{"id":175327,"date":"2008-07-29T00:00:00","date_gmt":"2008-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kj-vs-rn-on-29-july-2008"},"modified":"2017-09-27T16:48:57","modified_gmt":"2017-09-27T11:18:57","slug":"kj-vs-rn-on-29-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kj-vs-rn-on-29-july-2008","title":{"rendered":"Kj vs Rn on 29 July, 2008"},"content":{"rendered":"<div class=\"docsource_main\">Gujarat High Court<\/div>\n<div class=\"doc_title\">Kj vs Rn on 29 July, 2008<\/div>\n<div class=\"doc_author\">Author: H.K.Rathod,&amp;Nbsp;<\/div>\n<pre>   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/1509\/1983\t 10\/ 10\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 1509 of 1983\n \n\n \n\n\n \n\n \n=========================================================\n\n \n\nKJ\nPRAJAPATI - Appellant(s)\n \n\nVersus\n \n\nRN\nMALECK &amp; 6 - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nDD VYAS for\nAppellant(s) : 1, \nNone for Defendant(s) : 1 - 2. \nMR BR SHAH for\nDefendant(s) : 3, \nMR AV TRIVEDI for Defendant(s) : 4 -\n7. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 29\/07\/2008 \n\n \n\nORAL\nORDER<\/pre>\n<p>1.\tHeard<br \/>\nlearned advocate Mr. Vyas appearing on behalf of appellant ?<br \/>\nPrajapati Kanchanben Jagjivandas and learned advocate Mr. Sunil B.<br \/>\nParikh for learned advocate Mr. B.R. Shah appearing on behalf of<br \/>\nNational Insurance Company Limited. Learned advocate Mr. A.V. Trivedi<br \/>\nis appearing on behalf of respondents No.4 to 7. Though respondents<br \/>\nNo.1 and 2 are served, but, no appearance is filed by them, who are<br \/>\nprobably driver and owner.\n<\/p>\n<p>2.\tLearned<br \/>\nadvocate Mr. Vyas submitted that two Claims petitions were filed.<br \/>\nMACP No.206 of 1981 was filed by present appellant and another MACP<br \/>\nNo.273 of 1981 was filed by mother and brothers of deceased. Both the<br \/>\nclaim petitions are decided by the Claims Tribunal, Surendranagar by<br \/>\npassing common award. Learned advocate Mr. Vyas raised contention<br \/>\nbefore this Court that Tribunal has committed gross error in awarding<br \/>\ncompensation between the widow, mother and brothers of the deceased.<br \/>\nHe also submitted that under the Hindu Succession Act, a widow and<br \/>\nonly mother of the deceased are covered by Class-I category as per<br \/>\nSection 8 of the Hindu Succession Act. Therefore, the brothers of the<br \/>\ndeceased are not covered by definition of legal representations of<br \/>\ndeceased. He also raised contention that the amount is not equally<br \/>\ndistributed by the Tribunal amongst the widow, mother and brothers of<br \/>\nthe deceased. He submitted that Claims Petition filed by widow<br \/>\nclaiming Rs.50,000\/-, but, Tribunal has awarded only Rs.10,000\/- in<br \/>\nfavour of widow i.e. present appellant, Rs.13,400\/- awarded to mother<br \/>\nof the deceased and Rs.5,000\/- awarded to each brother of the<br \/>\ndeceased. Learned advocate Mr. Vyas submitted that this apportionment<br \/>\nmade by Tribunal is contrary to law and therefore, present appeal is<br \/>\nfiled. He further raised contention that Tribunal has committed gross<br \/>\nerror by not considering the loss of consortium, funeral expenses,<br \/>\nfuture prospects and apportionment between the parties and 16<br \/>\nmultiplier is also on lower side. He relied upon one decision of<br \/>\nKarnataka High Court in case of Smt. Parvathamma and etc. v. C.<br \/>\nSubramanyam and Others reported<br \/>\nin AIR 2000 Karnataka 309,<br \/>\nwhere, Division Bench of Karnataka High Court has examined that claim<br \/>\nfor compensation cannot be maintained by second wife of deceased<br \/>\nwhose marriage with deceased was void. He relied upon para 14 and 15<br \/>\nof the said decision. He also relied upon the decision of Apex Court<br \/>\nin case of <a href=\"\/doc\/794650\/\">Smt. Manjuri Bera v. Oriental Insurance Company<br \/>\nLimited.<\/a> reported in AIR<br \/>\n2007 SC 1474, where, the Apex<br \/>\nCourt has held that married daughter of deceased though found as<br \/>\ndependent on deceased is entitled to compensation because she is<br \/>\nlegal representatives under Section 166. He also raised contention<br \/>\nthat question of legal representative is to be considered on the<br \/>\nbasis of provisions made in the Code of Civil Procedure, 1908.\n<\/p>\n<p>3.\tLearned<br \/>\nadvocate Mr. Parikh appearing on behalf of Insurance Company<br \/>\nsubmitted that all the claimants are family members. They both have<br \/>\nfiled claim petitions which are decided by Tribunal while passing<br \/>\ncommon award. Learned advocate Mr. Parikh raised contention that<br \/>\nwhatever the contention raised by learned advocate Mr. Vyas before<br \/>\nthis Court in appeal, none of the contention was raised by claimant<br \/>\nbefore the Tribunal. The Tribunal has considered the question in<br \/>\ndeciding the quantum where entire facts have been discussed by the<br \/>\nTribunal in Para 21 and Tribunal has given specific reason that why<br \/>\nthis kind of apportionment made between the legal heirs of the<br \/>\ndeceased. The reason has been specifically dealt with by Tribunal in<br \/>\nPara 21. Therefore, relevant discussion in Para 20 and 21 made by<br \/>\nTribunal is quoted as under :\n<\/p>\n<p>?S20.\t\tThe<br \/>\nnext question that would arise for consideration would be about the<br \/>\nquantum. The evidence shows that the deceased was about 25 to 26<br \/>\nyears of age. The case put up by the applicants in the respective<br \/>\npetition is that the deceased was earning Rs.300\/- per month and that<br \/>\nhe was provided food, clothes, etc., by his Sheth, namely<br \/>\nHemchandbhai Naranbhai. As Hemchandbhai Naranbhai is not examined,<br \/>\nthere is no thing to show what was paid to the deceased, by him, and,<br \/>\ntherefore, looking to the age of the deceased, the income of the<br \/>\ndeceased is estimated at Rs.300\/- per month, as he was doing labour<br \/>\nin preparing sweet-meats at the place of Hemchandbhai. The deceased<br \/>\nmay be spending Rs.100\/- on his ownself and, therefore, the<br \/>\ndependency would come to Rs.200\/- per month and that would come to<br \/>\nRs.2,400\/- per annum. The deceased was about 26 years of age. So the<br \/>\nmultiplier of 16 years&#8217; would be applicable and the amount would come<br \/>\nto Rs.38,400\/-. To this, the applicants are also entitled to<br \/>\nRs.5,000\/- by way of loss of expectation of life of the deceased<br \/>\nJagjivan and, therefore, in all the applicants are entitled to<br \/>\ncompensation of Rs.43,400\/-.\n<\/p>\n<p>21.\t\tIn<br \/>\nclaim petition No.273\/81, the applicant in the widow of the deceased<br \/>\nwhile in claim petition No.206\/81, the applicants are the mother and<br \/>\nthe brothers of the deceased. Both the claim petitions are<br \/>\nconsolidated and disposed of by a common award and the amount is<br \/>\napportioned amongst the applicants as per the final award. But<br \/>\naccording to Gangaben, the mother of the deceased, Kanchanben, the<br \/>\nwidow of the deceased and applicant in claim petition No.273\/81, was<br \/>\nnot residing with her son and she had only stayed for 15 days and had<br \/>\ngone away and that she and her three sons were maintained by her<br \/>\ndeceased son and they had also incurred after the obsequious<br \/>\nceremonies of her son. At the same time, she has admitted that<br \/>\nKanchan is at the place of her parents. She has no children and she<br \/>\nhas not remarried still. In the light of this, the amount that is<br \/>\nawarded to the applicants shall have to be apportioned as under, as<br \/>\nthe applicants are awarded compensation of Rs.43,400\/- with interest<br \/>\nat the rate of six percent per annum from the date of the pauper<br \/>\napplications till realisation with proportionate costs and,<br \/>\ntherefore, the claim petitions are partly allowed and the following<br \/>\naward is passed:?S<\/p>\n<p>4.\tThe<br \/>\nbrief facts of the present appeal is that on 22nd February<br \/>\n1981, the tractor bear No.GTJ-9788 of the ownership of opponent No.1<br \/>\nwas carrying the marriage party from Kherva to Nagadka, the said<br \/>\ntractor had dashed with the husband of the applicant who died. The<br \/>\nevidence of Kanchanben is recorded at Exh.20. She is the applicant in<br \/>\nClaim Petition No.273 of 1981. According to her, the deceased<br \/>\nJagjivan was her husband and she was married with her husband only<br \/>\nseven years before the accident. After her marriage, they were<br \/>\nresiding at Village Charadava. Her husband was serving at the place<br \/>\nof Hemchanbhai Naranbhai and was getting Rs.300\/- per month. Her<br \/>\nhusband was provided meals of Hemchandbhai Naranbhai. The evidence of<br \/>\nGangaben Madhavjibhai in Claim Petition No.206 of 1981 that applicant<br \/>\nNo.2 to 4 are her sons and Jagjivan was her elder son, he was serving<br \/>\nat the place of Hemchandbhai Naranbhai. The deceased had resided<br \/>\nhardly 15 days with her wife ?  present appellant Kanchanben and she<br \/>\nwas often gone away to her parental house as she wanted divorce from<br \/>\ndeceased and her deceased son had never maintained the appellant. The<br \/>\nTribunal has examined the FIR produced at Exh.25 and also Panchnama<br \/>\nand relevant papers and come to conclusion that when Jagjivan was<br \/>\ngoing on motor cycle towards Nagadka Village and motor cycle was<br \/>\ndashed with the tractor by opponent No.2 when in the tractor,<br \/>\nopponent No.2 was carrying the marriage party of Jat Rasukkhan<br \/>\nAlikhan of Village Kherva. The Panchnama was produced at Exh.26 and<br \/>\nTribunal has rightly come to conclusion that because of the<br \/>\nnegligence of the tractor driver, accident occurred. The tractor<br \/>\nowner has also not tendered any evidence. The insurance policy is<br \/>\nproduced at Exh.35 which covered the period of accident. The accident<br \/>\noccurred by opponent No.1 during the course of his employment as a<br \/>\ndriver. Therefore, in light of this background, Tribunal has awarded<br \/>\nRs.10,000\/- to Kanchanben ?  present appellant, because, she wanted<br \/>\ndivorce from the deceased and was not residing with her husband and<br \/>\nshe remained only 15 days with deceased in seven years of<br \/>\nmarriageable life. Therefore, the present appellant was not<br \/>\nmaintained by her husband.\n<\/p>\n<p>5.\tIn<br \/>\nlight of the aforesaid evidence, the apportionment made by Tribunal<br \/>\ngranting Rs.10,000\/- in favour of appellant is reasonable amount<br \/>\nwhich cannot consider to be in any manner unreasonable. The present<br \/>\nappeal is filed challenging the award passed in MACP No.273 of 1981<br \/>\nand not challenged the award passed by Claims Tribunal in MACP No.206<br \/>\nof 1981. Therefore, the contention raised by learned advocate Mr.<br \/>\nVyas challenging the apportionment in favour of claimants of Claim<br \/>\nPetition No.206 of 1981 cannot entertained by this Court. When<br \/>\nappellant was not maintained by deceased and only residing together<br \/>\nfor 15 days in a span of marriageable life, this being a reasonable<br \/>\ncompensation. It is necessary to note that in petition filed by<br \/>\nmother of the deceased being MACP No.206 of 1981, the present<br \/>\nappellant was not a party to the proceedings and in claim petition<br \/>\nfiled by widow ?  present appellant, the rest of the claimants of<br \/>\nMACP No.206 of 1981 were also not joined as a party. Therefore, two<br \/>\nseparate claim petitions filed by respective claimants and not joined<br \/>\nas a party either of claimant in their claim petition. Now, appellant<br \/>\nhas no right to challenge the apportionment made by Tribunal in<br \/>\nfavour of mother and three brothers of deceased. Therefore,<br \/>\ncontention raised by learned advocate Mr. Vyas cannot be accepted and<br \/>\ntherefore, same is rejected. The decisions relied upon by learned<br \/>\nadvocate Mr. Vays are totally not applicable to the facts of this<br \/>\ncase.\n<\/p>\n<p>6.\tThe<br \/>\nTribunal has after come to conclusion that income of the deceased is<br \/>\nestimated at Rs.300\/- per month, as he was doing labour in preparing<br \/>\nsweet-meats at the place of Hemchandbhai.  The deceased may be<br \/>\nspending Rs.100\/- on his own self and therefore, the dependency would<br \/>\ncome to Rs.200\/- per month and that would come to Rs.2,400\/- per<br \/>\nannum. The deceased was about 26 years of age. So, the multiplier of<br \/>\n16 years&#8217; would be applicable and the amount would come to<br \/>\nRs.38,400\/-. To, this, the applicants are also entitled to Rs.5,000\/-<br \/>\nby way of loss of expectation of life of the deceased Jagjivan and<br \/>\nafter the death of husband, mother of deceased, Kanchanben &#8211; widow of<br \/>\ndeceased was not residing with her son and she had only stayed for 15<br \/>\ndays and had gone away and that she and her three sons were<br \/>\nmaintained by deceased and they had also incurred after the<br \/>\nobsequious ceremonies of the deceased. At that occasion, mother of<br \/>\ndeceased had admitted that Kanchanben is at the place of her parents.<br \/>\nShe has no children and she has not remarried still. In light of<br \/>\nthese factual background, Tribunal has taken sufficient care by<br \/>\ngiving opportunities to claimants and it cannot consider to be an<br \/>\nunreasonable in any manner the apportionment made by Tribunal. To the<br \/>\nquestion of loss of consortium, funeral expenses, future prospects<br \/>\nand apportionment which was argued now by learned advocate Mr. Vyas.<br \/>\nOnly 15 days, the widow of deceased remained with deceased. The<br \/>\nquestion of loss of consortium does not arise. For the funeral<br \/>\nexpenses future prospects, no such submission was made by lawyer of<br \/>\nclaimant before the Tribunal. The Tribunal has considered the income<br \/>\nand 1\/3 deduction and Rs.5,000\/- for lost of expectation of live of<br \/>\nthe deceased ?  Jagjivan and after considering the entire discussion<br \/>\nmade by Tribunal, according to my opinion, after all, it is a<br \/>\nreasonable amount of compensation awarded by Tribunal which cannot<br \/>\nconsider to be in any manner arbitrary and based on whims. Therefore,<br \/>\nthe contentions raised by learned advocate Mr. Vyas before this Court<br \/>\nfirst time when it was not raised before the Tribunal at the relevant<br \/>\ntime though advocate was engaged by appellant before the Tribunal.<br \/>\nTherefore, in such circumstances, the contentions raised by learned<br \/>\nadvocate Mr. Vyas cannot be accepted and hence, rejected.\n<\/p>\n<p>7.\tThe<br \/>\ndecisions which have been relied upon by learned advocate Mr. Vyas<br \/>\nare not applicable to the facts of this case as the appellant has<br \/>\nfiled separate claim petition and all the legal heirs have filed<br \/>\nseparate claim petition, for that, question of legal heirs in the<br \/>\npetition filed by mother and brother does not arise and present<br \/>\nappellant has no right to challenge that claim petition, where, she<br \/>\nwas not a party to claim petition filed by mother and brothers of<br \/>\ndeceased.\n<\/p>\n<p>8.\tThe<br \/>\naward passed by Tribunal in the claim petition in favour of mother<br \/>\nand brothers, no separate appeal is filed by present appellant. The<br \/>\npresent appellant challenged the award passed by Tribunal in her<br \/>\nclaim petition only and cannot have legal right to challenge the<br \/>\naward passed by Tribunal in case of mother and brothers, for that,<br \/>\nseparate appeal is necessary.\n<\/p>\n<p>9.\tTherefore,<br \/>\nthere is no substance in the present appeal. Accordingly, present<br \/>\nFirst Appeal is dismissed with no order as to costs.\n<\/p>\n<p>[H.K.\n<\/p>\n<p>RATHOD, J.]<\/p>\n<p>#Dave<\/p>\n<p>\t\t   \u00a0\u00a0\u00a0<\/p>\n<p>\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Gujarat High Court Kj vs Rn on 29 July, 2008 Author: H.K.Rathod,&amp;Nbsp; Gujarat High Court Case Information System Print FA\/1509\/1983 10\/ 10 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1509 of 1983 ========================================================= KJ PRAJAPATI &#8211; Appellant(s) Versus RN MALECK &amp; 6 &#8211; Defendant(s) ========================================================= Appearance : MR DD VYAS [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-175327","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Kj vs Rn on 29 July, 2008 - Free Judgements of Supreme Court &amp; 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