Non-impleadment of one legal heir does not bar other dependents from claiming compensation; dependency is the key factor.

JUDGMENT :

1. This appeal under section 173 of the Motor Vehicles Act, 1988 (for short ‘the MV Act ’) is filed by the appellants/claimants impugning the award dated 06.06.2012 of the learned Chairman, Motor Accident Claims Tribunal – Cum – Additional District Judge, Kadapa at Proddatur in MVOP.No.146 of 2006.

2. Heard arguments of Sri KMR Bala Prasad, the learned counsel for appellants and Sri K.Rama Mohan Rao, the learned standing counsel for respondent No.2/ insurance company.

3. Sri V.Hassan Sab was aged 28 years and was a coolie earning Rs.3,000/- per month. On 21.03.2006 at about 5 PM, along with his brother, he was walking on the left side of the road in village at which time a mini lorry bearing registration No.KA 04 A 1184 was driven by its driver rashly or negligently which came from behind the pedestrians and dashed Sri V.Hassan Sab leading to his spot death. His brother PW.2, having witnessed the incident, lodged written information which was registered as Cr.No.41 of 2006 at Mydukur Urban Police Station as evidenced by Ex.A1/ FIR. After due investigation, a chargesheet was laid against the driver of the offending lorry as evidenced by Ex.A3/ charge sheet. The dead body was subjected to inquest/ Ex.A4 and autopsy as per Ex.A2. The offending vehicle was examined by the Motor Vehicle Inspector who gave a report stating that the accident was not out of any mechanical defect of the vehicle as evidenced by Ex.A5. It was in such circumstances, praying for compensation of Rs.3,00,000/- under section 166 of the MV act, the mother and sister of the deceased filed MVOP.No.146 of 2006. It was pleaded that the wife of the deceased left him, two years ago and whereabouts were not known, and she was stated to be living with another person. Therefore, she was not made a party to MVOP.No.146 of 2006. The owner of the offending vehicle was R1. At the material point of time, the vehicle was stated to have been validly insured by National Insurance Company Limited and therefore, it was made as R2. Before the tribunal, the owner of the offending vehicle did not choose to appear and contest. The insurance company filed a written statement denying the averments made in the petition and specifically contended that the claim was not maintainable, since the wife of the deceased was not made a party.

4. Learned claims tribunal settled following issues for trial.

1. Whether the deceased died in a motor accident on 21.03.2006 at about 5.00 pm due to rash and negligent driving of the vehicle bearing No.KA-04-A-1184 by its driver?

2. Whether the petitioners are entitled to compensation as prayed for?

3. To what relief?

5. The mother of the deceased testified as PW.1 and the eyewitness to the incident who was the brother of the deceased testified as PW.2. Exs.A1 to A5 were marked. On behalf of the respondents, neither oral nor documentary evidence was adduced.

6. After due consideration of the evidence, the learned claims tribunal held that the accident was out of rash or negligent driving of the driver of the offending mini lorry. It did not assess the compensation that could be granted to the legal representatives who made the claim. It stated that the wife of the deceased was a dependent and was also a legal heir of the deceased and her non impleadment is fatal and accordingly, it dismissed the claim.

7. Aggrieved by it, the legal representatives of the deceased preferred this appeal under section 173 of the MV Act. Learned counsel for appellants contended that mere non impleadment of wife ought not to have resulted in dismissal of the claim and learned claims tribunal committed legal error in doing so. That the mother and unmarried sister of the deceased were factually and legally dependent on the deceased and rejecting granting any compensation to them is illegal. Even on facts, the whereabouts of the wife of the deceased were not known and the fact that the wife was living with another person and was not a dependent remained undisputed by evidence. L