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Tuesday, January 28, 2014

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.
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[1]     AIR 1987 SC 1690

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