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CASE NO.: Appeal (civil)  3216 of 2007

PETITIONER: Mrs. Hafizun Begum

RESPONDENT: Md. Ikram Heque and Ors

DATE OF JUDGMENT: 24/07/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.   3216            OF 2007 (Arising out of S.L.P. (C) No. 15012 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      An interesting question has been raised in this appeal  about the acceptability of claim for grant of compensation  when the relatives are legal heirs but are not dependants of  the deceased, before the Motor Accident Claims Tribunal,  Darrang, Mangaldoi (in short "Tribunal").

3.      Appellant claimed to be the wife of one Md. Nurul Hoque.  She assailed the validity of the order dated 30.5.2005 in  Petition No.382/2005  filed by the brothers  of aforesaid Md.  Nurul Hoque (hereinafter referred to as the ’deceased’) in MAC  Case No.139/2001 filed under the Motor Vehicles Act, 1988  (in short the ’Act’).  

4.      Learned counsel for the appellant submitted that the  brothers of the deceased did not depend on him and they had  no right to file a petition which was allowed. The High Court  found that the widow of a Muslim who has no issue will get  one fourth share in the property of the deceased-husband and  remaining part will go to the brothers.  Question was about  the right of the brothers who were not dependants on the  deceased to get their share in the compensation awarded.  Accordingly, the appeal was dismissed.  

5.      Learned counsel for the appellant submitted that the  High Court was not justified in rejecting the stand of the  appellant. Learned counsel for the respondents, however,  supported the order.   6.      Even if there was no dependence, there is a loss to the  estate and a person who is a legal representative but not  dependant can yet be a beneficiary of the estate. It was,  therefore, submitted that a realistic and pragmatic view  should be taken.  

7.      Section 166 of the Act corresponds to Section 110 of the  Motor Vehicles Act, 1939 (hereinafter referred to as the ’Old  Act’) and the same reads as follows:

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"Application for compensation:- (1) An  application for compensation arising out of  an accident of the nature specified in sub- section (1) of Section 165 may be made-

(a)     by the person who has sustained the  injury; or

(b)     by the owner of the property; or

(c)     where death has resulted from the  accident, by all or any of the legal  representatives of the deceased; or

(d)     by any agent duly authorized by the  person injured or all or any of the legal  representatives of the deceased, as the case  may be.

Provided that where all the legal  representatives of the deceased have not  joined in any such application for  compensation, the application shall be made  on behalf of or for the benefit of all the legal  representatives  of the deceased and the  legal representatives who have not so joined,  shall be impleaded as respondents to the  application.  

(2)      Every application under sub-section  (1) shall be made, at the option of the  claimant, either to the Claims Tribunal  having jurisdiction over the area in which  the accident occurred or to the Claims  Tribunal within the local limits of whose  jurisdiction the claimant resides or carries  on business or within the local limits of  whose jurisdiction the defendant resides,  and shall be in such form and contain such  particulars as may be prescribed:

Provided that where no claim for  compensation under Section 140 is made in  such application, the application shall  contain a separate statement to that effect  immediately before the signature of the  applicant.

               xx                      xx              xx

(4) The Claims Tribunal shall treat any  report of accidents forwarded to it under  sub-section (6) of Section 158 as an  application for compensation under this  Act."

8.     In terms of clause (c) of sub-section (1) of Section 166 of  the Act in case of death, all or any of the legal representatives  of the deceased become entitled to compensation and any  such legal representative can file a claim petition. The proviso  to said sub-section makes the position clear that where all  the legal representatives had not joined, then application can  be made on behalf of the legal representatives of the deceased  by impleading those legal representatives as respondents.  

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9.      Section 168 of the Act reads as follows:  

"Award of the Claims Tribunal:- On receipt of  an application for compensation made under  Section 166,  the Claims Tribunal shall, after  giving notice of the application to the insurer  and after giving the parties (including the  insurer) an opportunity of being heard, hold  an inquiry into the claim or, as the case may  be, each of the claims and, subject to the  provisions of Section 162 may make an award  determining the amount of compensation  which appears to it to be just and specifying  the person or persons to whom compensation  shall be paid and in making the award the  Claims Tribunal shall specify the amount  which shall be paid by the insurer or owner  or driver of the vehicle involved in the  accident or by all or any of them, as the case  may be:

       Provided that where such application  makes a claim for compensation under  section 140 in respect of the death or  permanent disablement of any person, such  claim and any other claim (whether made in  such application or otherwise) for  compensation in respect of such death or  permanent disablement shall be disposed of  in accordance with the provisions of Chapter  X.

(2)     The Claims Tribunal shall arrange to  deliver copies of the award to the parties  concerned expeditiously and in any case  within a period of fifteen days from the date of  the award.  

(3)     When an award is made under this  section, the person who is required to pay any  amount in terms of such award shall, within  thirty days of the date of announcing the  award by the Claims Tribunal, deposit the  entire amount awarded in such manner as  the Claims Tribunal may direct."                  

10.     The Tribunal has a duty to make an award, determine  the amount of compensation which is just and proper and  specify the person or persons to whom such compensation  would be paid. The latter part relates to the entitlement of  compensation by a person who claims for the same.  

11.     According to Section 2(11) of Code of Civil Procedure,  1908 (in short the ’CPC’), "legal representative" means a  person who, in law, represents the estate of a deceased  person, and includes any person who intermeddles with the  estate of the deceased and where a party sues or is sued in a  representative character, the person on whom the estate  devolves on the death of the party so suing or sued. Almost in  similar terms is the definition of legal representative under  the Arbitration and Conciliation Act, 1996, i.e. under Section  2(1)(g).

12.     As observed by this Court in Custodian of Branches of

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BANCO National Ultramarino v. Nalini Bai Naique (AIR 1989  SC 1589) the definition contained in Section 2(11), CPC is  inclusive in character and its scope is wide, it is not confined  to legal heirs only. Instead, it stipulates that a person who  may or may not be legal heir, competent to inherit the  property of the deceased, can represent the estate of the  deceased person. It includes heirs as well as persons who  represent the estate even without title either as executors or  administrators in possession of the estate of the deceased. All  such persons would be covered by the expression ’legal  representative’.  As observed in Gujarat State Road Transport  Corporation v. Ramanbhai Prabhatbhai and Anr. (AIR 1987  SC 1690) a legal representative is one who suffers on account  of death of a person due to a motor vehicle accident and need  not necessarily be a wife, husband, parent and child.

13.     There are several factors which have to be noted. The  liability under Section 140 of the Act does not cease because  there is absence of dependency. The right to file a claim  application has to be considered in the background of right to  entitlement. While assessing the quantum, the multiplier  system is applied because of deprivation of dependency. In  other words, multiplier is a measure. There are three stages  while assessing the question of entitlement. Firstly, the  liability of the person who is liable and the person who is to  indemnify the liability, if any. Next is the quantification and  Section 166 is primarily in the nature of recovery  proceedings. As noted above, liability in terms of Section 140  of the Act does not cease because of absence of dependency.  

14.     Section 165 of the Act also throws some light on the  controversy. The explanation includes the liability under  Sections 140 and 163-A.  

15.     These aspects were highlighted in Smt. Manjuri Bera v.  The Oriental Insurance Co Ltd. and Anr. (JT 2007 (5) SC 78).          16.     Since the basic issue has not been elaborately dealt with   by the High Court, we remit the matter to the High Court to  decide it afresh in the light of the decision in Manjuri’s case  (supra).   

17.     The appeal is disposed of accordingly. No costs.