JUDGMENT:- This petition is directed against the Order dated 25th February, 2003 passed in Claim Petition No.75/2001 rejecting application dated 31.10.2002 filed by the petitioner/claimant praying therein that Mr. Vasant Yeshwant Kamat, brother of the deceased be brought on record as legal representative of the deceased respondent No.2.

2. It appears from the material available on record that the respondent No.2 was made party to the Claim Petition being owner of the vehicle which was involved in the accident. She left for heavenly abode on 28.01.2000 much before filing of the Claim Petition. It is not in dispute that the respondent was married and had become widow within four years of her marriage and that she died issueless.

3. Mr. Vasant Yeshwant Kamat is the brother of the deceased respondent No.2. As such the said Vasant was sought to be impleaded as party defendant/respondent to the claim petition. The said application came to be rejected by the Tribunal by the impugned order holding that the said brother Mr. Vasant Kamat cannot be treated as a legal representative of the deceased respondent no.2.

4. Ms. Naik, learned counsel appearing for the petitioners submits that the impugned order is erroneous and cannot stand to the scrutiny of law. She submits that the Tribunal has failed to take note of Article 1969 of the Portuguese Civil Code, which reads as under:-

"(Order of legal succession)

The legal succession shall devolve in the following order:

1) To the descendants;

2) To the ascendants, save what is provided in Article 1236;

3) To the brothers and their descendants;

4) To the surviving spouse;

5) To the collaterais not included in Clause 3 up to the sixth degree;

6) To the State, save what is provided in Article 1663.

Sole paragraph:

In the case of Clauses 1, 2 and 3 the commodities and fruits, gathered or pending, meant and necessary for the consumption of the couple, shall be deemed to be the own property of the surviving spouse, provided that at the date of the opening of the inheritance there is no pending or decreed suit for divorce, or for separation of the persons and properties."

5. She further submits that the Tribunal has further committed an error by another Order dated 27.11.03 in holding that the claim petition having abated against respondent No.2, the application filed under Section 140 of the Motor Vehicles Act cannot survive against the Insurance Company. She, thus, prayed for setting aside both orders and restoration of Claim Petition to the file of the Tribunal.

6. Mr. Bhobe, learned counsel appearing for the proposed respondent Mr. Vasant submits that he has not inherited any property of the deceased. He, therefore, submits that Mr. Vasant cannot be brought on record as a legal representative of his sister; deceased Smt. Sitabai. At the end of his submissions, he urged that if at all proposed respondent Vasant is to be brought on record as her legal representative, then the question about the extent of his liability be left open; because in his submission; Mr. Vasant did not inherit any of her properties. That in any event his liability cannot exceed more than the property inherited, if any.

7. Nobody is appearing for the Insurance Company inspite of service; as such I did not have advantage of hearing Insurance Company.

Consideration:

8. Having heard rival parties, in order to decide the controversy involved in this petition, it is necessary to turn to the definition of the words "legal representative". The Motor Vehicles Act, has not defined the term "legal representative". However a "legal representative" ordinarily means a person who in law represents the estate of the deceased person or a person on whom the estate devolves on the death of an individual.

9. The definition of the term "legal representative" in Section 2(11) of the Code of Civil Procedure reads as under:

"Section 2(11) :"legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermedd

Click Here to Read the rest of this document