1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 133 of 1989 CHAMPA LAL V/S SOHAN SINGH Mr. BHAGAT DADHICH for Mr. MRIDUL JAIN, for the appellant / petitioner Mr. ANIL VYAS for Mr. SD VYAS, for the respondent Date of Order : 7.2.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- This appeal has been filed by the owner of the vehicle seeking to challenge the award of the Motor Accident Claims Tribunal, Bikaner dt. 18.5.1989 in Motor Accident Claim No. 24/1980 awarding a sum of Rs. 75,000/- as compensation. The facts of the case are that on 14.2.1980 the truck in question was being driven on Pugal Road, and hit the deceased resulting into his death. The claim petition was filed which was contested by filing reply practically denying all the pleadings of the claim petition, and pleading that the deceased himself was negligent which resulted into accident. The learned Tribunal framed three issues; issue no.1 related to the question of negligent driving of the truck resulting into accident, while issue 2 no. 2 related to quantum, and the issue no. 3 was about the relief. During trial the claimant who is the father of the deceased had appeared himself as A.W.1, and examined the eye witness Baga Ram A.W.2. While the appellant had appeared in the witness box as N.A.W. 1. Various documents including Post Mortem Report, F.I.R., Site Inspection Note etc. have been produced on record. The learned Tribunal decided all the three issues in favour of the claimant, and passed the award of Rs. 75,000/- as above. The only contention raised before this Court is that though the deceased was of 10 years of age but then as has come in the pleading and the claim petition that the deceased was married, and therefore, his wife could have filed the claim petition, and in any case, she was required to be impleaded as party, and without impleading her the claim petition is not maintainable. Reference in this regard was made to the proviso of Sub-section (1) of Section 166. On the other hand, learned counsel for the claimant supported the impugned judgment, and submitted that the claimant is a legal representative within the meaning given in Section 1-A of the Fatal Accidents Act, and it was not necessary to implead her as party so as to entitle the appellant to have dismissal of the claim, and the claimant being father is also one of the persons 3 entitled to compensation. I have considered the submissions, and find that the learned Tribunal has considered this question in para-8 while deciding issue no.1, and has found that there is no legal authority for the proposition that the claim in such circumstances would not be maintainable, as in any case the claimant is one of the legal representative, and entitled to claim compensation. I may gainfully quote the provisions of proviso which reads as under:- “166. Application for Compensation.-(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made- (a)... (b)... (c)... (d)... Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. Of course, this language of the proviso requires that if all the legal representatives of the deceased have not joined in any application for compensation, the 4 application shall be made on behalf of or for the benefit of all the legal representatives of the deceased, and the legal representatives who have not so joined shall be impleaded as respondent, but then this proviso, in my view, does not have the effect of shutting down the claimant from maintaining the claim together. Here peculiar facts are, that the deceased was aged 10 years who too was unfortunately married. Obviously, when his widow cannot remarry, the father of the deceased could claim compensation on her behalf also. Of course, her rights could be protected. Learned counsel for the appellant was pointedly asked to show any judgment of any Court, which may have taken the view in his favour, i.e. in favour of the non- maintainability of the claim, in absence of all the legal representatives, but he could not cite any one. Since this is the only contention raised, I do not find any force in the appeal, the same is, therefore, dismissed. The parties shall bear their own costs. ( N P GUPTA ),J. /sushil/