Sreerangan v. The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 8TH DAY OF OCTOBER 2014/16TH ASWINA, 1936** **OP (MAC).No. 1575 of 2012 (O) -------------------------------------------** **AGAINST THE ORDER DATED 04/06/2011 IN IA.NO.232/2011 IN OP(MV) 1213/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD** ## **-------------** ## **PETITIONER(S):** **----------------------** **SREERANGAN, S/O.KALIAPPA GOUNDER, 4/319, NAKKUPATHY PIRIVU AGALI, PALAKKAD DISTRICT.** **BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW** ## **RESPONDENT(S):** **-------------------------** **1. THE NEW INDIA ASSURANCE CO.LTD, KUNNAMKULAM, ORISON BUILDING, WADAKKANCHERRY ROAD, KUNNAMKULAM POST-680503, THRISSUR DISTRICT.** **2. THE NEW INDIA ASSURANCE COMPANY LIMITED, OTTAPALAM, JRJ COMPLEX, OTTAPALAM POST-679101, PALAKKAD DISTRICT.** **R1 & R2 BY ADV. SRI.P.G.GANAPPAN** **THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 08-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **OP (MAC).No. 1575 of 2012 (O)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **------------------------------------** **EXT-P1 TRUE COPY OF THE AWARD DATED 17.12.2008 IN OP(MV)NO.1213 OF 2005 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,PALAKKAD. EXT-P2 TRUE COPY OF THE PETITION IA.232 OF 2011 IN OP(MV) NO1213 OF 2005 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,PALAKKAD. EXT-P3 TRUE COPY OF THE ORDER DATED 04.06.2011 IN IA.232 OF 2011 IN OP(MV)NO.1213 OF 2005 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD. EXT-P4 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE NO.II-5294/09 DATED 27.11.2010 ISSUED BY THE TAHSILDAR,MANNARKKAD.** ## **RESPONDENTS' EXHIBITS** **--------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **“C.R.”** K. Vinod Chandran, J ------------------------------------------ O.P.(MAC).No.1575 of 2012-O -----------------------------------------Dated this the 08[th] day of October, 2014 ## **JUDGMENT** The petitioner is one of the claimants in O.P.(MV). No.1213 of 2005, before the Motor Accidents Claims Tribunal [MACT], Palakkad. The claim was filed for compensation with respect to the death of the petitioner’s son in a motor accident, wherein the petitioner’s son, who was riding a bicycle, was hit by a jeep and was run over by a lorry coming from the opposite side. The respondents 1 and 2 are the insurers of the vehicles, who were mulcted with equal liability as per Exhibit P1 award, arrived at on settlement. 2. The wife of the petitioner and two other sons were the other claimants before the Tribunal. The Tribunal rightly declined the claim of the two other sons and the amount of Rupees Three lakhs arrived at, on settlement, was equally apportioned between 1[st] and 2[nd] claimants, being the petitioner herein and his wife. Rupees One lakh each was directed to be paid to the father and mother of the deceased and the balance was directed to be deposited in Fixed Deposit, equally in their respective names. **- 2 -** OP(MAC).No.1575 of 2012 3. The controversy arose when Exhibit P2 application was filed before the Tribunal seeking disbursement of the amount deposited, which was subsequently converted as Fixed Deposit Receipt. The application filed as I.A.No.232 of 2011 was rejected by Exhibit P3 on the ground that no legal heirship certificate was produced. 4. This Court called for a report from the Tribunal and the Tribunal has reported that the award specifically directed production of legal heirship certificate and, hence, Exhibit P3 dismissal was made. The report goes one step ahead and explains the dismissal further on the premise that there was no averment in the affidavit filed along with the application that the petitioner was a legal representative of the deceased and that he would not be shown as a legal heir of the deceased, since the mother of the deceased, the Class I heir, is alive. 5. It is not as if the Tribunal was not aware of the legal position. A lacuna in the affidavit could have been directed to be cured and that is how the judicial system inspires confidence in the minds of people. This Court would abstain from making any observation regarding the conduct of the Tribunal, since the award **- 3 -** OP(MAC).No.1575 of 2012 stipulated production of a legal heirship certificate and the Tribunal dealing with an Interlocutory Application would have found it difficult to go beyond the stipulation. Suffice it to say that what has now been stated in the report, to impress the superior Court, when report was called for, ideally should have found a place in the order impugned herein. 6. This Court, however, is not fettered by such technicalities, especially when jurisdiction under Article 227 of the Constitution is invoked and this Court could, definitely, in such writ/original petition invoke the extraordinary jurisdiction under Article 226 of the Constitution, to do justice. 7. The facts leading to the award are not necessary, since the issue is only whether a legal heirship certificate is required for disbursement of amounts to dependants who claimed compensation before the Tribunal, as legal representatives. The issue is not _res integra,_ in view of the decisions in _**Gujarat State Road Trans.Corpn. v. Ramanbhai Prabhatbhai**_ **[1987 ACJ 561],** _**Custodian, Branches of BANCO National Ultramarino v. Nalini Bai**_ **[AIR 1989 SC 1589]** and _**Cheriyakutty Mammi v. Ummerkutty**_ **[1995 (2) KLT 555],** relied on by the learned counsel for the petitioner. **- 4 -** OP(MAC).No.1575 of 2012 8. In _**Ramanbhai Prabhatbhai**_ ( _supra_ ) the question whether, only those persons who were entitled to claim damages under the Fatal Accidents Act, 1855; on the death of a person, viz., the wife, husband, parent and child of the deceased, alone would be entitled to claim damages under the Motor Vehicles Act, 1939 [for brevity “M.V.Act”] came up for consideration. Such restriction was argued on the ground that Chapter VII of the M.V.Act was merely procedural, providing an alternate forum and the substantial law remained to be governed by the Fatal Accidents Act. The Supreme Court noticing the cleavage of opinion between the various High Courts, upheld the view in _**Megjibhai Khimji Vira v. Chaturbhai Taljabhai**_ **[1977 ACJ 253 (Gujarat)]** that: “... a claim for compensation arising out of the use of a motor vehicle would be exclusively governed by the provisions of sections 110 to 110-F of the Act and bears no connection to claims under the 1855 Act and the Claims Tribunal need not follow the principles laid down under the latter Act”. 9. The provisions of the M.V.Act were held to have superseded the provisions of the Fatal Accidents Act insofar as motor vehicle accidents are concerned, to the extent of a 'new right' being **- 5 -** OP(MAC).No.1575 of 2012 conferred on an 'enlarged' group of persons for whose benefit the application can be made. The limitations of the Fatal Accidents Act were held to be incapable of restricting the new right under the M.V.Act. The Hon'ble Supreme Court also noticed the fact that the Fatal Accidents Act of 1846 in England; taking cue from which Fatal Accidents Act was enacted in India in 1855, had undergone substantial amendments expanding the persons who could make an application for damages. Not only did the Fatal Accidents Act, 1855 remain as such, the Supreme Court noticed with surprise that the 85[th] report of the Law Commission recommended that the entitlement to claim damages for death under the M.V.Act should be confined to that under the Fatal Accidents Act. But, the Parliament's refusal to make amendments on that count to the M.V.Act, when other extensive modifications were made, was held to be indicative of the intention to give a wider meaning to the expression 'legal representative' rather than confine it to spouse, parent and children. 10. The definition of 'legal representative' in the CPC was found to be not applicable to a case before the Claims Tribunal; but such definition was nevertheless found, to be as the expression is understood in common parlance. On who comprises 'legal **- 6 -** OP(MAC).No.1575 of 2012 representative' as per the CPC, useful reference can be made to _**Nalini Bai**_ ( _supra_ ): **“** 'Legal representative' as defined in Civil Procedure Code which was admittedly applicable to the proceedings in the suit, 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. **The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should 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”.** If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased **”.** (emphasis supplied) **- 7 -** OP(MAC).No.1575 of 2012 11. A Division Bench of this Court in _**Cheriyakutty Mammi**_ ( _supra_ ) considered the very same issue involved in this case. Therein, a muslim husband had claimed compensation for the death of his wife in a motor accident, wherein the siblings of the wife got themselves impleaded and claimed one-half share. The Tribunal apportioned the awarded sum in the ratio of 2 : 1 between the husband and the siblings, which was challenged before this Court by way of appeal. This Court specifically referred to Rule 2(k) of the Kerala Motor Vehicles Rules, 1989, which contained a definition of “legal representatives of the deceased”, as persons “who in law are entitled to inhereit the estate of the deceased if he had left any estate at the time of his death and includes any legal heir of the deceased and the executor or administrator of the estate of the deceased”. Hence, the Rules specifically indicated that the connotation “legal representative” is to be understood in the context of the specific statute and Rules, and was wider than the term “legal heir” and a legal heir was one of the categories included in such wider definition. 12. The word injury used in Section 166 of the Motor Vehicles Act, 1988 was also held to have a wider connotation with respect to damages. “Loss of dependency” was held to be coming **- 8 -** OP(MAC).No.1575 of 2012 within the meaning of the word “injury”. Then, a father who suffered 'loss of dependency' by the death of his son would be entitled to file an application under clause (a) of Section 166(1) of the M.V.Act, was the clear finding. The Division Bench held so: “13. The conclusion which can be made is that under S.166(1)(a) of the Act a claim can be made by any person who suffered on account of accident arising out of the use of a motor vehicle. Such person would include those who lost dependency, consortium and any other kind of support as a consequence of death of the victim in the accident. S.166(1)(c) relates to claim by legal representatives of a deceased victim in respect of the loss or damages enured to the estate of the deceased. When all the legal representatives have not joined in such a claim the application should be made on behalf of or for the benefit of all of them and such others should be made respondents in the claim”. 13. What emerges hence is the clear principle upon which, the entitlement to claim compensation, on the death of a person in a motor accident, is to be adjudicated upon. Any 'legal representative' including a 'legal heir' and not confined to a subsisting status governed by the laws of succession, would be entitled to claim **- 9 -** OP(MAC).No.1575 of 2012 compensation; provided he/she sustains an injury from the death caused by the motor accident; the injury being not one to be understood as one caused to the body of the individual involved in an accident. 14. The father of the deceased, who is the petitioner herein, had approached the Tribunal, together with his wife claiming 'loss of dependency' on the death of his son in a motor vehicle accident. The petitioner, hence, is entitled to the sum awarded, as apportioned to himself in the award, even without the production of a legal heirship certificate. It is so declared and the impugned order is set aside, directing the Tribunal to disburse the amount of Rs.1,00,000/- [Rupees one lakh only] to the petitioner herein, with any interest accrued, within three weeks of the production of a certified copy of this judgment. Original Petition is allowed. No costs. Sd/- K.Vinod Chandran Judge. vku/- ( true copy )