The Hindu Business Line : An association of a family tie

IS A married sister entitled to compensation on the death of her brother in a motor accident? This was the question before the Calcutta High Court in Maili Biswakarma vs Oriental Insurance Co. Ltd. Maili's brother, Kancha Biswakarma, was taking water from a roadside tap on the right side of NH 31, when a vehicle coming from Siliguri `at a very high speed' hit him fatally.

Maili filed a claim under Section 140 of the Motor Vehicles Act, 1988, titled `Liability to pay compensation in certain cases on the principle of no fault'. (It states that a claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.)

Oriental, the insurer of the vehicle, first denied `the fact of accident taking place on the alleged date, time and place.' But later, during the hearing at the Tribunal, it raised the question of Maili's entitlement to compensation as the legal representative of Kancha. The Tribunal dismissed Maili's petition saying, "the claimant being the married sister of the deceased must prove her dependency on the deceased so as to be entitled to a compensation on his death in a motor accident."

Maili challenged this ruling at the High Court, and said that Section 140 does not make it necessary to establish any loss of dependency of the claimant. Justices P. K. Samanta and Maharaj Sinha heard the case and noted that a claim application for compensation, in the case of death in an accident, must be made by all or any of the legal representatives.

"The whole process for awarding compensation has two distinct parts. First criteria is the eligibility and/or entitlement of the person to get an award of compensation in his favour and then comes the question as to the determination of just compensation," explained the court.

Who are the person(s) entitled to the compensation? On this, there are divergent views expressed by different High Courts, said the judges. "One branch of decisions proceeds on the basis that once the claimant is an heir, either a class I or class II under the Hindu Succession Act, then he would be entitled to compensation. The other branch proceeds on the basis of loss of dependency," they elucidated. For instance, in the Manjuri Bera case, it was held that dependency is a prima facie factor for obtaining compensation even though one may be the legal representative of the victim.

"The concept of loss of dependency has different facets," pointed out the court, and cited the apex court's views in Megji-bhai Khimji Vira vs Chaturbhai Talja-bhai. "Gone are the days when a married sister was not entitled to succeed to the property of her father along with her brother in absolute right," said the court.

Association in the present day context is not like an association of living together or being dependent upon each other, but an association of a family tie, an association of love and affection, explained the court. "It is a kind of association which gives an impression in the mind that there is someone in the blood relation upon whom faith can be reposed or could be dependent upon, in case of need."

Since `there cannot be any wrong without any remedy,' the court directed Oriental to pay Maili Rs 50,000 within four weeks as compensation.

LawLane@TheHindu.co.in

D. Murali

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