Sushil Kukreja, J
1. The instant appeal is maintained by the appellant-Oriental Insurance Company (hereinafter referred to as 'the appellant') under Section 173 of the Motor Vehicles Act (for short 'MV Act') against the impugned award dated 15.03.2013, passed by the learned Motor Accidents Claims Tribunal-II, Shimla, HP, camp at Rohru, in MAC No.13-R/2 of 2007, with a prayer to set aside the same.
2. Briefly stated the facts of the case, giving rise to the present appeal, are that petitioner-Dharamu (now deceased) filed a claim petition under Section 166 of MV Act, whereby he sought compensation on account of death of his brother Shri Dasu It was haverred by the petitioner that on 26.03.2007, when his brother Dasu was present at Samoli Bridge and was about to start his journey to Rohru, due to the rash and negligent driving of bus bearing registration No.HP-10-0888, by its driver (respondent No.3 herein), he was crashed by the said bus, as a result of which, he sustained severe head injury and died. As per the petitioner, at the time of death, the deceased was 52 years old and he was an agriculturist and his monthly income was Rs.4,000/-. He used to reside with the petitioner and support him in his old age. The offending vehicle was owned by one Raj Kumar (respondent No.2 herein) and it was insured with Oriental Insurance Company (appellant herein). Hence, the petitioner sought compensation to the tune of Rs.7,00,000/-.
3. The driver and owner of the offending vehicle, in their joint reply, raised preliminary objections qua maintainability of the claim petition and the highly exaggerated claim of compensation. On merits, it was haverred that Dasu Ram was just a beggar, who used to roam in Rohru Bazar and he was not having any income and the petitioner was not dependent upon him.
4. In its reply, respondent No.3/Insurance Company raised the preliminary objections that the driver was not having a valid and effective driving licence, the vehicle was being driven in violation of the terms and conditions of the insurance policy, without valid registration certificate (RC), route permit and fitness certificate. On merits, it was haverred that the insurance company was not liable to indemnify the owner of the offending vehicle and the payment of compensation to the petitioner. It was further haverred that the amount of compensation, as claimed, was highly exaggerated.
5. On the basis of the pleadings of the parties, the learned Tribunal below framed the following issues on 14.11.2008:-
"1. Whether the Dassu died due to rash and negligent driving f bus No.HP-10-0888 by respondent No.2? OPP
2. If issue No.1 is proved, what amount of compensation, the petitioner is entitled to and from whom? OPP
3. Whether the petition is not maintainable, as alleged? OPR-1 & 2
4. W ether the driver was not having valid and effective driving licence?OPR-3
5. Whether the vehicle was being driven in violation of Motor Vehicles Act and policy? OPR-3
6. Whether there did not exist any RC, route permit, fitness in respect of the vehicle in question? OPR-3
7. Relief."
6. The parties led their evidence and after hearing the learned counsel for the parties, the claim petition was allowed and the petitioner was granted compensation to the tune of Rs.50,000/-alongwith interest, which was to be paid by the insurance company (appellant herein).
7. Feeling aggrieved and dissatisfied, the appellant/insurance company preferred the instant appeal against the impugned award dated 15.03.2013 passed by the learned Tribunal below, with a prayer to set-aside the same.
8. Learned Senior counsel for the appellant/Insurance Company has contended that the impugned award is against the law and facts, as such, the same is not sustainable in the eyes of law. He further contended that since the petitioner was younger brother of the deceased and was not dependent on the income of the deceased, therefore, he would not be entitled to claim any amount as compensation. He also contended that no claim under Section 140 of MV Act was made on behalf of the petitioner and no separate application under Section 140(2) of MV Act was also filed on his behalf, therefore, the impugned award could not have been passed under Section 140(2) of MV Act while deciding petition filed under Section 166 of MV Act, as such, the impugned award deserves to be set-aside.
9. Conversely, learned counsel representing respondents No.1(a) & 2 supported the impugned award and prayed for dismissal of the instant appeal.
10. I have heard the learned Senior Counsel for the appellant as well as learned vice counsel for respondent No.1(a) and learned counsel for respondent No.2 and also carefully examined the entire record.
11. The perusal of copy of Pariwar Register shows that deceased Dasu and Dharmu were the real brothers and they used to reside in the joint family. It is admitted case of petitioner that Dasu was not having any children as he was unmarried. The learned Tribunal below had categorically held that the petitioner was not the dependent on the deceased. Thus, the question which arises for consideration before this court is that whether the petitioner, who was elder brother of the deceased and not dependent upon him could have filed claim petition for compensation against the respondents?
12. In Smt. Manjuri Bera Vs. Oriental Insurance Company Limited, AIR 2007 SC 1474, the married daughter, who was not dependent upon her deceased father, filed a claim petition and the question involved was whether she was entitled to maintain the said petition. It has been held by the Hon'ble Apex court that a claim petition can be filed by a legal representative of the deceased, who in the normal circumstances is entitled to represent his estate. It has further been held that 'statutory compensation' payable under Section 140 (2) of the Act, becomes the estate of inheritable. In these circumstances it was held that the daughter, who was entitled to inherit the estate of her father, was also entitled to maintain claim petition and the compensation cannot be less than what has been prescribed in section 140 (2) of the Act. Relevant paras of the aforesaid judgment read as under:-
"16.Judged in that background where a legal representative who is not dependent files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned Amicus Curiae
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21. In my opinion, "No Fault Liability", envisaged in Section 140 of the said Act, is distinguishable rom the rule of "Strict Liability". In the former, the compensation amount is fixed. It is Rs. 50,000/- in cases of death [Section 140(2)]. It is a statutory liability. It is an amount which can be deducted from the final amount awarded by the Tribunal. Since, the amount is a fixed amount/crystallized amount , he same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited his estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive compensation under "No fault Liability" in terms of Section 140 of the said Act......."
13. In Gujrat State Road Transportation Corporation versus Ramanbhai Prabhatbhai and another AIR 1987 S.C.1690, the real brot ers of the deceased, were held entitled to file claim petition being his legal representatives.
14. In National Insurance Company Ltd. vs. Birender and others, AIR 2020 SC 434, a question came up for consideration before Hon'ble Supreme Court as to whether major sons of the deceased, who are married and gainfully employed, can claim compensation. The Hon'ble Supreme Court held that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and it further held that the claim cannot be limited towards conventional heads only. Paras 14 and 15 of the said judgment are as under:-
"14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). 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. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:-
"9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.
10......The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.
11.According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles 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. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g).
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275 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". As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai (1987)3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."
In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction be ween "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a esult, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decisi n w uld clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only......."
15. Thus, the term 'legal representative' has broadly been interpreted in the aforesaid authoritative pronouncements of law whereby it has been held that any legal representative i.e. any person who in law represents the estate of a deceased including any person who inter-meddles with the estate of deceased is entitled to file claim petition. In the present case the statutory compensation payable under Section 140(2) of MV Act became the estate of deceased Dasu Ram. Since he was not having any children/widow, therefore, the learned Tribunal rightly came to the conclusion that on his death, present petitioner (since deceased), who was his elder brother, was entitled to inherit his estate. Hence, even though he was the elder brother of the deceased and also earning, the claim petition at his instance, was maintainable and the learned Tribunal has rightly held that he was entitled for compensation in the sum of Rs.50,000/-, as provided in Section 140(2) of MV Act. Further, he petitioner/claimant had not preferred any appeal or cross-objections for enhancement of the amount of compensation.
16. Hence, in view of my aforesaid discussion, the appeal filed by the appellant/Insurance Company, being devoid of any merits, is dismissed and the impugned award dated 15.03.2013, passed by the learned Motor Accidents Claims Tribunal-II, Shimla, HP, camp at Rohru, is upheld.
Pending miscellaneous application(s), if any, shall stand disposed of.
