Farzana Abbas Bhai & Another vs M.S.R.T.C. Station Road Nagpur
2016 Latest Caselaw 2032 Bom

    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.

FA-J-199-07 2/10

The 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

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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.

FA-J-199-07 4/10

It 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

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

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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

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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

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

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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

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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