1. The appellant who was original claimant no.2 in MACP No.2662/2002, preferred this appeal challenging the legality and validity of the impugned judgment and award dated 15/03/2010 rendered by learned MACT (Aux.), Patan in the aforementioned Claim Petition, whereby, the Tribunal dismissed the claim petition filed by the appellant- original claimant no.2.
2. The short facts leading to this appeal are that in a vehicular accident, one Pravinbhai, the son of original claimant no.1- Somalben and brother of appellant- original claimant no.2- Kantiji died. Both Somalben, the mother of deceased so also the appellant- claimant no.2 Kantiji preferred the aforementioned claim petition against the Owner and Insurance Company of the vehicle involved in the accident and claimed Rs.5,00,000/- by way of compensation. It transpires that during the pendency of said petition, original claimant no.1- Somalben, the mother of the deceased so also the mother of appellant-claimant no.2, expired. Since the appellant- claimant no.2 was the only heir of the deceased, the name of the claimant no.1- Somalben came to be deleted from the cause-title of the original claim petition and the claim petition proceeded further by the appellant- original claimant no.2 Kantiji. It transpires that the Tribunal recorded the oral evidence of appellant-claimant no.2 and also examined the evidence of the witness for the claimant. Ultimately, considering the Para-11 in the impugned judgment and award, the Tribunal relying upon the decision of 'Sarla Verma and Others Vs. Delhi Transport Corporation and Another' reported in 2009 ACJ 1298, came to the conclusion that perhaps the appellant-claimant no.2 herein must be earning member in the family and therefore, he may not be dependent upon the income of deceased brother Pravinbhai, who died in the accident and even observed that perhaps the appellant- claimant no.2 might not be residing with deceased Pravinbhai and therefore, dismissed the claim petition in TOTO.
3. Mr. Rana learned advocate for the appellant- claimant no.2, at the outset, drew my attention to Para-15 in Sarla Verma's Case (Supra), wherein, it has been observed that “in the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.” Mr. Rana learned advocate for the appellant- claimant no.2, therefore, submitted that in the instant matter, the facts and evidence on record are totally different, yet, relying upon the said observation, the entire claim petition came to be dismissed. Mr. Rana learned advocate for the appellant- claimant no.2 relied upon a case of 'Smt. Manjuri Bera Vs. Oriental Insurance Co. Ltd.' Reported in AIR 2007 SC 1474, wherein, the Hon'ble Apex Court observed that “in terms of Section-166(1)(c) of the Motor Vehicles Act, in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. It was further observed that according to Section-2(11) of CPC, 'legal representative' means a person who in law represents the estate of the 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.” Mr. Rana learned advocate for the appellant- original claimant no.2, therefore, submitted that the impugned judgment and award rendered by the Tribunal deserves to be set aside and since the merits are not examined by the Tribunal, it is requested that the matter may be remanded.
4. Heard Mr. Shah learned advocate for the respondent no.1- the owner as well as Ms. Rahevar learned advocate for the respondent no.2- Insurance Company.
5. As observed above, considering the discussion made in Para-11 in the impugned judgment and award rendered by the Tribunal, the Tribunal disposed of the aforementioned claim petition only on short ground. According to the Claim Tribunal, perhaps the appellant- claimant no.2 may not be dependent upon the income of the his deceased brother Pravinbhai, who died in the vehicular accident and further, the Tribunal observed that perhaps the appellant- claimant may be residing separately from his brother. The Tribunal further observed that perhaps the appellant- original claimant no.2 might have independent earning. In Para-15 in Sarla Verma's Case (Supra), the observation made by the Hon'ble Apex Court is that “in the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.” In Para-15 in the said decision, the aforementioned observation is made by the Hon'ble Apex Court considering a case, wherein, the deceased was a bachelor and claimants were the parents. In above view of the matter, it can safely be said that in Para-11 in the impugned judgment and award rendered by the Tribunal, the Tribunal on the basis of presumption and assumption and without touching the evidence, which was already available on record, dismissed the claim petition. As stated above, the claim petition came to be dismissed by the Tribunal only after full-fledged evidence was recorded. In the case of Smt. Manjuri Bera (Supra), as discussed above, the Hon'ble Apex Court took into consideration Section-166(1)(c) of the Motor Vehicles Act so also Section-2(11) of the CPC and observed that “in case of accidental death, all or any of the legal representatives of the deceased become entitled to compensation.”
6. In above view of the matter, this Court is of the opinion that the Tribunal on the basis of presumption and assumption erred in dismissing the claim petition in TOTO. It further transpires that even considering the Sarla Verma's Case (Supra), it has been specifically observed that in the absence of evidence to the contrary, brothers and sisters will not be considered as dependents and the said observation was made considering a case, wherein, the deceased was bachelor and the claimants were the parents. Even considering the Sarla Verma's Case (Supra), while coming to the conclusion on merits as to whether brothers and sisters are entitled to compensation or not, the oral and documentary evidence on record was required to be examined by the Tribunal.
7. In above view of the matter and without examining merits of this case, this Court is of the opinion that the instant appeal deserves to be partly allowed and the impugned judgment and award rendered by the Tribunal, deserves to be set aside and the claim case is ordered to be remanded to the concerned Claim Tribunal, to decide the aforementioned claim case afresh on merits on the basis of the evidence, that has been recorded in the aforementioned claim petition as well as on the basis of any further evidence, that may be adduced by both the sides. The concerned Tribunal shall decide the claim petition in accordance with law as expeditiously as possible preferably within three months from the date of communication of this order.
8. For the foregoing reasons, the appeal is partly allowed and the impugned judgment and award dated 15/03/2010 rendered by the learned MACT (Aux.), Patan in MACP No.2662/2002 is set aside and the aforementioned Claim Petition is ordered to be remanded to the concerned Claim Tribunal with specific direction to decide the said Claim Petition on merits on the basis of evidence, that has been adduced before the Claim Tribunal or on the basis of any evidence, that may be adduced by both the parties. Considering the facts and circumstances of the case, the Tribunal shall decide the aforementioned Claim Petition in accordance with law as early as possible preferably within three months from the date of communication of this order. The Tribunal shall decide the said Claim Petition uninfluenced any observations made by this Court in this Judgment, as the merits are not examined.
aruna (J.C.UPADHYAYA, J)