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FA/1509/1983 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1509 of 1983
=========================================================
KJ
PRAJAPATI - Appellant(s)
Versus
RN
MALECK & 6 - Defendant(s)
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Appearance
:
MR
DD VYAS for
Appellant(s) : 1,
None for Defendant(s) : 1 - 2.
MR BR SHAH for
Defendant(s) : 3,
MR AV TRIVEDI for Defendant(s) : 4 -
7.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/07/2008
ORAL
ORDER
1. Heard
learned advocate Mr. Vyas appearing on behalf of appellant ?
Prajapati Kanchanben Jagjivandas and learned advocate Mr. Sunil B.
Parikh for learned advocate Mr. B.R. Shah appearing on behalf of
National Insurance Company Limited. Learned advocate Mr. A.V. Trivedi
is appearing on behalf of respondents No.4 to 7. Though respondents
No.1 and 2 are served, but, no appearance is filed by them, who are
probably driver and owner.
2. Learned
advocate Mr. Vyas submitted that two Claims petitions were filed.
MACP No.206 of 1981 was filed by present appellant and another MACP
No.273 of 1981 was filed by mother and brothers of deceased. Both the
claim petitions are decided by the Claims Tribunal, Surendranagar by
passing common award. Learned advocate Mr. Vyas raised contention
before this Court that Tribunal has committed gross error in awarding
compensation between the widow, mother and brothers of the deceased.
He also submitted that under the Hindu Succession Act, a widow and
only mother of the deceased are covered by Class-I category as per
Section 8 of the Hindu Succession Act. Therefore, the brothers of the
deceased are not covered by definition of legal representations of
deceased. He also raised contention that the amount is not equally
distributed by the Tribunal amongst the widow, mother and brothers of
the deceased. He submitted that Claims Petition filed by widow
claiming Rs.50,000/-, but, Tribunal has awarded only Rs.10,000/- in
favour of widow i.e. present appellant, Rs.13,400/- awarded to mother
of the deceased and Rs.5,000/- awarded to each brother of the
deceased. Learned advocate Mr. Vyas submitted that this apportionment
made by Tribunal is contrary to law and therefore, present appeal is
filed. He further raised contention that Tribunal has committed gross
error by not considering the loss of consortium, funeral expenses,
future prospects and apportionment between the parties and 16
multiplier is also on lower side. He relied upon one decision of
Karnataka High Court in case of Smt. Parvathamma and etc. v. C.
Subramanyam and Others reported
in AIR 2000 Karnataka 309,
where, Division Bench of Karnataka High Court has examined that claim
for compensation cannot be maintained by second wife of deceased
whose marriage with deceased was void. He relied upon para 14 and 15
of the said decision. He also relied upon the decision of Apex Court
in case of Smt. Manjuri Bera v. Oriental Insurance Company
Limited. reported in AIR
2007 SC 1474, where, the Apex
Court has held that married daughter of deceased though found as
dependent on deceased is entitled to compensation because she is
legal representatives under Section 166. He also raised contention
that question of legal representative is to be considered on the
basis of provisions made in the Code of Civil Procedure, 1908.
3. Learned
advocate Mr. Parikh appearing on behalf of Insurance Company
submitted that all the claimants are family members. They both have
filed claim petitions which are decided by Tribunal while passing
common award. Learned advocate Mr. Parikh raised contention that
whatever the contention raised by learned advocate Mr. Vyas before
this Court in appeal, none of the contention was raised by claimant
before the Tribunal. The Tribunal has considered the question in
deciding the quantum where entire facts have been discussed by the
Tribunal in Para 21 and Tribunal has given specific reason that why
this kind of apportionment made between the legal heirs of the
deceased. The reason has been specifically dealt with by Tribunal in
Para 21. Therefore, relevant discussion in Para 20 and 21 made by
Tribunal is quoted as under :
?S20. The
next question that would arise for consideration would be about the
quantum. The evidence shows that the deceased was about 25 to 26
years of age. The case put up by the applicants in the respective
petition is that the deceased was earning Rs.300/- per month and that
he was provided food, clothes, etc., by his Sheth, namely
Hemchandbhai Naranbhai. As Hemchandbhai Naranbhai is not examined,
there is no thing to show what was paid to the deceased, by him, and,
therefore, looking to the age of the deceased, the income of the
deceased is estimated at Rs.300/- per month, as he was doing labour
in preparing sweet-meats at the place of Hemchandbhai. The deceased
may be spending Rs.100/- on his ownself and, therefore, the
dependency would come to Rs.200/- per month and that would come to
Rs.2,400/- per annum. The deceased was about 26 years of age. So the
multiplier of 16 years’ would be applicable and the amount would come
to Rs.38,400/-. To this, the applicants are also entitled to
Rs.5,000/- by way of loss of expectation of life of the deceased
Jagjivan and, therefore, in all the applicants are entitled to
compensation of Rs.43,400/-.
21. In
claim petition No.273/81, the applicant in the widow of the deceased
while in claim petition No.206/81, the applicants are the mother and
the brothers of the deceased. Both the claim petitions are
consolidated and disposed of by a common award and the amount is
apportioned amongst the applicants as per the final award. But
according to Gangaben, the mother of the deceased, Kanchanben, the
widow of the deceased and applicant in claim petition No.273/81, was
not residing with her son and she had only stayed for 15 days and had
gone away and that she and her three sons were maintained by her
deceased son and they had also incurred after the obsequious
ceremonies of her son. At the same time, she has admitted that
Kanchan is at the place of her parents. She has no children and she
has not remarried still. In the light of this, the amount that is
awarded to the applicants shall have to be apportioned as under, as
the applicants are awarded compensation of Rs.43,400/- with interest
at the rate of six percent per annum from the date of the pauper
applications till realisation with proportionate costs and,
therefore, the claim petitions are partly allowed and the following
award is passed:?S
4. The
brief facts of the present appeal is that on 22nd February
1981, the tractor bear No.GTJ-9788 of the ownership of opponent No.1
was carrying the marriage party from Kherva to Nagadka, the said
tractor had dashed with the husband of the applicant who died. The
evidence of Kanchanben is recorded at Exh.20. She is the applicant in
Claim Petition No.273 of 1981. According to her, the deceased
Jagjivan was her husband and she was married with her husband only
seven years before the accident. After her marriage, they were
residing at Village Charadava. Her husband was serving at the place
of Hemchanbhai Naranbhai and was getting Rs.300/- per month. Her
husband was provided meals of Hemchandbhai Naranbhai. The evidence of
Gangaben Madhavjibhai in Claim Petition No.206 of 1981 that applicant
No.2 to 4 are her sons and Jagjivan was her elder son, he was serving
at the place of Hemchandbhai Naranbhai. The deceased had resided
hardly 15 days with her wife ? present appellant Kanchanben and she
was often gone away to her parental house as she wanted divorce from
deceased and her deceased son had never maintained the appellant. The
Tribunal has examined the FIR produced at Exh.25 and also Panchnama
and relevant papers and come to conclusion that when Jagjivan was
going on motor cycle towards Nagadka Village and motor cycle was
dashed with the tractor by opponent No.2 when in the tractor,
opponent No.2 was carrying the marriage party of Jat Rasukkhan
Alikhan of Village Kherva. The Panchnama was produced at Exh.26 and
Tribunal has rightly come to conclusion that because of the
negligence of the tractor driver, accident occurred. The tractor
owner has also not tendered any evidence. The insurance policy is
produced at Exh.35 which covered the period of accident. The accident
occurred by opponent No.1 during the course of his employment as a
driver. Therefore, in light of this background, Tribunal has awarded
Rs.10,000/- to Kanchanben ? present appellant, because, she wanted
divorce from the deceased and was not residing with her husband and
she remained only 15 days with deceased in seven years of
marriageable life. Therefore, the present appellant was not
maintained by her husband.
5. In
light of the aforesaid evidence, the apportionment made by Tribunal
granting Rs.10,000/- in favour of appellant is reasonable amount
which cannot consider to be in any manner unreasonable. The present
appeal is filed challenging the award passed in MACP No.273 of 1981
and not challenged the award passed by Claims Tribunal in MACP No.206
of 1981. Therefore, the contention raised by learned advocate Mr.
Vyas challenging the apportionment in favour of claimants of Claim
Petition No.206 of 1981 cannot entertained by this Court. When
appellant was not maintained by deceased and only residing together
for 15 days in a span of marriageable life, this being a reasonable
compensation. It is necessary to note that in petition filed by
mother of the deceased being MACP No.206 of 1981, the present
appellant was not a party to the proceedings and in claim petition
filed by widow ? present appellant, the rest of the claimants of
MACP No.206 of 1981 were also not joined as a party. Therefore, two
separate claim petitions filed by respective claimants and not joined
as a party either of claimant in their claim petition. Now, appellant
has no right to challenge the apportionment made by Tribunal in
favour of mother and three brothers of deceased. Therefore,
contention raised by learned advocate Mr. Vyas cannot be accepted and
therefore, same is rejected. The decisions relied upon by learned
advocate Mr. Vays are totally not applicable to the facts of this
case.
6. The
Tribunal has after come to conclusion that income of the deceased is
estimated at Rs.300/- per month, as he was doing labour in preparing
sweet-meats at the place of Hemchandbhai. The deceased may be
spending Rs.100/- on his own self and therefore, the dependency would
come to Rs.200/- per month and that would come to Rs.2,400/- per
annum. The deceased was about 26 years of age. So, the multiplier of
16 years’ would be applicable and the amount would come to
Rs.38,400/-. To, this, the applicants are also entitled to Rs.5,000/-
by way of loss of expectation of life of the deceased Jagjivan and
after the death of husband, mother of deceased, Kanchanben – widow of
deceased was not residing with her son and she had only stayed for 15
days and had gone away and that she and her three sons were
maintained by deceased and they had also incurred after the
obsequious ceremonies of the deceased. At that occasion, mother of
deceased had admitted that Kanchanben is at the place of her parents.
She has no children and she has not remarried still. In light of
these factual background, Tribunal has taken sufficient care by
giving opportunities to claimants and it cannot consider to be an
unreasonable in any manner the apportionment made by Tribunal. To the
question of loss of consortium, funeral expenses, future prospects
and apportionment which was argued now by learned advocate Mr. Vyas.
Only 15 days, the widow of deceased remained with deceased. The
question of loss of consortium does not arise. For the funeral
expenses future prospects, no such submission was made by lawyer of
claimant before the Tribunal. The Tribunal has considered the income
and 1/3 deduction and Rs.5,000/- for lost of expectation of live of
the deceased ? Jagjivan and after considering the entire discussion
made by Tribunal, according to my opinion, after all, it is a
reasonable amount of compensation awarded by Tribunal which cannot
consider to be in any manner arbitrary and based on whims. Therefore,
the contentions raised by learned advocate Mr. Vyas before this Court
first time when it was not raised before the Tribunal at the relevant
time though advocate was engaged by appellant before the Tribunal.
Therefore, in such circumstances, the contentions raised by learned
advocate Mr. Vyas cannot be accepted and hence, rejected.
7. The
decisions which have been relied upon by learned advocate Mr. Vyas
are not applicable to the facts of this case as the appellant has
filed separate claim petition and all the legal heirs have filed
separate claim petition, for that, question of legal heirs in the
petition filed by mother and brother does not arise and present
appellant has no right to challenge that claim petition, where, she
was not a party to claim petition filed by mother and brothers of
deceased.
8. The
award passed by Tribunal in the claim petition in favour of mother
and brothers, no separate appeal is filed by present appellant. The
present appellant challenged the award passed by Tribunal in her
claim petition only and cannot have legal right to challenge the
award passed by Tribunal in case of mother and brothers, for that,
separate appeal is necessary.
9. Therefore,
there is no substance in the present appeal. Accordingly, present
First Appeal is dismissed with no order as to costs.
[H.K.
RATHOD, J.]
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