Major, Married & Earning Legal Heirs Of Deceased Can Claim Motor Accident Compensation: J&K&L HC

A bench comprising Justice M.A. Chowdhary of the Srinagar Bench, while relying on National Insurance Company Limited v. Birender & Ors. and Shriram General Insurance Company Limited v. Asha Devi & Ors. thus observed, “…on the subject as to whether only the dependents are entitled or the legal heirs can also claim compensation, it appears that the learned Tribunal, while deciding the case which is the subject matter of these Appeals, has taken an erroneous view while holding that the Claimants-Fehmeeda and Zaffar Ahmad, sister and brother of the deceased respectively, were not entitled to any compensation, being major and employed. Therefore, the Appeals, on this count that the Claimants, irrespective of their age and income or dependents, are entitled to compensation, being legal heirs, deserve to be accepted. In this view of the matter, the Tribunal has committed an error by not granting compensation to two of the claimants, simply for the reason that they are major and have incomes of their own and were not dependent upon the deceased”.

However, on the apportionment of the compensation in the impugned order, the bench further observed, “In normal course, as against the mother of the deceased, who would have been in an advanced age, the wife of the deceased, being of young age, could have been granted a lion’s share in the compensation, however, the Respondent-wife of the deceased had not challenged the award of the Tribunal by which she was granted just 50% of the compensation, leaving the rest of the 50% for the mother and siblings of the deceased. The Tribunal, in the considered opinion of this Court, has, thus, not committed any error while making an order for apportionment of the compensation as 50% to the wife of the deceased and 50% to the mother and siblings of the deceased. The plea of the Appellants, to this extent, is, thus, misconceived and is over-ruled”.

Advocate Mohammad Amin Tibatbakal appeared for the appellants and Advocate Mohammad Assim-ud-Din appeared for the respondents.

In the present matter, two persons from the same family (father and son) died in a road accident. Due to demise of the deceased, a young wife was left behind, who had no child by that time along with the mother and siblings.

The Claim Petition filed by the mother and siblings of the deceased (son), was opposed by the wife of the deceased on the ground that though her husband was the son and brother of the Petitioners respectively, however, they were never dependents upon the deceased because her mother-in-law/ was looked after by her husband (second deceased) and the rest of them were all employed. The Insurance Company also resisted the Claim Petition on the ground that the alleged accident is the outcome of the contributary negligence between the offending vehicle.

The siblings of the deceased were not dependents on the deceased, as they were being looked after by their father, however even the father died in the same accident and for whose death, they had also received the compensation.

The wife of the deceased, who was widowed at a young age had re-married later on, therefore, the same cannot be any impediment to grant just compensation as wife of the deceased. While the appellants argued that wife being an issue-less widow of the deceased-, was entitled to only 1/4th share, instead of half of the share granted to her by the Tribunal.

Therefore, considering the submissions made by the parties, the bench further observed, “…Court cannot be guided by personal law while deciding upon the apportionment of the compensation, which is to be paid taking into consideration the dependency of the claimants, the personal law is not applicable and I respectfully disagree with the view taken by the Gauhati High Court and follow the Judgments passed by the Apex Court and the High Court of Bombay, wherein it has been held that the apportionment of the compensation is to be made not as per personal law, but as per the loss of dependency. Having regard to the mandate of provision of Section 168 of the MV Act, coupled with the settled legal position, it is held that the compensation awarded by a Motor Accident Claims Tribunal, after determination of just and fair compensation, has to apportion the payment of compensation amongst the Claimants, as considered to be appropriate to the Tribunal in view of the loss of dependency to the Claimant, disregard of the inheritance as per personal law of the Claimants. It is, however, clarified that if any Claimant dies before the awarded compensation of his share is released in his favour, his share of compensation is to be released as per applicable law of inheritance, among his legal heirs”.

Cause Title: Zarifa Banoo v. Manzoor Ahmad Sheergujri

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