1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. FIRST APPEAL NO. 1195 OF 2009 (Dwarkabai Sitaram Ingle and another .v. Prakash Tukaram Jadhao and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri A.S. Jaiswal, Advocate for the appellants. Ms. Ujwala Nandeshwar, Advocate for the respondent Nos.1 and 2. CORAM : A.H. JOSHI AND PRASANNA B. VARALE, JJ. 05TH JANUARY, 2010. 1. Heard Shri A.S. Jaiswal, the learned Counsel for the appellants and Ms. U.M. Nandeshwar, the learned Counsel for the respondent Nos.1 and 2. 2. By the present appeal, the appellants (respondent Nos.3 and 4 in the MAC Petition No. 221/2003) are challenging the judgment and order passed by the learned Chairman, Motor Accident Claims Tribunal, Buldana in MAC Petition No. 221/2003, The brief facts giving rise to the present appeal are summarized as under :- 3. The MAC Petition No. 221/2003 was filed by one Prakash Jadhav and Pooja Prakash Jadhav (the original claimants and respondent Nos.1 and 2 in the present appeal). The said claim petition was filed for seeking compensation in regard to death of Sunita wife of Prakash Jadhav (respondent No.1) and the mother of Pooja (respondent No.2), who was travelling on one jeep on 20.08.2003. 4. The said vehicle (jeep) was driven by the driver in negligent manner who ultimately lost control over the vehicle resulting the vehicle to overturn. Sunita succumbed to the injuries on the spot. 5. The Motor Accident Claimns Tribunal vide judgment and order, dated 18.11.2008, allowed the application partly and directed the opponent No.1, to pay an amount of Rs.10,45,632/- (rupees ten lacs forty five thousand six hundred and thirty two only) as compensation to 2 claimants on fault basis. The amount of Rs.50,000/- already paid to claimants on no fault liability was to be deducted and balance amount of Rs.9,95,632/- (rupees nine lacs ninety five thousand six hundred and thirty two only) be paid to claimants with interest thereon at the rate of Rs.7.5% per annum from the date of application till realization. The Tribunal further directed that the liability of opponent No.2 to indemnify opponent No.1 is limited to the extent of Rs.1,00,000/- only and out of the amount of compensation, an amount of Rs.4,00,000/- (rupees four lacs only) each be invested in the name of claimant Nos.1 and 2, in any Nationalized Bank of the choice of claimant No.1. 6. The appellants in the present appeal got impleaded themselves in the proceedings before the Motor Accident Claims Tribunal by filing an application. The application was allowed by the Tribunal and they were joined as opponent Nos.3 and 4 in the proceedings. 7. The main grounds of challenge by the appellants before the Tribunal as well as before this Court are :- (i) That the deceased Sunita was not wife of respondent No.1 Prakash Jadhav. Deceased Sunita was their daughter who was married to one Waman Gawai. As the relations between their daughter Sunita and Waman Gawai were strain, she was not residing with Waman and was residing with them; (ii) That, the respondent No.1 Prakash was married to another lady having same name i.e. Sunita and taking benefit of similarity in the name, the respondent No.1 lodged a false claim for compensation; (iii) That the Tribunal has not appreciated the facts of the matter in proper perspective and only on the ground of one succession certificate which was issued in favour of respondent No.1 Prakash Jadhav in the proceedings i.e. Succession Case No. 13 of 2004, the learned Tribunal allowed the claim. (iv) The learned Tribunal has failed to appreciate that the appellants have filed an application under Section 383 of Indian Succession Act for revocation of the succession certificate in the 3 proceedings bearing Succession Case No. 22 of 2005; and (v) The learned Civil Judge, Senior Division, Buldana erred in issuing the succession certificate in favour of respondent No.1 Prakash by ignoring the fact that there was no publication issued and as such, the appellants were unable to contest the claim of issuance of succession certificate. 8. We have gone through the impugned judgment and considered the contentions raised by the appellants. 9. The judgment clearly mentions that the publication as required in the succession certificate proceedings was done. Any objection was not raised. The documents along with the affidavit were placed before the Court. The appellants were not successful in the Succession Case No.22/2005 by which the revocation was sought. 10. It is clear that the present appellants could not establish that the succession certificate was issued without adopting the required procedure and have taken a somersault and raised a ground before this Court as follows. (Ground No.O, page No.12 of the paper book is quoted for ready reference). “(O) That, Ld. Trial Court further failed to appreciate that in Succ. Case No. 13/2004 the Respondents No. 1 and 2 had fraudulently given the public notice in local news paper which had very less publication and was not at all widely circulated and very few copies were printed and hence could not be said to be a valid and a legal notice thereby complying with the provisions of the Act.” 11. It makes sufficiently clear that the present appellants are taking an altogether new ground before this Court by submitting that the public notice was issued in local news paper which had very less publication and had no wide circulation. Perusal of the order passed by the learned Civil Judge, Senior Division, Buldana in Succession Case No. 13/2004 and order passed by the learned Civil Judge, Senior Division, Buldana in Succession Case No. 22/2005 clearly established that the requirement of giving publication was duly followed by the respondent 4 No.1 and as such the ground raised by the appellants in the present appeal before this Court is clearly afterthought attempt which is unsustainable. 12. The other ground raised by the appellants is that the respondent No.1 is not the husband of Sunita and he had married to another Sunita and by taking benefit of the similarity in the name, the claim petition was filed. We find from the record that the respondent No.1 submitted before the Tribunal that he had married to one Sunita daughter of Sudam Hiwale on 13.05.2004 and his marriage with Sunita (daughter of the appellants) was solemnized on 11.06.2001. 13. It was further submitted by the respondent No.1 that his marriage with daughter of Sudam Hiwale was in the month of May, 2004 which was after the death of Sunita. On the contrary, there was no material whatsoever was placed by the present appellants in support of their claim. 14. The appellant No.1 in his cross examination admitted that the respondent No.2 Pooja was born on 04.04.2002 in one Kothari Hospital at Chikhli and in the birth register of the Municipal Council, the name of father is recorded as Prakash. It is also not in dispute that the learned Tribunal has observed by virtue of Section 15(1)(a) of Hindu Succession Act, 1956, respondent Nos.1 and 2 are the legal heirs of Sunita and the present appellants are not the legal heirs and as such respondent Nos.1 and 2 are entitled to receive compensation being legal representative of deceased Sunita. 15. On considering the material placed on record as well as the impugned judgment and order passed by the learned Tribunal, Buldana as well as the order passed by the learned Civil Judge, Senior Division, Buldana in the proceedings of Succession Case No. 13/2004, we find that there is no error committed by the Courts below in appreciating the facts as well as the evidence. The grounds raised by the appellants that the succession certificate was issued by the learned Civil Judge Senior Division, Buldana without issuing paper publication is unsustainable. 16. In view of the aforesaid facts, we see no infirmity nor any reason to interfere in the judgment and order passed by the learned 5 Motor Accident Claims Tribunal, Buldana. In the result, the appeal is dismissed. JUDGE JUDGE *rrg.