1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.5 OF 2006 WITH CROSS – OBJECTION NO.10 OF 2006 FIRST APPEAL NO.5 OF 2006 United India Insurance Co. Ltd., Vernekar Building, Above Dena Bank, Mapusa, Goa. …. Appellant V/s 1. Smt. Filomena Fernandes, widow of Joseph Anthony Fernandes, Age 49 years, Occupation Housewife. 2. Mr. Chris Diago Fernandes, Age 20 years, student. 3. Master Bruno Gabriel Fernandes Age 17 years, student. All the above at Sr. Nos.1 to 3 are residing at House No.46(3) Par, Assonora, Bardez, Goa. 4. Mr. Alberto Fonseca, S/o. Anacleto Piedade Fonseca, r/o. H.No.1470, Madel, Tivim, Bardez – Goa. 5. Mr. Edwin T.D'Souza, r/o. House No.518, Near the Church Ground, Tivim, Bardez – Goa. …. Respondents Mr. A.R.S. Netravalkar, Advocate for the Appellant. Mr. A.R. Kantak, Advocate for Respondents Nos.1 to 3. WITH CROSS – OBJECTION NO.10 OF 2006 2 1. Smt. Filomena Fernandes, widow of Joseph Anthony Fernandes, Age 49 years, Occupation Housewife. 2. Mr. Chris Diago Fernandes, Age 20 years, student. 3. Master Bruno Gabriel Fernandes Age 17 years, student. All the above at Sr. Nos.1 to 3 are residing at House No.46(3) Par, Assonora, Bardez, Goa. ….Cross– objectioners V/s 1. United India Insurance Co. Ltd., Vernekar Building, Above Dena Bank, Mapusa, Goa. 2. Mr. Alberto Fonseca, S/o. Anacleto Piedade Fonseca, r/o. H.No.1470, Madel, Tivim, Bardez – Goa. 3. Mr. Edwin T.D'Souza, r/o. House No.518, Near the Church Ground, Tivim, Bardez – Goa. …. Respondents Mr. A.R. Kantak, Advocate for the Cross-objectioners. Mr. A.R.S. Netravalakar, Advocate for Respondent No.1. CORAM : F. M. REIS, J. DATE : 3rd MARCH, 2011 JUDGMENT : The above appeal challenges the judgment and award passed by the Motor Accident Claims Tribunal in Claim Petition 3 No.12/2002 dated 22/09/2005. 2. The Claim Petition came to be filed by the respondents nos.1 to 3 on the ground that Succoro Rodrigues, since deceased was a welder by occupation and was employed with Lairai Devi Workshop at Assonora on a monthly salary of Rs.2,500/-. It was further their contention that he was proceeding towards Mapsua on his scooter bearing no.GDD 9592, on the left side of the road and on reaching near the football ground at Tivim, respondent no.4 who was riding the motorcycle bearing registration no.GA-01-L-1052 came from the opposite direction in a fast speed and dashed against the scooter of the said Succoro and as a result of that he sustained injuries on his head which resulted in his death. The motorcycle was owned by the respondent no.5 and driven by the respondent no.4. It is further their case that respondent no.1 is the sister of the said deceased, while respondents nos.2 & 3 are his nephews and that the husband of respondent no.1 was bed ridden on account of paralysis since the year 1992 and he had expired in February, 2001 and that the respondents nos.1 to 3 were solely dependent on said Sucoro and, accordingly, filed the said Claim Petition. 3. The respondent no.4 and the appellant resisted the said 4 petition on the ground that neither the descendants nor the ascendants of the deceased have been joined as parties to the petition. It is further their case that the respondent no.1 being a married sister of the deceased and respondents nos.2 & 3 being her sons, were not entitled to any compensation, as they are not dependents of the deceased. They, accordingly, prayed for dismissal of the claim petition. 4. The Tribunal after framing the issues and recording of evidence came to the conclusion that the motorcycle driven by the respondent no.4 was involved in the accident and, accordingly, awarded compensation to the tune of Rs.1,83,000/- to the respondents nos.1 to 3. Being aggrieved by the said judgment, the appellant who is the Insurance Company has preferred the present appeal. 5. The respondents nos. 1 to 3 after being duly served have filed cross-objection and claimed that the interest awarded at the rate of 7.5% per annum was erroneous and that according to them the interest should have been awarded at the rate of 12% per annum. 5 6. Shri A.R.S. Netravalkar, the learned Counsel appearing for the appellant has raised only one contention in support of his appeal and submitted that the Claim Petition itself was bad in law as according to him all the legal representatives of the deceased were not parties to the said proceedings. The learned Counsel further submitted that the Insurance Company would be prejudiced in case the amount is paid to the respondents nos.1 to 3 as any other legal representatives of the deceased may file a fresh Claim Petition against the appellant, claiming that they are also dependents of the said deceased. The learned Counsel further pointed out that even if all the legal representatives are not claimants, nevertheless they have to be made parties to the Claim Petition. 7. On the other hand, Shri Kantak, the learned Counsel appearing for the respondents nos.1 to 3 has supported the impugned judgment. The learned Counsel submitted that under the law enforced in the State of Goa, the sister is entitled to inherit the estate of a brother, who was a bachelor, as admittedly he had expired without any ascendants or descendants. Learned Counsel further submitted that the evidence on record discloses that respondents nos.1 to 3 were dependents of the said deceased as in 6 view of the paralysis of the husband of respondent no.1 for a considerable period of time, the respondents nos.1 to 3 were depending upon the income of the deceased. In any event, to clear the apprehension of the appellant, the respondents have filed an affidavit of the respondent no.2 to the effect that the amount awarded as compensation in view of the death of the said deceased shall be received by respondents nos.1 to 3 on behalf of all the heirs of the deceased and that in case of any claim for compensation, by any other brother or sister of the deceased, the same shall be made good from the compensation received by them. The learned Counsel further submitted that the respondents nos.1 to 3 are entitled for interest at the rate of 12% per annum and not at the rate of 7.5% per annum as awarded by the Tribunal and to that extent impugned judgment deserves to be modified. 8. Having heard the learned Counsel and on perusal of the record, I find that the learned Judge while passing the impugned judgment minutely examined the evidence on record and found that in view of the ailment suffered by the husband of respondent no.1 for a considerable period of time, the said sister, the respondent no.1 was depending upon the income of the deceased. There is also no dispute that the said husband expired after the said accident 7 and, as such, respondents nos.2 & 3 are his legal representatives. As per the law in force in the State of Goa there can be no dispute that the respondents nos. 1 to 3 are entitled to inherit the estate of the deceased Succoro, who died as a bachelor. Considering the evidence of AW1/Chris Fernandes coupled with the evidence of her sister AW3/Caridade Rodrigues. who is the younger sister of respondent no.1, I find no infirmity committed by the Tribunal to come to the conclusion that respondents nos.1 to 3 were depending upon the income of the deceased. The evidence discloses that the other legal representatives are not at all interested nor were depending upon the income of the said deceased as they were apparently working abroad. All these factors have been considered by the Tribunal to come to the conclusion that respondents nos.1 to 3 were depending upon the income of the deceased. The learned Counsel appearing for the appellant, in fact was unable to disclose any infirmity in the said findings of the Tribunal. Nothing has been established from the evidence on record that respondents nos.1 to 3 were not dependent on the deceased. 9. With regard to the contention of the learned Counsel for the appellant that in case any other claims are put forward by any other legal representatives, the appellant who is the Insurance Company 8 should not be prejudiced, the said apprehension would not subsists in view of the affidavit filed by respondents nos.1 to 3 dated 3/03/2011. The said affidavit is taken on record and marked 'X' for identification. 10. Paragraph 6 of the said affidavit states as under : “6. I say that on account of the contention raised by the appellant in the appeal, I desire to clarify that the amount awarded as compensation on the death of my uncle Succoro Baptista Rodrigues shall be received by the respondent nos.1 to 3 for and on behalf of all the heirs of the deceased and that in case any claim for compensation is made by any of the other brothers/sisters of the deceased Sucorro Baptista Rodrigues the same shall be made good from the compensation received in this case.” 11. The statement made at para 6 of the affidavit is accepted. In view of the said statement made by the respondent no.2 on behalf of the respondents nos.1 to 3, I find that the apprehension of the appellant, would not survive. The respondents nos.1 to 3 would be liable to pay any such claims in case claims are put forward by any other legal representatives against the appellants herein. The respondents nos.1 to 3 would, as such, indemnify the appellants for any such claims which may be filed in future, against them, by any of the other legal representatives, who have been left out from the above Claim Petition. 9 12. In view of the above, I find there is no infirmity committed by the Tribunal in awarding the compensation in favour of respondents nos.1 to 3. 13. With regard to the contention of the learned Counsel appearing for the respondents in support of the appeal for enhancement of interest as claimed in their cross-objection, I find that the same has no basis. The interest awarded at the rate of 7.5% per annum cannot be said to be unjust, in the circumstances of the case and considering the rate of interest prevailing at the relevant time. The cross-objection, as such, do not merit any consideration. 14. Subject to the said clarification, in the light of the statement of the respondents nos.1 to 3 referred to herein above, I pass the following order: O R D E R (i) The above appeal and the cross-objection stands dismissed with no order as to costs. (ii)The Registry is directed to pay the amount deposited by the appellant to the respondents nos.1 to 3, in accordance with law. 10 (iii) The appeal and cross-objections stand disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-