Smt. Roopa G.R. W/O Dushyanth and ors. Vs. Sri Madavan and the Manager, National Insurance Co. Ltd. Rep. by It Regional Manager - Court Judgment

Excerpt:
- karnataka rent act, 1999 (34 of 2001) section 40: [b.v. nagarathna, j] possession of premises landlord requiring entire vacant land for putting up commercial complex held, section 40 is a special provision regarding vacant building sites. the said provision is an additional right granted to the petitioner landlord to seek possession of vacant land notwithstanding any such right a petitioner may have under section 27 of the act which deals with eviction of a respondent tenant. the plea was raised by the respondent that where there is no severance of the vacant land from the rest of the premises, that is, where the entire land is required by the petitioner, then in such a case section 40 cannot be invoked. however, what has to be noted is the use of the words building sites in section 40 and the words premises let comprise of vacant land and severance of the vacant land from the rest of the premises. if under the karnataka rent act the definition of premises meant only building and land appurtenant to the said building, then the contention could have benn accepted as the vacant land to the building would then have to be separated from the rest of the building for the purpose of construction and which severance would not cause undue hardship to the respondent. but when the definition of premises under act is not restricted to a building or vacant land appurtenant to a building, but also includes land not used for agricultural purpose, in that case, when the petitioner requires the entire vacant land, the question of severance would not arise. merely because severance would not be applicable when the entire premises comprising of land is required by the landlord, it does not mean that section 40 cannot be invoked by the petitioner who has let out vacant land to a respondent/tenant. section 40: [b.v. nagarathna, j] possession of premises landlord requiring entire premises for setting up commercial complex petitioner had taken sufficient steps with regard to his need to put up a commercial complex on schedule premises held, merely because he has not used phrase ready and willing to commence the work in the pleading does not mean that he does not have an intention to put up a construction. sections 40, 2(3) & 3: [b.v. nagarathna, j] non-residential premises applicability of the act held, the concept of plinth area being considered as a standard or a reference point for exclusion of the applicability of the act, the use of the word premises in section 2(3)(g) is only in the context of a building as defined in clause 9a) to section 3 and not any vacant land not used for agricultural purpose in which the concept of plinth area would not at all be applicable. the non-residential purpose or a commercial purpose is implied under section 40 and vacant land can be used for putting up a building to be used for residential or for any other purpose after possession is obtained by the petitioner under the said section. in this context, it is relevant to note that under section 3(k) of the act defines residential user or purpose of residence to include letting out for running a public institution the said definition is an exclusive one and broad in nature. however, there is no definition of non-residential purpose or user in the act. hence, the contention regarding non-applicability of the act to non-residential premises except those below 14 sq. mts is accepted only in the context of buildings. moreover, in the context of section 40, this contention is not at all relevant in as much as section 40 deals with building site or vacant land where concept of plinth is absent. n. kumar, j.1. this is a claimants' appeal seeking enhancement of compensation for the death of the lone bread earner of the family.2. for the purpose of convenience, the parties are referred to as they are referred to in the claim petition.3. the claimant is the young widow, etaimanis-2 and 5 are minor children and claixoants-3 and 4 are the parents of the deceased dushyanth, who died in a motor vehicle accident. on 25.10.2006 at about 7.30 p.m when deceased dushyanth was driving the maruthi van bearing cta no. 2779 along with his friend on hassan-behir road, near the tend of papuswamy at angadibaili, a jorry bearing registration no. ka-13-b-7000 driven in a rash and negligent manner dashed against the mamri van. the deceased and his friend raghu died at the spot the deceased was an agriculturist, he was doing earpentiy work and he was also a business man. he was earning rs. 15000-00 per month. therefore the claimants filed a claim petition seeking compensation in a sum of rs. 25 lakhs.4. after service of notice, the owner of the lorry did not contest. therefore he was placed exparte, the insurance company entered appearance and filed detailed written statement and contested the claim. however, they did not dispute the accident nor the insurance coverage.5. on the aforesaid pleadings the tribunal framed three issues. to substantiate their claim, the first claimant-roopa was examined as p.w-1, they examined annaji, an eye witness es p.w-2, 12 documents were produced as exs,p-1 to p-13. on behalf of respondents no oral evidence was adduced. but by consent of parties insurance policy was marked as ex. r-1.6. the tribunal on consideration of the aforesaid oral and documentary evidence on record held that the accident was on account of rash and negligent driving by the driver of the lorry in question and therefore the claimants have established actionable negligence. thereafter it took note of the evidence of the widow who has deposed to the effect that her husband was a carpenter by profession, be was also an agriculturist and a business man and be was having an income of rs. 15,000-00 per month. as no evidence was adduced to substantiate the said contention, the tribunal took the income of the deceased at rs. 3,300-00, deducting 1/3rd of the same towards the personal expenses of the deceased and adopting the multiplier of 17, it awarded a sum of rs. 4,48,800-00 towards loss of dependency, it also awarded rs. 38,000-00 under conventional heads. thus, in all rs. 4,86,800-00 with interest at 6% from the date of petition till the date of payment was awarded as global compensation.7. aggrieved by the said award, the claimants are in appeal.8. the learned counsel for the appellants assailing the impugned award contended that the accident is of the year 2006. the deceased was working as a carpenter, he was also an agriculturist and a business man. in the nature of things, it is not possible to produce any documents evidencing the income. however, one could take note of the income of a carpenter who was also doing agricultural work when he bad no carpentry work. therefore, he contended that the tribunal committed serious error in taking only rs. 3,300-00 as the income of the deceased.9, there is some substance in the said contention. though the first claimant had deposed (hat her husband was having the income of rs. 15,000-00, in the absence of any material on record to substantiate the said claim, it is not possible to accept that evidence. but nonetheless, the accident was of the year 2006. even the income of an unskilled worker would be taken as rs. 3,000-00, it is not in dispute that the deceased was a carpenter. even assuming that the carpenter will not have work all the 365 days, the income of a carpenter per day is not less than rs. 3000 in the year 2006. making provision for leave days, as he was also involved in agricultural work and was carrying on business as well, we deem it proper to take his income at rs. 4,500-00 per month. deducting 1/3rd of the same towards his personal expenses, applying the multiplier of 18, we award a sum of rs. 6,48,000-00 under the beading of loss of dependency. to that we would jike to add rs. 52,000-00 under conventional heads as the two minor children and parents have been denied love and affection, whereas the young widow has been deprived of the company for the rest of her life. in that view of the matter, we deem it proper to award rs. 7 lakhs as global compensation with interest at 6% from the date of petition till the date of payment. hence, we pass the following order.appeal is allowed in part.in substitution of the award of the tribunal, we award a sum of rs. 7 lakhs as global compensation with interest at 6% from the date of petition till the date of payment the aforesaid amount of compensation shall be distributed m the following maimer.rs.2,00,000-00 shall be paid to roopa, the first claimant, rsj,50,000-00 each to daimants-2 and 5 the minor daughters and rs. 1,00,000-00 each to father and mother of the deceased.the aforesaid amount which is apportioned to each, of them shall be kept infixed deposit in a nationalised bank with interest for a period of five years renewable thereafter till the minors attain the age of majority.the first claimant is permitted to withdraw the periodical interest accrued not only on her deposit but also on the deposit of her minor children. the parents are also permitted to withdraw the periodical interest accrued on their depositparties to bear their own costs.