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2010 DIGILAW 308 (KAR)

Rudresh v. T. T. Majunath

2010-03-09

ARAVIND KUMAR

body2010
Judgment Though matter is listed today for admission by consent of learned Advocates the matter is taken up for final hearing since it is of the year 2007 and Lower Court records having been received. 2. The unsuccessful claimant is questioning the correctness and the legality of the judgment and award passed in MVC.No.847/1999 dated 13.10.2006 whereunder the claim petition filed by the appellant came to be dismissed. The parties are referred to as per the ranks in the Court below. 3. The facts in nutshell leading to the filling of this appeal are as follows: Smt.Puttamma was said to be traveling in a Lorry bearing No.CRT-8338 with her luggage on 13.05.1992 and when the said vehicle reached kattigenahalli gate on National Highway 4 at about 8.00 p.m. accident in question occurred on account of the negligent act on the part of the driver of the Lorry as well as by the driver of the opposite Lorry bearing Reg.No.CNL-5550. It was contended before the Tribunal that due to the said accident Smt.Puttamma sustained injuries and later on she succumbed to the said injuries. On account of death of Smt.Puttamma, a person by name Sri.Rudresh claiming to be the adopted son filed a claim petition on 29.10.1999 after a gap of seven years from the date of accident. It was contended by the claimant that deceased had adopted him and deceased as an agriculturist by avocation and she was earning Rs.1,000/- p.m. apart from rearing buffaloes and also earning income out of the same. On this ground the claim petition came to be filed seeking a total compensation of Rs. 1,50,000/-. 4. On service of notice the second respondent-Insurance Company entered appearance and filed its objections statement denying the averments made in the petition. Respondent No.1 before Tribunal, being the owner of the Lorry bearing Reg.No.CRT-8338 had appeared before the Tribunal through an Advocate but did not file the written statement. The third respondent being the owner of the Lorry bearing Reg.No.CNL-5550 had been served with notice and had remained absent and as such was placed ex-parte. The insurer of the Lorry bearing Reg.No.CNL-5550 who was arrayed as the fourth respondent also did not contest the claim. 5. On the basis of the pleadings of the parties, the Tribunal framed the following issues for its consideration: 1. The insurer of the Lorry bearing Reg.No.CNL-5550 who was arrayed as the fourth respondent also did not contest the claim. 5. On the basis of the pleadings of the parties, the Tribunal framed the following issues for its consideration: 1. Whether the claimants prove that deceased Puttamma succumbed to the injuries sustained in the accident which occurred on 13.05.1992 due to rash and negligent driving of the vehicles bearing No.CRT-8338 and CNL-5550 by their respective driver? 2. Whether claimant is entitled for compensation? If so to what compensation and from whom? 6. The claimant in support of his claim got himself examined as PW.1 and examined one eye witness as PW.2 and got marked Exs.P1 to P6. Respondent No.2 did not choose to led any evidence. Other respondents also did not lead any oral evidence nor did they get any documents marked. On the basis of the pleadings and evidence on record. Tribunal dismissed the claim petition on the ground that claimant had failed to prove that he was the adopted son of deceased and as such held that contention of the claimant that he is dependant of Smt.Puttamma cannot be believed and accordingly claim petition came to be rejected. It is this judgment and award which is now assailed in the present appeal by the unsuccessful claimant. 7. I have heard Sri.T.Govinda Raja, learned Counsel appearing for the appellant. Sri.Patel D.Karegowda, learned Counsel appearing for the first respondent (Insurer of the Lorry bearing Reg.No.CRT-8338) and Sri.O.Mahesh, learned Counsel appearing for second respondent (owner of the Lorry bearing Reg.No.CRT-8338) and Sri.L.Sreekanta Rao, learned Counsel appearing for respondent No.4. The appeal against respondent No.3 i.e., owner of the other vehicle namely the Lorry bearing Reg.No.CNL-5550 has been dismissed by this Court by order dated 21.08.2009. 8. Sri.Govinda Raja, learned Counsel appearing for the appellant would contend that order passed by the Tribunal is erroneous since it has not taken into consideration Section 10 of the Hindu Adoptions and Maintenance Act. 1956, where there is no prohibition for the adoption of a person aged beyond 15 years and as non-consideration of this aspect has resulted in the dismissal of the claim petition and is required to be set aside by this Court. 1956, where there is no prohibition for the adoption of a person aged beyond 15 years and as non-consideration of this aspect has resulted in the dismissal of the claim petition and is required to be set aside by this Court. He would also contend that only ground on which the claim petition came to be dismissed by the Tribunal was that the age of the deceased was taken as 32 as on the date of accident and claimant being 30 years had found that the adoption could not have taken place and accordingly the petition came to be dismissed which is erroneous. In respect of this contention he relies upon the judgment of this Court reported in the case of Shri Siddeegowda Vs. Smt. Mallamma And Others reported in ILR 2004 KR 1648 to contend that under Section 10 of the Hindu Adoptions and Maintenance Act there is no prohibition for a person aged beyond 15 years being adopted if the custom to that effect is prevalent in the community and accordingly he seeks for setting aside the dismissal order. 9. Elaborating his contentions he would also contend that the Hon’ble Supreme Court in the case of Kondiba Rama Papal Vs. Narayan Kondiba Papal reported in AIR 1991 SC 1180 has held that once factum of adoption is proved – adoption cannot be challenged on the ground that the adopted person was above 15 years at the time of adoption. Accordingly he seeks for allowing of the appeal. Further elaborating his submissions he would contend that deceased was earning about Rs.1,000/-per month and if 1/3rd is deducted towards personal expenses, the monthly income would be Rs.750/- and the annual income would be Rs.9,000/- and thus applying appropriate multiplier namely 15 a total compensation of Rs.1,35,000/- is to be awarded. He would also submit that to prove that the accident in question had occurred, he has got examined the eye witness to the accident namely PW.2 and nothing is elicited in the cross-examination to dispute this fact and accordingly prays that the appeal be allowed and compensation which is just and reasonable be awarded. 10. Per contra Sri.O.Mahesh, would support the order passed by the Tribunal and contends that admittedly the adoption is not proved. 10. Per contra Sri.O.Mahesh, would support the order passed by the Tribunal and contends that admittedly the adoption is not proved. There is no acceptable evidence produced by the claimant to prove the adoption and hence he would contend that order of the Tribunal does not suffer from infirmity which requires to be interfered by this Court. Insofar as the claim made in the claim petition, it is contended by Sri.O.Mahesh that admittedly the deceased was a gratuitous passenger in goods vehicle and not covered under the subject policy. He would also submit that evidence on record does not depict that deceased was hirer of lorry and she was traveling along with goods. By bringing to the notice of this Court clause (b) of Sub section (1) of Section 147, he would contend that it is only by way of Amendment Act, namely Act 54 of 1994 that owner of the goods or his authorized representative carried in the vehicle would be entitled to claim compensation and not the third parties and even otherwise he would contend that earlier the law was well settled that the third parties were not entitled for the compensation being awarded in respect of gratuitous passenger accordingly he submits that there is no merit in the claim petition. 11. He would further contend as per sub Section (2) of Section (13), the deceased was not carrying any goods in the vehicle nor she had hired the vehicle in question and hence she does not come even under the second category or second limb of said Section for being considered as the owner of the goods and accordingly seeks for dismissal of the claim petition. While concluding he would contend that the claimant was not dependent on the deceased and as such he is not entitled for any compensation in any manner whatsoever. Accordingly he seeks for dismissal of the appeal. 12. Sri.Patel D.Karegowda, learned Counsel appearing for first respondent-owner of the vehicle would contend that accident in question had occurred on 13.05.1992 and claim petition came to be filed on 29.10.1999 and there is a delay of seven years which is abnormal and there is no explanation whatsoever forthcoming and this itself casts a doubt about the genuineness of the claim made by the claimant. He would draw the attention of the Court to the post mortem report (Ex.P2) and charge sheet (Ex.P4) to demonstrate that the age of the deceased was 32 years as on the date of accident and to lodge false claim the claimant has shown the age of the deceased as 52 years in the claim petition and to have a undue advantage this age has been shown in claim petition. He would also contend that PW.2 who has been examined in the instant case has stated that the age of the deceased was 40 years and his (PW-2’s) age as 36 years. Thus, there being inconsistency in the age of the deceased, the Court below had rightly taken the age of the deceased as 32 years by taking cognizance of the same from Ex.P2 namely postmortem report which cannot be found fault with and dismissed the claim petition since the difference of age between the deceased and the claimant was only 2 years and the adoption cannot be believed. On this ground he seeks for dismissal of the appeal. 13. Inreply to the submission of Sri.Patel D.Karegowda, learned Counsel for the appellant Sri. Govinda Raju would contend that the deceased would come within the scope and ambit of Section 147(1)(a)(1) and would contend that as per Section 2(13), the deceased was carrying the goods namely ragi bag and as such she was entitled for being awarding the compensation. In respect of this submission he relies upon the judgment of this Court in ILR 2007 Kar 1712 and accordingly seeks for allowing the claim petition. 14. Having heard the learned Counsel for the parties, the following point arises for my consideration: 1. Whether the Court below was justified in dismissing the claim petition as not maintainable since the claimant had failed to prove the adoption by the deceased? 2. Whether the claimant would be entitled to claim the compensation in view of the limits of liability prescribed under Section 147 of Motor Vehicles Act? 3. What order? 15. Point No.1 formulated herein above is being taken up for consideration since answering of the same would have an impact and bearing for considering second point formulated herein above. 2. Whether the claimant would be entitled to claim the compensation in view of the limits of liability prescribed under Section 147 of Motor Vehicles Act? 3. What order? 15. Point No.1 formulated herein above is being taken up for consideration since answering of the same would have an impact and bearing for considering second point formulated herein above. In order to appreciate the rival contentions raised by the parties it would be necessary to extract as to what has been stated by the claimant in his claim petition with regard to his relationship with the deceased and the age of the deceased since same would form foundation for considering the claim. In the cause title of claim petition it is mentioned that the claimant was aged 30 years as on the date of filing of the petition i.e., on 29.10.1999 at column No.3 the age of the person – deceased is shown as 52 years namely that of Smt.Puttamma. It is the specific contention of the claimant that he has been adopted by Smt.Puttamma during her life time. In respect of this claim the appellant has produced a compromise petition entered into in O.S.No.358/2001 which came to be marked as Ex.P6 as also the order sheet of the said suit which came to be marked as Ex.P5. In the evidence it has been contended by the claimant that he was the adopted son of the deceased. In the cross-examination it is admitted by him that the said suit namely O.S.No.358/2001 has been filed by him for declaration as though he was the adopted son of deceased Smt.Puttamma and for partition and separate possession of his 1/4th share in the suit schedule property by metes and bounds and also for mesne profits against Sri.Adaveeshaiah, namely brother-in-law (wife’s brother). 16. On the basis of these pleadings, Tribunal while considering issue No.2 has held that claimant has made an attempt to establish that he is the adopted son of Smt.Puttamma by producing the certified copy of the order passed in O.S.No.358/2001 whereunder claimant has entered into a compromise and defendant therein has admitted claimant to be the adopted son of deceased Puttamma. Since there has been glaring discrepancy with regard to the age of the deceased, the Tribunal has disbelieved the claim of the appellant. Since there has been glaring discrepancy with regard to the age of the deceased, the Tribunal has disbelieved the claim of the appellant. In order to appreciate the contentions no raised by the learned Counsel for the appellant it would be necessary to extract Section 10 of the Hindu Adoptions and Maintenance Act, 1956, which reads as under: “10. Persons who may be adopted,-No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely- i) he or she is a Hindu: ii) ii) he or she has not already been adopted: iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption. iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.” The said section puts an embargo as to the person who cannot be adopted until and unless the conditions stipulated therein are fulfilled. 17. Sri.Govinda Raja, learned Counsel has made an attempt to contend that under clause (iii) of Section 10 there is no prohibition for adopting a person who is married if the custom and usage prevails and clause (iii) does not put a complete embargo for persons who are married being taken in adoption and accordingly contends that there was nothing wrong in Smt.Puttamma adopting the claimant who was married, during her life time and there as no room for disbelieving this fact. In order to appreciate this contention it is to be examined as to whether prima facie any adoption had taken place since the question of its validity or otherwise cannot be gone into by the Tribunal. This prima facie evidence which came to be looked into by the Tribunal for the purpose of entertaining the claim petition is only re-examined in this appeal. It is no doubt true under clause (iii) of Section 10 that married persons can be taken in adoption. However, the burden is cast on the person who comes up with such plea to demonstrate and establish that adoption has taken place and pursuant to the said adoption he has been treated as the adopted son. It is no doubt true under clause (iii) of Section 10 that married persons can be taken in adoption. However, the burden is cast on the person who comes up with such plea to demonstrate and establish that adoption has taken place and pursuant to the said adoption he has been treated as the adopted son. By looking at the pleadings placed before the Tribunal and as rightly observed by the Tribunal. The inconsistency in the age of the deceased is conspicuous and glaring i.e., in the claim petition the claimant contends that the age of the deceased as 52 years. The witness who has been examined by the claimant as PW.2 states that age of the deceased was 40 years on the date of accident. The claimant in his evidence for reasons best known does not disclose the age of the deceased Smt.Puttamma. Coupled with this evidence one other aspect which is to be taken note of by this Court is the seven years gap between the date of the accident and the date of filing of the claim petition which creates cloud in the mind of the Court for accepting the contention of the claimant that he had been taken in adoption by the deceased. 18. The compromise petition viz ExP 6 has been relied upon by the learned counsel for the appellant to contend that Civil Court has accepted the status of appellant as the adopted son of deceased Puttamma. A perusal of the said compromise petition reveals that it was a suit filed by the claimant/appellant against one Rudresh for declaration to declare him (Rudresh) as adopted son of deceased Smt.Puttamma, for partition and possession and mesne profits filed on 5.5.2001 i.e. after filing of the claim petition (MVC No. 847/99) and during pendency of claim petition. In the said suit rights of the parties was not adjudicated and it ended in a compromise petition filed within 5 months from the date of compromise petition. Hence, the said compromise petition cannot be held to have adjudicated the rights of the parties. 19. In view of this overwhelming evidence to the contrary I am of the opinion that claimant has failed to establish that there was adoption by the deceased Smt.Puttamma, and this Court is not persuaded to accept the contentions raised by the learned Counsel for the appellant. Accordingly the said contention is hereby rejected. 20. 19. In view of this overwhelming evidence to the contrary I am of the opinion that claimant has failed to establish that there was adoption by the deceased Smt.Puttamma, and this Court is not persuaded to accept the contentions raised by the learned Counsel for the appellant. Accordingly the said contention is hereby rejected. 20. Insofar as two decisions relied upon by the learned Counsel for the appellant, it is to be examined as to whether the same are applicable to the facts of the present case. (a) Shri Siddegowda Vs. Smt. Mallamma And Others reported in ILR 2004 Kar 1648 In the said case it has been held – the necessity of pleading and proof of custom is not necessary when there is custom amongst the sudras to adopt a boy who is aged above 15 years. In the said case the question that arose for consideration and the substantial question of law formulated by the Court was as follows: “Whether the Courts below were justified in disbelieving or discarding the adoption plea set up by the appellant in the facts and circumstances of the case.” The other evidence which came to be considered in the said case was Ex.D1 namely the promissory note which was produced to establish that loan was taken to perform the marriage of adopted son and the said loan was borrowed by original propositus and thus adoption was held to be proved. The issue regarding adopting was not accepted by Trial Court which came to be reversed by the Appellate Court on the basis of the said evidence. That apart the witnesses examined as DW.1 to DW.9 supported the case of adoption and established the nexus with the relationship of the person adopted with the adopted father. On this ground the Court had held that when there was custom prevalent and it overrides with other evidence. Unfortunately in the instant case the claimant has taken risk of examining PW.2 who has stated as follows. When the said witness who is of the same village and who is known to the claimant pleads ignorance about adoption there is no reason to discard the evidence of the said witness. Accordingly I am of the opinion of that decision in Shri Siddegowda Vs. Smt. Mallamma And Others is inapplicable to the facts of the present case. (b) Kondiba Rama Papal Vs. Accordingly I am of the opinion of that decision in Shri Siddegowda Vs. Smt. Mallamma And Others is inapplicable to the facts of the present case. (b) Kondiba Rama Papal Vs. Narayan Kondiba Papal reported in AIR 1991 SC 1180 The Hon’ble Supreme Court reiterating its earlier decision with regard to proposition that person who have completed the age of 15 years can be taken in adoption was considered and held that once factum of adoption is proved adoption cannot be challenged on ground that child was above 15 years at time of adoption. In the said case admittedly adoption came to be proved and the only ground which came to be assailed in appeal was with regard to the age of the person adopted being more than 15 years. Accordingly the Hon’ble Supreme Court held once factum of adoption is proved the other issue namely challenging the same on the ground that child adopted was above 15 years was rejected. However, the same is not applicable to the facts of the present case for the simple reason that in the instant case the adoption itself is not proved by the claimant and as rightly observed by the Tribunal in its judgment, the same cannot be accepted. 21. In view of the above, question No.1 formulated herein above is answered against the appellant and it is held that the Tribunal as justified in dismissing the claim petition as not maintainable. In view of question No.1 formulated herein above being answered against the appellant, question of considering question No.2 formulated herein above does not arise. Accordingly, the following order is passed: ORDER The appeal is dismissed. No order as to costs.