: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 787 OF 2009 Anita Govind Birmule & Anr. .. Appellants V/s. Santosh Narayan Gaikwad & Anr. .. Respondents ..... Mr. T.J. Mendon for the appellants None for the respondents ..... CORAM : R.Y. GANOO, J. DATE : 3rd JULY, 2009. P.C. : 1. The appellants instituted claim under the Motor Vehicle Act being application NO.1869 of 2001 before the Motor Accident Claims Tribunal, Mumbai on account of death of one Mr. Amol S. Rane. The learned Member of the Tribunal by his judgment and award dated 10 th February, 2009 dismissed the claim against the said order of dismissal the present appeal is filed. 2. The appellants No.1 claims to be the Aunt of the : 2 : deceased whereas the appellant No.2 claims to be Grandmother of the deceased. The learned Member dismissed the claim on the ground that parents of the deceased have not been joined as parties and that there was no mention in the application as regards the parents whatsoever. 3. The learned advocate Mr. Mendon by placing reliance on Section 166 of Motor Vehicle Act contended that appellant No.1 the Aunt and appellant No.2, the Grandmother can be treated as heirs of the deceased and that they had right to file the claim and hence the claim was maintainable. The learned advocate Mr. Mendon appearing on behalf of the appellants across the bar stated that the parents of the deceased had deserted the deceased and whereabout of his parents are not traceable. This statement made across the bar is not borne out by the record in as much as in the application there is no reference to this. Even in the evidence, there is no specific reference that the parents of the deceased have deserted the deceased long back and there whereabout are not known. : 3 : 4. After having considered the entire record, I am inclined to observe that the learned Member was right in dismissing the award on two counts; i. If it was to the knowledge of the appellants that parents of the deceased are alive, it was necessary for the appellants to join those parents either as applicants or as respondents. ii.It was also necessary for the appellants to establish their relationship with the deceased when the appellants claim that they are the heirs of the deceased. A mere assertion that appellants are the heirs of the deceased in the nature of Aunt and Grandmother by itself is not sufficient. In my view, when the appellants knew that the parents of the deceased are alive but they are not available ,it was necessary for the appellants to join them as party defendants. Absence of that clearly goes to show that the appellants wanted to snatch the order from the Court behind the back of the parents. 5. It was argued that the appellants were dependent upon the deceased and the parents were not much concerned with the deceased that argument cannot be : 4 : accepted because the parents of the deceased will have the right to recover the compensation. In my view, the present application filed by the appellants was not with bonafide intention to secure compensation. In my view, it was done with a view to seek compensation behind the back of the parents in such a case the learned Member arrived at proper conclusion which cannot be interfered with in this appeal. 6. Before I part with the judgment, since the appellants claim that they were dependent upon the deceased and since the appellants know that the parents of the deceased are alive, it would be appropriate and in the interest of justice to allow the appellants to join those parents as applicants / respondents and then prosecute the application so that the parents may be able to remain present before the Court to agitate their claim. In view of the above, first appeal is dismissed by passing following order. ORDER . In the facts and circumstances, no interference is required in the impugned judgment. In my view, the judgment delivered by the learned Member dated 10 th : 5 : February, 2009 stands confirmed on the technical point that the application can be rejected for not joining the parents of the deceased. It will be open for the appellants to file a fresh petition for claim by joining the parents of the deceased as party applicants / respondents. There shall be no orders as to costs. (R.Y. Ganoo, J.)