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Accident claim -Section 166 of M.V. Act- clause (C) of Rule 2 of the Mizoram Motor Accident Claims Tribunal Rules, 1988, clause (11) of Section 2 of the Code of Civil Procedure, 1908,- Legal Representative – includes Catholic Society and also a brother of deceased as earlier decided – Locus standi of Catholic Society to claim compensation for the death of it’s Brother in accident – No plea was taken regarding locu standi by company – Tribunal awarded compensation to the society – instead of appeal insurance company filed writ – high court set aside the order and judgement of Tribunal exparte holding that society has no locus standi – Review also rejected even after verifying the bye laws of society which describes the society is the legal heir of brother’s assets – Apex court held that the society can maintain a claim petition and set aside the orders of high court = MONTFORD BROTHERS OF ST. GABRIEL & ANR. … APPELLANTS VS. UNITED INDIA INSURANCE & ANR. ETC. … RESPONDENTS= 2014 (January part ) judis.nic.in/supremecourt/filename=41182

Accident claim –Section 166 of M.V. Act- clause (C) of  Rule  2  of the Mizoram Motor Accident Claims Tribunal Rules,  1988,  clause (11) of Section 2 of the Code of Civil Procedure, 1908,- Legal Representative –  includes Catholic Society and also a brother of deceased as earlier decided – Locus standi of Catholic Society to claim compensation for the death of it’s Brother in accident – No plea was taken regarding locu standi by company – Tribunal awarded compensation to the society – instead of appeal insurance company filed writ – high court set aside the order and judgement of Tribunal exparte holding that society has no locus standi – Review also rejected even after verifying the bye laws of society which describes the society is the legal heir of brother’s assets – Apex court held that the society can maintain a claim petition and  set aside the orders of high court =

 

whether the High Court was correct  in

law in holding that the appellants are not competent to  claim  compensation

under the Motor Vehicle Act for the accidental death of `Brother’  belonging

to the appellant-society. =

 Instead of preferring appeal against the order of  the  Tribunal,  the

respondent-Company preferred a  writ  petition  under  Article  226  of  the

Constitution of India before the Gauhati High  Court  and  by  the  impugned

order under appeal dated 20.08.2002,  the High Court allowed  the  aforesaid

writ petition (C) No.20 of 2002 ex-parte, and held the  judgment  and  order

of the learned Tribunal to be invalid and incompetent  being  in  favour  of

person/persons who according to the High court were not competent  to  claim

compensation under the Motor Vehicle Act =

 

 “Whatever the `Brother’ receives by way  of  salary,  subsidies,

          gifts, pension or from insurance or other such benefits belongs to

          the community as by right and goes into the common purse.”

 

4.    Appellant No.2 is Principal of St.  Paul’s  Higher  Secondary  School,

Aizawal, Mizoram and represents appellant no.1 as well.

 

5.    One `Brother’ of  the  Society,  namely,  Alex  Chandy  Thomas  was  a

Director-cum-Head master of St. Peter High School and he  died  in  a  motor

accident on 22.06.1992.  The accident was  between  a  Jeep  driven  by  the

deceased and a Maruti Gypsy  covered  by  insurance  policy  issued  by  the

respondent Insurance Company.  At the time of death the  deceased  was  aged

34 years and was drawing  monthly salary of Rs.4,190/-.  The claim  petition

bearing No.55 of 1992 was filed before M.A.C.T., Aizawal by  appellant  no.2 on being duly authorized by the appellant no.1-the society. 

 

“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 authorised by the person inured 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. “

 

 

 

 

9.    The Act does not  define  the  term  “legal  representative”  but  the

Tribunal has noted in its judgment and order that clause (C) of  Rule  2  of

the Mizoram Motor Accident Claims Tribunal Rules,  1988,  defines  the  term

`legal representative’ as having the same  meaning  as  assigned  to  it  in

clause (11) of Section 2 of the Code of Civil Procedure, 1908, which  is  as

follows:

           “Section 2(11)`Legal representative’ means a 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”.

 

10.   From the aforesaid provisions it is clear that in case of death  of  a

person  in  a  motor  vehicle  accident,  right  is  available  to  a  legal

representative of the deceased or the agent of the legal  representative  to

lodge a claim for compensation under the provisions of the Act.   

The  issue

as to who is a legal representative or its agent is basically  an  issue  of

fact and may be decided one way or the other dependent upon the facts  of  a

particular case. 

But as a legal proposition it is undeniable that  a  person

claming  to  be  a  legal  representative  has  the  locus  to  maintain  an

application for compensation under Section 166 of the Act,  either  directly

or through any agent, subject to result of a dispute  raised  by  the  other

side on this issue.

 

 

in the case  of  Gujarat  State  Road  Transport  Corporation,

Ahmedabad vs. Raman Bhai Prabhatbhai & Anr.[1].  

In that  case,  covered  by

the Motor Vehicles Act of 1939, the claimant was a  brother  of  a  deceased

killed in a motor vehicle accident.  The Court rejected  the  contention  of

the appellant that since the term  `legal  representative’  is  not  defined

under the Motor Vehicles Act, the  right  of  filing  the  claim  should  be

controlled by the provisions of Fatal Accident  Act.   It  was  specifically

held that Motor Vehicles Act creates new and enlarged right  for  filing  an

application for compensation and such right  cannot  be  hedged  in  by  the

limitations on an action under the Fatal Accidents  Act.   Paragraph  11  of

the report reflects the correct philosophy which  should  guide  the  courts

interpreting legal  provisions  of  beneficial  legislations  providing  for

compensation to those who had suffered loss.

 

“11. We feel that the view taken by the Gujarat High  Court  is  in

      consonance with the principles of justice, equity and good  conscience

      having regard to the conditions of the  Indian  society.  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 Sections 110-A to  110-F  of  the

      Act. 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 Section 110-B of the  Act  and

      to specify the person or persons to whom compensation shall  be  paid.

      The determination of the compensation payable and its apportionment as

      required by Section 110-B of the Act amongst the legal representatives

      for whose benefit an application may be filed under Section  110-A  of

      the Act have to be done in accordance with  well-known  principles  of

      law. We should remember that in an Indian family brothers, sisters and

      brothers’ children and some times 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.

      We express our approval of the decision in Megjibhai  Khimji  Vira  v.

      Chaturbhai Taljabhai, (AIR 1977 Guj.195) and hold that the brother  of

      a person who dies in a motor vehicle accident is entitled to  maintain

      a  petition  under  Section  110-A  of  the  Act  if  he  is  a  legal

      representative of the deceased.”

 

while considering the quantum of compensation for  the

claimants the Tribunal  adopted  a  very  cautious  approach  and  framed  a

question for itself as  to  what  should  be  the  criterion  for  assessing

compensation in such  case where the  deceased  was  a  Roman  Catholic  and

joined the church services after denouncing his family, and as  such  having

no actual dependants or earning?  

For  answering  this  issue  the  Tribunal

relied not only upon judgments of American and English Courts but also  upon

Indian judgments for coming to the conclusion that even  a  religious  order

or organization may suffer considerable loss due to  death  of  a  voluntary

worker. The Tribunal also went on to  decide  who  should  be  entitled  for

compensation as legal representative of the deceased and  for  that  purpose

it relied upon the Full Bench judgment of Patna High Court reported  in  AIR

1987 Pat. 239, which held that  the  term  `legal  representative’  is  wide

enough to include even “intermeddlers” with the estate of a  deceased.   The

Tribunal also referred to some Indian judgments in which it  was  held  that

successors to the trusteeship and trust property are  legal  representatives

within the meaning of Section 2(11) of the Code of Civil Procedure.

 

17.   In the light of the aforesaid discussions, we have no  hesitation  in

holding that the High Court erred in law in setting aside the  judgment  of

the learned Tribunal by ignoring the  fact  that  the  respondent-Insurance

Company had not pressed issue no.1 nor it had pleaded and led  evidence  in

respect to the said issue.  The Court explained that  the  appellants  were

the legal

representatives of the deceased.  Such an  issue  of  facts  could  not  be

decided by the High Court for the first time in a writ petition which could

only be entertained under Article  227  of  the  Constitution  for  limited

purpose.

 

18.   Accordingly, orders of the  High  Court  dated  August  20,  2002  and

December 10, 2003 are set aside and the judgment and order of  the  Tribunal

dated July 14, 1994,  is  restored.   The  dues  of  compensation  including

interest, as per judgment  of  the  Tribunal,  shall  be  deposited  by  the

respondent-Insurance Company with the Tribunal within eight weeks  from  the

date of this order.  The Tribunal shall permit  the  claimants  to  withdraw

the same in the light of its order.

 

2014 (January part ) judis.nic.in/supremecourt/filename=41182

P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3269-3270 OF 2007
MONTFORD BROTHERS OF
ST. GABRIEL & ANR. … APPELLANTS

VS.

UNITED INDIA INSURANCE & ANR. ETC. … RESPONDENTS

 
J U D G M E N T

 

 
SHIVA KIRTI SINGH,J.

 

Heard learned counsel for the appellants and learned counsel for the
respondent-Insurance Company.
2. The facts relevant for deciding this appeal are not in dispute and
hence noted only in brief.
3. The appellant No.1 is a charitable society registered under the
Societies Registration Act, 1960. It runs various institutions as a
constituent unit of Catholic Church. It is running various orphanages,
industrial schools and other social service activities besides number of
educational schools/institutions. Its members after joining the appellant
society renounce the world and are known as “Brother”. Such a `Brother’
severs his all relations with the natural family and is bound by the
constitution of the society which includes Article 60 quoted in paragraph 3
of the order dated 10.12.2003 passed in Review Petition No.4 of 2002 and in
annexure P.5 as such:
“Whatever the `Brother’ receives by way of salary, subsidies,
gifts, pension or from insurance or other such benefits belongs to
the community as by right and goes into the common purse.”

4. Appellant No.2 is Principal of St. Paul’s Higher Secondary School,
Aizawal, Mizoram and represents appellant no.1 as well.

5. One `Brother’ of the Society, namely, Alex Chandy Thomas was a
Director-cum-Head master of St. Peter High School and he died in a motor
accident on 22.06.1992. The accident was between a Jeep driven by the
deceased and a Maruti Gypsy covered by insurance policy issued by the
respondent Insurance Company. At the time of death the deceased was aged
34 years and was drawing monthly salary of Rs.4,190/-. The claim petition
bearing No.55 of 1992 was filed before M.A.C.T., Aizawal by appellant no.2
on being duly authorized by the appellant no.1-the society. The owner of
the Gypsy vehicle discussed in his written statement that vehicle was duly
insured and hence liability, if any, was upon the Insurance Company. The
respondent-Insurance Company also filed a written statement and thereby
raised various objections to the claim. But as is clear from the written
statement under Annexure P.2 it never raised the issue that since the
deceased was a `Brother’ and therefore without any family or heir, the
appellant could not file claim petition for want of locus standi. The issue
no.1 regarding maintainability of claim petition was not pressed by the
respondents. The Tribunal awarded a compensation of Rs.2,52,000/- in favour
of the claimant and against the opposite parties with a direction to the
insurer to deposit Rs.2,27,000/- with the Tribunal as Rs.25,000/- had
already been deposited as interim compensation. The Tribunal also
permitted interest at the rate of 12% per annum, but from the date of
judgment dated 14.07.1994 passed in MACT case Nos. 55 and 82 of 1992.

6. Instead of preferring appeal against the order of the Tribunal, the
respondent-Company preferred a writ petition under Article 226 of the
Constitution of India before the Gauhati High Court and by the impugned
order under appeal dated 20.08.2002, the High Court allowed the aforesaid
writ petition (C) No.20 of 2002 ex-parte, and held the judgment and order
of the learned Tribunal to be invalid and incompetent being in favour of
person/persons who according to the High court were not competent to claim
compensation under the Motor Vehicle Act. This was the only ground of
challenge to the judgment and Award of the Tribunal. The High Court,
however, did not disturb the Award of Rs.25,000/- already made as interim
compensation. Review Petition preferred by the appellants was also rejected
on 10.12.2003 but after noticing the relevant facts relating to locus of
the appellants.

7. From the facts noted above, it is evident that there is no dispute
between the parties with regard to the quantum of compensation determined
by the Tribunal and the only issue is whether the High Court was correct in
law in holding that the appellants are not competent to claim compensation
under the Motor Vehicle Act for the accidental death of `Brother’ belonging
to the appellant-society.
8. The only issue noted above requires to look into Section 166 of the
Motor Vehicles Act, 1988, (hereinafter referred to as `The Act’). Sub-
section (1) of Section 166 is relevant for the purpose. It provides thus:

“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 authorised by the person inured 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. “

 
9. The Act does not define the term “legal representative” but the
Tribunal has noted in its judgment and order that clause (C) of Rule 2 of
the Mizoram Motor Accident Claims Tribunal Rules, 1988, defines the term
`legal representative’ as having the same meaning as assigned to it in
clause (11) of Section 2 of the Code of Civil Procedure, 1908, which is as
follows:
“Section 2(11)`Legal representative’ means a 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”.

10. From the aforesaid provisions it is clear that in case of death of a
person in a motor vehicle accident, right is available to a legal
representative of the deceased or the agent of the legal representative to
lodge a claim for compensation under the provisions of the Act. The issue
as to who is a legal representative or its agent is basically an issue of
fact and may be decided one way or the other dependent upon the facts of a
particular case. But as a legal proposition it is undeniable that a person
claming to be a legal representative has the locus to maintain an
application for compensation under Section 166 of the Act, either directly
or through any agent, subject to result of a dispute raised by the other
side on this issue.

11. Learned counsel for the Insurance Company tried to persuade us that
since the term `legal representative’ has not been defined under the Act,
the provision of Section 1-A of the Fatal Accidents Act, 1855, should be
taken as guiding principle and the claim should be confined only for the
benefit of wife, husband, parent and child, if any, of the person whose
death has been caused by the accident. In this context, he cited judgment
of this Court in the case of Gujarat State Road Transport Corporation,
Ahmedabad vs. Raman Bhai Prabhatbhai & Anr.[1]. In that case, covered by
the Motor Vehicles Act of 1939, the claimant was a brother of a deceased
killed in a motor vehicle accident. The Court rejected the contention of
the appellant that since the term `legal representative’ is not defined
under the Motor Vehicles Act, the right of filing the claim should be
controlled by the provisions of Fatal Accident Act. It was specifically
held that Motor Vehicles Act creates new and enlarged right for filing an
application for compensation and such right cannot be hedged in by the
limitations on an action under the Fatal Accidents Act. Paragraph 11 of
the report reflects the correct philosophy which should guide the courts
interpreting legal provisions of beneficial legislations providing for
compensation to those who had suffered loss.

“11. We feel that the view taken by the Gujarat High Court is in
consonance with the principles of justice, equity and good conscience
having regard to the conditions of the Indian society. 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 Sections 110-A to 110-F of the
Act. 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 Section 110-B of the Act and
to specify the person or persons to whom compensation shall be paid.
The determination of the compensation payable and its apportionment as
required by Section 110-B of the Act amongst the legal representatives
for whose benefit an application may be filed under Section 110-A of
the Act have to be done in accordance with well-known principles of
law. We should remember that in an Indian family brothers, sisters and
brothers’ children and some times 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.
We express our approval of the decision in Megjibhai Khimji Vira v.
Chaturbhai Taljabhai, (AIR 1977 Guj.195) and hold that the brother of
a person who dies in a motor vehicle accident is entitled to maintain
a petition under Section 110-A of the Act if he is a legal
representative of the deceased.”

 

 
12. From the aforesaid quoted extract it is evident that only if there is
a justification in consonance with principles of justice, equity and good
conscience, a dependant of the deceased may be denied right to claim
compensation. Hence, we find no merit in the submission advanced on behalf
of the respondent-Insurance Company that the claim petition is not
maintainable because of the provisions of the Fatal Accidents Act.

13. On behalf of the appellants it has been rightly contended that
proceeding before the Motor Vehicle Claims Tribunal is a summary proceeding
and unless there is evidence in support of such pleading that the claimant
is not a legal representative and therefore the claim petition be dismissed
as not maintainable, no such plea can be raised at a subsequent stage and
that also through a writ petition. The objection filed on behalf of the
Insurance Company, contained in annexure P.2, does not raise any such
objection nor there is any evidence led on this issue. As noted earlier,
the Tribunal did frame any issue regarding maintainability of the claim
petition on law and fact as issue no.1 but the findings recorded by the
Tribunal at page 41 of the paper book show that this issue together with
issue nos. 2 and 3 were not pressed by the opposite parties during trial
and were accordingly decided in favour of the claimants.

14. In the aforesaid circumstances, the order under appeal dated
20.8.2002 allowing the writ petition suffers from apparent mistake in not
noticing the relevant issue decided by the Tribunal and also the fact that
the Insurance Company, which was the writ petitioner, had not pressed this
issue. It had neither raised pleadings nor led evidence relevant for the
said issue.

15. On coming to know about the High Court judgment the appellants filed
a review petition in which they gave all the relevant facts including the
constitution of the society appellant no.1 in support of their claim that a
`Brother’ of the Society renounced his relations with the natural family
and all his earnings and belongings including insurance claims belonged to
the society. These facts could not have been ignored by the High Court but
even after noticing such facts the review petition was rejected.

16. A perusal of the judgment and order of the Tribunal discloses that
although issue no.1 was not pressed and hence decided in favour of the
claimants/appellants, while considering the quantum of compensation for the
claimants the Tribunal adopted a very cautious approach and framed a
question for itself as to what should be the criterion for assessing
compensation in such case where the deceased was a Roman Catholic and
joined the church services after denouncing his family, and as such having
no actual dependants or earning? For answering this issue the Tribunal
relied not only upon judgments of American and English Courts but also upon
Indian judgments for coming to the conclusion that even a religious order
or organization may suffer considerable loss due to death of a voluntary
worker. The Tribunal also went on to decide who should be entitled for
compensation as legal representative of the deceased and for that purpose
it relied upon the Full Bench judgment of Patna High Court reported in AIR
1987 Pat. 239, which held that the term `legal representative’ is wide
enough to include even “intermeddlers” with the estate of a deceased. The
Tribunal also referred to some Indian judgments in which it was held that
successors to the trusteeship and trust property are legal representatives
within the meaning of Section 2(11) of the Code of Civil Procedure.

17. In the light of the aforesaid discussions, we have no hesitation in
holding that the High Court erred in law in setting aside the judgment of
the learned Tribunal by ignoring the fact that the respondent-Insurance
Company had not pressed issue no.1 nor it had pleaded and led evidence in
respect to the said issue. The Court explained that the appellants were
the legal
representatives of the deceased. Such an issue of facts could not be
decided by the High Court for the first time in a writ petition which could
only be entertained under Article 227 of the Constitution for limited
purpose.

18. Accordingly, orders of the High Court dated August 20, 2002 and
December 10, 2003 are set aside and the judgment and order of the Tribunal
dated July 14, 1994, is restored. The dues of compensation including
interest, as per judgment of the Tribunal, shall be deposited by the
respondent-Insurance Company with the Tribunal within eight weeks from the
date of this order. The Tribunal shall permit the claimants to withdraw
the same in the light of its order.

 

19. The appeals are allowed to the extent indicated above. No costs.

……………………………………………C.J.I.
(P. SATHASIVAM)

 

 
…………………………………………………J. (RANJAN
GOGOI)

 

 
…………………………………………………J. (SHIVA
KIRTI SINGH)
New Delhi,
January 28,2014.
———————–
[1] AIR 1987 SC 1690

———————–
13

 

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