# Divisional Manager, The Oriental Insurance Co. Ltd. Gorakhpur v. Ramnaresh Chauhan & Ors

- **Citation:** (2016) 3 ILRA 355
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-11
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/divisional-manager-the-oriental-insurance-co-ltd-gorakhpur-v-ramnaresh-chauhan-43535
- **Pages:** 7

## Headnote

Sudhanshu Behari Lal Gour

Facts
Appeal filed by the insurance company challenging the award passed by the motor accident claim
Tribunal to the legal representative of deceased - plea raised by the appellant that claimantrespondent is the husband of deceased and remarried after 8 months __ thus not a dependentcompensation could not be awarded.

Motor Vehicles Act, 1988 - Ss. 165, 166 - Legal representative - Meaning - Wider than
"dependent" - Claim maintainable even if husband remarried - Remarriage does not extinguish
status as legal heir -Legal representative - Definition - Includes anyone representing estate of
deceased - Section 166(1)(c) allows any or all legal representatives of a deceased to file a claim -
Not confined to dependents. (Paras 3-4).

Appeal - Insurer cannot raise new factual plea for first time in appeal - No pleading before Tribunal
- Bar to new grounds-Appellate court cannot entertain a contention unsupported by pleadings or
evidence. (Paras 2-3).

Evidence - Eyewitness testimony relied upon - No contradictions shown - Tribunal's findings on
accident, involvement of vehicle, and cause of death upheld - No perversity (Paras 5-6).

Appeal Dismissed - Claim petition maintainable - Husband continues to be legal representative
despite remarriage - No illegality in award - Appeal dismissed (Para 6).
356 INDIAN LAW REPORTS ALLAHABAD SERIES

List of Cases cited:

Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbha Prabhatbhai and another,
(1987) 3 SCC 234

## Text

3 All. Divisional Manager, The Oriental Insurance Co. Ltd. Gorakhpur Vs Ramnaresh
Chauhan & Ors.
355
 comparison to others, having lesser recovery as this would have the effect of changing
the vary basis of selection under the Rules, the order dated 29.5.2014 which is based on the
same reasoning as disapproved by this Court in the case of Prem Babu Sharma (Supra), in so
far as it relates to petitioners' no. 1 and 2 is not sustainable in the eye of law and is hereby
quashed. Matter is remanded back to the District Magistrate, Mainpuri, respondent no. 3 for
consideration afresh in the light of the judgment rendered by this Court in the case of Prem
Babu Sharma Vs. State of U.P. and others as noted above. Respondent no. 3 shall take
necessary decision, in accordance with law, under 35% quota, preferably within a period of
three months from the date of production of a certified copy of this order before him.

10. This writ petition stands allowed to the extent indicated as above.
----------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2016

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.

First Appeal From Order No. - 461 of 2016

Divisional Manager, The Oriental Insurance Co. Ltd. Gorakhpur ...Appellant
Versus
Ramnaresh Chauhan & Ors ...Respondents

Counsel for the Petitioner:
Sudhanshu Behari Lal Gour

Facts
Appeal filed by the insurance company challenging the award passed by the motor accident claim
Tribunal to the legal representative of deceased - plea raised by the appellant that claimantrespondent is the husband of deceased and remarried after 8 months __ thus not a dependentcompensation could not be awarded.

Motor Vehicles Act, 1988 - Ss. 165, 166 - Legal representative - Meaning - Wider than
"dependent" - Claim maintainable even if husband remarried - Remarriage does not extinguish
status as legal heir -Legal representative - Definition - Includes anyone representing estate of
deceased - Section 166(1)(c) allows any or all legal representatives of a deceased to file a claim -
Not confined to dependents. (Paras 3-4).

Appeal - Insurer cannot raise new factual plea for first time in appeal - No pleading before Tribunal
- Bar to new grounds-Appellate court cannot entertain a contention unsupported by pleadings or
evidence. (Paras 2-3).

Evidence - Eyewitness testimony relied upon - No contradictions shown - Tribunal's findings on
accident, involvement of vehicle, and cause of death upheld - No perversity (Paras 5-6).

Appeal Dismissed - Claim petition maintainable - Husband continues to be legal representative
despite remarriage - No illegality in award - Appeal dismissed (Para 6).
356 INDIAN LAW REPORTS ALLAHABAD SERIES

List of Cases cited:

Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbha Prabhatbhai and another,
(1987) 3 SCC 234

(Delivered by Hon'ble Surya Prakash Kesarwani, J. )

1. Heard Sri S.B.L. Gour, learned counsel for the appellant.

2. This appeal has been filed challenging the award dated 23.11.2015 in M.A.C.
No.128 of 2014 passed by the Motor Accident Claim Tribunal/Additional District Judge,
Court No.4, Kushinagar at Padrauna awarding a sum of Rs.4,18,000 to the legal
representative of the deceased Mala Devi who died in an accident on 13.1.2014 at about
2.30 P.M. near Government Godown village Bhatawalia, District Kushinagar caused by
Mahendra Quanto Jeep bearing registration No.U.P. 57/Q- 9600.

3. Submission of learned counsel for the appellant is that the claimant respondent being
the husband of the deceased Smt. Mala Devi and remarried after 8 months, is not dependent
and, therefore, the compensation could not have been awarded under Section 166 of the
Motor Vehicles Act 1988. He further submits that the evidence of P.W. 2 was not reliable.

4. I have carefully considered the submission of the learned counsel for the appellant.

5. So far as the first submission of learned counsel for the appellant is concerned, I find
that neither any such/objection was raised before the courts below nor it is part of pleadings.
On being asked, the learned counsel for the appellant could not show from the pleadings that
any such objection was raised before the Tribunal. That apart Section 166(1) of the Act
provides as under:

"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, 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."
3 All. Divisional Manager, The Oriental Insurance Co. Ltd. Gorakhpur Vs Ramnaresh
Chauhan & Ors.
357
6. From the bare reading of Clause (C) of sub-Section 1 of Section 166 of the Act, it is
clear that an application for compensation arising out of an accident of the nature specified
in sub-Section (1) of Section 165, may be made by all or any of the legal representatives
of the deceased if death has resulted from the accident. It is settled law that legal
representative ordinarily means a person who in law represents estate of a deceased person
or a person on whom the estate devolves on the death of an individual. Section 166 does not
use the word "dependent" rather it specifically uses the words "legal representatives" who
may file a claim. It is not the case of the appellant that the claimant-respondent is not the
legal representative of the deceased.

7. In the case of Gujarat State Road Transport Corporation, Ahmedabad Vs.
Ramanbha Prabhatbhai and another, (1987) 3 SCC 234 Hon'ble Supreme Court has
interpreted the phrase "legal representative of the deceased" and held as under:

"11. 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
358 INDIAN LAW REPORTS ALLAHABAD SERIES
whose benefit such application can be made are thus indicated in section 110-A of the
Act. This section in a way is a substitute to the extent indicated above for the provisions
of section 1A of the Fatal Accidents Act, 1855 which provides that "every such action
or suit shall be for the benefit of the wife, husband, parent and child, if any, of the
person whose death shall have been so caused, and shall be brought by and in the
name of the executor, administrator or representative of the person deceased." While
the Fatal Accidents Act, 1855 provides that such suit shall be for the benefit of the wife,
husband, parent and child of the deceased, Section 110-A(1) of the Act says that the
application shall be made on behalf of or for the benefit of the legal representatives of
the deceased. A legal representative in a given case need not necessarily be a wife,
husband, parent and child. It is further seen from section 110-B of the Act that the
Claims 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 to
whom compensation shall be paid. This provision takes the place of the third
paragraph of Section 1-A of the Fatal Accidents Act, 1855 which provides that in every
such action, the Court may give such damages as it may think proportioned to the loss
resulting from such death to the parties respectively, for whom and for whose benefit
such action shall be brought. Persons for whose benefit such an application can be
made and the manner in which the compensation awarded may be distributed amongst
the persons for whose benefit the application is made are dealt with by section 110-A
and Section 110-B of the Act and to that extent the provisions of the Act do supersede
the provisions of the Fatal Accidents Act, 1855 in so far as motor vehicles accidents
are concerned. 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.

12. Amongst the High Courts in India there is a cleavage in the opinion as regards
the maintainability of action under section 110-A of the Act by persons other than the
wife, husband, parent and child of the person who dies on account of a motor vehicle
accident. All these cases are considered by the High Court of Gujarat in its decision in
Magjibhai Khiraji Vira and another v. Chaturbhai Taljabhai, AIR 1977 Guj195. The
first set of cases are those which are referred to in paragraph 5 of the above decision
which lay down that every claim application for compensation arising out of a fatal
accident would be governed by the substantive provisions in Sections 1-A and 2 of the
1855 Act and no dependent of the deceased other than the wife, husband, parent or
child would be entitled to commence an action for damages against the tortfeasors.
Amongst these cases are P.B. Kader v. Thatchamma, A.I.R. 1970 Ker 241 and Dewan
Hari Chand v. Municipal Corporation of Delhi, A.I.R. 1973 Del 67. The second group
of cases are those referred to in paragraph 6 of the decision of the Gujarat High Court.
They are Perumal v. G. Ellusamy Reddiar, 1974 ACJ 182 (Mad) and the Vanguard
3 All. Divisional Manager, The Oriental Insurance Co. Ltd. Gorakhpur Vs Ramnaresh
Chauhan & Ors.
359
Insurance Co. Ltd. v. Chellu Hanumantha Rao, 1975 ACJ 344 (AP). These cases lay
down that while the compensation payable under Section 1-A of the Fatal Accidents
Act, 1855 is restricted to the relatives of the deceased named therein the compensation
payable under Section 2 thereof may be awarded in favour of the representatives of the
deceased who are entitled to succeed to the estate of the deceased. The third group of
cases are those referred to in paragraph 7 of the judgment of the Gujarat High Court.
They are Mohammed Habibullah v. K. Seethammal, A.I.R. 1967 Mad. 123, Veena
Kumari Kohli v. Punjab Roadways, 1967 ACJ 297 (P & H) and Smt. Ishwar Devi
Malik v. Union of India, A.I.R. 1969 Del 183 which take the view that a claim for
compensation arising out of the use of a motor vehicle would be exclusively governed
by the provisions of Sections 110 to 110-F of the Act and bears no connection to claims
under the 1855 Act and the Claims Tribunal need not follow the principles laid down
under the latter Act. Having considered all the three sets of decisions referred to above,
Ahmadi, J. who wrote the judgment in Megjibhai Khimji Vira v. Chaturbhai Taljabhai
AIR 1977 Guj195 came to the conclusion that an application made by the nephews of
the deceased who died on account of a motor vehicle accident was clearly maintainable
under section 110-A of the Act.

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 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, (supra)
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.
14. We have carefully gone through the decision of the High Court of
Madhya Pradesh in Budha v. Union of India AIR 1981 MP 151. We feel that the
view taken in that decision is a narrow one and does not give full effect to the
360 INDIAN LAW REPORTS ALLAHABAD SERIES
object with which Sections 110-A and 110-B of the Act were enacted. We
overrule the said decision.

15. Before concluding we may add that although the Act was extensively
modified after the receipt of the report of the Law Commission, Parliament did
not choose to amend section 110-A of the Act by defining the expression 'legal
representatives' in relation to claims under Chapter VIII of the Act as 'the
spouse, parent and children of the deceased' as recommended by the Law
Commission. The Law Commission had observed in its 85th report that it would
be appropriate to assign to the expression 'legal representative' the same
meaning as had been given to the expression 'representative' for the purposes of
the Fatal Accidents Act, 1855 and that would effectively carry out the purpose
of social justice underlying Chapter VIII of the Act, to which the Fatal
Accidents Act, 1855 was the nearest approximation. This recommendation was
made after referring to the divergent views expressed by the various High
Courts on the meaning of the expression 'legal representatives' in section 110-A
of the Act. The fact that Parliament declined to take any action on the
recommendation of the Law Commission of India suggests that Parliament
intended that the expression 'legal representatives' in Section 110-A of the Act
should be given a wider meaning and it should not be confined to the spouse,
parent and children of the deceased."

8. Thus, the first submission of the learned counsel for the appellant deserves to
be rejected.

9. So far as the second submission of learned counsel for the appellant is
concerned, I find that it is wholly undisputed that the accident occurred on 13.1.2014
in which Smt. Mala Devi died. FIR was lodged and post-mortem was conducted on
the body of the deceased. The said accident was caused by the offending vehicle
bearing registration No. U.P. 57/Q 9600. In the impugned award the Tribunal has
considered the evidence of P.W. 2 and recorded a finding of fact that no material
came to light which may indicate the evidence of P.W. 2 to be false. Even learned
counsel for the appellant could not point out any inconsistency or lacuna in the
evidence of P.W. 2 or P.W.1, which may indicate their evidence to be unreliable. No
other point has been argued by learned counsel for the appellant except the point as
aforementioned.

10. Learned counsel for the appellant has also not disputed the quantum of
compensation.

11. In view of the above discussion, I do not find any merit in this appeal.
Consequently, appeal fails and is hereby dismissed.

12. Statutory deposit made before this Court shall be remitted to the tribunal
concerned for adjustment.
3 All. Ashok Kumar Singh Vs Smt. Meera Rathore @ Sitanshu & Ors.
361

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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2015

BEFORE

THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE RAGHVENDRA KUMAR, J.

First Appeal From Order No. - 2795 of 2015

Ashok Kumar Singh ...Appellant
Versus
Smt. Meera Rathore @ Sitanshu & Ors ...Respondents

Counsel for the Appellant:
Ajay Kumar Srivastava

Counsel for Respondents:
Bharat Singh

First appeal from order - Court Fees valuation - suit for declaration that sale deed void/ineffective
- s.7(iv-a) Court Fees Act (U.P. AMDT.) Attracted not art.17(iii) sch.ii - ad valorem fee payable [paras
2-5, 8-10, 17-19].

Court fees - declaratory suit for cancellation/nullity of sale deed securing immovable property - U.P.
Amendment overrides residuary art.17(iii) [paras 11-16]. [paras 8-11]),

S.7(IV-A) specifically governs suits declaring instruments void securing property -- art.17(iii)
residuary only if no other provision--FAFO against order of Civil Judge directing plaintiff to pay ad
valorem court fee u/s 7(iv-a) court fees act (U.P. Amendment) in suit declaring sale deed void

Appeal Dismissed.

List of Cases cited:
1. Smt. Shefali Roy Vs. Hero Jaswant Dass, 1992 AWC 1000 (DB) = AIR 1992 All 254
2. Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, 2010 Law Suit (SC) 104
3. Shailendra Bhardwaj and others Vs. Chandra Pal and another, (2013) 1 Supreme Court Cases 579
4. State of U.P. Vs. Ramkrishan Burman, AIR 1971 SC 87 : (1971) All LJ 1
(Delivered by Hon'ble Raghvendra Kumar, J.)

1. Heard Sri Ram Krishna Kohli holding brief of Sri Ajay Kumar Srivastava for the
appellant and Sri Vikash Rana holding brief of Sri Bharat Singh for Caveator- respondent
no. 7.

2. Under assail in the present First Appeal From Order is the order dated 9.9.2015
passed by Civil Judge (Senior Division), District Budaun in Original Suit No. 240 of 2014