Hon'ble Mahendra Dayal,J.
As both the aforesaid appeals arise out of an accident occurred on 17.8.2004, they are taken up together for common orders.
At the outset, it is relevant to mention here that Mohd. Yunus and Ajmat Ali, who are the appellants in FAFO No.808 of 2010 have filed this appeal for enhancement of compensation awarded by an Award dated 4.11.2009 passed by the Motor Accident Claims Tribunal in Claim Petition No.6 of 2009, whereby the Tribunal has directed the respondents to pay Rs.1,82,000/- alongwith interest. According to the appellant, deceased was a carpenter and was a skilled labour, who was earning not less than Rs.3,000/- per month. However, the Tribunal did not find the income reliable as claimed by the claimants. Accordingly, the Tribunal assessed the income as Rs.15,000/- per annum on the basis of second schedule.
It is relevant to point out here that the Tribunal has directed that 50% of the compensation amount shall be paid jointly by opposite party nos.1 and 4, whereas opposite party No.2 shall pay the remaining 50% amount of compensation. The Tribunal further directed that it will be open for the Oriental Insurance Company (opposite party No.4) to recover the amount from the opposite party No.1 (Rais).
Rais, who is respondent No.1 in FAFO No.808 of 2010, has filed separate appeal bearing FAFO No.507 of 2010 inter alia on the ground that the Tribunal committed an error in granting liberty to the insurance company for recovering the awarded amount from the appellant/owner of the vehicle. It may be pointed out that Rais is the owner of Mini Truck No. UP-40-5321 which had collided with Jeep No.UP-40/8485.
Heard Mr. Rajendra Jaiswal, learned Counsel for the appellant in FAFO No.808 of 2010 and Mr. U. P. S. Kushwaha, learned Counsel for the Oriental Insurance Company Limited and others.
A perusal of the impugned Award shows that the Tribunal while deciding the claim has framed in all eight issues and issue nos.2 and 3 are to the effect that whether the vehicles bearing No.UP-40-8485 (Jeep) and UP-40-5321 (Mini-Truck) were insured with the insurance company and whether the drivers of both the vehicles were having valid driving licenses. On the basis of the documentary evidence, the Tribunal came to the conclusion that Liyaqat Ali, who was the driver of LMV vehicle was having a valid driving license and the same was effective on the date of incident in respect of LMV vehicle only, but he was driving Truck (HMV) for which he was not having valid driving license. As far as the driver of Jeep is concerned, neither any one appeared nor any documentary evidence was produced before the Tribunal as such the Tribunal came to the conclusion that both the drivers were not having valid driving licenses on the date of incident. Issue no.5 framed by the Tribunal was that whether Jeep No.UP-40/8485 was sold by its driver on 9.6.2004 to Smt. Naznin Begum, W/o Aziz and whether at the time of accident the vehicle was in possession of Smt. Naznin Begum and it was transferred in her name by the A.R.T.O. on 21.8.2004. The Tribunal after examining the record has held that the vehicle in question was in possession and in the name of Smt.Naznin Begum, W/o Abdul Aziz at the time of accident.
Mr.U.P.S Kushwaha, learned Counsel for the Insurance Company submits that the claim petition has been filed by the brother of deceased, who are not dependent on the income of deceased. Further, the deceased was unmarried. Therefore, the Tribunal erred in awarding compensation to the claimants, who are not dependents, but brothers of the deceased. To substantiate the aforesaid argument, learned Counsel for the Insurance Company has relied upon Smt. Manjuri Bera vs. The Oriental Insurance Company Ltd. and another [2007(10 ) SCC 643].
The aforesaid argument of the learned Counsel for the Insurance company is to be examined in the light of various provisions contained in Motor Vehicles Act. Section 163-A of the Motor Vehicles Act deals with the special provisions relating to payment of compensation on structured formula basis and provides that the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle to the legal heirs or the victim, as the case may be. Section 166 of the Motor Vehicles Act, which is also relevant in the present controversy, deals with the application for compensation and it reads as under:-
"Section 166: Application for compensation: (1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be.
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(2)Every application under Sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
Xx xx xx (4) The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act."
In the provisions of Motor Vehicles Act, referred to above, the Legislature has not used the word 'dependent' rather it has used the words 'all or any of the legal representatives of the deceased'. The words "legal representative" have not been defined under the Motor Vehicles Act.
Section 2 (11) of the CPC deals with legal representative and provides that the person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996, i.e. under Section 2 (1) (g).
Hon'ble Supreme Court in Gujarat S.R.T.C. v. Raman Bhai Prabhat Bhai. (1987) 3 SCC 234, has held that 'legal representative' ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual and hence legal representatives including brothers of the deceased victim of a motor accident are entitled to get compensation under Section 110A of the Motor Vehicles Act.
Thus, a legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual.
In the Motor Vehicles Act, nowhere the word 'dependent' has been used. Even if, there was no dependence, there is a loss to the estate and a person who is legal representative but not dependent can yet be the beneficiary of the estate. In these circumstances, the assertion of the counsel for the Insurance Company is misconceived and is rejected.
Now, we come to the second question involved in the instant appeal which is regarding determination of income of the deceased.
Mr.Rajendra Jaiswal, learned Counsel submits that though the deceased was earning Rs.36,000/- per annum at the relevant time, but the Tribunal awarded compensation assessing the income of the deceased as Rs.15,000/-. In this regard, the appellants' counsel has drawn the Court's attention towards the case law of Laxmi Devi and Others v. Mohammad Tabbar and another, (2008) 12 SCC 165. In this case, the Apex Court approved the findings of the Uttaranchal High Court to the effect that even an unskilled labour these days can easily earn Rs.100/- per day, i.e Rs.36,000/- per annum. By deducting one third income of the deceased for his personal expenses, the claimants dependency was assessed at Rs.24,000/- per annum.
Keeping in view the law laid down by the Apex Court in the aforesaid cases, and the provisions of Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011, we enhance the notional income of Rs.15,000/- to Rs.36,000/- p.a. As there is no dispute with regard to the multiplier applied by the Tribunal, we calculate the compensation on the multiplier of '18'. Accordingly, the notional income as applied would be Rs.24,000 x 18 = Rs.4,32,000/- and to this will be added the other compensation like Rs.2,000/- as funeral expenses. The claimants, would, therefore, be entitled to a sum of Rs.4,34,000/-.
It may be noted that the Tribunal has held composite negligence of the drivers of both the vehicles and as such, fastened the liability accordingly, which in our opinion, is fully justified in the circumstances of the case. The findings recorded by the Tribunal in this regard cannot be said to be perverse or unreasonable.
It may be added that the appellant-Rais Ahmas has claimed that the mini-Truck was not a heavy vehicle and its weight does not exceed 7500 Kilograms. Therefore, it is wrong to say that the driver was not having valid driving license. We are unable to accept this assertion of the appellant-Rais as no documentary evidence or registration or papers of the vehicle have been filed to establish that it was below 7500 kilograms and the vehicle was 'Light Motor Vehicle' (LMV). Accordingly, the right to recovery granted by the Tribunal cannot be said to be unjustified.
Accordingly, the FAFO is partly allowed and the impugned Award dated 4.11.2009 is modified to the above extent, whereas FAFO No.507 of 2010 filed by the appellant is dismissed.
Order Date :- 24.9.2014 lakshman