Karnataka High CourtRadha @ Tara D/O Shankar Birje vs Punekar Abdul Gani Abdul Rehaman on 30 May, 2017Author:S.N.SatyanarayanaBench:S.N. SatyanarayanaIN THE HIGH COURT OF KARNATAKA,
                      DHARWAD BENCH

            DATED THIS THE 30TH DAY OF MAY 2017

                          BEFORE

        THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA

                  MFA NO.20658/2012(MV)

BETWEEN:

KUM RADHA @ TARA
D/O SHANKAR BIRJE
AGE: 17 YEARS, OCC: STUDENT,
MINOR REPPRESETING HER NEXT FRIEND
MOTHER SMT.MANJULA MARUTI BIRJE
AS A GUARDIAN, R/O: KARNATAKA VYAYAM
SHALE RASTHE, MARATHA COLONY,
DHARWAD.
                                             ....APPELLANT

(BY SRI R.A.PUROHIT, ADVOCATE, FOR SRI DINESH M
KULKARNI, ADVOCATE)

AND:

1.     SRI PUNEKAR ABDUL GANI,
       ABDUL REHAMAN, H.NO.225,
       SAKHERPETH, SOLAPUR,
       MAHARASHTRA.

2.     THE MANAGER,
       THE NEW INDIA ASSURANCE CO. LTD.,
       GAYATRI KRUP (UKKA ROAD),
       CHANDRANAGAR LATUR-413512.
                                           ....RESPONDENTS

(R1-NOTICE SERVED)
(BY SMT.PREETI SHASHANK, ADVOCATE FOR R2)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAISNT
                                2




THE JUDGMENT AND AWARD DATED 25.08.2011 PASSED IN
MVC.NO.82/2010 ON THE FILE OF FAST TRACK COURT-I,
DHARWAD.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENTThe claimant in MVC No.82/2010 on the file of MACT,

Dharwad has come up in this appeal impugning judgment

and award dated 25.08.2011, wherein her claim petition is

dismissed. The said judgment of dismissal is subject

matter of this appeal.2.    In this appeal an application in IA No.1/2015 is

filed by a person by name Smt.Kamala D/o Bharmaji Birje

a pensioner aged 60 years. She is seeking to get herself

impleaded in this proceedings on the premise that, she has

secured Succession Certificate with reference to            the

properties of deceased Shanta Bharmaji Birje by initiating

proceedings under the provisions of theSuccession Actin

O.S.No.2/2011 on the file of District Court, Dharwad.3.    Brief   facts    leading   to   this   appeal   and

application are as under:3In a road traffic accident dated 16.07.2009 a lady by

name Shantha Birje an inmate of Omni Car bearing

registration    No.KA.25/M-1375    died   due   to   accident

between said Omni Car with lorry bearing registration

No.MH.12/GA-9219. The accident is not in dispute, so also

death of Smt.Shanta Birge in the said accident. It is seen

that in the said accident besides Shanta Birje her mother

Indubai, brother Ganapati and other relatives were also

travelling in the said vehicle resulting several claim

petitions being filed.4.       One of the claim petitions in MVC No.82/2010

is filed by a minor girl namely Kumari Radha @ Tara

claiming herself to be daughter of Shankar Birje has filed

the claim petition on the premise that she is adopted

daughter of deceased Shanta Birje. Incidentally, the claim

petition filed by her is through her biological mother as her

natural guardian. The name of her biological mother is

Smt.Manjula Maruti Birje and she has claimed herself to be

guardian of minor girl Kumari Radha. In the proceedings

before the Tribunal the claim petition in MVC No.82/20104was heard and decided along with other claim petitions

filed by the legal heirs of other persons who died in the

said accident.5.     In so far as other claim petitions in MVC

No.83/2010        and    MVC    No.84/2010      are     concerned,

compensation is awarded to the L.Rs., of the deceased

persons. When it comes to MVC No.82/2010, the claim

petition is dismissed on the ground that claimant Kumari

Radha @ Tara failed to establish that she was adopted

daughter of deceased Shanta Birge. The said judgment of

dismissal is subject matter of this appeal.6.     In    the   meanwhile,      the   applicant      in    IA

No.1/2015 who is seeking to get herself impleaded has

contended that she is the sister of deceased Shanta Birje.

She would state that she has filed the original suit in

O.S.No.2/2011       seeking    probate   of    the    last   Will   of

Smt.Shanta Birje. Wherein it was contended that she has

succeeded to the state of Shanta Birje and as such she is5entitled to come on record and seek compensation by

getting herself impleaded.7.    Heard the learned counsel for the appellant

and as well as the applicant. Perused the common

judgment rendered by the Court below in three claim

petitions, particularly with reference to the claim petition in

MVC No.82/2010 and also the probate certificate and

affidavit filed in support of application in IA No.1/2015.8.    The material on record would indicate that,

though the claimant Kumari Radha @ Tara daughter of

Shankar Birje has claimed herself to be adopted daughter

of deceased Shanta Birje, she has not produced any

document to support the same and she also failed to

establish the date on which a formal ceremony was

conducted to take her in adoption by Shanta Birje and any

documents which follows pursuant to said ceremony are

also not produced. The oral evidence which is adduced by

her to support the adoption is not rightly accepted by the

Court below in as much as they fall short in demonstrating6with reference to date and time as to when adoption has

taken place and also for lack documentary evidence in

support thereof. Therefore, this Court find, no justifiable

grounds are made out to admit the appeal filed by the

claimant in the Court below to consider her right to seek

compensation. Accordingly, appeal needs to be dismissed.

However, since there is already an application filed by

none other than the sister of deceased Shanta Birje

seeking to come on record. That application will have to be

decided before the appeal is dispose of. Therefore, the said

application is taken up for consideration.9.        Admittedly the applicant Kamala is aged more

than 60 years and she is a pensioner having independent

source     of   income.   There       is   nothing   on    record   to

demonstrate that she was either dependent on deceased

Shanta Birje or that she has any independent right to seek

compensation for her death.10.       In   a    proceedings          initiated     seeking

compensation for death in a motor vehicles accident the7basic ingredients which are required to be established by

the claimant is that, the claimant has suffered monitory

loss or loss of support either pecuniary or emotional

support which needs to be compensate. As in the instant

case succession to the estate of deceased by virtue of

registered will executed in her favour is itself would not

entitle her to seek compensation as a matter of right.11.    In the instant case there is nothing on record

which would substantiate that the impleading applicant to

secure compensation on any of the grounds. As the

claimant as impleading applicant as stated by herself in

her application she was in Government Service she had

independent    source    of       income   she   was     living

independently. So therefore there was nothing on record

to show that she was either dependent on deceased

Shanta Birje or that she has any emotional attachment to

seek compensation at least on the ground of loss of love

and affection. In the fact situation, this Court find merely

because she has secured probate of the Will, which is

executed in her favour by Shanta Birje by itself will not8entitle her to get compensation in the proceedings underSection 166of the Motor Vehicles Act.12.   In that view of the matter this Court find no

grounds are made out to allow the application filed by

impleading applicant to permit her to come on record as

appellant to pursue the appeal filed by Kumari Radha

seeking compensation as adopted daughter. Accordingly,

the said application is dismissed, consequently for the

reasons stated supra the appeal is also dismissed.Sd/-JUDGE
EM/-