1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.305 OF 2009 Mohar Appa Mule Appellant/orig. claimant No.1. vs Shaikh Khaja s/o Respondents/ Nos. Shaikh Rashid and others. 1 & 2 ori.Resps. Nos.1 & 2. Nos.3 & 4 are original claimants 2 & 3. ---- Shri Abhijit Chaudhary, Advocate, holding for Shri D.J. Chaudhary, Advocate, for the appellant. Respondent No. 1 is absent, although served. Shri A.G. Kanade, Advocate, for Respondent No. 2. Shri B.R. Kedar, Advocate, for Resp. Nos.3 and 4. Quorum: Shrihari P. Davare,J. Date : 24.01.2011. P.C. 1. Learned Advocate for the appellant states that the present appeal is restricted only in respect of apportionment of the amount and not for enhancement of the compensation awarded. The said statement is accepted and taken on record. 2. It is seen from the proceedings that notices of the present appeal were issued to the respondents, stating that the matter would be heard finally at the admission stage 2 itself, by order dated 20.4.2009. Accordingly, the matter is taken up for final hearing at the admission stage itself. 3. Present appeal has been preferred by original claimant No.1, challenging the judgment and award dated 15.7.2008, rendered by the learned Member, Motor Accident Claims Tribunal, Ambajogai, in Motor Accident Claim Petition No.39 of 2005, only to the extent of directions regarding apportionment of the awarded amount, amongst original claimant Nos. 1 to 3. 4. Admittedly, by the impugned judgment and order, an amount of Rs.3,32,500/- was awarded to original claimant Nos.1 to 3 towards compensation, from original respondent Nos.1 and 2 jointly and severally (inclusive of Rs.50,000/= as NFL amount), as well as orig. Respondent Nos. 1 and 2 were directed to pay interest to original claimants at the rate of 8 per cent per annum from the date of petition till realization, and costs of the petition. Moreover, directions were also issued that out of the compensation amount awarded, 30 per cent amount, costs and interest be paid to original claimant No.1 (appellant herein) inclusive of amount paid to her under the interim award, under Section 140 of the Motor Vehicles Act, by issuing cheque in her favour, and remaining 70 per cent of the compensation 3 amount, costs and interest were directed to be paid in equal proportion to claimant Nos.2 and 3 (Respondent Nos.3 and 4 herein), after making necessary deductions of the amounts paid to them under interim award passed under Section 140 of the Motor Vehicles Act, by issuing separate cheques. Moreover, it was also directed that out of the compensation amount payable to appellant-claimant No.1, a sum of Rs. 25,000/= be kept in Fixed Deposit in the name of claimant No.1 for the period of three years and the balance amount be paid to her by cheque. Being aggrieved by the apportionment of 30% of compensation amount, cost and interest awarded to orig. claimant No.1-appellant has preferred present appeal. 5. Appellant-orig.claimant No.1 is widow of the deceased Appa Mule and respondent No.3 Pralhad Bhanudas Mule and respondent No.4 Vijayamala Pralhad Mule (orig. claimants No.2 and 3) are the parents of the said deceased Appa. Admittedly, Appa Mule was travelling as passenger in Eicher Canter bearing No.MH-04/8731 from village Kothi to Koregaon, on the relevant day i.e. 17.9.2005, which turned and turtled and Appa Mule sustained injuries and succumbed to it on 19.9.2005, in Apex Hospital, Latur. Said vehicle was insured with respt. No.2-Insurance company. Hence, orig. claimants filed claim petition bearing No.39/2005 and claimed total 4 compensation of Rs.4.50 lakhs from respondent No.1 (owner of the vehicle,but restricted the claim to Rs.4.00 lakhs only. 6. Respondents filed their written statements and resisted the claim petition filed by the claimants. 7. Based upon the pleadings, the learned Member of the Tribunal framed the issues and after considering the evidence adduced and produced by the parties, partly allowed the said claim petition No.39 of 2005 by impugned judgment and award dated 15.7.2008, and awarded total compensation of Rs.3,32,500/=, interest and costs as aforesaid, to original claimants and directed apportionment thereof as mentioned hereinabove. 8. Heard learned counsel for the respective parties. It is the contention of the learned counsel for the appellant that the appellant (orig. claimant No.1) has remarried after the aforesaid accident. However, it is submitted that although the appellant has remarried, she continues to be the legal representative of her deceased husband Appa Mule, since the right of succession accrues immediately on the death of her husband and in the absence of any provisions of law, she cannot be divested from the properties vested in her, merely because of her remarriage. 5 9. On the face of said position, Shri Kedar, learned counsel appearing for respondent No. 3 and 4 (original claimant Nos. 2 and 3-parents of the deceased Appa Mule), submitted that after remarriage, appellant herein (orig.claimant No.1), is dependent upon her second husband and, therefore, considering her dependency, learned Member of the Tribunal has awarded 30 per cent of the total amount of compensation to her, and remaining 70 per cent was awarded to original claimant Nos. 2 and 3. Learned Counsel for Respondent nos. 3 and 4, therefore, submitted that the Tribunal has adopted a balanced view and hence, no interference is warranted in the impugned award, in this appeal. 10. Considering the rival submissions, admittedly the appellant (original claimant No.1) has remarried after the death of her first husband and, therefore, she is dependent upon her second husband, but still she continues to be legal representative of her deceased husband and right of succession accrues in her favour immediately after death of her first husband and in the absence of any legal provision, she cannot be divested of her right in the property, due to remarriage. Considering the said aspect and also considering the dependency, I am of the view that the learned Tribunal 6 has adopted a balanced approach in apportioning 30 % of the compensation amount to her, after considering the evidence on record and also after considering the case law cited before it and consequently, awarded balance 70% of the compensation amount to original claimant Nos. 2 and 3 i.e. parents of deceased Appa Mule, which appears to be reasonable and appropriate apportionment of the awarded amount. 11. In the facts and circumstances, having comprehensive view of the matter, there appears to be no error in the view adopted by the learned Tribunal, which is a possible view, after assessing evidence and considering the legal position, and hence, same cannot be faulted with, and consequently, no interference therein is warranted, in the appellate jurisdiction, and therefore, present appeal deserves to be dismissed. 12. In the result, present appeal, which is sans merits, stands dismissed. No costs. (SHRIHARI P. DAVARE, J.) pnd/fa305.09