IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 301 of 2004 The New India Assurance Co. Ltd. Nainital Road, Haldwani (Nainital) through its Divisional Manager … Appellant Versus 1- Davendra Kumar S/o Shri Balkishan 2- Pradeep Kumar S/o Shri Balkishan, R/o Gali No. 4, Rampur Road, Haldwani District Nainital 3- Anil Kumar s/o Shri Bhukan Lal, R/o Kundan Market, Haldwani (Nainital) … Respondents Sri M. K. Agrawal, holding brief of Sri R. B. Agrawal, Advocate for the Appellant. Sri Z.U. Siddiqui, Advocate for respondents. Dated: March 19, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has bee filed by the appellant- Insurance Company, against the judgment and award dated 26.7.2004, passed by Motor Accident Claims Tribunal/Additional District Judge/First Fast Track Court, Haldwani (Nainital), in Motor Accident Claim Petition No. 134 of 2003, Davendra Kumar and another vs. The New India Assurance Company Ltd. Briefly stated the facts giving rise to this appeal are that on 4.3.2003 at about 3.30 p.m. the deceased-Bal Kishan was going to Rampur Road, Gali No. 4, suddenly a Maruti Van No. UP-02-D- 6975 came behind the deceased, the driver of the vehicle was driving the vehicle rashly and negligently and dashed the deceased, on account of which the deceased fell down on the earth and sustained injuries on his person. He was admitted in Sai Hospital, Kaladhungi Road, and Haldwani and after that he was admitted in Soban Singh Jina Base Hospital, Haldwani on 7.3.2003 and discharged on 20.3.2003 and during his treatment he died on 4.5.2003 at his house. It has been alleged that claimants expended Rs. 80,000/- towards medical expenses of the deceased. It has been pleaded that at the time of accident, the deceased was about 75 years old and was doing the business of Thekedar and used to earn Rs. 75,000/- per annum and used to pay income tax. Therefore, the claimants have prayed for award of compensation to the tune of Rs. 4,60,000/- against the opposite parities. The insurance company has also filed written statement refuting the contents of the claim petition. It has been alleged that deceased-Bal Kishan has no concern with the alleged accident. It has also been alleged that he deceased-Bal Kishan died due to old age or any other disease, but not due to alleged accident. It has further contradicted the age, income and business of the deceased. The deceased had o independent income. The deceased due to his old age itself was involved in any business. Although the deceased was income tax payee, but no dependency of the claimants have been proved upon the deceased. No information was given to the Insurance Company with regard to alleged accident. It has also pleaded that offending vehicle committed breach of condition of insurance policy by carrying the vehicle without valid driving licence, therefore, the Insurance Company was not liable to pay any compensation to the claimants. Opposite party no. 2-Anil Kumar (owner of the vehicle) has filed written statement alleging therein that accident occurred due to carelessness on the part of deceased himself. He took plea that his vehicle was insured with Insurance Company at the time of accident, of which insurance cover not no. 420988, which is valid from 6.9.2002 to 5.9.2003. He also alleged that whatever amount of compensation to be awarded in the case, is to be paid by the Insurance Company and not by owner of vehicle in question. The Tribunal, on the basis of pleadings adduced by the parties, framed following issues: a. Whether Balkishan (father of the claimants) died on 04.05.03, at about 8.00 AM due to accidental injuries occurred on 04.03.2003, at about 3.30 P.M. at Rampur Road Gali No. 4, Haldwani, District Nainital due to rash and negligent driving on the part of the Driver Maruti Van Registration No. UP 02D/6975 owned by respondent no. 2 Anil Kumar and insured with respondent no. 1 The New India Assurance Company b. Whether the claimants suffered the loss claimed, if so, to what amount of compensation and from whom? c. To what relief, if any, the claimant is entitled? The Tribunal having considered the arguments advanced by learned counsel for the parties and perusing the materiel available before it, decreed the claim petition in favour of claimants and awarded the compensation for a sum of Rs. 1,97,000/-, payable by Insurance Company. The Tribunal also directed that this amount of compensation is to be paid by the insurance company within a period of month, failing which, insurance company shall have to pay an interest of 9% per annum from the date of presentation of petition till the final payment of compensation. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-Insurance Company has preferred this appeal before this Court. Heard Sri M. K. Agrawal, holding brief of Sri R.B. Agrawal, learned counsel for the appellant, Sri Z. U. Siddiqui, learned counsel for respondents and perused the record. As far as merit of the case is concerned, the learned Tribunal has recorded a categorical finding that at the time of accident the papers of offending vehicle were valid and driver of offending vehicle was having valid driving licence and the said vehicle was insured with New India Assurance Co. Ltd. from 6.9.2002 to 5.9.2003, therefore, the Insurance Company was liable to pay compensation to the claimants. I do not find an infirmity in the assessment of the evidence made by the Tribunal and the finding recorded by the Tribunal needs no interference. Learned counsel for the appellant has also argued that the respondents/claimants are not financially dependants upon the deceased as they are major and engaged in their business as well as they have got their own independent income. Learned counsel for the appellant as cited a decision before me in support of his contention, rendered in the case of Smt. Manjuri Bera vs. Oriental Insurance Company Ltd. and another, reported in 2007(2) T.A.C. 431 (S.C.). I have gone through the decision thoroughly and I am of the view that this decision is not going to help in any manner to the appellant as the facts in the decision cited before me are that the claimant was a married daughter of the deceased, hence the Court held that she cannot be said to be entitled for compensation as she is neither the legal representative nor dependant upon deceased, while in the instant case, the appellants are sons of deceased-Bal Kishan and in view of the decision of the Hon’ble Apex Court in the case of Mrs. Hafizun Begum vs. Md. Ikram Heque and others, reported in 2007(4) T.A.C. 1 (S.C.). “The ‘legal representative’ means a person who in law represents 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 death of the party so suing or sued.” In the instant case also, the claimants are the persons who represent the estate of the deceased- Bal Kishan, therefore, they very well come within the ambit of legal representatives of the deceased and on account of the death of the deceased they are also entitled to get the compensation thereof. I do not find any force in the arguments advanced by learned counsel for the appellant. On the basis of assessment of evidence, I am of the view that the appeal lacks merit and is liable to be dismissed. The appeal is accordingly dismissed. The impugned judgment and award passed by Tribunal is confirmed. (B. C. Kandpal, J.) SP