DAMYANTI DHAVAN Vs. NEW INDIA ASSURANCE COMPANY

JUDGEMENT

(1.) This appeal has arisen out of award of Motor Accident Claims Tribunal, Shimla in MAC No. 6-S / 2/1989 / 88 dated 20-9-1990 whereby compensation of Rs. 25,000/ - has been awarded in favour of the appellants in equal shares. Appellant-2 was pro forma respondent before the Tribunal and Appellant-1 was the claimant.

(2.) Claim petition was filed by Appellant-1 claiming compensation under the provisions of Motor Vehicles Act, 1939 in respect of the death of Smt. Harvinder Dhawan her daughter-in-law, who was married to her only son Shri S. K. Dhawan. Sh. S. K. Dhawan S/o Appellant-l and father of Appellant-2 was earlier married to one Smt. Yogesh Kaur and from this wed-lock was Appellant-2 (Ms. Neeti Dhawan ). It appears that after the child was born, late Sh. S. K. Dhawan and Smt. Yogesh Kaur parted company and their marriage stood dissolved by a decree of divorce. Thereafter, Sh. S. K. Dhawan married Smt. Harvinder Dhawan and Smt. Yogesh Kaur married Mr. Rajesh Kumar who was then Deputy Inspector General of Police. However, Mr. Rajesh Kumar died sometime later. Appellant-2 had throughout been under the care and custody of her mother Smt. Yogesh Kaur. Facts further reveal that Shri S. K. Dhawan and Smt. Harvinder Dhawan, were travelling in Car bearing ragistration No.NLK-1770 from Naldehra to Shimla. This car belonged to Shri S. K. Dhawan who was himself driving the same. There were two other co-passangers with them, namely, Sh. Gurinderjit Singh Virk and his wife Smt. Satinder Virk. This car met with an accident on 3-1l-1986 as a consequence thereof all the four occupants i.e. S. K. Dhawan, Harvinder Dhawan, Sh. Gurinderjit Singh Virk and Smt. Satinder Virk died. Appellant-l filed this claim petition claiming compensation on the plea that she was being looked after and maintained by Smt. Harvinder Dhawan and was being paid Rs.1500.0 p.m. towards maintenance, and that Appellant-2 was step daughter of deceased being the daughter of her son Sh. S. K. Dhawan from previous wife Smt. Yogesh Kaur. According to Appellant-1, Appellant-2 was residing with her mother in the house of Sh. Rajesh Kumar and she was impleaded as a pro forma respondent through her mother and natural guardian Smt. Yogesh Kaur. In the aforesaid background, the Appellant-1 claimed compensation of Rs. 2,50,000/- from respondent. The petition was barred by time and for condonation of delay in filing the same, it was stated that due to sudden death of her only son Sh. S. K. Dhawan she was under severe mental shock on account of which she also suffered a heart attack and she could not file the petition within the period of limitation. Application under Section 5 of the Limitation Act was also filed by the appellant, and it was prayed that delay in filing the claim petition be condoned.

(3.) This claim petition was resisted by the respondent Insurance Company. According to respondent, the claim was time barred and no sufficient cause had been made out for condonation of delay in filing the same, therefore, it merited dismissal. In support of this assertion it was pointed out by the respondent that the Appellant-1 could not feign ignorance about her rights as she was appearing before M.A.C.T. contesting the claim case filed by the heirs of Sh. Gurinderjit Singh Virk and Smt. Satinder Virk. Not only this, she herself preferred a writ petition against the University claiming terminal benefits and an other writ petition was filed against the respondent Insurance Company in this Court. Appellant- 1 had also filed case under Succession Act in respect of the estate of her deceased son and daughter-in-law. It was further stated that she had best legal advice available to her. According to the respondent, Appellant-1 withheld the factum of the Appellant-2 being there who was equally entitled with her for compensation payable by Insurance Company and the terminal benefits by H. P. University, where both Sh. S. K. Dhawan and his wife were employed at the time of accident. Appellant-2 filed her reply to the claim petition through her mother Smt. Yogesh Kaur through whom she had been sued. She simply stated that she was entitled to compensation along with Appellant-1 who was her grandmother as she is also the legal heir of late Smt. Harvinder Dhawan. It was further averred on behalf of Appellant-2 that she being a minor, her claim was not barred by time as limitation did not apply to her and, therefore, her claim was within time. It is in the aforesaid background, and facts the parties went to trial on the following issues: