IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE L. NARAYANA SWAMY MFA NO. 2293/2010 (MV)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 28 TH DAY OF JUNE 2012 BEFORE THE HON BLE MR. JUSTICE L. NARAYANA SWAMY BETWEEN MFA NO. 2293/2010 (MV) NATIONAL INSURANCE COMPANY LIMITED DO-3, BANGALORE 04. THROUGH ITS REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, MG ROAD, BANGALORE REPRESENTED BY ITS ADMINISTRATIVE OFFICER, MR KHAJA PASHA.... APPELLANT (BY SRI: B.C. SHEETHARAM RAO, ADVOCATE) AND SMT PACHSAMMA D/O SEENAPPA, AGED ABOUT 35 YEARS, RESIDENT OF SANTHE MAIDANA, MULBAGAL TOWN, KOLAR DISTRICT.... RESPONDENT (BY SMT: SUGUNA R REDDY, ADVOCATE) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: PASSED IN MVC NO.11/2000 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT I, KOLAR, AWARDING A

2 2 COMPENSATION OF RS.2,20,400/- WITH INTEREST AT 6% P.A FROM THE DATE OF PETITION TILL REALISATION. THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T The appeal is field by the insurance company challenging the order passed by the Presiding Officer, Fast Track I, Kolar, in MVC NO.11/2000 dated The issue involved in this appeal is whether the claimant No.1 before the tribunal is entitled to compensation under the head Loss of Dependency. Further, whether married sisters of the deceased could be considered as dependents of deceased brother. 3. The claimants were sisters and brother of the deceased who died in a road traffic accident occurred on while travelling in a Tempo. It is the case that the deceased having one sister and she was married having four children and she had no right to claim compensation under the head Loss of dependency on account of death of her

3 3 younger brother. The relationship between the deceased and the claimant has not been disputed. The only question arises is Whether she is entitled for compensation under the head Loss of Dependency she being a married sister? 4. The learned counsel appearing for the insurance company submitted that, on the evidence of PW1 she is married and having four children. That itself is sufficient to prove that she is not a dependent of her deceased younger brother. Merely stating that her marriage is dissolved, she is staying along with children s and they are fully depending upon the deceased brother is not sufficient. The said contention is tried to be substantiated by referring the judgement Smt. Manjuri Bera vs. Oriental Insurance Company Limited, reported in AIR 2007 SCW The learned counsel appearing for the respondent on the other hand contended that the Tribunal has rightly rejected the contention of the appellant. The case of the respondents that, she is a dependent on her younger brother has been rightly accepted. To substantiate the said claim, the

4 4 learned counsel has relied upon the evidence of PW2 that after dissolution of her marriage, she was living with the deceased brother along with her children. Further, the said evidence has been rightly considered by the Tribunal. The learned counsel referred the judgement of this court reported in ILR 2002 KAR 887 in case of Managing Director KSRTC vs. Venkataramappa K.S. and another judgement reported in ILR 2011 KAR 5484 in the case of The New India Assurance Company Limited vs. Mini Bandtol Dias and others and other judgement in Smt. Manjuri Bera vs. Oriental Insurance Company limited reported in 2007 ARI SCW I have heard learned counsel appearing for both the parties and perused the records. 7. Earlier, the Tribunal had rejected the claim petition. The same was challenged before this Court in MFA No.8311/2003. The Division Bench, allowed the appeal on and order of the tribunal was set aside and remanded for fresh disposal.

5 5 8. The case of the claimants in earlier appeal was that the tribunal has not considered the claimants as dependents. After, appeal being remanded the respondents were examined in chief and cross-examined. The relationship between the respondent and the deceased was not in dispute. Under this circumstance, the question would arise that whether the married sister could be considered as dependent for the purpose of awarding compensation under the head Loss of dependency"? 9. The person who makes the claim before the Tribunal on the ground of dependent has to establish the fact that they are fully depending upon the deceased and her dependent being virtually deprived by accidental death. Normally, the minor children, wife, and parents of the deceased are considered as dependents of the deceased. In some circumstances, major sons and married sisters are also considered as dependents of the deceased depending upon the facts situation. Here it is the case where the respondent who claimed that she was fully depending upon the deceased younger brother. She has specifically deposed that she was

6 6 dependent on her deceased brother along with her children. In similar circumstance, this Court in ILR 2011 KAR 5484 (Dharwad Circuit Bench) has held that the compensation cannot be denied to the members of the family if he is a bread-winner killed in the accident. Further, that legal representative is one who suffers on account of death of person due to motor accident and need not necessarily being wife husband and children, the judgements referred are: (i) In the case of A. Manavalagan vs. A Krishnamurhty and others reported in ILR 2004 KAR 3268: where it was held that the appellant were entitled to be awarded no amount towards Loss of Dependency and in any case, their entitlement could be only towards the Loss of estate. (ii) In the case of Gajanand and others vs. Virendra Singh and others reported in 2010 ACJ 145 where it has been held that he was entitled to compensation towards the Loss of Dependency

7 7 even in the absence of proof of actual dependentcy And (iii) In the case of Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and another reported in 1987 ACJ 561 it is held that compensation cannot be denied to the members of the family, if he is brad-winner killed in the accident referring at paragraph 12, which reads thus: We should remember that in an Indian family brothers, sisters, brothers children and sometime foster children to live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act In the case of Managing Director, KSRTC vs. Venkataramappa K.S. and others, reported in ILR 2002 KAR 887 it is held that, Whether brother and sisters of the deceased can maintain claim petition, even though they were

8 8 not dependents on the income of the deceased, it is held at Paragraph Nos. 7,8,9 as follows: 7) When we look into Section 8 of the Hindu Succession Act, when a mala Hindu died intestate, his property has to be devloved according to the provision of Section 8. (a) Firstly, upon the heirs, being the relatives specified in Class 1 of the Schedule. (b) Secondly, if there is no heir of Class I then upon the heirs, being the relatives specified in Class II of the Schedule. 8) In the instant case, there are no Class I legal heirs to the deceased Shivanna. The claimants are the brothers and sisters who will come as Class II legal heirs under the Hindu Succession Act. Therefore, the petition filed by the claimants was maintained before the Tribunal. 9) In the circumstances, we are not in a position to accept the arguments advanced by he learned counsel for the KSRTC. Accordingly, we hold that the petition filed by

9 9 the claimants was maintainable before the tribunal and that they are entitled for compensation. 11. In the case of Smt. Manjuri Bera vs. Oriental Insurance Company Limited report in 2007 AIR SCW 1962, the deceased married daughter though not dependent on the deceased has been treated to qualify to become the dependent of the deceased and it is held that she is a legal representative under Section 166 of MV Act. 12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino vs. Nalini Bai Naique (AIR 1989 SC 1589) where it has been held that a person who may or may not be legal heirs competent to inhert the property of the deceased can represent the estate of 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 of legal representative. In view of the judgement referred Supra the issue raised in this appeal is

10 10 invariably to be answered in favour of the claimants. Hence, it is answered accordingly. 13. The other question arises is whether the person themselves to prove their dependency or their entitlement to treat them as dependents has been examined in the judgement of the Hon ble Supreme Court in the case of Smt. Manjuri Bera vs. Oriental Insurance Company Limited reported in 2007 ARI SCW 1962 referred at paragraph No.20 20) In the impugned judgement of High Court has correctly drawn a distinction between right to apply for compensation and entitlement to compensation. The High Court has rightly held that even a married daughter is a legal representative and she is certainly entitled to claim compensation. It was further held, on the facts of the present case, that he married daughter was not dependent on her father. She was living with her husband in her husband s house. Therefor, she was not entitled to claim statutory compensation. According to the High Court, the claimant was not dependent on her

11 11 father s income. Hence, she was not entitled to claim compensation based on No Fault Liability. 14. Therefore, it is not automatic to claim married daughter and married children of the deceased. By placing reliable evidence and materials they have to establish to the satisfaction of the Court. In the instant case, the evidence of the claimant is suffice to the effect, that she is depending on the deceased brother which is also not seriously objected before the Tribunal by summoning the documents or evidence disputing fact that she is not depending upon the deceased and residing with him. 15. Under this circumstance, the order of the Tribunal is to be confirmed by holding that the claimant is successful in proving her dependency on the deceased brother. In the case of this nature, the Tribunal has take care where the dependents are married daughter, sisters, brother, then they have to prove by adducing the oral and documentary evidence to the satisfaction of the Court, then only the case has to accepted for the purpose of awarding compensation under the

12 12 head Loss of dependency. Accordingly, I pass the following order: ORDER (i) The appeal filed by the insurance company is dismissed. (ii) Amount in deposit to be transferred to M.A.C.T DP* Sd/- JUDGE