HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.: 460 of 2005 Reserved on: 8.1.2010 Decided on: 23.2.2010 Prem Chand and another ………Appellants. Versus Parveen Kumar and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellants: Mr.Baldev Singh, Advocate. For respondents No.1 & 2: Mr.Himmat Negi, Advocate. For respondent No.3: Mr.Narinder Sharma, Advocate. V.K. Ahuja, J: This is an appeal filed by the appellants under Section 173 of the Motor Vehicles Act, hereinafter referred to as ‘the Act’, against the award passed by the learned Motor Accident Claims Tribunal Una, dated 29.8.2005, whereby the claim petition filed by the petitioners (present appellants) was partly allowed. Briefly stated the facts of the case are that the petitioners filed a claim petition under Section 166 of the Act for the grant of compensation in regard to the death of Ram Asra, their brother, aged about 65 years. 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - The monthly income of the deceased was alleged as Rs.5,000/-. The occupation of the deceased was mentioned as barber. It was alleged that the deceased died in an accident that took place when he was coming back in the bus bearing No.HP 39A 2555, being driven by the driver, namely, Joginder Singh, who also died in the said accident, which took place on 29.4.2002 at 2.45 a.m., at Lambi Dhar Galu near Kufri. The petitioners filed the claim petition claiming that they are the brothers of the deceased and as such, are entitled to the grant of compensation. Respondents No.1 and 2, who were the registered owners of the bus in question denied the allegations of rashness or negligence and they pleaded that the accident took place due to the damaged retaining wall which gave way. Respondent No.3 also i.e. the Insurance Company also denied the allegations. The petition was tried by the learned Tribunal and on conclusion of the trial, the learned Tribunal held that the petitioners were entitled to a sum of Rs.65,500/- in all. This included Rs.50,000/-, the minimum compensation payable under Section 140 of the Act, Rs.10,000/- as the funeral expenses, Rs.3,000/- for bringing the body from the hospital and Rs.2,500/- on account of loss of estate. Being aggrieved by the less amount awarded as compensation, the petitioners filed the present appeal. I have heard the learned counsel for the parties and have gone through the record of the case. - 3 - The submissions made by the learned counsel for the petitioners were that according to the decision of the Apex Court in Mahant Shyamdas vs. Lalaram M.Kori and others, 2008 ACJ 1783, in which the question which arose for consideration was whether a brother can be considered as a legal representative and is entitled to claim compensation for the death of his deceased brother. A perusal of this decision shows that their Lordships had considered the question if the brother can be termed as dependant under the provisions of the Motor Vehicles Act and whether such an application can be filed by him. This clearly shows that the petitioners were entitled to file the petition for the grant of compensation. However, it has not been laid down that they are not required to prove that they were dependant on him and as such are entitled to the grant of compensation. It follows from the above discussion that the petitioners were competent to file the petition for the grant of compensation being legal representative, but they have to allege and prove that they were dependant upon the deceased, in which the petitioners have failed to prove miserably. The petitioners simply alleged that they are the brothers of the deceased and as such the present petition has been filed by them in regard to the compensation. However, they did not allege or prove that they were dependant upon him suffering from any disability or for any other reason and in the absence of proof that they were dependants upon the deceased, the petitioners - 4 - were not entitled to the compensation keeping in view the income of the deceased. The learned Tribunal had considered this question in para 14 of its judgment and had observed that there being no proof of the petitioners being dependants upon the deceased, they are only entitled to the grant of general damages, besides the minimum statutory compensation of Rs.50,000/-. A perusal of the statement made by one of the petitioners as PW-5 shows that he simply alleged that the deceased was his brother but did not state, in any manner, that he was dependant upon the deceased. He admitted that he was an Ex Serviceman and retired from Army, which suggests that he must be getting pension from the Army. The petitioners did not allege or prove in any manner that they were dependants upon the deceased and as such they are not entitled to any enhanced compensation, as prayed by them. In view of the above discussion, it follows that there is no merit in the appeal filed by the appellants, which is dismissed accordingly, with no order as to costs. February 23, 2010. (V.K. Ahuja), (TILAK) Judge.