whether second wife of person who died in accident can claim compensation

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Transcript of whether second wife of person who died in accident can claim compensation

  1. 1. lawweb.in http://www.lawweb.in/2015/06/whether-second-wife-of-person-who-died.html?pfstyle=wp Whether second wife of person who died in accident can claim compensation? Therefore, in the instant case, on facts it is established that the deceased was living with the second wife; and the second wife and children were depending solely on the income of the deceased. Having regard to the provisions contained in Section 168 of the 1988 Act, it cannot be said that the second wife is not entitled to any maintenance or that she has to be excluded from the compensation payable by the Tribunal. Therefore, we are of the view having regard to the intention of the legislature as reflected in Section 168 of the 1988 Act, where it is a legal representative of the deceased and not a legal heir, who is entitled to maintain a petition and when the definition of the term 'legal representative' includes intermeddler, the second wife, as she would be intermeddling with the estate of the deceased by virtue of the fact that she was living with him at the time of his death would be entitled to maintain a petition. She also would be entitled to compensation, as a dependant, as she was depending on him for her living and sustained loss on account of his death. At the same time the first wife, who had been living separately, for whatever reason and even if she was not dependent on the deceased, would be entitled to compensation, as a legally wedded wife and also as a person entitled to the estate of the deceased. Similarly, the daughter of the second wife, though illegitimate, by virtue of Section 16(1) of Hindu Marriage Act, is to be treated as legitimate child. She would be entitled to a share in the estate of the father as class-I heir and the petition filed by her can neither be dismissed nor she can be denied the compensation. In the light of the aforesaid discussion, we are of the view that in the facts of this case, the order passed by the Tribunal holding that the petition filed by the second wife is not maintainable is not correct and therefore, it has to be set aside. The second wife, as dependent on the deceased and an intermeddler of his estate and who has sustained loss is entitled to compensation along with the first wife and her own daughter. Therefore all of them are entitled to compensation. Equivalent Citation: 2015(1) AKR 168, 2015(1)KCCR353,AIR 2015(NOC)687 KAR IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH) MFA Nos. 24051 and 24165/2012 and MFA No. 24186/2012 (MV)
  2. 2. Decided On: 25.02.2014 Appellants: Lalita Vs. Respondent: M.R. Sunilkumar and Ors. Hon'ble Judges/Coram: 1. These three appeals are preferred against a common order passed by the claims Tribunal. Therefore, they are taken up for consideration together. 2. MVC No. 102/2008 is filed by Smt. Lalitha, for compensation claiming to be the first wife of the deceased Rudragouda Patil; MVC No. 73/2009 is also filed for compensation by Pushpa and Neethi, claiming to be the wife and daughter of deceased Rudragouda Patil. Both these petitions were clubbed with another petition, where claim for injury was made, common evidence was recorded and impugned order came to be passed, dismissing the petition filed by Pushpa and Neethi and MFA No. 24186 of 2012 is filed against the said dismissal order. In MVC No. 102/2008, while awarding compensation to Lalitha, a finding was recorded that Pushpa, the third respondent therein is not the wife of Rudragouda Patil and therefore, she is not entitled to any compensation. Therefore, Smt. Pushpa has preferred MFA No. 24051/2012. Smt. Lalitha, who claims to be the first wife, has also preferred MFA No. 24165/2012 seeking enhancement of compensation. As such these three appeals are taken together for consideration and disposed of by a common order. 3. Rudragouda Patil was working as Regional Manager with Omni-Lens Pvt. Ltd., and was drawing handsome salary of Rs. 15,000/- per month plus other perquisites. He was also running paying guest home and was earning Rs. 35,000/-. That apart, he was also earning Rs. 2,00,000/- from agriculture. In all the deceased was earning more than Rs. 9,00,000/-. On the fateful day that is 6.09.2007 he had gone to bring milk on his Active- Honda vehicle and when he was near Big Bazar, Bangalore at about 6:30 a.m., a Tata Sumo bearing No. KA-13/A-2969 driven in a rash and negligent manner by its driver came and dashed against him and also one pedestrian. Due to the impact, he was dragged for more than 25 to 35 feet and sustained severe head injuries and other injuries all over the body. Immediately he was taken to nearby Shekar Hospital, from where he was taken to Nimhans Hospital in Bangalore, where it was advised that he should be taken to Sagar Apollo Hospital in Bangalore. Accordingly he was admitted as an inpatient from 16.09.2007 to 30.11.2007 in Sagar Apollo Hospital; more than ten major operations were conducted under general anesthesia. The claimants claim that they have spent about Rs. 20,00,000/-. In spite of best efforts and best treatment, Rudragouda Patil succumbed to the injuries on 30.11.2007; his body was taken to Victoria Hospital for postmortem and thereafter funeral ceremony was conducted in Bangalore. 4. Smt. Pushpa claiming to be the wife and Neethi, her daughter originally preferred a claim petition in MVC No. 9087/2007 on the file of the MACT, Bangalore. Smt. Lalitha claiming to be the first wife preferred a claim petition in MVC No. 102/2008 on the file of
  3. 3. the MACT, Hubli claiming compensation of Rs. 90,00,000/-. On coming to know of the filing of the petition by Pushpa and Neethi, Smt. Lalitha moved this Court in Civil Petition No. 506/2008 and got the petition on the file of MACT, Bangalore transferred to the Tribunal at Hubli. That is how both these petitions were clubbed together and a common trial was conducted before the Tribunal at Hubli. 5. After service of notice, respondents entered appearance. The owner of the vehicle in question remained ex parte. It is only the insurance company which filed the statement of objections contending that the accident occurred on account of rash and negligent driving of the deceased and, therefore, it was not liable to pay any compensation. However, it did not dispute the accident and the insurance coverage to the vehicle in question. 6. On the basis of the aforesaid pleadings, the Tribunal framed the following issues in MVC No. 102/2008 and M.V.C. No. 73/2009. "ISSUES IN MVC No. 102/2008 1. Whether the petitioner proves that her husband by name Rudragouda died in a motor vehicle accident that occurred on 16.09.2007 at about 6.30 a.m. on east end ring road near Big Bazaar, Bangalore, on account of the rash and negligent driving of the Tata Sumo bearing registration No. KA-13/2969 by its driver? 2. Whether the respondent No. 2 proves that accident was due to the negligent riding of the deceased himself? 3. Whether the petitioner is entitled to compensation? If yes, what is the quantum and from which of the respondents? 4. What order or award?" "Issues IN MVC No. 73/2009 1. Whether the petitioners prove that Rudragouda Rayanagouda Patil died in a motor vehicle accident that occurred on 16.09.2007 at about 6.30 a.m. on east end ring road near Big Bazaar, Bangalore, on account of the rash and negligent driving of the Tata Sumo bearing registration No. KA-13/2969 by its driver? 2. Whether the petitioners are entitled to compensation? If yes, what is the quantum and from which of the respondents? 3. What order or award?" 7. The claimants in both the claim petitions were examined. Smt. Lalitha was examined as P.W. 1, Smt. Pushpa R. Patil, was examined as P.W. 4 and five other witnesses were also examined. They, in all, produced 94 documents marked as Exs. P.1 to P.94. On behalf of the respondents, no evidence was adduced. 8. The Tribunal, on consideration of the aforesaid oral and documentary evidence on record, held that the accident occurred on account of rash and negligent driving of the
  4. 4. driver of the Tata Sumo vehicle bearing registration No. KA-13/2969 and thus, the claimants had established actionable negligence. Thereafter, it held that Smt. Lalitha, the claimant in M.V.C. Nos. 102 of 2008, who is the legally wedded wife of Rudragowda R. Patil, had not established her claim regarding damage to the vehicle. It held that Rudragowda R. Patil was employed. He had filed income-tax returns immediately prior to his death. His income was taken as Rs. 1,20,000/- per annum, 50% of the said amount was deducted towards his personal expenses, his age was taken as 52 years, applying the multiplier of 13, the Tribunal held that the claimant was entitled to a sum of Rs. 7,80,000/- under the head 'loss of dependency'. Thereafter, it also awarded a sum of Rs. 15,000/- towards loss of consortium', Rs. 1,000/- towards transportation of dead body and Rs. 10,000/-, towards funeral expenses a sum of Rs. 26,000/-. Thus, in all under conventional heads, it awarded a sum of Rs. 8,06,000/- with interest at 6% per annum. 9. Insofar as the claim petition filed by Smt. Pushpa R. Patil is concerned, the Tribunal dismissed the same on the ground that she being the 2nd wife, was not entitled in law to maintain a petition nor to any compensation. However, the Tribunal did not go into the question of the claim of the daughter of the deceased through Smt. Pushpa Patil. 10. Aggrieved by the said judgment and award passed by the Tribunal, Smt. Lalitha has preferred M.F.A. No. 24165/2012 seeking enhancement of compensation, while Smt. Pushpa Patil and Neethi Patil have preferred M.F.A. No. 24051/2012 challenging the order of dismissal of their claim petition and claiming compensation. However, the insurance company has accepted the award. 11. In M.F.A. No. 24165/2012, the learned counsel appearing for Smt. Lalitha contended that Smt. Lalitha being the first wife and when a declaration to that effect has been given by a co