Accident claim - Hindu succession Act and M.V. Act - whether the wife after remarriage entitled for compensation - yes and like whether the mother after her remarriage is entitled for compensation even thought not dependant - yes = Their lordships apportioned almost all 3/4 th wife and 1/4 to the mother =
Claim by wife of deceased =
on 05.05.2001 at
about 15:30 hours, when the deceased was proceeding in a Jeep bearing No.ABV
7114 as driver from Armoor to Shetpally, suddenly a bus bearing No.AP 10 Z 8237
came in high speed from opposite side and dashed against the Jeep. In the
resultant accident, the deceased and others who were travelling in the Jeep
sustained multiple and grievous injuries and the deceased and three others died
on the spot.
Mother of deceased /Respondent No.2 =
Regarding 2nd respondent, it is averred that the father of the deceased
died when he was in the womb of his mother/ 2nd respondent and after giving
birth to the child, the 2nd respondent threw away the child in thorny bushes
when he was aged 1 1/2 years and she went away with one Manne Vittal and living
in Oddiat Village for the past 22 years and she never visited the deceased till
his death. It is further averred that 2nd respondent was not at all depending
upon the income of deceased and she is not entitled for any compensation but she
being the mother, formally added as party to this O.P. =
VERSES VERSION
R.2 contended that she is
the real mother of the deceased and she filed separate O.P.No.1086 of 2001
against R.1 and the petitioner. She denied that she has thrown away her
deceased son and submitted that she remarried after the death of father of
deceased. R.2 further contended that petitioner got remarried after the death
of deceased and as such the petitioner is not entitled to claim any
compensation.
APSRTC / RESPONDENT NO.1
The First respondent/APSRTC filed counter and opposed the claim, inter
alia contending that the accident was occurred only due to the fault of driver
of the jeep i.e, deceased but not the driver of the bus.R.1 further
contended that the deceased was not holding any valid driving licence and as
such the Insurer of the Jeep was not made as party to this O.P. R.1 contended
that this O.P is bad for non-joinder of necessary party i.e, Insurer of the
Jeep.
WHO IS AT FAULT =
Evidence of eye witness and injured witness which was unshaken overweight the evidence of conductor who is an interested witness and as such Bus driver is at fault
EFFECT OF ACQUITTAL IN ACCIDENT CASE =
So
far as the judgment in a criminal case is concerned, law is clear that the same
cannot have a binding force in a civil case and the fault of the concerned
driver has to be decided basing on the evidence produced before the Tribunal.
whether remarriage of a wife
subsequent to the death of her husband in an accident disentitles her to claim
compensation.-= Law cannot be static but dynamic mirroring the needs of society.
Restricting a wife to claim compensation only for the period she remained as
widow is nothing but fettering her growth. In view of this and the latest law
being in favour of a wife conferring on her full rights to claim compensation
even after her remarrying subsequent to the death of her husband, the view
expressed by the High Court of Orissa and reflected in the decision of the
Single Judge of this Court cannot be followed. For this reason, it is held,
even if the claimant remarries after the death of her husband she will not lose
her right to claim compensation. Even otherwise, the record shows that except
making allegation, the R.2 failed to prove that the claimant remarried one
Bojanna after the death of her husband. Hence she can be still considered as
the wife of deceased. Therefore, either way the claimant is entitled to
compensation.
Smt.Kasturi Devi vs. Deputy Director of Consolidation and
others7 and observed thus:
"We are, however, unable to agree with the view taken by the Deputy Director of
Consolidation which appears to be contrary to the written text of the Hindu Law.
Mulla in his 'Hindu Law', 14th Edn, while describing the incidents of a mother
regarding inheritance under Clause (iii) observed at p. 116 as follows:
(iii) Unchastity and remarriage---Unchastity of a mother is no bar to her
succeeding as heir to her son, nor docs remarriage constitute any such bar.
4. A large number of authorities have been cited in support of this view. We
find ourselves entirely in agreement with this view. Our attention has not been
invited to any text of the Hindu Law under which a mother could be divested of
her interest in the property either on the ground of unchastity or re-marriage."
18) So on the same analogy, it can be said that R.2 is also entitled to
compensation. This point is decided accordingly.
Considering the fact that claimant is the wife and a lonely lady, she is
held entitled to Rs.3,17,000/- and R.2 being mother and having children to look
after held entitled to Rs.1,50,000/-.
2014 (March. Part) judis.nic.in/judis_andhra/filename=10985
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A No.197 of 2009 and batch
10-03-2014
Andhra Pradesh State Road Transport Corporation, rep. by its Managing
Director,Mushirabad, Hyderabad..... Appellant
Smt.Palepu Mamatha,Smt. Manne Gangubai.... Respondents
Counsel for Appellant:Smt. B.G.Uma Devi
Counsel for Respondent No.1: Sri M. Rajamalla Reddy
Counsel for Respondent No.2: Sri N. Sreedhar Reddy
<Gist:
>Head Note:
? Cases referred:
1. 2013 ACJ 1403
2. 2009 ACJ 1298 = (2009) 6 SCC 121
3. 2004 (1) ALD 117
4. 1987 ACJ 772
5. 2011 ACJ 662
6. (2013) 1 ACC 503
7. AIR 1976 SC 2595
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A Nos.197 and 1675 of 2009
COMMON JUDGMENT:
Aggrieved by the Award dated 01.11.2007 in O.P No.1002 of 2001 passed by
the Chairman, I Additional Motor Accident Claims Tribunal, Nizamabad (for short
"the Tribunal") the Andhra Pradesh State Road Transport Corporation/1st
respondent in the O.P preferred M.A.C.M.A No.197 of 2009 questioning the quantum
of compensation and the claimant preferred M.A.C.M.A No.1675 of 2009 on the
ground of inadequacy of compensation.
2) The factual matrix of the case is thus:
a) The claimant-Smt. Palepu Mamatha is the wife of deceased Palepu Gangadhar,
R/o. Shetpally Village of Morthad Mandal, Nizamabad District and respondent No.2
is mother of the deceased. The case of the claimant is that on 05.05.2001 at
about 15:30 hours, when the deceased was proceeding in a Jeep bearing No.ABV
7114 as driver from Armoor to Shetpally, suddenly a bus bearing No.AP 10 Z 8237
came in high speed from opposite side and dashed against the Jeep. In the
resultant accident, the deceased and others who were travelling in the Jeep
sustained multiple and grievous injuries and the deceased and three others died
on the spot. It is averred that the accident occurred due to the rash and
negligent driving of the APSRTC bus driver. It is averred that due to sudden
demise of husband of the claimant, she lost her sole breadwinner. On these
pleas, the claimant filed O.P.No.1002 of 2001 against APSRTC/1st respondent
claiming Rs.5,00,000/- as compensation under different heads.
b) Regarding 2nd respondent, it is averred that the father of the deceased
died when he was in the womb of his mother/ 2nd respondent and after giving
birth to the child, the 2nd respondent threw away the child in thorny bushes
when he was aged 1 1/2 years and she went away with one Manne Vittal and living
in Oddiat Village for the past 22 years and she never visited the deceased till
his death. It is further averred that 2nd respondent was not at all depending
upon the income of deceased and she is not entitled for any compensation but she
being the mother, formally added as party to this O.P.
c) The First respondent/APSRTC filed counter and opposed the claim, inter
alia contending that the accident was occurred only due to the fault of driver
of the jeep i.e, deceased but not the driver of the bus. It urged that claimant
should be put to strict proof of petition averments. R.1 further contended that
at the time of the accident, the deceased was carrying more passengers than
permissible under the MV Act and Rules and the bus was going slowly on its left
side of the road and the deceased who was proceeding on wrong side of the road
was unable to control the jeep and dashed against the bus. R.1 further
contended that the deceased was not holding any valid driving licence and as
such the Insurer of the Jeep was not made as party to this O.P. R.1 contended
that this O.P is bad for non-joinder of necessary party i.e, Insurer of the
Jeep.
d) Respondent No.2 filed counter and denied the petition averments and urged
to put the petitioner in strict proof of the same. R.2 contended that she is
the real mother of the deceased and she filed separate O.P.No.1086 of 2001
against R.1 and the petitioner. She denied that she has thrown away her
deceased son and submitted that she remarried after the death of father of
deceased. R.2 further contended that petitioner got remarried after the death
of deceased and as such the petitioner is not entitled to claim any
compensation.
e) During trial, PW.1 was examined and Exs.A1 to A4 were marked on behalf of
the claimant. RWs.1 to 4 were examined and Exs.B.1 to B.3 were marked on behalf
of respondents.
f) A perusal of the award shows that considering the oral evidence of RW.2 -
eye witness and also the documentary evidence Ex.A1-F.I.R and Ex.A2-charge
sheet, the Tribunal held that the bus driver was responsible for the accident.
In this regard, Tribunal did not believe the evidence of RW.4 - bus conductor.
g) Then coming to the quantum of compensation, the Tribunal having observed
that the deceased was aged 23 years and a driver, fixed his monthly income at
Rs.3,000/- and assessed the compensation under different heads as follows:
Loss of dependency Rs.4,08,000/-
Funeral expenses Rs. 5,000/-
Loss of consortium Rs. 15,000/-
_______________
Total Rs.4,28,000/-
_______________
Thus, the Tribunal granted total compensation of Rs.4,28,000/- with
proportionate costs and interest @ 7.5% p.a against 1st respondent.
h) So far as issue No.2 is concerned, the O.P.No.1086/01 filed by R.2 was
dismissed on 14.07.2005 giving liberty to contest and adduce evidence in the
O.P.No.1002 of 2001. The Tribunal held that claimant and 2nd respondent being
the legal heirs of the deceased, they are entitled to claim the compensation
amount equally.
Hence, the appeals by respective parties.
3) Heard arguments of Smt. B.G. Uma Devi, learned standing counsel for
APSRTC/appellant in MACMA No.197 of 2009, Sri M. Rajamalla Reddy, learned
counsel for claimant/appellant in MACMA No.1675 of 2009 and Sri N. Sreedhar
Reddy, learned counsel for R.2 in both the appeals.
4a) Learned standing counsel for APSRTC / appellant in MACMA No. 197 of 2009
firstly argued that the Tribunal erred in holding that the bus driver was
responsible for the accident. Learned counsel submitted that the evidence of
the bus conductor (RW.4) coupled with Ex.B.3 - judgment in C.C.No.102 of 2002 on
the file of Judicial Magistrate of First Class at Armoor would clearly show that
bus driver drove the bus at slow speed to his left side and on the other hand,
the deceased drove the Jeep at high speed and lost control and dashed the bus
and therefore, the Tribunal ought to have dismissed the claim in limini by
fixing the liability on the deceased.
b) Secondly, questioning the quantum of compensation, learned counsel argued
that the Tribunal erred in fixing the monthly income of the deceased at
Rs.3,000/- without there being any cogent evidence in this regard. Learned
counsel submitted, thereby the compensation was unduly escalated.
c) Thirdly, learned counsel submitted that the claim petition is not
maintainable in view of the fact that the claimant remarried after the death of
the deceased and hence she is no more a legal representative of the deceased.
Learned counsel thus prayed to allow its appeal and dismiss the appeal of
claimant.
5a) Per contra, learned counsel for claimant/appellant in M.A.C.M.A No.1675 of
2009 firstly argued that the accident was occurred purely due to the rash and
negligent driving of the bus driver and hence the Tribunal has rightly fixed
liability on him. He submitted that the claimant could establish the fault of
bus driver through RW.2 - an independent eye witness-cum-victim in the accident.
In view of it, the judgment of the criminal court exonerating the bus driver
from the liability cannot be considered. He further submitted that RW.4 - bus
conductor is only an interested witness to see that his department is exempted
from paying compensation. Therefore, the oral and documentary evidence adduced
by APSRTC cannot undo the independent evidence of RW.2.
b) Secondly regarding quantum of compensation, learned counsel argued that
the Tribunal granted meager compensation and it failed to award compensation
under certain heads. For instance, he submitted, the Tribunal did not grant
compensation for loss of estate. Learned counsel further submitted that the
claimant is entitled to Rs.1,00,000/- as compensation for loss of consortium as
per the latest judgment of Hon'ble Supreme Court reported in Rajesh and others
vs. Rajbir Singh and others1. Regarding compensation for loss of dependency, he
argued that the Tribunal ought to have accepted the monthly income of the
deceased as Rs.5,900/- in view of the evidence of RW.3 coupled with Ex.B.2. He
further submitted that the Tribunal ought to have accepted '18' as multiplier
instead of '17' following the decision reported in Smt. Sarla Verma and others
vs. Delhi Transport Corporation and another2.
c) Thirdly, he argued that the 2nd respondent is not entitled to any
compensation as she remarried immediately after the death of father of the
deceased and forlorned him. Hence compensation awarded to her may be withdrawn
and granted to the claimant.
He thus prayed to allow the appeal filed by claimant and dismiss the
appeal filed by APSRTC.
6) Learned counsel for R.2 argued that the remarriage of the mother will not
deprive her social status as the legal representative of the deceased and hence
she was rightly granted compensation by the Tribunal and in case compensation is
enhanced in the appeal, she may be allotted her due share.
7) In the light of above rival arguments, now the points for determination in
these appeals are:
1. Whether the accident was occurred due to the fault of driver of APSRTC bus
bearing No. AP 10 Z 8237 or due to the fault of driver of Jeep bearing No. ABV
7114?
2. Whether the claimant and 2nd respondent are the legal representatives of the
deceased and hence entitled to compensation?
3. Whether the compensation granted by the Tribunal is just and reasonable and
needs enhancement?
8) POINT No.1: The accident, involvement of the APSRTC bus and jeep and death
of the deceased are all admitted facts. The point is whether the bus driver or
the deceased as the driver of the Jeep or both were at fault. It may be noted
that the Tribunal opined that the bus driver was responsible for the accident.
To prove guilt of bus driver, the claimant and 2nd respondent examined RW.2 -
eye witness-cum-victim of the accident. Whereas APSRTC examined its conductor
as RW.4 and produced Ex.B.3 - judgment to show that bus driver was not
responsible for the accident. Hence the aforesaid evidence needs scrutiny.
9) Admittedly the accident was occurred on 05.05.2001 near Dargah in Chepur
Village in between Armoor and Shetpally. F.I.R was registered within short time
after the accident on the complaint lodged by one Gajjela Narsaiah who was a
passenger in the Jeep. His version in Ex.A.1 - F.I.R is that about 16
passengers were travelling in the Jeep and when the Jeep reached the Dargah, at
that time the RTC bus came in the opposite direction from Godavarikhani side
being driven by its driver at high speed and in a rash and negligent manner and
hit the Jeep and thereby four persons including the Jeep driver died on the spot
and others including RW.2 suffered injuries. He averred that the bus driver was
responsible for the accident. This is the earliest version regarding the manner
of occurrence of accident. The complainant was not examined but one of the
passengers in the Jeep i.e, RW.2 was examined by the claimant and R.2. RW.2
deposed in similar lines to Ex.A.1 and stated that when the Jeep reached
outskirts of Chepur Village on N.H-16 road, the offending bus came from opposite
direction driven by its driver at high speed and in a rash and negligent manner
and dashed their Jeep and thereby the driver and four inmates died on the spot
whereas himself and some others received injuries. He categorically avouched
that the accident was occurred due to the fault of bus driver. In the cross-
examination except suggesting that accident was occurred due to the fault of
Jeep driver which he emphatically denied, nothing useful was extracted to
conclude that the bus driver was not at fault and Jeep driver himself was at
fault. It should be noted that RW.2 is an independent witness and in Ex.A.2-
charge sheet he was cited as LW.4 i.e, injured-cum-eye witness.
10) Against the above evidence, RTC examined its conductor as RW.4. He
deposed that on seeing the Jeep, the bus driver slowed down the bus and
proceeding on the left side of the road but the Jeep driver who was carrying 20
persons went on wrong side of the road and at high speed and unable to control
the Jeep dashed the bus and thereby the accident was occurred. He stated that
the bus driver was not at fault. He stated that at the time of accident, he was
sitting in his seat. He denied the suggestion that he did not see the manner of
occurrence of the accident. He also denied the suggestion that bus driver was
at fault and not the Jeep driver. He produced Ex.B.3 - copy of judgment in
C.C.No.102 of 2002 on the file of Judicial Magistrate of First Class at Armoor
to show that in the resultant criminal case, the bus driver was acquitted. So
far as the judgment in a criminal case is concerned, law is clear that the same
cannot have a binding force in a civil case and the fault of the concerned
driver has to be decided basing on the evidence produced before the Tribunal.
Here we have the evidence of RW.2 on one hand and RW.4 on the other. As already
discussed supra, RW.2 is an independent witness and a victim in the accident.
He is not interested towards any of the drivers and therefore, if the Jeep
driver was at fault, there was no need for him to hide the said fact and
attribute the fault to bus driver. On the other hand, RW.4 belongs to RTC
department and thus an interested witness. No doubt he was examined on the plea
that bus driver was not in the service of RTC but on his own admission he was
sitting in the conductor's seat and claimed to have witnessed the accident.
Hence due to the distance between his seat and front windshield, his observing
the manner of occurrence of accident is also a doubtful one. So in any view of
the matter, the evidence of RW.2 is reliable than RW.4. Therefore,
unhesitatingly it can be held that the bus driver was responsible for the
accident. Thus, the Tribunal was right in holding so.
11) POINT No.2: Admittedly the claimant and 2nd respondent are the wife and
mother of the deceased - Palepu Gangadhar and they are his legal
representatives. However the respective rival contentions are that according to
2nd respondent, claimant after the death of deceased married one Bojanna of
Pippera Village and she is no more the L.R of the deceased, whereas the
contention of claimant is that 2nd respondent after the death of her husband
threw away her son i.e, deceased when he was aged about 1 1/2 year and married
one Manne Vittal of Oddiat Village in Morthad Mandal, Nizamabad District and
gave birth to three children and she has been living with them and hence she is
no more the L.R of the deceased.
a) So far as the claimant is concerned, the Tribunal held that except the
allegation, 2nd respondent failed to prove that the claimant remarried one
Bojanna of Pippera Village. The Tribunal also perused the decision reported in
National Insurance Company Limited vs. Eda Anjanamma and others3 cited by R.2
and held that the said decision has no application.
b) So far as the mother is concerned, the Tribunal considering Sections 8 and
14 of Hindu Succession Act, 1956 observed that the right inherited by her in the
estate of her deceased son became absolute and her remarriage is not a bar for
her to succeed as heir to her son. Thus, the Tribunal held that both claimant
and 2nd respondent are entitled to compensation and granted the compensation in
equal shares to them.
12) Now in the appeal again their right is in dispute. Hence their eligibility
to claim compensation needs scrutiny.
13) In this regard, the first legal point is whether remarriage of a wife
subsequent to the death of her husband in an accident disentitles her to claim
compensation. The above question came up for consideration in Eda Anjanamma's
case (3 Supra). In that case one E. Venkata Ramana died in a tractor accident.
His wife, father and mother filed claim petition. The Insurance Company inter
alia contended that wife is not entitled to claim compensation as she got
remarried during pendency of the claim petition. The facts proved that 1st
claimant was widow for about three years after the death of deceased and then
remarried. Learned single judge of this Court placing reliance on the decision
of a Division Bench of Orissa High Court reported in State of Orissa vs. Smt.
Archana Nayak and others4 held thus:
"20. After analyzing the above legal position it is made out that a widow of the
deceased who died in the motor accident is entitled for compensation for loss of
dependency, loss of consortium and the other items of compensation till she
ceases to be the legal representative of her late husband on her remarriage,
therefore, she cannot be denied compensation completely and it has to be reduced
on the basis of the period during which she remained as the widow of the
deceased."
It may be noted that the Division Bench of Orissa High Court on which
reliance was placed by the learned judge of this Court, decided that the widow
of the deceased will be entitled to compensation only for the period she
remained as his widow on the observation that under Section 110-A of the M.V.
Act claim application has to be made by all or any of the "legal
representatives" and the expression "legal representative" has not been defined
in the M.V. Act but it has been defined under Section 2(11) of the C.P.C to mean
a person who in law represents the estate of the deceased person and includes
any person who intermeddles with the estate of the deceased. Orissa High Court
further observed that with the remarriage, the wife ceases to be the legal
representative of her first husband though by virtue of Section 14 of the Hindu
Succession Act, the property of her husband vested in her cannot be divested
i.e, once a widow succeeds to the property of her husband and acquires an
absolute right over the same, she would not be divested of that absolute right
on her remarriage but she would certainly cease to be a legal representative of
the first husband on her remarriage. Under Section 22 of the Hindu Adoption and
Maintenance Act, 1956 she also ceases to be dependent and thus if a widow
remarries after the death of her husband her dependency ends.
14) So in the view of Orissa High court, though a remarriage will not divest
the right of a Hindu woman in the estate of her husband by virtue of Section 14
of Hindu Succession Act, 1956, still for the purpose of claiming compensation
due to death of her husband in an accident, she cease to be his legal
representative as soon as she remarries and therefore, she will be entitled to
compensation till she remained his widow only.
15) It must be noted that the right to claim compensation arises out of a
tortuous liability i.e, accident. Such a right to claim compensation against a
tortfeaser accrues to the wife of a deceased on the date of death of her husband
and not on the date of her subsequent remarriage. This right which accrued on
her will not be divested due to subsequent remarriage. If remarriage of a widow
is not a taboo or an offence and on the other hand, it is considered as a symbol
of progress by the social reformers, reinforcing it will lead the society to
regression than progression. Hence in my view, remarriage of the wife after the
death of a husband cannot be considered as a clog to claim compensation. In a
similar case reported in New India Assurance Company through it's Branch Manager
vs. Mona Girish @ Giridhari Chandak and others5, High Court of Bombay (Nagpur
Bench) observed thus:
"Here, one has to bear in mind that claim arises out of tort. As soon as the
tort is committed, the person against whom such tort is committed becomes
entitled to compensation. Therefore, if on the date the tort was committed, the
claimant was entitled to a certain compensation, any subsequent act cannot
deprive him or her of the said entitlement. As soon as the cause of action
arises, the person in whose favour it so arises can prosecute the same. The
provision in the form of Section 166 of the Act is a social Legislation. The
same, therefore, must be interpreted to further the objective of the said
section. The law does not prohibit a widow from remarrying. Claimant No. 1 was
only 25 years of age when her husband died. To my mind, it would be too much of
Insurance Company to expect that, if the claimant wants to have compensation,
she should not remarry and suffer miseries. In fact, a legislation was required
to be brought to overcome the evil of prohibition of remarriage of a widow. If
these aspects of the matter are considered, remarriage cannot be an impediment
in claiming the compensation nor can it be a ground to reduce the compensation
to which the widow is otherwise entitled."
Madras High Court also expressed the same view in the case of National
Insurance Company Limited rep. by its Branch Manager, Kottai Station Road,
Trichy vs. Nelphona and others6 and observed thus:
"Under Section 166 of the Motor Vehicles Act, it is provided that any of the
legal representatives can file the claim petition. Widow even after remarriage
continues to be the legal representative of her husband as there is no provision
under the Hindu Succession Act or any other law which lays down that after
remarriage she does not continue to be the legal representative. The right of
succession accrues immediately on the death of husband and in the absence of any
provision she cannot be divested from the property vested in her due to
remarriage."
16) Law cannot be static but dynamic mirroring the needs of society.
Restricting a wife to claim compensation only for the period she remained as
widow is nothing but fettering her growth. In view of this and the latest law
being in favour of a wife conferring on her full rights to claim compensation
even after her remarrying subsequent to the death of her husband, the view
expressed by the High Court of Orissa and reflected in the decision of the
Single Judge of this Court cannot be followed. For this reason, it is held,
even if the claimant remarries after the death of her husband she will not lose
her right to claim compensation. Even otherwise, the record shows that except
making allegation, the R.2 failed to prove that the claimant remarried one
Bojanna after the death of her husband. Hence she can be still considered as
the wife of deceased. Therefore, either way the claimant is entitled to
compensation.
17) Second respondent is concerned, she admitted that after the death of her
husband, she remarried one Manne Vittal, Oddiat Village and begot three children
and however she denied that she threw away the deceased in thorny buses while he
was a kid. She further denied that she was not depending on him. It may be
noted that under Section 8 of Hindu Succession Act, 1956 a mother along with
other Class I heirs, inherits the estate of her deceased son and this right is
an absolute one under Section 14 of the said Act and the said right will not be
divested due to her remarriage. Hon'ble Supreme Court considered this aspect in
a decision reported in Smt.Kasturi Devi vs. Deputy Director of Consolidation and
others7 and observed thus:
"We are, however, unable to agree with the view taken by the Deputy Director of
Consolidation which appears to be contrary to the written text of the Hindu Law.
Mulla in his 'Hindu Law', 14th Edn, while describing the incidents of a mother
regarding inheritance under Clause (iii) observed at p. 116 as follows:
(iii) Unchastity and remarriage---Unchastity of a mother is no bar to her
succeeding as heir to her son, nor docs remarriage constitute any such bar.
4. A large number of authorities have been cited in support of this view. We
find ourselves entirely in agreement with this view. Our attention has not been
invited to any text of the Hindu Law under which a mother could be divested of
her interest in the property either on the ground of unchastity or re-marriage."
18) So on the same analogy, it can be said that R.2 is also entitled to
compensation. This point is decided accordingly.
19) POINT No.3: This point is concerned, the submission on behalf of claimant
is that the Tribunal granted only Rs.15,000/- for loss of consortium and she
deserves more as per Rajesh's case (1 Supra). Considering the fact that
claimant lost her husband in the prime of her youth, compensation for loss of
consortium is enhanced to Rs.25,000/- relying on Rajesh's case (1 Supra).
20) Nextly, it is contended that the Tribunal erred in fixing the monthly
income of the deceased as Rs.3,000/-. However on perusal of the Paras 21 and 22
of the award, I hold that the Tribunal rightly fixed the earnings of the
deceased as Rs.3,000/- p.m and there is no need to review the same. Then
multiplier is concerned, the contention of claimant is that '18' instead of '17'
ought to have been taken as multiplier following the decision in Sarla Verma's
case (2 Supra), in view of the fact that the deceased was aged 23 years. There
is some force in the said contention. The age of the deceased is consistently
mentioned as 23 years in Ex.A.2- charge sheet and Ex.A.3- postmortem report in
Sarla Verma's case (2 Supra), Hon'ble Apex Court fixed multiplier '18' for the
deceased in the age group of 21 to 25 years Hence compensation for loss of
dependency has to reassessed basing on the said multiplier. Accordingly, the
annual income of the deceased i.e, Rs.36,000/- is multiplied with '18' which
comes to Rs.6,48,000/-. From this 1/3rd is deducted towards his personal
expenditure and balance amount of Rs.4,32,000/- is awarded as compensation.
Further a sum of Rs.5,000/- is awarded towards loss of estate as the same was
not granted by the Tribunal. Thus the total compensation payable is stated as
follows:
Loss of dependency Rs.4,32,000/-
Loss of estate Rs. 5,000/-
Loss of consortium Rs. 25,000/-
Funeral expenses Rs. 5,000/-
__________________
Total Rs.4,67,000/-
__________________
So the compensation is enhanced by Rs.39,000/- (Rs.4,67,000/- minus
Rs.4,28,000/-)
21) Considering the fact that claimant is the wife and a lonely lady, she is
held entitled to Rs.3,17,000/- and R.2 being mother and having children to look
after held entitled to Rs.1,50,000/-.
22) In view of the discussion in points 1 to 3 supra, the two appeals are
disposed of accordingly and ordered as follows:
i) M.A.C.M.A. No.197 of 2009 is dismissed and
ii) M.A.C.M.A.No.1675 of 2009 is allowed and compensation is enhanced by
Rs.39,000/- with proportionate costs and simple interest at 7.5% p.a from the
date of O.P till the date of realisation.
iii) Respondent No.1/APSRTC is directed to deposit the compensation amount
within one month from the date of this judgment, failing which execution can be
taken out against it.
iv) On such deposit or realisation, claimant in the O.P is entitled to
Rs.3,17,000/- with proportionate costs and simple interest to her share. She is
permitted to withdraw Rs.1,00,000/- to meet her immediate needs. Her balance
amount shall be kept in F.D in State Bank of India, Kanteshwar Branch, Nizamabad
for a period of three years.
v) Respondent No.2 in the O.P is entitled to Rs.1,50,000/-. She is permitted to
withdraw Rs.1,00,000/- to meet her immediate needs. Her balance amount shall be
kept in F.D in State Bank of India, Kanteshwar Branch, Nizamabad for a period of
three years.
vi) No order as to costs in the appeals.
As a sequel, miscellaneous applications if any pending in these appeals, shall
stand closed.
___________________________
U. DURGA PRASAD RAO, J
Date: 10.03.2014
Claim by wife of deceased =
on 05.05.2001 at
about 15:30 hours, when the deceased was proceeding in a Jeep bearing No.ABV
7114 as driver from Armoor to Shetpally, suddenly a bus bearing No.AP 10 Z 8237
came in high speed from opposite side and dashed against the Jeep. In the
resultant accident, the deceased and others who were travelling in the Jeep
sustained multiple and grievous injuries and the deceased and three others died
on the spot.
Mother of deceased /Respondent No.2 =
Regarding 2nd respondent, it is averred that the father of the deceased
died when he was in the womb of his mother/ 2nd respondent and after giving
birth to the child, the 2nd respondent threw away the child in thorny bushes
when he was aged 1 1/2 years and she went away with one Manne Vittal and living
in Oddiat Village for the past 22 years and she never visited the deceased till
his death. It is further averred that 2nd respondent was not at all depending
upon the income of deceased and she is not entitled for any compensation but she
being the mother, formally added as party to this O.P. =
VERSES VERSION
R.2 contended that she is
the real mother of the deceased and she filed separate O.P.No.1086 of 2001
against R.1 and the petitioner. She denied that she has thrown away her
deceased son and submitted that she remarried after the death of father of
deceased. R.2 further contended that petitioner got remarried after the death
of deceased and as such the petitioner is not entitled to claim any
compensation.
APSRTC / RESPONDENT NO.1
The First respondent/APSRTC filed counter and opposed the claim, inter
alia contending that the accident was occurred only due to the fault of driver
of the jeep i.e, deceased but not the driver of the bus.R.1 further
contended that the deceased was not holding any valid driving licence and as
such the Insurer of the Jeep was not made as party to this O.P. R.1 contended
that this O.P is bad for non-joinder of necessary party i.e, Insurer of the
Jeep.
WHO IS AT FAULT =
Evidence of eye witness and injured witness which was unshaken overweight the evidence of conductor who is an interested witness and as such Bus driver is at fault
EFFECT OF ACQUITTAL IN ACCIDENT CASE =
So
far as the judgment in a criminal case is concerned, law is clear that the same
cannot have a binding force in a civil case and the fault of the concerned
driver has to be decided basing on the evidence produced before the Tribunal.
whether remarriage of a wife
subsequent to the death of her husband in an accident disentitles her to claim
compensation.-= Law cannot be static but dynamic mirroring the needs of society.
Restricting a wife to claim compensation only for the period she remained as
widow is nothing but fettering her growth. In view of this and the latest law
being in favour of a wife conferring on her full rights to claim compensation
even after her remarrying subsequent to the death of her husband, the view
expressed by the High Court of Orissa and reflected in the decision of the
Single Judge of this Court cannot be followed. For this reason, it is held,
even if the claimant remarries after the death of her husband she will not lose
her right to claim compensation. Even otherwise, the record shows that except
making allegation, the R.2 failed to prove that the claimant remarried one
Bojanna after the death of her husband. Hence she can be still considered as
the wife of deceased. Therefore, either way the claimant is entitled to
compensation.
Smt.Kasturi Devi vs. Deputy Director of Consolidation and
others7 and observed thus:
"We are, however, unable to agree with the view taken by the Deputy Director of
Consolidation which appears to be contrary to the written text of the Hindu Law.
Mulla in his 'Hindu Law', 14th Edn, while describing the incidents of a mother
regarding inheritance under Clause (iii) observed at p. 116 as follows:
(iii) Unchastity and remarriage---Unchastity of a mother is no bar to her
succeeding as heir to her son, nor docs remarriage constitute any such bar.
4. A large number of authorities have been cited in support of this view. We
find ourselves entirely in agreement with this view. Our attention has not been
invited to any text of the Hindu Law under which a mother could be divested of
her interest in the property either on the ground of unchastity or re-marriage."
18) So on the same analogy, it can be said that R.2 is also entitled to
compensation. This point is decided accordingly.
Considering the fact that claimant is the wife and a lonely lady, she is
held entitled to Rs.3,17,000/- and R.2 being mother and having children to look
after held entitled to Rs.1,50,000/-.
2014 (March. Part) judis.nic.in/judis_andhra/filename=10985
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A No.197 of 2009 and batch
10-03-2014
Andhra Pradesh State Road Transport Corporation, rep. by its Managing
Director,Mushirabad, Hyderabad..... Appellant
Smt.Palepu Mamatha,Smt. Manne Gangubai.... Respondents
Counsel for Appellant:Smt. B.G.Uma Devi
Counsel for Respondent No.1: Sri M. Rajamalla Reddy
Counsel for Respondent No.2: Sri N. Sreedhar Reddy
<Gist:
>Head Note:
? Cases referred:
1. 2013 ACJ 1403
2. 2009 ACJ 1298 = (2009) 6 SCC 121
3. 2004 (1) ALD 117
4. 1987 ACJ 772
5. 2011 ACJ 662
6. (2013) 1 ACC 503
7. AIR 1976 SC 2595
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A Nos.197 and 1675 of 2009
COMMON JUDGMENT:
Aggrieved by the Award dated 01.11.2007 in O.P No.1002 of 2001 passed by
the Chairman, I Additional Motor Accident Claims Tribunal, Nizamabad (for short
"the Tribunal") the Andhra Pradesh State Road Transport Corporation/1st
respondent in the O.P preferred M.A.C.M.A No.197 of 2009 questioning the quantum
of compensation and the claimant preferred M.A.C.M.A No.1675 of 2009 on the
ground of inadequacy of compensation.
2) The factual matrix of the case is thus:
a) The claimant-Smt. Palepu Mamatha is the wife of deceased Palepu Gangadhar,
R/o. Shetpally Village of Morthad Mandal, Nizamabad District and respondent No.2
is mother of the deceased. The case of the claimant is that on 05.05.2001 at
about 15:30 hours, when the deceased was proceeding in a Jeep bearing No.ABV
7114 as driver from Armoor to Shetpally, suddenly a bus bearing No.AP 10 Z 8237
came in high speed from opposite side and dashed against the Jeep. In the
resultant accident, the deceased and others who were travelling in the Jeep
sustained multiple and grievous injuries and the deceased and three others died
on the spot. It is averred that the accident occurred due to the rash and
negligent driving of the APSRTC bus driver. It is averred that due to sudden
demise of husband of the claimant, she lost her sole breadwinner. On these
pleas, the claimant filed O.P.No.1002 of 2001 against APSRTC/1st respondent
claiming Rs.5,00,000/- as compensation under different heads.
b) Regarding 2nd respondent, it is averred that the father of the deceased
died when he was in the womb of his mother/ 2nd respondent and after giving
birth to the child, the 2nd respondent threw away the child in thorny bushes
when he was aged 1 1/2 years and she went away with one Manne Vittal and living
in Oddiat Village for the past 22 years and she never visited the deceased till
his death. It is further averred that 2nd respondent was not at all depending
upon the income of deceased and she is not entitled for any compensation but she
being the mother, formally added as party to this O.P.
c) The First respondent/APSRTC filed counter and opposed the claim, inter
alia contending that the accident was occurred only due to the fault of driver
of the jeep i.e, deceased but not the driver of the bus. It urged that claimant
should be put to strict proof of petition averments. R.1 further contended that
at the time of the accident, the deceased was carrying more passengers than
permissible under the MV Act and Rules and the bus was going slowly on its left
side of the road and the deceased who was proceeding on wrong side of the road
was unable to control the jeep and dashed against the bus. R.1 further
contended that the deceased was not holding any valid driving licence and as
such the Insurer of the Jeep was not made as party to this O.P. R.1 contended
that this O.P is bad for non-joinder of necessary party i.e, Insurer of the
Jeep.
d) Respondent No.2 filed counter and denied the petition averments and urged
to put the petitioner in strict proof of the same. R.2 contended that she is
the real mother of the deceased and she filed separate O.P.No.1086 of 2001
against R.1 and the petitioner. She denied that she has thrown away her
deceased son and submitted that she remarried after the death of father of
deceased. R.2 further contended that petitioner got remarried after the death
of deceased and as such the petitioner is not entitled to claim any
compensation.
e) During trial, PW.1 was examined and Exs.A1 to A4 were marked on behalf of
the claimant. RWs.1 to 4 were examined and Exs.B.1 to B.3 were marked on behalf
of respondents.
f) A perusal of the award shows that considering the oral evidence of RW.2 -
eye witness and also the documentary evidence Ex.A1-F.I.R and Ex.A2-charge
sheet, the Tribunal held that the bus driver was responsible for the accident.
In this regard, Tribunal did not believe the evidence of RW.4 - bus conductor.
g) Then coming to the quantum of compensation, the Tribunal having observed
that the deceased was aged 23 years and a driver, fixed his monthly income at
Rs.3,000/- and assessed the compensation under different heads as follows:
Loss of dependency Rs.4,08,000/-
Funeral expenses Rs. 5,000/-
Loss of consortium Rs. 15,000/-
_______________
Total Rs.4,28,000/-
_______________
Thus, the Tribunal granted total compensation of Rs.4,28,000/- with
proportionate costs and interest @ 7.5% p.a against 1st respondent.
h) So far as issue No.2 is concerned, the O.P.No.1086/01 filed by R.2 was
dismissed on 14.07.2005 giving liberty to contest and adduce evidence in the
O.P.No.1002 of 2001. The Tribunal held that claimant and 2nd respondent being
the legal heirs of the deceased, they are entitled to claim the compensation
amount equally.
Hence, the appeals by respective parties.
3) Heard arguments of Smt. B.G. Uma Devi, learned standing counsel for
APSRTC/appellant in MACMA No.197 of 2009, Sri M. Rajamalla Reddy, learned
counsel for claimant/appellant in MACMA No.1675 of 2009 and Sri N. Sreedhar
Reddy, learned counsel for R.2 in both the appeals.
4a) Learned standing counsel for APSRTC / appellant in MACMA No. 197 of 2009
firstly argued that the Tribunal erred in holding that the bus driver was
responsible for the accident. Learned counsel submitted that the evidence of
the bus conductor (RW.4) coupled with Ex.B.3 - judgment in C.C.No.102 of 2002 on
the file of Judicial Magistrate of First Class at Armoor would clearly show that
bus driver drove the bus at slow speed to his left side and on the other hand,
the deceased drove the Jeep at high speed and lost control and dashed the bus
and therefore, the Tribunal ought to have dismissed the claim in limini by
fixing the liability on the deceased.
b) Secondly, questioning the quantum of compensation, learned counsel argued
that the Tribunal erred in fixing the monthly income of the deceased at
Rs.3,000/- without there being any cogent evidence in this regard. Learned
counsel submitted, thereby the compensation was unduly escalated.
c) Thirdly, learned counsel submitted that the claim petition is not
maintainable in view of the fact that the claimant remarried after the death of
the deceased and hence she is no more a legal representative of the deceased.
Learned counsel thus prayed to allow its appeal and dismiss the appeal of
claimant.
5a) Per contra, learned counsel for claimant/appellant in M.A.C.M.A No.1675 of
2009 firstly argued that the accident was occurred purely due to the rash and
negligent driving of the bus driver and hence the Tribunal has rightly fixed
liability on him. He submitted that the claimant could establish the fault of
bus driver through RW.2 - an independent eye witness-cum-victim in the accident.
In view of it, the judgment of the criminal court exonerating the bus driver
from the liability cannot be considered. He further submitted that RW.4 - bus
conductor is only an interested witness to see that his department is exempted
from paying compensation. Therefore, the oral and documentary evidence adduced
by APSRTC cannot undo the independent evidence of RW.2.
b) Secondly regarding quantum of compensation, learned counsel argued that
the Tribunal granted meager compensation and it failed to award compensation
under certain heads. For instance, he submitted, the Tribunal did not grant
compensation for loss of estate. Learned counsel further submitted that the
claimant is entitled to Rs.1,00,000/- as compensation for loss of consortium as
per the latest judgment of Hon'ble Supreme Court reported in Rajesh and others
vs. Rajbir Singh and others1. Regarding compensation for loss of dependency, he
argued that the Tribunal ought to have accepted the monthly income of the
deceased as Rs.5,900/- in view of the evidence of RW.3 coupled with Ex.B.2. He
further submitted that the Tribunal ought to have accepted '18' as multiplier
instead of '17' following the decision reported in Smt. Sarla Verma and others
vs. Delhi Transport Corporation and another2.
c) Thirdly, he argued that the 2nd respondent is not entitled to any
compensation as she remarried immediately after the death of father of the
deceased and forlorned him. Hence compensation awarded to her may be withdrawn
and granted to the claimant.
He thus prayed to allow the appeal filed by claimant and dismiss the
appeal filed by APSRTC.
6) Learned counsel for R.2 argued that the remarriage of the mother will not
deprive her social status as the legal representative of the deceased and hence
she was rightly granted compensation by the Tribunal and in case compensation is
enhanced in the appeal, she may be allotted her due share.
7) In the light of above rival arguments, now the points for determination in
these appeals are:
1. Whether the accident was occurred due to the fault of driver of APSRTC bus
bearing No. AP 10 Z 8237 or due to the fault of driver of Jeep bearing No. ABV
7114?
2. Whether the claimant and 2nd respondent are the legal representatives of the
deceased and hence entitled to compensation?
3. Whether the compensation granted by the Tribunal is just and reasonable and
needs enhancement?
8) POINT No.1: The accident, involvement of the APSRTC bus and jeep and death
of the deceased are all admitted facts. The point is whether the bus driver or
the deceased as the driver of the Jeep or both were at fault. It may be noted
that the Tribunal opined that the bus driver was responsible for the accident.
To prove guilt of bus driver, the claimant and 2nd respondent examined RW.2 -
eye witness-cum-victim of the accident. Whereas APSRTC examined its conductor
as RW.4 and produced Ex.B.3 - judgment to show that bus driver was not
responsible for the accident. Hence the aforesaid evidence needs scrutiny.
9) Admittedly the accident was occurred on 05.05.2001 near Dargah in Chepur
Village in between Armoor and Shetpally. F.I.R was registered within short time
after the accident on the complaint lodged by one Gajjela Narsaiah who was a
passenger in the Jeep. His version in Ex.A.1 - F.I.R is that about 16
passengers were travelling in the Jeep and when the Jeep reached the Dargah, at
that time the RTC bus came in the opposite direction from Godavarikhani side
being driven by its driver at high speed and in a rash and negligent manner and
hit the Jeep and thereby four persons including the Jeep driver died on the spot
and others including RW.2 suffered injuries. He averred that the bus driver was
responsible for the accident. This is the earliest version regarding the manner
of occurrence of accident. The complainant was not examined but one of the
passengers in the Jeep i.e, RW.2 was examined by the claimant and R.2. RW.2
deposed in similar lines to Ex.A.1 and stated that when the Jeep reached
outskirts of Chepur Village on N.H-16 road, the offending bus came from opposite
direction driven by its driver at high speed and in a rash and negligent manner
and dashed their Jeep and thereby the driver and four inmates died on the spot
whereas himself and some others received injuries. He categorically avouched
that the accident was occurred due to the fault of bus driver. In the cross-
examination except suggesting that accident was occurred due to the fault of
Jeep driver which he emphatically denied, nothing useful was extracted to
conclude that the bus driver was not at fault and Jeep driver himself was at
fault. It should be noted that RW.2 is an independent witness and in Ex.A.2-
charge sheet he was cited as LW.4 i.e, injured-cum-eye witness.
10) Against the above evidence, RTC examined its conductor as RW.4. He
deposed that on seeing the Jeep, the bus driver slowed down the bus and
proceeding on the left side of the road but the Jeep driver who was carrying 20
persons went on wrong side of the road and at high speed and unable to control
the Jeep dashed the bus and thereby the accident was occurred. He stated that
the bus driver was not at fault. He stated that at the time of accident, he was
sitting in his seat. He denied the suggestion that he did not see the manner of
occurrence of the accident. He also denied the suggestion that bus driver was
at fault and not the Jeep driver. He produced Ex.B.3 - copy of judgment in
C.C.No.102 of 2002 on the file of Judicial Magistrate of First Class at Armoor
to show that in the resultant criminal case, the bus driver was acquitted. So
far as the judgment in a criminal case is concerned, law is clear that the same
cannot have a binding force in a civil case and the fault of the concerned
driver has to be decided basing on the evidence produced before the Tribunal.
Here we have the evidence of RW.2 on one hand and RW.4 on the other. As already
discussed supra, RW.2 is an independent witness and a victim in the accident.
He is not interested towards any of the drivers and therefore, if the Jeep
driver was at fault, there was no need for him to hide the said fact and
attribute the fault to bus driver. On the other hand, RW.4 belongs to RTC
department and thus an interested witness. No doubt he was examined on the plea
that bus driver was not in the service of RTC but on his own admission he was
sitting in the conductor's seat and claimed to have witnessed the accident.
Hence due to the distance between his seat and front windshield, his observing
the manner of occurrence of accident is also a doubtful one. So in any view of
the matter, the evidence of RW.2 is reliable than RW.4. Therefore,
unhesitatingly it can be held that the bus driver was responsible for the
accident. Thus, the Tribunal was right in holding so.
11) POINT No.2: Admittedly the claimant and 2nd respondent are the wife and
mother of the deceased - Palepu Gangadhar and they are his legal
representatives. However the respective rival contentions are that according to
2nd respondent, claimant after the death of deceased married one Bojanna of
Pippera Village and she is no more the L.R of the deceased, whereas the
contention of claimant is that 2nd respondent after the death of her husband
threw away her son i.e, deceased when he was aged about 1 1/2 year and married
one Manne Vittal of Oddiat Village in Morthad Mandal, Nizamabad District and
gave birth to three children and she has been living with them and hence she is
no more the L.R of the deceased.
a) So far as the claimant is concerned, the Tribunal held that except the
allegation, 2nd respondent failed to prove that the claimant remarried one
Bojanna of Pippera Village. The Tribunal also perused the decision reported in
National Insurance Company Limited vs. Eda Anjanamma and others3 cited by R.2
and held that the said decision has no application.
b) So far as the mother is concerned, the Tribunal considering Sections 8 and
14 of Hindu Succession Act, 1956 observed that the right inherited by her in the
estate of her deceased son became absolute and her remarriage is not a bar for
her to succeed as heir to her son. Thus, the Tribunal held that both claimant
and 2nd respondent are entitled to compensation and granted the compensation in
equal shares to them.
12) Now in the appeal again their right is in dispute. Hence their eligibility
to claim compensation needs scrutiny.
13) In this regard, the first legal point is whether remarriage of a wife
subsequent to the death of her husband in an accident disentitles her to claim
compensation. The above question came up for consideration in Eda Anjanamma's
case (3 Supra). In that case one E. Venkata Ramana died in a tractor accident.
His wife, father and mother filed claim petition. The Insurance Company inter
alia contended that wife is not entitled to claim compensation as she got
remarried during pendency of the claim petition. The facts proved that 1st
claimant was widow for about three years after the death of deceased and then
remarried. Learned single judge of this Court placing reliance on the decision
of a Division Bench of Orissa High Court reported in State of Orissa vs. Smt.
Archana Nayak and others4 held thus:
"20. After analyzing the above legal position it is made out that a widow of the
deceased who died in the motor accident is entitled for compensation for loss of
dependency, loss of consortium and the other items of compensation till she
ceases to be the legal representative of her late husband on her remarriage,
therefore, she cannot be denied compensation completely and it has to be reduced
on the basis of the period during which she remained as the widow of the
deceased."
It may be noted that the Division Bench of Orissa High Court on which
reliance was placed by the learned judge of this Court, decided that the widow
of the deceased will be entitled to compensation only for the period she
remained as his widow on the observation that under Section 110-A of the M.V.
Act claim application has to be made by all or any of the "legal
representatives" and the expression "legal representative" has not been defined
in the M.V. Act but it has been defined under Section 2(11) of the C.P.C to mean
a person who in law represents the estate of the deceased person and includes
any person who intermeddles with the estate of the deceased. Orissa High Court
further observed that with the remarriage, the wife ceases to be the legal
representative of her first husband though by virtue of Section 14 of the Hindu
Succession Act, the property of her husband vested in her cannot be divested
i.e, once a widow succeeds to the property of her husband and acquires an
absolute right over the same, she would not be divested of that absolute right
on her remarriage but she would certainly cease to be a legal representative of
the first husband on her remarriage. Under Section 22 of the Hindu Adoption and
Maintenance Act, 1956 she also ceases to be dependent and thus if a widow
remarries after the death of her husband her dependency ends.
14) So in the view of Orissa High court, though a remarriage will not divest
the right of a Hindu woman in the estate of her husband by virtue of Section 14
of Hindu Succession Act, 1956, still for the purpose of claiming compensation
due to death of her husband in an accident, she cease to be his legal
representative as soon as she remarries and therefore, she will be entitled to
compensation till she remained his widow only.
15) It must be noted that the right to claim compensation arises out of a
tortuous liability i.e, accident. Such a right to claim compensation against a
tortfeaser accrues to the wife of a deceased on the date of death of her husband
and not on the date of her subsequent remarriage. This right which accrued on
her will not be divested due to subsequent remarriage. If remarriage of a widow
is not a taboo or an offence and on the other hand, it is considered as a symbol
of progress by the social reformers, reinforcing it will lead the society to
regression than progression. Hence in my view, remarriage of the wife after the
death of a husband cannot be considered as a clog to claim compensation. In a
similar case reported in New India Assurance Company through it's Branch Manager
vs. Mona Girish @ Giridhari Chandak and others5, High Court of Bombay (Nagpur
Bench) observed thus:
"Here, one has to bear in mind that claim arises out of tort. As soon as the
tort is committed, the person against whom such tort is committed becomes
entitled to compensation. Therefore, if on the date the tort was committed, the
claimant was entitled to a certain compensation, any subsequent act cannot
deprive him or her of the said entitlement. As soon as the cause of action
arises, the person in whose favour it so arises can prosecute the same. The
provision in the form of Section 166 of the Act is a social Legislation. The
same, therefore, must be interpreted to further the objective of the said
section. The law does not prohibit a widow from remarrying. Claimant No. 1 was
only 25 years of age when her husband died. To my mind, it would be too much of
Insurance Company to expect that, if the claimant wants to have compensation,
she should not remarry and suffer miseries. In fact, a legislation was required
to be brought to overcome the evil of prohibition of remarriage of a widow. If
these aspects of the matter are considered, remarriage cannot be an impediment
in claiming the compensation nor can it be a ground to reduce the compensation
to which the widow is otherwise entitled."
Madras High Court also expressed the same view in the case of National
Insurance Company Limited rep. by its Branch Manager, Kottai Station Road,
Trichy vs. Nelphona and others6 and observed thus:
"Under Section 166 of the Motor Vehicles Act, it is provided that any of the
legal representatives can file the claim petition. Widow even after remarriage
continues to be the legal representative of her husband as there is no provision
under the Hindu Succession Act or any other law which lays down that after
remarriage she does not continue to be the legal representative. The right of
succession accrues immediately on the death of husband and in the absence of any
provision she cannot be divested from the property vested in her due to
remarriage."
16) Law cannot be static but dynamic mirroring the needs of society.
Restricting a wife to claim compensation only for the period she remained as
widow is nothing but fettering her growth. In view of this and the latest law
being in favour of a wife conferring on her full rights to claim compensation
even after her remarrying subsequent to the death of her husband, the view
expressed by the High Court of Orissa and reflected in the decision of the
Single Judge of this Court cannot be followed. For this reason, it is held,
even if the claimant remarries after the death of her husband she will not lose
her right to claim compensation. Even otherwise, the record shows that except
making allegation, the R.2 failed to prove that the claimant remarried one
Bojanna after the death of her husband. Hence she can be still considered as
the wife of deceased. Therefore, either way the claimant is entitled to
compensation.
17) Second respondent is concerned, she admitted that after the death of her
husband, she remarried one Manne Vittal, Oddiat Village and begot three children
and however she denied that she threw away the deceased in thorny buses while he
was a kid. She further denied that she was not depending on him. It may be
noted that under Section 8 of Hindu Succession Act, 1956 a mother along with
other Class I heirs, inherits the estate of her deceased son and this right is
an absolute one under Section 14 of the said Act and the said right will not be
divested due to her remarriage. Hon'ble Supreme Court considered this aspect in
a decision reported in Smt.Kasturi Devi vs. Deputy Director of Consolidation and
others7 and observed thus:
"We are, however, unable to agree with the view taken by the Deputy Director of
Consolidation which appears to be contrary to the written text of the Hindu Law.
Mulla in his 'Hindu Law', 14th Edn, while describing the incidents of a mother
regarding inheritance under Clause (iii) observed at p. 116 as follows:
(iii) Unchastity and remarriage---Unchastity of a mother is no bar to her
succeeding as heir to her son, nor docs remarriage constitute any such bar.
4. A large number of authorities have been cited in support of this view. We
find ourselves entirely in agreement with this view. Our attention has not been
invited to any text of the Hindu Law under which a mother could be divested of
her interest in the property either on the ground of unchastity or re-marriage."
18) So on the same analogy, it can be said that R.2 is also entitled to
compensation. This point is decided accordingly.
19) POINT No.3: This point is concerned, the submission on behalf of claimant
is that the Tribunal granted only Rs.15,000/- for loss of consortium and she
deserves more as per Rajesh's case (1 Supra). Considering the fact that
claimant lost her husband in the prime of her youth, compensation for loss of
consortium is enhanced to Rs.25,000/- relying on Rajesh's case (1 Supra).
20) Nextly, it is contended that the Tribunal erred in fixing the monthly
income of the deceased as Rs.3,000/-. However on perusal of the Paras 21 and 22
of the award, I hold that the Tribunal rightly fixed the earnings of the
deceased as Rs.3,000/- p.m and there is no need to review the same. Then
multiplier is concerned, the contention of claimant is that '18' instead of '17'
ought to have been taken as multiplier following the decision in Sarla Verma's
case (2 Supra), in view of the fact that the deceased was aged 23 years. There
is some force in the said contention. The age of the deceased is consistently
mentioned as 23 years in Ex.A.2- charge sheet and Ex.A.3- postmortem report in
Sarla Verma's case (2 Supra), Hon'ble Apex Court fixed multiplier '18' for the
deceased in the age group of 21 to 25 years Hence compensation for loss of
dependency has to reassessed basing on the said multiplier. Accordingly, the
annual income of the deceased i.e, Rs.36,000/- is multiplied with '18' which
comes to Rs.6,48,000/-. From this 1/3rd is deducted towards his personal
expenditure and balance amount of Rs.4,32,000/- is awarded as compensation.
Further a sum of Rs.5,000/- is awarded towards loss of estate as the same was
not granted by the Tribunal. Thus the total compensation payable is stated as
follows:
Loss of dependency Rs.4,32,000/-
Loss of estate Rs. 5,000/-
Loss of consortium Rs. 25,000/-
Funeral expenses Rs. 5,000/-
__________________
Total Rs.4,67,000/-
__________________
So the compensation is enhanced by Rs.39,000/- (Rs.4,67,000/- minus
Rs.4,28,000/-)
21) Considering the fact that claimant is the wife and a lonely lady, she is
held entitled to Rs.3,17,000/- and R.2 being mother and having children to look
after held entitled to Rs.1,50,000/-.
22) In view of the discussion in points 1 to 3 supra, the two appeals are
disposed of accordingly and ordered as follows:
i) M.A.C.M.A. No.197 of 2009 is dismissed and
ii) M.A.C.M.A.No.1675 of 2009 is allowed and compensation is enhanced by
Rs.39,000/- with proportionate costs and simple interest at 7.5% p.a from the
date of O.P till the date of realisation.
iii) Respondent No.1/APSRTC is directed to deposit the compensation amount
within one month from the date of this judgment, failing which execution can be
taken out against it.
iv) On such deposit or realisation, claimant in the O.P is entitled to
Rs.3,17,000/- with proportionate costs and simple interest to her share. She is
permitted to withdraw Rs.1,00,000/- to meet her immediate needs. Her balance
amount shall be kept in F.D in State Bank of India, Kanteshwar Branch, Nizamabad
for a period of three years.
v) Respondent No.2 in the O.P is entitled to Rs.1,50,000/-. She is permitted to
withdraw Rs.1,00,000/- to meet her immediate needs. Her balance amount shall be
kept in F.D in State Bank of India, Kanteshwar Branch, Nizamabad for a period of
three years.
vi) No order as to costs in the appeals.
As a sequel, miscellaneous applications if any pending in these appeals, shall
stand closed.
___________________________
U. DURGA PRASAD RAO, J
Date: 10.03.2014
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.