Order 32 CPC | 'Next Friend' Of Minor Need Not Necessarily Be A Guardian U/S 4(b) Of Hindu Minority & Guardianship Act: Orissa High Court

The Orissa High Court has held that the 'next friend', as provided under Order XXXII of the Code of Civil Procedure (CPC), need not necessarily be a 'duly appointed guardian' as defined under Section 4(b) of the Hindu Minority and Guardianship Act, 1956 (the 1956 Act).Elucidating the position of law as to eligibility for appointment as 'next friend', the Single Bench of Justice Sanjay Kumar Mishra held –“'Next friend' acts for the benefit of the “minor” or other person who is unable to look after his or her own interest or manage his or her own law suit, without being a regularly appointed guardian as per the Guardianship Act.”Case BackgroundThe parents of the petitioner met with a road accident in the year 2016. As a result of such accident, the father of the petitioner was declared as permanently disabled and treated as post hospitalized bedridden patient. He had filed a motor accident claims case, pursuant to which the 3rd M.A.C.T-cum-A.D.J., Jagatsinghpur on 06.04.2022 awarded a sum of Rs.3,60,400/- along with interest @ 7% per annum from the date of filing of claim application till the date of payment to be made by the National Insurance Company Limited.Before passing of the aforesaid award, the father of the petitioner died on 14.12.2021. However, the fact as to his death was not conveyed to the tribunal, which went on to pass the award in his favour. Subsequently, the mother of the petitioner also died in July 2022. After her death, only the petitioner and her minor niece (daughter of her pre-deceased elder sister) remained as legal heir of the deceased-claimant. Accordingly, the petitioner, who is the younger married daughter of the deceased claimant, filed a petition on 14.10.2022 seeking to substitute the legal representatives in the claim case of the deceased and to get the awarded compensation amount in favour of the surviving legal heirs, i.e. herself and her niece. However, the tribunal on 15.11.2022 rejected the substitution petition.On 02.01.2023, the petitioner again filed a petition before the tribunal, by executing a Vakalatnama signed by herself so also to represent her minor niece as 'next friend', praying for necessary correction in the judgment dated 06.04.2022 by substituting the names of the legal heirs and to recall the order dated 15.11.2022. But the said recall petition was also rejected by the Court below on technical ground. While rejecting aforesaid petition, the Court though discarded the prayer of the insurance company to repudiate the claim made by the petitioner for suppressing the death of her claimant-father, it however raised eye-brows to the petitioner representing her minor niece as 'next friend', especially when her natural guardian/father is alive.“The father of Subhalaxmi Nath is not claimed as dead. When the natural father is alive, the propriety of allowing any other person to be next friend involves the question of propriety. Such other person should not have any interest adverse to that of the minor, as required U/o. 32, Rule 4 C.P.C.,” holding thus, it had partially rejected the petition. Being aggrieved by such partial rejection of the substitution petition, the petitioner brought the matter to the High Court in this writ petition. Court's ObservationsThe Court made a reference to the observations made by the Supreme Court in N. Jayasree & Ors. v. Cholamandalam M/S General Insurance Company Ltd., Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique and Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai & Anr., wherein it was commonly held that a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.Therefore, the Single Bench held that the petitioner as well as her minor niece (grand-daughter of the deceased-claimant) both come under the term 'legal representative' to claim the compensation amount awarded in favour of the deceased.Against the aforesaid factual backdrop, the vital questions which cropped for consideration were – (i) whether the provisions of CPC, more particularly Order XXXII is applicable to the proceedings under the Motor Vehicles Act; (ii) whether the petitioner can act as 'next friend' of her minor niece as per the provisions under Order XXXII of the CPC, especially when her (niece's) father/natural guardian is alive.So far as the first question was concerned, reference was made to Rule 32 of the Odisha Motor Vehicles (Accident Claims Tribunal) Rules, 2019, which says that without prejudice to the provisions of Section 169 of the MV Act, every Claims Tribunal shall exercise all the powers of a Civil Court and in doing so for discharging its functions, shall follow the procedure laid down in CPC.Therefore, Justice Mishra was of the considered opinion that Order XXXII of the CPC shall be applicable to the case in hand, which involves proceedings under the MV Act. Order XXXII Rule 1 of...

Order 32 CPC | 'Next Friend' Of Minor Need Not Necessarily Be A Guardian U/S 4(b) Of Hindu Minority & Guardianship Act: Orissa High Court

Jyoti Prakash Dutta

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