United India Insurance Co. Ltd v. Om Parkash & Ors.

BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Gopal Mittal, Advocate, for the appellant. Mr. Vijay Lath, Advocate for respondent No. 1. Mr. Sangram Singh Saron, Advocate, for respondent No. 2.

1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No To be referred to the Reporters or not?Yes/No

2. 3. Whether the judgment should be reported in the Digest? Yes/No F.A.O.NO. 2024 of 2008 , F.A.O.NO. 2025 of 2008 and F.A.O.NO. 2026 of 2008 2 K.Kannan, J.(Oral)

1. All these three petitions arise out of the same accident that resulted in the death of two passengers and one driver who drove the car. The claim of the persons who had filed these cases was that the Maruti Car in which they were travelling dashed against a standing vehicle on 30.11.2006, in the wee hours of the morning. The vehicle had been comprehensively insured to cover the risk of the driver and passengers also. Out of different claim petitions, FAO NO. 2024 arises out of the claim made by the brothers of the deceased who claimed to be dependants. FAO NO. 2025 was at the instance of the parents and minor children. FAO NO. 2026 was at the instance of the widow making claim for the death of a person aged 65 years.

2. The contention of the learned counsel appearing for the insurer is that it was a case of hit and run incident where the claimants were making improvements in their version by making a reference to a particular standing vehicle with vehicular particulars which had not been originally recorded in the FIR. The claim petitions have been against the insurer of the vehicle in which they were travelling.

3. Even if there has been any improvement in version of the claimants, I am of the view that it is in consequential for the claims which are against the insurer on a comprehensive policy where the risk of passengers in the vehicle of the insurer are fully F.A.O.NO. 2024 of 2008 , F.A.O.NO. 2025 of 2008 and F.A.O.NO. 2026 of 2008 3 covered. Therefore, the Insurance Company cannot plead that another vehicle had been involved in the accident but the details have been wrongly given with reference to the other vehicle which have came about by an improvement in the versions. I anchor the liability of the insurer by the only fact that there was an Insurance Policy which made possible for the representatives of the driver and the passengers in the insured's car to make the claim.

4. As regards the contention of the insurer in FAO NO. 2024 is concerned, the contention of the learned counsel is that the claimants were the brothers of the deceased who were aged 51, 49, 47 years. The brothers cannot be legal representatives or dependents of the deceased person and therefore, the claim was not maintainable at all. In response to this contention, the learned counsel appearing for the claimants would contend that out of the three brothers, two persons Om Parkash and Ved Parkash were blind and they were wholly dependent on the deceased. The youngest one Chaman Lal was not blind but he was also not doing work and was dependent on the deceased. It is also contended by the counsel for the claimants that the appeal by the Insurance Company itself is not maintainable for the ground alleged is not one of the permissible defences.

5. As regards the maintainability of the appeal, although the defences of the Insurance Company are circumscribed by law under Section 149(2) of Motor Vehicles Act, still jurisdictional F.A.O.NO. 2024 of 2008 , F.A.O.NO. 2025 of 2008 and F.A.O.NO. 2026 of 2008 4 issues such as non involvement of the vehicle, whether the accident occurred in the public place or not, whether death or injury by the user of the Motor Vehicle or not, whether the claims could be possible at the instance of the particular persons who were prosecuting the claim are all still relevant and still make possible for a Court to adjudicate, irrespective of the limitation contained under Section 149 of the Motor Vehicles Act. In this case, the contention of the counsel for the Insurance Company is the maintainability of the action at the instance of the claimants. I hold that the appeal is maintainable for what is in challenge, is the liability of the insurer for claims of persons, who according to the insurer, will not come within the definition of legal representatives.

6. We must examine the right of claimants by way of reference through the provisions of the Hindu Adoption and Maintenance Act which defines “dependants” under Section 21, a brother can not be stated to be a dependant on his elder brother. However, judicial pronouncements have been to the effect that beyond Section 21, a legal representative will encompass all persons who may have a right or a benefit from the estate. In such a way a heirship is not even necessary to qualify for the expression of legal representative. Judgments have made possible claims even to a Mahant (see Mahant Shyamdas Guru Mohandas v. Lalram M. Ravi AIR 2008 MP 147); to a religious order for death of a nun(Oriental Insurance Co. Ltd. F.A.O.NO. 2024 of 2008 , F.A.O.NO. 2025 of 2008 and F.A.O.NO. 2026 of 2008 5 v. Mother Superior S.H.Convent 1994(2) TAC 341).

7. The Supreme Court itself has considered this issue and the matter has come for consideration before this Court as well. In Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbai AIR 1987 SC 1690. The relevant part of the judgment reproduced in the following words:- “The brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under S. 110-A if he is a legal representative of the deceased. (AIR 1981 Madya Pra 151, Overruled. F.A.No. 1379 of 1986 D/- 24-12-1986 (Guj), Affirmed. AIR 1977 Guj 195, Approved.) Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Ss. 110-A to 110-F. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in S. 110-B and to specify the person or persons to whom F.A.O.NO. 2024 of 2008 , F.A.O.NO. 2025 of 2008 and F.A.O.NO. 2026 of 2008 6 compensation shall be paid. The determination of the compensation payable and its apportionment as required by S. 110-B amongst the legal representatives for whose benefit an application may be filed under S.110-A have to be done in accordance with well-known principles of law. It is to be remembered that 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 it 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 has been substantially modified by the provisions contained in the Motor Vehicles Act in relation to cases arising out of motor vehicles accidents.” In Subhash Chander and others versus State of Punjab and Haryana and others AIR 1974 Punjab and Haryana 54 and in Dharam Pal Chandna versus Ram Singh and others 1985 II ACC 366; it has been held that brothers and sisters who are majors could also be legal representatives.

8. Having regard to the special conditions existing and having regard to the evidence placed on record that amongst the F.A.O.NO. 2024 of 2008 , F.A.O.NO. 2025 of 2008 and F.A.O.NO. 2026 of 2008 7 claimants, two of them were blind and they were wholly dependent on the deceased, I affirm the plea of the claimants that they were entitled to seek for compensation for the death arising out the accident.

9. As regards the quantum of compensation it cannot be a ground, it will be available for the insurer to contend and the compensation arrived at by the Tribunal determining Rs. 2,42,000/- as payable to the claimants, shall therefore, not suffer any reduction. The appeal by the Insurer against the award of the Tribunal shall therefore, stand dismissed.

10. Even as regards the contentions raised in FAO NOs. 2025, 2026, the insurer's plea regarding liability is found to be not tenable and the insurance company is bound to satisfy the claim for death arising out of accident, the risk of it covered under a comprehensive policy. The issue of quantum of compensation again shall not be a ground which shall be available for the insurer and therefore, the award in these two cases are also confirmed. All the appeals filed by the Insurance Company shall therefore, dismissed. There shall be no directions as to costs. 23rd August, 2010 Shivani Kaushik [K.KANNAN] JUDGE