Kamalawwa Parasappa Kadalagi Vs. Basavanni Ramappa Mallannavar - Court Judgment

1 R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE23D DAY OF JULY2015BEFORE THE HON’BLE MR. JUSTICE G. NARENDAR MFA No.15681/2007 (MV) BETWEEN1 2. KAMALAWWA PARASAPPA KADALAGI Age 46 YEARS KUM LAGAMAVVA D/O PARASAPA KADALAGI AGE22YEARS R/O MANAGUTTI, HUKKERI BELGAUM ... APPELLANTS (BY SRI.T.M.NADAF, ADVOCATE) AND1 BASAVANNI RAMAPPA MALLANNAVAR R/O MANAGUTTI, HUKKERI, BELGAUM2 3. THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO LTD DIVISIONAL OFFICE, 5TH FLOOR SHAMBAG CHAMBERS KIRLOSKAR ROAD, BELGAUM SMT LAXMIBAI W/O PARASAPPA KADALGI, AGE35YEARS24. BASAVANNI S/O PARASAPPA KADALGI, AGE19YEARS5 APPAYYA S/O PARASAPPA KADALGI, AGE16YEARS APPELLANT NOS.3 TO5ALL R/O MANAGUTTI, HUKKERI BELGAUM R3 TO R5 ARE DELETED AS PER ORDER

DATED0804.2013 ... RESPONDENTS (BY SRI.R.B.PASAPPAGOL, ADVOCATE FOR R1; SRI.S.S.JOSHI, ADVOCATE R2) THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT

AND AWARD DATED2810.2006 PASSED IN MVC NO.1001/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND MEMBER ADDL. MACT, HUKKERI, DISMISSED THE PETITION AS NOT MAINTAINABLE. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT

Heard the learned counsel for the parties.

2. The first appellant and the third respondent herein claim to be the wives of the deceased and his L.Rs. Both of them along with their respective children are said to have preferred independent claim petition in 3 respect of the same accident i.e., MVC Nos.512/2004 and 10001/2004.

3. The case of the claimants is that the deceased Parasappa Appayya Kadalagi met with an accident on 02.02.2004, while travelling in the offending vehicle bearing Registration No.KA-23/6411 from Managutti to Daddi on payment of fare. It is alleged that due to rash and negligent driving of the offending vehicle by its driver, the vehicle turned turtle and the deceased Parasappa suffered grievous injuries and died as a consequence of the accident.

4. It is stated that after his death, the first appellant and the third respondent herein preferred independent claim petitions in respect of the same accident and the said petitions were numbered as supra noted.

5. The learned counsel for the appellants submits that there is no dispute regarding the accident or the 4 liability and the same was also not seriously disputed before the Tribunal. On these set of facts, the Tribunal on erroneous assumptions of law proceeded to reject both claim petitions by the common order without entering upon and adjudicating either liability or quantum.

6. It is seen that the Tribunal has misdirected itself and has proceeded to hold that the two claim petitions are not maintainable, till a finding is rendered as to who of the two is the legally wedded wife of the deceased person in accordance with the provisions of the Hindu Succession Act and he has concluded only such person, who is declared to be a legally wedded wife is entitled for compensation under the M.V. Act and hence, he has dismissed claim petitions as not maintainable and subject to the decision that may be rendered by a civil Court in a proceeding under the Hindu Succession Act. 5 7. It is seen that the claimants who are the first appellant and the third respondent have also been joined by their respective children. Even assuming that one of them is not the legally wedded wife, even then, the children born out side the marriage are also entitled to the estate of the father. This position of law has also been settled by the Division Bench of this Court in the case reported in AIR2000KAR309 Hence, the dismissal of the claim petitions preferred by the children of the deceased is illegal and unsustainable.

8. Apart from the short ground, the appeal is also liable to be allowed with regard to the claims submitted by the alleged wife. The Court below has seriously erred in not taking notice of the development of law. The legislature in its wisdom has thought it fit to bestow securities and rights even on ladies/women who are not married but have shared the relationship in the nature of marriage. Section 2(f) of the Protection of Women 6 from Domestic Violence Act, 2005, defines the relationship to also mean the relationship in the nature of marriage. The Court below ought to have entered upon and adjudicated the issue whether as to who is the legally wedded wife and if the other lady has shared a relationship in the nature of marriage with the deceased. In the event, it is demonstrated by the party that she was in domestic relationship with the deceased then the said person is also entitled for protection and the Hon’ble Apex Court while dealing with the said contingencies has in fact recognized the legality of a live-in relationship in its judgement reported in 2010(10) SCC469 9. The pleadings in this case would demonstrate that two ladies, claiming to be the wives of the deceased, have in fact deemed it fit to bury the hatchet and they have filed a joint memo praying the Tribunal to equally apportion the award amongst two of them. That being 7 the case, it was not open for the Tribunal to rejected both claim petitions. The parties being present before the Court and there being no dispute as to the relationship. It is incumbent upon the Tribunal to have adjudicated the matter on merits and either awarded or rejected the claim for compensation. The Tribunal erred in rejecting the claim petitions on the ground that the parties must secure a declaration under the Hindu Succession Act.

10. The learned counsel for the respondent would relay upon the judgment of the Division Bench of this Court reported in AIR2000KAR309 The Division Bench of this Court while considering the case therein was pleased to hold that the wives who have contracted marriage during the subsistence of the marriage with the first wife are not entitled to compensation, but the children out of the said marriage are entitled for compensation. It is held by the Division Bench that the 8 subsequent marriage being void, the second wife would not be entitled for estate under the Hindu Succession Act. Therefore, she could not be termed as a legal representatives. The above judgment has been rendered in the year 2000, i.e., on 22.02.2000, in the light of the law as it then stood. Subsequently the legislature in its wisdom has introduced the Protection of Women from Domestic Violence Act, 2005 and deemed it fit to enlarge the scope for seeking maintenance. Section 125(1) of the Cr.P.C. explains the word wife to mean legally wedded wife and it entitles the said legally wedded wife to seek maintenance under the provisions of Section 125. The legislature taking note of the fact that a section of the ladies, who has either been deliberately cheated or who has fallen prey to circumstance, by having entered into the contract of marriage during subsistence of the first marriage and in order to address the plight of this section of the fairer sex, the legislature choose to embrace the wider concept and consequentially has 9 afforded protection not only to legally wedded wife but also to women who is in a domestic relationship, which cannot be strictly termed as marriage but is a relationship which is in the nature of marriage. In the above case it is seen that the deceased has not only married but has also begotten children out of the marriage.

11. In view of the above discussions, it is held that the women who have shared domestic relationship in the nature of marriage are also entitled to be classified as legal representatives and can stake a claim to the personal estate of the person who shared a domestic relationship with them. The death having arisen out of the road traffic accident, being a loss of estate, the person who was in a domestic relationship with the deceased is entitled to come on record as legal representative of the deceased. It is needless to state that the person alleging to have been in domestic 10 relationship is required to produce a high order of proof and mere casual evidence will not suffice to demonstrate the relationship in the nature of marriage.

12. In view of the above finding, the appeal is allowed. The impugned judgment and award under appeal is set aside. The Tribunal is directed to conduct enquiry, adjudicate the issues on merits and dispose off the claim petitions in accordance with law. It is seen that the claim pertains to the year 2004, almost more than a decade has passed and hence, the Tribunal is directed to dispose off the claim petitions as expeditiously as possible on a priority basis. Ordered accordingly. Vnp* Sd/- JUDGE