JUDGMENT
Deepak Gupta, J.
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the Award of the Motor Accident Claims Tribunal, Solan, H.P. (hereinafter referred to as the Tribunal), passed in M.A.C. Petition No. 16-S/2 of 1996 decided on 2nd May, 1998.
2. A young boy, Ashish Sharma, died in an accident which took place on 25th July, 1995 between a scooter and a truck near the Housing Board Colony, Kalka. A claim petitions was filed by the claimants Lalita Sharma and Hem Chand Sharma under Section 166 of the Motor Vehicles Act. In this claim petition it was alleged that they were the parents of the deceased. The owner and driver of the truck did not deny the accident. It was alleged that the accident had occurred due to the rash and negligent driving of the scooter driver on which the deceased was riding as a pillion rider. It was pleaded that the owner, driver and insurer of the scooter were necessary parties to the petition. The appellant Insurance Company in its reply took up a plea that Lalita Sharma was not the mother of the deceased. It was alleged that in fact Hem Chand Sharma had entered into wedlock with one Christian lady, named Alice. Out of this wedlock the deceased was born. Thereafter, the relations between Hem Chand and Alice had deteriorated. It was stated that Alice had first gone to Middle East and thereafter had shifted to Canada. It was alleged that Alice had been remitting money to Hem Chand for the upkeep of their minor child. She had also been visiting Solan. She later came to know that the father had misappropriated the amounts sent by her for the maintenance of the minor and thereafter she was remitting the amount through some other friends. It was also alleged that deceased was trying to emigrate to Canada to join his natural mother. The Insurance Company took up the plea that Alice was a necessary party to the claim petition. Various other pleas were also raised.
3. In rejoinder, it was stated that in fact Lalita Sharma had adopted the deceased. It was stated that before going abroad Alice had obtained divorce from the husband. It was stated that the minor had been adopted by Lalita Sharma as per custom. The case set up was that thereafter Lalita Sharma had married petitioner Hem Chand. It was only the petitioners who were looking after the deceased. Hem Chand was the natural father of the deceased and Alice the biological mother had been living abroad and was not entitled to compensation. It was alleged that Lalita Sharma was treating the deceased like her elder son.
4. The Insurance Company filed an application under Section 170 of the Motor Vehicles Act for permitting it to contest the case on all grounds. This application was allowed vide order dated 30th December, 1996.
5. The Tribunal came to the conclusion that the deceased Ashish had been adopted by Smt. Lalita Sharma. The Tribunal was of the view that there is not much evidence about the adoption of deceased by Ashish Sharma but went on to hold that in fact he had been adopted by Lalita Sharma. Compensation of Rs. 1,85,000 was awarded. Out of this compensation Rs. 1,25,000 was ordered to be paid to Smt. Lalita Sharma and a sum of Rs. 60,000 to Hem Chand Sharma.
6. In this appeal by the Insurance Company the main attack is on the ground d that Lalita Sharma was not entitled to any compensation. It is further alleged that Alice was a necessary party to the petition and the proceedings could not have continued in her absence.
7. Mr. Ashwani Sharma, learned Counsel for the Insurance Company has submitted that the finding of the Tribunal that the deceased was adopted by Lalita Sharma has neither been pleaded nor proved. He states that the Tribunal has travelled beyond the pleadings and has built up a new case for the petitioners. No evidence with regard to the adoption of the minor has been led except for the bald statement of the petitioner Hem Chand Sharma. He further submits that there is sufficient material on the record of the case to show that Alice was sending huge amounts for the maintenance of the deceased. Alice had never severed her relations with her son. He submits that the Tribunal should not have held that Alice had handed over the child to Lalita Sharma, that too, without making Alice a party to the petition.
8. On the other hand Mr. Shrawan Dogra, learned Counsel for the claimants/respondents submitted that the judgment of the Tribunal is absolutely correct and calls for no interference. He further argued that the main issue in the case is whether the claimants were entitled to compensation and, if so, to what amount of compensation. The other issue as to whether the deceased was adopted or not was only an ancillary issue and therefore Alice was not a necessary party to the petition. He stated that it was Lalita Sharma who had brought up the child. The child was being educated in St. Luke’s School Solan which is one of the best schools in Solan. She treated him like her own son. He submits that the adoption has been proved and in the alternative even if it is held that the adoption is not proved, since the deceased was always treated like a son by Lalita Sharma it is she alone who is entitled to compensation and not the natural mother who according to Mr. Shrawan Dogra, had abandoned a six months old child and gone abroad.
9. Before examining rival contentions of the parties and the evidence led in the case it would be appropriate to refer to Section 166(1) of the Motor Vehicles Act, 1988 which is relevant for the questions raised in this case, which reads as follows:
166. Application for compensation.–(1) An application for b compensation arising out of an accident of the nature specified in Subsection (1) of Section 165 may be made
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorized by the person injured or allow any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased had not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
10. A bare perusal of this sub-section clearly indicates that a claim petition under the Motor Vehicles Act is a petition in representative capacity. Even one of e the legal representatives is entitled to file the claim petition. The proviso to the Subsection casts a duty on the Tribunal to implead as respondents all the legal representatives of the deceased who have not joined as petitioners. The application for compensation has to be treated for the benefit of all the legal representatives whether joined in the petition or not.
11. The petitioners examined only two witness. PW 1 is Hem Chand Sharma father of the deceased. He stated that he had married Alice in 1970. Ashish was born in 1977. According to him even prior to the birth of Ashish some time in August, 1976 there was a customary divorce between him and Alice. He states that Alice belong to the tribal areas of Chhatisgarh then a part of the Madhya Pradesh and was governed by custom. He further states that thereafter he entered into a second 9 marriage with Lalita Sharma. According to him Alice went abroad and did not remarry. He further states that Alice gave the son to Lalita Devi and the witness. According to custom the child was placed in the lap of Lalita with the consent of the witness. Thereafter Alice went to Iran. He states that the child was brought up by the petitioners. Alice is now in Canada. He also states that Lalita used to treat . Ashish like her own son. He has two sons from Lalita. Later on Alice came to Solan and she was misguided by one Brahm Raj and Champa Rani and thereafter Alice had filed some case against him.
12. In cross-examination he states that probably he married Lalita in the year 1976. He then states that other than the case, copy of judgment of which is Ext. R-1, no other case was going on between him and Alice. Thereafter he admits that he had filed some other case against Alice and one Das Gupta. He feigns ignorance’ about the nature of the case and the result thereof. He does not even remember whether this case was filed by him in the Court of Sub Judge, Solan or somewhere else. He also does not remember he withdrew this case. He has denied the suggestion that he had in fact married Lalita prior to marrying Alice. According to him he used to bear the expenditure on the maintenance and education of deceased Ashish. He has denied the suggestion that Alice used to send the money for the maintenance of the deceased through Account No. 18904 or Account No. 5353 opened in the name of Ashish. He has denied the suggestion that he had misappropriated the amount sent by Alice for the upkeep of Ashish. He does not remember whether he had informed Alice about the death of Ashish. He also does not remember whether Alice had telephoned him and asked him to delay the cremation of the deceased so that Alice could see her SOD for the last time. He also does not remember that he had received a similar message through one Pushpa. He states that he is not on speaking terms with Pushpa. A suggestion has been put to him that the body of deceased was not brought home and taken straight to the cremation ground “since his wife Lalita did not want the body of Ashish to be brought home. He has denied this suggestion. He states that he does not know any Ms. Das Gupta. He has heard about her but never met or seen her. He denied the suggestion that the entire expenses from birth till death on the deceased were borne by Alice. He also denied the suggestion that on the ill-fated day the deceased had gone to Chandigarh in connection with obtaining passport as lie wanted to join his mother at Canada.
13. The only other witness examined by the petitioner is PW 2 Amandeep who is the driver of the scooter. For reasons best known to the claimants Lalita Sharma was never examined as a witness. It would be pertinent to mention here that the rejoinder, in which, for the first time, the claimants took up the plea that deceased Ashish had been adopted by Lalita is neither signed by Lalita nor supported the verification or affidavit of any person.
14. The respondent Insurance Company examined a large number of witnesses. RW 2 Asha Arora knows the parties. She states that in the year 1984 the claimants Hem Chand and Lalita were her tenants. She also personally knew Alice who used to visit Solan once every year for about 15 to 20 days. Alice used to come Solan to meet her son. According to this witness Alice used to send money for the upkeep and education of her son. In fact one bank account No. 18904 was opened by Alice in the name of Ashish Sharma showing the address of this witness as his address. She states that money was deposited in this account and when Alice used to come to Solan she used to withdraw this money and give it to Ashish. She also states that she intimated Alice about the death of Ashish who asked her to inform Hem Chand to keep the dead body till she comes to India. Though she passed on a this message to the petitioner Hem Chand, yet he expressed his inability to keep the body and cremated the same. Alice came to Solan thereafter and lived with this witness. She also states that in her presence Alice had once handed about 500/600 dollars to Ashish. According to her Ashish was not happy in the house of claimant Hem Chand Sharma and was not treated well by the claimants. In cross-examination she has stated that the dead body of Ashish was taken directly to the cremation ground after being brought from Chandigarh and not taken home. She also states that Alice also had been sending money to Ashish Sharma through Jagjit Singh Sehgal. She has admitted that three children of Hem Chand i.e. the deceased and his two sons from Lalita Sharma were studying in St. Luke’s School and used to go together to School. She states that one son was studying in a higher class and c one son in a lower class vis-a-vis Ashish. According to her the elder son of Lalita was three months older to Ashish. She has denied the suggestion that Alice gave her son in adoption to the petitioners. She has denied the suggestion that she is deposing falsely because of enmity with the claimants.
15. RW 3 Ms. S.J. Das Gupta is aged about 80 years. She is a retired Government servant. According to this witness she is involved in social work. Sometimes in the year 1984 the Superintendent of Police, Solan had called her to his office where Alice was present. She met Alice for the first time there. Alice was facing some problems and feared for her safety from her husband Hem Chand. Therefore the Superintendent of Police asked her to take care of Alice. Alice resided with her till early 1986 and she had given protection to her. This witness e states that Alice had informed her that she had been sending money to the deceased in her joint account with Hem Chand in Bombay. Hem Chand had in fact misappropriated this amount. She states that Hem Chand had even threatened her for protecting Alice. Alice had informed her that deceased Ashish was brought up with funds provided by Alice. She states that Alice had written to her to persuade Ashish to join his mother at Canada. She had talked to Ashish in this regard but he had f evaded her query. She has denied the suggestion that Ashish told her that his real mother was Lalita and not Alice. She states that she has not kept the letters which were exchanged between her and Alice. She also states that after the death of Ashish, Alice had come to Solan and stayed in the house of Kathuria i.e., father of RW 2 Asha Arora. She called upon Alice to condole the death of Ashish.
16. RW 4 Naresh Kumar Jain states that his son was a classmate of the deceased. According to him the deceased used to tell him about the step-motherly treatment being meted out to him by the petitioners. He also states that Ashish had told him that he wanted to go to Canada. In cross-examination a suggestion has been put to him that since the relations between this witness and Hem Chand are strained, therefore, he is deposing falsely.
17. Statements of RWs 5,6,7 and 8 are not relevant RW9 is Sukhchain Singh an Investigator appointed by the Insurance Company. His statement is mainly hearsay and therefore not of a much relevance.
18. RW 10 is the Manager, Central Bank of India, Chandigarh. He stated that a saving bank account No. 5353 is in the name of Ashish Sharma under the guardianship of Jagjit Singh in his bank. He has proved the statement of account which is Ext. RW-10-A. According to him the money in this account used to be remitted from Canada.
19. RW 11 is Jagjit Singh. He states that prior to 1986 Ashish’s father used to bear his expenses and look after him but he also adds that Alice who was then posted in Iran used to send money to Hem Chand. He states that Alice had filed a petition for divorce which was compromised and divorce was granted. Thereafter Alice used to send money to Ashish through the account opened at Chandigarh under his guardianship. He has also stated that Ashish was brought up by the money spent by Alice. In cross-examination he admits that he first met Alice in the year 1987. He admits that he has no personal knowledge with regard to Alice sending money from Iran. He denied the suggestion that Alice and Hem Chand had divorced in the year 1976. He states that Alice had gone to Iran in 1981. He had seen the passport of Alice in which she was shown to be the wife of Hem Chand. This passport had later on been torn by Hem Chand. He along with Alice visited the house of Hem Chand in the year 1987 to get the custody of Ashish. He admits that at that time Ashish had refused to accompany Alice and he had also refused to recognize Alice as his mother. He also admits that Ashish said that Lalita was his mother. He admits that in the current passport of Alice which he had seen her status is that of divorcee. This passport was issued after the year 1987. He also admits that the petitioner Hem Chand and Ashish had great love and affection for each other. He also admits that Lalita used to treat Ashish like her own son. In the year 1991-1992 Alice had again come to Solan and he had accompanied Alice to the house of Hem Chand. Alice was demanding the custody of Ashish. Hem Chand had stated that he had no objection in case the child is willing to go with Alice. The child had refused to go with Alice. This witness has admitted that the child was being treated well.
20. In addition to this oral evidence the parties have also placed on record a number of documents. The relevant documents are Ext. PW-1-A, a copy of a partnership deed in which deceased Ashish Sharma is shown to be a partner in one firm known as M/s. Mahajan Agency, Shahpur, District Kangra. Ext. PW-1/E to PW-1/S are various certificates showing that the deceased was a good athlete and used to regularly take part in extra-curricular activities. Ext. R-1 is the copy of the judgment delivered by the Chief Judicial Magistrate, Solan in case State v. Hem Chand Sharma. This case was filed on the complaint of Alice under Sections 384, 494, 341, 506, 498-A, 420, 468 and 323, I.P.C. This complaint was dismissed on 27th October, 1987.
21. RW 9-A is the copy of the investigation report of the Investigator. However, this report does not have any evidentiary value since this report is based on the statement of witnesses. RWs 3-A, 4-A, 5-A are the statements of witnesses recorded by the Investigator. There is no need to refer to these statements since these witnesses have been examined in Court RW 10-A is the copy of the statement of account of Ashish Sharma. This statement of account from 17th November, 1989 till 23rd September, 1992 is also in consonance with the pass book Ext. PW-11-A with regard to the same account. A perusal of this account shows that during this period of less than 3 years Alice had remitted more than Rs. 2 lakh in this account. This amount is alleged to have been given to Ashish for his upkeep.
22. A perusal of the entire evidence which has been set out in detail hereinabove clearly shows that the case set up by the petitioners that the deceased Ashish Sharma had been adopted by Lalita Sharma is false. This case was not pleaded in the claim petition. It was only when the respondent No. 3 filed a reply that Lalita Sharma was not the natural mother of the deceased that a rejoinder was filed to the effect that in fact Ashish had been given an adoption by his natural mother Alice to Lalita Sharma. As noted above this rejoinder is hot signed by Lalita Sharma. This rejoinder is not verified to be true by any party and is not even supported by any affidavit. However, I am proceeding on the assumption that the claimants despite this lapse are entitled to raise this plea. The Counsel for the claimants has failed to give any plausible reason or explanation for the non-, examination of Lalita Sharma. Her testimony was very important but, for reasons known to the claimants only, she was not examined. Therefore, an adverse inference has to be drawn against the claimants. The only witness examined on this point by the claimants is Hem Chand Sharma. His testimony does not inspire confidence. He would have the Court believe that since Alice belonged to a backward area and was a tribal, therefore, both of them were governed by custom. For two parties to be governed by customary law it is necessary that both are governed by the said custom. Hem Chand Sharma is admittedly not governed by any customary law. Therefore, he could not have entered into any marriage with Alice according to any custom nor could he have divorced her in accordance with such custom. In fact there is no pleading or proof with regard to any such custom. This witness only states that Alice had given the son to Lalita Devi and according to custom, placed the child in the lap of Lalita. This evidence is not supported by any document or any other contemporaneous evidence. Even Lalita has not been examined. Statement of this witness cannot also be believed due to the fact that it stands proved on record and in fact even admitted by this witness that Alice came back from Iran somewhere in the year 1984 and stayed in Solan till about 1987. During this period there was a litigation between them. It also appears that Alice kept trying to obtain the custody of her son Ashish. Why would she do so, if she had abandoned her son and given him in adoption? It also stands proved on record that Alice was remitting large sums of money for the maintenance of her child.
23. I am not willing to accept the version of some of the respondents’ witnesses that the child was being maltreated by the claimants. He was studying in a good school and even as per RW 11 Jagjit Singh the child was treated like the other children. Lalita may have looked after the child. She may even have performed the role of a mother. However, that by itself will not be sufficient to hold that she had adopted the child. The learned Tribunal, in my view, has not approached the case with the sensitivity it required. It is not a question only of rupees and paise. A question of human relationship was involved. The claimants are the natural father and his second wife who claim to have adopted the child. They are setting up a case that the natural mother had abandoned the child when he was six months old and had handed over the child to the second wife in adoption. This story is difficult to swallow. Would a woman who had just been divorced, hand over her only child to her husband’s second wife? This does not seem to be possible. It appears that because of some financial constraints and difficulties the mother was compelled to go abroad to earn her livelihood. As such she had no other option but to leave the child with her husband. She has been sending money for his upkeep. It may be true, that when she came to Solan in 1986 or 1987 to claim the custody of the child, the child refused to go with her. At that time the child was only 10 years old. He had never been in regular touch with his natural mother and was being brought up by his father and step-mother. Naturally he said that the step-mother is his mother. She was the only mother he knew.
24. The statement of the husband cannot also be believed because in cross-examination he has suffered of amnesia and feigned ignorance about facts which should be in his knowledge. When awkward questions were put to him his only answer was that he does not remember what had happened. The statement of such a witness cannot be relied upon.
25. Even accepting that Lalita was treating Ashish like her own child would not be sufficient to hold that Ashish has been given to her in adoption by Alice. The natural mother Alice had been regularly coming to Solan to meet her child. She was spending money for his upkeep and maintenance. Even after death of her son she visited Solan even though his body had been cremated. The cremation was done despite the request made by Alice to keep the body for a couple of days. This clearly shows that she had not severed her relations with her son.
26. The reliance placed by learned Tribunal on the judgments cited i.e. Madhusudan Das v. Smt. Narayani Bai and Ors. and Damodar Lal v. Lulli Lal and Ors. , is totally misplaced.
27. In Madhusudan Das’s case (supra), the question under consideration was totally different. The point decided by the Apex Court was that the physical act of giving or taking is an essential ceremony in all adoptions whatever be the caste. Therefore, in addition to an adoption deed the physical act of giving and taking must be proved. The Court further held that in some cases to complete the adoption a ‘datta homam’ also necessary. However, the Court went on to hold that in the twice born classes no such ceremony is required if the adopted boy belongs to the same ‘gotra’ as the adopted father. I find that the said case has no relevance to the facts of the present case.
28. Similarly the reliance placed on Damodar Lal’s case (supra), is also not correct. There can be no doubt that there can be presumption of validity of adoption when the adoption has taken a long time back. However, first of all there should be a some proof with regard to the adoption. The fact that the child is living in the same house as the father and the step-mother cannot be the basis to raise a presumption that the child had been adopted by the step-mother.
29. The Tribunal totally lost sight of the fact that it was not only depriving the natural mother Alice of the compensation to be awarded but by holding that Alice had given her son in adoption the Tribunal was casting aspersions on her character as a mother. Should the Tribunal have proceeded to decide this question without making Alice a party to the petition? The answer to this has to be an emphatic no. This was not an ancillary issue as argued on behalf of the appellant. This was the core issue. A perusal of the pleadings and evidence clearly shows that the parties i.e. the Insurance Company and the claimants knew fully well that the main issue c was whether Ashish had been given in adoption by Alice to Lalita? This question should never have been decided behind her back. It has been argued before me and in fact this is the reasoning of the Tribunal also that the Insurance Company has not led any evidence to show that the deceased had not been adopted. This argument itself begs the question. Should this issue have been decided without making Alice a party? It was only Alice who could have collected and led evidence to the contrary. No other person could have been privy to such information or evidence. Therefore, in my opinion, Alice was a necessary party to the petition. Despite this objection having been taken the claimants did not take any steps to join her as a respondent. In fact their effort was to get the question of adoption decided behind her back. However, as already held by me above even then the claimants have failed to prove e that Alice had given Ashish in adoption to Lalita Sharma.
30. In view of the above position that Alice was the mother of the deceased and she had not given the child in adoption to Lalita the natural consequence which follows is that she was a necessary party to the petition. She should in fact have been impleaded as a respondent by the Motor Accident Claims Tribunal and notice should have been issued to her. It has been contended on behalf of the Insurance Company that the award should be set aside and the claim petition should be dismissed. Normally the matter should have been remanded to the Tribunal to decide the case after issuing notice to Alice. However, this course need not be followed in the peculiar facts and circumstances of the present case. Alice did not file any claim petition. The amount of compensation awarded appears to be reasonable and in my view justice can be done by properly apportioning this amount and giving Alice her due share in the compensation.
31. Mr. Ashwani Sharma, learned Counsel appearing on behalf of the , Insurance Company contends that Alice being the Class I heir would only be entitled to compensation. He submits that since she is not a party to the petition the claim petition should be dismissed. He has also submitted that the amount of compensation is on the higher side.
32. In my view, the compensation of Rs. L85,000 granted is just and reasonable. Even if a petition had been filed under Section 163-A of the Act the minimum amount payable would have been Rs. 1,64,500.
33. The father Hem Chand may not be a Class-I heir. However, the fact remains that the child was being brought up by him. The child has lived with him throughout his life. Even if the mother was paying for upkeep of the child then also the father was providing moral, financial and emotional support to the child. Normally, a father of a child may not be entitled to compensation on the death of the child or the share of the father in such compensation may be negligible. However, in the present case I feel that the father is entitled to a bigger share of compensation. It is a duty cast upon the Tribunal, to award and apportion compensation in favour of all the legal heirs, even those who are not parties to the petition. Therefore, I apportion the amount of compensation is follows:
(i) Hem Chand Sharma, father: Rs. 1,00,000 (ii) Ms. Alice, mother: Rs. 85,000 Alice is not a party to the petition. The amount is lying in deposit in this Court. From a perusal of the file I find that the address of Alice in the year 1996 was: Mrs. Alice Ram, 1154, Wilson Avenue-911, Down View-ONT, M-3, MIJ-6. Canada..
34. However, since this address is old one and Alice may not be available on this address I direct that at the first instance notices be issued to RW 2 Asha Arora wife of Sh. Tilak Raj Arora, Kathuria Niwas, Sunny Side, Solan and RW-11 Sh. Jagjit Singh, son of Sh. Ranjit Singh, R/o Shopcum-Flat-600, Auto Market, Manimajra, Chandigarh for 25th August, 2005 to provide the latest address of Ms. Alice. The appeal is, therefore, partly allowed and disposed of in the aforesaid terms with no order as to costs.
35. The matter be listed for disbursement of the amount to Ms. Alice on 25th August, 2005.
