Monomoyee Barmani v. Upeswari Barmani and others — 1993 DIGILAW 142 (GAU)

Judgement The plaintiff brought this appeal from the judgment dated 20-8-1985 passed by Shri R. K. Bora, Assistant District Judge, Dhubri, in T.A. No. 75/83 and the judgment dated 20-7-1983 of Shri B. P. Sarma, Munsiff No. 3, Dhubri in T. S. No. 89/81 as both of them have dismissed the plaintiffs suit. 2. The suit was instituted on 17-2-1981. In brief the facts of the case are as follows : Three brothers, namely, Atya, Satya and Nityananda were the owners of land measuring 35B 8K 18 dhors at village Vidyapara under Gauripur Raj Estate and they held the land ejmali in equal shares of 10 bighas. From out of 35B odd, 10B had been sold to one Uma Nath Seal who obtained separate khatian for that 10B. For the remaining 25B 1 K 17L-7B 2K 7L was recorded under khatian No. 72 and 17B 4K 10L was recorded under khatian No. 78. An area of 1B 3K 17L out of 7B 2K 7L and 9B 3K 14L out of 17B 4K 10L were in possession of tenants who also had tenants khatian for them, (sic) 8B OK 16L remained in ejmali possession of the co-sharers. Satya died 60 years ago leaving his wife Smt. Dhanbhari and two sons, Atya and Batul and a daughter Upeswari. So Satyas share was inherited by Atya and Batual in equal shares. Atya died leaving his mother Dhanbhari, brother Batul and sister Upeswari. His mother Dhanbhari inherited 1/4 share of 1/3 = 1/6 of the entire land. Batul died about 30 years back in 1951 leaving his mother and wife. Batual was entitled to 1/6 share of the entire land. After Batuals death his wife, Monomoyee Barmani, the plaintiff, inherited his 1/6 share. Smt. Dhanbhari died 7 years ago leaving her daughter Upeswari (defendant No. 1) and son Batuls wife (plaintiff). Each of them (i.e. Plaintiff and defendant No. 1) got 1/2 of her 1/6 share. Thus the plaintiff claims that she is entitled to the 1/6 share of her husband plus 1/12 share of Dhanbharis share. Plaintiff stated that defendant No. 2 is not entitled to get any share and according to her he (defendant No. 2) was only looking after the share of his mother, the defendant No. l; but his name was illegally mutated. Other defendants purchased some portion of the land from Nityananda. Plaintiff stated that defendant No. 2 is not entitled to get any share and according to her he (defendant No. 2) was only looking after the share of his mother, the defendant No. l; but his name was illegally mutated. Other defendants purchased some portion of the land from Nityananda. Atya was entitled to 1/3 share of the land under khatian Nos. 72 and 78, and defendant No. 2, Dharmanarayan, son of Atya and defendant No. 4, Smt. Gadi have inherited the property left by Atya. Nityananda was entitled to 1/3 share of the entire land under Khatian Nos. 72 and 78, and defendant No. S, Gatu and defendant No. 6, Jaladhar and defendant No. 7, Dhepri inherited the property left by their father, Nityananda. 5B-1K-8L and 2B-4K-8L = 8B-OK-16L of Dag Nos. 147, 148, 149, 152, 161, 162, 163, 164, 167, 173, 298 of Khatian No. 78 is a khas land of Satya, Atya and Nityananda who were in ejmali possession. After becoming widow, it became difficult for the plaintiff to continue the ejmali possession. Therefore, she filed Mutation Case No. DM/29/75-76 but it was dismissed on 7-3-1977. After dismissal, the plaintiff brought the suit for declaration of her share by partition. The State of Assam was impleaded as pro forma defendant No. 8 though no relief was claimed against them. On the above allegation, the plaintiff prayed for decree; (a) declaring that she is entitled to 1/4 share of the land from Khatian Nos. 72 and 78 as described in Schedule A; (b) that she is entitled to 1/4 share of 14B-OK-8L from ejmali possession as described in Schedule B; (c) that she is entitled to 1/6 share of the bithi land of 2K-9L covered by Dag No. 124 of Khatian No. 72 and 4K-1L covered by Dag No. 173 of Khatian No. 78 as shown in Schedule B of the plaint; and (d) for sending the decree to Revenue Court for partition of her share of the land. 3. The suit was contested by defendant No. 1 (Upeswari) defendant No. 2 (Kailash Chandra Rai) and by pro forma defendant No. 8 (State of Assam). The plea of defendant Nos. 1 and 2 were; (1) that Batul had died 30 years ago in 1951 and the plaintiff deserted his home (Vidyapara) immediately after his death and thus she was out from ejmali possession. The plea of defendant Nos. 1 and 2 were; (1) that Batul had died 30 years ago in 1951 and the plaintiff deserted his home (Vidyapara) immediately after his death and thus she was out from ejmali possession. The defendant, therefore, stated that even if the plaintiff may have right she had lost it and they (defendant Nos. 1 and 2) have acquired the right by adverse possession. As such, the plaintiff had no cause of action, (2) that Smt. Dhanbhari during her life time had made a registered deed of gift of her share to defendant No. 2 and he (defendant No. 2) had built residential houses on the land and therefore the plaintiff cannot get the share of Dhanbhari, (3) The 7 (seven) persons; (i) Kumudini, (ii) Togru Roy, (iii) Herimati Ghose, (iv) Radhaballav Ghosh, (v) Kali Das, (vi) Kumudini Dasi and (vii) Debendranath Seal are recorded co-khatiandars and therefore they are necessary parties. The suit, therefore, must fail for non joinder of these parties. The contention of pro forma defendant No. 8 is that the record of right having been published in 1961-62, the suit is now barred by limitation and as such, the plaintiff could have no cause of action. 4. On the pleading the trial Court framed the following issues : 1. Whether there is cause of action for the suit and the plaintiff has right to sue. 2. Whether the plaintiff has any right, title and interest over the suit land and to what extent. 3. Whether the suit is bad for non joinder of necessary parties. 4. Whether suit land was ancestral property of both the parties that is to say whether suit property originally belongs to Satya. 5. The plaintiff examined herself as PW 1 three other witnesses as PWs 2 to 4 and exhibited one document (Jamabandi). The contesting defendant No. 1 and 2 did not examine themselves; but they examined four DWs. The pro forma defendant No. 8 did not examine witness. The trial court found Issue No. l in favour of the plaintiff. 5. The plaintiff examined herself as PW 1 three other witnesses as PWs 2 to 4 and exhibited one document (Jamabandi). The contesting defendant No. 1 and 2 did not examine themselves; but they examined four DWs. The pro forma defendant No. 8 did not examine witness. The trial court found Issue No. l in favour of the plaintiff. On Issue No. 2, the trial court found that (i) Kumudini, (ii) Torgu Roy, (iii) Herimati Ghosh, (iv) Radhaballav Ghosh, (v) Kali Das, (vi) Kumudini Dasi, and (vii) Debendranath Seal were cokhatiandars and, therefore, they were necessary parties and the plaintiff having failed to implead them, the suit was bad for non-joinder and liable to be dismissed. On Issue No. 3 he found that there was no clear and legal evidence to show that Batual inherited the property of his father Satya and as such, the plaintiff could have no case for the suit and on Issue No. 4, the trial court found that the suit land belonged to Satya and the plaintiff, as such had the right to sue. But he also found that the plaintiffs suit was vague and bad for multifareousness. On these grounds he dismissed the suit on contest with costs. 6. On appeal by the plaintiff the learned Assistant District Judge, Dhubri, found that after the death of her husband, Batul, the plaintiff had left Bidyapara and went to live in the house of her father at Tiamari and thus she did not have ejmali possession over any part of the suit land. He found that the defendants No. 1 and 2 proved by a deed of gift (Ext. Unga) that Dhanbhari had gifted 1 bigha of the suit land to defendant No. 2 on 2-9-1962 and the defendant No. 2 constructed a residential house for which he had been paying Municipal Taxes. So, he held that even if he might have a right, that has been extinguished by desertion and being out of possession for more than statutory period, the suit is barred by limitation. Lastly, he agreed with the trial court that there was a non-joinder of party. Thus, he maintained the trial Courts decree of dismissal. Hence, this second appeal. 7. On 3-12-1985, this Court admitted the appeal on the following grounds : 1. Lastly, he agreed with the trial court that there was a non-joinder of party. Thus, he maintained the trial Courts decree of dismissal. Hence, this second appeal. 7. On 3-12-1985, this Court admitted the appeal on the following grounds : 1. Whether a mere fact that the limited owner in a joint property being out of actual possession would disentitle her (the plaintiff) to become the absolute owner of the property in view of the provisions laid down under the Hindu Succession Act, 1956. 2. Whether it is necessary that the limited owner must exercise her right over the suit property after the death of the prodecessor-in-interest from whom the property is vested to the limited owner prior to coming into force of the Hindu Succession Act, 1956 in case of a joint property. 8. By order dated 27-9-1991, this Court (Srivastava, J.) framed new issue and remanded it to appellate Court for giving a finding after giving opportunity to both parties to adduce evidence and remit the finding to this Court within 4 months. The new issue framed and remanded was. Whether the plaintiffs right to the property in suit was extinguished by adverse possession of defendants including late Smt. Dhanbari ? In compliance, the appellant sent its finding dated 9-4-1992 that except in regard to the share of Dhanbari which the defendant No. 2 got by a gift deed from her (Dhanbari), the plaintiffs right had not been extinguished and, as such, there could be no adverse possession against the plaintiff in regard to the share of Batul. 9. Apart from the appellate Courts finding of 27-9-91, Mr. P. N. Goswami, learned counsel for the plaintiff/appellant, first argued that both the Courts were wrong in holding that the suit was bad for non-joinder of parties. He referred to Page 510 of Mullas Hindu Law (12th Edition) which is as follows : "The plaintiff in a partition suit, should implead as defendant - (i) The heads of all branches (c); (ii) Females who are entitled to a share on partition; (iii) Purchase of a portion of the plaintiffs share, the plaintiff himself being a co-parcener; (iv) If the plaintiff himself is a purchaser from a co-parcener he is alienor. The above are necessary parties and if any of them is not joined, the suit is liable to be dismissed. 10. Mr. The above are necessary parties and if any of them is not joined, the suit is liable to be dismissed. 10. Mr. Goswami has relied on Lakshmamma v. Someswar Rao, AIR 1953 Hyderabad 170, wherein it was held :- in a partition suit a person who is not at all interested in the result of the suit and who is not entitled to any share or interest in the suit property on the plaint allegations is not a proper or necessary party. It is not the case of the contesting defendant that 7 (seven) persons named by the defendant Nos. 1 and 2 were entitled to any share or were interested in the suit property. This being the position, it cannot be said that they are necessary parties and must be impleaded in the suit. Therefore, the suit cannot be dismissed on this issue. 11. The second point argued by Mr. Goswami is that under Section 14 of the Hindu Succession Act, the life estate of a widow became absolute and it did not matter if the widow was not in actual possession. In support of this, he relied on Mangal Singh v. Smt. Rattno, AIR 1967 SC 1786 , wherein it was held that even if a female Hindu be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it. In the instant case, the appellant may not be in actual possession but her ownership right in the property of her husband, Batul became absolute and it still exist and in exercise of ownership rights she would be capable of obtaining actual possession of it. It cannot be said that by not being in actual possession, the appellant had lost her rights to the property of her husband, Batul. Mr. Goswami referred to the evidence of PW 2 (Kailash Ch. Rai) which is as follows : "In the suit property, Batul, husband of Monomoyee has no share. I cannot say anything about the said land except 1 B of land which I cot by a gift deed from Dhandhari". 12. Mr. Goswami referred to the evidence of PW 2 (Kailash Ch. Rai) which is as follows : "In the suit property, Batul, husband of Monomoyee has no share. I cannot say anything about the said land except 1 B of land which I cot by a gift deed from Dhandhari". 12. As this witness (P.W. 2) cannot say anything about the said land except 18 which he got from Dhanbhari by a gift, there can be no question of adverse possession in regard to the share of Batul. The defendant Nos. 1 and 2, however, proved that Dhanbhari had made a gift of her land to defendant by a deed of gift in 1962 (Ext. Unga), the plaintiff, therefore, cannot get this part. 13. In the result, the appeal is allowed in regard to the share of Batul and the plaintiffs suit is decreed with respect of that land. As regards the land of Dhanbhari, the decree under appeal is maintained. I make no order as to costs. Order accordingly. AIR 1994 GAUHATI 22 "Muhini Thakuria v. Dhiraj Kalita" GAUHATI HIGH COURT Coram : 2 U. L. BHAT, C. J. AND R. K. MANISANA, J. ( Division Bench ) Smt. Muhini Thakuria and others, Appellants v. Dhiraj Kalita and others, Respondents. M. A. (F) No. 10 of 1990, D/- 8 -6 -1993.* (A) Motor Vehicles Act (4 of 1939), S.110A - MOTOR VEHICLES - Claim Petition - Locus standi - Compensation can be claimed only by L.Rs. of deceased, like spouse, children, and parents - His dependent brothers can file claim petition only in absence of said preferential heirs. AIR 1977 Gujarat 195 and 1992 ACC CJ 863 (Madh Pra), Dissented from. Claim petition - Locus standi - Dependent brothers of deceased can claim compensation only in absence of other preferential heirs, like spouse, children and parents. A claim petition under Section 110-A of the Act could be made by legal representative of the deceased and the right is not restricted to spouse, parent and child, of the deceased. However, a brother of the deceased may be a legal re-presentative of the deceased only in the absence of said preferential heirs under the personal law governing the parties and, if so, can claim compensation; but he cannot do so if he is not a legal representative though he may have looked to the deceased for financial support. However, a brother of the deceased may be a legal re-presentative of the deceased only in the absence of said preferential heirs under the personal law governing the parties and, if so, can claim compensation; but he cannot do so if he is not a legal representative though he may have looked to the deceased for financial support. In the present case, the brothers are not legal representatives since the mother who is alive is the preferential heir and, as such, they are not entitled to compensation. AIR 1977 Gujarat 195 and 1992 ACC CJ 863 (Madh Pra), Dissented from. AIR 1987 SC 1690 Expl. and Disting. (Paras 13, 16) (B) Motor Vehicles Act (4 of 1939), S.110B - MOTOR VEHICLES - Compensation - Determination - Considerations - Mere estimation of dependency without estimating income of deceased at all - Improper - Other relevant circumstance including future prospect must be taken into consideration. (Para 20) Cases Referred : Chronological Paras (1993) MA (F) No. 11 of 1989, D/- 13-5-1993 (Gauhati), Smt. Nirupama Rajkumari v. Union of India 22 1992 ACC CJ 863 (Madh Pra) (Diss. from) 15 AIR 1987 SC 1690 (Expl. and Disting) 14, 15 AIR 1977 Gujarat 195 (Diss. from) 14 P. K. Das and C. Choudhury, for Appellants; S. Dutta, B. K. Jain and K. K. Dey, for Respondents. *Against order of P. K. Das, Member, Motor Accidents Claims Tribunal, Kamrup, Gauhati, D/- 22-7-1989. Judgement BHAT, C. J. :- Claimants in MAC Case No. 54 (K)/86 on the file of the Motor Accident Claims Tribunal, Kamrup, Guwahati are the appellants herein. Respondents are the owner, driver and insurer of truck No. NLA. 2231. 2. Uttam Chandra Thakura, eldest son of the first appellant and the elder brother of appellants 2 and 3, while walking from North to South on the extreme left side of the PWD Road at Choudhary Khat at 2.30 p.m. on 7-1-1986, was hit from behind and run over by the truck, which also came from North to South. He sustained serious injuries and died instantaneously. P.Ws. 1 and 4, who witnessed the occurrence, gave information at the house of the victim. The first appellant rushed to the scene and found her son dead any lying in a pool of blood. The local police came to the scene. He sustained serious injuries and died instantaneously. P.Ws. 1 and 4, who witnessed the occurrence, gave information at the house of the victim. The first appellant rushed to the scene and found her son dead any lying in a pool of blood. The local police came to the scene. The dead body was sent to the local hospital for post mortem examination, which was done by P.W. 5. A case was registered against the driver of the truck and after investigation, charge-sheet was filed. 3. First appellant filed a claim petition under Section 110-A of the Motor Vehicles Act, 1939 (for short, the Act) against the owner, driver and insurer of the truck claiming Rs. 8,16,000/- as compensation alleging that the accident was the result of rash and negligent driving of the truck. Subsequently she amended the claim petition putting forward the claim for herself and on behalf of her two minor sons also and enhancing the claim to Rs. 11,31,200/-. 4. The owner of the truck filed a written statement raising all possible defences, such as, limitation, non joinder, mis joinder, petition not in proper form, not maintainable, frivolous, etc. and alleging that since the vehicle at the relevant time was insured with the third respondent herein the insurer was liable. He also challenged the particulars of occupation, income, dependency and compensation sought in the claim petition. He contended that the truck was being driven at a moderate speed and Uttam Chandra Thakuria, who was in a drunken state suddenly came to the road and climbed on the truck through the rear body cover and fell down on the road and died and there was no rashness or negligence on the part of the driver. 5. The insurer filed a written statement without admitting the insurance policy and stating that its liability, if any, will be subject to the terms and conditions specified in the policy and the provisions of the Act and that all relevant records relating to the policy, the vehicle and the driver must be produced. The insurer also stated that if the owner does not raise proper defence, the insurer will be entitled to contest the claim under Section 110-C (2-A) of the Act and will pray for necessary orders in that regard. The insurer also reserved its right to file additional written statement. The insurer denied that there was any policy cover. The insurer also stated that if the owner does not raise proper defence, the insurer will be entitled to contest the claim under Section 110-C (2-A) of the Act and will pray for necessary orders in that regard. The insurer also reserved its right to file additional written statement. The insurer denied that there was any policy cover. No additional written statement was filed. 6. The Tribunal held that the accident took place as a result of rash and negligent driving of the truck, that the truck at the relevant time was covered by an insurance policy issued by the third respondent, fixed the compensation payable at Rs. 1,35,000/-, less Rs. 15,000/- paid earlier under Section 92-A of the Act and passed an award directing the insurer to pay the amount with interest at the rate of 10% per annum from the date of filing of the petition till realisation. Claimant in the Tribunal along with her two other sons have filed this appeal contending that the Tribunal should have awarded higher compensation. 7. The only question which arises for consideration in the appeal is whether the quantification made by the Tribunal is too low and requires to be corrected. 8. At the outset we have to consider the question whether appellants 2 and 3, minor brothers of Uttam Chandra Thakuria are entitled to claim compensation ? It is necessary, in this connection to advert to the relevant provisions of the Fatal Accidents Act, 1855 and the Motor Vehicles Act, 1939. 9. Section 1A of the Fatal Accidents Act, 1855 deals with suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong. It is necessary, in this connection to advert to the relevant provisions of the Fatal Accidents Act, 1855 and the Motor Vehicles Act, 1939. 9. Section 1A of the Fatal Accidents Act, 1855 deals with suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong. Second para of the provision reads as follows : "Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;" (Emphasis supplied) Second para of Section 2 reads thus : "Provided that in any such action or suit the executor, administrator or representative of the deceased may insert a claim for, and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased." (Emphasis supplied) 10.(1) of Section 110-A of the Motor Vehicles Act, 1939 (Section 166(1) is the corresponding provision in the Motor Vehicles Act, 1988) reads thus : "(1) An application for compensation arising out of an accident of the nature specified in (1) of Section 110 may be made - (a) by the person who has sustained the injury; or (aa) by the owner of the property; or (b) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (c) by any agent duly authorised by the person injuried 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. (Emphasis supplied) 11. (Emphasis supplied) 11. The proviso to (1) of Section 110-A of the Motor Vehicles Act, 1939 makes it clear that ordinarily all the legal representatives of the deceased must join the application and where all of them have not so joined application must be made on behalf of or for the benefit of all of them and the legal representatives who have not so joined shall be impleaded as respondents. According to the appellants all of them are legal representatives of the deceased. The claim petition was filed only by the mother though it was stated that she was making the application on behalf of the minor brothers of the deceased also. Hence it was necessary that the minor brothers should have been impleaded as respondents. Respondents in the appeal have not filed any appeal or cross-objection in this regard. Appellants 2 and 3 were minors at the relevant time. Therefore it will be apposite to take a liberal view in regard to the question of non joinder. 12. Claim under Section 1A of the Fatal Accidents Act, 1855 can be made only for the benefit of spouse, parent and child of the deceased; it cannot be made for the benefit of brother or other relations of the deceased. The scope of Section 110-A of the Motor Vehicles Act, 1939 us wider and more comprehensive. Under this provision claim can be made by or for the benefit of all the legal representatives of the deceased. The expression legal representative has not been defined in the Act. Under the old English law, the primary meaning of the expression legal representative was executor or administrator though it might, under special circumstances, be controlled by the context. This position has undergone statutory change in England. There was no definition of the expression "legal representative" in the old Code of Civil Procedure and this caused some conflict of judicial opinion. Therefore definition of the expression has been incorporated in Section 2(11) of the Civil P.C., 1908. According to this definition, 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. This definition may not, in terms, apply to cases before the Tribunal; but the definition reflects the sense in which the expression is understood ordinarily and therefore must govern cases before the Tribunal. 13. This definition may not, in terms, apply to cases before the Tribunal; but the definition reflects the sense in which the expression is understood ordinarily and therefore must govern cases before the Tribunal. 13. Ordinarily, heirs of the deceased are the persons who represent the estate of the deceased and must be taken to be his legal representatives. It is thus clear that in case of death of a person in a motor vehicle accident compensation can be claimed only by the heirs. They may claim besides special damages, etc., compensation for economic loss and loss to the estate. Viewed in this light, brothers or other relations of the deceased who are not the heirs of the deceased, not being his legal representatives, cannot claim compensation. This is so even if as a matter of fact they were dependent on the deceased for financial help. 14. There has been difference of opinion among the High Courts on this question. These conflicting views were considered by the Gujarat High Court in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, AIR 1977 Gujarat 195, which related to a case of a claim preferred by the brother and nephews of a person who died in a motor vehicle accident. The court after considering the conflicting decisions of High Courts held that the claimants, though not dependents described in Section 1A of the Fatal Accidents Act, 1855, could sue in view of Section 110-A(1)(b) of the Motor Vehicles Act, 1939 which confers a substantive right on legal representatives to claim compensation and in the absence of any contention by the opposite parties that the claimants were not legal representatives of the deceased. This view has been upheld by the Supreme Court in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690 which related to the case of a claim petition filed by brothers of a minor child who died in a motor vehicle accident, on the basis that they were the heirs and legal representatives of the deceased. It was held that they could claim compensation as heirs. The Court observed in passing that in an Indian family brothers, sisters and brothers children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicles accident, there is no justification to deny them compensation. The Court observed in passing that in an Indian family brothers, sisters and brothers children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicles accident, there is no justification to deny them compensation. This observation has to be understood in the background of the facts of the case which clearly clarified that all the claimants were the heirs of the deceased. 15. Our attention has been invited to the decision in Shyama v. Radhyeshyam, 1992 Acc CJ 863 (M.P. High Court) where the Madhya Pradesh High Court came to a different conclusion relying on the decision of the Supreme Court in Ramanbhai Prabhatbhai case AIR 1987 SC 1690 . With great respect we feel that the above conclusion is based on a misappreciation of the decision of the Supreme Court. 16. The correct position of law is that claim in the case of a fatal accident under Section 110-A of the Motor Vehicles Act could be made by legal representatives of the deceased and the right is not restricted to spouse, parent and child. A brother of the deceased may be a legal representative of the deceased in the absence of preferential heirs under the personal law governing the parties and, if so, can claim compensation; but he cannot do so if he is not a legal representative though he may have looked to the deceased for financial support. In the present case, appellants 2 and 3 are not legal representatives since the mother who is alive is the preferential heir and, as such, they are not I entitled to compensation. 17. The claimant was examined as PW 6. She deposed that her son was 27 years at the time of his death; this is in consonance with the age given in Ext. 4, the Admit Card given to the deceased for the H.S.L.C. Examination. He was a bachelor at the time of his death. 18. In the claim petition it was stated that the deceased was a contractor earning Rs. 2500/- per month. PW 6 deposed that her son was a Government contractor for forest coupes, sand mahals and a trader in betel nuts and earning Rs. 3000/- per month and paying the entire amount to the family. 18. In the claim petition it was stated that the deceased was a contractor earning Rs. 2500/- per month. PW 6 deposed that her son was a Government contractor for forest coupes, sand mahals and a trader in betel nuts and earning Rs. 3000/- per month and paying the entire amount to the family. He had to discontinue studies because when he was in the Pre-University Class her husband died. The Tribunal rejected this evidence on the ground that no documentary evidence regarding his profession was forthcoming. The Tribunal did not estimate his income, but fixed the dependency at Rs. 1000/- per month, or Rs. 12,000/- per year, adopted multiplier of 15, deducted one-third on account of lump sum payment and arrived at the figure of Rs. 1,20,000/-. A sum of Rs. 15,000/- was awarded for "mental shock, pain, loss of love and affection and other expenses incurred". No compensation was awarded to appellants 2 and 3 on the ground that they had attained majority by the time the award was passed. 19. The Tribunal was in error in holding that there was no documentary evidence to show that at the time of the accident the deceased was the licensee of a sand mahal. P.W. 2, an officer in the Forest Department proved Ext. 1, agreement, Ext. 2 series challans for payment of taxes and Ext. 3 series challans for payment of kists. These documents show that the deceased had taken a licence to exploit 5000 cum. of sand for the period from 1-11-1983 to 31-10-1985 for Rs. 22,222/-. He had deposited Rs. 2233/- as security. Even if his margin of profit is to be regarded as 100%, his income from the sand mahal would be only Rs. 11,111/- per year. This would be less than Rs. 1000/- per month. The evidence of PW 6 that the deceased had forest coupe and trade in betel nuts, the evidence of P.W. 2 that the deceased had taken wood logs in auction, the evidence of P.W. 3 that the deceased had trade in betel nuts and manufactured river boats, cannot be accepted in the absence of a plea in the claim petition and documentary evidence. 20. It is contended for the appellants that the deceased was a young man at the threshold of his professional career and the Tribunal should have considered his future prospects. 20. It is contended for the appellants that the deceased was a young man at the threshold of his professional career and the Tribunal should have considered his future prospects. It is not possible to discern from the impugned judgment whether the Tribunal had applied its mind about the future prospects of increase in the income of the deceased. The Tribunal did not estimate the income at all, but merely estimated the dependency. That was a wrong procedure. All relevant circumstances including future prospects have to be taken into consideration. Since the profession which the deceased had chosen is a risky one, the risks in the profession also have to be taken into consideration. 21. Having regard to all the relevant factors, the average income of the deceased during his remaining span of life could legitimately be fixed at Rs. 2000/- per month. Since the brothers are not legal representatives of the deceased, in reckoning compensation any sum of money which the deceased might have been spending for their up-keep cannot be taken into consideration. The dependency of only the mother could be reckoned for the purpose of computing loss of support or economic loss to the legal representative. The Tribunal fixed Rs. 12,000/- per year as the contribution the deceased would make for the expenses of the family. Considering that only the mother is the legal representative, quantification of dependency is excessive. The deceased would be expected to spend not more than Rs. 500/- per month on the mother. 22. The Tribunal fixed fifteen as multiplier. P.W. 6 was aged 45 years and the deceased was aged 27 years at the time of the accident. The father of the deceased died at a comparatively young age. This factor is relevant for estimating the life-span of the deceased. The mother could be expected to live up to the age of sixtyfive to seventy years, but the entire period of her future life cannot be adopted as the multiplier. The law on the subject has been discussed by this court in Smt. Nirupama Rajkumar v. Union of India, (MA (F) No. 11/1989, d/- 13-5-1993). The sum of Rs. 1,20,000/-, if invested, would fetch interest of Rs. 1200/- per month, which is much more than the contribution that could be expected by the mother. Therefore the inflationary factor is more than neutralised. The sum of Rs. 1,20,000/-, if invested, would fetch interest of Rs. 1200/- per month, which is much more than the contribution that could be expected by the mother. Therefore the inflationary factor is more than neutralised. Deduction made by the Tribunal for lump sum payment may be excessive; but no deduction has been made for accelerated payment. Having regard to all the circumstances, we find no ground to enhance the multiplier. We may also indicate that claim for mental shock and pain suffered by the mother and for loss of love and affection is not sustainable. 23. We find no ground to interfere and accordingly dismiss the appeal, but without costs. Appeal dismissed.