Partly allowed

Smt. Prem Sharma v. Raj Kumar and Others

Punjab & Haryana HC19 Nov 2014FAO/957/1992

Case brief

AI extract

What is this about?

The High Court held that children born out of a void marriage are entitled to share in accident compensation under the Motor Vehicles Act and CPC. The Tribunal's Award was modified to include sons of the deceased born to the appellant woman, excluding her personal claim but allowing her sons' share, with distribution instructions.

What did the court decide?

Award modified to include sons of Prem Sharma in compensation; personal claim of Prem Sharma rejected; distributions ordered with security bonds.

Smt. Prem Sharma Vs Raj Kumar and Others — Succession and Inheritance | Punjab & Haryana HC (2014)

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Prem Sharma

� Appellant

Versus

Raj Kumar and others

� Respondents �� � Appellants Versus � Respondents

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��  Versus Date of decision: 19^th November, 2014

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Kaushalya Devi and others

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Raj Kumar and others

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Whether Reporters of Local Newspapers may be allowed �!"� to see the judgment?

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Whether to be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Mr. Mani Ram Verma, Advocate for the appellant in FAO No.957 of 1992; for respondent No.4 in FAO No.1550 of 1992

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Mr. Davinder Singh, Advocate for Ms. Vanita Sapra, Advocate for the appellants in FAO No.1550 of 1992

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Mr. R.C. Kapoor, Advocate for respondent No.3 in FAO No.957 of 1992

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Mr. R.K. Bashamboo, Advocate for respondent No.3 in FAO No.1550 of 1992

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None for respondents No.4 to 6; Service of respondents No.7 & 8 – dispensed with in FAO No.957 of 1992

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RATTAN PAL SINGH 2015.01.22 12:53 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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It is as a consequence of an Award dated 27.03.1992 of learned Motor Accident Claims Tribunal, Bhiwani cojointly disposing off three claim petitions, MACT Case Nos.49 of 1990, 23 of 1991 and 21 of 1990/1991 that the present two FAOs have arisen and thus are being disposed off together.

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It is consequent upon an accident that took place on 12.08.1990 leading to the death of Bal Kishan that claimants Kaushalya Devi claiming to be widow, Sant Kumar and Kumud Bala being children have instituted claim petition against driver Raj Kumar son of Prabhati Lal, owner Raj Kumar son of Ram Sarup and M/s New India Assurance Company Ltd. the insurer. Similarly claimant Prem Sharma also alleged to be a widow of the deceased Bal Kishan has laid stake to compensation.

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As have been the findings the learned Tribunal held and allowed the claim of claimant Kaushalya Devi and others awarding a sum of �86,400 whereas declined the relief to Prem Sharma and others. Thus, both set of claimants namely Kaushalya Devi has sought enhancement of the same besides Prem Sharma claiming her share to the compensation and allowing of her claim.

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Heard Mr. Mani Ram Verma, Advocate representing claimants Prem Sharma and others; Mr. Davinder Singh, Advocate appearing on behalf of Ms. Vanita Sapra, Advocate representing Kaushalya Devi and others; Mr. R.C. Kapoor, Advocate and Mr. R.K. Bashamboo, Advocate representing the insurer.

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RATTAN PAL SINGH 2015.01.22 12:53 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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Due to destruction of the original records not much is available by way of evidence for comprehensive adjudication, however, an effort is being made to dispense justice to the parties.

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Learned Tribunal has outrightly rejected the stand of the claimants that deceased Bal Kishan was working as a Contractor for some factory at Charkhi Dadri. Though the claimants have brought on the record the documents by way of letters Ex.P22 and Ex.P23 to establish this fact but the same has been declined on the grounds that none of the officials of the factory have been examined to prove these documents of the avocation and income of the deceased.

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Even if for the sake of arguments as has been canvassed on behalf of Kaushalya Devi and Prem Sharma keeping in view that the deceased at the time of his death was aged around 52/53 years and considering in the absence of any evidence in view of the settled law, it would be justified to hold that in all eventuality the deceased must be earning �1,500 per month as a labourer in the year of the accident which is a reasonable amount. Taking the fact that out of this amount keeping in view the number of family members the deceased must be contributing �1,100 per month to the family and therefore, annual dependency comes to �13,200. Considering the relative ages of the claimants and that of the deceased, multiplier of 11 appears to be the most appropriate and therefore, compensation comes to �1,45,200. The family must have spent money on the last rites and ceremonies and therefore together with the fact that the legitimate wife is entitled to compensation for loss of consortium besides the children

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RATTAN PAL SINGH 2015.01.22 12:53 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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who have lost their father a source of love and affection and under all these conventional heads they are awarded �1,50,000 as compensation. Therefore, total compensation comes to �2,95,200.

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Besides this, the claimants are also entitled to interest @7.5% p.a. from the date of filing of the appeal till realization. Interim compensation paid, if any, shall be adjusted.

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The most rallying point is over the entitlement to compensation as it has been vehemently argued by Mr. Davinder Singh, Advocate on behalf of Kaushalya Devi that she and her children are the legitimate wife and children of the deceased whereas other claimant Prem Sharma and her children so alleged to be the other wife of the deceased have no locus standi and which is controverted with much force and vehemence by Mr. Mani Ram Verma, Advocate representing Prem Sharma contending that they are real legal representatives entitled to this compensation. The proceedings culminating into passing of the Award are summary in nature where stricter principles of evidence are not applied. As has already been expressed there is non availability of the evidence to assist the Court in this endeavour. Since there is a categorical finding returned by the Tribunal that Kaushalya Devi and others are the legitimate widow and children and not Prem Sharma and her children therefore, question of legality and validity of this marriage in the present proceedings cannot be comprehensively adjudicated. Moreover, the provisions of Section 5 of the Hindu Marriage Act, 1955 prohibit second marriage during the lifetime of the first wife. Though,

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RATTAN PAL SINGH 2015.01.22 12:53 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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Section 16 of this Act, which was introduced by way of amendment in the year 1976 prior to this accident bestows upon such children born out of such null and void marriages a legitimacy, though the Hindu Succession Act, 1956 by way of Section 10 ensures distribution of property amongst Class I heirs in the light of Schedule I annexed to the Act and which classifies the widow, son and daughter as Class I heirs. Though, as a passing reference with the advent of modernization, there has been a dynamic shift in legal jurisprudence pertaining to this social aspect whereby even liveDin relationship has started to be acknowledged. A bold step of the legislation in bringing about amendment by way of Section 16 of the Hindu Marriage Act has come about. While adjudicating on this aspect, learned Tribunal remained in oblivion to this aspect of the matter and has outrightly rejected the claim of Prem Sharma and other claimants when Motor Vehicles Act, 1988 entitles by way of Section 166, the following Class of persons:

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(a) by the person who has sustained the injury; or

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(b) by the owner of the property; or

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(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be.

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RATTAN PAL SINGH 2015.01.22 12:53 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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Thus, the plain reading shows that much emphasis has been placed by the legislature as to the entitlement of legal representatives.

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Section 2(11) CPC defines ‘legal representative’ to be a person who in law represents the estate of a 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.

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Hon’ble Apex Court in the case of $%!�&'(�)��%*+,-� '&,� �,+��,(./'�� reported in �0��12�� 1 has sought to hold the fiction that even if the marriage is void or voidable to confine the succession or inheritance by such children and thus, to the mind of the Court even if the marriage between Prem Sharma and the deceased so alleged is void abDinitio or is voidable as the case may be, even then the children born out of this relationship cannot be deprived of their right to this succession. Thus, the findings of learned Tribunal to that extent need to be modified and it is held that the claimants in the claim petition No.23 of 1991 titled as ‘Prem Sharma & others v. Raj Kumar & others’ excluding Prem Sharma are also entitled to their share in the compensation amount, however, in the absence of any comprehensive civil adjudication which will ultimately bind the parties qua this aspect of the matter, the parties shall be at liberty to get adjudication from the appropriate forum qua this aspect. However, for the decision of the present matter and to ensure that there is speedy

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RATTAN PAL SINGH 2015.01.22 12:53 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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disposal of the matter regarding compensation amount so accrued shall be equally distributed amongst claimants namely Kaushalya Devi, Sant Kumar, Kumud Bala in claim petition No.49 of 1990 and amongst Sanjay Kumar and Anand Kumar alleged sons of deceased Bal Kishan out of his relationship with Prem Sharma in claim petition No.23 of 1991. However, claim of Prem Sharma claimant is declined and findings of the Tribunal to that effect are upheld.

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In view of the foregoing discussion, the impugned Award is accordingly modified and both the appeals stand disposed off in those terms.

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However, to ensure that there could be legitimate compliance of any findings of the Civil Court which may be subsequently secured, the Executing Court is directed to release the amounts after securing adequate security bonds to its satisfaction from each of the claimants. Share of the minors, if any, shall be deposited by way of FDR till they attain the age of majority.

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RATTAN PAL SINGH 2015.01.22 12:53 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

Smt. Prem Sharma v. Raj Kumar and Others

Case brief

What is this about?

What did the court decide?

Smt. Prem Sharma v. Raj Kumar and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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