IN THE HOI\TBLE±IIGHCOURT OF CHHATTISGARH AT BILASPUR fC.G.) M.A.raNO. |^V OF 200ii 8lsnBgFic& APPELLANTS ^- ....^^-2- ^""^\ •l;^.\^w" .^-y RESPONDENTS Smt. Janak Bai Satnami, Wd/o Birjhu Satnami, aged about 20 years, Minor Satish, S/o Birjhu, aged about 1 month, Through: Guardian/Mother Smt. Janak Bai Both R/o Village-Chutchutiya, Tahsil and Police Station Simga, District Raipur (C.G.) VERSUS 1. Bhanuprasad Manikpuri, S/o ^ Chotelal Manikpuri, R/o Chakarbhata, Police Station Hirri, Tahsil Bilaspur, District Bilaspur (C.G.) (Driver) ^ ^-te% (Truck No. U.P.^^/D-9188) Sl_ 2. Kapil Das Kuldip, S/o Jagdish ^7 ^ Kuldip, R/o Village-Bodri Parsada, Bilaspur, Tahsil and District Bilsapur (C.G.) (Registered owner of truck) 3. The New Indian Insurance Company Limited, Through: Divisional Manager, The New India Insurance Company Limited, Madina Manzil, Kachhari Chowk, Raipur, Tahsil and District Raipur (C.G.) (Insurance Company) ^- ..A^c^ c' '^y^.^ lY^.L^^W£(f^^ r^> ^/' ^4. ^ ^-5. 4 (-6. 9- Smt. Dular Bai, Wd/o Late Pancham Satnami, aged about 53 years, Minor Dhansingh, S/o Late Pancham Satnami, aged about 12 years, -^n-er^^ C^^yi^^ ^)^W ^' ^-^- Minor Ku. Dhaneshwari Bai, D/o Late Pancham Satnami, aged about 9 years, -T^^L^A <h^^^ ^4^L^' (^-^ Respondent No. 4 to 6 are R/o Village-Chutchutiya, Tahsil and District Simga, District Raipur (C.G.) C'aimed before Tribunsl in M.A.C.T. Rs. 7,50,000/- No. 44/2007 6)-|^°& Amount awarded by the learned Claimrejected Tribunal a§ime€l-befe^r-eTribunai -Jn-M-.A;C,T.-Rs/2076-978G8 HQ-.— 45/2007—in—fa-ve-y^-—Gf—noiT-_ ^plteants-no. /1-t-G^-6- Awarded ^^-~^-©J> Rs. 6,27,000/- Court Fee affixed as appeal valued Rs. Rs. 15/- 7,50,000/- MISCELLANESOUS APPEAL UNDER SECTION 173 OFTHE MOTOR VEHICLE ACT, 1988 --^^L-DQ:1QQ8^j3SSSSd_ HIGH COURTOF CHHATTISGARH. BILASPUR CORAM: Hon'bleShri I.M.Quddusi,& Hon'bte Shri Prashant Kumar Mishra. JJ. MAfClNo. 888 of 2009 APPELLANTS Smt. Janak Bai Satnami and another. Versus RESPONDENTS Bhanuprasad Manikpuri and others. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 Appearance: Shri Ashok Soni, counsel for the appellants. Shri Shaktiraj Sinha. counsel for respondent No. 2. Shri DashrathGupta, counsel for respondent No. 3. Shri Anil Singh Rajput, counsel for respondent Nos. 4 to 6. APPELLANTS M.A.tONo. 141 of 2009 SmS. Janak Bai Satnami and another. Vereus RESPONDENTS Bhanuprasad Manikpuri and others. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 Appearance: Shri Ashok Soni, counsel for the appellants. Shri ShakUraj Slnha, counsel for respondent No.2. Shri Deepak Gupta. counsel for respondent No. 3. Shrj Anil Singh Rajput, counsel for respondent Nos. 4 to 6. — ORAL ORDER (04/02^011) Followino oral order of the Court was passed by I.M.Quddusi.J. These are two appeals fii^d against the impugned award dated 11/09/2008 of the Additional Motor Accident Claims Tribunal. Bhatapara, Camp Court, Balodabazar. District Raipur (C.G.) passed in two Claim Case Nos. 44^007 and 45^007. —- — ,€. ).• ..•, :. >i? • <-- ^^ 2. The brief facts of the case are that on 25/08/2006 at about 09:15 a.m. deceased Biijhu Satnami was selljng fruits in his Thela in front of Bus Stand Simoa, at that time truck bearing registration number U.P.-66/D- 9188comino from Bilaspur directionbeing driven rashly and neoligently by non-applicant No.1 dashed the standing Jeep No.C.G.08/ZD-0284 then dashed the Thela of the deceased Birjhu Satnami along with cycle rider Shricharan Yadav due to whteh Mohammad Intaf sitting in the Jeep, Nazu Ali who was deaning the glass ofjeep. Birjhu Satnami and Shricharan Yadav received grievous iryuries. Due to grievous injuries Birjhu Satnami and Nazu Ali died on thespot. Deceased Biijhu Satnami was aged about 22 year and he was working as Labourer and used to earn Rs.4.500/- per month. The claimants have claimed compensation of Rs.7.50,000/-. 3. Claim case No. 44/07 was filed by Smt. Janak Bai Satnami showing herself as the widow of the deceased late Biqhu Satnami as well as on behalf of her minor son who was aged about 1 month at the time of filing the claim petition namely Satish S/o Birjhu Satnami under her guardianship. The other claim case No. 45/07 was filed by the widow mother of the deceased along with his 10 yeare minor brother Dhansingh and 6 years minor sister namely Ku. Dhanmat. 4. In that claim case i.e. 45/07 a dispute was raised on behaff of the widow mother of the deceased that the appellant Smt. Janak Bai Satnami was not married to her son i.e. deceased Biijhu Satnami. 5. The leamedl Tribunal has given the finding that Smt. Janak Bai Satnami was not a legally wedded wife of the deceased and dismissed her claim petition (claim case No.44/07) and allowed the claim petition filed by the mother, brother and sister ofthe deceased i.e. daim case No. 45/07 and awarded Rs.6.27.000/- as compensation along with 6% simple ! i'Y iv. s-s-i 5- y interest per annum from the date of filjng of the daim petition till the payment of the compensation is made. 6. Being aggrieved, the instant appeal has been filed on behalf of Smt. Janak Bai Satnami alleged widow of the deceased and her minor son Satish S/o Biijhu Satnami. 7. We have perused the impugned award and found that no finding has been given aboutthe Jeoitimacyofthe minor child because even ifthe appellant No.1 was not found to be legally wedded wife but appellant No. 2 was born and was the son of the deceased, at least he would be a illegitimate child of the deceased and in such drcumstances, it cannot be said that the claim p©Sjtionwas not maintainable. In view of the fact that Section 166 of the Motor Vehicles Act provides that an application for compensation arising out of an accident of the nature specified in sub- section (1) of Section 165 may be made by all or any of the legal representatives ofthe deceased. 8. 'Legal representatives' has been defined in clause 11 of Section 2 of the C.P.C. as under :- "(11) "legal representative" means a person who jn law represents the estate 6f a deceased person. and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;" i; 9. With regard to the rights of an illegitimate child Section 16 of the Hindu Marriage Act provides as under :- "[16. Legjtimacy of children of void and viodable mamages.- (1) Notwithstanding that marriaoe is null and void under section 11, any child of such mamage who would have been legitimate if the marriage had been valid, shall be -<1- •^ legitimate, whether such child is bom before or after the commencement ofthe Mamage Laws (Amendment) Act, 1976 (68 of 1976). and whether or not a decree of nullity is granted in respect of that mamage under this Act and whether or not the marriaoe is held to be void otherwjse than on a petition underthisAct. (2) Where a decree of nullity is granted in respect of a voidabte mamage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child ofthe parties to the marriage if at the date ofthe decree it had been dissoh/ed insteact of being annulled, shall be deemed to be their legitimate child notwithstandino thedecreeofnullity. (3) Nothing contained in sub-section (1) or sub- section (2) shall be construed as conferrino upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of hjs parents.]" 10. In view of the above, if the appellant No. 2 was an jllegitjmate child. his claim cannot be denied. 11. Besides this, we have found that the learned Tribunal has not paid attention towards the statements and the cross-examination of the witnesses properly. The mother of the deceased,Dular Bai, Wrtness No.1 of the daimants of daim case No.45/07 ha&.stated in her statement that she did not know whether after three months from the date of accktont a son was bom to his son, though, she had denied the mamage with the appellant No.1. The statement was recorded in HJndi. The relevant part of her statement given in cross-examjnation given in paragraph 8 is quoted as below:- "5- yt ^T ^T ^ vtN<oi^ ^rff t. f^? 'g^TT ^ wq ^m» ^ 7 ^ ^ ^ 'it sft | ^T ^T ^RT ^t v\M^ ^ t, f^ ^^1 ^ ^T ^I^ T^TPT ^ ^5T f^^ WFTpft ^T ^ ^T ^rr i" . 12. Another witness No.2 of the mother of the deceased namely Rooplal has alsostated similarly that he had no knowledge about the birth of the son of Birjhu Satnami after three months from the date of accident. Witness No.4 of the appellants No.1 namely Kartikram stated the fact that he was Chhadidar of Satnami Samsu of village Dooariya, whatever marriage is perfonini&d in Satnami Sam^j is always performed with tiis consultation and permission as he was the Chhadidar. He had stated that the appellant No.l's mamage, her elder sister's and brother's marriage all the three marriages w^re performed together. 'Madwa' of all the three was one. The marriage of Janak Bai Satnami appellant No.1 was performed with Biqhu Satnami (deceased) and Birjhu Satnami gave him Rs.80/- as 'Dakshina' and at the time of accklent minor Satish was in womb and was bom after three months from the date of accident. In the cross-examination a suggestion was made on behalf of the claimants of claim case No. 45/07 i.e. mother of the deceased and others that there I ! was some quarrel in the Sasural of Janak Bai Satnami and therefore she came back to her Maika. He denied his suogestion and has stated that she had gone for 'Jachaki' i.e. delivery purpose. Further asugoestion was made that deceased Birjhu Satnami had goneto bring his wife. This suggestion was also denied. It is further stated by this witness that when appellant No.1 did not come a Panchayat was held and separation was made. The said version in the cross-examination on behaff of non- / ^ :'y- -<2,- applicants No. 4, 5 and 6 i.e. claimants of claim case No. 45/07 in paragraph 2 is quoted as under:- ^ ^^T 'TT^T?T t, f^ ^R^? ^ 3R^ <ti^ld ^r ^l^ WTS^ ^^ t3 'TT^ 1 ^?T: ^??TT t, f^> ^"ET^ ^ ^P? ^ sft 1 ^ ^?;TT'TOcT t, ft ft^a!ITrft 1TFft ^4 ^ f^A 'IPTT ®TT 1 ^? ^;TT 'IT^ t, ft ^ ^rft ^ ^ SIT^, (ft Tfirra^ ^cit^i qr. ^5 ^t ^r 1^ sft i" 13. In the case of Jfnla Keoffn and ethers vs. Kumar Sttaram Manjhl and others reported in 2003 (1) SCC 730 the Hon'bte Apex Court has laid down in paragraph 4 as under :- "4. We have carefully considered the submissions of the leamed counsel on either side. The Hindu Mamage Act underwent important changes by virtue ofthe Marriage Laws (Amendment) Act. 1976, which came into force with effect from 27-05-1976. Under the ordinary law, a child for beino treated as legitimate must be born in lawful wedlock. If the marriage itseff is void on account of contravention of the statutory prescriptions, any child bom of such marriage would have the effect, per se, or on being so dedared or annulled as the case may be, of bastardizing the children born of the parties to such marriage. Polygamy. which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an ehd to by the mandate of Pariiament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void7lhus tumed on the act of the parents over which the innocent child had no hold or control. But. for no fault of it, the innocent baby had to suflfer a permanent setback in life and in the eyes of sociely by being treated as illeoitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, SectiiE>n 16 of the Act, i?^~r ^ -7- while engraftino a rule of fiction in ordainjng the children, though illegitimate, to be !! treated as legitimate, notwithstanding that the mamage was void or voidabto chose also to confine its application, so far as succession or inheritance by such children is concemed. to the properties ofthe parents only." 14. Therefore, we are of the opinion that the leamed claims Tribunal have not appreciated the evidence availabte on record and has given finding without discussing the same. It isalso a matter for notice that the matter of tegitimacy is not confined only to mother regarding accident claim. but it has far reaching effect, therefore the same should be decided fairiy. 15. The Tribunal has also committed ilteflality in fixing the quantum as the deceased was treated as bachelor and for personal living expenses only 1/3 has been deducted. 50% should be deducted incase of a bachelor, however in case of marriecl person or having children/child legitimate or illegitimate the situatjon would be different. All these aspect has to be seen by the Tribunal afresh. 16. At this stage, learned counsel for the respondents No. 4, 5 & 6 has '•9 submitted that he has no objection if D.N.A. test of the child is done. 1 " ' • . Learned counsel for the appellants has also submitted that he has no objection but since we are of the opinion that the matter requires '•i reconsideration throughout we are not deciding anything here. However. we are of the opinion that the entire findingis given by the Tribunal in the impugned award are liable to be set-aside. Therefore, we allow these appeals in part. set-aside the impugned award and findino given therein and remitthe matter back to the Tribunal to decide the claim petition afresh. y,-^'_.. -€b- 17. The parties shall be allowed to amend the pleadings. adduce further evidence, file documepts or get documents verified ete. and thereafter the decision shall be taken afresh without beinfl influenced by the findinfls given In the impugned award. 18. The parties'shall appear before the Tribunal on 14th March, 2011. 19. The claim petitjons shall be restored to their original number for the purposeofdecision afresh. 20. The Lower Court Record shall be sent back to the Tribunal without furtherdelay. 21. A copy of this order be placed in the record of M.A.(C) No. 888/2009 and MA.(C) No. 141/2009. 22. Noorderastocosts. ~^~^^—__ Sd/- Sd/- I.M.Quddusi Judge prashaMKaa'^M,^ ?e w 111- i&, ^^m^ :y: