Nandubai vs Ismail and others

Prakash Shrivastava, J.

This order will also govern the disposal of Misc. Appeal Nos. 1594, 1288 and 1289 of 2008.

Misc. Appeal No. 1594 of 2008 has been filed by Nandubai, wife of the deceased Deetu Bheel, seeking enhancement of the compensation amount against common award dated 31.3.2008 passed by the Motor Accidents Claims Tribunal, Ratlam in Claim Case No. 15 of 2004.

Misc. Appeal No. 1288 of 2008 has been filed by Kamal Mori, the alleged adopted son of the deceased, against the common impugned award passed in Claim Case No. 15 of 2004 challenging the award of compensation amount of Nandubai.

Misc. Appeal No. 1289 of 2008 has been filed by Kamal Mori challenging the common impugned award passed in Claim Case No. 45 of 2004 by which the Claims Tribunal rejected the claim filed by Kamal Mori on the basis of the finding that he is not a legal representative of the deceased.

Facts of the case are that in an accident which had taken place on 30.1.2004, Deetu Bheel had died. The Claim Case No. 15 of 2004 was filed by the Appellant Nandubai claiming that she was the wife of the deceased and claiming compensation on the death of Deetu. Claim Case No. 45 of 2004 was filed by Kamal claiming that he was the adopted son of the deceased and claiming compensation on that account.

Motor Accidents Claims Tribunal, Ratlam by the common impugned award dated 31.3.2008 held that the claimant Nandubai was the wife of the deceased. The Claims Tribunal found that claimant Kamal failed to establish that he was the adopted son of the deceased, therefore, he was not found entitled for any compensation amount. The Tribunal assessed the income of the deceased as Rs. 15,000 per annum, and after deducting 73rd for self expenses, it found the loss of dependency as Rs. 10,000 per year and applying the multiplier of 13, it calculated the total loss of dependency as Rs. 1,30,000. The Tribunal awarded a sum of Rs. 1,000 towards the expenses for transportation of the dead body; Rs. 5,000 towards the loss of consortium; and Rs. 2,000 for funeral expenses. Thus, the Tribunal awarded a total sum of Rs. 1,38,000 along with interest at the rate of 6 per cent per annum from the date of the filing of the claim petition.

Learned Counsel appearing for the Appellant Nandubai in Misc. Appeal No. 1594 of 2008 submitted that the compensation amount which has been awarded by the Tribunal is on the lower side. He submitted that the Tribunal has committed an error in calculating the notional income of the deceased and further that no amount under loss to the estate has been awarded by the Tribunal. He has supported the findings which have been recorded by the Tribunal to the effect that Kamal was not the adopted son of the deceased.

The Learned Counsel appearing for the Appellant Kamal Mori pressing Misc. Appeal Nos. 1288 and 1289 of 2008 submitted that the finding which has been recorded by the Tribunal that Kamal was not the adopted son of the deceased is a finding which is not supported by the evidence on record and the Tribunal has committed an error in holding that the Appellant Kamal is not entitled for any compensation amount. He further submitted that Nandubai is not the legally wedded wife of the deceased, therefore, she is not entitled for any compensation amount.

Learned Counsel appearing for the Respondent insurance company opposing the appeals submitted that amount which has been awarded by the Tribunal is just and proper and no interference in this regard is required by this Court.

The issue is whether the claimant Kamal is the adopted son of the deceased Deetu. The Tribunal has elaborately dealt with the evidence in this regard and recorded a finding that Kamal was not the adopted son of deceased Deetu. A perusal of the Claim Petition No. 45 of 2004 and the reply filed by Kamal in the Claim Petition No. 15 of 2004 indicates that there is no pleading on behalf of Kamal disclosing as to when the alleged adoption had taken place and who were the persons present at the time of adoption.

The claimant Kamal had examined himself as well as one Nanduji in support of his plea of adoption. But a perusal of the oral evidence of claimant Kamal indicates that he himself has admitted in the cross-examination that there is no written proof of adoption. He also admitted that in all the government documents his name is entered as Kamal s/o Beejal. Beejal is the natural father of Kamal. In the oral deposition also Kamal has not disclosed as to when he was taken in adoption. So far as the statement of Nanduji is concerned, he has also not disclosed when Kamal was taken in adoption. In para 9 of his cross-examination, he has made an attempt to support the plea of taking Kamal in adoption but he failed to disclose the relevant ingredients of adoption. On the contrary in para 9 he had admitted that in the government record the name of Kamal is shown to be as son of Beejal. Thus, the oral evidence produced by the claimant Kamal does not support the plea of adoption.

So far as the documentary evidence is concerned, the claimant Kamal has placed on record the certificate, Exh. P15, issued by the Sarpanch of Gram Panchayat, Mhow, District Ratlam stating that Kamal was the adopted son of Deetu. But this certificate has been issued subsequent to the death of Deetu and after filing of the claim petition. No cogent evidence has been brought on record by the claimant Kamal to establish that he was the adopted son of the deceased. The document, Exh. P19, is the Voter List of year 2003 which is approximate to the time prior to death of the deceased in which the name of Kamal has been shown as son of Beejal and the name of Nandubai has been shown as wife of Deetu. This supports the case of the claimant Nandubai.

The witness Nanduji in his deposition though has stated that at the time of adoption the consent of Beejal was taken but Beejal has not been examined as a witness to prove the said consent. The averments relating to the performance of ceremony of adoption have also not been established by bringing any other witnesses who were present at the time of the alleged ceremony. Nothing has been brought on record that on the basis of the alleged adoption ceremony the claimant Kamal had started living with the deceased Deetu as his son and he was treated as the adopted son of the deceased by the society. So far as the averment relating to the performance of last rites of Deetu is concerned, the evidence shows that Deetu had died issueless, therefore, it is not unnatural that some male person may have performed his last rites.

Learned Counsel appearing for the Appellant Nandubai has placed reliance upon the judgment of the Apex Court in the matter of Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, and submitted that the burden is on the person claiming the benefits on the basis of the adoption to prove beyond doubt existence of the valid adoption. It has also been laid down by the Apex Court that physical act of giving and taking of the adoptive boy is essential and the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth. Though the claim proceedings are summary proceedings and strict proof by way of evidence is not required, yet some cogent evidence is required to be brought on record to prove adoption which the claimant Kamal in the present case has failed to bring on record.

Learned Counsel appearing for the claimant Kamal has also placed reliance upon the judgment in the matter of Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, in support of his plea that the adopted son is covered within the meaning of legal representative of the deceased but the said judgment does not help him as adoption itself is not established in the matter. The submission of the Learned Counsel for the claimant Kamal that the person who is entitled to inherit the estate of the deceased is the legal representative of the deceased is not in dispute but the claimant Kamal has failed to establish that he was entitled to inherit the estate of the deceased Deetu.

The award of the Claims Tribunal indicates that the Tribunal has taken into account the oral as well as documentary evidence before reaching to the conclusion that neither the claimant Kamal was the adopted son of the deceased nor he was a person dependent on the deceased. The Tribunal has noted the admission made by Kamal in para 11 of his deposition that he is a married person having his children and is earning his livelihood. It has also been noted that at the time of the death, Deetu was aged about 35 years; whereas at the time of giving affidavit in the claim case the claimant Kamal has disclosed his age to be 22 years. Therefore, the small age difference between them is also one of the factors to disbelieve the plea of adoption. The Tribunal has minutely examined the oral statement of Nanduji and has found that he was an interested witness and cannot be fully relied upon. Thus, after appreciating the evidence on record, the Tribunal has rightly found that the plea of adoption was not proved.

So far as the objection relating to the relationship of Nandubai with deceased Deetu is concerned, it is found that the claimant Kamal in para 8 of his statement had admitted that Nandubai was married to Deetu. Before this Court also, the said fact has not been disputed but a plea has been raised thereafter that Nandubai had gone in natra to Kaneri. There is no pleading or evidence on record to the effect that Nandubai had taken divorce from Deetu. No cogent evidence relating to natra has been brought on record. The oral evidence of Nandubai and the documentary evidence on record also indicate that Nandubai was the wife of deceased Deetu. Therefore, on the basis of the evidence on record, it is found that Nandubai was the legally wedded wife of Deetu and on the death of Deetu, she was entitled to receive the compensation amount.

So far as the quantum of compensation is concerned, the Tribunal has not recorded any finding in respect of the age of the deceased. The post-mortem report on record shows that the age of the deceased was about 35 years. There is no other documentary evidence of age on record. Therefore, it is found that at the time of accident the deceased was aged between 35 and 40 years. Therefore, the multiplier applicable would be ''16''. So far as the income of the deceased is concerned, the Tribunal has assessed the notional annual income of the deceased as Rs. 15,000. It has been brought on record that the deceased was also having agricultural land of 0.845 hectares and he was having earning from that. It has also been deposed by the claimant Nandubai that deceased Deetu was earning from doing the work of agricultural labour. In view of this evidence, the annual income of Rs. 15,000 assessed by the Tribunal is on the lower side. Considering the evidence on record, it would be reasonable to hold that the deceased was at least earning Rs. 24,000 per year and after deducting 2/3rd for self expenses, the 2/3rd dependency comes to Rs. 16,000 and applying the multiplier of 16, the loss of dependency comes to Rs. 2,56,000. The amount of Rs. 2,000 awarded by the Tribunal for the funeral expenses; Rs. 1,000 for the transportation of the dead body of the deceased; and Rs. 5,000 under the head of loss of consortium is just and proper. In addition to this, the Appellant will also be entitled to a sum of Rs. 3,000 under the head of loss to estate. Thus, the Appellant-claimant Nandubai will be entitled to receive a sum of Rs. 2,67,000. The amount awarded by the Tribunal is enhanced by a sum of Rs. 1,29,000.

Thus, Appellant-claimant Nandubai is entitled to additional compensation of Rs. 1,29,000 over and above the amount awarded by the Tribunal. The aforesaid enhanced amount will bear interest at the same rate as awarded by the Tribunal.

In view of the aforesaid, Misc. Appeal No. 1594 of 2008 is allowed to the extent indicated above and Misc. Appeal Nos. 1288 and 1289 of 2008 are dismissed. No order as to costs.

A copy of this order be placed in the records of connected appeals, as particularized above, for ready reference.