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The Code Of Civil Procedure (Amendment) Act, 1956
The Motor Vehicles Act, 1988
The Railways Act, 1989
THE ARBITRATION AND CONCILIATION ACT, 1996
The Land Acquisition Act, 1894

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Gujarat High Court
Niharikaben vs Union on 11 April, 2012
Author: H.K.Rathod,
  
 Gujarat High Court Case Information System 
    
  
    

 
 
    	      
         
	    
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FA/145120/2009	 9/ 10	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

FIRST
APPEAL No. 1451 of 2009
 

 
=========================================================

 

NIHARIKABEN
MITESHBHAI MEHTA D/O BALCHANDRABHAI NARBHERAM - Appellant(s)
 

Versus
 

UNION
OF INDIA THROUGH GENERAL MANAGER - Defendant(s)
 

=========================================================
 
Appearance
: 
MR
PJ MEHTA for
Appellant(s) : 1, 
RULE SERVED BY DS for Defendant(s) :
1, 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE H.K.RATHOD
		
	

 

 
 


 

Date
: 26/08/2009 

 

ORAL
ORDER

Heard learned advocate Mr. P.J. Mehta appearing on behalf of appellant.

This Court has admitted appeal on 18th April 2009 and notified for final hearing on 2nd May 2009. Thereafter, it has been adjourned to 8th May 2009, 26th June 2009 and lastly on today i.e. 26th August 2009.

Notice of admission and rule for final disposal has been served to respondent, but, no appearance is filed by respondent and no advocate is engaged by respondent till date. Therefore, in absence of respondent, matter is taken up for hearing and final disposal today.

The claim petition is filed by claimants being O.A. No.0100101 before Railway Claims Tribunal, Ahmedabad Bench by Bhalchandra Narbheram Tapodhan aged about 65 years being a father of deceased Chirag Bhalchandra Tapodhan and Manjulaben Bhalchandra Tapodhan mother of deceased Chirag, aged about 54 years and wife of Bhalchandra. The claim application is filed by parents of deceased for compensation on account of death of their son in an untoward incident as contemplated by Section 124A of Railways Act interalia contending there in that on 17th August 2000, deceased Chirag Bhalchandra Tapodhan purchased IInd Class ticket from Billimora Station for coming to Navsari. He boarded train No.751 Dn. Valsad-Surat Memu train at about 16.15 hrs. There was heavy rush in the train. He was standing near the door. Due to sudden application of brake and heavy jerk of train, deceased fell down from train near Vedachha Railway Station. On account of this incident, deceased got severe injuries on head and other parts of body and died. Therefore, claim petition is filed claiming Rs.4 lakhs by claimants.

The railway claims tribunal has come to conclusion that claimants are entitled compensation Rs.4 lakhs with running interest at the rate of 6% per annum from date of petition till realisation of awarded amount by claimants. The petitioners are entitled for compensation in equal proportion. Since petitioners have expired pending claim petition, amount of compensation payable to petitioners be paid to heirs of deceased petition on production of succession certificate. This order has been passed on 30th January 2009.

Learned advocate Mr. Mehta submitted that Niharikaben is a daughter of Bhalchandra Tapodhan, sister of deceased Chirag and wife of Mitesh Mehta, who is aged about 33 years residing at Brahman Falia, Ashwanikumar Road, Fulpada. The father and mother of Niharikaben filed claim petition, but, both died during process of claim application on 6th June 2008, father of deceased Bhalchandra claimant died and mother also died on 10th June 2008. Therefore, under Rule 26 of Railway Claims Tribunal Procedure Rules, 1989, it is necessary to bring on record heirs and legal representative of deceased. Accordingly, Niharikhaben being a daughter of deceased claimants who died during pendency of proceedings, application was preferred before railway claims tribunal to join as heir and legal representative of deceased claimants on 4th September, 2009 and railway claims tribunal has allowed said application and Niharikaben is considered to be heir and legal representative of claimants who died during pendency of claim petition. The death certificates of Bhalchandra and Manjulaben are also produced on record. Rationing Card is also produced on record. In family members, name of Niharikaben is also mentioned and name of Chirag is also mentioned who died in accident. At that time, Niharikaben was unmarried and aged about 18 years.

Therefore, learned advocate Mr. Mehta submitted that succession certificate is not necessary for claiming compensation and for receiving compensation being a sole heir and legal representative of claimants. He also submitted that except Niharikaben present appellant, no other legal heir and representative is available of claimants who died during pendency of claim petition. Therefore, Niharikaben is entitled as a heir and legal representative of claimants for compensation though she is married daughter, without suppling or obtaining succession certificate.

Learned advocate Mr. Mehta relied upon one decision of Apex Court in case of Manjuri Bera (Smt) v. Oriental Insurance Company Ltd. and Another reported in (2007) 10 SCC 643 = 2007 AIR SCW 1962, where, Apex Court has examined term legal representative occurring in Sec.166 of the Act is to be construed in terms of its definition given under Sec.2(11) of CPC and under Sec.2(1)(g) of the Arbitration and Conciliation Act, 1996. Apex Court has considered that legal representative though not dependent is entitled to compensation under provisions of M.V. Act. Right to apply for Compensation distinguished form entitlement to compensation . The nature of proceedings under Section 166 being in the nature of recovery proceedings.

In present case, married daughter of claimants filed claim petition under Section 140(2) praying for substitute compensation on account of death of her parents, Apex court has considered it and held that even a marriaed daughter, is a legal representative and she is certainly entitled to claim compensation. The relevant discussions are made in case of Manjuri Bera (smt) (supra) in Para 15, 18 to 20, which are quoted as under :

15. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned Amicus Curiae.

18. In the present case, as stated above, the victim's married daughter has made her claim under Section 140 of the said Act saying that she has five children; that they are minors; that she was brought up by her uncle; that after her mother's death the deceased lived in the same house in which the claimant was living with her uncle before her marriage; that the deceased was a mason that after her marriage she lived with her husband and, therefore, she was entitled to get statutory compensation under Section 140 of the said Act.

19. In the impugned judgment the 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 the married daughter was not dependent on her father. She was living with her husband in her husband's house. Therefore, she was not entitled to claim statutory compensation. According to the High Court, the claimant was not dependent on her father's income. Hence, she was not entitled to claim compensation based on "No Fault Liability".

20. In my opinion, "No Fault Liability", envisaged in Section 140 of the said Act, is distinguishable from the rule of "Strict Liability". In the former, the compensation amount is fixed. It is Rs. 50,000/- in cases of death [Section 140(2)]. It is a statutory liability. It is an amount which can be deducted from the final amount awarded by the Tribunal. Since, the amount is a fixed amount/crystallized amount, the same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited his estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive compensation under "No Fault Liability" in terms of Section 140 of the said Act. My opinion is confined only to the "No Fault Liability" under Section 140 of the said Act. That section is a Code by itself within the Motor Vehicles Act, 1988.

Considering aforesaid decision of Apex Court as relied upon by learned advocate Mr. Mehta and considering decision of this Court in case of Aktarbibi Abdul Rehman Gulam Rasul and others v. Union of India reported in AIR 2008 Gujarat 146, when award is passed by Tribunal for receiving compensation by legal heirs and representative of claimants, succession certificate is not necessary. The relevant Para 3, 6 to 8 are quoted as under :

3. It is the say of the petitioner that the learned Tribunal has erroneously directed the heirs of the deceased to produce succession certificate to get amount disbursed in their favour as the original claimant has died natural death.

6. Clear answer available is erroneous insistence of the Tribunal. For example, if the Insurance Company would not have deposited the entire sum along with interest with the Tribunal or some less amount would have been deposited, whether, within 90 days, heirs of the deceased could have filed any execution petition for recovery of the remaining amount or entire sum. The answer would obviously be in affirmative. In such situation, the persons who are otherwise entitled to get order executed, if approach the Court for disbursement of the amount and when there is no resistance from the Insurance Company, which can be said to be formal resistance sustainable in the eye of law, the Tribunal should take liberal view in the matter, especially when one decision of this Court is available for consideration and as guiding factor.

7. The observations made by the Apex Court in the case of Smt. Rukhsana [Smt] and others, v. Nazrunnisa [Smt] and another, reported in 2000 AIR SCW 4941, would help the petitioner. Of course, the facts of the decision were materially different. In the said case, the Supreme Court has held that the succession certificate as envisaged under the Indian Succession Act was only granted in respect of debts or securities to which the deceased was entitled and the compensation awarded under the Motor Vehicles Act was not a debt nor a succession. Therefore, certificate was required to be obtained in order to claim the compensation awarded under the Motor Vehicles Act. Similar view has been taken in case of Resilikutty Chalo v. State of Kerala, reported in AIR 1999 Ker 56. Kerala High Court was dealing with the amount of compensation deposited under the Land Acquisition Act.

8. In view of the above, the petition requires to be and is hereby allowed. It is hereby ordered that M.A.C.Tribunal, Sabarkantha at Himmatnagar, now shall disburse the amount of compensation deposited by the respondent Insurance Company on 19.9.2001. However, it is clarified that it would be open for the Tribunal to make appropriate disbursement if there are any disputes amongst the heirs qua quantum of compensation payable to each of the heirs. I have also considered that till date, no third party has raised any claim to the amount deposited by the Insurance Company with the Tribunal. Rule is made absolute with no order as to costs. Copy of the writ of this order be sent to the lower court forthwith. Direct service permitted.

Therefore, considering aforesaid decision of this Court as referred above, it is directed to respondent to pay amount of Rs.4 lakhs with running interest @ 6% per annum from date of petition till realisation of awarded amount to present appellant Niharikaben Miteshbhai Mehta by account payee cheque after proper verification.

It is made clear that respondent Union of India now not to ask for succession certificate from present appellant Niharikaben Miteshbhai Mehta and direction issued by Railway Claims Tribunal by order dated 30th January 2009 is hereby modified to the extent that appellant being a legal heir and representative of claimants is not required to produce succession certificate for receiving amount of compensation as ordered by railway claims tribunal.

Accordingly, respondent is directed to pay amount of compensation as ordered by railway claims tribunal in claim application No.OA 0100101 dated 30th January 2009 within a period of two months from the date of receiving copy of the said order, without fail.

Accordingly, present first appeal is allowed with no order as to costs.

[H.K.

RATHOD, J.] #Dave     Top