; s • n •i ^s^j •'S £^..,. ...It (^) ^'€' I"* IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.o^in Q_ M.A. (C) N0. ^¥?DOF 2009 APPELLANTS z~ ^-•^^ .\\w""^' -1-1' <^A^yl .-•• -1>? "' >^"' -•••^^^' 'i. ^'^ RE&PONDENTS Q-2' 3. Smt. Janak Bai Satnami, Wd/o Birjhu Satnami, aged about 20 years, Minor Satish, S/o Birjhu, aged about l month, Through: Guardian/Mother Smt. Janak Bai Both R/o Village-Chutchutiya, Tahsil and Police Station Simga, District Raipur (C.G.) VERSUS Bhanuprasad Manikpuri, S/o Chotelal Manikpuri, R/o Chakarbhata, Police Station Hirri, Tahsil Bilaspur, District Bilaspur (C.G.) (Driver) (Truck No. U.P.766/0-9188) Kapil Das Kuldip, S/o Jagdish Kuldip, R/o Village-Bodri Parsada, Bilaspur, Tahsil and District Bilsapur (C.G.) (Registered owner of truck) 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) ® X, 4. Smt. Dular Bai, Wd/o Late Pancham Satnami, aged about 53 years, 5. ,- Minor Dhansingh, S/o Late ^' - '. Pancham Satnami, aged about 12 years, Through : guardian Dular Bai (Respondent No.4). 6./Minor Ku. Dhaneshwari Bai, D/o Late Pancham Satnami, aged about 9 years, Through : guardian Dular Bai (Respondent No.4). Respondent No. 4 to 6 are R/o Village-Chutchutiya, Tahsil and District Simga, District Raipur (C.G.) Claimed before Tribunal in M.A.C.T. Rs. 7,50,000/- No.44/2007 Amount awarded by the learned Claim rejected Tribunal Claimed before Tribunal in M.A.C.T. Rs. 20,T9,808/- No. 45/2007 in favour of non- applicants no. 4 to 6 Awarded Rs. 6,27,000/- Court/Fee affixed as appeal valued Rs. Rs. 15/- ^--H^2,«B^ ^^ (S3-02-' \^"- MISCELLANESOUS APPEAL UNDER SECTIONl73_OFTHE MOTOR VEHICLE ACT. 1988 Being aggrieved with the award dated 11.09.2008, passed in Claim Case No, 45/2007 between Smt. Janak Bai and Another ir; "'~>^^'si' s.iss^sie^''"?3'- ;<^K^ ^'1^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri I.M. Quddusi, & Hpn'ble Shri Prashant Kumar Mishra, JJ. M.A.fClNo. 888 of 2009 APPELLANTS Smt. Janak Bai Satnamiand another. Versus RESPONDENTS Bhanuprasad Manikpuri and others. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 Appearance: Shri Ashok Soni, counsel for the appsilants. Shri Shaktlraj Sinha, counsel for respondent No.2. Shri Dashrath Gupta, counsel for respondent No. 3. Shri Anit Singh Rajput, counsel for respondent Nos. 4 to 6. MA.tCtNo. 141 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 Deepak Gupta, counsel for respondent No. 3. Shri Anil Singh Rajput, counsel for respondent Nos. 4 to 6. ORAL ORDER (04/02/2011) Following oral order of the Court was passed by I. M. Quddusi, J. , These are two appeals filed 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 Iwo Claim Case Nos. 44/2007 and 45/2007. ^<'s"?"°s%;<, ^/p-r\ ^ --^' 3^ 2. The brief facts of the case are that on 25/08/2006 at about 09-A5 a.m. deceased Birjhu Satnami was selling fruits in his Thela in front of Bus Stand Simga, at that time truck bearing registration number U.P.-66/D- 9188coming from Bilaspur direction being driven rashly and negligently 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 which Mohammad tntaf sitting in the Jeep, Nazu Ali who was cleaning ttie glass of jeep, Birjhu Satnami and Shricharan Yadav received grievous injuries. Due to grievousinjuries Birjhu Satnami and Nazu Ali died on the spot. Deceased Birjhu Satnami was aged about 22 year and he was woridng 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 Birjhu Satnami as well as on behaff 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 fited 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 behalf 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 learned 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 petrtion filed by the mother, brother and sister of the deceased i.e. claim case No. 45/07 and awarded Rs.6,27,(KX)/- as compensation along with 6% simple .^Ta'i% .:^"^~ s '"Tf^. -3- interest per annum from the date of filing of the claim petition till the payment of the compensation is made. 6. Being aggrieved, the instant appeal has been filed on behaff of Smt. Janak Bai Satnami alleged widow ofthe 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 about Uie legitimacy of the minor child because even if the appellant No.1 was not found to be legatty wedded wife but appellant No. 2 ^fvas born and was the son of the deceased, at least he would be a illegitimate child of the deceased and in such circumstances, it cannot be said that the claim petjtion was not maintainable. In view of the fact that Section 166 of the Motor Vehicles Act provides that an apptication 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 representaUve" means a person who in law represente the estate of 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 deatti of the party so suing or sued;" 9. With regard to the rights of an illegitimate child Section 16 of the Hindu ft4arriage Act provides as under:- "[16. Legitimacy of children of void and viodable marriages.- (1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be •<ay -«- legitimate, whether such child is born 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 marriage under this Act and whether or not the marriage is held to be void ottierwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage 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 of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-section (1) or sub- section (2) shall be construed as confemng upon any child of a marriage which is null and void or which is annulted by a decree of nullity under section 12, any righte 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 his parente.] " 10. In view of the above, if the appellant No. 2 was an illegitimate child, his claim cannot be denied. 11. Besides this, we have found that the leamed Tribunal has not paid attention towards the statements and the cross-examination of the witnesses properly. The mother of the deceased,Dular Bai. Witness No.1 of the claimante of claim case No.45/07 has stated in her statement ttiat she did not know whether after three months from the date of accident a son was bom to his son, though, she had denied the marriage with the appellant No.1. The statement was recorded in Hindi. The relevant part of her statement given in cross-examination given in paragraph 8 is .quoted as below:- fs ^'r.s-^ ^:. ~^" -b " ^ ^"TO ^t uiM'i?!^ ^ t, fe ^cFrr ^ wra ^H^P «n^7^?'^7T^"^aft I'gA^TeTRT^t ^fHq^ ^ t, ^? ^d'fi ^ ^r in? T5in?r ^ yr f^?^ WHrft ^T ^ ^T 12. Another witness No.2 of the mother of the deceased namely Rooplal has also stated similariy 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 Samaj of village Dogariya, whatever mamage is performed in Satnami Samaj is always performed with his consultation and permission as he was the Chhadidar. He had stated that the appellant No.l's marriage, her elder sister's and brother's mamage alt the three mamages were performed together. 'Madwa' of all the three was one. The marriage of Janak Bai Satnami appellant No.1 was performed with Biijhu Satnami (deceased) and Bitjhu Satnami gave him Rs.80/- as 'Dakshina' and at the time of accident minpr Satish was in womb and was born 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 was some quarrel in the Sasural of Janak Bai Satnami and therefore she came back to her Maika. He denied his suggestion and has stated that she had gone for 'Jachaki' i.e. delivery purpose. Further a suggestion was made that deceased Birjhu Satnami had gone to 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 behalf of non- 1 fc..^'AS. " 1 ^ss^ g Y^y '<^ 2. -fc' applicante No. 4, 5 and 6 i.e. claimants of claim case No. 45/07 in paragraph 2 is quoted as under:- " ^I? 'ss^W 7T?ra' t, f^ 'SR'c!; ^ SpT^ •d^lci ^ ^SI^ WTS^ ~^> ts ^ 1 ^RT: ^ScfT t, ^5 ^TERSt ^ f^ '^i^f t "q? ^^ 'Tcra' t, f^? f^<'% 31^ ^TFft i^ '^ ^ 'TOT s.TT 1 'q? '^V ''ran t, f^ ^R ^TT^t TT?ft ^ 311^, cf)' W\W *^M[ aff, '^TS ^^ ?T "T^ a'Jt |" 13. Inthe case of Jinia Keoffn and offiers vs. Kumar Sltaram Manfhl ancf others reported in 2003 (1) SCC 730 the Hon'ble Apex Court has laid down in paragraph 4 as under:- "4. We have carefully considered the submissions of the learned counsel on either side. The Hindu Marriage Act underwent important changes by virtue ofthe Marriage Laws (Amendment) Act, 1976, which came into Torce with effect from 27-05-1976. Under the ordinary law, a child for being treated as legitimate must be born in lawlul wedlock. If the marriage rtself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulted as the case may be, of bastardizing thechildren born of the parties to such marriage. Polygamy. which was permissibte and widely prevalent among the Hindus in the pastand considered to have evil effecte on society.came to be put an end to by the mandate of Pariiament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much ypon the marriage between their parents being valid or void, thus 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 suffer a permanent setback in life and in the eyes of society by being treated as illegitimate. A laudable and nobleact of the legislature indeed in enacting Section 16 to put an end to a great social evil. At thesame time, Section 16 of the Act, s'^ ^ while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concemed, to the properties ofttieparentsonly." 14. ThereTore, we are of the opinion that the leamed claims Tribunal have not appreciated the evidence available on record and has given finding without discussing the same. It is also a matter Tor notice that ttie matter of legitimacy is not confined only to mother regarding accident claim, but it has Tar reaching effect, therefore ttie same should be decided fairly. 15. The Tribunal has also committed iltegality 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 in case of a bachelor, however in case of married person or having children/child legitimate or illegitimate the situation 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 submitted that he has no objection if D.N.A. test of the child is done. Learned counsel for the appellants has also submitted that he has no objection but since we are of the opinion that the matter requires reconsideration throughout we are not deciding anything here. However, we are of the opinion that the entire findings 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 finding given therein and remit the matter back to ttie Tribunal to decide the ctaim petttion afresh. -cb- 17. The parties shall be atlowed to amend the pleadings, adduce further evidence, file documente or get documente verified ete. and thereafter the decision shall be taken afresh wthout being influenced by the findings given in the impugned award. 18. The parties shatl appsar before the Tribunal on 14th March, 2011 . 19. The claim petitions shall be restored to their original number for the purpose ofdecision afresh. 20. The Lower Court Record shall be sent back to the Tribunal without further delay. 21. A copy of this order be placed in the record of M.A.(C) No. 888/20C®and M,A.(C) No. 141/2009. 22. No order as to costs. SA'- I.M.Quddusi Judge Sd/- PrashanfKumarMishra re