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State of Himachal Pradesh Vs. Dole Ram - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberF.A.O. Nos. 21, 23 to 28, 29 and 80 of 1980
Judge
Reported inAIR1981HP87
ActsMotor Vehicles Act, 1939 - Section 110 to 110F; ;Fatal Accidents Act, 1855 - Section 1A; ;Code of Civil Procedure (CPC) , 1908 - Section 2(11); ;Workmen's Compensation Act - Section 110AA
AppellantState of Himachal Pradesh
RespondentDole Ram
Appellant Advocate Inder Singh, Adv. General
Respondent Advocate K.D. Sood and; M.L. Sharma, Advs.
DispositionAppeals dismissed
Cases Referred(State v. Dole Ram
Excerpt:
motor vehicles - compensation - section 110 aa of workmens compensation act and section 110 of motor vehicles act, 1939 - truck belonging to state pwd department met with an accident resulting in death of some of its labourers it was carrying - legal representatives of deceased claimed compensation under section 110 pf act of 1939 - appellant contended that deceased had received compensation under workmens compensation act and thus not entitled to receive compensation under section 110 of act of 1939 - no evidence to show that deceased were workmen within definition of section 2 nor there was any evidence that any application was preferred under workmens compensation act - appeal dismissed. - v.p. gupta, j.1. these eight appeals have been filed by the state of himachal pradest-appellant against the awards/judgments, dated 31st dec., 1979 made by the district judge, mandi exercising the powers of the motor accident chims tribunal in eight claim petitions filed by the claimants-respondents under section 110-a of the motor vehicles act.2. the brief facts are that a himachal pradesh p. w. d. truck no. hpu 294 was carrying certain persons (who were working as labourers on the pandoh-kulu road with the p. w. d. authorities) to their houses and these persons boarded the truck at village hanogi. this truck met with an accident on 21st july, 1974 at 5 p. m. near thalot on the pando-kulu road, with the result that some persons died as a result of the accident.3. the claimants in each.....
Judgment:

V.P. Gupta, J.

1. These eight appeals have been filed by the State of Himachal Pradest-appellant against the awards/judgments, dated 31st Dec., 1979 made by the District Judge, Mandi exercising the powers of the Motor Accident Chims Tribunal in eight claim petitions filed by the claimants-respondents under Section 110-A of the Motor Vehicles Act.

2. The brief facts are that a Himachal Pradesh P. W. D. Truck No. HPU 294 was carrying certain persons (who were working as labourers on the Pandoh-Kulu Road with the P. W. D. authorities) to their houses and these persons boarded the truck at village Hanogi. This truck met with an accident on 21st July, 1974 at 5 P. M. near Thalot on the Pando-Kulu Road, with the result that some persons died as a result of the accident.

3. The claimants in each petition claimed themselves to be the legal representatives of the deceased persons and as such filed claim petitions under Section 110-A of the Motor Vehicles Act claiming compensation. It was alleged in the petitions thai the accident was the result of rash and negligent driving of the truck, HPU 294, by Daulat Ram driver, and as such the claimants were entitled to receive the compensation.

4. All the claim petitions, except one claim petition No. 1 of 1975 fifed by Bhag Chand and others (pertaining to FAO 29 of 1980) were filed after the expiry of the limitation period and it was alleged by the claimants that the delay in filing the claimpetitions should be condoned because the claimants were prevented by sufficient cause from making the petitions within time. It was averred that they were poor, illiterate persons who were residents of backward areas and that they did not know the law of the Motor Vehicles Act, under which they could claim the compensation and further more, they were under nervous breakdown and shock for a sufficiently long time, because several untimely and unexpected deaths had occurred in the accident.

5. Separate amounts of compensation Were claimed in each petition by the claimants.

6. All the claim petitions were contested and it was asserted that the claimants were not entitled to any compensation and that the petitions were not maintainable. It was denied that the accident was due to the rash and negligent driving of the vehicle by the driver. It was also alleged that the claimants had received compensation under the Workmen's Compensation Act and, therefore, they were not entitled to claim compensation under Section 110-A of the Motor Vehicles Ad. The claim of the claimants was denied and it was asserted that the applications for compensation are not within time and that there was no sufficient cause to condone the delay in making the applications.

7. On the pleadings of the parties the following issues were framed in all the petitions except the claim petition of Bhag Chand and others (FAO 29 of 1980).

'1. Whether the claim petition is withintime? (OPP)

2. Whether the claim petition is maintainable ? (OPP)

3. Whether the accident was the result ofrash and negligent driving of the respondentNo. 47 if so, its effect? (OPP)

4. Whether the petitioner is entitled to any compensation, if so, how much?(OPP)

5. Whether the petition does not disclose any cause of action, as alleged (OPR. 1)

6. What is the effect of receiving compensation including the donation from the Prime Minister Relief Fund amounting to Rupees 8,000/- in all, on this petition?(OP Parties)

7. Relief.'

8. In the claim petition of Bhag Chand and others (i.e. No. 1 of 1975. out of Which FAO 29 of 1980 has arisen) the following issues were framed as preliminary issues on 19th Oct., 1976 :

'1. Whether the petition is within time?(OPP)

2. Whether the petitioner has no cause of action to bring this petition as alleged ?(OP respondent)

3. Relief.'

No evidence was produced by the parties to these issues and vide order of the Motor Accidents Claims Tribunal, Mandi (hereinafter referred to as the Tribunal), dated 19th January. 1977, it was held that the claim petition is within time and that the claimants have a cause of action to file the petition. After deciding these two issues on 19th January, 1977, the Tribunal framed the following issues :

'I. Whether the accident took place resulting in the death of Smt. Muli Devi dua to the rash and negligent driving of the Vehicle No. HPU 294 as alleged? (OPP)

2. To what amount of compensation thepetitioners are entitled to? (OPP)

3. Whether the petition for compensationis not maintainable as alleged? (OPP)

4. What is the effect of receiving compensation by the petitioners from H. P.P. W. D. ? (OP Parties)

5. Relief'.

9. The parties went to trial and the Tribunal vide award, dated 31st Dec., 1979, held that the claim petitions are within time and that the same are maintainable. It was further held that the accident was due to the rash and negligent driving of the vehicle by Daulat Ram driver and that the claimants are entitled to receive compensation and that the receipt of any compensation including donation by the claimants has no effect on the claim petitions under Section 110-A of the Motor Vehicles Act and that these petitions are not barren, because it is not proved that any compensation was received by the claimants under the Workmen's Compensation Act.

10. On these findings the claimants-petitioners were awarded compensation of :

(a) Rs. 30,000/- along with interest @ 6% in claim petition No. 11 of 1976-- Duni Chand and Ors.s v. State;

(b) Rs. 18,000/- along with interest (r) 6% in claim petition No. 8 of 1976-- Chamaru v. State;

(c) Rs. 40,000/- along with interest @ 6% in .claim petition No. 16 of 1976-- 'Dole Ram v. State;

(d) Rs. 15,000/- with interest @ 6% in claim petition No. 12 of 1976-- Kalu and Ors. v. State;

(e) Rs. 6,000/- with interest @ 6% in claim petition No. 13 of 1976-- Fatta Ram and Ors.s v. State;

(f) Rs. 6,000/- with interest @ 6% in claim petition No. 19 of 1976-- Belu v. State;

(g) Rs. 12,000/- with interest @ 6% in claim petition No. 15 of 1976-- Smt. Thepri v. Stale; and

(h) Rs. 6,000/- with interest @ 6% in claim petition No. 1 of 1975-- Bhag Chand and Ors.s v. State.

11. The State of Himachal Pradesh feeling aggrieved from the above awards have filed eight appeals and have challenged the findings of the Tribunal on various issues.

12. The claimant-respondents have filed cross-objections in all the eight appeals and have claimed enhancement in compensation.

13. As a common question of law and facts arose in all the claim petitions and the claim petitions arose out of the same accident, therefore, the Tribunal had disposed of all the petitions by a single judgment/award, dated 31st Dec., 1979.

14. 1 have heard the [earned Advocate-General on behalf of the appellant in all these appeals, Shri K. D. Sood, Advocate for the respondents in FAO 21 of 1980 --Slaie v. Dole Ram and Ors.s: and Shri M. L. Sharma, Advocate in (hi; other seven appeals at great length, The arguments with respect to cross-objections were also advanced by the learned counsel for the parties.

15. As the common questions of law and facts are raised in all the appeals and cross-objections, therefore, 1 am also disposing of all these appeals and the cross-objections by a single judgment.

16. The learned Advocate-General appearing on behalf of the appellant contended that in FAO No. 21 of 1980, State v. Dole Ram, the respondent had no right to chum any compensation on account of the death of Jhabe Ram as the said Dole Ram claimant is the brother of Jhabe Ram and a brother has no right to claim compensation. In FAO No. 24 of 1980, it was contended that the claimants other than Kalu Ram have no right to claim any compensation as they are merely the brothers and sisters of Sawan Ram deceased. It was admitted that Kalu being the father of the deceased can claim compensation. It was further contended that the brothers and the sisters have no locus standi to file the applications or to receive compensation under Section 110-A of the Motor Vehicles Act. It was also contended that an application under the Motor Vehicles Act can be filed by the legalrepresentatives of the deceased but the compensation cannot be awarded in favour of the legal representatives. To substantiate his contention he has drawn my attention to the provisions of Section 1-A of the Fatal Accidents Act and has contended that the law under Section 110-A is only a procedural law, while the compensation can only be paid to the persons, who are mentioned in Section 1-A of the Fatal Accidents Act, because the substantive right to receive the compensation is only of the persons who are mentioned in Section 1-A of the Fatal Accidents Act. The learned counsel further con-tended that except the wife, husband, parent and child of the deceased, no other persons have any substantive right to receive the compensation and no award can be made in favour of any other person. He also contended that the definition of the word 'legal representative' as given in Section 2 (11) of the Civil Procedure Code has no appli-cability for the purposes of Section 110-A of the Motor Vehicles Act. It was argued that the brothers and sisters who have been awarded compensation in FAO 21/1980 and FAO 24/1980 by the Tribunal are, in fact, not entitled to any compensation under the law and to that extent the award of the compensation by the Tribunal is bad and unjustified. In support of his contentions he referred to P. B. Kader v. Thatchumma (AIR 1970 Ker 241), Smt. Katnla Devi v. Kishanchand (AIR 1970 Madh Pra 168), M. Ayyappan v. Moktar Singh (AIR 1970 Mys 67), Bishen Das v. Ram Labhaya (AIR 1916 Lah 133 (2)), Jeet Kumari v. Chitta-gong Engineering and Electric Supply Co. Ltd. (AIR 1947 Cal 195) and Dewan Hari Chand v. Municipal Corporation of Delhi (1973 ACJ 87): (AIR 1973 Delhi 67).

17. The second contention of the learned counsel for the appellant is that no compea-sation could be allowed for love and affection and mental agony, and to support his contention he has relied upon Lachhamati Singh v. Gurmit Kaur (AIR 1979 Punj and Har 50) (FB). This contention was raised in FAO No. 2! of 1980 (State v. Dole Ram), FAO No. 26 of 1980 (State v. Chamaru) and FAO No. 29 of 1980 (State v. Bhag Chand and Ors.).

18. The third contention of the learned counsel for the appellant is that the period of limitation in filing the claim petitions should not have been extended as there, is no proof on record that the claimants were prevented by any sufficient cause for filing the claim petitions within time and in support of his contention be relied upon DelhiTransport Undertaking v. Raj Kumari, (1972 ACT 403) (Delhi) and Vanguard Ins. Co. Ltd. v. Baholi, (1972 ACJ 426) (Delhi).

19. The further contention raised by the appellant's counsel is that the claimants had been paid compensation under the provisions of the Workmen's Compensation Act and, therefore, they had no right to file any petition under Section 110-A of the Motor Vehicles Act and that Section 110-A of the Motor Vehicles Act bars the filing of such claim petitions.

20. The learned counsel for the appellant did not advance any arguments with respect to the finding of the Tribunal on issue No. 3 and in other words he admitted that the accident was due to the rash and negligent driving of the vehicle by the driver.

21. The learned counsel for the appellant also contended that the cross-objections filed in FAO No. 24 of 1980 arc invalid as the same are only filed by Kalu (one of theclaimants) and not by other claimants.

22. The learned counsel for the respondents contended that the present claimants are 'legal representatives' of the deceased persons in FAO No. 21 of 1980 and FAO No. 24 of 1980 (i.e. claim petitions Nos. 16 of 1976 and 12 of 1976). as such they had a right to file the claim petitions under Section 110-A of the Motor Vehicles Act and had also the right to claim compensation. In support of this contention the learned counsel referred to General Manager, Karnataka Slate Road Transport Corporation v. Peer-appa Parasappa 1979 ACJ 229 : (AIR 1979 Kant 154). Megjibai Khimji Vira v. Chatur-bhai Taljabhai, 1977 ACJ 253 : (AIR 1977 Guj 195) and Bhagwatdin v. Gheesalal, (1980 ACJ 116) (Madh Pra). It was contended by the learned counsel for the respondents that the 'next of kin' of the deceased is entitled to receive compensation and for the purposes of clarifying this position, the learned counsel referred to the provisions of Section 110-A of the Motor Vehicles Act and Sections 1-A and 2 of the Fatal Accidents Act. The learned counsel also contended that in FAO. No. 24 of 1980 the objection of the appellant is not maintainable as besides the brothers and sisters of the deceased, the father of the deceased is also the claimant.

23. As to the second contention, the learned counsel for the respondents conceded that no amount can be allowed for love and affection but it was contended that the pecuniary loss to the claimants is much more ami that they are, in fact, entitled to anenhanced amount.

24. On the point of limitation it was contended by the learned counsel for the respondents that due to mental shock the claimant-petitioners could not file the applications for compensation and that sufficient unrebutted evidence has been produced on record with respect to this point. It was further contended that the Tribunal has exercised the jurisdiction in extending the limitation in favour of the claimants and as such the appellate Court should not lightly interfere with this exercise of jurisdiction.

25. On the fourth objection the learned counsel for the respondents contended that the claimants-petitioners had not been paid any compensation under the provisions of the Workmen's Compensation Act and that there is no evidence on record to prove that the deceased persons were the workmen or that any amounts had been paid under the provisions of the Workmen's Compensation Act. It was also contended that if any payment had been made to the claimants by the Government or any person, then such payments were only ex-gratia grants and the same cannot be deducted for the purpo.se of calculating the compensation under the Motor Vehicles Act.

26. In support of the cross-objections, the learned counsel for the respondents contended that in FAO No. 24 of 1980, the cross-objections arc by all the claimants and there is a clerical mistake in not mentioning the names of other persons. The learned counsel further contended that the amount of compensation awarded to the claimants-petitioners is on the lower side and the same should be enhanced.

27. I have considered the contentions of the learned counsel for the parties and have also gone through the records of all the cases carefully.

28. There is a difference of opinion of various High Courts on the question as to whether the provisions of Sections 110 to 110-F of the Motor Vehicles Act confer substantive rights on the parties or are merely procedural in nature. One view is that the law incorporated in these sections of the Motor Vehicles Act is a mere procedural law and the compensation can only be awarded to the persons mentioned in the Fatal Accidents Act, which is the substantive law. The second view is that a claim under the provisions of the Motor Vehicles Act can only be determined under the provisions of Sections 110 to 110-F of the Motor Vehicles Act and that the provisions of the Fatal Accidents Act have no relevancy. There is a third view that Sections 110 to 110-F of theMotor Vehicles Act are procedural ig nature and the provisions of Section I-A of the Fatal Accidents Act in fact govern the cases of compensation payable for loss of dependency, while for loss to the estate Section 2 of the Fatal Accidents Act will apply and all representatives who are entitled to succeed to the estate of the deceased will have right to claim compensation.

29. It may be mentioned that the Fatal Accidents Act was enforced in the year 1855. Under this Act there is no special mention in respect of the claims for compensation regarding accidents involving the death or bodily injury to persons arising out of the use of motor vehicles or damage to any property on their part so arising or death. The Fatal Accidents Act is a General Act under which suits for compensation to the family of a person for loss occasioned to it by his death by actionable wrong are provided. Under the provisions of the Fatal Accidents Act an action or suit can be filed, if the death of a person is caused by wrongful act, neglect or default and in such an action or suit the benefit is given to the wife, husband, parent and child of the deceased and the suit can be brought by and in the name of the executor, administrator or representative of the person deceased. The word 'representative' has not been defined in the Fatal Accidents Act.

30. The Motor Vehicles Act was enacted in the year 1939 and it was only in the year 1956 that Sections 110 to 110-F were added in this Act by which the persons who had a claim to compensation could apply to a Special Tribunal known as the Motor Accidents Claims Tribunal and such applications of the persons entitled to receive compensation were to be heard and decided by the Claims Tribunal who was to give its award in accordance with the provisions of the Motor Vehicles Act.

31. A reading of Sections 110 to 110-F of the Motor Vehicles Act clearly reveals that the same are self sufficient and even a provision of appeal is provided for in these sec-lions. As the final verdict given under Sections 110 to 110-F allows the claimants/representatives of the deceased to seek compensation in respect of the accident involving the motor vehicles and an award given by the Tribunal is appealable, therefore, it cannot be said that the provisions of the Motor Vehicles Act are mere procedural. It will be presumed that a person is vested with the rights to claim compensation and, therefore, the provisions cannot be said to be mere procedural. In my opinion, these provisionsconfer substantive rights on the parties who are involved in the litigation before the Tribunal under the provisions of the Motor Vehicles Act. In taking this view, I am inclined to adopt the reasoning given in the Division Bench judgment of the Karnalaka High Court, in General Manager, Karnataka State Road Transport Corporation's case (AIR 1979 Kant 154) (supra).

32. The next question which arises for consideration is as to who are the 'legal re-preseniatives' of the deceased and whether only the persons named in Section 1-A of the Fatal Accidents Act 1855, i.e. wife, husband, parent and child can be awarded compensation amount or not. It is important to note that under the Fatal Accidents Act the person who can bring an action or file a suil is the executor, administrator or the representative of the person deceased but all such actions or suits shall be for the benefit of wife, husband, parent and child of the deceased. The word 'legal representative' is not used in Section 1-A of the Fatal Accidents Act.

33-34. In the Motor Vehicles Act the word 'legal representative' which has been used in Section 110-A has not been defined anywhere. The provisions of the Civil Procedure Code, 1908 were already in the mind of the Legislature at the time when Sections 110 to 110-F of the Motor Vehicles Act were added in the Act. If the Legislature has not given the definition of the word 'legal representative' in the Motor Vehicles Act then it has to be presumed that the definition of the word 'legal representative' as given in the Civil Procedure Code will be taken to be the meaning of the 'legal representative' as incorporated in the Motor Vehicles Act. In Section 2 (11) of the Civil Procedure Code the word 'legal representative' means a person who in law represents the estate of deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in the representative character the person on whom the estate devolves on the death of the purty so suing or sued. According to the provisions of Section 110-A of the Motor Vehicles Act an application for compensation can be made by and/or any of the legal representatives of the deceased or their duly authorised agent. It is further provided that if all the legal representatives of the deceased do not join in the application then such an application is to 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 asthe respondents in the application. If the intention of the Legislature was to give benefit of compensation to the wife, husband, parent and child of the deceased only (as mentioned in the Fatal Accidents Act) then in that case there was no question of impleading all the legal representatives of the deceased in the application. The fact that Section 110-A makes it obligatory on the applicant to join all the legal representatives as the respondents, clearly suggest that all the legal representatives of the deceased are entitled to the amount of compensation and the same is to be awarded and apportioned between them by the Tribunal. In these circumstances if the brothers and sisters can be held to be within the purview of the legal representatives as given in Section 2 (11), Civil Procedure Code qua the deceased involved in the accident then in that case such brothers and sisters will definitely be entitled to file an application for claiming compensation and if any compensation is found to be payable, then such persons being the legal representatives will be entitled to get the compensation.

35. I will now discuss the various cases referred to by the parties' counsel in support of their respective contentions.

36. In P. B. Kader's case (AIR 1970 Ker 241) (supra), it was held that brothers and sisters are not entitled to compensation due to the fact that they cannot be ranked as dependants under Section 1-A of the Fatal Accidents Act. In this case the learned Judges of the Kerala High Court had no occasion to refer to the provisions of the Motor Vehicles Act. In this case the compensation was claimed under the provisions of the Fatal Accidents Act and no application had been filed under the provisions of the Motor Vehicles Act. Hence this case is distinguishable because the provisions of Sections 110 to 110-F of the Motor Vehicles Act, as amended in 1956, were never considered and the case was decided under the specific provisions of Section 2 of the Fatal Accidents Act.

37. Sm. Jeef Kumari Poddar case (AIR 1947 Cal 195) (supra) was also a case under the provisions of the Fatal Accidents Act and the provisions of the Motor Vehicles Act were never considered in this case.

38. In Bishen Das's case (AIR 1916 Lah 133 (2)) (supra) the provisions of the Motor Vehicles Act were never considered because this Act had not been enforced at that time.

39. In M. Ayyappan's case (AIR 1970 Mys 67) (supra), the only dispute was with respect to the definition and scope of the expression 'legal representative' used in Sec-tion 110-A of the Motor Vehicles Act and it was held that the terms 'legal representative' includes persons referred to as representa-(ives of the deceased in Section 1 of the Fatal Accidents Act. The question as to whether the brothers and sisters are entitled to claim compensation for the loss of dependency never cropped up in this case and for this reason this authority is of no help to resolve the present controversy.

40. In Dewan Hari Chand's case (AIR 1973 Delhi 67) (supra), the learned single Judge of the Delhi High Court held that the brother of deceased has no right to receive the compensation under the provisions of the Motor Vehicles Act, It has been held that under the provisions of Section 110-A of the Motor Vehicles Act, the persons who are entitled to receive the compensation are not specified and the learned Judge has further held that according to the general recognition the relations who are mentioned in the Futal Accidents Act are entitled to receive compensation, and as a brother is not mentioned amongst the relations specified in Section 1-A of the Fatal Accidents Act, therefore, a brother is not entitled to receive the compensation. With due respect to the learned single Judge, I am not inclined to accept this view because I have already held that the word 'legal representative' used in Section 110-A of the Motor Vehicles Act is quite distinct and separate from the word 'representative' used in Section 1-A of the Fatal Accidents Act and I have further held that the provisions of the Motor Vehicles Act are not only procedural but are substantive law. This authority of the learned single Judge of the Delhi High Court has been distinguished in General Manager, Karnataka State Road Transport Corporation's case (AIR 1979 Kant 154) (supra) (a case decided by a Division Bench of the Karnataka High Court) and Bhagwatdin's case (1980 ACJ 116) (supra) (a case decided by a single Judge of the Madhya Pradesh High Court). The Karnataka and Madhya Pradesh High Courts have held that the present question never arose in the case of Dewan Hari Chand (supra) (of Delhi High Court) directly and that this case of Dewan Hari Chand is decided upon certain other authorities in which the present dispute was not fully covered.

41. In Smt Kamla Devi's case (AIR 1970 Madh Pra 168) (supra), a Division Bench of the Madhya Pradesh High Court also took the view that the provisions of the Fatal Accidents Act are applicable to the proceedings under Section 110-A of the Motor VehiclesAct and that the provisions of Sections 110 to 110-F of the Motor Vehicles Act are, in fact, procedural Jaw and that the substantive law is contained in the Fatal Accidents Act. This authority was again considered in Bhugwatdin's case (1980 ACJ 116) (Madh Pra) (supra) and the same was distinguished.

42. In view of the facts staled above, the authorities which have been relied upon by the learned counsel for the appellant are, in fact, either distinguishable or are not applicable to the facts of the present case.

43. On the other hand, in General Manager, Karnataka State Road Transport Corporation (AIR 1979 Kant 154) (supra), a Division Bench of the Karnataka High Court has discussed the whole case law on the point and have taken the view that the provisions of the Motor Vehicles Act confer a substantive right on the parties and that the same arc not procedural in nature. It was further held that the provisions of Section 110-A of the Motor Vehicles Act override the provisions of Sections 1-A and 2 of the Fatal Ac cidents Act. In this case it was held that brother and sister of the deceased are entitled to award of compensation for loss of dependency also.

44. A simitar view is taken in Megjibai Khimji Vira's case (AIR 1977 Guj 195) (supra) by a Division Bench of the Gujarat High Court and it has been held that the provisions of Section 110-A of the Motor Vehicles Act override the provisions of See tions 1-A and 2 of the Fatal Accidents Act and that brothers and nephews of the deceased are the legal representatives of the deceased and they can claim compensation under the Motor Vehicles Act.

45. Similarly, in Bhagwatdin's case (1980 ACJ 116) (supra) a single Judge of the Madhyn Pradesh High Court has held that the brother of the deceased is a 'legal representative' within the meaning of the provisions of the Motor Vehicles Acl and that he is also entitled to receive the compensation and the persons mentioned in Section 1-A of tile Fatal Accidents Act are not the only persons who cart be paid the compensation. The whole case law has also been reviewed in this judgment.

46. In view of the above discussion, I am of the firm opinion that besides the persons mentioned in Section 1-A of the Fatal Accidents Act, the other persons who may happen to be the 'legal representatives' have a ho a right to file an application under the provisions of the Motor Vehicles Act and they have also sol a right to claim compen-sation for the loss of dependency as well asfor the loss of estate of the deceased. The first contention of the teamed counsel for the appellant has, therefore, no force with respect to the F. A. O. Nos. 21 and 24 of 1980. in which brothers and sisters are also the claimants.

47. In the other appeals, the persons who are the claimants are legal representatives of the deceased persons and also happened to be the persons mentioned in Section 1-A of the Fatal Accidents Acl and as such there is no dispute regarding the maintainability of their claims for compensation.

48. The next contention of the learned counsel for the appellant is that no amount can be allowed for love and affection and for mental agony. This contention of the learned counsel for the appellant was not contested by the learned counsel for the respondents. He only contended that the amount which has been awarded to the respondents for love and affection can easily be adjusted in the other amount, i.e. towards pecuniary loss which has been occasioned to the respondents by the deaths. In FAO. No. 21 of 1980 (State v. Dole Ram) an amount of Rs. 1000/- has been allowed to Dole Ram for loss of affection as his wife Smt. Bhim-dassi died in accident. In FAO No. 26 of 1980, (State v. Chamaru) an amount of Rs. 2000/- has only been allowed to the father for the loss of affection as his daughter Jaiwanti died in the accident. In FAO No. 29 of 1980 (State v. Bhag Chand and Ors.s) an amount of Rs. 3000/- has been allowed to tbe parents for the loss of affection as their daughter Muli Devi died in the accident. I am of the view that the amounts allowed for loss of love and affection are not very heavy amounts in all these cases. In the present cases the amounts can be adjusted towards the loss of dependency or loss to the estate of the deceased or loss of expectancy because the compensation is to be a just compensation and this matter will be discussed while disposing of the cross-objections filed by the respondents.

49. The next contention of the learned counsel for the appellant was that the period of delay in tiling the applications should not have been condoned.

50. I have gone through the authorities Delhi Transport Undertaking (1972 ACJ 403) (Delhi) (supra) and Vanguard Insurance Co. Ltd. (1972 ACJ 426) (Delhi) (supra) and I find that both these rulings are not applicable. In both these cases the delay was condoned on the grounds that the claimants were minors.

51. After going through the evidence of the various witnesses in the present claim pe-litions, I am of the view that in all the cases in hand there were sufficient and good grounds to condone the delay. No evidence in rebuttal has been produced by the appellant. The accident was a major accident and the respondents have lost several relations or friends in the accident. It is also borne out that claimants are simple, illiterate persons. I do not find any grounds to interfere in the discretion which has been exercised by the Tribunal in condoning the delay. Taking all these facts into consideration and believing the evidence produced by the respondents, I do not agree with the contention raised by the learned counsel for the appellant and repel the same.

52. The next contention of the learned counsel for the appellant was that the petitions under the Motor Vehicles Act were barred under the provisions of Section 110-AA of the Act. Reference was also made to Section 3 (5) of the Workmen's Compensation Act and Sections 10 and 22 of the same Act.

53. From the records, I find that there is no evidence to establish that the deceased persons were 'workmen' within the definition of Section 2 (n) of the Workmen's Compensation Act and as such the provisions of the Workmen's Compensation Act are inapplicable in the present dispute. Besides this, there is no evidence on record to prove that any applications were ever preferred under the Workmen's Compensation Act by the respondents or by any other relations of the deceased persons. There is also no evidence to prove that any compensation was ever accepted by the respondents under the provisions of the Workmen's Compensation Act. There is also no evidence of payment of any compensation to any of the respondents except in the case of FAO No. 29 of 1980 (State v. Bhag Chand and Ors.). In the case of Bhag Chand and others also the compensation paid was not under the Workmen's Compensation Act and it wa.s only an ex gratia payment. Such payments cannot be taken into consideration at the time of awarding of compensation as has been held in 1974 ACJ 174: AIR 1974 Mad 252, A. P. Dorairaj v. State of Madras and 1974 ACJ 218, Cunningham v. Hamson. If any compensation had been paid under the provisions of the Workmen's Compensation Act, then a regular procedure would have been followed and orders should have been given by the Commissioner under the Workmen's Compensation Act. There is no proof that any such orders were ever madeor any compensation was ever paid to the claimants under the provisions of the said Workmen's Compensation Act.

54. I have gone through the provisions ofthe Workmen's Compensation Act as well its the rules framed in 1951 under the said Act. There is a specific procedure provided under the Act for claiming the compensation. In the present cases there is nothing on the records to show that such a procedure was ever followed. In view of this the argument of the learned counsel for the appellant has also no force because the provisions of Se -tion 110-AA cannot be made applicable as no payments under the provisions of the Workmen's Compensation Act have been proved to be made.

55. So far as the question of compensation which has been awarded to the respondents is concerned the learned counsel for the appellant did not press for its being reduced and his only contention was that brothers and sisters were not entitled to receive the compensation, I have already held that the brothers and sisters have also a right to receive the compensation if they are proved to be legal representatives under the provisions of Motor Vehicles Act.

56. The contention of the learned counselfor the appellant that the cross-objections filed in appeaf No. 24 of 1980 are not maintainable because of the fact that only one legal representative has filed the cross-objections is also without any force. I have perused the memo of cross-objections and I find that the mistake in writing the name is a mere clerical mistake and as such crass-objections will be deemed to have been filed on behalf of all the respondents. The respondents should not suffer for this technical objection specially in the case of cross-objections. Even otherwise, as the appeals are being heard and disposed of, therefore, it is just and reasonable that the objections of the respondents may also be heard and if the respondents are entitled to any enhancement of compensation then the same can also be allowed to them even under the provisions of Order 41, Rule 33 of the Civil P, C. ;is has been held in Himachal Road Transport Corporation v. Jai Ram, ILR (1979) Him Pra 267 : (AIR 1980 Him Pra 16J.

57. So far as the F. A. Os. Nos. 21, 25, 26, 28 and 29 of 1980, are concerned the learned counsel for the respondents contended that the compensation allowed to the respondents is on the lower side. It was contended that the same should have been allowed to the daughters for dependency and alsofor loss of estate. There is no dispute with respect to the earnings of the deceased persons or the number of dependents who are entitled to the amount of compensation. I have gone through the records of the cases.

58. I agree with the formula adopted by the Tribunal. The amount which is to be awarded is just compensation. There is no exact and fool proof method of determining the just compensation but while awarding compensation the Court has to take a sympathetic and realistic view. In FAO No. 21 of 1980 (State v. Dole Ram) the Tribunal has allowed a sum of Rs. 40,000/-. The Tribunal while calculating the compensation has reduced the amount by Rs. 1200/- on account of net earning. Hence even if Rs. 1000/-awarded by the Tribunal for love and affection is .disallowed to the respondent still the respondent will be entitled to the amount of Rs. 40,000/- allowed to him. In view of these circumstances I am of the opinion that the amount of compensation awarded to respondent in FAO No. 21 of 1980 is just compensation and there arc no grounds to interfere with the findings of the Tribunal in this case.

59. In Appeal No. 25 of 1980, the claimant's daughter aged 15 years had died. In the circumstances of the case the compensation of Rs. 6000/- allowed to the father is quite reasonable and just and there are no grounds to enhance the compensation. I do not find any grounds to interfere with the reasonings given by the Tribunal.

60. In Appeal No. 26 of 1980 claimant's one daughter Jai Wanti and wife Dolma had died and similarly in Appeal No. 29 of 1980. Mooli Devi daughter of the claimant had died. In Appeal No. 26 of 1980. according to the Claims Tribunal the amount payable to the claimants is Rs. 18,500/- while onlyRs. 18,000/- has been allowed. Rs. 2,000/-was allowed on account of love and affection. T have already staled that there is no exact formula for calculation of compensation and the compensation should be just compensation. In the circumstances of the case I am of the view that the amount of Rs. 18,000/- awarded by Tribunal to the claimants is just compensation and I also do not find any reasons to interfere with the amounts awarded by the Tribunal.

61. In Appeal No. 28 of 1980, one Jai Dassi aged 16 years daughter of claimants had died. In Ihe circumstances of the case the compensation of Rs. 6,000/- allowed to the parents by the Claims Tribunal is reasonable arid justified. Similarly FAO No. 29 of 1980. I find that only a sum of Rs. 6,000/-has been allowed by the Claims Tribunal to the parents for the death of their daughter Mooli Devi. This amount which has been awarded to claimants appears to be a reasonable and just amount, because there is no definite and accurate formula of arriving at the compensation amounts and it is only the conscience of the Court which is to decide as to what is the just amount. Therefore, taking into consideration all the facts and circumstances in my opinion, the amounts allowed to all the claimants are just and reasonable and in these circumstances I do not feel inclined to make any enhancement and reduction in these amounts.

62. As a result of the above discussion all the appeals as well as the cross-objections are liable to be dismissed and the same are hereby dismissed.

63. The parties are left to bear their own costs.


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