APPELLANT éLAIMANT § Dmawn Bench IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH M.A. NO. -200-‘ ’ Smt Suneeta W1dow of D111p Smgh ‘ aged about 25 years Occupatlon Nothmg, Caste — Sahls R/o Se:th1 Nagar Ra1garh (C.G.) VERSUS RESPONDENTS Anil Kumar, S/o. Amarnath ON—APPLICANTéL Occupation — Jeep Owner, Jeep No. MP26 W1 134, Resident of Histan Fabrication, Near Gopi Talkies, Raigarh, Tahsil and District — Raigarh and near Sindhi Colony, Chakradhar Nagar i a: :iwhu sa; mgw by? . The United India Insurance Company Llmited Through Branch Manager Infront of Gopl Talkles Raigarh (C G ) Preetam Kumar, S/o. Arnar Kumar, Resident of Hindustan Fabrication, Infront of Gopi Talkies, Raigarh, District — Rigarh (c.G.) \/ /. APPEAL U/SEC. 173 OF MOTOR VEHICLE ACT \ IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH Qivision Band M.A. NO. - 200i AERELLANT VifSmt. Suneeta, Widow of Dilip Singh, “v u- *W Al: , ‘ {:5 wnespwndent l NQJ S t Rajkdmart. §/o.suru aged about 2a’ yaat‘s a¢cupation aaumwige a/o. pannrt Plant @ehaiA and mgtrict n'aigazh gaa.) >rJ i)? 1 HIGH COURT OF CHHATTISGARH, BILASPUR MISC. APPEALS UIS 173 OF THE MOTOR VEHICLES ACT, 1938 APPEARANCE: Mrs. Hamida Siddiqui, counsel for the appellants. Mr. H. B. Agrawal, Sr. Advocate with Mrs. Meexa Jaiswal, counsel for respondent No.2. Mr. Rohit Dueby, counsel for respondents 1 8n 3. ORDER {ORAL} (08.12.2010) per LM. QUDDUSI, J, 1. This appeal. has been nled by the claimants against the award dated 11.10.2004 passed by the IV Addl. Motor Accident Claims Tn‘bunal (Irma), Raigarh, (co) in Claim Case No.29] 2002 dismissing the claim of the appellants. 2. Brief facts of the case as per the version of the claimants are that appellant no.1 Sunita is wife and appellant No.2 Rajkumaii is sister of the deceased. On 20.06.1997, the deceased was driving the Vehicle bearing Regn.No. M.P. 26- Wl-l 136, which met with an accident, as a result of which, he died. According to the claimants, respondent no.1 Anil Kumar was the owner of the said vehicle as he obtained it on Supardnama. At the time of accident, the deceased was aged about 28 'vears and he was working in Hindustan DB: HON’BLE LM. QUDDUSI & PRASHANT KUMAR must-IRA, JJ, M. A No. 974 OF 2005 APPELLANTS‘ l I Smt. Sunita and another l Vs. RESPONDENTS J T Anil Kumar and others 1 Fabrications at Gopi Talkies, Raigarh which belongs to one Ammath, father of respondent no.1 Anjl Kumar. He was earning Rs.3800/— per month. The claimants being dependents of the deceased have med Chaim petition for the ’ awaid to the tune of Rs.15,30,000/— as compensation on van‘ous heads. Respondent no.1 in his written statement admitted that the deceased was driver of the od'ending vehicle. Respondent no.2/Insmance Company has also admitted in its written statement that the odending vehicle was insured with them and the said vehicle has met with accident due to negligence of the deceased. The learned Claims Tribunal has dismissed the' claim petition on the ground that Appellant No.1 is not the legitimate wife of the deceased and appellant no.2 is the matried sister of the deceased. The Tribunal vide Paxas 24 85 25 has held that appellants Smt. Sunita and Smt. Rajlmmari are not the legal heirs, therefore, they are not dependents of the deceased. It has further held that appellant no.1 in her deposition has stated that she has a child born nom the deceased and in such a case, the child and mother of the deceased, if she is alive, being legal heirs as also dependents of the deceased, would be entitled for compensation. It has also held that the deceased was aged about 28 years and was-earning Rs.2000/— per month. Thus, after deducting Rs.700]- towards personal expenses, the monthly income was assessed as Rs.1300/— and the annual loss of dependency was worked out to Rs.15,600]¥. By applying multiplier 18, the total loss of dspendency was calculated as Rs.2,80,800/-. Besides this, Rs.5000/— for loss of lava and £cction to the child; Rs,5000/ - for loss of love and a§ection to the mother of deceased and Rs.2000/- for funeral expenses eta, thus a total sum of Rs.l2,000/~ has been estimated under the other heads. Accordingly, the Tribunal has opined that the dependents of the deceased are entitled to Rs.2,92,000/-. 5. Learned counsel for the appellants submits that the Tribunal was not justified in denying the claim made by appellant no.1 merely on the ground that she is not a legally wedded Wife of the deceased. 6. We have heard leaxned counsel for the parties and have also perused the records 7. Though appellant no.1 as a claimant claimed herself to be the Wife of the deceased, but in her statement she admitted that she was not legally wedded wife and her maniage was not performed in the open society. She has further stated that in fact her marriage was performed at Budhi Mai temple in Raigarh and the people ham the side of her husband including her mother-in—law, her husband’s elder brother (Jedi) and his wife Hetham') etc., were present but no one was present from the side of her caste] community. At the time when she med claim petition, she was pregnant and at the time of tiling of this appeal, she is having a baby who was aged about about l 1/2 years. Besides this Raj Kumari (A.W.2) who was the real sister of the deceased stated in her 7/ cross examination that Sum'ta was the wife of her brother. / s 8. In sub-section (1) of section 166 of the Motor Vehicles Act, 1988, it has been provided that an application for compensation arising out of an accident of the nature specined in sub—section (1) of section 165 may be made by the person who has sustained the injury; or by the owner of the property; or Where death has resulted &om the accident, by all or any of the legal representatives 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. Further a proviso has been added that Where all the legal representatives of the deceased have not joined in any such application for compensation, the applicah'on shall be made on behalf of or for the beneht of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as proper parties to the application. 9. Now the position is that the appellant no. 1 is having a child who is the daughter of the deceased. Therefore, at this stage, we cannot say that she is an illegih‘mate daughter in view of the decision of Hon’ble the Supreme Court in S.P.S. Ba‘basubramanyam Vs. Suruttayan, 1992 Supp. (2) SOC 304, wherein it has been held that if a man and Woman are ,living under the same roof and cohabiting for a number of years, there will be a presumption u/s 114 of the Evidence Act, that they live as husband and wife and the children born to them will not be illegitimate. In the instant case, though it is alleged that appellant no. 1 is not legally wedded wife of the deceased, but presumption u/s 114 of the Evidence Act can be made as she was cohabih'ng with the §\ deceased for a long 11'me and consequently, a child was also born. Therefore, certainly the child will also be cnh'tled to get ompensation subject to the findings of the Tribunal. In View of the above, we areof the opinion mat instead of Eing a‘ separate main petition on behalf of the child, it would be appropriate to remit the matter back to the Tribunal for decision anesh after allowing the appellant no.1 to add the name of the child as claimant under her guardianship. c % 16. Therefore, we allow this appeal in part; award and remit the matter back to the Tribunal for decision anesh. The Tribunal shall allow appellant no. 1 to join her child as claimant no.2. Further the parties shall be allowed to amend the pleadings, adduce further evidence, if any, flle r the documents or get the documents veiihed etc., and thereafter it shall decide the claim petition a&esh at the earliest in light of the observations made herein above. The parties shall appear before the Tribunal on 07th of Feb. parties 2011. The records of the Tribunal shall be sent back without further delay. i.M.QS:é-dusli i ”as“ " Judge " T a Prashant Kumar Mishra (7‘ ’ " ’ Judge Rao . t