Sri Chandrashekar S/O Papaiah Vs. Sri Eregowda S/O Chikkegowda and United India Insurance Co. Ltd. - Court Judgment

Excerpt:
- sections 8 & 23 (as amended by act 39/2005): [chidananda ullal & h.n. nagamohan das, jj] succession, opened earlier to the amended act 39/2005 applicability of amended provisions to such cases held, the provisions of the amended act 39/2005 is not applicable to cases where succession had opened earlier to amended act 39/2005 coming into force. on facts held, the succession having opened in the year 1969, evidently, the provisions of amendment act, 2005 would have no application to the facts of the case. further, it is not in dispute that k died in the year 1969. on the demise of k in 1969, the succession is opened. as per the hindu succession act in force in 1969 a coparcener is entitled for coparcenary property. in the year 1969 k and his son deceased defendant no.4- d are the two persons who are the coparceners of the joint family. it is not in dispute that the schedule properties are the ancestral properties of k. on a notional partition k is entitled for half share and his son deceased. d is entitled for half share in the schedule properties. after the demise of k in the year 1969 his half share devolve upon class-1 heirs. class i heirs in the instant case are deceased wife y , three daughters by name p n ka and the only son d and each one of them are entitled to equal share in the half share of late k . therefore, the amended provisions of hindu succession act, 2005 are not applicable to the facts of this case since the succession had already opened in the year 1969 on the demise of k. hindu law-- marriage: [chidanada ullal & h.n. nagamohan das, jj] presumption as to - long spell of living together d and y lived together from 1960 to 1969 -y gave birth to a son during that time - held, it is a rebuttable presumption. except bare denial of the marriage between d and y, defendants did not adduce any evidence to rebut the presumption. a heavy urden lies on the defendants to rebut the presumption. the relationship between d and y was valid and their son was a legitimately born son hindu succession act,1956[c.a.no.30/1956] -- section 6: [as amended with effect from 9.9.2005]: [chidananda ullal & h.n.nagamohan das, jj] contention raised that the three daughter of d through his first wife, becomes coparceners and are entitled for equal shares -d expired oin 1969 - held, when succession opens earlier to the amended provisions coming into force, the amended provisions will not apply. in this case succession opened in 1969. [decision in sugula bai v gundappa amareddy, ilr 2007 kar 4790 is implied overruled in sheela devi & ors. v lal chand & anr. 2006 (8) scc 581]. - act as well as on the judgment of this court in the case of united india insurance co. 6. we are, therefore, satisfied with the submission made by the learned counsel for the appellant sri k.1. the dismissal of the claim petition has given rise to this appeal and the only point that is involved in this matter is whether tribunal was justified in directing the appellant to seek relief from the forum under the e.s.i. act2. the learned counsel for the appellant sri k.v. narasimhan submitted that the accident in question took place on a public road before the appellant could enter his office premises and further, the appellant was going on his own bicycle when the accident took place involving a tempo. therefore, it was submitted that the tribunal erred in placing reliance on section 53 of the e.s.i. act as well as on the judgment of this court in the case of united india insurance co. ltd. v. k.n. thipperudraiah, reported in i.l.r 1997 kar 292, on that point.3. having heard the submissions made by both sides, it is clear from the facts narrated in the course of the order passed by the tribunal that the appellant was going on his own bicycle and just before entering the office, the accident took place involving a tempo and, therefore, the question of the case coming within the purview of section 53 of the e.s.i. act does not arise and furthermore, the injury sustained by the appellant also does not come within the purview of section 2(8) of the e.s.i. act. section 2(8) of the e.s.i. act defines employment injury as follows:'employment injury' means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of india.section 53 of the e.s.i. act reads as under:bar against receiving or recovery of compensation or damaged under any other law: an insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the workmen's compensation act, 1923 (8 of 1923) or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this act.4. a combined reading of the above two provisions will make it clear that it is only where the injury is caused to an employee in an accident arising out of or in the course of employment that the case becomes squarely covered by section 53 of the e.s.i. act and there will be a bar for making claim before any other forum.5. in the case on hand, it is not in dispute that the appellant was going on his own bicycle and the accident took place on a public road. therefore, the facts and circumstances of the case do not come within the purview of or under the definition of 'employment injury' and within provisions of section 53 of the e.s.i. act. the tribunal, therefore, committed serious error in not examining the facts of the case in the light of the above provisions of the e.s.i. act and consequently has dismissed the claim petition erroneously.6. we are, therefore, satisfied with the submission made by the learned counsel for the appellant sri k.v. narasimhan that the tribunal was not justified in rejecting the claim petition.7. hence, we allow the appeal and set aside the impugned judgment of the tribunal and remand the matter to the tribunal for fresh consideration and to dispose of the matter in accordance with law. in view of the case being an old one pertaining to the year 2000, arising out of m.v.c. no. 43/1996, we further direct the tribunal to dispose of the matter within three months from the date of receipt of this order.we further direct the parties to appear before the tribunal on 29.6.2006. it is also made clear that the parties will not get any further notice from the tribunal in this regard.