnings to his brothers atleast
occasionally, particularly when there is no contra evidence.  Therefore,
the claimants cannot be denied compensation for loss of earnings of the
deceased/ loss of dependency. Alternatively, even assuming for
arguments sake that the claimants are not the dependants of the deceased,
still they cannot be deprived of the compensation because of the fact that
they are the legal representatives of the deceased and representing his
estate.  Admittedly, the claimants are his brothers and hence they are his
legal representatives. Whether dependency of claimants alone is the
criterion or their status as legal representatives of the deceased is the
touch stone for awarding compensation is no more res integra.  In
Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai   
Prabhatbhais case (2 supra), Honble Apex Court has not taken the
dependency as a factor for compensation.  In that case a 14 year old boy
who was not the breadwinner of the family was run over by a bus and
died.  His brothers claiming to be the heirs and legal representatives of
the deceased, filed claim petition under M.V. Act.  The respondent/
Corporation questioned the entitlement of the claimants.  In that context,
while explaining the term legal representative, Honble Apex Court
held thus:
Para-11    xxxx    xxxx
The expression legal representative has not been defined in
the Act. Section 2(11) of the Code of Civil Procedure, 1908
defines legal representative as 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. The
above definition, no doubt, in terms does not  apply to a case
before the Claims Tribunal but it has to be stated that even in
ordinary parlance the said expression is understood almost in the
same way in which it is defined in the Code of Civil Procedure. 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 the death of an individual. Clause (b) of
sub-section (1) of Section 110-A of the Act authorises all or any
of the legal representatives of the deceased to make an
application for compensation before the Claims Tribunal for the
death of the deceased on account of a motor vehicle accident and
clause (c) of that sub-section authorises any agent duly
authorised by all or any of the legal representatives of the
deceased to make it. The proviso to sub-section (1) of Section
110-A of the Act appears to be of some significance. It provides
that the application for compensation shall be made on behalf of
or for the benefit of all the legal representatives of the deceased.
Section 110-A(1) of the Act thus expressly states that (i) an
application for compensation may be made by the legal
representatives of the deceased or their agent, and (ii) that such
application shall be made on behalf of or for the benefit of all the
legal representatives.
        So, dependency cannot be taken as a sole factor for awarding
compensation though in some cases a legal representative may also 
incidentally happens to be the dependent of the deceased.
    The Supreme Court further observed thus:
 Para-15  xxxx       xxxx
 The fact that Parliament declined to take any action on the
recommendation of the Law Commission of India suggests that  
Parliament intended that the expression legal representative in
Section 110-A of the Act should be given a wider meaning and it
should not be confined to the spouse, parent and children of the
deceased. 
        The Supreme Court ultimately held that brother of a person who
died in a motor vehicle accident is entitled to maintain the petition under
Section 110A of MV Act, if he is a legal representative of the deceased.
8)      The above decision was followed in the cited decisions (3 to 5
supra).  This High Court in United India Insurance Co. Ltd. vs. G.
Satish Kumars case (6 supra) also held in similar lines.  Therefore, the
finding of the Tribunal cannot be countenanced.
9)      Now coming to quantum of compensation, the Tribunal for want 
of proper evidence regarding earnings of the deceased, has taken his
notional income as Rs.1800/- p.m.  I see no illegality in it.  However,
going by the decision of Apex Court in Santosh Devi vs. National
Insurance Company Limiteds case (7 supra), a sum of Rs.300/- is added
towards future prospects.  Thus, his annual income comes to Rs.25,200/-
(Rs.2100 x 12).  From this 1/3rd is deducted towards his personal
expenditure.  The balance comes to Rs.16,800/- (Rs.25,200 x 2/3rd).
Then considering the age of the deceased as 40 years, the Tribunal took
13 as multiplier. The appellants claimed that 15 would be the
appropriate multiplier.  Having regard to the fact that in this case the
compensation is awarded to siblings being the legal representatives and
not to the widow and children of the deceased who are not there, 13 can
be accepted as multiplier in this case.  Thus, the loss of earnings comes to
Rs.2,18,400/- (Rs.16,800 x 13).  Then the Tribunal awarded a niggardly
amount of Rs.1,000/- towards funeral expenses. Considering its
inadequacy the compensation is enhanced to Rs.5,000/-.  Thus the total
compensation payable to the legal representatives of the deceased under
different heads is detailed as below:
        Loss of dependency              Rs.2,18,400-00 
        Funeral expenses                        Rs.     5,000-00
        Transport charges                       Rs.     1,000-00
        Loss of love and affection      Rs.   15,000-00
                                                              ------------------
-
                                            Total       Rs.2,39,400-00
-------------------
     So, the compensation is enhanced by Rs.2,22,400/- (Rs.2,39,400/-
minus Rs.17,000/-).
10)     The evidence of PW.1 would reveal that apart from claimants,
there are two sisters to deceased by name Lachavva and Narsavva.  So 
under law, they are also the legal representatives of the deceased and
entitled to compensation along with the claimants though they are not
being shown as parties to the O.P.  However, in view of the above
evidence, this Court can allow compensation to them also.  Therefore, the
claimants and the two sisters i.e, Lachavva and Narsavva shall share the
compensation equally.  The Tribunal shall issue notice to them and pay
their due compensation.
11)     In the result, this appeal is partly allowed and ordered as follows:
a)      The compensation is enhanced by Rs.2,22,400/- with proportionate
costs and interest at 7.5% p.a from the date of filing this appeal till
the date of realization.
b)      The respondents are directed to deposit the compensation amount 
within one month from the date of this judgment, failing which
execution can be taken out against them.
c)      On such deposit or realisation, the claimants and their sisters
Lachavva and Narsavva shall equally share the compensation.
d)      No order as to costs.
        As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 18.07.2014

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