S. Manikumar, J.
1. The first appellant claimed herself to be the adopted minor child of the deceased. Appellants 2 and 3 are the parents of the deceased. Aggrieved by the judgment and decree dated 5-2-2001 made in M.C.O.P. No. 782 of 1997 on the file of the Motor Accident Claims Tribunal (Principal District Court), Erode, dismissing their claim petition, the present appeal is filed.
2. Brief facts leading to the appeal are as follows:
(i) On 16-8-1996, when the deceased-Banumathy was alighting the bus through the front entrance, the driver of the bus owned by the first respondent herein, started the bus without noticing the passenger, due to which, the said Banumathy fell down and succumbed to injuries.
(ii) It is the case of the appellants-claimants that the deceased married one Gurusubramaniam of Manakkuppam near Tirukoilur on 26-10-1993. At the time of marriage, she was aged 18 years. Husband of the deceased had illegal intimacy with one Prema of the same village, which fact was not known to the parents of the deceased. The marriage was irretrievably broken and all efforts for an amicable settlement for union failed. The husband of the deceased married the said lady, Prema. The deceased had no issue at that time, on 13-10-1994, she adopted the first appellant-first claimant, daughter of her brother Thiyagarajan, as her daughter as per Hindu custom. According to the appellants-claimants, the deceased was self-employed as a Tailor, earning Rs. 3,000/- per month. The adopted daughter and parents of the deceased were dependant on the income of the deceased, at the time of accident. They claimed compensation of Rs. 4,00,000/-.
3. The third respondent-Insurance Company denied the plea of adoption made by the appellants-claimants. They also submitted that the appellants-claimants are not entitled to any compensation.
4. Mother and brother of the deceased were examined as P.W. 1 and P.W. 2 respectively. Exs. A1 to A7 were marked on the side of the appellants-claimants. On behalf of respondents, no oral and documentary evidence was let in. The Tribunal, on evaluation of pleadings and evidence, dismissed the claim petition on the ground that there was no proof of adoption and that the parents of the deceased were not dependent on her. The Tribunal further observed that the husband of the deceased Class I heir was alive on the date of accident and he was also depending on the income of the deceased. As regards negligence, the Tribunal found that the driver of the bus was negligent in causing the accident.
5. Learned Counsel for the appellants/claimants submitted that the Tribunal has failed to consider that the first appellant, was an adopted daughter of the deceased and that taking into consideration, the custom prevalent in the appellants' community and in the absence of any rebuttal evidence, the Tribunal ought to have accepted the plea of adoption and awarded adequate compensation to the first appellant. He submitted that in the case of adoption, the law which is applicable is, custom should prevail over statute and strict proof of evidence is not required to prove adoption. In this context, he relied on the decision reported in L. Debi Prasad (dead) represented by Legal Representatives v. Smt. Tribeni Devi , where, the Supreme
Court at paragraph 10, held as follows:
In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind that lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence, if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that is a valid adoption as well.
6. Learned Counsel for the appellants/claimants further submitted that the Tribunal solely relied on the deposition of P.W. 1, during cross-examination and erroneously found that the appellants are not dependents of the deceased. The relevant portion is extracted hereunder:
(Vernacular matter omitted....Ed.)
7. Learned Counsel for the appellants/claimants, placing reliance on the following decisions submitted that the parents of the deceased are the legal representatives and, therefore, they are entitled to compensation.
ii. Anandavally Amma v. Kerala State Road Transport Corporation .
iii. Vidya Dhar Dubey v. U.P. State Road Transport Corporation .
iv. Oriental Insurance Co. Ltd. v. Naresh Chandra Agarwal .
v. Govindasamy v. Ravi .
vi. Ramsingh v. Shivaji Rao .
8. He further submitted that the deceased was a tailor at the time of death and was earning Rs. 3,000/- per month. In the absence of any rebuttal evidence, the Tribunal ought to have accepted the case of the aged parents and awarded a just and equitable compensation.
9. Per contra, learned Counsel for the respondents contended that the Tribunal has assessed the evidence properly and found that the appellants are not entitled to receive any compensation. He further submitted that the brother of the deceased, who was examined as P.W. 2 also did not state that the first appellant/claimant is not his daughter, and therefore, she is not entitled to compensation. Placing reliance on the decision in Ramsingh v. Shivaji Rao , learned Counsel for the respondents submitted that the appellants are not entitled to claim compensation, when the husband of the deceased is alive.
10. The basis for the Tribunal to reject the claim of the appellants is the statements of P.Ws. 1 and 2. The relevant portion of the evidence of P.W. 1, mother of the deceased is extracted hereunder:
(Vernacular matter omitted....Ed.)
Heard Mr. Anandamoorthi for Mr. N. Manoharan, learned Counsel for the appellants and Mr. H. Mohammed Ismail for Mr. N. Vijayaraghavan, learned Counsel for the respondents.
11. According to the claimants husband of the deceased due to his illegal intimacy with another woman, Prema, had deserted the deceased, married the said Prema and living separately. Though the claimants have not impleaded him as party respondent in the claim petition, whether that by itself would disentitle the parents of the deceased to claim compensation, is the question for consideration. Section 166(1) of the Act is extracted hereunder:
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 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, or for the benefit of all the legal representative who have not so joined shall be impleaded as respondents to the application.
12. Before dealing with the case laws on the subject, let us first perceive the leading case on the subject relating to the claim made by the legal representatives and decided by the Supreme Court in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai , the Gujarat High Court held that all the
legal heirs and the legal representatives of the deceased would maintain a claim petition under Section 110-A (now under Section 166(1)) and awarded compensation to the nephews of the deceased. Considering the divergence of opinion expressed by the various High Courts as regards the maintainabilty of the claim under Section 110-A (now under Section 166(1)), by persons other than wife, husband, parents and child of a person, who dies on account of the motor vehicles accident, the Supreme Court in paragraph 10, held as follows:
On the occurrence of any motor vehicle accident, an application for compensation arising out of it can be made before the Claims Tribunal. Section 110-A of the Act which is material for the purpose of this case reads thus:
110-A. Application for compensation.--(1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made-
(a) by the person who has sustained the injury; or
(aa) by the owner of the property; or
(b) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(c) 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 were not so joined, shall be impleaded as respondents to the application.
(2) Every application under Sub-section (1) shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed:
Provided that where any claim for compensation under Section 92-A is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident:
Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.
10. Clauses (b) and (c) of Sub-section (1) of Section 110-A of the Act provide that an application for compensation arising out of an accident may be made where death has resulted from the accident by all or any of the legal representatives of the deceased or by any agent duly authorised by all or any of the legal representatives of the deceased. The proviso to Sub-section (1) of Section 110-A provides 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. The expression "legal representative" has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 defines "legal representative" as 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. The above definition, no doubt, in terms does not apply to a case before the Claims Tribunal but it has to be stated that even in ordinary parlance the said expression is understood almost in the same way in which it is defined in the Code of Civil Procedure. A legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. Clause (b) of Sub-section (1) of Section 110-A of the Act authorises all or any of the legal representatives of the deceased to make an application for compensation before the Claims Tribunal for the death of the deceased on account of a motor vehicle accident and Clause (c) of that Sub-section authorises any agent duly authorised by all or any of the legal representatives of the deceased to make it. The proviso to Sub-section (1) of Section 110-A of the Act appears to be of some significance. It provides that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased. Section 110-A(1) of the Act thus expressly states that (i) an application for compensation may be made by the legal representatives of the deceased or their agent, and (ii) that such application shall be made on behalf of or for the benefit of all the legal representatives. Both the person or persons who can make an application for compensation and the persons for whose benefit such application can be made are thus indicated in Section 110-A of the Act.
13. Interpreting Section 110-A (now amended as Section 166(1), vis-a-vis, a corresponding provision in the Fatal Accidents Act, 1855, the Apex Court further held that,
These provisions are not merely procedural provisions. They substantively affect the rights of the parties. As the right of action created by the Fatal Accidents Act, 1855 was "new in its species, new in its quality, new in its principles, in every way new" the right given to the legal representatives under the Act to file an application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitations of an action under the Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
14. While confirming the decision of Gujarat High Court in Magjibhai Khimji's case, the Supreme Court at paragraph 12, held that,
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.
15. In C. Vijaya Lakshmi v. N. Siva Bagiyam , the deceased was a Doctor, aged 27 years. The claimants were her parents, having no son and the deceased was elder of two daughters. Following the decision of the Supreme Court in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbai this Court held that the parents of the deceased are entitled to claim compensation for the death of their daughter. In the above referred judgment, the parents were the only claimants and that the deceased was a spinster.
16. In Anandavally Amma v. Kerala State Road Transport Corporation , the deceased was a newly married girl
with no intention of going for any employment. The claimants are father, mother and brother, filed a claim petition and the husband of the deceased, who got re-married was deleted from array of parties. Taking into consideration of the custom prevalent in the Hindu community, the Tsompensation was allowed to mother alone.
17. In Vidya Dhar Dubey v. U.P. State Rdad Transport Corporation , the Allahabad High Court considered a
case as to whether the claim for compensation for death in motor accidents filed by the claimants, who are dependants, but they are not the legal heirs of the deceased, such as parents, wife and son could be entertained. Following the decision reported in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai , the Allahabad High Court held that the emphasis under the Motor Vehicles Act is dependency and that the near and dear including the brother's children can be dependants.
18. In Oriental Insurance Co. Ltd. v. Naresh Chandra Agarwal the parents of the deceased were not alive and therefore, the brother of the deceased in the capacity of legal representative, preferred a claim. The award passed by the Tribunal, following the Gujarat State Road Transport Corporation's case AIR 1987 SC 1690 was confirmed by the Allahabad High Court, holding that the Legal Representative including the brother of the deceased is entitled to get compensation.
19. In Govindasamy v. Ravi a Division
Bench of this Court held that, the deceased father's younger brother is entitled to compensation, as he was also a legal representative as per the Hindu Succession Act.
20. In Pappu v. A. Thirunavukkarasu reported in (2000) ACC 375 this Court considered a case where the challenge in the appeal was whether husband of the deceased, who is a Class I heir, driven the deceased out of his house and remarried another lady, can be said to be a Legal Representative of the deceased. In the reported case, the claimants were mother, two minor sons and brother of the deceased. Husband of the deceased made a separate claim. After considering the decisions of various Courts and following the decision of the Supreme Court in Gujarat State Road Transport Corporation's case: this Court held that both the parties are Legal Representatives of the deceased and entitled to compensation. Explaining the difference between the term 'Legal Representatives' and the term 'Legal Heir', in paragraphs 37 and 38 of the judgment, this Court held that the term "Legal Heir" is not used in Section 166 of the Motor Vehicles Act and the said Section merely provides that an application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased.
21. At paragraphs 41, 42, 44 and 45 of th abovesaid judgment, this Court held as follows:
41. As a matter of fact. Section 168 of the Act provides that Tribunal is authorised. to make an award determining the amount of compensation which appears to it to be just and specifying the person or persons who whom the compensation shall be paid. Therefore, the Tribunal is not invariably called upon to decide who is the legal heir.
42. But, in the facts and circumstances of the case, it has to be decided whether the claimant would be the legal representative of the deceased. Every legal representative who suffers on account of death of a person due to motor vehicle accident should have remedy for realisation of compensation and that is provided in Section 166. It is true that the Act does not specify as to who is to be treated as legal representative for the purpose of Section 166 of the Act.
44. The Supreme Court has also added that the expression "Legal representative" contained in Section 166 of the Act should be given a wider meaning and should not be confined to the spouse, parent and children of the case.
45. Applying the above principles in the present case, the mother of the deceased cannot be denied of her right of claiming compensation merely because she is Class III heir, in these accident claim cases, the Tribunal cannot reject the claim petition as the Class I heir is available.
22. In Ramsingh v. Shivaji Rao , the Court
The appellants are not the legal representatives, in view of the fact that the husband of the deceased is alive. In such circumstances, the question of enhancement of compensation in the present case does not arise.
23. In the case on hand, it is the evidence of the bereaved parents that they used to stay with their son and daughter, which only prove that they are not independent. The mother was aged 66 years and father was aged 74 years at the time of filing the claim petition. Dependency is an important factor for claiming compensation. When the rights of all the Legal Representatives are recognised by the Motor Vehicles Act and if they are entitled to maintain a claim under the Act, rejection of the petition made by the parents on the ground that Class-I heir is alive, is not just and equitable. Motor Vehicles Act, does not contemplate elimination of any one of the Legal Representative from making a claim. If the Class-I heir, viz. husband of the deceased, has not made any efforts either to implead himself in the petition filed by the other legal representatives or made any separate claim petition, it is not a cause to defeat the claim of the parents.
24. The other reason for rejecting the claim petition of the parents was lack of evidence to prove that they were solely dependant on the income of the deceased. The requirement under the Motor Vehicles Act is that all the Legal Representatives or any one of the Legal Representative or the agents authorised by them, can make an application for compensation arising out of an Motor Vehicle accident and it is suffice, if the claimants prove that they are dependants on the income of the deceased. Motor Vehicles Act being a beneficial legislation, does not contemplate any stringent condition that the claimants should be "solely dependant" on the income of the deceased. Therefore, the contention of the learned Counsel for the Insurance Company, made on the basis of the judgment of the Madhya Pradesh High Court that the parents cannot maintain a claim petition as long as the husband is alive, is untenable and against the Principles of the Equity and good conscience.
25. It is evidence of the parents that after coming out of the matrimonial home, the deceased was living separately, without burdening her brother. Taking into consideration the customs and tradition of Indian Society, and particularly the plight of a deserted woman, who needs love and affection of her parents, kith and kin, the deceased would have certainly leaned forward to her parents for solace and also helped them with her income. One could reasonably expect that her parents, the appellants herein, would have extended their moral, ethical and social support to the deserted woman.
26. As the Motor Vehicles Act enables all the Legal Representatives to claim compensation, the question to be decided by the Tribunal is, as to whether the Legal Representatives are dependants on the income of the deceased and if so to what extent. Since there is no specific exclusion of the parents in the Act to claim compensation, when the husband is alive, the Tribunal ought to have determined the compensation payable to the Legal representatives and decide the apportionment, considering the extent of dependency and while doing so, the Courts/Tribunals should decide the issues in consonance with the Principle of Natural Justice, Equity and good conscience and should have regard to the Customs and tradition of the Indian Society.
27. It is settled law that adoption has to be proved by authentic evidence. As the claimants have not let in any supporting legal evidence to prove that the deceased adopted the first appellant herein and considering the fact that the entries in School records, Ration Card and other records, are in the name of the father of the first appellant, I am afraid that she could not be treated as adopted daughter of the deceased. Therefore, the first appellant-minor, cannot be termed as legal representative of the deceased to make a claim under Section 166 of the Motor Vehicles Act.
28. While deciding the dependency, the factor to be proved by the beneficiaries is that by the death of a person on account of the accident, they have lost a reasonable probability of pecuniary advantage and it is for the Court to evaluate the pecuniary loss on the basis of evidence tendered by them. In this context, it would be useful to extract the judgment of the Division Bench of the Kerala High Court in New India Assurance Co. Ltd. v. Kayicha Umma reported in ILR 1987 (1) Ker 388.
The beneficiaries have to prove that by the death of a person they lost a reasonable probability of pecuniary advantage. What is reasonable is a question of fact which varies from case to case and has to be determined with reference to the evidence on record. In the absence of statutory guidelines, the Court has to make an estimate of the pecuniary loss suffered by the members of the family of the deceased. The Court has to evaluate the pecuniary loss resulting from death on the basis of a proper appreciation of the relevant circumstances and hard realities.
29. In M.P. State Road Transport Corporation v. Sudhakar , the Supreme Court considered a case relating to an enhancement of compensation awarded to the husband of the deceased, who got remarried within 11 months from the date of death of his wife. In that case, the Tribunal, taking note of the re-marriage, awarded compensation of Rs. 15,000/-. The said amount was enhanced to Rs. 50,000/- by the High Court. On appeal, the Supreme not satisfied with the enhancement made by the High Court, confirmed the award passed by the Tribunal. In the instant case, the husband of the deceased married another lady and there is no evidence to show that after the death of the deceased, he has shown any interest in impleading himself in the proceedings filed by the appellants or made any separate claim. Learned Counsel appearing for the Insurance Company is also not in a position to furnish any materials, though the litigation is pending for nearly 10 years. Therefore, considering the plight of the aged parents and in the absence of any other legal representative, I propose to award compensation to the appellants, as per Section 168 of the Motor Vehicles Act. 1988.
30. The last point to be considered is what is the quantum of compensation to be4 awarded to the appellants 2 and 3, P.W. 1. Mother of the deceased, has deposed that at the time of accident, the deceased was aged about 21 years. She has filed Ex. A7-Post Mortem report to prove the age. According to the claimants, the deceased was a Tailore, earning Rs. 3,000/- at the time of her death. The fact that she was living alone is amply proved by the evidence tendered by the claimants and that her name did not find place in the ration card maintained by her brother. Then it could be reasonably presumed that she must have engaged herself in some avocation to maintain herself. In the absence of any rebuttal evidence, I see no reason to reject the evidence of the claimants regarding the avocation of the deceased.
wherein, a Tailor sustained compound fracture in his right leg (tibia) and suffered disability at 45%. The Division Bench of this Court, considering the evidence of the claimant, fixed the income of the deceased at Rs. 2,000/-. Applying the principle laid down in the above said judgment, I deem it appropriate to fix the income of the deceased at Rs. 2,000/-.
32. As per the Second Schedule to 163-A of the Motor Vehicles Act, 1988 and considering the age of the mother, the multiplier applicable to this case is "5" for ascertaining the dependency compensation. Applying the said multiplier to the income of the deceased and after deducting 1/3rd towards her personal expenses, dependency compensation works out to Rs. 80,000/-. Rs. 5,000/- and Rs. 3,000/- are awarded for Funeral and Transportation expenses respectively.
33. In the result, the appellants 2 and 3 are entitled to the compensation of Rs. 88,000/- with interest at the rate of 7.5% per annum from the date of claim till the date of realisation. The Civil Miscellaneous Appeal is allowed to the limited extent that only the parents of the deceased are entitled to claim compensation and the first appellant, minor, is not entitled to any compensation. No costs.