Bombay High Court
Farzana Abbas Bhai & Another vs M.S.R.T.C. Station Road Nagpur on 29 April, 2016
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
FA-J-199-07 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.199 OF 2007
1. Farzana d/o Abbas Bhai
Aged : 34 years, Occ. Nil
2. Shoeb s/o Abbas Bhai,
Aged : 29 years, Occ. Business,
Both r/o Bohra Masjid,
Macchisath, Itwari, Nagpur. ... Appellants.
-vs-
Maharashtra State Road
Transport Corporation,
Station Road, Nagpur. ... Respondent.
Shri Asghar Hussain, Advocate for appellants.
Shri S. R. Charpe, Advocate for respondent.
CORAM : A.S.CHANDURKAR, J.
Date on which judgment is reserved : 1st April, 2016.
Date on which judgment is pronounced : 29th April, 2016
Oral Judgment :
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.
::: Uploaded on - 02/05/2016 ::: Downloaded on - 03/05/2016 00:00:31 ::: FA-J-199-07 2/10The 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 Exhibit-34 that Haroon was getting income from agricultural lands. By relying upon the judgment of the ::: Uploaded on - 02/05/2016 ::: Downloaded on - 03/05/2016 00:00:31 ::: FA-J-199-07 3/10 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.
::: Uploaded on - 02/05/2016 ::: Downloaded on - 03/05/2016 00:00:31 ::: FA-J-199-07 4/10It 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.2-Iqbal Hussain and it ::: Uploaded on - 02/05/2016 ::: Downloaded on - 03/05/2016 00:00:31 ::: FA-J-199-07 5/10 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 Exhibit-19. 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 Exhibit-18 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 Exhibit-34. He deposed that field survey ::: Uploaded on - 02/05/2016 ::: Downloaded on - 03/05/2016 00:00:31 ::: FA-J-199-07 6/10 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 Exhibit-39. 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 ::: Uploaded on - 02/05/2016 ::: Downloaded on - 03/05/2016 00:00:31 ::: FA-J-199-07 7/10 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 vis-a-vis 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 ::: Uploaded on - 02/05/2016 ::: Downloaded on - 03/05/2016 00:00:31 ::: FA-J-199-07 8/10 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 ::: Uploaded on - 02/05/2016 ::: Downloaded on - 03/05/2016 00:00:31 ::: FA-J-199-07 9/10 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 no-fault 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 " no-fault 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 ::: Uploaded on - 02/05/2016 ::: Downloaded on - 03/05/2016 00:00:31 ::: FA-J-199-07 10/10 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 Asmita ::: Uploaded on - 02/05/2016 ::: Downloaded on - 03/05/2016 00:00:31 :::