Case BriefsHigh Courts

Kerala High Court: C.S. Dias, J., held that a married daughter and parents of the deceased woman are legal representative under the MV Act and hence, are entitled to claim compensation as a dependant of the deceased. The Bench remarked,

“Even if dependency is a relevant criterion to claim compensation for loss of dependency, it does not mean financial dependency is the ‘ark of the covenant’. Dependency includes gratuitous service dependency, physical dependency, emotional dependency, psychological dependency, and so on and so forth, which can never be equated in terms of money.”

Factual Matrix

One Sreedevi was mowed down to death by a goods vehicle when she was on her way to work, leaving her two daughters and their maternal grandparents in destitute. The dependents of the deceased, i.e., her two daughters and septuagenarian parents had approached the Tribunal under Section 166 of the Motor Vehicles Act, 1988 claiming compensation from the insured and the insurer of the vehicle. The deceased was a 49 years old widow, who was an anganwadi worker earning a monthly honorarium of Rs.18,000 and was the only breadwinner of her family.

The appellant contended that the accident occurred due to the negligence of the deceased and the respondents were not her legal representatives and dependants. The Tribunal allowed the claim petition, by holding that the respondents were the legal representatives and dependants of the deceased, and permitted the respondents to realise an amount of Rs.17,32,680 with interest and costs from the appellant.

Contention

The appellant contended that the Tribunal had erroneously held that the married daughter and parents of the deceased were dependent on her and it was only the unmarried daughter of who was a dependent in true sense.

Disputing the arguments of the appellant, the respondents contended that after the deceased lost her husband, her septuagenarian parents started living with her and her two daughters. The deceased was the sole breadwinner of the family and had been maintaining all the respondents, which proved that the respondents were dependent on her.  The respondents argued that for the sole reason that the respondent 1 was recently married, her entitlement to compensation for loss of dependency could not be denied.

Findings of the Court

The Supreme Court in Gujarat SSRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234, had held 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 bread-winner of the family and if the bread-winner 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 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents”

  • Should a dependent be a legal representative of the deceased to claim compensation under Section 166 of the Motor Vehicles Act, 1988?

Although, the term ‘legal representative’ is not defined under the MV Act,  the Government of Kerala by SRO No.1286/1989, promulgated the Kerala Motor Vehicles Rules, 1989, Rule 2 (k) of which defines the expression ‘legal representative, which reads thus:

“(k) Legal representative” means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased;”

Opining that the Parliament had consciously used the expressions ‘legal representative’ in Section 166 and ‘legal heirs’ in the Section 163 A and had refrained from using the expression ‘dependent’, despite the recommendations of the Law Commission, the Bench stated that dependency is only a criteria for a legal representative to claim compensation for loss of dependency under Section 166 of the Act, 1988, and is not the ‘be all end all’ criteria to claim compensation under the other pecuniary, non-pecuniary and conventional heads of compensation. The Bench added,

“However, in a claim petition filed under Section 166 of the Act, 1988, the dependent has to be a legal representative of the deceased falling within Rule 2 (k) of the Kerala Rules, 1989; otherwise the expression ‘legal representative’ will be rendered otiose.”

  • Are parents and married daughters entitled to claim compensation under MV Act as dependents of the deceased?

After Sreedevi became a widow, her septuagenarian parents started living with her and her daughters, therefore, observing that there was no dispute that the respondents were the legal representatives of the deceased falling within Rule 2 (k) of the Kerala Rules, 1989, the Bench expressed,

“It would be preposterous to accept the contention of the learned counsel for the appellant that a 25 year old daughter would be no longer dependent on her 49 year old mother because she was given in marriage. The bond between a mother and a daughter is eternal.”

Reliance was placed by the Court on National Insurance Company Ltd. v. Birender, (2020) 11 SCC 356, wherein the Supreme Court had held that, “the major married son who is also earning and not fully dependant on the deceased would be still covered by the expression “legal representative” of the deceased.”

Verdict

In the light of the above, the Bench upheld the decision of the Tribunal that the married daughter was a dependent of Sreedevi, and she was also entitled to compensation for loss of dependency.

Similarly, observing that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, casts a statutory duty to maintain a senior citizen, who is unable to maintain himself, the Bench opined that even if Sreedevi had neglected to maintain her parents, they were legally entitled to an order of maintenance under the above statute. Therefore, the petition was dismissed and the impugned award was upheld. [United India Insurance Co. Ltd. v. Shalumol, 2021 SCC OnLine Ker 3209, decided on 25-08-2021]


Kamini Sharma, Editorial Assistant ahs reported this brief.


Appearance by:

For the Appellants: Adv. Deepa George

For the Respondents: Adv. Mathews K.Philip and Adv. Manasy. T.

Case BriefsHigh Courts

Bombay High Court: S.M. Modak, J., dealt with some significant issues in a claim petition wherein a widow is earning and has prospects of remarriage.

The present matter dealt with a very interesting issue involving an appeal about the entitlement of widow to the compensation who got remarried during the pendency of petition before Motor Accident Claims Tribunal.

What is the effect of a marriage of widow on her right to claim compensation on account of the death of her husband in a vehicular accident?

Whether due to marriage, her right vanishes?

Further, the issue is whether an earning wife can be said to be dependent of her husband?

MACT did not reject the widow’s claim but allotted less share to her. Insurance company on being aggrieved with the same, came in appeal, wherein the submissions were as follows:

  • the widow was working since the beginning and she was earning separately and as such, she is not depending on the income of her deceased husband and
  • she lost her right to compensation on account of remarriage during the pendency of the petition.

Decision, Law and Analysis

Bench laid down the focus on the following issues:

a] Whether separate earnings of the widow has got any bearing on her right to claim compensation?

b] Whether remarriage of widow dis-entitles her from claiming compensation?

ISSUE OF DEPENDENCY & REMARRIAGE

Bench observed that though the tribunal had outrightly rejected the ground of remarriage, but it apportioned the amount of compensation lesser in comparison to the 2 children and mother.

While analyzing the issue, it was also stated that

The widow is certainly one of the heirs on which property of a Hindu devolves as per intestate succession. Now, it is interesting to see how the word ‘dependent’ has evolved. It has been judicially recognized that –

a] age of the deceased,

b] income of the deceased and

c] number of dependents

are 3 factors to be considered while fixing the quantum of compensation. From his earning the deceased will spend on himself and on his near relatives/dependents. So when a person dies in a vehicular accident, dependents/near relatives losses the amount contributed by the deceased towards them.

Supreme Court has laid down guidelines on how to calculate contribution to personal expenses and contribution towards dependents. It depends upon the status of the deceased (married/unmarried) and on the number of dependents.

More the number of dependents, lesser will be the contribution towards personal expenses.

Bench in view of the above discussion noted the fact that the eligibility of dependency does not come first, it comes later while arriving at the quantum of compensation. Issue of ‘legal representative’ will come first while entertaining the claim petitions.

Supreme Court in the decision of Manjuri Bera v. Oriental Insurance Company Ltd., (2007) 10 SCC 643, held that even married daughter residing with husband (though not dependent on the income of the father) being legal representative is entitled to claim compensation under Section 140 (no faulty liability) of the Motor Vehicle Act.

Punjab and Haryana High Court in Kartar Kaur. v. Manoj Kumar, 2014 SCC OnLine P&H 25130 held that

“Dis-entitling a woman on account of remarriage would go against the proposal of remarriage of widow after the death of the husband. Taking such drastic view would discourage the remarriage after the death of the husband.”

Similarly in National Insurance Company Ltd. v. Nidhi Goel, 2018 SCC OnLine P&H 6920, it is observed that –

“accepting the proposition of Insurance Company would militate against the right of widow to remarry and it would not be in public interest or in the interest of the Society at large.”

In view of the above decisions it can be found that a consistent view has been taken by all the Courts, that remarriage does not disqualify the widow from claiming compensation.

Continuing with the above analysis, Bench added that

the tribunal should consider the situation prevailing when the cause of action arises. At the time when the accident took place, the widow is the legal representative of the deceased, certainly, she is entitled to claim compensation. What we do is to determine the amount of compensation and its apportionment amongst the eligible persons. So when a widow approaches the Tribunal, she wants to exercise her right which has become part of her estate.

Hence, the Court agreed with the consistent view taken by the Courts.

APPLICATION OF MEASURES

In accordance with Supreme Court guidelines to have uniformity in arriving at the income, it can be stated that if the deceased is having 2-3 dependents, it is presumed that he spends 1/3rd on his personal expenses. If the deceased is having 4-6 dependents, it is presumed that he spends 1⁄4th of his income on his personal expenses.

CRUCIAL ISSUE

When she is having a separate income, whether the widow can be said to be depending on the income of the deceased?

There are two aspects with respect to the above issue:

One is deciding the percentage for personal expenses and towards the contribution of dependents.

Second is the apportionment of compensation which comes later.

As per the guidelines of the Supreme Court given in various judgments, if wife is considered as one of the dependents, then there is a tendency to spend more on an individual and percentage of spending on dependents will be less. If number of dependents is more, there is tendency to spend less on an individual and spend more on dependents.

In the instant case, Court observes that both the spouses are earning. Monthly salary available of the deceased is Rs 23, 431. Where salary of widow Pushpa (for the month of January 2014) had come to Rs 40,044.

Bench expressed that, Separate earning of the widow does not relieve the deceased husband from contributing towards the expenses.

To the above observation Court added that if the evidence on the point of spending by every individual spouse could have been available, this Court might have deleted the widow from the list of dependents.

Hence the Court affirmed the percentage of distribution arrived by the tribunal.

Therefore, High Court opined that case for deleting the widow from list of dependents is not made out by the Insurance Company and remarriage will divest the widow from her right to claim compensation.

APPORTIONMENT

Mother of the deceased was also having two earning sons. It is also their responsibility, so why she shall be given 30%? In fact, more attention towards the two children of the deceased should have been paid.

High Court felt that the widow does not deserve to get Rs 4,00,000 as she was already earning and prospects of re-marriage were there. She also had received service benefits of deceased and amount of L.I.C partially.

Amount was apportioned in the following manner:

Widow Rs 2,00,000  

50% of remaining amount of Rs 40,13,000 after deducting Rs 7,00,000

Son Rs 16, 56, 500
Daughter Rs 16,56,500
Mother Rs 5,00,000

[Bajaj Allianz General Insurance Company Ltd. v. Pushpa Narayan Khurde, First Appeal No. 1379 of 2018, decided on 18-12-2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: Full Bench of Buwaneka Aluwihare, Vijith K. Malalgoda, and S. Thurairaja, JJ. allowed the appeal by setting aside the order of the Learned High Court Judge and directed the District Court to proceed to conclude the case.

In the present case, the appellant filed the case against the judgment of the High Court of the Western Province holden in Gampaha (also referred to as the ‘High Court’) in a Testamentary Case. The concerned parties had raised their objections on the Letter of Administration at the Testamentary Case which the 12th Respondent-Respondent-Appellant had obtained from the District Court of Negombo. The District Court had ordered to dispose of this matter on written Submissions of 06-10-1998. Since the original petitioner had died, his son was substituted in the above mentioned testamentary. The substituted petitioner had raised an objection with regard to the inventory and thus, made an application to re-inquire the matter orally. Later, the 12th Respondent- Respondent-Appellant objected and by order dated 01-03-2013 District Judge decided not to allow the fresh submissions.

Further, the Substituted Petitioner-Petitioner- Respondent appealed to the Provincial High Court of Gampaha. The appeal was allowed by the Civil Appellate Court. The question of law, is whether a substituted party in any action can deny the acceptance of the original party, also whether the substituted party can be estopped from taking a contrary position to the party. As per, Section 395 of the Civil Procedure Code Act, if the sole plaintiff has died the legal representative may be substituted by the court if the right to sue is still there. The pleas available to a Legal Representative was observed in an Indian Order, Gurdial Singh v. Gurdev Singh, 1991 SCC OnLine P&H 579. In the following case, it was held that in case of any dispute the legal representative has the right to continue the suit but he cannot claim anything which was not mentioned by the original plaintiff.

Thus, in the present case, it was held that the District Court’s order passed on 01-03-2013 is correct. Lastly, the Court ordered the Judge of the District Court to conclude this long-running case and the parties are directed to co-operate with the District Judge. [Kandiahpillai Shanmuganathan v. Kandiahpillai Vythilingam, 2019 SCC OnLine SL SC 13, decided on 11-09-2019]