Jammu & Kashmir High Court
Mst. Sakina Begum vs Akbar Shah And Ors. on 10 November, 2002
Equivalent citations: 2003(1)JKJ522
JUDGMENT
1. A claim petition was preferred by Akbar Shah and one Zuliakha under the Motor Vehicle Act. This was with regard to an accident where Ghulam Hassan Shah age 30 years met with fatal injuries. He was travelling in vehicle as an employee of sheep owner whose sheep were being carried in the vehicle. Plea taken by the two claimants was that deceased was earning between Rs. 5000-7000/- p.m. He used to get Rs. 1200/- per trip. In a month he would make 5 to 6 trips. It was in this manner income of deceased was projected in the claim petition at Rs. 6000/- p.m. Total amount of compensation was claimed Rs. 6,40,000/-.
2. Further fact is that on 14.3.1997 an application was preferred by Mst Sakina Begum w/o Mohd Khaleel. She stated that Ghulam Hasan Shah was her son and therefore. She is also entitled to compensation. Statement of facts contained in the application dated 14.3.1997 i.e para 1 and 2 is as under:-
"1. That applicant (petitioner) is mother of the applicant and could not join in petition previously.
2. That applicant request that she be joined as petitioner in the said claim petition and share of her claim be paid to her as the deceased was living with appliant at Karool and alongwith other petitioner and Mst Zulikha wd/o Ghulam Hassan R/o Manzmoh has been wedded outside the family now." On this application a decision was taken on 23.9.1997. So far as respondent company is concerned it did not oppose Mst Sakina Begum being brought on record as claim petitioner. It was of the view that this is a matter between Mst Sakina Begum and other claimants and so far as Insurance company is concerned it was only contesting claims on merit. What was observed by the Tribunal in this regard is being reproduced below:
3. "Application presented in this court on 14.3.1997 by one Mst Sakeena Begum wife of Mohd Khalil R/o Krole Tehsil for impleading as one of the petitioner in this case has not been objected to by counsel for Insurance company and Mr. Saleem Raja Advo. has frankly concerned at bar that it is the matter between the petitioners and has no bearing on his client but his client Insurance company is only interested to contest the claim. Be the facts as they are, as counsel for the petitioners Mr. A.R Mushtaq Advocate has not objected to the petition of Mst Sakeena Begum wife of Mohd Khalil R/o Karole Teh. Ramban the petitioner Mst Sakeen Begum is therefore added as respondent no: 4 in this petition."
4. Issues were framed. These issues are also being reproduced below:
"1. Whether the death of Ghulam Hussain was caused at Place near Heeranagar at National High way on 31.5.96 because of rash and negligent driving of one Truck no: Hr-29-A/7692 by its driver Sohan Singh respondent 3 who was under the employment of respondent no: 2 and the vehicle was insured with respondent No. 1 ?OPP
2. On proof of issue No. 1 to what amount of compensation the petitioners are entitled to and from whom? OPP
3. In what proportion the petitioners and respondent 4 are entitled to compensation? OPP
4. Whether the deceased was a gratuitous passenger and had not paid the fare thus Insurance company is not liable to pay compensation? OPR-1
5. Relief to what the parties are entitled to?
5. Yet another application came to be filed. This was by Sumandar Shah. He stated that Ghulam Hasan Shah was his son and therefore, this factor should be taken note of. He was arrayed as respondent. So far as Sakeena Begum is concerned, Tribunal had directed the office to correct the memo of parties. This correction was not carried out. She was not shown as petitioner. She was required to be shown as petitioner in terms of interim order passed by the Tribunal. Contents of that order have been noticed above. She has been shown as a respondent.
6. Tribunal proceeded to decide the issue. Evidence which has come on the record be taken note of.
One Ahmed Ganai appeared in the witness box and this witness stated that the deceased used to generate income of Rs. 1400/- per trip. He stated that in a month 5 to 6 trips used to be undertaken by the deceased. To the same effect is the statement of Sakina Begum. She appeared in the witness box. She stated that deceased was engaged in the business of taking sheep from one place to other and he used to earn Rs. 6000/- p.m.
7. Even though issue was framed i.e to what was the income of the deceased and what compensation should be paid, Tribunal has not adverted to this aspect of the matter in detail. It is precisely for this reason evidence which has come on the record is being taken note of.
8. In a application preferred by Sakeena Begum she had stated that the deceased was living with her. In addition dependent on the deceased. If this aspect of the matter is taken note of then as a mother of the deceased she is entitled to claim compensation. Further fact is that under Muslim Law concept of adoption is not there. Plea put across by Akbar Shah that he had adopted Ghulam Hasan Shah cannot be accepted. This observation is made for the purpose of this dispute only. As a matter of fact Akbar Shah had abandoned his claim and made statement in this regard before Tribunal. So far as Zuliakha is concerned, she is widow. She has not appealed but she figured in this appeal as a respondent.
9. Learned counsel appearing for the Insurance Company submits that Mst Sakina Begum has no locus standi to file this appeal. In my opinion this argument cannot be accepted. Mst Sakina Begum had preferred an application. She wanted to be arrayed as petitioner. As a matter of fact that Tribunal passed the order that she be arrayed as respondent in the claim petition. She was however arrayed as respondent. Therefore, to say that Mst Sakina Begum has no locus standi to file appeal is an argument which cannot be accepted.
10. So far as merits of controversy is concerned it has come on the record that deceased was engaged in the business of carrying sheep from one place to other. Witnesses who have come on the record have consistently said that the deceased was having income of Rs. 6000/- p.. He was married. Zuliakha was his widow. She has of course re-married. Merely because widow has re-married does not disentitle her to claim compensation. The judicial opinion is to the effect that simply beceause a widow has re-married is not to be made a ground for declinning her compensation. In Hariram and Ors. v. Commissioner for workmen's compensation Act 1994 ACJ 1094 the view expressed was that, the widow on re-marriage cannot be deprived of her rights of getting compensation. In the above case the argument put across was that as the widow had re-married therefore, the entire amount be given to the father of the deceased. It was held that this legal proposition cannot be sustained. The reasoning given was that the inheritance never remains in abeyance and, therefore, rights of a widow are to be taken and recognised on the date when her husband dies. Therefore, she cannot be deprived of her right of getting compensation.
11. The Rajasthan High Court in the case reported as Regal Sports v. Mohd Siddique and Ors. 1994 ACJ 294 held that widow cannot be declined compensation on her remarriage. The amount awarded was Rs 66.420/. This was reduced in appeal to Rs. 50,000/- what is sought to be pointed out is that the widow was held entitled to claim amount of compensation. In Rajasthan State Road Transport Corporation and Ors. v. Kiran Lata and Ors. 1993 ACJ 130 the view expressed was that to deny compensation on the ground of possibility of re-marriage of the widow would be enforcing a view which is against the public policy and would be violative of Section 23 of the contract Act. It was accordingly observed that the question of possibility of re-marriage would not come in the way at all and compensation is not to be based by taking into consideration the question of marriage or possibility of remarriage. In another decision of the Rajasthan High Court reported as Vimla Devi and Ors v. Chaman and Ors. 1992 ACJ 1048 it was held that the denial of compensation is not to be on account of possibility of re-marriage of the widow of the deceased. Some other decision dealing with this aspect of the matter are Rajinder Kumar and Ors. v. Soma Devi and Ors. 2001 ACJ 311; Chandan v. Kanwarlal 1989 ACJ 816; Khairullah v. Anita 1994 ACJ 1017, Nankuram Sarajdin v. member MACT Thane 1994 (2) TAC 346 and Halki Bai v. New Delhi Insurance co Ltd 1999 ACJ 187. The learned Judges in these cases have consistently held that remarriage of a widow would not disentitle her to claim compensation.
12. Another reason which re-enforces the above conclusion is that on re-marriage of a widow the social stigma which stood imposed earlier is not completely washed of. Some negative factors continue to exist and are taken note of in the case of re-marriage of a widow. She may on re-marriage may not enjoy the same status and frame of mind. Re-adjustment when widow has an infant creates other social problem and she has to provide some security to the child or children from the first husband. This factor has to be taken note of. As such a widow on remarriage cannot be deprived of the compensation.
13. So far as income of the deceased is concerned it can safely be concluded that he was generating income of Rs. 5000/-. As he was traveling alongwith truck he must be spending 50% of the amount on himself. This amount is fixed at Rs. 2500/- Monthly dependency for the family is accordingly fixed at Rs. 2500/- Annual dependency has come to Rs. 30,000/- Deceased was 30 years of age. So far as age of the mother is concerned her age is 45 years. Taking into consideration the age of the mother and age of the deceased it would be apt if multiplier of 14 is applied. Amount of compensation would come to Rs.
4,20.000/- As widow has remarried she is entitled to 1/4 of the amount. Rest of the amount would go to mother. Let awarded amount be deposited with the Registrar Judicial of this court. 20% of the awarded amount would be deposited in fixed deposit account for a period of six months and remaining amount of 80% would be deposited in the fixed deposit account for a period of three years. Interest component would be paid to the claimants. Two fixed deposit receipts be prepared and handed over to the claimants after due verification. The widow Zuliakha be informed. Registry to do so. Let awarded amount be deposited with in a period of three months and in case this is not done then claimants would be entitled to interest over and above 3% P.A of awarded interest.