ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO. 159 OF APPEAL NO. 159 OF APPEAL NO. 159 OF 1990 1990 1990 1. Sharad Yashwant Joshi (Expired - Deleted) 2. Smt.Usha Sharad Joshi, (Also as the heir of Appellant No.1.) ...Appellants. Vs. 1. Mohamed Yusuf Nasiruddin. (Since deceased by his L.Rs.) 1A. Sayyad Parvez Mohamed Yusuf 1B. Sayyad Duerez Mohamed Yusuf. 2. New India Assurance Co. Ltd. Pune-411 001. ... Respondents. (Orig.Opponents) Mr.P.K.Hushing for the Appellants. Mr.V.S.Gokhale for Respondent No.1. Mr.M.B.Kotak for Respondent No.2. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 4th June, 2008 : 4th June, 2008 : 4th June, 2008. ORAL ORAL ORAL JUDGMENT:- JUDGMENT:- JUDGMENT:- . This is a first Appeal filed by the Appellants wherein the basic submission is that though by amendment after the death of the claimant who was injured due to rash and negligent driving of the matador, as alleged within a six month succumbed to death and thereby his L.Rs., being the parents, the ( 2 ) applicants, prayed for additional compensation though it was initially for the compensation for bodily injury. 2. The only issue which was framed was about the compensation for the bodily injury. There is no dispute, as recorded also in para 12, that the accident took place in the month of October-1982 and after six months in the month of April-1983 Ravindra died. The Court has observed that it is doubtful that Ravindra died due to injury received in the Motor Accident. To that the learned counsel appearing for the Appellant submitted that there is medical evidence on record to show that during this period most of the time the claimant was hospitalized and he was under continuous treatment. The injuries were severe, multiple fractures and even the spine was removed. In my view, this facet just cannot be overlooked to discard the claim of compensation only on the ground that such compensation, if any, can be claimed by the applicants by filing separate application. 3. There is no dispute that the claimants-appellants are the only legal heirs. Initially, the victim himself had filed the compensation application for ( 3 ) bodily injury and after his death, the present appellants being legal representatives prayed for additional compensation because of the death due to rash and negligent driving in question. 4. The findings that Appellants who are the legal representatives not entitled to any compensation on account of the death of Ravindra as both the parents are in occupation; and the son was not doing any kind of service and therefore, they cannot be said to be depending upon the earnings of the Ravindra are unacceptable. The loss of son just cannot be compensated but the findings that the parents are not entitled for the compensation as claimed in the present matter merely because the parents are serving, in my view in the facts and circumstances of the case is not correct, basically when the court observed "they have to file separate claim petition for compensation and then only they will be entitled to receive such compensation". Having once observed this the reasoning of all other grounds, affects the appellants’ rights. 5. The Apex Court in various cases, though in the cases of death of minor who at the relevant time had ( 4 ) no income, yet considered and granted compensation on the foundation, to the extent of Rs.12,000/- to 15,000/- p.a.. I have already taken note of those judgments in Shripat Shankar Panchal Vs. Municipal Shripat Shankar Panchal Vs. Municipal Shripat Shankar Panchal Vs. Municipal Corporation Corporation Corporation for Gr. Bombay, 2007(6) Mh.L.J.478 for Gr. Bombay, 2007(6) Mh.L.J.478 for Gr. Bombay, 2007(6) Mh.L.J.478, while granting the compensation in case of death of 11 years old boy who fell in open man-hole of gutter, by observing negligence of concerned Municipal Corporation. The compensation has been awarded based upon the principle of Motor Accidents Claims those are enumerated in Lata Wadhwa and Ors. Vs.State of Bihar Lata Wadhwa and Ors. Vs.State of Bihar Lata Wadhwa and Ors. Vs.State of Bihar & Ors., AIR 2001 S.C. 3218, H.S.E.B. & Ors. Vs. Ors., AIR 2001 S.C. 3218, H.S.E.B. & Ors. Vs. Ors., AIR 2001 S.C. 3218, H.S.E.B. & Ors. Vs. Ram Ram Ram Nath & Ors. 2004(5) SCC 793 and Manju Devi & Anr. Nath & Ors. 2004(5) SCC 793 and Manju Devi & Anr. Nath & Ors. 2004(5) SCC 793 and Manju Devi & Anr. Vs. Vs. Vs. Musafir Paswan & Anr., 2005(1) TAC 609 (SC). Musafir Paswan & Anr., 2005(1) TAC 609 (SC). Musafir Paswan & Anr., 2005(1) TAC 609 (SC). In these circumstances, therefore, merely because the son was not earning and; the parents were not the dependent by itself cannot be the reason to reject the application/claim filed by the parents-appellants. 6. In view of this, I am inclined to quash and set aside the order to the above extent, maintaining the rest of the order as there was no other point pressed. It is made clear that considering the date of accident and the age of appellant No.1 i.e. mother of the deceased who is as stated, above 75 years old. The ( 5 ) M.A.C.T.Pune, to decide this application preferably within a period of 4 months based on the material and evidence already available on record. 7. The respondents, if not deposited the amount so already ordered, are directed to deposit the same and the appellants claimants are permitted to withdraw the same if not already withdrawn. This amount needs to be adjusted finally. 8. By consent, parties will appear on 25th June, 2008 before the M.A.C.T., Pune. The M.A.C.T., Pune to proceed with the matter based on the authenticated copy of this judgment and order. Office is directed to send the R. & P. forthwith. The certified copy is expedited. 9. In view of this, the present First Appeal is partly allowed. . No costs. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)