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2011 DIGILAW 1927 (RAJ)

Suraj Jain v. Surendra Kumar

2011-09-07

DINESH MAHESHWARI

body2011
Hon'ble MAHESHWARI, J.—Looking to the subject matter of this writ petition, while dispensing with the service on the respondent No.4, said to be the driver of the vehicle involved in the accident, the learned counsel for the parties have been heard finally at this stage itself. 2. This writ petition is directed against the order dated 27.07.2009 as passed by the Motor Accidents Claims Tribunal-I, Jodhpur rejecting an application for impleadment as moved by the petitioners in the claim application made by the respondent No.1. In the concerned claim application, the claimant-respondent No.1 has claimed compensation on account of demise of the victim Narendra Kumar in a vehicular accident while asserting himself to be the brother of the deceased. The present petitioners made the application seeking to join the said claim proceedings with the submissions, inter alia, that the victim was the brother of petitioner No.1, maternal uncle of the petitioners Nos.2 and 6, and maternal uncle of the deceased mother of the petitioners Nos.3 to 5. The petitioners asserted that the claimant-respondent No.1 though earlier obtained the signature of petitioner No.1 and assured that the claim application shall be made on behalf of all the concerned but then, made the claim application only in his name; and such a fact came to their notice only when the husband of the petitioner No.1 appeared before the Tribunal for the purpose of evidence on 27.03.2009. The petitioners suggested that the victim was a divorcee and had no issue and that he was regularly contributing to his elder sister (petitioner No.1) and was also looking after the education of the petitioners Nos.3 to 5 who were living with their maternal grandmother (petitioner No.1) after the demise of their mother. 3. The application was put to contention by the claimant-respondent No.1 with the submissions that the petitioners were aware of the proceedings right from the beginning and that they were not required to be joined in the claim application for being not the legal representatives or the dependents of the deceased Narendra Kumar. 4. 3. The application was put to contention by the claimant-respondent No.1 with the submissions that the petitioners were aware of the proceedings right from the beginning and that they were not required to be joined in the claim application for being not the legal representatives or the dependents of the deceased Narendra Kumar. 4. The Tribunal has proceeded to reject the application so moved by the petitioners by the impugned order dated 27.07.2009 with the observations that there was nothing on record to find prima facie if the petitioners were in any manner dependent on the deceased Narendra Kumar; and that in case of dependency, they could have made a separate claim for compensation. The Tribunal was of opinion that joining the applicants as parties would create complications in the matter and would delay the disposal of the proceedings. 5. Aggrieved by the order so passed by the Tribunal on 27.07.2009, the applicants-petitioners have filed this writ petition. This writ petition was entertained on 12.08.2009 by this Court to the limited extent of considering the application for impleadment in relation to the petitioner No.1, said to be the sister of vehicular accident victim; and while issuing notice, this Court ordered as under :- "Heard the learned counsel for the petitioners and perused the material placed on record. Issue notice to the respondents to show as to why this writ petition be not admitted and disposed of only to the extent of allowing the application as made on behalf of the petitioner No.1, said to be the sister of the vehicular accident victim, for her joining as party to the claim application made by the respondent No.1 as brother of the victim. Issue notice of the stay application also. Notices be made returnable on 21.08.2009. However, Service on the proforma respondent No.3, the Tribunal concerned, is dispensed with. In the meanwhile, the Tribunal concerned though may proceed with the trial and other proceedings in the claim application bearing No.493/2007 but shall not finally decide the same until further orders of this Court." 6. After having heard the learned counsel for the parties on the limited question as noticed above, and after having examined the material placed on record, this Court is clearly of opinion that the Tribunal has not properly exercised its jurisdiction in relation to the application for impleadment so far the petitioner No.1 is concerned. 7. After having heard the learned counsel for the parties on the limited question as noticed above, and after having examined the material placed on record, this Court is clearly of opinion that the Tribunal has not properly exercised its jurisdiction in relation to the application for impleadment so far the petitioner No.1 is concerned. 7. So far the status of the parties qua the deceased is concerned, in the opinion of this Court, the petitioner No.1 and the claimant-respondent No.1 stand on the same footings, being respectively the sister and the brother of the deceased who was allegedly a divorcee and had no issue. In the given factual matrix and with reference to the Schedule to the Hindu Succession Act, 1956, it appears that the deceased has not left behind any Class-I heir; and the petitioner No.1 and the respondent No.1 both stand at par as the heirs of second entry in Class-II in the Schedule ibid. Now, as per the proviso to sub-section (1) of Section 166 of the Motor Vehicles Act, 1988 ('the Act of 1988'), the application for compensation is to be made on behalf of or for the benefit of all the legal representatives of the deceased; and the legal representatives who have not joined in the claim are required to be impleaded as the respondents. Sub-section (1) of Section 166 of the Act of 1988 reads as under:- "166. Application for compensation.- (1) 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." 8. In the aforesaid position of law, and in the given status of the parties, the petitioner No.1 appears to be rather a necessary party to the claim application. When the respondent No.1 (brother of the deceased) omitted to join the petitioner No.1 (sister of the deceased) as party to the claim application and she herself came forward and moved the application for impleadment, in the opinion of this Court, at the given stage, the application could not have been rejected with the cursory observations about the doubts on the aspect of dependency of the applicants. In fact, at the given stage, there was no occasion for the Tribunal to determine finally the aspect of dependency; and such an aspect was to be considered at the relevant stage and more particularly, at the time of final disposal of the claim application. Outright rejection of the application of the petitioner No.1 for impleadment with cursory and untenable observations about dependency cannot be said to be the proper exercise of jurisdiction. Similarly the observation that if it were a case of dependency, the applicants-petitioners could have filed a separate application cannot be said to be apt or proper for the purpose of the application at hand. As observed above, as per the requirements of proviso to sub-sec. (1) of Sec. 166 ibid, the petitioner No.1 was, in fact, required to be joined as party in the claim application in the very first place. 9. In view of the above, this Court is clearly of view that the impugned order deserves modification and the application for impleadment insofar it relates to petitioner No.1, deserves to be allowed. 10. Accordingly, this writ petition is partly allowed; the impugned order dated 27.07.2009 is set aside to the extent indicated; the application made by the applicant-petitioner No.1 Smt. Suraj Jain wife of Shri Uttam Chand Jain is allowed; and the applicant-petitioner No.1 shall stand arrayed as non-applicant No.4 in the concerned claim application who shall be entitled to submit reply and so also to submit the claim, if any sought to be made by herself against the other non-applicants. In the circumstances, there shall, however, be no order as to costs of this petition.