Hasina Begum vs Lekhram
2022 Latest Caselaw 3130 Chatt

                                    1

                                                                  NAFR


           HIGH COURT OF CHHATTISGARH, BILASPUR
                           MAC No. 827 of 2018
                      Order reserved on : 22/02/2022
                     Order Pronounced on : 29/04/2022
   1. Hasina Begum, W/o Rashid Khan, Aged About 55 Years,

   2. Farida Bano, D/o Vajir Ahmed Khan, Aged About 19 Years,

      Both are R/o Ward No.18, Mata Bhadrakali Ward, Bazarpara
      Bemetara, Tehsil & District Bemetara, Chhattisgarh.

                                                         ---- Appellants

                                 Versus

   1. Lekhram, S/o Purshottammal Sahu, Aged About 31 Years, R/o
      Mahamaya Para, Arang, P.S. Arang, District Raipur, Chhattisgarh.

   2. Raju Pal, S/o Tokaram Pal, Aged About 27 Years, R/o Paragaon,
      Arang, P.S. Arang, District Raipur, Chhattisgarh (Owner).

   3. New Indian Insurance Company Limited 2nd Floor, R.D.A. Building,
      Bajrang Market, G.E. Road Raipur, District Raipur, Chhattisgarh
      (Insurance Company.

                                                        ---- Respondents

For Petitioner : Mr. Shobhit Koshta, Advocate. For Respondent No. 3 : Mr. Priyanshu Gupta, Advocate

Hon'ble Smt. Justice Rajani Dubey, Judge CAV Order 29/04/2022

1. Appellants/claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act') challenging the impugned award dated 31.03.2018 passed by the Motor Accident Claims Tribunal District Bemetara,

Chhattisgarh (hereinafter referred to as 'Claims Tribunal') in Motor Accident Claim Case No.5 of 2017 whereby learned Claims Tribunal rejected the application filed under Section 166 the M.V. Act, 1988 on the ground that Appellants/claimants have not proved that they are legal representatives of deceased (Fahim Khan).

2. Brief facts of the case are that on 22.11.2016, deceased Fahim

Khan along with one Viru Dhimar after completing their work, was

returning from Pikri to Bemetra on Motorcycle bearing

Registration No. CG-25-1563. On the way, one Hiva vehicle

bearing registration No. CG04/H.R./3954 came from the opposite

side which was being driven by respondent No.1 in a very rash

and negligent manner and dashed the deceased and his co-

worker due to which deceased Fahim Khan died and Viru Dhimar

sustained grievous injuries. After the death of Fahim Khan his

grand-mother (appellant No.1) and sister(appellant No.2) filed the

claim case before the Claims Tribunal.

3. Learned Claims Tribunal after appreciating the oral and

documentary evidence finds that the accident occurred due to

rash and negligent driving of respondent No.1 but dismissed the

appellants' claim on the ground that the appellants did not prove

that they are the valid legal representatives of the deceased.

Hence, this petition filed by the appellants.

4. Learned counsel for the appellants submits that the learned

Claims Tribunal has committed an error in not considering the

evidence of Hasina Begum (AW-1) who has stated in her

evidence that at the time of birth of deceased, his father left his

mother and when he was 4 years old, his mother left him with her

grand-mother (appellant No.1) and since then, he was living with

his grand-mother and sister. Learned Claims Tribunal has

committed an error in not considering the evidence of Kadar Jani

(AW-2) who has stated in his evidence that deceased was living

with the appellants and they were dependants of deceased.

Jareena Yadav (AW-3) has also stated that she is the biological

mother of deceased and left him with appellant No.1 and

thereafter, she married other person but the learned Claims

Tribunal failed to consider the fact that as per Ex.P/2 (Ration

Card), deceased was shown as grandson of the appellant No.1.

He further submits that the word "legal representative" as used in

Section 166 of Motor Vehicle Act has a wider connotation and

does only include other person also who was Dependant on the

deceased. The appellants successfully proved that they are

Dependants of the deceased. Learned Claims Tribunal did not

appreciate the oral and documentary evidence in proper manner,

therefore, impugned award is liable to be set aside. He has placed

reliance on the judgment rendered by the Hon'ble Supreme Court

in the matter of N. Jayasree and Others Vs. Cholamandlam Ms.

General Insurance Company Ltd. reported in 2021 SCC

OnLine SC 967.

5. Learned counsel for the respondent has supported the impugned

award and submits that the learned Claims Tribunal has rightly

dismissed the claim of the appellants.

6. Heard counsel for the parties and perused the material available

on record.

7. Before the Claims Tribunal, appellant No. 1 Hasina Begum has

been examined as AW-1 and she has filed ration card (Ex.P/2)

and Kadar Jani (AW-2) has stated that the appellant No. 1 Hasina

Begum is the grand-mother of deceased Fahim Khan and he has

also stated in para 9 of his cross-examination that, to his

knowledge there is no successor of the deceased Fahim Khan

other than Hasina Begum.

8. Jareena Yadav (AW-3) has also stated in her statement that

deceased Fahim Khan was her son and appellant No. 1 Hasina

Begum is his grand-mother and Fahim Khan was living with her

grand-mother Hasina Begum.

9. Learned Claims Tribunal on the basis of evidence of Jareena

Yadav (AW-3) and documents produced by her, reached to a

conclusion that appellants have failed to prove their claim but the

learned Claims Tribunal did not appreciate the Ration Card

(Ex.P/2). In the Ration Card, name of Fahim Khan is written in

column No. 3 and it was mentioned as grandson of Hasina

Begum. Hon'ble Supreme Court in the matter of N. Jayasree and

Others Vs. Cholamandlam Ms. General Insurance Company

Ltd. reported in 2021 SCC OnLine SC 967 has held in Paras 18

& 19 as under:-

18. In the instant case, the question for consideration is

whether the fourth appellant would fall under the

expression 'legal representative' for the purpose of

claiming compensation. In Gujarat State Road Transport

Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai

and Anr. reported in (1987) 3 SCC 234 this Court while

considering the entitlement of the brother of a deceased

who died in a motor vehicle accident to maintain a claim

petition under the provisions of the MV Act, held as under:

"13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110A to 110F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110A of the Act have to be done in accordance with well- known principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread- winner of the family and if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhagujri reported in AIR 1977 Guj 195 and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110A of the Act if he is a legal representative of the deceased."

19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and Ors.reported in (2007) 10 SCC 715 it was held that:

"7. ...12. As observed by this Court in Custodian of Branches of Banco National Ultramarino v. Nalini

Bai Naique reported in 1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir, competent to inherit the property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai reported in (1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."

10. Looking to the above principles of Hon'ble Apex Court and facts

of the present case, it is clear that the appellants have produced

oral and documentary evidence before learned Claims Tribunal

which was not rebutted by the respondents or any other person.

The Ration Card (Ex.P/2) was not challenged by the respondents

or any other competent authority but the Claims Tribunal did not

rely upon the oral and documentary evidence in its proper

perspective. Learned Claims Tribunal has framed 3 issues which

are as under:-

क.                                 ववाद प्रश्न                                  ननष्करर
1.   क्यवा नदनवानांक 22-11-2016 कक नदन कक कररीब 12:20 बजक गवाम नपिकररी मम        सवानबत

ननांदववानवा आरवा नमल कक सवामनक थवानवा बकमकतरवा ककत मम अनवावकदक क. 1 लकखरवाम सवाहह नक ववाहन हवाईववा कमवानांक सरी. जरी./04/एच.आर. /3934 कक तकजरी और लवापिरववाहरीपिपूवरक चलवातक हह ए मकटरसवाइनकल क. सरी. जरी. 25/1563 कक ठककर मवार नदयवा, जजसकक फलस्वरूपि उक ववाहन पिर सववार फईम खवान कक गनांभरीर चकट आनक सक उसकक ममृत्यय हक गई हह ?

2. क्यवा अनवावकदक क. 1 कक दवारवा बरीमवा पिपॉजलसरी कक शतर नां कक उलनांघन मम सवानबत नहह

ववाहन चलवायवा जवा रहवा थवा? यनद हवानां तक क्यवा बरीमवा कनांपिनरी कनतपिपूनतर हकतय उत्तरदवायरी नहह हह?

3. य र टनवा मम फईम खवान कक हह ई ममृत्यय कक कवारण आवकदकगण, क्यवा उक दघ सवानबत नहह अनवावकदकगण सक कनतपिपूनतर रवानश 76,80,000/- र. पिवानक कक अजधिकवाररी हह ? यनद हवानां तक नकस अनवावकदक सक नकस सरीमवा तक ?

Respondents did not contest or file any cross-appeal, therefore, findings

related to issue Nos. 1 & 2 are final but the findings related to issue No.3

is not sustainable, therefore, findings are set aside the case is remitted

back to the concerned Claims Tribunal with this direction to ascertain the

income of the deceased and decide the dependency and fix the

compensation which has to be given to the Dependants of the deceased

according to principles laid down by the Hon'ble Supreme Court and

award the compensation in favour of the appellants.

11. Accordingly, the petition is allowed with above direction.

Sd/-

(Rajani Dubey) Judge

Ruchi