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2011 DIGILAW 614 (KAR)

Durugamma v. Shivashankara

2011-06-16

ARAVIND KUMAR, ASHOK B.HINCHIGERI

body2011
Judgment :- 1. This appeal is directed against the judgment and decree, dated 24.3.2007 passed by the Court of the Civil Judge (Sr.Dn.) Member, MACT-VI in M.V.C.No. 157/2005. 2. The facts of the case in brief are that on the fateful day of 28.3.2005, one Durugamma was knocked down by a lorry. She died on the spot. The appellant Nos. 1 and 2 claiming to be the daughter and grandson respectively of the deceased filed the claim petition. 3. The Tribunal dismissed the claim petition on the ground that the appellants have failed to establish that they are the legal representatives of the deceased Durugamma. 4. Sri Ravi Hosamani, the learned counsel for the appellants submits that the police documents drawn at the time of preparing the spot mahazar contain references to the residents of the locality, who have all stated that the appellant No. 1 is the daughter and the appellant No. 2 is the grandson of the deceased. He submits that there have been no rival claims from any 3rd party. He further submits that the Tribunal has not looked into certain exhibits, more particularly,Ex.P.5 to 7. As it is not in dispute that the deceased was a Devadasi, it is difficult to say who was her husband and who was her father. The confusion about the name of 2nd appellant’s father is also on account of the same difficulty. Sri Hosamani brings to my notice that the respondent Insurance Company has neither entered the witness box nor put any question or suggestion to deny that they are the legal heirs of the deceased Durugamma. 5. Sri M.Y. Katagi, the learned counsel for the respondent No.3 submits that nothing is placed on the record of the Tribunal to show that the appellants are the relatives and that they were depending on the earnings of the deceased Durugamma. He submits that there is also lot of confusion as to what was Durugamma’s husband’s name and the father’s name of the appellant No.2 Kallappa. 6. We have browsed through the lower Court records. 7. The genealogical tree issued by the concerned village accountant shows that the appellant Nos. 1 and 2 are the daughter and grand son of the deceased Durugamma respectively. Ex.P.7 is the case certificate issued by the Tahsildar, Sandur. It shows that the first appellant is the daughter of Lacy Durugamma. 6. We have browsed through the lower Court records. 7. The genealogical tree issued by the concerned village accountant shows that the appellant Nos. 1 and 2 are the daughter and grand son of the deceased Durugamma respectively. Ex.P.7 is the case certificate issued by the Tahsildar, Sandur. It shows that the first appellant is the daughter of Lacy Durugamma. We are informed at the bar that the Lacy and Devadasi are synonymous. Ex.P.6 is the transfer certificate issued by the headmaster of the school. The said certificate shows the name of the second appellant’s mother as Lacy Mariyavva. In the genealogical tree, the second appellant’s mother’s name is shown as Mariyamma only. Thus, tallying of the names prima facie indicates that the genealogical tree is correct. The confusion about the names of the father/husband is because of the pernicious practice of Devadasi system. It is a system, which has to be blamed for the present state of affairs. The individuals, who are the victims of the system, cannot be left high and dry. In Devadasi system, only maternity and not the paternity can be ascertained. The law cannot be erudited in the vacuum. The ground realities are to be taken into pragmatic consideration. Only because there is no consistency in the showing of the names of the fathers and husbands of the persons in question, their version cannot be disbelieved. 8. It is also to be noted that the respondent Insurance Company has not adduced any evidence. Though it has cross-examined the appellants, it has not discredited or demolished what the appellants have stated in the course of their examination-in-chief. 9. The Tribunal has observed that no ration cards are produced, no voters’ list was produced. It is possible that the deceased Durugamma and the first appellant have been migrant lacy worker. That is why, their names may not be finding place in the electoral rolls. The Tribunal also takes exception to the non-production of a single photo to show that the deceased and the appellants have been living together. It is quite possible that the deceased and the appellants did not have their photographs taken, as they have been residing in a remote village Chikkakerehalli. 10. But we find the Tribunal’s reasoning sound on one aspect of the matter. The appellants have not led the evidence of any independent witness. It is quite possible that the deceased and the appellants did not have their photographs taken, as they have been residing in a remote village Chikkakerehalli. 10. But we find the Tribunal’s reasoning sound on one aspect of the matter. The appellants have not led the evidence of any independent witness. It is necessary that the appellants examine the residents of the village or of those persons, whose names figure in the police documents, which are drawn up on the occurrence of the accident in question. 11. Appreciating all these aspects of the matter, we form the considered view that the matter requires reconsideration at the hands of the Tribunal. 12. For all the aforesaid reasons, we set aside the impugned order and remand the matter to the Tribunal. Liberty is reserved to both the sides to lead fresh/additional evidence. 13. Considering the vintage of the accident (of the year 2005), we also deem it necessary to direct the Tribunal to dispose of the remanded matter within an outer limit of 6 months from the date of the production of the certified copy of today’s order. Both the parties are directed to be present before the Tribunal on 7.7.2011 without waiting for any notice from the Tribunal. 14. The office is directed to return the L.C.Rs to the Tribunal. 15. No order as to costs.