1B ;l":iii 3 i»ai( IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH .0' M.A. No. /2004 APPELLANT DEFENDANT No.3 RESPONDENTS CLAIMANT ^> ^r'K v-'\'~.~'',e^ ^6" /•-:<^'-? ^o' ,^- -^A ^'^ <^"" A'" fi.: ItSC •i'slB>u.?'i] 'SJ .'{^"3^^^ i^i^H •&«?lwN;it?E8 /The Oriental Insurance &Tmr>cLY a^Ctt, <£AAa-< Rl*-<^ Ncay£4-,t^|£mfy P-0.. (\^yfc^u.r »i'-a-)-t &°igS3-. CC-c.,-) VERSUS ^ l./ Chandrawati, W/o.Late Samir Kumar Pal, aged about 35 years Caste Bengali, R/o. Village Bhatgaon, P.S. Pratappur Tahsil Surajpur,Distt. Sarguja (C.G.) 2./ Laxnukantaina, W/o. Late B.Ramdas R/o. Bhatgaon, P.S. Pratappur District Sarguja (C.G.) ^ g:l';iii :is< MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT ft'F-<-^ HI6H COURT OF CHH/kTTtS6ARH_AT^ILASPUR &IVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR.NAWAL KISHORE AGAKWAL. JJ. ^. Appellant Respondents M.A. No.485/2004 The Oriental Insurance Co. Limited Vs .Chandrawati & others Present: Mr. A.K. Athaley, Adv. for the appellant. Mr. P.K. Patel, Adv. for the respondents. QROER (Oral) (24th November. 2010) M. Quddusi, J; 1. Heard. 2. The appellant-insurance company has filed this miscellaneous appeal against the impugned award dated 23.1.2004 passed by thelearned 5 Additional Motor Accident Claims Tribunat (FTC), Surajpur, bistrict Sarguja (for short 'the Tribunat') in Claim Case No.10/2002. 3. Facts of the case, in brief, are that on 23.4.2000 deceased Sameer Kumar Pal was go'ing towards Bhatgaon in Maruti Van of Shri B. Ramdas bearing registration number MP27-&-3232. At about 5.00 p.m. the said vehicle met with an accident near Main Road, Village Baniyagaon, P.S. Kpndagaon, District Bastar and on account of the injuries sustained by Sameer Kumar Pal in the said accident, he died. The claimant claiming herself to be the widow of deceased Sameer Kumar Pal filed a claim petition before the Tribunal seeking compensation of Rs.20,45,000/- on the various grounds, including that she was dependent on the deceased .and on accountofhis death she had suffered loss of income. 4. The appeltant-Insurance Company'filed its written statement before the Tribunal and denied the claim of the claimant. The appetlant Insurance Company has denied the fact that the claimant is widow of : the deceased. It has been further averred that on the date of :, accide.nt. the deceased and said B. Ramdas both were not having valid „1^ .1 ^5U< ):»6B^ .i:t '^ ! "IB jSiSt :- -s^ and effective driving license to drive the vehicle. Since the vehicle was plied in breach of the insurance policy, the Insurance Company is not liable to pay the compensation. 5. Non-applicant No.Z/respondent No.2 did not file her written statement. 6. The Tribunal, on the basis of the pleadings of the parties framed as many as three issues and after hearing the parties in the matter and considering the material brought on record, reached to the conclusion that the claimant is entitled to receive compensationof Rs.5,76,000/- from the npn-applicants, subject to production of succession certificate by the claimant. 7. Learned counsel for the appellant-Insurance Company has submitted that it was the specific plea of the Insurance Company before the Tribunal that the claimant has no locus to file the claim petition as she was not the legally wedded wife of the deceased, rather the deceased was living in the house of the claimant as tenant and in such circumstances, the claim petition of the claimant should not have been qllowed by the Tribunal subject to the conditions of getting succession certificate. 8. On the other hand, learned counsel for respondent No.l has supported the impugned award. 9. We have heard learned counsel fqr the parties and perused the impugned award as also records of the Tribunal belouv. 10. From, perusal of the record it is evident that the claiftant was working in the South EaStern Coalfields Limited. Her service book and other ' rfecordsare mcfintained in the South Eastern Coalfields Limited. She had taken voluntary retiremenf'to get an alternative appointment for her son namely Siva. Non-applicant No.l's witness namely Bhaskar, son of Shri Ayodhya Prasad, who was Typist of the Mines Manager of Dugga Colliery, Bhatgaon Area, has brought service book of the , claimant- Smt. Chandravati and other relevant documents. A perusal of ^iL'o;•-< fc'll the said documents revealed that claimant Smt. Chandravati's date of birth is 02.04.1959, in the service book her husband's name has been mentioned as Hira Sai, she was appointed as 'Piece Rated ©ota-maker' on 2.4.1989 and joined on 27.4.1989. She took voluntary retirement uv.e.f. 13.3.2001 forenoon being a female employee and secured the job for herson namely Siva, in her place, under the scheme. In Form-0 age of her son Siva has been mentioned as 26 years as on 08.08.2000. Particulars of Siva have been given as per documents signed by the Deputy Personnel Manager, Dugga Sub Area, which reads as under;- 11. The affidavit dated 20.1.2007, which was sworn by the claimant before the Notary Public Shri M.K. Mehta of Sitapur, Distr-ict Surguja and filed before the Tribunal, shows the name of husband of claimant Chandrawati as 'Late Hira Sai'. This affidavit has been sworn on 21.7.2000 i.e. much after the death of the deceased who died in the accident takeri place on 23.04.2000. Further, in the form submitted by the claimant for refund of Coal Mines Provident Fund (Ex.D-4), following details have been furnished by the claimant; 1. Name of MAnber; Smt. Chandravati. 2. Father's / Husband name; Hira Sai Similarly in Form-B filled by the claimant and exhibited as Ex.D-6 before the TriBunal, name of the employee has been mentioned as 'Smt. Chandravati' and her husband's name has been mentioned as 'Late Hira 5ai':and to dvoid any confusion the uvords 'father's name' have been "a^^ s"~< 1. Father: 2. Mother Chandrawati 2.4.1959 Widow Service 3. Brother 4. Wife Smt. Shanti Bai, 20yrs Housewife 5. Sister Kum. Guddi, 23 yrs Married Housewife ) Kum. Bifaiya 20yrs Married Housewife 6. Children 1. Ku. Pramila 2. Ku.Usha 04yrs 01 yr Unmarried Unmarried crossed. In the form (Ex.D-7) filled by the claimant for- availing Leave Travel Concession (LTC), the claimant has given following details;- 1. Smt. Chandravati 2. Mr. Siva 3. Smt. Suddi 4. Smt. Bifaiya Self 02.4.1959 Son 01.12.9Z Daughter 16 yrs baughter 12 yrs Self Son baughter Daughter 12. All the above documents make it clear that the claimant was widow of Late Hira Sai and she could not get any success in proving that after the death of Hira Sai, she married with the deceased Sameer Kumar Pal. Further, the affidavit dated 21.7.2000, which is marked as Ex.Dl, shows that the claimant had mentioned her husband's name as 'Hira Sai'. Therefore, if she became the wife of deceased-Samer Kumar Pal, before his accident, she would not have mentioned the name of her husband as 'Hira Sai' in the affidavit sworn on 21.7.2000. This fact suggests that she was not marr-ied uvith the deceased Sameer Kumar Pal. 13. The Tribunal has also not held that the claimant was the legally wedded wife or the legal representative or the legal heirs of the deceased- Sameer Kumar Pal, as defined under Section 2 (11) of the CPC, and without holding so, awarded the amount of compensation, directing disbursement of the amount on submission of succession certificate issued by the competent Court of law. If this analogy is accepted then in every claim case, which does not appear to be genuine, the award would be made and the claimants would be asked to submit succession certificate at the time of filing execution. This practice is bad in law as under Section 166 of the Motor Vehicles Act, 1988 the cloim ^ . / application can be moved only by the person who has sustained the injury; or by the owner of the property; or where death has resutted from the accident, by all or any of the legal representative of the ! ^ ., deceased; or by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may ..be.' Thus, in case pf death if an application seeking compensation is not ^^y made by any of the legal heirs of the deceased, the same cannot be held to be maintainable. Therefore, as soon as the claim petition is filed and the objection is raised from the side of the non-applicant, it is the duty of the Tribunal to find out whether the claim petition is genuine and has been filed by the true legal representative of the deceased or not. If the Tribunal finds that the claim petition has been filed by the legal representative of the deceased only then it can be said that the claim petition is maintainable and the Tribunal may proceed further. 14.In the instant case when the Tribunal could not find that the claim petition was genuine or the claimant was legal representative of the deceased, the tribunal could not have awarded the compensation with the condition that the same can be disbursed only after submission of the succession certificate. Therefore, we are of the opinion that the impugned award is liable to be set aside. 15. For the foregoing discussions, the appeal is allowed and the impugned qyuard is hereby set aside. No orders as to cost—---— icshL..i/- Sd/- I.M. Quddusi Judge Sd/- N.K. Agawaf Judge ^ztXl' s^<