Dastagir S/O AjamuddIn Jamadar Vs. Shivanand S/O Annasab Wali and ors. - 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]. - order 1. in this appeal, the quantum of compensation awarded to the appellant for the injuries sustained by him is assailed mainly on the ground that the tribunal has failed to award compensation under the head loss of future earning capacity as well as loss of amenities and for future medical treatment. 2. we have heard the learned counsel for the appellant as well as the learned counsel for the insurance company and have examined the medical evidence placed before the tribunal and discussed at paragraph 9 of the impugned judgment.order1. in this appeal, the quantum of compensation awarded to the appellant for the injuries sustained by him is assailed mainly on the ground that the tribunal has failed to award compensation under the head loss of future earning capacity as well as loss of amenities and for future medical treatment.2. we have heard the learned counsel for the appellant as well as the learned counsel for the insurance company and have examined the medical evidence placed before the tribunal and discussed at paragraph 9 of the impugned judgment. we find that the appellant has been reduced to nothing insofar as his capability to lead a normal life is concerned and to carry on his occupation as mechanic. the medical evidence of the doctor placed before the tribunal indicates that due to the pressure on spinal chord following the accident in question, the appellant has not been able to move both his upper and lower limbs and he is not able to hold bigger objects with the hands firmly and not able to move fingers, specially extend both hands. the permanent disability of both the limbs to the whole body is 50% and to both upper limbs is 25%. having regard to the above factors, we hold that the functional disability is 100%.3. taking the income of the appellant at rs. 3,000/- per month for want of sufficient evidence being placed and allowing some guess work in this regard, we work out future loss of earnings by applying proper multiplier 14 in the instant case at rs. 3,36,000/-. to this we will have to add rs. 40,000/-towards loss of amenities because of the pathetic condition of the appellant and towards future medical expenses, we add rs. 30,000/-. therefore, the amount already awarded by the tribunal requires to be enhanced by rs. 4,06,000/-. hence, the total compensation for which he will be entitled to is, rs. 4,65,880/- and out of this 30% will have to be reduced because of the contributory negligence on the part of the appellant. in other words, net amount of compensation to which he will be actually entitled to is, rs. 3,26,116/-(rs. 4,65,880-rs. 1,39,764). therefore, the appeal stands partly allowed and the award of the tribunal stands modified.4. the interest awarded by the tribunal at 6% is maintained. what has already been paid by the insurance company requires to be deducted from the enhanced amount.

Judgment:
ORDER

1. In this appeal, the quantum of compensation awarded to the appellant for the injuries sustained by him is assailed mainly on the ground that the Tribunal has failed to award compensation under the head loss of future earning capacity as well as loss of amenities and for future medical treatment.

2. We have heard the learned Counsel for the appellant as well as the learned Counsel for the insurance company and have examined the medical evidence placed before the Tribunal and discussed at paragraph 9 of the impugned judgment. We find that the appellant has been reduced to nothing insofar as his capability to lead a normal life is concerned and to carry on his occupation as mechanic. The medical evidence of the doctor placed before the Tribunal indicates that due to the pressure on spinal chord following the accident in question, the appellant has not been able to move both his upper and lower limbs and he is not able to hold bigger objects with the hands firmly and not able to move fingers, specially extend both hands. The permanent disability of both the limbs to the whole body is 50% and to both upper limbs is 25%. Having regard to the above factors, we hold that the functional disability is 100%.

3. Taking the income of the appellant at Rs. 3,000/- per month for want of sufficient evidence being placed and allowing some guess work in this regard, we work out future loss of earnings by applying proper multiplier 14 in the instant case at Rs. 3,36,000/-. To this we will have to add Rs. 40,000/-towards loss of amenities because of the pathetic condition of the appellant and towards future medical expenses, we add Rs. 30,000/-. Therefore, the amount already awarded by the Tribunal requires to be enhanced by Rs. 4,06,000/-. Hence, the total compensation for which he will be entitled to is, Rs. 4,65,880/- and out of this 30% will have to be reduced because of the contributory negligence on the part of the appellant. In other words, net amount of compensation to which he will be actually entitled to is, Rs. 3,26,116/-(Rs. 4,65,880-Rs. 1,39,764). Therefore, the appeal stands partly allowed and the award of the Tribunal stands modified.

4. The interest awarded by the Tribunal at 6% is maintained. What has already been paid by the insurance company requires to be deducted from the enhanced amount.