IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.9072/2019(GM-AC) BETWEEN:
1 . MUBEENA BANU S/O MOHAMMED NAZRULLA @ NASRULLA AGED ABOUT 48 YEARS 2 . MOHAMMED ALI S/O LATE ALLABAKSHI AGED ABOUT 17 YEARS 3 . HINA A D/O LATE ALLABAKSHI AGED ABOUT 15 YEARS PETITIONER No.2 AND 3 ARE MINOR HENCE REP. THROUGH THEIR GUARDIAN MATERNAL AUNT I.E. PETITIONER NO.1 ALL ARE R/O DOOR NO.480, NEAR GOVT SCHOOL, A BLOCK, 2ND CROSS, SPS NAGAR, DAVNAGERE 577 001.
...PETITIONERS (BY SRI V. MAHESHA, ADVOCATE FOR SRI A. HANUMANTHAPPA, ADVOCATE) AND:
1. SMT. GHOUSIYA BANU W/O LATE DADAPEER AGED ABOUT 21 YEARS R/O BEHIND POLICE QUARTERS, HOSADURGA, NOW R/O DOOR NO.480, NEAR GOVT. SCHOOL, A BLOCK 2ND CROSS, SPS NAGAR DAVANAGERE 577 001.
2. MANOHAR, S/O NOT KNOWN, MAJOR, PROP. VISHWAS FUEL AND SERVICES OWNER OF TANKER LORRY BEARING REG. No.KA-17-A-6437 R/O BPCL DEALER, OPP FIRE STATION, P.B. ROAD, DAVANAGERE-577001.
3. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., A.M. ARCADE, G. HOSPITAL ROAD, DAVANAGERE-577001.
…RESPONDENTS (BY SRI GURUPRASAD. P., ADVOCATE FOR SRI SREEHARSHA A.K., ADVOCATE FOR R1; SRI ASHOK N PATIL, ADVOCATE FOR R3; R2 IS SERVED BUT UNREPRESENTED) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 28.01.2019 IN ECA NO.26/2018 VIDE ANNEXURE-F PASSED BY THE II ADDL. SENIOR CIVIL JUDGE & JMFC, DAVANGERE AND ALLOW THE I.A. FILED BY PETITIONERS UNDER ORDER 1 RULE 10(2) OF CPC IN ECA 26/2018 BY ALLOWING THIS WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRILIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The present writ petition is filed by the petitioners against the order dated 28.1.2019 made in ECA No.26/2018 on the file of the II Addl. Senior Civil Judge & JMFC, Davanagere rejecting the application filed by them under Order 1 Rule 10(2) of the Code of Civil Procedure r/w Section 151 of the Code of Civil Procedure to implead them as Respondent Nos.3 to 5 in the said proceedings.
2. The wife of the deceased – Smt. Ghousiya Banu filed ECA No.26/2018 against Mr. Manohar and the Insurance Company claiming compensation. During the pendency of the proceedings, the present petitioners filed an application under Order 1 Rule 10(2) r/w Section 151 of the Code of Civil Procedure Code claiming that they are also the legal representatives of the deceased. It is contended that the 2nd petitioner - Mr. Mohammed Ali s/o late Allabakshi, aged about 17 years, is brother of the deceased and the 3rd petitioner – Hina .A D/o Late Allabakshi, aged about 15 years is sister of the deceased, both are represented by petitioner No.1 and petitioner Nos.2 and 3 are solely dependent on the income of the deceased. The said application was opposed by the present Respondent Nos.1 and 2 by filing objections contending that the proposed Respondent Nos.3 to 5 i.e., present petitioners, are not legal representatives. The trial Court considering the application and the objections, proceeded to reject the application mainly on the ground that they can get the relief in a competent Civil Court about succession of legal heirs relationship etc., Hence, the present writ petition is filed for the relief sought for.
3. I have heard the learned counsel for the parties to the lis.
4. Sri V. Mahesha, learned counsel for the petitioners reiterating the grounds urged in the Writ Petition, contended that the proposed respondent Nos.4 and 5 (present petitioner Nos.2 and 3) are minors as on the date of the application and they are represented by proposed Respondent No.3 (present petitioner No.1) and therefore, they are the dependants of the deceased within the definition of Section 2(1)(d)(iii)(d) of the Employee’s Compensation Act. He further contended that in order to prove that proposed Respondent Nos.4 and 5 (present petitioner Nos.2 and 3) are minors as on the date of the application filed for impleadment, their Aadhar Cards are produced, which depict that they are minors. Therefore, he sought to set aside the impugned order by allowing the present writ petition.
5. Learned counsel for Respondent No.1 who is the claimant in ECA No.26/2018 has not disputed the above facts and contended that it is for the trial Court to decide the case on merits.
6. In view of the above, the impugned order passed by the II Addl. Senior Civil Judge & JMFC, Davangere dated 28.1.2019 rejecting the application filed under Order 1 Rule 10(2) r/w Section 151 is hereby quashed. I.A. filed by the present petitioners under Order 1 Rule 10(2) r/w Section 151 of the Code of Civil Procedure to implead them as Respondent Nos.3 to 5 in ECA No.26/2018, is allowed. The trial Court is directed to proceed further in ECA No.26/2018 on merits in accordance with law.
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JUDGE