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Budha Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 144 of 1974
Judge
Reported inAIR1981MP151
ActsMotor Vehicles Act, 1939 - Sections 110A; Fatal Accidents Act - Sections 1A; Code of Civil Procedure (CPC) - Sections 2(11)
AppellantBudha
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateH.S. Rajpal, Adv.
Respondent AdvocateS.R. Joshi, Govt. Adv.
Cases Referred(Mohammad Habibullah v. K. Seethammal). In
Excerpt:
- - he, therefore, contended that in this context, therefore, it could not be said that the brother who is not entitled to claim compensation under the fatal accidents act could claim compensation as he will fall within the category of the definition of 'legal representatives'.he, therefore, contended that the view taken by the learned single judge is apparently inconsistent with the earlier division bench decisions of this court and, it, therefore, does not lay down the good law. this provision, therefore, clearly enacts that although the action may be brought by even a representative but it could be for the benefit of the persons mentioned in this clause and, therefore, if any one of the persons mentioned in section 1a are not alive or are not in existence none else can claim.....oza, j.1. this miscellaneous appeal has been filed by the appellant against an order passed by the motor accidents claims tribunal, indore, dismissing the claim of the appellant on the ground that the appellant is not entitled to compensation as he does not fall within the category of persons mentioned in the provisions of the fatal accidents act.2. this appeal was heard by a learned single judge. the learned single judge felt that the consistent view of this court as laid down in kasturilal v. prabhakar (1970 acc cj 1): (air 1971 madh pra 145) and suman v. the general manager, m. p. s. r. t corporation (1970 acc cj 280) is that the motor vehicles act, section 110a does not confer a new right but only provides an expeditious remedy and, therefore, except the persons entitled to claim.....
Judgment:

Oza, J.

1. This miscellaneous appeal has been filed by the appellant against an order passed by the Motor Accidents Claims Tribunal, Indore, dismissing the claim of the appellant on the ground that the appellant is not entitled to compensation as he does not fall within the category of persons mentioned in the provisions of the Fatal Accidents Act.

2. This appeal was heard by a learned single Judge. The learned single Judge felt that the consistent view of this Court as laid down in Kasturilal v. Prabhakar (1970 Acc CJ 1): (AIR 1971 Madh Pra 145) and Suman v. The General Manager, M. P. S. R. T Corporation (1970 Acc CJ 280) is that the Motor Vehicles Act, Section 110A does not confer a new right but only provides an expeditious remedy and, therefore, except the persons entitled to claim compensation under the Fatal Accidents Act no others, even if they fall within the ambit of the term legal representatives' can claim compensation. The learned Judge, therefore, also felt that the view taken by Hon'ble Shri Justice R. K. Vijaivargiya in Misc. Appeal No. 161 of 1974, decided on 2-4-1979 (Bhagwatidin v. Ghisalal), cannot be accepted and in order to resolve this conflict the learned single Judge has made a reference for seeking an answer to the question :

'Whether, apart from the beneficiaries mentioned in Section 1A of the Fatal Accidents Act, 1855, who are, also 'legal representatives' of the deceased as contemplated by Section 2(11) of the C. P. Code, 1908, or, any other legal representatives of the deceased, such as brothers or sisters, who might be the sole heirs of the deceased, are entitled to claim compensation for themselves in proceedings under Sections 110-A to 110-F of the Motor Vehicles Act, 1939, on account of the death of the deceased due to accident, arising from the use of the motor vehicles?'

3. It is not in dispute that the appellant is the brother of the deceased, Kalu, who on 31st of December, 1971, at about 6 p.m. was going towards Mhow with a hand pulled cart. An Army truck driven rashly and negligently by respondent No. 2 came from Mhow, knocked down Kalu and as a result of this accident he was killed. The appellant, who is the brother of the deceased, Kalu, claims to be the sole heir and, therefore, the legal representative and he filed an application claiming compensation to the tune of Rs. 40,000/- for loss of life of his brother, who was only 25 years old. The respondent-defendants denied the allegations and contended that when respondent No. 2 was driving the vehicle he saw the wooden Thela coming from Manpur side in the middle of the road. He blew the horn, but the person driving the Thela instead of taking it to the left side turned to the right. Respondent No. 2 in order to avert the accident applied brakes and took the vehicle to the left and in such a situation ultimately the collusion took place and the truck was also thrown in a ditch. The truck belonged to the Defence department of the Government of India. On these facts the learned Claims Tribunal held that the accident occurred due to the rash and negligent driving of the respondent No. 2, the driver of the vehicle. The learned Tribunal also held that compensation which could be awarded is Rupees 8,925/- and interest at the rate of 6% per annum, but the claim was rejected because the appellant-claimant did not fall within the category of heirs mentioned in Section 1A of the Fatal Accidents Act. It is against this that the appellant filed the appeal and the learned single Judge hearing the appeal has made this reference.

4. Learned counsel appearing for the appellant frankly conceded that there is a difference of opinion amongst the High Courts on the question as to who could file a petition for claim arising out of a motor accident. He contended that the single Bench decision in Bhagwatidin v. Ghisalal (M. A. No. 161/74. dated 2-4-1979)* has taken the view that anyone who conies within the ambit of the definition of 'legal representatives' as defined in Section 2(11) of the Code of Civil Procedure was entitled to file a claim petition and this view of the learned Judge finds support from the decisions reported in AIR 1967 Mad 123 (Mohammad Habibullah v. K. Seethammal), AIR 3977 Guj 195 : 1977 Acc CJ 253 (Megjibhai v. Chaturbhai). 1975 Acc CJ 344 (Andh Pra), (Vanguard Ins. Co. v. Chellu Hanumatharao), 1973 Acc CJ 531 (Punj) (Parsani Devi v. State of Haryana) and AIR 1979 Kant 154 (General Manager, Karnataka State Road Transport Corporation v. Peerappa). He contended that in view of these decisions it has been held that in the language of the Motor Vehicles Act it was provided that a claim petition could be preferred by a legal representative and as the Code of Civil Procedure was the earlier Act, wherein the term 'legal representatives' has been defined, apparently the legal representatives as defined in the Code of Civil Procedure are the persons who are entitled to claim compensation under Section 110A of the Motor Vehicles Act. He contended that although in the two Division Bench decisions of this Court reported in 1970 Acc CJ 1: (AIR 1971 Madh Pra 145) (supra) and 1970 Acc CJ 280 it has been laid down that the provisions of Section 110A of the Motor Vehicles Act do not provide for a new right but only provided for an expeditious remedy and in that context the claim could only be preferred by those who are enumerated in Section 1A of the Fatal Accidents Act. But according to the learned counsel, these two Division Bench decisions, of this Court do not run contrary to the single Bench decision in Bhagwatidin v. Gheesalal (M.A. No. 161/ 74, dated 2-4-1979*). He, however, frankly conceded that the two other decisions which run contrary are AIR 1970 Ker 241 (Kader v. Thatchamma) and AIR 1973 Delhi 67 (Dewan Harichand v. Mpl. Corporation of Delhi), He, therefore, contended that as the Motor Vehicles Act provided that a claim petition could be filed by the legal representatives, the appellant-brother was entitled to claim compensation.

5. Learned counsel appearing for the respondent contended that the question involved is as to whether the Motor Vehicles Act confers a new right or only provides for an expeditious remedy. Consistently the Division Bench decisions of this Court have held that it does not confer a new right. The right, therefore, is only conferred by the Fatal Accidents Act as Section 1A of the Fatal Accidents Act provides as to who can claim compensation on the death of the deceased. It is only those persons who have got a right under the Fatal Accidents Act to claim compensation can make an application for claiming compensation. What has been provided in the Motor Vehicles Act is only as to the person who could make an application and the phrase 'legal representatives' has been used. But it is clear from the definition of the term 'legal representatives' as provided in Section 2(11) of the Code of Civil Procedure that it does not confer any new right of succession but it only provides as to who if they are heirs of the deceased could continue the proceedings already pending. Apparently, therefore, the term 'legal representatives' does not confer any new right but it also is procedural permitting continuance of a litigation by a representative after the death of the party to the proceedings. He, therefore, contended that in this context, therefore, it could not be said that the brother who is not entitled to claim compensation under the Fatal Accidents Act could claim compensation as he will fall within the category of the definition of 'legal representatives'. He, therefore, contended that the view taken by the learned single Judge is apparently inconsistent with the earlier Division Bench decisions of this Court and, it, therefore, does not lay down the good law. He further contended that the view taken by the Motor Accidents Claims Tribunal is correct.

6. Section 110 of the Motor Vehicles Act provides:

'Section 110. Claims Tribunals:-- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the deaths of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both:

Provided that where such claim includes a claim for compensation in respect of damages to property exceeding rupees two thousand, the claimant may, at his option refer the claim to a Civil Court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim.'

7. The question that deserves consideration is as to whether this provision confers a new right to claim compensation or only provides for an expeditious remedy for adjudicating the claims of compensation arising out of the use of the motor vehicles. The language used in this provision 'adjudicating upon claims for compensation in respect of accidents involving the death of' goes to show that these claims arise out of some legal position apart from the provisions of the Motor Vehicles Act and this provision only provides for adjudicating these claims and the scheme indicates that an expeditious remedy was provided under this provision.

8. It is not in dispute that the claims for personal wrongs flow from the Law of torts and this right accepted under the British Common Law was accepted in Indian Courts. But there was no right to claim compensation under the law of torts for death before the passing of the Fatal Accidents Act as the compensation under torts could only be for personal wrongs. This is also borne out from the Preamble of the Indian Fatal Accidents Act, 1855:

'Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often-times right and expedient that the wrongdoer in such case should be answerable in damages for the injury so caused by him.'

It is, therefore, clear that the right to claim compensation for the death of a person resulting from a wrongful act, neglect or default for the first time was conferred under this Act and Section 1A, provides:

'1A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong -- Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;

and in every such action the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct'.

9. In this provision, therefore, it has been provided that such an action for claiming compensation for the death of a person could only be for the benefit of the wife, husband, parent and child, if any. The language used in this provision by the use of the phrase 'for the benefit of is significant as the latter part of this provision provides that the action can be brought by ................. or representative of the person deceased. This provision, therefore, clearly enacts that although the action may be brought by even a representative but it could be for the benefit of the persons mentioned in this clause and, therefore, if any one of the persons mentioned in Section 1A are not alive or are not in existence none else can claim compensation. It is one thing to claim compensation as a matter of right and it is different to continue the proceedings as a representative and the definition of 'legal representative' provided in Section 2(11), C. P.C. will have to be understood in this context.

10. Section 110-A, where the phrase 'legal representative' has been used reads:

'110A. Application for compensation --(1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 100 may be made--

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

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

(c) by any agent duly authorised by the person injured or all 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.

Section 110A only provides that an application for compensation could be made where death has resulted from the accident by or anyone of the legal representatives. The term 'legal representatives' has been explained in Section 2(11) of the Code of Civil procedure and it is provided:

''Section 2. Definitions:-- In this Act, unless there is anything repugnant in the subject or context:--

(11) '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:'

11. This phraseology goes to show that a person who in law represents the estate of the deceased person is a legal representative. A person who can represent the estate of the deceased generally is known to be the heir of the deceased and who are heirs and who could claim to be the heirs is governed by the law applicable to them and that is why in this provision it has been provided that the person who in law represents the estate of the deceased. It is, therefore, clear that what has been provided in this sub-clause of the Code of Civil Procedure is not for conferring new rights of succession but it only provides for some person who in law could represent the estate of the deceased could be a legal representative within the meaning of this provision and this, therefore, clearly indicates that the person who claims to be a legal representative has to be a person who in law could claim to represent the estate of the deceased. So far as a claim of compensation arising out of the death on account of a motor accident is concerned, the only person in whose favour a right accrues is one who falls within the category of persons provided in Section 1A of the Fatal Accidents Act and, therefore, it is only one of those persons who can fall within the definition of the term 'legal representative' and none else. If this provision has to be understood to mean a provision which creates a right then even an intermeddler in the estate of the deceased can be considered to be a legal representative within the meaning of this definition and will also be entitled to claim compensation if the owner of the estate is dead, and that could not be contemplated. This question was considered by a Division Bench of this Court in 1970 Acc CJ 1: (AIR 1971 Madh Pra 145) (supra):

'Thus the definition of the term 'legal representative' as it now stands in Section 2(11) of the Civil Procedure Code, cannot be narrowed down to mean the legal heir alone. It is also significant that the right to claim compensation has been for the first time conferred by the Fatal Accidents Act. Before the passing of this Act a claim for compensation as a result of death could not have been maintained. Section 1A of the Fatal Accidents Act, 1855, provides that --

'Whenever the death of a person shall be caused by wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused and shall be brought by and in the name of the executor, administrator, or representative of the person deceased:

and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties or any of them, in such shares as the Court by its judgment or decree shall direct.'

'Thus Section 1A provides that such an action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused. Hence the right to claim damages conferred under the Fatal Accidents Act is in favour of the parent. The provisions of the Motor Vehicles Act do not confer any right. but only provide for an expeditious remedy for an action for compensation in matters arising out of accidents from motor vehicles. In these circumstances, Section 110-A of the Motor Vehicles Act, only provides the procedure and lays down that an application has to be filed by the legal representative. The term 'legal representative' must be construed in the context of the provisions of Section 2(11), C. P. C. and further also in the context of the provisions of the Fatal Accidents Act.'

12. In another Division Bench decision reported in 1970 Acc CJ 280 (Madh Pra) (supra), it has been observed:

'A claim under Section 110-A of the Motor Vehicles Act has a representative character and is essentially on behalf of all the representatives of the deceased. It is enacted in Section 1A of the Fatal Accidents Act, 1855 :

'.........Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased......' 'In Northern India Transporters Ins. Co. Ltd. v. Amra Wati, (1966 Acc CJ 165) (Punj), the widow of the deceased filed an application for compensation for the death of her husband under Section 110-A of the Act. The names of the daughters were not mentioned in the application. Later on, an application was made to introduce their names, but the Tribunal rejected it on the ground of delay. A Division Bench of the Punjab High Court, which decided the appeal, held that in view of the provisions of the Fatal Accidents Act, the application filed by the widow was essentially a claim on behalf of all the representatives of the deceased and that there was no justification to exclude the compensation payable to the daughters merely because their names were brought into the proceedings at a later stage. It was further held that it was a fit case for condoning the delay admitting the claim. The same view was taken in The State of Rajasthan v. Parwati Devi, (1966 Acc CJ 125 : (AIR 1966 Raj 210)). The last mentioned case was referred to with approval in a recent decision of this Court in Chuharmal Issardas v. Haji Wali Mohammad (1968 Acc CJ 391), where the question of abatement of the appeal arose.'

13. A Full Bench decision of this Court reported in 1970 Acc CJ 86: (AIR 1971 Madh Pra 5) (Mangilal v. Parasram) considered the question as to whether the Motor Vehicles Act conferred a new right or merely provided a remedy and it was held :--

'It is clear that these provisions merely substitute a summary remedy for civil suits and for adjudication of claims before the Motor Accidents Claims Tribunal instead of the Civil Court, in respect of personal injury in accident, arising out of the use of the motor vehicle. These provisions do not lay down the criteria or ingredients of liability which will entitle the claimant to compensation.'

14. The question as to whether the Motor Vehicles Act confers a right or only provides for a remedy has now been concluded by the decision of their Lordships of the Supreme Court reported in Minu B. Mehta v. Balkrishna (AIR 1977 SC 1248) as under:

'The main contention of Mr. Hattangodi, who supported the view of the High Court that neglience need not be proved is that Chapter VIII of the Act is a consolidating and amending Act relating to motor vehicles and their use on a public place and as such it contains the entire law, procedural as well as substantive, and that the common law or law of tort is no more applicable and if death or bodily injury arises out of the use of motor vehicles in a public place a liability arises. Strong reliance was placed by him on Section 110A of the Act which provides for application for compensation arising out of an accident to the Claims Tribunal. The learned counsel would submit that under Section 110-B the Claims Tribunal after holding an inquiry may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom the compensation shall be paid. According to counsel when an injury is caused by the use of the vehicle in a public place the Claims Tribunal is at liberty to award an amount of compensation which appears to it to be just.

This plea ignores the basic requirements of the owner's liability and the claimants right to receive compensation. The owners' liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate anyone else. The Claims Tribunal is a tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. The plea that the Claims Tribunal is entitled to award compensation which appears to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place without proof of negligence if accepted would lead to strange results.'

15. These observations clearly establish that the provisions in the Motor Vehicles Act only provide for expeditious disposal of motor accident claims, but the right only flows from the common law, i.e., the law of torts and as observed earlier the right which flows from the law of torts only provided for personal wrongs or personal injury. The right to claim compensation for the death was for the first time conferred by the Fatal Accidents Act and this right accrued for the benefit of the persons named in the Fatal Accidents Act, itself.

16. As abserved earlier even the definition of the term 'legal representatives' as provided in Section 2(11), C. P. C., does not confer a right on any person nor it creates a class of heirs. It only enacts that a person who in law can represent the estate of the deceased can only be a legal representative and it has been further provided that it may even include an intermeddler. In civil proceedings a person who can represent the estate of the deceased is considered to be an heir and an heir who under the personal law is entitled to be called an heir is a legal representative within the meaning of this clause of the Code of Civil Procedure and, therefore, even if in Section 110-A it has been provided that a legal representative can make an application it only means a person who is entitled to represent the estate of the deceased under some law that can make an application. But it has to be understood that making an application or claiming compensation are two different things and, therefore, if a person who makes an application or who claims to be a legal representative on the basis of the personal law he has no right under the Fatal Accidents Act to claim compensation. Such a claim could not be entertained.

17. Learned single Judge, who decided the Misc. Appeal No. 161 of 1974 (supra), has placed reliance on the decision of the Gujarat High Court, reported in 1977 Acc CJ 253 : (AIR 1977 Guj 195) (Megjibhai v. Chaturbhai). In this decision their Lordships of the Gujarat High Court felt that the provisions contained in Section 110-A override the provisions of the Fatal Accidents Act. But the learned Judges did not consider as to whether the right to claim compensation flows from the provisions of the Motor Vehicles Act or from the Fatal Accidents Act. Apparently, the matter is now settled by the decision of their Lordships of the Supreme Court that no new right has been created under the Motor Vehicles Act. It appears that in this decision the question as to whether the term 'legal representatives' creates a class of heirs or it only enables one who in law could represent the estate of the deceased also was not considered. In our opinion, therefore, in view of the question about the right having been settled by their Lordships of the Supreme Court, this decision of the Gujarat High Court with respect cannot be followed. The other decision on which reliance was placed is the decision reported in 1966 Acc CJ 349: AIR 1967 Mad 123, (Mohammad Habibullah v. K. Seethammal). In this decision it was also felt that as the Motor Vehicles Act is a self-contained Code and the sister being the legal representative of the deceased was entitled to claim compensation. In this decision also their Lordships did not consider under what law the sister could claim to represent the estate of the deceased and in cases of compensation how the right to claim compensation arose. It appears that this aspect of the matter was not considered as it was only observed:

'The only point was whether the claim could be advanced by the married sister of the deceased, who died a bachelor. It can certainly be so advanced, since Section 110-A definitely provides for the foundation of a claim by any legal representative of the victim of the accident.'

The decisions reported in AIR 1970 Ker 241 (supra) and AIR 1973 Delhi 67 (supra) lay down that the only persons who can claim compensation are the persons named in Section 1A of the Fatal Accidents Act. It is, therefore, clear that the view taken by the learned single Judge in C. M. A. No. 161 of 1974 (supra) does not lay down good law.

18. In the light of the discussion above, therefore, our answer to the question is that legal representatives other than those who fall within the category of persons entitled to compensation under Section 1A of the Fatal Accidents Act, such as brothers and sisters are not entitled to claim compensation for themselves in proceedings Under Section 110-A to Section 110-F of the Motor Vehicles Act, on account of death of the deceased due to accident arising from the use of the motor vehicles. As discussed earlier, the persons mentioned in Section 1A of the Fatal Accidents Act are the only persons who have got a right to claim compensation on account of the death of a person arising out of a motor accident. Costs shall follow the ultimate decision of this appeal.


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