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2011 DIGILAW 480 (GAU)

Basanti Jaiswal v. Gauri Shankar Gupta

2011-06-03

ANIMA HAZARIKA

body2011
JUDGMENT Mrs. Anima Hazarika, J. 1. Heard Mr. P.J. Saikia, learned counsel appearing for the petitioners. None appeared for respondents despite service of notice. Challenge in the instant revision petition is made against the order dated 17.03.2009 passed by the learned Member, Motor Accident Claims Tribunal (in short MACT), Tinsukia in MAC Case No.' 62 of 2007 and the order passed on 22.052009 refusing to review the earlier order whereby it has been held that the proforma respondent No. 4 (Respondent No. 1 herein) is entitled to get Rs.1, 12,500/-, the claimant/respondent No. 2 will get the rest of the amount and the married daughters of the deceased late Rameswar Prasad Gupta are not entitled to any compensation they being married daughters of the deceased/thereby rejecting the petition No. 248/08 filed by the daughters of late Rameswar Prasad Gupta. 2. The brief facts of the case is narrated in a nutshell as follows: Late Rameswar Prasad Gupta died on 02.06.2006, due to injuries sustained in a Motor Accident which occurred on 25.042006 at Tinsukia leaving behind the following heirs : (1) Shri Uma Shankar Gupta, (2) Shri Gauri Shankar Gupta, (3) Smti Lajwanti Jaiswal, (4) Smti Basanti Jaiswal, and (5) Smti Devanti Jaiswal. 3. On the death of Rameswar Prasad Gupta, it was decided in a family meeting that the claim petition would be filed by Shri Uma Shankar Gupta and on getting the compensation award, it should be divided in 5 equal installments amongst the brothers and the sisters deducting the medical expenses incurred by Uma Shankar. 4. Accordingly a claim petition was filed before the MACT on 4.10.2007 by Shri Uma Shankar Gupta claiming compensation of Rs.3,90,000/- making the insurance company, the owner of the vehicle, the driver as opposite parties and Shri Gauri Shankar Gupta as proforma opposite party. But the sisters were not made parties in the claim petition which was registered as MAC No. 62 of 2007. 5. In the claim petition wherein the proforma respondent No. 4 though was made a party filed his written statement claiming 50% total compensation. The claim petition being No. 62/07 was however placed before the Lok Adalat on 09.02.2008 wherein a joint compromise petition was filed by the claimant and the insurance company and as per the agreement) the insurance company was directed to pay a sum of Rs. The claim petition being No. 62/07 was however placed before the Lok Adalat on 09.02.2008 wherein a joint compromise petition was filed by the claimant and the insurance company and as per the agreement) the insurance company was directed to pay a sum of Rs. 2,25,000/- (Rupees Two Lakhs Twenty-Five Thousand) only to the claimant within two months, failing which the claimant will be entitled to realise the compensation with interest @ 8 % p.a. from 09.02.2008. 6. However, the pro forma opposite party No. 4 in the claim petition. In connection with the MAC Case No. 62/07 claimed 50% of the total amount awarded as compensation alleging that no notice was served on him when the case was settled by Lok Adalat and prayed for necessary order reviewing the order dated 09.02.2008 being petition No. 247/08. 7. On receipt of the petition filed by the pro forma respondent No. 4, the claimant put an objection along with other sisters being petition No. 248/08 contending inter alia that the amount awarded be divided into five parts equally after deducting the medical expenses and accordingly the learned Tribunal sought for legal heir certificate which was produced before the learned Tribunal. Thereafter the pro forma opposite party No. 4 filed another petition alleging fraud by the claimant and obtained the order or 09.02.2008 without serving notice on him being petition No. 54/09 contending that the married daughters are not entitled to get compensation. 8. Thereafter, the learned Member, MACT after hearing the parties vide order dated 17.03.2009 allowed the petition No. 54/09 filed by the pro forma opposite party No. 4 in the claim petition thereby awarded 50% of the compensation to him rejecting the petition No. 248/08 dated 28.03.2008 holding that the married daughters are not entitled to get the compensation. 9. Being aggrieved with the order dated 17.03.2009, the petitioner herein filed a review petition being petition No. 308/09 under Order XLVII , Rule 1 read with Section 151 of the Code of Civil Procedure (Code for short) on 20.03.2009 contending inter alia that none of the legal heirs of late Rameswar Prasad Gupta are dependant on the earning of the deceased and the petitioners are the legal representative as defined under Section 2 clause (ii) of the Code and prayed for review of the order dated 17.02.2009. But the learned Tribunal after hearing the parties vide order dated 22.05.2009 rejected the review petition holding that the same is not maintainable and hence the instant petition under Article 227 of the Constitution of India challenging the orders dated 17.03.2009 and 22.05.2009. 10. Section 6 of the Hindu Succession Act, 1956 was substituted by Act 39 of 2005, whereby devolution of interest in coparcenery property on and from the commencement of Act, 2005 in a Joint Hindu Family governed by Mitakshara law, the daughter of a coparcener shall-- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenery property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenery property as that of a son; and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. 11. Admittedly the petitioners herein alongwith the claimant and the pro forma opposite party No. 4 are governed by Mitakshara law and late Rameswar Prasad Gupta was a karta as per Hindu Mitakshara law and therefore remained as joint Hindu family till separates themselves by partition of the joint Hindu family property. Nowhere in the pleadings it has been averred that they were not in the joint Hindu family governed by Mitakshara law under the Hindu Succession Act and therefore, exclusion of married daughters from getting the share of compensation awarded MACT is wholly untenable. 12. Apart from the above law, a Division Bench of this Court has held in Ruben Borah v. Anju Borah & Ors., reported in 2005 (4) GLT 127 while dealing with Section 166 of the Motor Vehicles Act that Hindu daughters can be treated as the legal representatives as provided under Section 2(ii)of the Code and applicable to compensation proceeding under the Act. The Court has held that the daughter; whether married or unmarried are Class I heirs under Section 8(a) read with Schedule of Hindu Succession Act, 1956 are entitled to get the compensation awarded by MACT. 13. The Court has held that the daughter; whether married or unmarried are Class I heirs under Section 8(a) read with Schedule of Hindu Succession Act, 1956 are entitled to get the compensation awarded by MACT. 13. A conjoint reading of Section 6 of the Hindu Succession (Amendment) Act 2005 coupled with the decision rendered by the Court in Ruben Borah (supra), this Court has no hesitation to hold that married, daughters of Hindu under the Hindu Succession Act are entitled to get the compensation awarded by MACT, Tinsukia in MAC Case No. 62 of 2007. 14. In the result the petition is allowed. The orders dated 17.032009 and 22.05.2009 passed in MAC Case No. 62/2007 by the learned MACT, Tinsukia are set aside and quashed. Consequently it is directed that after deducting the medical expenses incurred by Uma Shankar, the rest of the compensation amount awarded, would be equally distributed amongst the legal heirs of late Rameswar Prasad Gupta, viz.; (1) Shri Uma Shankar Gupta, (2) Shri Gauri Shankar Gupta; (3) Smti Basanti Jaiswal; (4) Smti Lajwanti Jaiswa; and (5) Smti Devanti Jaiswal. The parties are left to bear their own costs. Petition allowed.