Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P. R. Ramchandra Menon and Parth Prateem Sahu JJ., allowed the appeal and modified the impugned award.

The facts of the case are such that on 18-05-2011, Karan along with other labourers was travelling on a Dumper i.e. ‘offending vehicle’ to village Badeli when they met with an accident due to rash and negligent driving of offending vehicle by non-applicant 4 and Karan came under the offending vehicle and died. A claim application under Section 166 of the Motor Vehicle Act was filed before the learned Claims Tribunal and liability to pay the compensation was fastened on the insurance company.

Counsel for the appellants submitted that deceased was travelling as ‘gratuitous passenger’ in a ‘goods carriage vehicle’; the driver of offending vehicle was not possessing valid and effective driving licence, claimants are not entitled to any amount of compensation as it is a breach of conditions of the insurance policy.

Counsel for respondents submitted that it was a burden upon the Insurance Company to prove that on the date of accident, driver of the offending vehicle was not possessing a valid and effective driving licence, in which, it failed and no evidence has been brought on record by Insurance Company in support of their ground to prove that non-applicant No.4 was not possessing valid and effective driving licence.

Issue 1: The Court observed that in view of undisputed facts and evidence available on record it was clear that deceased was travelling in a goods carriage vehicle, he was not an employee of the owner of offending vehicle; the policy issued was only ‘Liability Only Policy’, no premium paid for any gratuitous passenger travelling in the vehicle, Insurance Company cannot be held liable to satisfy the amount of compensation against the death of Karan alias Phekan whose status was of ‘gratuitous passenger’.

Issue 2: The Court further observed that as far as the ground relating to no licence is Concerned the licence itself was not placed on record, then it cannot be said that Insurance Company has not discharged its burden to prove that non-applicant No.4 was not possessing valid and effective driving licence, in fact, it is a case of no licence. The Court thus held that nonapplicant No.4 was possessing valid and effective driving licence is perverse and it is hereby set aside.

Issue 3: The Court observed that as far as the ground that claimants are not entitled to any amount of compensation as they are not legal representatives and dependant upon the deceased is concerned, it was stated that In view of aforementioned evidence available on record when the claimants have not filed any document to show their relationship with deceased nor examined any independent witness of the village where the deceased was residing to prove that deceased was residing with claimants on the date of the accident.

The Court respect to maintaining an application by a person not dependant on the deceased observed that “the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can 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’.”

 The Court thus held that the claimants failed to prove that they were dependant upon deceased, the relationship being respondent 1 to be real sister of deceased not proved. Non-applicant 2 is earning and nothing is mentioned about the husband of applicant 1 and father of applicants 2 to 7.

In view of the above, the appeal was allowed and Insurance Company was exonerated from its liability to satisfy the amount of compensation and instead it was cast upon non-applicant 3/registered owner of the offending vehicle.[United India Insurance Company v. Kimani Devi,  2020 SCC OnLine Chh 881, decided on 09-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., while addressing the matter observed that:

“…where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide the same.” 

The instant appeal was at the behest of the claimants preferred against the award passed by the Motor Accident Claims Tribunal.

Factual Matrix

An accident took place on 26-02-2009 when the deceased along with her husband and another person namely Harendra Singh and others were travelling. The car was being driven by the claimant i.e. the husband. Further, it has been stated that a tanker coming from the opposite direction very negligently and carelessly turned to the right side of the road and rammed into the car causing an accident in which the wife of Harendra Singh, wife of claimant 1 and one other person namely child sustained multiple injuries.

Harendra Singh’s wife died due to the injuries and claimant’s wife suffered pain for almost about 3 months due to which she was hospitalised and later died.

Tribunal

Tribunal framed several issues and came to the conclusion that the husband of the deceased namely claimant 1 who was equally negligent and written the finding of the contributory negligence thereby halving the compensation awarded to the claimants.

Matter being considered in the High Court

In the above-background, the instant matter requires to be considered. the appellants are the legal heirs of the deceased.

Legal representatives rather heirs of the deceased felt aggrieved with the tribunals’ finding on the issue of negligence and compensation as far as the decision of the tribunal on other issues was concerned they attained finality.

Out of the said accident, as has been stated above, one other claim petition was being preferred by Harinder Singh v. Kamal Singh, MACP No. 104 of 2009 under Section 166 of the Motor Vehicles Act, 1988. This matter was tried before another tribunal wherein it was decided that the driver of the truck was solely negligent and claimants were to be compensated.

The above-stated decision was placed before the tribunal whose order is impugned.

Analysis and Decision

The truck rammed into the car causing 3 casualties of persons travelling in the Maruti van and caused injuries to other inmates of the car.

Supreme Court in the decision of Sudarsan Puhan v. Jayanta Mohanty, (2018) 10 SCC 552 and UPSRTC v. Mamta, (2016) 4 SCC 172 held that the appeal is a continuation of the earlier proceedings and High Court is under the legal obligation to decide all the issues of lis and decide it by giving reasons.

Bench stated that the tribunal has committed an error which is apparent on the face of the record and is against the settled principles of law.

Court dealt with the issue in the instant case under separate heads:

Issue of Negligence even in absence of applicability of the doctrine of res judicata and whether the same was rightly decided by the tribunal

Negligence: It means the failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not.

If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.

Contributory Negligence: A person who either contributes or is co-author of the accident would be liable for his contribution to the accident having taken place.

Supreme Court recently in the decision of Archit Saini v. Oriental Insurance Company Ltd., (2018) 3 SCC 365, considered the principles of negligence.

In the decision of Khenyei v. New India Assurance Company Ltd., 2015 LawSuit (SC) 469, the question of joint and several liability was considered.

In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas, in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of the combination of the negligence of two or more other persons.

Hence, it can be seen that there is a difference between contributory and composite negligence.

Supreme Court in the decision of T.O. Anthony v. Karvarnan, (2008) 3 SCC 748 has held that in case of composite negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately.

Qua applicability Of Doctrine Of Res Judicata where Decision On Negligence Was Decided By competent Tribunal in Claim Arising Out Of The Same Accident :

Doctrine of res judicata applies even if the decision by the earlier court is right or wrong but if it has attained finality between parties the doctrine shall apply and issues decided.

In light of the Gujarat High Court’s decision in United India Insurance Co. Ltd. v. Lajibhia Hamirbhai, the issue of negligence will operate as res judicata.

It is held in the said case that where the parties in two petitions are same, except the claimant, the decision by the tribunal in petition decided earlier, would operate as ‘res judicata’ as far as the issue of negligence is concerned in a subsequent petition.

Supreme Court’s decision in Ishwardas v. State of M.P., (1979) 4 SCC 163, it was held that in order to sustain the plea of res judicata, it is not necessary that all the parties to the litigations must be common. All that is necessary is that the issue should be between the same parties or between the parties under whom they or any of them claimed.

In the instant case, the claimants were being heirs of the deceased who succumbed to the injuries and qua them even if the tribunal was of the opinion that the driver of the car was negligent therefore it was a case of composite negligence.

Court concluded that there was no rebuttable evidence before the tribunal to hold the driver of the car also negligent. Tribunal misdirected itself in venturing to decide the issue afresh without discussing why he would not follow the earlier decision, therefore the said decision required modification.

Question of Legal Representative 

Section 2 (11) of the Code of Civil Procedure defines the term ‘legal representative’.

In the Supreme Court decision of GSRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234, it was held that for claiming compensation under either of the Acts the term legal cannot be given a narrow meaning as ascribed in Fatal Accidents Act 1855. Major, married son & earning son of the deceased can claim compensation. Dependency is not basic criteria for relief in accident cases to the claimants if they are a legal heir or legal representative of the deceased.

Legal Representative of Owner of Vehicle

Claimants before this Court and tribunal are the legal representatives of the deceased as they are husband and children who fall in Class-I heirship.

Hence, in view of the above, the deduction of compensation of claimant 1 by the tribunal cannot be sustained as he was claiming as an heir and not the driver or injured.

Compensation

Relying on the decision of the Supreme Court in Laxmidhar Nayak v. Jugal Kishore Behera, (2018) 1 SCC 746, it was held that the income of the housewife in the year 2009 would be Rs 4,000 per month, the amount would be Rs 48,000 per annum, to which as the deceased was 38 years of age, 25% will have to be added as she was self-employed.

Hence, the appeal was partly allowed and the Judgment and Decree passed by the tribunal shall stand modified to the aforesaid extent.

While parting with the judgment, the Court held that a direction is required to be given to all tribunals in the State that where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide so that the situation as it arose in the present matter may not arise.[Dharam Veer v. Kamal Singh, 2020 SCC OnLine All 1404, decided on 26-11-2020]


Advocates who appeared for the matter:

Counsel for Appellant:- Mohan Srivastav
Counsel for Respondent:- Rahul Sahai, K.K.D

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Appellate Tribunal (FEMA): Justice G.C. Mishra (Acting Chairman) allowed the application for the condonation of delay in respect to the substitution of the legal representatives (LRs) of the managing director of the deceased Ramesh Babu Muppalaneni of the company Sanjay Agro Traders (P) Ltd.

 In the instant case, the deceased having died on 26-10-2017, the appellant failed to file an application for the substitution of his legal heirs. Rather the application for its condonation of delay was filed on 27-05-2019, which prayed to condone a delay of 296 days only though there was a delay of 370 days.

The counsels for the appellant, S.K. Vasudeva Rao and Rabin Majumder pleaded that the delay in filing the application for the substitution of the LRs was not intentional but it happened due to the communication gap between the deceased’s family and the counsel about the death of the deceased which reached the counsel much later on 05-09-2018 as the family was much disturbed from their irreparable loss. Moreover, on 06-09-2018 itself, the Tribunal allowed the appellant to file an appropriate application in that regard when he submitted for it.

The counsel on behalf of the respondent, Aagam Kaur, however, contended that even though the family was in grief, the advocate could have moved an application for bringing the legal heirs on record. Also, there seemed no reasonable cause as to how he was prevented from moving a timely application. The Counsel also placed reliance on the judgment of the case N. Balakrishnan v. M. Krishnanmurthy, (1998) 7 SCC 123 wherein it was clearly held that the law of limitation fixes a lifespan for such legal remedy for the redressal of the legal injury so suffered. 

In view of the above case, the Tribunal allowed the application of condonation of delay in filing the applications for substitution of legal heirs subject to payment of Rs 25000 in each appeal to be paid within six weeks from the date of the order. 

Observing “sufficient cause” under Section 5 of the Limitation Act, 1963 the Court noted the concept of reasonableness as brought out by the case Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649.[S. Ramesh v. Special Director Directorate of Enforcement, Hyderabad, MP-FE-476/HYD/2019(COD) IN FPA-FE-300/HYD/2009, decided on 24-12-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Nandita Dubey, J., allowed the petitioner to file a fresh application for bringing in legal representatives along with an application for condonation of delay and an application for setting aside abatement before the trial court.

The plaintiffs filed an application under Order 22 Rule 3 CPC for bringing the legal representatives of the other deceased plaintiff Naeem Khan on record and it was dismissed. The arguments put forth by the petitioners were that they are “rustic and illiterate villagers” who could not contact and inform the counsel within the time for bringing the legal representatives on record. Further, the suit was initially filed before the Civil Court Balaghat but later on shifted to Lanjhi, which added further trouble to the applicants. Due to this reason, they were not able to contact the counsel and there was a delay in the application for substitution of legal representatives. However, by oversight, the application for setting aside abatement and condonation of delay was not filed.

The trial court, considering that the application under Order 22 Rule 3 of CPC was filed with a delay of nearly four months and no application for setting aside abatement and condonation of delay was filed, dismissed their application.

The Court concurred with the arguments put forth by the petitioners and relied on the decision rendered in the case of Rama Ravalu Gavade v. Sataba Gavadu, (1997) 1 SCC 261. Since the applicants were “rustic and illiterate people” and the delay was only of four months, the Trial Court should not to have adopted the hypertechnical approach and should have granted an opportunity to the applicants to file the application for condonation of delay and for setting aside abatement in the interest of justice. The Trial Court, therefore, was not right in outrightly dismissing the application of applicants. They allowed the petition and set aside the order passed by the Trial Court. The petitioners were granted liberty to file a fresh application for bringing the legal representatives along with an application for condonation of delay and an application for setting aside abatement before the Trial Court.[Naseema Begum v. Mohd. Rajik Nazmi, 2019 SCC OnLine MP 2255, decided on 28-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Kuldip Singh, J. modified the claim allowed by the Tribunal on the ground that the deceased was maintaining her family.

An appeal was filed by the claimant against the award made by Motor Accident Claims Tribunal, Karnal.

Facts of the case were that car accident took place which was driven by Jagdish Lal Ahuja i.e. Claimant 1 at very moderate speed. When they reached downside the railway overbridge a jeep being driven by Respondent 1 came at a very fast speed in a rash and negligent manner from the opposite side. Respondent 1 could not control the Jeep and hit the motorcycle of one Sandep Kumar and then Trax Jeep lost the control and hit the car. Deceased received multiple injuries. She succumbed to the injuries at Civil Hospital, Karnal. It was claimed that the deceased was earning Rs 16,000 to Rs 20,000 per month. Because of the death of the deceased, the claimants were deprived of the income of the deceased. In the reply, the respondent denied the fact that the accident took place due to the negligence of the jeep driver. The insurance company also denied the claim. The Tribunal held that the accident took place due to rash and negligent driving of the driver of the jeep but the Tribunal relied upon the income tax return for the year 2002-2003 and applied the multiplier of 8 and ordered the compensation amount accordingly. Thus aggrieved by the order of compensation an appeal was preferred by the claimant.

High Court opined that the Tribunal erred in discarding the income tax return for the year 2002-2003 only on the ground that it was filed after the death of the deceased. The Tribunal did not appreciate that the income tax authorities did not accept this return to be correct. The court also opined that as deceased was about 55 years old at the time of the accident, the multiplier of nine was to be applied. On the question that the dependents were eligible for the compensation, reliance was placed upon the case of Gujarat SRTC v. Ramanbhai Prabhatbhai, 1987 AIR (SC) 1690, in which various observations were made to press that the claimants being legal heir are entitled to compensations. It was further opined that as it cannot be assumed that unit is still running and as there was a loss of management on account of the death of the deceased who was looking after the entire affair and was supporting the family the multiplier of 9  should be applied. Thus the claim of Rs 11,95,000 was ordered to be payable along with the interest at 7.5 percent.[Jagdish Lal v. Ram Chander, 2019 SCC OnLine P&H 1175, decided on 11-07-2019]

Case BriefsHigh Courts

Rajasthan High Court: A petition was allowed by Dr Pushpendra Singh Bhati, J., filed with the prayer to quash an order and take petitioners as the legal representatives of the deceased.

The bone of contention in the present matter was that the application of the petitioner under Order 22 Rule 3 and 9 read with Section 151 of CPC was dismissed while the legal representatives of the deceased (one of the plaintiffs) had not been taken on record. The counsel for the petitioner, B.L. Choudhary, submitted that the defendants had informed the plaintiff on 08-04-2013 regarding the death of the deceased but the necessary steps could not be taken promptly, and therefore, the application for taking the legal representatives of the deceased on record was dismissed. The respondent, however, submitted that such delay was fatal and the legal representative should not be taken on record at such a later stage and thus the order passed in the application under Order 22 Rule 3 and 9 read with Section 151 of CPC was justified. The petitioner relied on the case of Ram Sumiran v. D.D.C, (1985) 1 SCC 431, wherein the Court held that merely because no application was made by the appellants for bringing the legal representatives of the deceased respondent on record would not be a valid ground for refusing to grant the application of the appellants for setting aside the abatement and bringing the legal representatives of the deceased respondent on record because the appellants were from the rural area and in a country like India where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of respondent, the legal representatives have to be brought on record within a certain time.

The Court held that delay in taking the legal representatives on record was there, but if the impugned order was permitted and the petitioners were not made a party to the suit then the rights of the petitioner would remain undetermined. The petition was thus allowed. [Kesar Bai v. Gram Panchayat, 2019 SCC OnLine Raj 600, decided on 23-05-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Bench of Tarlok Singh Chauhan, J, dismissed a petition that revolved around the petitioner’s post-admission steps for service of notice on the private respondents.

The petitioner was required to take post-admission steps for the service of the private respondents. For this purpose, the case was listed before the Additional Registrar (Judicial), however, for want of requisite steps notices could not be issued. Thereafter, though steps were taken by the petitioner majority of the notices were received back unserved for want of correct address and in some cases even the respondents reported to have died. Petitioner was directed to take fresh steps for service of unserved respondents within four weeks and during the same time was also directed to take steps for bringing on record the legal representatives of the deceased respondents. However, neither the process fee for unserved respondents nor steps for bringing on record the legal representatives of deceased respondents were taken by the petitioner. The court observed that no one had even cared to put in an appearance on behalf of the petitioner before the concerned Registrar, which clearly indicated that the petitioner was no longer interested in pursuing the instant.

The Court thus rejected dismissed the petition. [Sadhana v. Nikki Devi, 2019 SCC OnLine HP 44, decided on 08-01-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of C.V. Bhadang, J. held that the petitioners in the present writ petition was liable to pay the amount decreed against the judgment-debtor who was since deceased.

The petitioners were legal representatives Eric Sequeira. He was Chairman of the petitioner company and a judgment debtor died after the decree was passed. Now the decree-holder sought to execute the decree against the petitioners. The Executing Court held that the since petitioners succeeded to assess left behind by Eric Sequeira, they are liable to satisfy the decree. C.A. Ferreira, Advocate for the petitioners contended that legal representatives could not be held responsible to satisfy the decree. On the other hand, Yogesh V. Nadkarni, Advocate for respondents supported the impugned order.

On hearing the parties, the High Court found no case to interfere in the impugned order. It was of the opinion that the Executing Court was right in holding that the petitioners were liable to satisfy the decree by which the Company and Eric Sequeira were jointly and severally held liable today the amount of decree. The Execution Court was directed to proceed having regard to the terms of Section 50 CPC. The petition was dismissed. [Goan Residential Resorts (P) Ltd. v. Raghbir Singh Panwar, 2018 SCC OnLine Bom 5756, Order dated 30-11-2018]