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Madhya Pradesh High Court · body

2009 DIGILAW 483 (MP)

Saraswati Sai v. Asgar Ali

2009-04-15

A.M.NAIK

body2009
ORDER 1. Facts relevant for the purposes of this appeal are in very narrow compass. Maniram Gond, father of claimants-appellants was accompanying Vinod Shukla, on a Motorcycle on 16.7.1992, when he was hit by a bus bearing registration No. MKI-1654, belonging to respondent No.2 which was being driven in a rash and negligent manner by respondent No.1. It was a headon collision. Due to the accident Maniram fell down from the motorcycle and was crushed by the bus, causing his death. A Claim Petition under section 166 of the Motor Vehicles Act, was submitted by the minor children of Maniram through their grand-mother Mannobai. It was resisted inter alia on the ground that mother of the claimants who happened to be the widow of Maniram had submitted a Claim Case No. 24/92, which terminated inl0 ,a compromise for a sum of Rs.30,000/- accepted by the Motor Accident Claims Tribunal, Mandla, on 22.11.1991. 2. Learned Additional Motor Accident Claims Tribunal, Dindori, Camp Mandla, vide the impugned order dated 18.1.2000 passed in Motor Accident Claim Case No. 38/99, dismissed the Claim Petition of claimants-appellants on the ground that their mother has already received Rs.30,000/- as compensation on account of death of Maniram by way of compromise recorded in earlier Claim Case No. 24/92 and, therefore, there is no legal propriety in again claiming the amount of compensation. 3. Shri Patel, learned counsel for appellants contended that claimants are entitled to amount of compensation on account of death of their father which arose out of the use of motor vehicle and they cannot be deprived of the same merely on account of their mother having received the amount of compensation for her own. 4. 3. Shri Patel, learned counsel for appellants contended that claimants are entitled to amount of compensation on account of death of their father which arose out of the use of motor vehicle and they cannot be deprived of the same merely on account of their mother having received the amount of compensation for her own. 4. Sub-section (1) of section 166 of the Motor Vehicles Act, 1988, provides for an application for compensation which runs as under: "166 (1) Application for compensation -- An application for compensation arising out of an accident of the nature specified in sub-section (1) of 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 (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." 5. Accordingly, respondent No.3, who happened to be the mother of claimants was within her rights to submit an application for compensation being a legal representative of the deceased. However, proviso to subsection (1) of section 166 of the Act, makes it clear that an application for compensation ought to have been made on behalf of or for the benefit of all the legal representatives. It further provides that legal representatives who have not joined as claimants, shall be impleaded as respondents. Certified copy of the order dated 22.11.1992 recording and accepting thereby the compromise in earlier Motor Accident Claim Case No. 24/92 is on record which reveals that the earlier Claim Petition was submitted by respondent No.3 alone on her own behalf and it was not submitted on behalf of all the legal representatives. It is not disputed that claimants-appellants are children of deceased Maniram. In Claim Petition No. 24/ 92 present claimants were not joined as applicants or further were not impleaded as respondents. It is not disputed that claimants-appellants are children of deceased Maniram. In Claim Petition No. 24/ 92 present claimants were not joined as applicants or further were not impleaded as respondents. Thus, the compromise between respondents inter se was accepted by the Court in earlier Claim Case No. 24/92 on 22.11.1992, without ascertaining the position of other legal representatives of the deceased e.g. present claimants-appellants. In view of the aforesaid proviso, it was the bounden duty of the Claim Tribunal to ascertain the position of other legal representatives of the deceased and to get them impleaded in the claim case. Moreover, the claimants-appellants being minors, respondent No.3 could not have entered into a compromise on their behalf without leave of the Court as required under Order 32 Rule 7 of Code of Civil Procedure. Application for such leave was required to be filed along with an affidavit of the next friend or guardian to the effect that the agreement of compromise proposed is for the benefit of minors. No such procedure seems to have been followed in the order sheet dated 22.11.1992 in earlier Claim Case No. 24/92. Thus, by no stretch of imagination, the compromise recorded and accepted vide order dated 22.11.1992 may be legally treated as on behalf of minor claimants. Since the right to demand compensation under section 166 of the Motor Vehicles Act, flows in favour of claimants being legal representatives of deceased, it cannot be denied on the basis of a compromise entered into with the opposite party by another legal representative of the deceased. Application for compensation submitted by the Claimants-appellants is, therefore, to be adjudicated independently on its own merit, in accordance with law, without getting influences by the earlier order dated 22.11.1992. 6. Learned Claims Tribunal has, thus acted with illegality in dismissing the claim for compensation of the minor claimants-appellants on the basis of the earlier compromise to which the minor claimants-appellants were not party and further for the reason that the compensation is found to have been received by respondent No.3 in her own capacity. 7. In the result, the appeal is, hereby, allowed. Impugned award dated 18.1.2000 is, hereby, set aside. 7. In the result, the appeal is, hereby, allowed. Impugned award dated 18.1.2000 is, hereby, set aside. Learned Claims Tribunal is directed to redecide the Claim Petition afresh, on its own merit within a period of four months from the date of receipt of this order, in accordance with law, without getting influenced by the earlier order dated 22.11.1992. 8. Appeal accordingly stands allowed with the aforesaid direction. Claimants-appellants are directed to appear before the trial Court on 4th May 2009. No order as to costs.