In order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency: High Court of Gauhati

 Page No.# 1 6 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP 5 2017 Farhanaz Hussain Pin 784027. PETITIONER W o Late Anowar Hussain Vill Gotlong P.O. _ Koliabhomora P.S. Tezpur District Sonitpur Assam Versus 1. Jaytun Nessa W o Md. Samsul Hussain Village Samdhara P.O. Naharbari District Sonitpur Assam 2. National Insurance Co. Ltd Represented by its Branch Manager Tezpur Branch Main Road Tezpur P.O Tezpur District Sonitpur Assam RESPONDENTS Page No.# 2 6 BEFORE HON’BLE MR. JUSTICE DEVASHIS BARUAH For the petitioner : Mr. D.K. Medhi Mr. M. Choudhury …. Advocates For the respondent no.2 : Mr. R.K. Bhatra Ms. A. Borar Date of hearing : 28.10.2021 Date of judgment : 03.11.2021 Ms. P. Hujuri. … Advocates JUDGMENT AND ORDERon the date of accident i.e. 26.01.2011 was travelling in his newly purchased Mahendra make Bolero vehicle from Guwahati to Tezpur driven by his employed driver Sri Parma Das. The said ill fated vehicle dashed against the iron barrier of the railway track at Ketekibari on the PWD road leading to Tezpur town and accordingly the said vehicle was badly damaged and Late Anowar Hussain expired. Pursuant to the death of Late Anowar Page No.# 3 6 Hussain the mother of the deceased filed a claim petition registered as MAC Case No.226 2011 before the Member Motor Accident Claims Tribunal Tezpur 4. During the course of the proceedings before the Court below on 28.11.2014 attention of the Court below was brought to the fact that the deceased was also survived by his wife i.e the petitioner herein and accordingly by the order dated 28.11.2014 the Court below felt that the controversy as regards the non joinder of the petitioner as a claimant needs to be set at rest prior to starting of the cross examination in the case. Subsequently vide another order dated 28.07.2015 prima facie proof that the deceased Late Anowar Hussain had a wife was brought to the attention of the Court below for which the claimant was directed to furnish the name of the said wife and to implead her as claimant along with the present claimant Pursuant to the said order dated 28.07.2015 the claimantfiled an application stating inter alia that the dispute as regards the claim of the petitioner to be the wife of the deceased Anowar Hussain is pending in the Court of the District Judge in Title Suit No.9 2013 and Revocation Case Nos.99 2013 and 100 2013 and as such requested that further steps as regards impleading the wife of the deceased as a co claimant be kept in abeyance till the dispute is resolved in the said proceedings. The Court below vide an order dated 18.08.2015 fixed it for necessary orders. Subsequent thereto on 20.07.2016 the claimant brought to the attention of the Court below that T.S.(S C) 9 2013 Misc.(S C Revocation Case No.99 2013 and Misc.Revocation Case No.100 2013 were dismissed and therefore requested the Court below to proceed with the claim petition by taking the evidence of the claimant witness no.1. On the same date the petitioner preferred a petition under Order I Rule 10(2) read with Section 151 of the CPC to implead the petitioner as one of the co claimant. The Court below fixed 05.08.2018 for filing objection to the petition filed by the petitioner. Accordingly objections was filed and pursuant thereto by the impugned order dated 05.10.2016 the Court below rejected the prayer of the petitioner for impleadment as a co claimant primarily on the ground that no documentary evidence has been filed by the petitioner nor the petitioner had approached the Civil Court to have her status declared as the wife of Late Anowar Hussain for which the Court below held that she is not the legal heir of Late Anowar Hussain. 5. I have heard the learned counsel for the petitioner as well as the respondent no.2 as well as have also perused the materials on records including the impugned order. 6. A perusal of the impugned order would go to show that the Court below on the face of it had committed an error in coming to a conclusion that in order to file a claim for compensation under Section 163 of the Motor Vehicles Act 1988the claimant has to be a legal heir of the deceased person. At this stage it is relevant to mention that Section 166 of the Act provides for filing an application seeking compensation. Sub Sectionof Section 166 stipulates who are the persons who can file an application seeking compensation. The said Sub Sectionof Section 166 is quoted hereinbelow 1) An application for compensation arising out of an accident of the nature specified in sub sectionof section 165 may be made— a) by the person who has sustained the injury or b) by the owner of the property or c) where death has resulted from the accident by all or any of the legal representatives of the deceased or Page No.# 4 6 d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application.” 7. From a perusal of the above quoted section it would transpire that an application seeking compensation can be madeby the person who has sustained the injury or by the owner of the property or where death has resulted from the accident by all or any of the legal representatives of the deceased or by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased as the case may be. The first proviso to Sub Section of Section 166 of the Act stipulates that where all the legal representatives of the deceased have not been joined in any such application for compensation the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondent to the application. The second proviso to Sub Sectionof Section 166 of the Act is however not applicable to the dispute herein. 8. A perusal of the claim petition encloses as Annexure 1 to the petition as well as the objection filed by the Respondent no.1 to the application filed by the Petitioner seeking impleadment enclosed as Annexure 11 to the petition show that the Respondent no.1 had claimed her right to file the application for compensation on the ground that she is a legal representative of the deceased. Now therefore the question arises is as to whether the petitioner is also a legal representative of Late Anowar Hussain inasmuch as the First Proviso to sub Section of Section 166 of the Act stipulates that in case all the legal representatives are not there on record the legal representatives who have not so joined shall be impleaded as respondents to the application. 9. Therefore in order to adjudicate on the legality of the order dated 05.10.2016 it would be relevant to find out as to whether the petitioner can be considered to be a legal representative of Late Anowar Hussin. This aspect assumes importance in view of the fact that for the purpose of computation of the just and fair compensation by applying the principles as laid down by the Supreme Court both in the case of Sarla Verma vs. Delhi Transport Corporation reported in6 SCC 121 and National Insurance Company Limited vs. Pranay Sethi reported in16 SCC 680 it is necessary for the Claims Tribunal to find out as to whether the person claiming is a legal representative because in absence of that it would be difficult to fix the amount of deduction which is required to be made while computing the compensation. In that view of the matter it would be relevant for disposal of the instant case to find out as to whether the petitioner is a legal representative and is entitled to be impleaded in the said claim proceedings. 10. The provisions of the Act are framed with the object of providing relief to the victims or their families. It is a beneficial legislation as could be seen from a perusal of the provisions thereof. It aims at providing a just compensation to be determined on the foundation of fairness reasonableness and equitability. Although determination can never be arithmetically exact or perfect an endeavor should be made by the Court to award just and fair compensation. As already stated in the judgment of Sarla Vermait was held that Page No.# 5 6 when the deceased was married the deduction towards personal and living expenses of the deceased should be one thirdwhere the number of dependent family members is between 2 and 3 one fourth where the number of dependent family members is between 4 and 6 and one fifth where the number of dependent family members exceeds sixof the Act. In that view of the matter I am interfering with the impugned order thereby impleading the petitioner herein as a respondent no.4 in MAC Case No.226 2011 with the liberty to file her written statement in the said proceedings. The parties are directed to appear before the learned Court below on 29.11.2021. The Court below thereupon shall proceed with the matter in accordance with law. 12. The petition stands disposed of accordingly. The interim order passed earlier stands vacated. Taking into consideration that the accident occurred on 26.01.2011 and the claim proceedings is of the year 2011 the Court below is requested to dispose of the matter as expeditiously as possible preferable within a period of 6 months from the date of appearance of the parties. JUDGE 

Summary: Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for the realization of compensation. Such an opinion was held by The Hon’ble High Court of Gauhati before The Hon’ble Mr. Justice Devashis Baruah in the matter of Farhanaz Hussain Vs. Jaytun Nessa and Anr [CRP/5/2017]. The facts of the case were associated with an order which was challenged by the petitioner in the instant petition. In the said impugned order it was stated that the petitioner was not a legal heir of Late Anowar Hussain who expired due to an accident. The proceedings of the case of Late Anowar Hussain was initiated by his mother. It was also held that if the petitioner was successful in proving her legal status then she would be entitled to receive her share in the compensation amount which might be awarded for the death of Late Anowar Hussain. It was reported that the deceased was travelling from Guwahati to Tezpur in his newly bought vehicle, which was driven by his employed driver. The vehicle dashed into an iron barrier of railway track which led to the death of the deceased.  It was reported that the Court below rejected the prayer of the petitioner to bring as a co-claimant primarily on the ground that no documentary evidence has been filed by the petitioner nor the petitioner had approached the Civil Court to have her status declared as the wife of Late Anowar Hussain for which the Court below held that she was not the legal heir of Late Anowar Hussain.  The Hon’ble Court after examining the submissions stated that “…  The documents on record prima facie shows that the Petitioner apart from claiming that she is the wife is also intermeddling with the estate of the deceased and under such circumstances she has a right to seek impleadment as a Respondent in terms with the first proviso to Section 166(1) of the Act. In that view of the matter, I am interfering with the impugned order thereby impleading the petitioner herein as a respondent no.4 in MAC Case No.226/2011 with the liberty to file her written statement in the said proceedings… The petition stands disposed of accordingly. The interim order passed earlier stands vacated. Taking into consideration that the accident occurred on 26.01.2011 and the claim proceedings is of the year 2011, the Court below is requested to dispose of the matter as expeditiously as possible preferable within a period of 6 (six) months from the date of appearance of the parties.”