Tarsem Lal Sharma and Others vs Yash Paul Sharma and Others

Vinod Kumar Gupta, J.—The dispute in this appeal is between the paternal uncle and maternal uncle of minor sons of deceased Shri

Rajinder Paul Sharma.

The brief admitted facts of the case are that on 18.1.1998 the deceased Rajinder Paul Sharma met with an accident at Miseriwala and was

crushed to death by a rashly and negligently driven truck No. JK02-H 685 by Yash Paul Sharma respondent/driver. The deceased left behind two

minor sons. A claim petition under Sections 140/166 of Motor Vehicles Act was filed in the names of minors through their guardian maternal uncle

Hans Raj on 17.3.1998. Subsequently on 19.5.1998 paternal uncle of the minors Tarsem Lal made another claim petition before the Motor

Accident Claims Tribunal, Jammu by changing the names of minors and also making himself as one of the petitioners. In both the petitions, the

petitioners received Rs. 50,000/- as interim relief of compensation. Finally on 31.10.2002 the learned Tribunal made an award of Rs. 3,53,808/-

along with interest @ 9% per annum from the date of filing of claim petition till the payment is made. The Tribunal further made an arrangement of

payment of Rs. 15,000/- to the minor petitioners through their maternal uncle Hans Raj and directed to keep the remaining amount in fixed deposit

in the name of minor petitioners in equal shares till they attain the age of 21 years. The learned Tribunal also directed the petitioner Tarsem Lal,

paternal uncle of the minors, to return back the interim award amount received by him in his claim petition.

The appellant Tarsem Lal being aggrieved by the award dated 31.10.2002 preferred the instant appeal in his own name and on behalf of minors

for enhancement of the compensation and also claiming compensation for himself.

1 have heard the learned Counsel for the parties and have perused the record on the file.

Mr. B.B. Kotwal, Advocate appearing on behalf of appellants submits that the appellant Tarsem Lal is guardian of minor sons of deceased

Rajinder Paul Sharma, as such, he is entitled to file claim petition on behalf of minors and Hans Raj is self styled guardian and has wrongly put the

claim for compensation on behalf of the minors. He has further submitted that Tarsem Lal is brother of the deceased and as such is entitled to claim

share in the amount of compensation awarded in the case. He has submitted that general rules of succession shall apply in the case and the

appellant Tarseem Lal is entitled to compensation. In support he has relied upon cases titled Parkash Chand and Another Vs. Pal Singh and

Others, , New India Assurance Co Ltd. v. Smt. Jasinta Kujur and Ors. AIR 2007 Chha 107 and Mahant Shyamdas Guru Mohandas Vs. Lalaram

M. Kori and Others, .

On the other hand, Mr. Vishnu Gupta Advocate appearing for the respondents, has submitted that the rights and interests of the minors are to

be protected and nobody should be given an opportunity to grab the amount of compensation awarded in favour of the minors. He has submitted

that minors are living with their maternal uncle after the death of their mother even during the life time of the deceased and also under the

Succession Act a brother being Class-II heir is not entitled to the compensation in presence of Class-I heir. The brother of the deceased Tarsem

Lal has not shown his dependency upon the deceased as such he is not entitled to such a relief. He has further submitted that Tarsem Lal paternal

uncle filed petition for claim and after getting the knowledge that maternal uncle of minors has already filed a petition before the Tribunal. He has

further stated that the maternal uncle has kept interim award in the shape of FDR while paternal uncle of the minors has kept this amount in his

running account. Further the paternal uncle of minors sold the joint house and purchased a new house out of that amount in his individual capacity

and minors have not been shown as owners in that house.

Appellant Tarsem Lal Sharma has claimed share in the compensation on the ground that he is brother of the deceased and was living with him.

He has also claimed compensation in his capacity as guardian of the minor sons of the deceased. In support of his claim in his own capacity he has

stated that under the general rules of succession he is entitled to claim share in the amount of compensation awarded by the Tribunal. In support of

his arguments, learned Counsel for the appellants has relied upon cases titled Parkash Chand v. Pal Singh and Ors. AIR 1985 Punjab & Haryana

329, New India Assurance Co Ltd. v. Smt. Jasinta Kujur and Ors. AIR 2007 Chhatisgarh 107 and Mahant Shyamdas Guru Mohandas v.

Lalaram M. Kori and Ors. AIR 2008 MP 47. Against this the learned Counsel for respondents has argued that till dependency of the appellant

upon the deceased is not established the appellant Tarsem Lal Sharma is not entitled for any share in the compensation amount awarded by the

Tribunal. This Court in case New India Assurance Co v. Ranjit Singh Manhas and Ors. reported in 2008 (1) SLJ 234 held that a legal heir of the

deceased is entitled to maintain an application for compensation only if he was dependent upon the deceased. Similar view was taken by Madhya

Pradesh High Court in case of Champabai v. Bajpai Road Lines reported in 2005 ACJ 65 and Gauhati High Court in case Union of India (UOI)

Vs. Golendra Moshahari and Others, . Further this High Court in case United India Insurance Co. Ltd. v. Bashir Ahmad Khan and Ors. CIMA

No. 249/1998 decided on 3.3.2000 held as under:

Admittedly the deceased's sons and the daughter are well settled adults having their own families. They have their own means of sustenance and

earnings. The question of assessing compensation for the loss of their dependency could not arise. It is the widow and the mother of the deceased

who alone were the dependents on the deceased. These two claimants alone could claim compensation for the loss of dependency

From this it can be concluded that compensation can be awarded to a legal heir or legal heirs of the deceased in case he is dependent upon the

deceased. He is not entitled to claim compensation unless he proves that he was dependant upon the deceased and with his death, there is loss of

his dependency. In the instant case the appellant Tarsem Lal has nowhere pleaded that he was dependent upon the deceased Rajinder Paul

Sharma nor there is any such evidence on the record. He is major having his independent source of income. Thus he cannot maintain any claim for

compensation in his own right.

Further the appellant Tarsem Lal has also claimed a share in the compensation claiming that he is one of the legal heirs of deceased and is

entitled to the share in compensation. Learned Counsel for the appellants has submitted that under the general rules of succession he is entitled for

the compensation. Brother falls at S. No. II of Class-II heirs and Sons of the deceased are Class-I heirs. Sections 6 and 7 of Jammu and Kashmir

Hindu Succession Act, 1956 provides general rules of succession among the heirs specified in the Schedule. It lays down that the property of a

male Hindu dying intestate shall devolve firstly upon the heirs specified in Class-I of the Schedule and in case there is no heir of Class-I then upon

the heirs specified in Class-II of the Schedule. It also provides that the first entry in Class-II shall be preferred to those in the II entry and II entry

shall be preferred to those in III entry and so on in succession. Thus the Class-I heirs excludes the class-II heirs from inheritance. In the instant

case . the minor sons of deceased are alive and they have also projected claim for the compensation. In presence of sons who are Class-I heirs,

the appellant Tarsem Lal, who is brother of the deceased and falls in category-II of Class-II heirs in the Schedule, cannot claim share under

general rules of succession. In such circumstances the appellant Tarsem Lal is not entitled for share in the compensation granted for the loss of life

of his brother Shri Rajinder Paul Sharma.

Now we are left with the question as to who shall be treated as guardian of the minors in this case and with whom the amount of compensation

be left. It is an admitted fact that both Tarsem Lal paternal uncle and Hans Raj maternal uncle are not natural guardians. In such circumstances, the

rights and interests of minors are to be protected and nobody should be given any chance to grab the amount of compensation awarded in favour

of the minors. It is in the evidence that minors sons of deceased have been living with their maternal uncle since the death of their mother even

during the life time of the deceased. They are receiving education there by living in maternal uncles house. On the other hand, the paternal uncle

namely Tarsem Lal appellant has not taken any steps or made any efforts to bring the minors to his house for their bringing up. He has received

interim relief of Rs. 50000/-, but has kept the same in his own name in the current account. In explaining this he has submitted that this amount has

been kept in current account to meet the expenses of the litigation in this case. Against this the maternal uncle of the minors has kept the amount

received by him as interim award amount in FDR in the names of minors in equal shares The appellant Tersem Lal has also sold the house in which

the deceased was also having share and out of that amount he has purchased a new house, but in his own name and not in the names of minors. He

filed the claim petition two months after getting the information about the filing of claim petition by the maternal uncle on behalf of minors after

changing the names of the minors. All these facts show that appellant Tarsem Lal was not fair in his approach. The interest of minors is safe in

hands of his maternal uncle Hans Raj and not in the hands of appellant paternal uncle. Thus the Tribunal was right in dismissing the petition and

awarding the amount of compensation to the minors and payment of the award amount through their maternal uncle Hans Raj.

For the foregoing reasons, I would hold that there is no merit in this appeal which is required to be dismissed. Accordingly, this appeal is hereby

dismissed and the amount of interim award received by the appellant Tarsem Lal in claim petition shall be recovered by the Insurance Company

from him under law. The parties shall bear their own costs.