Sh. Krishan Lal Kuekreja Vs. Sucha Singh and ors. - Court Judgment

Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 8. learned counsel for the appellant further contended that since the appellant has suffered a permanent disability on account of amputation of his leg, he is also entitled to special damages and the tribunal has failed to award any amount on that account. thrugh do specific evidence has been produced to show that the appellant bad suffered any general damages, yet there is merit in the contention. in narinder pal singh's case (supra), the accident bad taken place in the year 1984 whereas in the case in band, in november, 1982. thus, having regard to the decision in the aforesaid case and the totality circumstances and also the nature of injury and loss of a part of leg on account of amputation, i award a sum of rs.g.c. garg, j.1. this appeal is directed against the award dated august 8, 1984 of the motor accident claims tribunal, whereby a sum of rs. 27,195.69 paise has been awarded to the appellant as compensation on account of injuries sustained by him in a vehicular accident, payable by respondent no. 3, the united india insurance company with costs of the proceedings.2. on november 24, 1982, the appellant was passing through a lane while driving a scooter when respondent no. 1 all of a sudden reversed his truck already parked there which struck against the scooter driven by the appellant, as a result of which the left leg of the appellant was crushed and ultimately had to be amputated. the appellant filed a claim petition under section 110-a of the motor vehicles act (for short 'the act') claiming a sum of rs. 1,50,000/- as compensation on account of pain and suffering, the amputation of his leg and genera] damages. respondent no. j while denying his negligence alleged that rather it was the appellant who was driving scooter at a high speed and dashed into the truck from back side.3. the learned tribunal after appreciating the entire evidence led before it, observed that the appellant received injury due to the accident caused by respondent no. 1, the driver of the truck. the tribunal therefore, awarded a sum of rs. 12,195.69 paise on account of the expenses incurred by the appellant on his treatment and on medicines etc a sum of rs. 10,000/- was awarded on account of pain and suffering whereas another sum of rs. 5000/- was awarded on account of travelling expenses forgoing to the office. thu , as noticed above, a total sum of rs. 27,195.69 was in all awarded by the tribunal.4. the present appeal is at the instance of the appellant for enhancement of compensation.5. the appellant at the time of the accident was aged 44 years and working as a clerk , as a result of the accident, his left leg had to be amputated about 6 inches , below the knee. he thus, suffered a permanent disability he remained in the hospital for at least three weeks learned counsel for the appellant could not seriously challenge the award of compensation to the tune of rs. 12,195.69 paise awarded account of expenses on medical treatment and for purchase of medicines nor is there any reason or justification to enhance compensation on the aforesaid counts, for, the award of compensation of the aforesaid amount is based and calculated on the basis of documentary, evidence learned counsel for the appellant, however, argued that the learned tribunal gravely erred in awarded only a sum of rs. 10,000/-for pain and suffering the learned counsel submitted that the appellant should have been awarded a much higher amount of compensation for pain and suffering as he had suffered permanent disability on account of amputation of his left leg which was the direct result of the accident learned counsel relied upon ramesh chandra v. randhir singh and ors., 1980 a. c j. 777., and a judgment of this court in hardev singh v. sharnarthi cooperative transport society ltd., 1988 a. c. j. 182, to contend that for pain and suffering and loss of enjoyment of life having regard to the nature of injuries received by the appellant and the ordeal he had to undergo, if money be any 'solace, the grant of rs. 50,000/ would be just and fair by way of damages. in the above noticed case, the accident had taken place on october 10, 1972 and as a result of which the claimant therein sustained injuries and consequently a part of his right foot had to be amputated. the supreme court, after considering the matter, awarded a sum of rs. 20,000/- on account of pain and suffering and loss of enjoyment of life.6. on the other hand, learned, counsel for respondent no. 3, the united india insurance company, however, contended that the amount of compensation awarded by the tribunal on the aforesaid count was quite just and fair and no interference was called for.7. i have considered the matter and am of the view that the appellant is entitled to enhancement of compensation for pain and suffering and loss of enjoyment of life. admittedly, the appellant suffered permanent disability on account of amputation of his calf leg. under the aforesaid head, the supreme court in ramesh chandra's case (supra) had awarded a sum of rs. 28,000/- where the accident had taken place on october 10, 1972. in the present case, however, the accident had taken place almost about ten years later i.e. in november, 1982. therefore, i sea no reason for not granting still higher compensation under the above head in respect of the accident that took place 10 years later. thus, having regard to the totality of the circumstances, i feel that it will be just and fair if the appellant is awarded a sum of rs. 30,000/- on account of pain and suffering and loss of enjoyment of life.8. learned counsel for the appellant further contended that since the appellant has suffered a permanent disability on account of amputation of his leg, he is also entitled to special damages and the tribunal has failed to award any amount on that account. he pointed out that only a sum of rs. ;000/- has been awarded by the tribunal to meet the expenses for going to the office. for (his relief, the counsel strorgly placed reliance on hardev singh's case (supra). i have considered the submission of the learned counsel. thrugh do specific evidence has been produced to show that the appellant bad suffered any general damages, yet there is merit in the contention. in hardev singh's case, (supra), the claimant was an agriculturist and his right leg had to be amputated on account of the injuries sustained in a vehicular accident which took place in january 1980 and a sum of rs. one lac was awarded by this court on account of permanent disability, pain and suffering, loss of enjoyment of life, cost of medical treatment and limb, loss of earning and cost of future transport. it is thus, clear that the claimant therein was awarded some compensation on account of permanent disability also, as special damages. a reference to the award of the tribunal would show that nothing was awarded to the appellant on this account except that he was awarded a sum of rs. 5000/- by way of transport charges in narinder pal singh v. punjab state through secretary transport, punjab government, chandigarh and ors., 1989 a. c. j. 708., a division bench of this court did not disturb the award of the tribunal which besides awarding compensation under various beads, had also awarded a sum of rs. 15.000/- as special damages to the claimant therein on account of amputation of his arm and, therefore, obviously, the amount of rs. 15,0f0/- was considered by the division bench to be a quite appropriate and reasonable sum for being awarded on account of amputation of arm. in narinder pal singh's case (supra), the accident bad taken place in the year 1984 whereas in the case in band, in november, 1982. thus, having regard to the decision in the aforesaid case and the totality circumstances and also the nature of injury and loss of a part of leg on account of amputation, i award a sum of rs. 15,000/-as special damages to the appellant. this amount of rs. 15. 000/- is being awarded in addition to rs. 5,000/- already awarded by the tribunal on account of transport charges.9. in the result, the appeal succeeds and is allowed accordingly. the, award of the tribunal is modified to the extent indicated above. the appellant shall also be entitled to interest at the rate of 12% per annum on the enhanced amounts of compensation, from the date of the claim petition till its realisation. the appellant will have his costs which are assessed at rs. 500/-.