Andy, Mary and Muthu (Appellants) v. N. Nadaranjan, Annapoorni and National Insurance Co. Ltd. (MACA No. 1875/2008)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943 ``` ## `MACA NO. 1875 OF 2008` ``` AGAINST THE AWARD DATED 25.11.2006 IN OP(MV)NO.379/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD. ``` ## `APPELLANTS/PETITIONERS:` ``` 1ANDY, S/O. MANJAN, GIRIJAN COLONY, PAMPAMPALLAM POST, PALAKKAD DISTRICT. ``` ``` 2MARY, S/O.MANJAN, GIRIJAN COLONY PAMPAMPALLAM POST, PALAKKAD DISTRICT. ``` ``` 3MUTHU, S/O.MANJAN, GIRIJAN COLONY, PAMPAMPALLAM POST, PALAKKAD DISTRICT. ``` ``` BY ADV SRI.A.R.GANGADAS ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1N.NADARAJAN, DOOR NO.43, AAMBAKADAL, SANTHYA SUGAR COLONY, VELLAYAMPALAYALAM, BHAVANI ERODE, TAMIL NADU. ``` ``` 2D.ANNAPOORNI, W/O.DURAISWAMY, A2 RAMAMUTHU COMPLEX, PALAYAPALAYAM PIRIVU, SURAMPATH, ERODE. 3NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, 10/40E, RAJAJI STREET, KANGAYAM 638 701. ``` M.A.C.A.No.1875/2008 -:2:- ``` BY ADV SRI.LAL GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1875/2008 -:3:- Dated this the 24[th] day of November,2021 ## **J U D G M E N T** The appellants were the petitioners in O.P. (MV)No.379/1998 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988,(in short, ‘Act’), claiming compensation on account of the death of 'Chinnavan'(deceased)-the maternal uncle of the appellants. It was their case that, on 11.09.1995, while the deceased was walking along the road at Chullimada, a lorry bearing registration No.TAL-5695 (lorry), driven by the first respondent in a negligent manner, hit the deceased. The deceased sustained M.A.C.A.No.1875/2008 -:4:- serious injuries and succumbed to the same after four days. The deceased was aged 60 years and was a coolie worker by profession and earning a monthly income of Rs.3,000/-. The appellants were the dependants of the deceased. The second respondent was the owner and the third respondent was the insurer of the lorry. Hence, the appellants claimed a compensation of Rs.3,97,000/- from the respondents, which was limited to Rs.2,00,000/-. 3. The respondent Nos. 1 and 2 did not contest the proceedings. 4. The third respondent had filed a written statement contending that the accident occurred due to the negligence of the deceased. The third respondent also contended that the appellants had not proved the age, income, occupation of the deceased and their relationship with him. However, the third M.A.C.A.No.1875/2008 -:5:- respondent admitted that the lorry had a valid insurance coverage. 5. The first appellant was examined as PW1 and Exts.A1 to A9 were marked through him in evidence. The respondents did not let it any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, dismissed the claim petition on the sole ground that the appellants had not produced the legal heirship certificate to establish that the appellants were the legal heirs of the deceased. 7. Aggrieved by the dismissal of the claim petition, the petitioners are in appeal. 8. Heard; Sri. A.R.Gangadas, the learned counsel appearing for the appellants/petitioners and Sri. Lal George, the learned counsel appearing for the third respondent-insurer. 9. The question that arises for consideration in M.A.C.A.No.1875/2008 -:6:- the appeal is whether the dismissal of the claim petition is correct or not? 10. The definite case of the appellants in the claim petition was that the deceased was their mother’s brother, who was a bachelor. In order to prove their assertion, the first appellant was examined as PW1. He had deposed in line with the averments in the claim petition. Even though PW1 was cross-examined, the third respondent had not disputed that the deceased was the maternal uncle of the appellants. All that was put to PW1 was that, he had not produced the legal heirship certificate of the deceased. 11. In **Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and Anr.** [(1987) 3 SCC 234], the Hon’ble Supreme Court in paragraph No.13 has M.A.C.A.No.1875/2008 -:7:- succinctly observed that, we should remember that in an Indian family, brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the breadwinner of the family and, if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855. In a claim filed under Section 166 of the Act, what is required to be looked into is, whether the claimants are the legal representatives of the deceased. 12. This Court in **United India Assurance Company Ltd.v. Shalumol & Ors.** [(2021) SCC Online Ker. 3209] has held that the financial dependency is not the sole criteria to decide a claim under Section 166 of the Act. 13. Going by the uncontroverted averments in M.A.C.A.No.1875/2008 -:8:- the claim petition and the ratio in **Ramanbhai Prabhatbhai** and **Shalumol** (supra), I hold that the appellants are the legal representatives of the deceased falling within the purview of Section 166 of the Act. 14. Nevertheless, it is on record and undisputed that the appellants were aged 40, 35 and 55, respectively. They were leading independent lives and were not financially dependent on the deceased in order to claim compensation for ‘loss of dependency’. Thus, I hold that they are entitled to claim compensation for ‘loss of estate’ and ‘funeral expenses’ and the amount awarded under Section 140 of the Act. 15. In the above factual and legal matrix, I hold that the appellants are entitled to an amount of Rs.15,000/- each towards ‘loss of estate’ and ‘funeral M.A.C.A.No.1875/2008 -:9:- expenses’, as laid down in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)]. 16. Hence, I do order that, in view of the above findings, the compensation awarded by the Tribunal under Section 140 of the Act, which has already been disbursed to the appellants, shall not be recovered from them. In the result, the appeal is allowed in part, by setting aside the impugned award in O.P. (MV)No.379/1998 and allowing the claim petition in part, by directing the third respondent to pay the appellants an amount of Rs.30,000/- which shall be disbursed to them in equal shares, and also restraining the third respondent from recovering the compensation amount paid under Section 140 of the Act. In the peculiar facts and circumstances of the M.A.C.A.No.1875/2008 -:10:- case, the parties shall bear their respective costs. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/24.11.21 //True copy/ P.A.To Judge