has to be pleaded and proved by the claimants before any compensation is
granted to them. As noted above, only the original claimant No.2 had
examined himself. There was no other evidence on record. The original
claimant No.2 had opposed the addition of Farzana and Shoeb as claimants.
After being added as claimants, these two claimants did not lead any
evidence to indicate their dependency on Haroon. Moreover, the rejection
of the claim for compensation has been challenged only by the subsequently
added claimants and not by the original claimant No.2. Thus in absence of
any evidence whatsoever that the appellants were dependent upon Haroon,
the prayer for grant of compensation to them cannot be granted. There is in
fact no legal basis whatsoever to grant such compensation. By applying the
ratio of the judgment of the Honourable Supreme Court in Gujarat State
Transport Corporation (supra), it is held that there is no justification
whatsoever which would be in consonance with principles of justice, equity
and good conscience to grant compensation to the appellants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.199 OF 2007
Farzana d/o Abbas Bhai
vs
Maharashtra State Road Transport Corporation,
CORAM : A.S.CHANDURKAR, J.
Citation:2016(3) ALLMR870
Date on which judgment is pronounced : 29th April, 2016
This appeal has been filed under Section 173 of the Motor
Vehicles Act, 1988 (for short, the said Act) by the claimants who are
aggrieved by the judgment of Motor Accident Claims Tribunal, Nagpur dated
01/03/2003 dismissing the claim petition filed under Section 166 of the said
Act.
The facts in brief are that one Haroon, son of Gulam Ali was going
along with one Raju Goswami as a pillion rider on a scooter. The said
vehicle was dashed by a bus belonging to the respondent. Said Haroon lost
his life in the accident. The mother and brother of said Haroon filed a claim
petition under Section 166 of the said Act. The claim petition was opposed
by the respondent by filing its written statement. During pendency of the
proceedings, the present appellants filed an application for being impleaded
as claimant Nos.2 and 3 in the proceedings. Said application was allowed.
Thereafter by judgment dated 01/03/2003, the Claims Tribunal dismissed
the claim petition holding that the appellants could not be treated to be
dependent on deceased Haroon. Being aggrieved, the present appeal has
been filed by the subsequently impleaded claimants.
2. Shri A. Hussain, the learned counsel for the appellants submitted
that initially the claim petition was filed by the mother and brother of
Haroon. The Claims Tribunal having allowed the application for
impleadment, it should have decided the claim petition by treating the
appellants as dependents of said Haroon. He submitted that there was
sufficient evidence on record to indicate the fact that the appellants who
were related to the deceased were dependent on him. Reference was made
to the deposition of the Patwari at Exhibit34 that Haroon was getting
income from agricultural lands. By relying upon the judgment of the
Honourable Supreme Court in Gujarat State Road Transport Corporation,
Ahmedabad vs. Ramanbhai Prabhatbhai and anr. (1987) 3 SCC 234 and
Montford Brothers of St. Gabriel and anr. vs. United India Insurance Co.
Ltd. and anr. 2014(4) Mh.L.J. 15, it was submitted that the Claims Tribunal
erred in holding that the appellants were not dependent on the deceased
while refusing to grant compensation. It was therefore submitted that the
impugned judgment was liable to be set aside and fair compensation
deserves to be granted to the appellants.
3. Shri S. R. Charpe, the learned counsel for the respondent
supported the impugned judgment. According to him, the Claims Tribunal
had rightly found that the appellants were not dependent on Haroon. It was
urged that the aspect regarding entitlement to make a claim for
compensation or to continue the proceedings was distinct from the aspect of
dependency for claiming compensation. Though a party may be entitled to
claim compensation, if it is found that such party was not dependent upon
the deceased, then there would be no occasion to grant compensation. It
was submitted that in fact the impleadment of the appellants was opposed
by the original claimants by filing reply on record and disputing their
dependency. The original claimant No.2 had not chosen to file any appeal
challenging the impugned judgment and the appeal was filed only by the
subsequently impleaded parties who were not dependent on the deceased.
It was therefore submitted that there was no case made out to grant
compensation. In support of his submissions, he placed reliance on the
judgments of Honourable Supreme Court in Manjuri Bera vs. Oriental
Insurance Company Ltd. and anr. (2007) 10 Supreme Court Cases 643
and Anju Mukhi and anr. v. Satish K. Bhatia and ors. (2010) 15 Supreme
Court Cases 630.
4. With the assistance of learned counsel for the parties, I have
perused the records and I have gone through the impugned judgment. The
following points arise for determination :
(1) Whether the appellants have proved that they were
dependent on the deceased for being entitled to receive
compensation ?
(2) If yes, what would be the amount of compensation to
which they would be entitled?
5. The claim for compensation as originally filed was by one Fizabai,
widow of Gulam Ali and Iqbal Hussain, son of Gulam Ali. In the said
application it was stated that Haroon was an agriculturist who was looking
after their agricultural land. On account of his demise, the applicant No.1
Fizabai was unable to do any work. It was further pleaded that two persons
were required to be employed for undertaking agricultural operations. There
were no specific pleading with regard to applicant No.2Iqbal Hussain and it
was stated that he had his separate business. The applicant No.1 expired on
16/12/1996 and her name came to be deleted from the proceedings.
6. On 25/06/1999, an application for addition of parties as
claimants was moved by one Farzana, daughter of Abbas Bhai and one
Shoeb, son of Abbas Bhai. In the application, it was stated that Farzana was
the real sister and Shoeb was the brother of deceased Haroon. It was then
stated that the original applicant No.2 Iqbal was a rich person having his own
business. To this application, reply came to be filed by Iqbal Hussain below
Exhibit19. The relationship of the said applicants was not disputed. It was
stated that Iqbal Hussain was the adopted son of Gulam Ali. The application
was opposed on the ground that the applicants were not dependent on the
deceased and hence were not entitled for compensation. The application
below Exhibit18 came to be allowed on 09/02/2000. As a result the
applicants were impleaded as claimant Nos.2 and 3 in the proceedings.
7. In the claim petition, the original applicant No.2 Iqbal Hussain
examined himself and stated that after the death of Haroon, he had
employed two servants for doing agricultural work and he was paying them
Rs.1500/ each. In his cross examination, he stated that the claimant Nos.2
and 3 were residing separately from him since last 20 years. Another witness
examined was the Patwari below Exhibit34. He deposed that field survey
No.386/2 admeasuring about 20 R was standing in the name of Haroon. In
his cross examination, he stated that he had estimated the annual income
from the agricultural field on the basis of crops mentioned in the revenue
records.
8. The respondent examined the driver of the bus at Exhibit39. On
consideration of the aforesaid evidence, the learned Member of the Claims
Tribunal found that there was no evidence to indicate that either Iqbal
Hussain or Farzana or Shoeb were dependent on the deceased. It was
further noted that the claimant Nos.2 and 3 had not led any evidence
whatsoever. On that count after finding that the mother of the deceased had
expired and that Iqbal Hussain had received an amount of Rs.25,000/, the
claim petition came to be dismissed.
9. The material on record indicates that addition of the claimant
Nos.2 and 3 had been opposed by Iqbal Hussain. It was his specific case that
said claimants were not dependent on Haroon. Further, claimant Nos.2 and
3 did not enter into the witness box in support of the prayer for grant of
compensation. It would also be necessary to note that the present appeal
under Section 173 of the said Act has been filed only by Farzana and Shoeb.
The original claimant No.2 Iqbal Hussain has neither been impleaded as an
appellant nor as a respondent. The claim is being prosecuted only by the
subsequently added claimants.
10. The locus to maintain an application for compensation under
Section 166 of the said Act and grant of compensation based on dependency
of the claimants are two distinct aspects. While it would be open for a legal
representative to maintain proceedings for grant of compensation, the
entitlement to the same would depend on the material placed on record
with regard to dependency of the claimants visavis the deceased. The right
to seek compensation cannot straight way lead to the conclusion that such
claimant was dependent on the deceased. It would be a matter of evidence
to be led in the proceedings while determining the amount of compensation.
11. In Montford Brothers (supra) the question that arose was
whether the benefits received by a “Brother” attached to a Catholic Church
by way of salary, gifts, pension etc., would belong to the community.
Proceedings for grant of compensation were filed by a charitable society
under Section 166 of the said Act on account of the death of a “Brother” in
an motor accident. The Insurance Company in its written statement did not
dispute the locus of the society to seek compensation. The Claims Tribunal
thereafter awarded compensation which order was challenged by the
Insurance Company by filing a writ petition. The High Court held that the
judgment of the Claims Tribunal was in favour of persons who were not
competent to claim compensation under the said Act. This order was
challenged before the Honourable Supreme Court. In that context it was
observed that a right is available to a legal representative or agent of the
deceased to lodge a claim for compensation. This claim is subject to the
result of a dispute raised by the other side. It was noted that no such
objection was raised by the Insurance Company in the proceedings before the
Claims Tribunal. After referring to its earlier decision in Gujarat State Road
Transport Corporation (supra), it was observed that only if there was a
justification in consonance of principles of justice, equity and good
conscience, a dependent of the deceased could be denied the right to claim
compensation.
In the aforesaid facts it is clear that the entitlement of the
claimants therein had not been disputed by the Insurance Company and
hence no issue in that regard was framed. As no such dispute was raised,
the Insurance Company was not permitted to agitate the same.
12. In Manjuri Bera (supra) the question as regards entitlement of a
claimant who was a married daughter of the victim fell for consideration. It
was held by the Honourable Supreme Court that in so far as grant of
compensation under Section 140 of the said Act was concerned, even if there
was no loss of dependency, the claimant, if he or she was a legal
representative would be entitled for compensation. S. H. Kapadia, J. (as his
Lordship then was) observed that there was a distinction between the “ right
to apply for compensation” and “ entitlement to compensation”. It was
observed that in so far as nofault liability is concerned, the statutory
compensation would form part of the estate of the deceased and hence a
legal representative having inherited the estate would be entitled to receive
said amount. It was clarified that this opinion was confined only in so far as
“ nofault liability” under Section 140 of the said Act was concerned.
In Anju Mukhi (supra) the accident in question took place on
10/02/1985. During pendency of the proceedings before the Claims
Tribunal, the widow of the victim remarried. In that context, it was observed
by the Honourable Supreme Court that on remarriage, there was no loss of
income as the dependency had shifted to the new husband. On that basis
after remarriage, the widow was not granted compensation.
13. Thus from the aforesaid, it is clear that the aspect of dependency
has to be pleaded and proved by the claimants before any compensation is
granted to them. As noted above, only the original claimant No.2 had
examined himself. There was no other evidence on record. The original
claimant No.2 had opposed the addition of Farzana and Shoeb as claimants.
After being added as claimants, these two claimants did not lead any
evidence to indicate their dependency on Haroon. Moreover, the rejection
of the claim for compensation has been challenged only by the subsequently
added claimants and not by the original claimant No.2. Thus in absence of
any evidence whatsoever that the appellants were dependent upon Haroon,
the prayer for grant of compensation to them cannot be granted. There is in
fact no legal basis whatsoever to grant such compensation. By applying the
ratio of the judgment of the Honourable Supreme Court in Gujarat State
Transport Corporation (supra), it is held that there is no justification
whatsoever which would be in consonance with principles of justice, equity
and good conscience to grant compensation to the appellants.
14. The point No.1 as framed is answered by holding that the
appellants have failed to prove that they were dependent on the deceased for
being entitled to receive compensation.
In view of the answer to point No.1, as a consequence, point No.2
is answered by holding that the appellants would not be entitled to any
amount of compensation.
In the result, the first appeal stands dismissed but with no order
as to costs.
JUDGE
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