It is to be borne in mind that the necessary parties are those without whose presence, the Court cannot determine the real matter or controversy between the parties in dispute. It is also settled principles of law that no suit/petition shall be defeated by reason of mis-joinder or non-joinder of parties if such defect does not affect the merits of the case or jurisdiction of the Court; the Court has to deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. When a case has been tried on merits it cannot be reversed purely on technical grounds unless it has resulted in failure of justice. In the case on hand the Tribunal has effectively decided the liability of the insurer in respect of dependents or claimants without a person who being a legal heir was not dependent on the deceased. Therefore, the contention of the insurer that the claim petition was bad for non-joinder of necessary party, the husband of the deceased who is one of the legal heirs is not tenable. {Para 22}
23. Even otherwise the insurer cannot be said to be an aggrieved party if the husband is not arraigned as one of the parties to the claim petition; arguably he also could have had a share in what has been awarded, is true. Thus, addition or non-addition of husband as a party in no way diminishes the liability of the insurer.
IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)
Miscellaneous First Appeal No. 200220/2015 (MV)
Decided On: 08.09.2020
The Manager, Oriental Insurance Co. Ltd. Vs. Raju and Ors.
Hon'ble Judges/Coram:
Dixit Krishna Shripad and P.N. Desai, JJ.
Author: P.N. Desai, J.
Citation: MANU/KA/3151/2020.
1. Aggrieved by the judgment and award in MVC. No. 517/2012 dated 26.11.2014 by the II Additional M.A.C.T. and Additional District and Sessions Judge, at Bidar, the Insurer has filed this appeal. The respondents No. 1 to 3 are the son and daughters of the deceased-Parvati respectively, and they happen to be the claimants. Respondent No. 4 is the owner of the vehicle who was the respondent No. 1 before Motor Accident Claim Tribunal, (hereinafter shortly referred as 'M.A.C.T.').
2. The brief contention of the claimants before the M.A.C.T. was:-
That on 04.08.2012 in the morning the deceased-Parvati along with her son i.e., claimant No. 1 had been to their agricultural land bearing Sy. No. 25/A2 situated at village Hippalgaon. After attending the work on the same day they were returning to Bidar on a motorcycle bearing Reg. No. KA-38-E-9961. The deceased was a pillion rider and her son claimant No. 1 was rider of the motorcycle. At about 10.15 a.m. when they came near the land of Ramanna Bombalgi on Chambol-Janwada road, another Honda Shine motorcycle bearing Reg. No. KA-38-K-8150 driven by its rider came behind in a high speed, rash and negligent manner and hit the hind portion of motorcycle of claimant No. 1. As a result the rider-claimant No. 1 and the pillion rider deceased-Parvati fell down on the road and sustained grievous injuries. Immediately they were taken to the Hospital, at Bidar. On the same day the pillion rider-Parvati succumbed to the injuries.
3. It is further contended that the deceased-Parvathi was hale and healthy, aged about 50 years. She was a government servant working as Attender in judicial department at Bhalki and drawing monthly salary of Rs. 15,919/-. The claimants contending that they being the dependents of the deceased-Parvati have filed the claim petition claiming total compensation of Rs. 33,50,000/- under various heads.
4. The respondent No. 1 owner of the offending vehicle bearing Reg. No. KA-38-K-8150 Honda Shine motorcycle entered appearance and denied the entire contents of the claim petition and contended that he is not liable to pay the compensation. He has further contended that the vehicle in question is insured with respondent No. 2.
5. The Insurer-respondent No. 2 filed the written statement denying the manner of the alleged accident. The insurer also denied the age, profession and income of the deceased. The insurer has contended that their liability if any is subject to the limitation in the provisions of Motor Vehicle Act and Rules. It is also contended that non-joinder of husband of the deceased as a party to the petition, the petition is not maintainable. With these main contentions insurer has prayed to dismiss the claim petition.
6. On the basis of the above pleadings the Tribunal has framed the issues. In order to prove their case the claimant No. 1-Raju got examined himself as PW. 1 and got marked 14 documents Ex. P. 1 to 14 which consist of FIR, charge sheet, statements, spot panchanama, IMV report, P.M. report, D.L., service certificate and salary certificate of the deceased. On behalf of the respondents no evidence is led.
7. After hearing the arguments, the Tribunal awarded Rs. 17,50,576/- as compensation with interest at the rate of 6% p.a. directing insurer to pay the same. Aggrieved by the impugned judgment and award the Insurer has preferred this appeal only on the following three grounds:-
a) That the claim petition is not maintainable for non-joinder of necessary party namely the husband of the deceased who happens to be a Class-I heir.
b) The MACT erred in awarding compensation under various heads to claimants No. 1 to 3 who being a major son and married daughters are not dependents, and
c) The award in respect of conventional heads is on higher side, and therefore requires to be modified with downward revision.
8. We have heard Smt. Preeti Patil Melkundi, learned counsel for the Insurer, Sri. Sachin M. Mahajan, the learned counsel for respondents No. 2 & 3 and Sri. Venkatesh C. Mallabadi, learned counsel for the respondent No. 4.
9. After going through material placed before us, we are satisfied about quantum of compensation awarded and therefore hold that no modification is required.
10. The learned counsel for the Insurer mainly argued on two grounds, (a) that the husband of the deceased-Parvati by name Tulsiram is admittedly being alive as a class-I heir is not arraigned as a party. So, the petition suffers from non-joinder of necessary party and (b) that the claimants being the major son and married daughters are not dependents and therefore they are not entitled for compensation.
11. Per contra, learned counsel for the claimants would submit that the husband of the deceased had left her about 25 years back and residing with another wife separately. He has not taken care of either deceased or these claimants. He is working in Revenue Department and is not depended on the deceased. Further he would submit that as a "legal representatives" and dependents major son and married daughters are entitled to claim compensation due to death of their mother.
12. To appreciate these grounds urged at the bar it is useful to refer to relevant provisions of Motor Vehicles Act, Rules made thereunder and the provisions of Code of Civil Procedure, which govern the matter.
a) Section 166 of the Motor Vehicles Act, 1988 (hereinafter shortly referred as "M.V. Act 1988") provides as to who can file the petition for compensation and prescribed the procedure. It reads as under:-
"166. Application for compensation-(1) An application for compensation arising out of an accident of the nature specified in subsection (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 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:
[--7
(3) ......
[(4) The Claims Tribunal shall treat any report off accidents forwarded to it under [section 159] as an application for compensation under this Act].
[(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not.]"
13. Further Section 159 of the M.V. Act 1988 reads as under:-
"Section 159. Information to be given regarding accident.-The police officer shall, during the investigation, prepare an accident information report to facilitate the settlement of claim in such form and manner, within three months and containing such particulars and submit the same to the Claims Tribunal and such other agency as may he prescribed."
It is evident from Section 166 (1) (c) that the claim petition can be filed by all or any of the legal representatives of the deceased. Section 166 (4) empowers the Claims Tribunal to treat any report of the accident forwarded to it as an application for compensation. The M.V. Act 1988 or the Section quoted above does not use the term "legal heir".
14. The expression "legal representative" has not been defined in the M.V. Act 1988. Section 2 (11) of the Code of Civil Procedure, 1908 (hereinafter shortly referred as C.P.C.) defines the term "legal representative". It reads as under;-
"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."
15. The above said definition no doubt in terms does not apply to the claim petitions before the Claims Tribunal. But in ordinary parlance the said expression is understood, in the same way in which it is defined in the C.P.C. The procedure prescribed in the C.P.C. is not strictly applicable to the proceedings before the M.A.C.T. The proceedings under M.V. Act 1988 are summary in nature. Further, as per Rule 254 of the Karnataka Motor Vehicles Rules, 1989 the following provisions of C.P.C. are made applicable for holding inquiry. It reads as under:-
254. Procedure of holding enquiry:-The following provisions of the Code of Civil Procedure 1908, shall, so far as may be, applied to the proceedings before every Claims Tribunal, namely:-
(a) Sections 28, 78 and 82
(b) In the First Schedule, Order V, Rules 9 to 13 (both inclusive) and 15 to 30 (both inclusive); Order VI, Rule 4, 5, 7, 10, 11, 16, 17 and 18, and Order VII, Rule 10; Order VIII, Rules 2 to 5 (both inclusive), 9 and 10, Order IX; Order XI, Rules 12 to 15 (both inclusive), 17 to 21 (both inclusive) and 23; Order XII, Rules 1, 2, 3-A, 4, 7 and 9; Order XIII, Rules 3 to 10 (both inclusive); Order XIV, Rules 2 and 5; Order XVI; Order XVII; Order XVIII, Rules 1 to 34 (both inclusive); Order XIX, Rules 10 to 12 (both inclusive) and 15 to 18 (both inclusive), Order XX, Rules 1 to 3 (both inclusive); 8, 11 and 20; Order XXI; Order XXIL, Rules 1 to 7 (both inclusive) and 9; Order XXIII, Rules 1 to 3 (both inclusive); Order XXIV; Order XXVI, Rules 1 to 8 (both inclusive) and 15 to 18 (both inclusive); Order XXVIII; Order XXVIII; Order XXIX; Order XXX, Rules 1,3 to 8 (both inclusive) and 10; Order XXXII, Rules 1 to 15 (both inclusive); Order XXXVII, Rules 1 to 11 (both inclusive); and Order XXXIX, Rules 1 and 3 to 5 (both inclusive). Insofar as the Act and these Rules make no provision or make insufficient provision, the relevant provisions of the Code of Civil Procedure, 1908 shall so far as may be, apply to the proceedings before the Claims Tribunal.
In view of these Rules it is evident that the provisions of Order 1 of C.P.C. which deal with "Parties to the suit" are not strictly applicable for holding enquiry.
16. It is also necessary to refer to Section 168 of the M.V. Act 1988 which states as to how the Claims Tribunal shall determine the amount of compensation and make an award as regards the quantum of compensation and also the person or persons to whom compensation shall be paid. It has the following text:
@Section 168. Award of the Claims Tribunal:-(1) On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of [section 163] may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be;
(2).......
(3).......
17. It is evident from Section 168 (1) of the M.V. Act 1988, that the Tribunal after holding enquiry into the claim, passes the award determining the amount of compensation which appears to be just and specify the person or persons to whom compensation shall be paid and also specify the liability of the insurer, owner or driver. The words the legal heirs' are not used in this section also.
18. The Apex Court considered the scope of Section 110-A and 110-B of the M.V. Act 1939 (New Sections 166 and 168 of the M.V. Act 1988) with reference to Fatal Accident Act, 1985 as to who can make application to the Tribunal and who are entitled for compensation in the case of Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and another reported in MANU/SC/0469/1987 : (1987) 3 SCC 234, at Para 13 it is held as under:-
13. 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 HOB 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 sometimes 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 and another v. Chaturbhai Taljabhai? 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."
19. In a recent decision, the Apex Court in the case of National Insurance Company Limited vs. Birender and others MANU/SC/0028/2020 : AIR 2020 SC 434 again considered the scope of Section 166 (1) (c) of M.V. Act (59 of 1988) and also Section 2 (11) of C.P.C. after adverting to its earlier decisions in Gujarat State Road Transport Corporation, Ahmedabad (supra), Custodian of Branches of BANCO National Ultramarino vs. Nalini Bai Naique MANU/SC/0149/1989 : 1989 Supp (2) SCC 275 and Manjuri Bera (Smt.) vs. Oriental Insurance Company Limited and other MANU/SC/1978/2007 : (2007) 10 SCC 643, at paragraph No. 14 and 15 it is held 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 subsection (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 subsection 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 de ceased 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).
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [MANU/SC/0149/1989 : 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 [MANU/SC/0469/1987 : (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 between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, 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 decision would 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 dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs. 1,00,000/- and Rs. 1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.
20. In the light of the principles stated in the above referred decisions and the provisions of the M.V. Act 1988, Rules and C.P.C. the impugned award of the Tribunal is to be considered.
21. It is evident from the award passed by the Tribunal that while assessing the loss of dependency in view of death of mother of claimants who are the dependents of the deceased-Parvati, it has come to the conclusion that claimants are entitled for compensation and also apportioned the compensation amount. Admittedly, the husband of the deceased left her and the claimants who are his children about 25 years back and he is residing separately with another wife. He is also working in revenue department and earning separately. He never looked after the deceased or the claimants for all these years. He is never dependent on the deceased. This is born out from the pleadings and evidence. The Tribunal found that these claimants being dependents are entitled for compensation. The respondent-insurer has not adduced any evidence in support of their contention.
22. It is to be borne in mind that the necessary parties are those without whose presence, the Court cannot determine the real matter or controversy between the parties in dispute. It is also settled principles of law that no suit/petition shall be defeated by reason of mis-joinder or non-joinder of parties if such defect does not affect the merits of the case or jurisdiction of the Court; the Court has to deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. When a case has been tried on merits it cannot be reversed purely on technical grounds unless it has resulted in failure of justice. In the case on hand the Tribunal has effectively decided the liability of the insurer in respect of dependents or claimants without a person who being a legal heir was not dependent on the deceased. Therefore, the contention of the insurer that the claim petition was bad for non-joinder of necessary party, the husband of the deceased who is one of the legal heirs is not tenable.
23. Even otherwise the insurer cannot be said to be an aggrieved party if the husband is not arraigned as one of the parties to the claim petition; arguably he also could have had a share in what has been awarded, is true. Thus, addition or non-addition of husband as a party in no way diminishes the liability of the insurer.
24. Therefore, we find no grounds to interfere with the findings of the Tribunal. Hence, we reject the contentions urged by the appellant-insurer and dismiss the appeal as being devoid of merits.
Cost made easy.
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