{1} fa220310.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2203 OF 2010 1 Sheema w/o Rajkumar Rohinkar, age: 41 years, Occ: Household; 2 Rushikesh s/o Rajkumar Rohinkar, age: 20 years, Occ: Education, 3 Nitesh s/o Rajkumar Rohinkar, age: 17 years, minor, under guardian of real mother Sheema Rajkumar Rohinkar. 4 Dropadi d/o Venkoba Zinjurde, (Rohinkar), age: 63 years, Occ: Household; All R/o Shastri Nagar, Parbhani, Tq. & District Parbhani. Applicants Versus 1 Dadasaheb s/o Yasinsaheb, age: major, Occ: Business, R/o Kolha, Tq.Pathri, Dist.Parbhani. 2 United India Insurance Co.Ltd., through its Branch Manager, Dayawan Complex, Station Road, Parbhani, Tq. & Dist.Parbhani. 3 Smt.Rajashree w/o Rajkumar Rohinkar, age: 40 years, Occ: Household, R/o Manwat, District Parbhani. 4 Rupesh s/o Rajkumar Rohinkar, age: 18 years, Occ: Education, R/o Manwat, Dist. Parbhani. {2} fa220310.odt 5 Ku.Shushrusha d/o Rajkumar Rohinkar, age: 15 years, minor, under guardianship of real mother Smt.Rajashree Rajkumar Rohinkar, R/o Manwat, District Parbhani. Respondents Mr.M.P.Kale, advocate for appellants. Mr.S.V.Kulkarni, advocate for respondent no.2. Mr.K.B.Jadhav, advocate for Respondents No.3 to 5. Respondent No.1 served. CORAM : R.M.BORDE, J. DATE : 22 nd July, 2011 ORAL JUDGMENT: 1 Heard learned Counsel for respective parties. Appeal is admitted and taken up forthwith for final hearing by consent of learned Counsel for respective parties. 2 Appellants – original claimants are raising exception to the judgment and award dated 31.07.2010, passed by Member, Motor Accident Claims Tribunal, Parbhani in M.A.C.P. No.119/2006. Claimants/appellants are objecting the award only so far as distribution of the amount of compensation amongst legal heirs of deceased Rajkumar. 3 Claimant no.1 Sheema has two minor sons Rushikesh and Nitesh and claimant no.4 – appellant no.4 is the mother-in-law of claimant no.1 Sheema. Respondent No.3 – Rajashree is the second wife of deceased Rajkumar, whereas, Respondents No.4 and 5 – Rupesh and Shshrusha are son and daughter born to Respondent No.3, out of her relations with deceased Rajkumar. Deceased Rajkumar was serving as {3} fa220310.odt Police Constable with Parbhani Police and was getting monthly salary of Rs.9000/- per month. At the time of death, he was 41 years of age. It is stated that on the fateful day i.e. on 24.02.2006 at 8.30 p.m., deceased was proceeding from Manwat to Sailu on his motorcycle bearing Registration No.MH-22-E-3122. Wen he reached near Swami Samarth Ginning Mill on Manwat-Parbhani road, one Minidoor bearing Registration No.MH-22-1300 came from opposite direction and gave dash to the motorcycle which deceased was riding. As a result of impact, deceased sustained multiple injuries and died on the same day. 4 The claimants claimed compensation to the tune of Rs. 11,52,000/-. After recording evidence of the parties, the Tribunal came to he conclusion that the claimants are entitled to receive compensation to the tune of Rs.10,70,000/-. The Tribunal directed that claimant no.1 shall be paid an amount of Rs.2,23,600/-, whereas a sum of Rs. 2,06,600/- shall be paid to claimants no.2, 3 as well as respondents no.4 & 5 each. The Tribunal further directed that sum of Rs.20,000/- be paid to claimant no.4 – appellant no.4. The amount of compensation was directed to be paid along with interest @ 6% p.a. from the date of claim petition till realisation of the amount. The Tribunal also directed that the amount payable to claimants no.2 and 3 and respondents no.4 and 5 be invested in Fixed Deposit till they attain the age of majority. 5 Appellants herein have not disputed quantum of compensation awarded by the Tribunal, however, challenge raised in the appeal is only in respect of distribution of amount amongst appellants and respondents. It is the contention of appellants – original claimants that claimant no.1 – appellant no.1 is legally wedded wife of deceased and {4} fa220310.odt she herself and her two sons as well as mother of deceased are only entitled to receive the amount of compensation. Respondent No.3, being the second wife and respondents no.4 and 5, being son and daughter born to Respondent No.3 out of illegitimate relations with deceased Rajkumar, are not entitled to receive any share in the amount of compensation. 6 Learned Counsel appearing for the respondents, however, has supported the order passed by the Motor Accident Claims Tribunal. 7 Section 8 of the Hindu Succession Act prescribes general rules of succession in the case of males. The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter, firstly, upon the heirs, being the relatives specified in Class I of the Schedule. It cannot be disputed that appellants no.1 to 4 as well as Respondents no.4 and 5 are the heirs specified in class I of the Schedule. Respondent no.3 - the second wife, her marriage being void, is not entitled to receive any share in the compensation amount. So far as distribution of shares amongst class I heirs is concerned, it would be governed by Section 10 of the Hindu Succession Act, 1956. It is provided that the property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the rules i.e. – the intestate’s widow, or if there are more widows than one, all the widows together, shall take one share. The surviving sons and daughters and the mother of the intestate shall each take one share. Respondent No.3, being the second wife, her marriage with deceased being void and as such, cannot be treated as widow of deceased. Respondents No.4 and 5, being the son and daughter of deceased born out of his relations with Respondent No. {5} fa220310.odt 3, are entitled to receive one share each along with all the claimants – appellants. 8 Reliance can be placed on the judgment of the Apex Court in the matter of Rameshwari Devi Vs. State of Bihar & others, reported in 2000 (4) ALL MR 237. In para 14 of the judgment, it is observed thus: “14 It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of a void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves firstly on heirs in clause (1) which include the widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain Lal being void. The sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, the legal position when a Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which is governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned Single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.” 9 Considering the ratio laid down by the Apex Court in the {6} fa220310.odt judgment cited supra and on consideration of the provisions of Sections 8 and 10 of the Hindu Succession Act, 1956, I am of the view that the directions issued by the Tribunal in respect of distribution of shares amongst members of the family is erroneous and liable to be corrected. The Tribunal, instead of awarding one share to the mother i.e. claimant no.4 – appellant no.4 herein, has merely awarded a sum of Rs.20,000/-. Appellant no.4 – claimant no.4, being mother of deceased, is a heir specified in Class I of the Schedule and is entitled to have one share along with sons, daughters and widow of the deceased. Thus, claimants no.1 to 4 as well as respondents no.4 and 5 are entitled to have one equal share each in the amount of compensation determined by the Tribunal. 10 The direction contained in clause (03) of the operative order passed by the Tribunal, is quashed and set aside and in its place, it is directed that claimants - appellants herein as well as Respondents No.4 and 5 shall be entitled to have one share each in the amount of compensation determined by the Tribunal and the said amount shall be disbursed accordingly. Rest of the part of the award passed by the Motor Accident Claims Tribunal, Parbhani, on 31.07.2010 in M.A.C.P. No. 119/2006, shall remain undisturbed and stands confirmed. 9 Appeal is, thus, partly allowed. In the facts and circumstances of this case, there shall be no order as to costs. Civil Application No.14249 of 2010 does not survive and stand disposed of. R.M.BORDE JUDGE adb/fa220310