IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2647 of 2018 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI ==========================================================

Approved for Reporting Yes No ==========================================================

NEW INDIA ASSURANCE COMPANY LTD., Versus RAMNATH PARMESHWARDIN VISHWAKARMA & ORS.

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Appearance:

MASUMI V NANAVATY(9321) for the Appellant(s) No. 1 MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1 MR MAHENDRA U VORA(3034) for the Defendant(s) No. 1 NOTICE SERVED for the Defendant(s) No. 3 NOTICE UNSERVED for the Defendant(s) No. 2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 14/02/2025

ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant being aggrieved and dissatisfied with the judgment and award dated 10.1.2018 passed by the Motor Accident Claims Tribunal, Ahmedabad in Motor Accident Claim Petition No.928 of 2009.

2. Brief facts of the case are as under:-

2.1 On 07/12/2008 the accident took place. The original applicant No.1. is brother of the deceased. It is a case of the original applicant that the deceased was going on his bicycle from Chandkheda to Satyamev Hospital and at that time vehicle tanker No.GJ-7X-9189 came from his behind in full speed and dashed with the cycle of the deceased. It is a case of the original applicant that the deceased was aged 45 years at the time of the accident. The deceased was working as a carpenter and earning Rs.6,000/- per month. The original applicant has therefore claimed compensation of Rs.8,00,000/- from the original opponents.

3. The solitary contention raised by learned advocate Ms. Nanavati for the appellant that the learned Tribunal erred in granting dependency loss to a brother, who has lost his brother – present deceased in the road accident. She would further submit that in case on hand, deceased Rang Bahadur – brother of the claimant was living separately from the claimant as well as earning independently and in view of that, it cannot be held that the claimant as dependent upon the income of the deceased and therefore, the learned Tribunal committed serious error in granting compensation under the head of loss of dependency to the claimant. Mainly upon above submission, she prays to allow the First Appeal.

4. On the other hand, learned advocate Mr. Vora referring to the judgment passed by this Court in case of Prernaben @ Purviben Mansukhlal Mehta Decd.Thr Heirs Versus Daudkhan Usmankhan Belim, 2024 (0) JX(Guj) 1446, would submit that in an identical fact situation, this Court negated the identical contention and therefore, he prays to dismiss the First Appeal.

5. I have heard learned advocates for both the sides. I have also gone through the R & P of the case and re-appreciated them.

6. It is true that the deceased is survived by his brother - claimant. Section 166 of the MV Act permits the legal heirs of the deceased to file claim petition seeking compensation for death of the deceased. The underline argument of learned advocate Ms. Nanavati is that the claimant since not a financial dependent upon the deceased, he cannot be granted compensation under the head of loss of dependency. In view of that, such germane question would be posed that whether major brother and also self earning person can claim compensation under the head of loss of dependency for death of his major bachelor brother?

7. This Court in case of Prernaben (supra), in para 11 to 14 held as under:-

“11. It was argued by learned advocates for the insurance company that deceased Preranaben was unmarried and therefore, the claimants who are father and brother of the deceased cannot claim dependency loss. I am not impressed by the submission canvassed by the learned advocates. Plain reading of section 166(1) of the Act permits legal representatives of the deceased